2.2.4 RESCATE DE LOS ANCESTRAL.
3.2 BOMBO O TAMBOR.
3.2.2 FORMA DE FABRICACIÓN.
Of course, human rights by the time of their coming into existence were no longer tied to liberal, enlightenment traditions or natural law theories in their classical senses. Nor is today's human rights agenda or body of thought solely informed by liberal and enlightenment traditions of
thought nor have human rights and their concepts ever been uncontested even in these liberal and enlightenment traditions of thought.837 Instead, human rights, by the time of their coming into
833 Weston, note 827, 259.
834 W. George, "Grotius, Theology, and International Law: Overcoming Textbook Bias", 14 Journal of Land, Resources
and Environmental Law, 2000, 605 et seq.
835
New Encyclopedia Britannica, 'Entry on Natural Law', at: www.britannica.com (last visited 27.04.2012). 836 D. Sidrorsky, "Contemporary Reinterpretations of the Concept of Human Rights", in: D. Sidorsky (ed.),
Essays on Human Rights, 1979, 89 et seq.
837 See for example J. Bentham, Critique of the Doctrine of Inalienable, Natural Rights, Anarchical Fallacies, vol. 2,
existence and ever since, were informed and are constantly further developed and extended through a variety of influences which can hardly be tied to a single monolithic body of thought. However, the influence of the liberal and enlightenment perspective has been a factor in the constitution and development of human rights, a factor that is still evident in several ways. Koskenniemi expresses this idea of the legacy of historical roots in the following way:
“I have not met an international lawyer who would have said: “Look, here is my liberal theory of politics. The international law which I teach is based on that theory.”... And yet, I know of no modern international lawyer who would not have accepted some central tenet in it. Obviously this is not a matter of conscious political choice...[]...the case appears that if one tries to engage in the sort of debate about international legality which international lawyers undertake, then one is bound to accept an international legal liberalism. Self- determination, independence, consent and most notably the idea of a Rule of law, are all liberal themes. These themes create distinctively liberal problems: How to guarantee that states are not coerced by law imposed from above? How to maintain the objectivity of law? How to delimit off a “private” realm of sovereignty over domestic jurisdiction while
allowing international action to enforce collective preferences or human rights? How to guarantee state “freedom” while providing the conditions for international “order”? These are all distinctly liberal problems…”838
According to this view modern human rights law reflects liberal and enlightenment traditions and has inherited many of their strands of thought and the conceptual riddles associated with it. What, according to Koskenniemi, makes it sometimes difficult to understand these traditions as
materially controlling is that they usually claim to merely constitute a neutral framework within which substantive political choices can be made as opposed to a grand theory themselves.839 Yet,
the liberal enlightenment worldview certainly has an impact on how and whether at all human rights emerged and on the way they are framed. It does so by providing the soil, and the philosophical and intellectual ferment and background from and into which human rights developed and often continue to do so. That is, these traditions form the nomos or normative universe of human rights in that they are part and parcel of the narratives, epics and stories that found and inform human rights, often also in their contemporary forms. Robert Cover, reflecting on the normative universe of human rights and their implication for general human rights jurisprudence, provides an example for how the founding story or epic, as part of human rights' more nonsense, -- and the nonsense, as usual, dangerous nonsense. The words can scarcely be said to have a
meaning…" and E. Burke, Reflections on the Revolution in France, 1790, which is highly critical of the philosophical foundations that brought about the Revolution, casting for example doubt on the "use of discussing a man's abstract right to food or medicine… The question is upon the method of procuring and administering them."
838 M. Koskenniemi, From Apology to Utopia, note 245, 5. Of course this is not to be understood as a factual account of
human rights but as a means to show that human rights are indebted to certain ideas. Arguing along similar lines see also Weston, note 827, 262; Alston/Steiner, note 214, 472 et seq.; Freeman, note 237, 136; J. Gray (ed.), "Max Horkeimer: The Way They See and Hear Is Inseparable from the Social Life Process", in: J. Gray, Enlightenment's Wake: Politics and Culture at the Close of the Modern Age, 1999, 200 arguing that ours are "Ours are enlightenment cultures not by positive conviction but by default."
839
Koskenniemi, From Apology to Utopia, note 245, 5-6. One such way in which liberal thought for example controls without seeming to control is through the often discussed divide between a public and private sphere in law. The division of law in a public sphere, in which law is enacted and behaviour controlled by the state and a private sphere which is left to the private person to exercise his or her autonomy rests on a distinction between private and public spheres which is owed to liberal distinction between a public sphere in which the state has a role and a private sphere in which it has not. C. Chinkin, "A Critique of the Public/Private Dimension", 10 European Journal of International Law, 1999, 387 et seq.
nomos840, first of all, is heavily indebted to liberal and enlightenment tradition of thought and,
secondly, lives on and impacts contemporary human rights thought.841 According to him the myth
that founds and underlies human rights is one of
“...social contract. The myth postulates free and independent if highly vulnerable beings who voluntarily trade a portion of their autonomy for a measure of collective security. The myth makes the collective arrangement the product of individual choice and thus
secondary to the individual... “Rights” is the fundamental category because it is the normative category that most nearly approximates that which is the source of the
legitimacy of everything else. Rights are traded for collective security. But some rights are retained, and ...[]... are inalienable.” 842
Oversimplified, the story that founds and then informs human rights, according to Cover, presupposes a state of nature in which there exist individuals who are free and dispose over
unlimited rights.843 In this setting the individual is the first and fundamental unit, and rights locate
him as an individual separate and apart from every other individual, society and the state.844 Only
through each individual's choice and free consent to trade some of his or her rights away, i.e. through a social contract, can there be a legitimate limitation of the rights of the individual. Yet, even then some of these original rights, so called human rights, are retained by the individual.
840
Cover, "Nomos and Narrative", note 38, 95, 95 set seq. Law, according to Cover, is not to be conceived of as a system of rules and interpretations or a set of institutions but as a normative world, i.e. a nomos, in which legal rules and institutions interact with other cultural forces in the production of legal meaning. Ibid, at 145. That is, "no set of legal institutions exists apart from the narratives that locate it and give it meaning" – as "for every constitution there is an epic, for each decalogue a scripture." Ibid. at 146. Of course it must be noted at the outset that narrative and founding stories cannot 'explain' human rights. They are not 'real' in the way historically discernible facts are 'real'. Instead they are myths and stories that embed law and form part of 'law's universe', that attempt to explain why human rights have come into existence in the way they have, why they are important and what their purpose is, yet they remain pieces of the larger picture that together 'explains' human rights, not the complete picture itself. Moreover, narratives, like discourses, are always contested by other narratives and there always exist different and sometimes competing narratives that seek to embed and 'explain' human rights. Ibid. 146. Nevertheless, narrative, in the form of popular, academic or other accounts, can provide some insight in the context and structure of the subject that it describes and thereby help embed and ultimately better understand it. The power of narratives in constituting and shaping
understandings, views, ideas and ideals and their thereby very real impact on for example attitude and behaviour of people, groups, cultures, societies and governments has been widely researched. On narrative in a legal context see for example H. Arendt, Eichmann in Jerusalem, 1970; M. Osiel, Mass Atrocity, Collective Memory, and the Law, 1999; R. West, Narrative, Authority and the Law, 2004; D. Manderson, "Formalism and Narrative in Law and Medicine: The Debate over Medical Marijuana Use", 29 Journal of Drug Issues, 1999, 121 et seq. In a medical context see S. Krippner/M. Bova/L. Gray (eds.), Healing Stories: The Use of Narrative in Counselling and Psychotherapy, 2007.
841 R. Cover, "Obligation: A Jewish Jurisprudence of the Social Order", 5 Journal of Law and Religion, 1987, 65 et seq. 842
Cover, "Obligation: A Jewish Jurisprudence of the Social Order", note 841, 66. Of course this is not to suggest that all or even most theories that are founded upon rights are "individualistic" or "atomistic." Nor does this mean to suggest that with a starting point of "rights" and social contract one must get to a certain end. Thomas Hobbes, John Locke and Jean-Jaques Rousseau have all to some extent been part of this tradition yet they have arrived at different conceptions of states, their legitimate powers and individuals in the sense that they found more collective as well as more
individualistic answers to the questions they posed. However, so Cover, even the collectively-oriented answers are arrived at by way of a theory that derives the authority of the collective from the individual. Cf. for example T. Hobbes,
Leviathan, 1660, at: http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html (last visited 27.04.2012), chapter XIII and XVIII.
843 Cover, "Obligation: A Jewish Jurisprudence of the Social Order", note 841, 65 et seq. Similarly, for example
Nussbaum, Amrtya Sen and John Rawls postulate an idea of social contract. See for example, M. Nussbaum, "Beyond the Social Contract: Capabilities and Global Justice", The Tanner Lecturs on Human Values, Delivered at Australian National University, Canberra, November 12 and 13, 2002 and at Clare Hall, University of Cambridge, March 5 and 6, 2003. Sen, Development as Freedom, note 769, 52 et seq.; and J. Rawls, A Theory of Justice, 1975.
These rights then are meant to guarantee a good order or society. In the human rights epic, it is mostly left to the state, as the product or end result of the social contract, to be the guarantor of these rights and to thereby establish a good moral order.845 The narrative of human rights thus
constructs a particular vision of the human being as a free and autonomous human being who is capable and willing to form his or her decisions individually and who voluntarily trades some of his freedoms away in exchange for being part of society. It also postulates a particular ideal of a good society or good order and the means by which to achieve this good order – i.e. one that is based on each and everyone's enjoyment of and access to human rights within a state that acts to guarantee each and everyone's enjoyment of and access to human rights.
Cover contrasts this myth and the way it constructs the individual, the state and a good order with the myth that defines the Jewish jurisprudence of 'mitzvah',846 which, according to him, is a
fundamentally different one though it is functionally equivalent to human rights.847 In contrast to
the contract based theory that founds human rights the myth that founds the Jewish concept of 'mitzvah' is essentially one of heteronomy and not autonomy. It is the 'myth of Sinai' which gives meaning to the word 'mitzvah' which is
“a collective - indeed, a corporate – experience. The experience at Sinai is not chosen. The events give forth the words which are commandments... All law was given at Sinai and therefore all law is related back to the ultimate heteronomous event in which we were chosen...”848
In the myth that founds the concept and jurisprudence of mitzvah the autonomy and individuality of each and everyone consequently is of lesser importance than in a human rights context. The individual's consent to whether or not a jurisprudence of mitzvah is to be established is in fact irrelevant as it is God who chooses the collective people of the Jews no matter an individual's consent.849 Also the means and concepts used to establish a good order significantly differ from
that based on the establishment of the “rule” of human rights. There are no rights that an
individual retains and that he or she is at liberty to invoke against a state. Thinking of the Jewish concept of mitzvah in terms of rights is generally amiss as there is no choice as to whether or not an individual accepts a jurisprudence of mitzvah. Moreover, the state is largely irrelevant to the
concept of mitzvah as responsibilities are owed to God and not to the state. The founding stories or myths underlying human rights and mitzvah and their implications for the respective core concepts of human rights and mitzvah thus contrast in several important ways. They, for example, rather markedly differ with regard to the status of the individual, as concerns questions of free choice or
845 See for example J. Slaughter, Human Rights, Inc.: The World Novel, Narrative Form, and International Law, 2008,
1 et seq..
846
According to Cover the "word mitzvah literally means "commandment", it is not a right - and "it has a general meaning closer to "incumbent obligation."" Mitzvah thus is fundamentally a concept of duty not of entitlement. In fact, Cover concludes "in Jewish law an entitlement without an obligation is a sad, almost pathetic thing." Cover,
"Obligation: A Jewish Jurisprudence of the Social Order", note 841, 145.
847
Ibid., 146
848 Ibid. 849 Ibid.
autonomy of the human being, on the question of the means by which a good or legitimate order is to be realized and the relevance and role of the individual and state in securing this order. To some extent then the founding story of social contract reflects many of the abovementioned liberal and enlightenment tenets and core principles, including that of autonomy, individual rights and the state as the protector of these rights.
In summary, liberal, enlightenment and natural law traditions of thought thus had and have a significant impact on the ideas and ideals that inform human rights, on the range of concepts that are relevant in the field, on the content of human rights concepts and the methodology used by human rights to resolve the issues it tackles. That is, human rights self evidently pertain to each individual. They are viewed as (morally) prior to and above society and the state. They emphasise a person's autonomy, equality, individuality and dignity and are linked to human beings' innate capacity to reason i.e. to human beings humanness. They are rights, not duties and, at least when first conceived of within the UDHR, they were mainly negative rights, i.e. rights that restrict rather than incite the state to act.850 The state has a duty to protect them, it is the guarantor of a good
order.
In terms of epistemological concepts (grid points) that constitute a human rights discourse it may then be fair to say that any such discourse is based on the following structure giving concepts. First, it is based on the idea and concept of individual rights or legal entitlements that self-evidently pertain to each and everyone equally. Secondly, it is based on the idea and concept of that each everyone has human dignity simply qua being human and that this dignity must be or is best to be protected through the aforementioned individual rights. Third, any such discourse is about the idea and concept of a nation state as main guarantor and threat to human rights. Fourth, it is somehow linked to the idea and concept of universality as all human rights, if they have to have to be valid for everyone i.e. if they can be identified by the rational mind and inhere in the human being, must apply to everyone equally and must be the same for everyone everywhere. Finally any such
discourse is about the idea and concept of autonomy which, as the natural birth right of each and every person, has to be protected in a human rights discourse. The following section will explain the idea and concept of each of these structure giving points as relevant to a human rights discourse.