The Politics of Human Rights 1859847277, 9781859847275

Table of contents :
Contents
The Global and the Local in Human Rights
3
The Law of Peoples
16
The Rights of Man and Good Will
46
Human Rights Rationality and Sentimentality
67
Law Solidarity and the Tasks of Philosophy
84
Conditions of an Unforced Consensus on Human Rights
101
Jon Elster
120
Are Human Rights Truly Universal?
149
Political Theory and the Problem of Violence
245
Local and Global
258
This
263
Time of Consumption and the Consumption of Time
268
A Painful Peace
281
Critique and Analysis in Media Studies
303
Metaphor Ontology and Scientific Truth
322
Parallel Worlds
335

The Others Rights
181
Human Rights in the New Europe
189
The Legal Status of National Minorities in the Federal Republic
218
Womens Rights as Human Rights
232
Speed Memories III
346
NOTES ON CONTRIBUTORS
357
Copyright

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---~•---Edited by Olffad Savic

for the BELGRADE CIRCLE JOURNAL

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Tl1e editors ar1d Verso grateftally ack11owledge the per1nis.-.i(>r1 of the atathors a11d tl1eir ptahlishers t reprodtace r11aterial i11 this \'lt1n1e; releva11t citatio11s art· printed at the end of inclividual co11tril>utili~l1e I ~}f Pl1ilcJSpt1y Peter Dews

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Conditions of an LT11 fc>rc.:ed (:nst~11st1s n H t1111an Rigl1 ts Char/LS Taylor

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Majority Rt1le a11d lndi\·idt1al Rights

Jon Eisler 8

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..\re Ht1man Rights Trtaly LTni,·t·rsal? :\nta,iio Casstse

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Democracy and Ht11nan Rights t111dt'.r Diff11ditins of De\·e lopmen t Robert Dahl

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The Other's Rigl1ts 181

jf'a ,,-f ·r,1,1r11is f .) 0/arlitical Tl1er,· , ;incl tl1e Prt>blern f tl1e C:olwn words, 'appropriate to the monarchist pri11ciple', and that it shot1ld not irritate the three patron monarchies, Tt1rkey, Russia, and Austria. 16 In accordance with co111mon law, the first Serbian law founded civil society on the natural-law principle of peasants' cooperatives. After this, co111mon law increasingly lost importance, and was substitt1ted gradually with positive legal legislation in the E11rc>pean tradition. However, a legacy of Jelfkgitimiz.ation of political lishing are being opened towards moral argumentation would close, we would no longer know what else the autonomy of law could mean but the autonomy of constitution. The legal system does not acquire autonomy for itself. It is autonomous only inasmuch as institutionalised acts of legislatt1re and judiciary guarantee unbiased creation of courts and will, thus bringing the ethical procedural rationality equally to both law and politics. Thne is no autonomy of law without a r~aliud dnnocrary. 18

An advancement in the culture of rights can be seen in the acknowledgment that subjective rights are as original as objective ones, and that both constitute the legal order together. The emphasis is on the in/J!r-subjectiue sm.se of subjective rights, a sense that has long been unrecognized and unacknowledged, because of the individualist understanding and liberalist phrasing. A right. after all, is neither a gtin nor a one-man show. It is a relationship and

a social practice, and in both those essential aspects it is an expression of connectedness. Rights are public propositions, involving obligations to others as well as entitlements against them. In appearance, at least, they are a form of social cooperation, no doubt, but still, in the final analysis, cooperation. 1Y

The etatistic understanding of objective law, as ,~ell as the psiti,,ist clc>gn1atics of ci,il law, is being abandoned:

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INTRODUCTION

At a conaptual lr.uel, rights do not immediately refer to atomistic and estranged individuals who are possessively set against one another. On the contrary, as elements of the legal order they presuppose collaboration among subjects who recognize one another, in their reciprocally related rights and duties, as free and equal citizens. This mutual recognition is constitutive for a legal order. 20

Progress in the process of legitimacy lay in the first place in the democratic introduction and regulation of rights retroactively referring to the principle of people's sovereignty. From that moment onwards, the idea of human rights and sovereignty became the determining criteria of normative self-understanding of the democratic states of law. A just society could be constituted only where political freedoms were secured through democratic legislature, and where the legitimacy of law was based on universal justice and solidarity. 'The aim of the excursus was to explain why human rights and the principle of popular so,,ereignty still constitute the sole ideas that can justify modern law. ' 21 The task of 1nodern democracies, then, is to resolve a latent tension between the postulated priority of human rights and popular sovereignty, secured through the fact that the legal system creates regt1lar conditions under which 'communicative forms of the l ..ifeworld' (Habermas) can be institutionalized, since they are indispensable for a politically autonomous legislature. In this regard, 'the substance of human rights then resides in tl1e formal conditions for the legal institutionalization of those discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character. · 22 In contrast to the long process of democratic consolidation of the state of law in the West, communist Yugoslavia adopted the Bolshevik legal paradigm, which was canonized by the Russian 1918 Constitution and the Soviet 1937 Constitution. This latter openly declared a total abolition of the rights of individuals, a sovereign sphere of his/her personal freedom that stood in the way of unlimited state autllority. Laws did not function as legal instrument~ for tile limiting of power, bt1t as political instruments for the u11limited expansion of absolt1te power. Conseqt1ently, the FPRY (Federal People's Republic of Yugoslavia) and the SFRY (Socialist Federal Republic of Yugoslavia) ft1nctioned not as legal but as totalitarian states, based on a monopoly of 'legitimate \-iolence·. Traditional means of coercion disabled both tile sovereignty and rights of individt1als. The lack of legal legitimization created a political space in which the general i11terest of the majority was suspended by the tyranny of a n1inority, communist party. 'There is no ce11sorship in Yugoslavia,' philosopher Zarko Pt1hovski once said, 'but there are many bans, so it turns out that, perversely speaking, there would be progress if a censorship were to be instituted as the sum of rules on bans. ' 23 Socialist regimes t1sed the legal infrastructure as a screen behind which the political voluntarism of the one-party state could be hidden. Since the auto11my of ci,·il society was impossible, all citizens, and oppressed and marginal grot1ps in particular, could not participate equally in the shaping of so-called S11cl, tl1e clc)("t1me11t favoured i11dividt1als a~ st1~jects f inclivicltaal rigl1ts. a11d 11,,t tl1e statt~ as a sta~jt'ct f i11tt·r11ati11al la\\'. Tl1ird. there ,vert~ 11 scx·ial rigl1ts i11 tile 1>rpst'f hl1n1a11 rigl1ts. Fi11ally. tl1e FPR\' delegatin partict1larly i11sistlt:te prt>tecti11 f 11atitl11al rights. \\'l1ic}1. i11 the peric>f disst>lt1tic,11 f that Ct111try, Ct1lle11c(• a11d vic,latitl ,,f ht1111a11 dig11ity. St·t· ·1·11-28'.~. 11. Ric·l1arcl Rc.,rtv. · l·lt1111an Rigt1ts, Rati11aliry. a11cl St·11timt·11t.1litv' . irl this Vlt1n1e. I'.{. St't:' l)avicl I lt·l,ic (eds.), Prava i .iloboda: 11U!tlunarodni i jugosloven.ski slandardi, p . 213, Beogradski ce11tar 1a ljudska prava, Belgrade, 1995: 'Our aim is to try to point to the special circt1m~tances of tran!lition, which could bring closer or ptash away farther the ideal of human rights, a11d even to make that in the end it could turn out that a transition ends in a state that is the same or even worse when it comes to human rights, compared to the i11itial sittration .' See also Vojin Dimitrijevic, l\/e.iz.ves1iosl ljud.skih prava, lzdavacka knjiz11ica Zora11 Stojanc>,ic. Sremski Karlovci - Novi Sad, 1993. 26. Nebojsa 8. Vtacinic, ·Jt1goslc,ve11sko prc1,·o i medunarodni standardi o ljudskim prnima - normativna analirn ', in V~iin Dimitrijevic and Milan Pat1novic (eds.), Pmva i swboda: m,Junarodni i jugosltJvnislti standardi, Beogradski centar za ljudska prava, Belgrade, 1995. pp. 143-170. 2i. Bra11ka Petrovic a11d 2arko Pau11ovic, Dirfrlury of ,Vongo11rr,,mmtal 1Von-Profit Organizations in tMFRY. CDNPS, Belgrade, 1997. 28. David Held, 'Democracy Today', in his Model~ o[DnnOiottsly. a principle such as the fourth - that of nonintervention -will have to be qualified in the general case. Altl1ough suitable for a societ:}' of well-ordered democratic peoples who respect human rights, it fails in the case of disordered societies in which wai-s and serious ,riolatic>ns of human rights ai-e endemic. Also, tl1e right to independence, and equally the right to self-determination, hold only \\ithin certain limit~, to be specified by tl1e law of peoples for the ge11eral case. Thus, no people has the right to self-determination, or a right to secession, at the expense of the st1bjt1gation of another people; 14 nor ca.n a people protest their condemnation by the world society when their domestic institutions ,riolate the human rights of certain minorities living among them. Their right to independence is no shield from that condemnation. or even from coerci,•t-. interventio11 by other peoples in grave cases. 1

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There will also be principles for forming and regulating federations (assciations) of peoples, and standards of fairness for trade and other cooperative arrangements. There should be certain pro\isions for mutual assistance between peoples in times of famine and drought, and were it feasible, as it should be, provisions for ensuring that in all reasonably developed liberal societies people's basic needs are met. 15 These provisions will specify duties of assistance in certain situations, and they will vary in stringency depending on the severity of the case. An important role of a people's government, however arbitrary a society's boundaries may appear from a historical point of view, 16 is to be the representative and effective agent of a people as they take responsibilil) for their territory and the size of their population, as well as for maintaining its environmental integrity and its capacity to sustain them. The idea here appeals to the point of the institution of property: unless a definite agent is given responsibility for maintaining an asset and bears the loss for not doing so. that asset tends to deteriorate. In this case the asset is the people's territory and its capacity to sustain them in perpetuity; the agent is the people themselves as politically organized. They must recognize that they cannot make up for irresponsibility in caring for their land and conser\ing their natural resources by conquest in war or by migrating into other people's territor}' without their consent. 17 These remarks belong to ideal theory and indicate so1ne of the responsibilities of peoples in a just society of well-ordered liberal societies. Since tt1e boundaries of peoples are often historically the outco1ne of violence and aggre~ion, and some peoples are wrongly subjected to others, the law of peples in its nonideal part should, as far as possible, contain principles and standards - or at least some guidelines - for coping with tl1ese matters. To complete this sketch of the law of peoples for well-ordered liberal st major powers. The reaso11s for this law's holding (supposing it does) are qt1ite compatible with actual democracies, marked as they are b)' considerable injustice and oligarchic tendencies, intervening, often covertly, in smaller cotantries whose democracies are less well established and secure. \\'itness the United States' overturning tl1e democracies of Allende in Chile, Arbe11z in Gt1atemala, Mossadegh in Iran, and, some would add, the Sandinistas in Nicaragt1a. Whate,,er the merits of these regimes. co,·ert operations against them can be carried out by a go,·ernment bureaucracy at the urging of oligarchic interests without the k11owledge or criticism of the public, and presenting it witl1 a fail accc>mpli. All this is made easier by the l1and}· appeal to national sect1rit}' given the situation of st1perpower ri,,.&1lr}' in the Cold War, which allowed those demcx.:racies, however in1plat1sihly, to he ca~ as a danger. While democr~ttic peoplt·s ,lre 11ot expa11sionist, they do defend their securit)·· interest, ar1d t11is an oligarc:t1ic g\'er111nent c,ln easily ma11ipt1late i11 a time f sttperpo,,·er ri,ralry to stippt>rt co,'ert interventions 011ce they are fot1nd otit.:!2 The last Crse tl1t· prin(·iples and jt1dgn1e11t~ provide at least an otatline of the law of peoples. Lod by religiotts and expa11sio11ist states that reject tl1e liberal conception. The liberal conception asks of otl1er socit~ties only \\!lllyi11g l tile laws f pt·c>plt·s t.·\·t'r,wl1t'rt' givt·s a rnra11ir1g relathilri111cd i11 1-'o/itirnl l.ihrrr,li,\nl. ,t. For a clctailecl t·xa111ple c,f ltc>\\' tl1is is cl,,11e i11 tl1t: case· f 1l1t· fc,11r-stagc St'qtll'llt'l' (>f

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original position, constitutional convention, the legislature ancl the courts, see A 'fhfflry of ju.stic, (C.ambridge, Mass.: Harvard University Press, 1971 ), 195-201. A briefer stateme11t is (ound i11 'Basjc l~iberties and Their Priority' ( 1982). reprinted in Poutical liberalism. 5. B}· peoples I mean persons and their dependants see11 as a corporate body and as organized by their political institutio11s, which establish the powers of governn1e11t. 111 democrAtic societies persons will be citizens, while i11 hierarchical a11d other societies thc·y will be members. 6. See 'fhff,ry, 378tT., where this process is very briefly described. 7. It would be unfair to Clausewitz not to add that for him the state's interests can include regulative moral aims of whatever kind, and thus the aims of war may be to defend democratic societies against tyrannical regimes, somewhat as in World War II. For him the aims of politics are not part of the theory of war, although they are ever present and may properly affect the conduct of war. On this, see the instrt1ctive remarks of Peter Paret, 'Clausewitz'. in Peter Paret, ed., 1'he Malcers of Modn-n Strategy (Pri11ceto11, NJ.: Princeton University Press, 1986), 209-13. The view in my text characterizes the raison deliU as pursued by Frederick the Great. Or so ~rhard Ritter says i11 frtdericJc th, (;rr.al, trans. Peter Paret (Berkeley: Califor11ia University Pres..'i, 1968). See chap. 10, a.J1d the statement on p. 197. 8. These pwers Charles Beitz chardcterizes as belo11ging to what he calls the morality of states in part II of his Poulical '/1,eory and lnternatiooal Relations (Princeton, NJ.: Princeton l l11iversity Press, 1980). They depend, he argues, on a mistake11 a11aJogy between i11dividuals a11d stales. 9. Star1ley Hoffman, Janus and l•1innva (Bc>uldcr, (::Olo. arid London: Wesl\iew Press, 1987). 374. 10. Note: 'vou and l' are 'here and now· citizens of the same liberal den1ocralic societv and we are working out the liberal Cnception of justice i11 qt1esti11. 11. In this case 'you and I' are citize11s of liberal den1ocratic societies but not f the sa1ne one. 12. Kant says at Ak: VIII: 367: 'The idea of internatio11al law presupposes the separate exi!rtence of independent neighboring states. Althot1gh this condition is itself a state of war (t1n)ess federative unio11 prevent~ the ot1threak of 11,>stilities), this is rationally preferable t the amalgamatio11 of states tinder ne ~t1perior power, as this would end in one u11iversal mo11archy. a.J1d laws always lose in ,igor wl1at gvcrr1me11t gai11s i11 exle11t: hence a co11dition of soulless desptism falls ir1to anarchy after stifli11g seeds of gcxxl. · This attitude to ur1iversaJ n1011archy wa._ shared by other \\Titers of the eightee11tl1 ce11tt1ry. See, for exa111ple, Hume's ·or the Balar1ct• of Power' ( 1752). F. H. Hinsle"·· Pow,r and ti,,. Pursuit oj·J>eac~ ((.:ambridge. Engla11d: J,ili,sfJh_\· (Twa11da, Pa.: Rown1an a11d Littlefield, 1983), cl1aps. 5 and 6. Thomas Nagel. i11 his t;qunlity and Partiality (New York: Oxford University Prt'ss. 1991 ). l69tl., I i4, gives stro11g rt'.aS11s st1pporti11g the same conclusio11. 13. See Terry Nardi11, /.atv, 1\Jornlit)' ,,nd th, &lalions of .Stnu.s (Princeton, NJ.: Pri11cet11 L. niversity Pres.Ii, 1983). 269ff., wh stresses th is pir1 t. 14. A clear exarnple regardi11g secessio11 is whether the S.1t1th had a right to St:c:c pcrpettaatc its dmestic institution f slavery. 1·his is a,; severe a \iolation of human right11 as any, a11d it cxte11ded to nearly half the ppt1lation. 15. By hasic needs I mea11 rot1ghly thse that n1ust be met if citize11s are to he i11 a positin to take ad,..dntagc of the rights, lihertjcs a11d opprtt111ities ()f tht·ir S(>Cit·ty. Tl1ey i1111g tl1i11g. The right q11esti11 co11cer11s the plitical ,~.ilt1cs served by tl1e several st..1tt'.S i11 a ft'clt'ral S)'Stern. T}1e answer is giver1 by states' f1111cti()ll a1111n its, and whether their b< >t1ndarit"s ca11 Ix·, e, rc64 ( 1989). 245, sec. \ 'II. 19. See Jack S. l.evy. 'l)o111cstic Ples a11d i11stituti(>11s) f 111llt\1al rt>specl have frmcd a Cpt·rative fot1ndatio11 lor relatirced, n1t1st Ix~ st1ch as to gi,·e rise, a.~ I have i11dicated, t moral dt1ties a11d bligati11s n all n1embers f S(>Ciety, a11d jtidges and other fficials 0111st sir1cert.'. ly a11d rt~aS\\'S, 111y aim is t i11dicate a C11ceptie>11 e,f jttstice tl1at. \\'hile nt a liberal c,,11ceptio11, still has ft~att1res 1t1at gi\'e t Scit·ties regt1lated accordingly tl1e moral standi11g requirt~rl to be 111en1bers fa plitiral Se a systcn1 t't·t; 11c>r de, 1 reject tl1is iclt·a t~ither, as Sc ,pt~r 1nakt•s a stre..,11g case ff prc,pt·rty. al,,·ays in1plies ha\'ir1g ct•rtai11 gse eclln1ic mc.·,t11s. 27. ()11 the rt1les f 11at,1ral jt1stice. sc·c.· H. l .. :\. Hart . ·1·1,f (."011r1·f,t of l .11zt1 (()xfc>rd: ( :Jare1111 Prt'ss). l 5(1ff.

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28. Or,e might raise the question here as to why religious or philosophical doctrines thal deny full and equal liberty of conscience are not tanreasonable. I did not say, however, tl1at thev, are reasonable, but rather that thev, are not unrea~onable. One should allo\\', I think, a space between the reasonable or the fully reac;onable, which requires ft1I) and equal liberl)' f conscience, a11d the unreasonable, which denies it entirelv. , Traditional doctrines that allow a measure of libertv of conscience but do not allow it fullv are vie~'S that lie in that space and are 11ot unreasonable. On this see my Political Lil~lism, lectt1re 11. sec. 3. 29. On the importar1ce of this. see Judith Shklar's Ordi11nry \.-'ires (C..ambridge, Mass.: Hanc1rd University Pre~. 1984), i11 which she prese11L~ whal she:- calls the 'liberalisrn of fear· . See especially the introductio11 and chaps. l and 6. She once called this kind of liberalisrn that of 'permanent minorities'. See her Legalism (Cambridge, M~.: Harvard Ur1iversity Pre~. 1963), 224. 30. Subject to certain qualifications, liberal societies must also allow for this right. 31 . These are not political conceptions of justice in my se11se; see note 2 above. 32. Here '}'OU and I' are n1embers of hierarchical societies but again not the same one. 33. Here I am indebted to Lea Brilmayer of New York University for poi11tir1g Ul to me that in my sketch of the law of peoples (October 1990) I failed to state these conditions sat• isfactorilv. . 34. Brian Barry, i11 his splendid "/'heori,s ofjustir, (Berkeley: U11iversity of California Press, 1989). discusses the merit\ of doi11g this. See 183-89fT. Along the W-clY he raises serious objec• tions to what he takes to be my view of the prir1ciples of distributive jt1slice for the law of people~. I do not disc11ss these importa11t criticisms here, but I do menti,,n questio11s related to them hereafter. 35. We can go on to third and later stages once we think of grttps of sc>eieties joini11g together into regional associatio11s or federations of son1e kind. s11ch as the Europea11 (:C>mmtanity, or a cc>mmonwealth of the reptablics in the ff>rmer Soviet Union. It is 11att1ral to e11\-isage fut11re world society as in good part Cmprised of such federations together with certain i11stitutions, stach as the U11ited Natio11s, capable f speaking fr all tl1e societies er i11 g0d standing of a rca.s11able scxiety of peoples: a11d many rcligior1s ar1d philc,sophical de part f tile frcig-11 J>licy of "·ell-ortlert·cl S. See Judith Shklar's illt1n1i11ati11g disc11ssi11 f these in her •.\mmcan n the histclrical sig11ifica11ce f slaverv. , 46. This fact abne shall t>e st1~jernc t· a.-.t:'.S described hy the spet·ial cc>11\·t~11ti11 a11d lalin11.~ pt. 111 givt·s a s11stai11ed clisct1s.sio11 . This prir1ciplt· is definecl i11 rnv A 1'hror.\' '!f.fu~tic, , st·ers· ha.sic 11c.·c·ds· ( 14 l ) . :\nd ·It I tl1e rcstarce distrihtttin pri11ciple] prvicles ass11ra11ct: tc> pers11s i11 rest>ttrasic r1pia, 1Yi2-74; Sahel. I ~•i:!- 7'.{ : ar1cl Ba11glaclc.'sh. 197 4), th at t«ld t1sness. E\·e11 if the biblical imperativt~s 'Thot1 shalt not kill' and 'Thc)tl shalt lo\'e the stranger•• had been waiting for thot1sa11ds c1f years for rigl1ts ,tSSc.·iated \\1th tl1e ht1n1a11it)· of ma11 to er1ter int tl1e primc1rdial legal disc·11 i11 L't111tr,·. • 1

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EMMANUEL LEVINAS

Whence in any case considerable and already revolutionary work, with its ine,itable upheavals, in favour of the rights of man. Work that makes possible the science of modern times, a science of the nature of things, men and collectivities. Work that is encouraged by access to the technical procedures opened up by science. The further refinement of a human order of freedom by the elimination of many material obstacles of the contingent and social structttres that encumber and pervert the application and exercise of the rights of man. Rights that may not be capable of eradicating completely the ultimate harshness of the Inhuman in being, which, by the insuperable firmness of the stitching consolidating its cloth - material, physiological, psychological and social - always thwarts and limits the free will of man. Man can also stubbornly go on existing while giving up the attempt to acquire and preserve difficult rights. As if the freedom of rights were itself a limit to freedom, as if freedom were itself a necessity of obligation. What is the meaning of the 'should be' of this right?

n Even if the fact that the possibility of the consolidation and expansion of the rights of man is bound to the scientific progress of modernity seems to me to explain the relatively recent character of its actualization, and the profound origin of the right seems already acquired, as we said, from the earliest time of our Western destiny, the question of the justification of this right, the question of its very 'should be' remains open. The answer cannot be reduced to a necessity apprehended indttctively on the basis of the extension of the interest raised by the right of man and the general consent assumed by this extension. Does not the 'normative energy' of the right of man lead us back to the rigour of the reasonable? By virtue of what, and in what way, could the free or at1tonomous will claimed by the right of man impose itself on another free will without this imposition implying an effect, a violence suffered by that will? Or could it be that the decision of a free will conforms to a maxim ot· action which can be universalized withottt being contradicted and unless, thus revealing the reason that inheres in a free will, this will makes itself respecud by all other wills, which are free becat1se of their rationality? A will Kant has called practical reason. And could it be that the 'intellectt1al feeling' of rt5pect here delineates respect as a modality of the true meaning of the situation? An 'intellectual feeling' that, precisely as intellectual, wot1ld n() longer proceed from sensibility, understood as a source of heteronomy by Kant and that attests - rather than to a wot1nd inflicted by one. will on the freedom of the other will - to the fttllness of peace in reason. The will that obeys the order of a free will would still be a free will, as reason yieldir1g t reason. The categorical imperative would be the t1lti111ate principle of tl1e right of man.

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THE POLITI(:S OF HUMAN RIGHTS

Ill Is it certain, however, that free will lends itself entirely to Kant's notion of practical reason, that height of universal thought also called good will? Does it allow itself to be contained therein \\ithout resistance? Does respect for formal universality appease the irrepressible part of spontaneity, which cannot immediately and conveniently be reduced to the impulses of passion and feeling? An irrepressible spontaneity that still allows us to distinguish between the rigorous rationalism of intelligence and the risks of a reasonable will. But is that irrepressible spontaneity of the will not goodness itself, which, sensibility par excellence, would also be the original and ge11erous project of the infinite universality of reason which is required by the categorical imperative? A generot1s impulse rather than, in its holy imprudence, the pathological one denounced by Kant, which disqualifies all freedom! 2 Goodness, a childish virtue; but already charity and mercy and responsibility for the other, and already the possibility of sacrifice in which the humanity of man bursts forth, disrupting the general economy of the real and standing in sharp contrast with the perse\'erence of entities persisting in their being; for a condition in which the other comes before oneself. Disinter-estedness of goodness: the other in his demand which is an order, the other as face, the other who 'regards me' even when he doesn't have anything to do with me, the other as fellow man and always stranger - goodness as transcendence; and I, the one who is held to respond, the irreplaceable, and thus, the chosen and tht1s truly t1nique. Goodness for the first one who happens to come along, a right of man. A right of the other man above all. Descartes speaks of generosity. He attaches it both to the 'free disposition of [a man's] will' and to the fact that those who are generous 'do not hold anything more important than to do good to other men and to distain their indi,1dual interest~·. 3

IV In religion and theolgy it is said that the right is conferred by God on man, tl1at the right of man corresponds to the will of God. Expressions that in any case indicate the t1nconditional or extraordinary natt1re of that right in relation to all legal forms that already rest on ht1man conventions or on the examination of 'human natt1re'. Here, without bringing in the famot1s 'proof c>f the existence of God', are the rightc; of man constitt1ting a juncture i11 which C...ocl comes to mind, 4 in which tl1e notion of transcendence ceases to remain pure I}' 11egative and the abusive "beyond· of our conversations is tht1ght p1111:.i/11). l1acl tied betwee11 fret•clrn of c·l1c,ic·t· ,111cl tl1c pt~rs11 's ,tlttll111nly ,tsst'rt itst~lf ,ts a Jlartict1lar fc>r111 1

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that furnished specific decisions and powers with the force of de facto bindingness. After Bernhard Windscheid, individual rights were considered reflexes of an established legal order that transferred to individuals the power of will objectively incorporated in law: 'Right is a power or rule of will conferred by the legal order. ' 4 Rudolf von Ihering's utilitarian interpretation, according to which utility and not will makes up the substance of right, 5 was later included in this definition: 'From a conceptual standpoint, individual rights are powers of law conferred on the individual by the legal order; from the standpoint of its purpose, they are means for the satisfaction of human interests. ' 6 The reference . to gratification and interest allowed private rights to be extended beyond the class of negative liberties. In certain instances an individual right yields not only a right on the part of person A to something protected from the interference of third parties, but also a right, be it absolute or relative, to a share in organized services. Finally, Hans Kelsen characterized individual rights in general as interests objectively protected by law and as freedoms of choice (or 'Wollmdii.rfen' in Windscheid's sense) o~jectively guaranteed by law. At the same time, he divested the legal order of the connotations ofJohn Austin's command theory, which had been inflt1ential up to that point in the German version of August Thon. According to Kelsen, individual entitlements are not ju.~t authorized by the will of someone with the power to command, but possess normative validity: legal norms establish prescriptions and permissions having the character of an 'ought'. This illocutionary 'ot1ght', however, is understood not in a deontological but in an empirical sense, as the actual validity that political lawgivers confer on their decisions by coupling enacted law with penal norms. The coercive power of state sanctions qualifies the lawgivers' will to become the 'will of the state' . In Kelsen 's analysis the moral content of individual rights expressly lost its ' reference, namely, the free will (or 'power to rule') of a person who, from the moral point of view, deserves to be protected in her private autonomy. To this extent, his view marks the counterpart of that private-law jurisprudence stemming from Sa,igny. Kelsen detached the legal concept of· a person not only from the moral person bt1t even from the natural person, because a fully selfreferential legal system must get by with its self-prodt1ced fictions. As Luhmann will put it after taking a ft1rther naturalistic tt1rn, it pushes natttral persons out into its en,rironment. With i11dividual rights, the legal order itself creates the logical space for the legal subject as bearer of these rights: 'If the legal subject ... is allowed to remain as a point ot·rcference, then this occt1rs in order to keep the judgment that "a legal st1bject or person 'has' subjective rights" from becoming the ernpty tautology "there are sttbjective rights" ... For to entitle or to obligate the perSn would tl1en be to e11title rightli, tr another, the intersubjective meaning of legally defined liberties is ovt·rlooked, and with it the relation between private and ci,ic atttonomy in wl1ic:l1 both moment~ receive their full dt1e. Trusting in an idealist concept of at1t\\' wh)' st1cl1 an order equally satisfies the interests of all participants PX />ost facto, that is. frc>m the sta11dpint of readers who already fi11d ther11sel\·es i11 a ci\·il Sciety. . He 1nt1st in addition sl1ow why, st1cl1 a syste1n C11lcl be prf_/rrrf'w11 the performative conditions tinder which rights acqt1ire legitimate v,1lidity. for 'right is the limitation of each person ·s freedom so that it is compatible with the freedom of everyone, insofar as this is possible in acc{lrd with a general law. ' 22 Under this aspect, the social co11tract serves to in.stitulionaliu the single 'innate· right to eqt1al liberties. Kant sees this primordial ht1man right ,ls grounded in the autonomous will of individuals who. as n1ral persons, ha\·e at their prior disposal tl1e social perspective of a practical reason that tests laws. On the basis of this reason, the)· have moral- ai1d not just prudential grounds for their mo,'e ottt of tl1e condition of t111protected freedo1n. At the same time, Kant sees that the 'single ht1man right' mt1st differentiate itself into a system of rights throt1gh wl1ich both 'the freedom of e,,ery member of sciety as a htarnan being' as ,veil as 'the eqt1,1lity of each n1ember with e,·ery other as a subject' asst1n1e a positive shape. 2 ~ Tt1is happens in tl1e form of ·public laws', which can cl,1in1 legitirnclcy 011ly as acts of the public will of autonomous and t1nited citize11s: establishing public law 'is pc>ssible throt1gh no otl1er will than that belonging to the people collectively (because all decide for all, hence eacl1 for hi1nself); fc>r only to oneself can one never df) injt1stice·. 24 Because the qtaestion co11cerning tl1e legitirnacy of· freedo1nsect1ring laws must find an anS\\'er t{1it/1in psiti,·e law, tl1e social co11trat·t establisl1es tl1e principle of la\\' by l>i11cli11g the legislatn to conditins of a dnnoo·atir p,·oretlur~ under these conditio11s the res11lts arrived at in conforrnit}' with this prc>cedt1re express per se the co11ct1rring will or rational cnsenst1s of all participants. In tl1is way, the n1orally grot1nded primc>rdial l1un1an right to eqttal liberties is intertwined in tl1c~ Srial contract ,vith tl1e principle of ppt1lar sovereign()·. Tl1c ht1111an rights grot1nderl in tl1e n1c>rdl at1tono111~· of i11cii,·idt1als ;:tcq11irc

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a positive shape solely through the citizens• political autonomy. The principle of law seems to mediate between the principle of morality and that of democracy. But it is not entirely clear how the latter two principles are related. Kant certainly introduces the concept of autonomy, which supports the whole construction, from the pre-political viewpoint of the morally judging individual, but he explicates this concept along the lines of the universal-law version of the Categorical Imperative, drawing in turn on the model of a public and democratic self-legislation borrowed from Rousseau. From a conceptual standpoint, the moral principle and the democratic principle reciprocally explain each other, but the architectonic of Kant's legal theory conceals this point. If one accepts this reading. then the principle of law cannot be understood as the middle term between the principles of morality and democracy, but simply as the reverse side of the democratic principle itself because the democratic principle cannot be implemented except in the form of law, both principles must be realized uno actu. How these three principles are related certainly remains unclear, which stems from the fact that in Kant, as in Rousseau, there is still an unacknowledged competition between morally grounded human rights and the principle ofpopular sovereignty. But what significance can such a discussion of the history of political ideas have for a systematic treatment of private and public autonomy? Before going any further, I insert an excursus intended to clarify the impact of modern political theory. Excursus

The two ideas of human rights and popular sovereignty have determined tl1e normative self-understanding of constitutional democracies up to the present day. We must not look on the idealism anchored in our constitutional principles simply as a closed chapter in the history of political ideas. On the contrary, this history of political theory is a necessary element and reflection of the tension between facticity and validity built into law itself, between the positivity of law and the legitimacy claimed by it. This tension can be neither tri,rialized nor simply ignored, because tl1e rationalization of the lifeworld makes it increasingly difficult to rely only on tradition and settled ethical conventions to meet the need for legitimating enacted law - a law that rests on the changeable decisions of a political legislator. Here let me briefly recall the rationality potential, at work in both ct1ltural and socialization processes, that has increasingly made itself felt in the law since the first great codifications of private and public law at the end of the eighteenth centt1ry. The classical, primarily Aristotelian, doctrine of natural law, whose inflttence extended well into the nineteenth century, as well as Thomas Aquinas's remodelled Christian version. still reflected an encompassing societal ethos that extended through all social classes of the population and clan1ped the different social orders together. In the vertical dimension of the con1ponents of the lifeworld, this ethos ensured that cultural valtte patterns and i11stit11tions sufficiently overlapped with the action orientations and moti,,es fixed i11

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personality structures. At the horizontal level of legitimate orders, it allowed the nonnative elements of' ethical life, politics and law to intermesh. In the train of developments I interpret as the rationalization of the lifeworld, this clamp sprang open. As the first step, ct1ltural traditions and processes of socialization came under the pressure of reflection, so that actors themselves gradually made them into topics of discussion. To the extent that this occurred, received practices and interpretations of ethical life were reduced to mere conventions and differentiated from conscientious decisions that passed throt1gl1 the filter of reflection and independent judgment. In the process, the use of practical reason reached that point of specialization with which I am co11cerned in the present context. The n1odern ideas of self realization and self-d,lnmination signalled not only different issues but two different kinds of discourse tailored to the logics of ethical and moral questions. The respective logics peculiar to these two types of qt1estions were in turn manifested in philosophical developments that began in the late eigl1teenth century. What was considered 'ethics' since the time of Aristotle now assumed a 11ew, subjectivistic sense. This was true of both individual life histories and of intersubjectively shared traditions and forms of life. In connection with, and in reaction to, a growing autobiographical literature of confessions a11d self~xarninations - rt1n11i11g from Rousseau through Kierkegaard to Sartre a kind of reflection de\'eloped that altered attitudes toward one's own life. To put it briefly. in place of exe111plary instructions in the virtuot1s life and recommended models of the good life, one finds an increasingly pronot1nced, abstract demand for a consciotas, self-critical appropriation, the demand that one responsibly take possession of one's own i11dividual, irreplaceable and conti11gent life history. Radicalized interiority is bt1rdened with the task ot· achieving a self-t1nderstanding in which self-knowledge and existential decision interpenetrate. Heidegger used the formulation 'tl1rown pr~ject' to express t.he expectation of this probing selection of factually given possibilities that mould one's identity. 25 The intrt1sion of reflection into the life-historical process generates a new kind of tension between the co11sciot1sness of contingency, self-reflection and liability for one's own existence. To the exte11t that this constellatio11 has an ever broader irnpact on sr>ciety throt1gh prevailing patterns of socialization, ethical-existential or clinical disrourses become 11ot 011ly possible but in a certain sense unavoidable: tl1e conflicts springi11g from such a constellation, if the}' are not resolved c11sciot1sly and deliberately, make tl1emsel\ es felt in obtrusive symptoms. Not 011ly the conduct of perso11al life bt1t also the transmission of culture is increasingly affected by the type of discourse aimed at self-u11derstanding. In connection with, and in reaction to, the rise of tl1e hermenet1tical and hislrical sciences. the appropriation of ur own int.erst1bjectively shared t1·aditions becarne problematic. starti11g with Schleiermacher and co11tint1i11g through Droysen and Dilthey tip to Gadainer. In place f religiotas or metaphysical self-interpretations, history and its interpretation have now beco111e the n1edit11n in whict1 culttires a11d peoples find their self-reasst1ra11cc. 1

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Although philosophical hermeneutics got its start in the methodology of the humanities, it responds more broadly to an insecurity provoked by historicism - to a reflexive refraction affecting the public appropriation of tradition in the first-person plural. 26 During the nineteenth century a post-traditional identity first took on a definite shape under a close affiliation between his-toricism and nationalism. But this was still fuelled by a dogmatism of national histories that has since been in the process of disintegration. A pluralism in the ways of reading fundamentally ambivalent traditions has sparked a growing number of debates over the collective identities of nations, states, cultt1res and other groups. Such discussions make it clear that the disputing parts are expected to consciously choose the continuities they want to live out of, which traditions they want to break off or continue. To the extent that collective identities can develop only in the fragile, dynamic and fuzzy shape of a decentred, even fragmented public consciousness, ethical-political disc.ourses that reach into the depths have become both possible and unavoidable. The intrusion of reflection into life histories and ct1ltural traditions has fos-tered individualism in personal life projects and a pluralism of collective forms of life. Simultaneously, however, norms of interaction have also become reflexive; in this way universalist value orientations gain ascendancy. Once again, an altered normative consciousness is reflected in the relevant philosophical theories since the end of the eighteenth centt1ry. One no longer legitimates maxims, practices and rt1les of action simply by calling attention to the contexts in which they were handed down. The distinction between autonomous and heteronomous actions has in fact revolutionized our normative consciousness. At the same time, there has been a growing need for justification, which, under the conditions of postmetaphysical thinking, can be met only by moral discourses. The latter aim at the impartial evaluation of action conflicts. In contrast to ethical deliberations, which are oriented to the telos of my/ our own g0d (or not misspent) life, moral deliberations require a perspective freed of all egocentrism or ethnocentrism. Under the moral viewpoint of eqt1al respect for each person and equal consideration for the interests of all, the henceforth sharply foct1sed normative claims of legitimately regulated interpersonal relationships are sticked into a whirlpool of problematization. At the post-traditional level of jt1stification, individt1als develop a principled moral consciot1sness and orient their action by the idea of self-determination. What self:.Jegislation or moral auto11omy signifies in the sphere of personal life corresponds to the rational natt1ral-law interpretations of political freedom, that is, interpretatio11s of democratic self-legislation in the constitution of a jt1st society. To the extent that the trctnsmission of ct1ltt1re and processes of socialization become reflexive, there is a growing awareness of the logic of ethical and moral questions. Without the backing of· religiot1s or metaphysical worldviews that are immt1ne to criticis1n, practical orier1tations can in the final analysis be gained 011ly from rational discot1rse, that is, from the reflexive fc>rms of commt1nicative action itself. The ratio11alization of a lifew(lrld is 1neast1red by the extent t which the rationality potentials bt1ilt i11t

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communicative action and released in discourse penetrate lifeworld strt1ctures and set them aflow. Processes of individual formation and cultural knowledge-systems offer less resistance to this whirlpool of problematization than does the institt1tional framework. It is here, at the level of personality and knowledge. that the logic of ethical and moral questions first asserted itself, such that alternatives to the normati,·e ideas dominating modernity cot1ld no longer be justified in the long run. The conscious life conduct of the individual person finds its standards in the expressivist ideal of selfrealization, the deontological idea of freedom, and the utilitarian maxim of expanding one·s lite opportunities. The ethical substance of collective forms of life takes its standards, on the one hand, from utopias of 11on-alienated, solidary social life within the horizon of traditions that have been self-consciously appropriated and critically passed on. On the other hand, it looks to models of a just society whose institutions are so constituted as to regulate expectations and conflicts in the eqt1al interest of all; the social-welfare ideas of the progressive increase and just distribution of social wealth are jt1st further variants of this. One cc>nseqt1ence of the foregoing considerations is of particular interest in the present context: to the extent that 'cttlture· and 'personality structures· are charged with ideals of the above sort, a law robbed of its sacred foundation also comes under dt1ress; as we have seen. the third component of the lifeworld, 'society· as the totality of legitimate orders, is more i11tensely concentrated in the legal system the more the latter must bear the bt1rden of fulfilling integrative functions for society as a whc>le. The changes just sketched in the two other components can explain why modern legal orders must find their legitimation, to an increasing degree, only in sot1rces that do not bring the law i11to conflict with those post-traditional ideals of life and ideas ofjustice that first made their impact on persons and ct1lture. Reasons that are convenient for the legitimation of law 1nt1st. on pain of cognitive dissonances, t1ar1nonize with the moral principles of universal justice and solidarity. They mt1st also harmonize with the ethical principles of a consciot1sly 'projected· life conduct for which the st1bjects tl1emsel,•es, at both the individt1al and collecti\·e levels, take responsibility. However, these ideas of self-determination and self-realization cannot be put together without tension . Not st1rprisingly, social-contract theories have responded to the mc>dern ideals of jt1stice and the good life with a11swers that bear differe11t accents. Tl1e aim of the exct1rst1s was to explain why l1t11nan rights and the principle of popt1lar sovereignty still constitt1te the sole ideas that can jt1stify modern law. These two ideas represent the precipitate left behind, so to speak, once the Ilrmati,,e st1bstance of an ethos embedded in religiot1s and metaphysical traditions has bee11 forced through the tilter of post-traditional jt1stification. To the extent that moral and ethical qt1estions have been cliffere11tiated frorn 011e another. the disct1rsivelv, filtered substance of nn more of an ethical than a moral interpretation, concei\ring autonomy as the realization of the consciously apprehended form of life of a partict1lar people. As is well known, Rousseat1 i111agines the constitt1tion of popt1lar sc)\'ereignty tl1rc1ugh the scial contract as a kind of existe11tial act of sociation through which isolated and st1ccessoriented individt1als transform themselves i11to citizens oriented to the common good of an ethical com1nu11ity. As members of a collecti\ e body, they fuse together into the macrcJsubject of a legislative practice that has broken with the partict1lar interests of pri\·ate persons subjected to laws. Rot1sseau takes tl1e excessive ethical demands on the citizen, which are built int the rept1blican concept of· commt1nity in any case, to an extre1ne. He cou11ts on political virtues that are anchored i11 the ethc>s ot· a small and perspicuous, more or less ho1nogenec.>t1s cmmt1nity i11tegrated through shared ct1ltural traditions. The single alternative wot1ld be state coercio11: 'Now the less the individual wills relate to the general will, that is to say ct.1stomary condt1ct t the laws, the 111ore repressi, e fc>rce h.1s t bt· i11cre,t.sed. The 1

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Government, then, in order to be good, should be relatively strc>nger as the people becomes more numerous. ' 30 However, if the practice of self-legislation must feed off the ethical stabstance of a people who already agree in advance on their value orientations, then Rousseau cannot explain how the postulated orientation of the citizens toward the common good can be mediated with the differentiated interest positions of private persons. He thus cannot explain how the normatively construed common will can, without repression, be mediated with the free choice of individuals. This would require a genuinely moral standpoint that would allow individuals to look beyond what is good for them and examine what lies equally in the interest of each. In the final analysis, the ethical version of the concept of popular sovereignty must lose sight of the universalistic meaning of Kant's principle of law. Apparently the normative content of the original ht1man right cannot be fully captured by the grammar of general and abstract laws alone, as Rousseau assumed. The substantive legal equality11 that Rousseau took as central to the legitimacy claim of modern law cannot be satisfactorily explained by the semantic properties of general laws. The form of universal normative propositions says nothing about their validity. Rather, the claim that a norm lies equally in the interest of everyone has the sense of rational acceptability: all those possibly affected should be able to accept the norm on the basis of good reasons. But this can become clear only under the pragmatic conditions of rational discourses in which the only thing that cot1nts is the compelling force of the better argument based on the relevant information. Rousseau thinks that the normative content of the principle of law lies simply in the semantic properties of rohat is willed; bt1t this content could be found only in those pragmatic conditions that establish horv the political will is formed. So the sought-for internal connection between popt1lar sovereignty and human rights lies in the normative content of the very mode of exercising political autonomy, a mode that is not secured simply through the grammatical form of general laws but only through the communicative form of discursive processes of opinion- and will-formation. This connection remains hidden from Kant and Rot1sseau alike. Although the premises of the philosophy of the subject allow one to bring reason and will together in a concept of at1tonomy, one can do so only by ascribing this capacity for self-determination to a subject, be it the tra11scendental ego of· the Critique of Practical Reason or the people (>f the Social Contract. If tl1e rational will can take shape only in the individual sttbject, then the individual's moral autonomy must react1 through the political at1tonomy of the united will of all in order to secure the private at1tonomy of each in advance via natural law. If the rational will can take shape only in tl1e macrosubject of a people or nation, then political at1tonomy mt1st be t111derstood a~ the selfconsciot1s realization of the ethical st1bstance of a concrete commt1nitv; and , private autonomy is pr(>tected from the overpowering force c>f political autonomy only by the non-discriminatory form of general laws. Both C(>nceptions miss the legitimatir1g force of ,l disct1rsive prce:-ss of opi11ir1- a11d

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will-formation, in which the illocutionary binding forces of a use of language oriented to mutual understanding serve to bring reason and will together - and lead to convincing positions to which all individuals can agree without coercion. However, if discourses (and, as we will see, bargaining processes as well, whose procedures are discursively grounded) are the site where a rational will can take shape, then the legitimacy of law ultimately depends on a communicative arrangement: as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected. Consequently, the sought-for internal relation between popular so,·ereignty and human rights consists in the fact that the system of rights states precisely the conditions tinder which the forms of communication necessary for the genesis of legitimate law can be legally institutionalized. The system of rights can be reduced neither to a moral reading of human rights nor to an ethical reading of popular sovereignty, because the private autonomy of citizens must neither be set above, nor made subordinate to, their political autonomy. The normative intuitions associated conjointly with human rights and popular sovereignty achieve their full effect in the system of rights only if we assume that the universal right to equal liberties may neither be imposed as a moral right that merely sets an external constraint 011 the sovereign legislator, nor be instrumentalized as a functional prerequisite for the legislator's aims. The co-originality of private and public autonomy first reveals itself when we decipl1er, in discourse-theoretic terms, the motif of self-legisation according to which the addressees of law are simultaneously the authors of their rights. The substance of ht1man rights then resides in the formal conditions for the legal institutionalization of those discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character. 1ra1islated by ~\'illiam R.ehg

Notes 1. F. ( :. vcl11 Savig11y• .\v.,tl''11 dr'i hn,tign1 Ro"1iJrhrri llrrhts, \'(>l. I (Bcrli11. 1840), sese, i.t'., the s.1tisf~1c·tiJl . R. \"(>ll I t1c.•ri11~. (rl'ist rlt.'i lln111iJrhtT1 R,·rht., ( l..t'ip1.ig, 1888) . pt. :-l. p. ~l:l~. I) . I .. E,1 ll('('f ('f U~. :\llj..l"l'tlU'i Tll'r 'Ji·il dr~ /Jii ,.,_, .,,,-1;,.1,,.n llt,·l,tj, fiftt~t.· 11 th t.·d. c r1-1bi11ge11, }~) 5 ~)) , st·c·. 7'2.

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7. H. Kelsen, Allgm,nne Staats~hrt (Bad Homburg, 1968), p. 64. 8. J. Schmidt. 'Zur Funktion der subjektiven Rechte', Archiv for &thts- und Suualphil.osophie 57 ( 1971 ). pp. 383-96. 9. 8 . Ruthers, Die unbegrnu.te Auskgung (Frankfurt am Main, 1973). 10. Associated with the so-called 'Ordo Circle', this German version of liberal econon1ic and legal thought got started before World War II and considerably influenced postwar policies in Germany. [Trans.) I 1. H . Coing, 'Zur Geschichte des Begriffs "subjektives Recht"', in C..oing et al., Das subjduiw Recht und der Rechtsschutz der Pmonlichlcnt (Frankfurt am Main, 1959), pp. 7-23. 12. L Raiser, 'Der Stand der Lehre vom subjektiven Recht im Deutschen Zivilrecht ( 1961) ·, in Raiser, .Die Aufgabt des Privamchts (Frankfurt am Main, 1977), pp. 98ff. 13. Raiser, 'Stand der Lehre', p. 113. 14. See chapter 9 ('Paradigms of Law') in J. Habermas, &tw,rn Facts and 1Vorms (C.ambridge, Mcm., 1986), sec. 9.1.2. 15. F. Michelman, 'Justification (and Justifiability) of Law in a Contemporary World', i11 J. R. Pennock andJ. W. Chapman, eds.,juslification, N{)ffl()$, vol. 18 (New York, 1986), pp.

71-99. 16. T. Hobbes, De Ciw, chap. 13, par. 6 (trans. attributed to Hobbes, in Man and Citiu.n, ed. 8 . Gert [Indianapolis, 1991]); cf. J. Habermas, 'The Classical Doctrine of Politics i11 Relation to Social Philosophy', in Habern1as, Theory and Practice, trans.J. Viertel (Boston, 1973), pp. 41-81. 17. Hobbes, De Ciw, chap. 13, para. 3. 18. 'Whatsoever you require that others should do to you, that do ye to them.' Hc>bbes, ILUUUhan, ed. R. Tuck (C.ambridge, 1991), p. 92; cf. also pp. 117, 188. 19. Otfried Hoffe likewise pursues mutatis mutandis this Hobbesian goal of demonstration. For him justice consists in limitations of freedom that are universally distributed and hence equally advantageous for all sides: 'Because it is advc1ntageous for all, natural jttstice has no need of moral conscience, nor of personal justice. for its implementatio11. It can be satisfied with self-interest as a motivating principle.' 0. Hoffe, l'olitiscM (;ere.chtigluit (Frankfun am Main, 1987), p. 407. This approach is even more clearly elabor.ited in Hoffe's Kat,grmsrh, Rrchtsfmnupim (Frankft1rt am Main, 1990) and Hofle, Gn-echtigkeit als Ta·usch1 (Baden-Baden, 1991 ). For a critique, see K. (~iinther, 'Kann ein Volk von Teufeln Recht t111d Staal n1orc1lisch legitimieren?' &r.htshistorisch,s Journal 10 ( 1991), pp. 233-67. 20. I. Kant, 'On the Proverb: That May Be True in Theory, But Is of No Practical Use'. i11 Kant, Pnpetual Praaand OthnEssays, trans. T. Humphrey (Indianapolis, 1983), p. 71. 21. Ibid, p. 72 (translation slightly altered). [Trans.] 22. Ibid, p. 72. 23. Ibid, p. 72. 24. Ibid, pp. 75-76 ( translatio11 slightly altered). [Trans.] 25. Ernst Tugendhat has reconstructed this, t1sing linguistic a11alysis; see his .vlj(:.On.sciou..sn,.ss and .vlj-Drtnminati&n, trans. P. Stern (Cambridge, Mass., 1986). 26. J . Habermas, 'llistorical (:011sciot1sr1ess and Post-Traditio11al lde11tity: The Federal Republic's Orie11tatio11 to the West', in Haherm.is. Th, .'Vnv CAmSn11atism, ed. ar1d trans. S. \\'. Nichc>lsen ((:antbridge. Mass., 1989), pp. 249-67. 27. F. Michelman, 'Law's Republic', tal, Law journal 97 ( 1998), pp. 1499ff.: 'l take :\merica11 co11stitutio11alism - as n1anifest in academic t:onstitt1tio11al theory, in tl1e prft·ssic>11al practice f lawyers and judges. and in tl1e orclinary pc>litical self-t1nderstandi11g f ,·\merit·a11s at large - to rest n lWt> premises regardi11g plitical freedo111: first, tl1at the 1\merica11 people are plitically free i11somuch as tl1c:-y are gverr1ed by themselves cc,llecti,,ely. and, st·cond, that the American people are politically free i11sc>mt1ch as they art' gc,ver11ed by laws and r1ot by me11. I take it that 110 earnest, no11-nstitutio11al debate is quite free to r~ject either of tl1ose l\\'o prfessirk. 1984), p. 55 (bk. 3. pt. I. par. 159) .

31 . Ac cleanse the world of prejudice and s11perstition. This cleansing will permit us to rise abo,·e ot1r animality by becoming, for the first ti1ne, wl1olly rational and th11s wholly h11man. The Serbs, the moralisL~.Jefferson and the Black Mt1sli111s all t1se tl1e

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term 'men• to mean 'people like us'. They think the line between humans and animals is not simply the line between featherless bipeds and all others. They think the line divides some featherless bipeds from others: there are animals walking about in humanoid form. We and those like us are paradigm cases of humanity, but those too different from us in behaviour or custom are, at best, borderline cases. As Clifford Geertz puts it, 'Men's most importunate claims to humanity are cast in the accents of group pride .. , We in the safe, rich democracies feel about the Serbian tortt1rers and rapists as they feel about their Muslim victims: they are more like anin1als than like us. But we are not doing anything to help the Muslim women who are being gang raped or the Muslim men who are being castrated, any more than we did anything in the thirties when the Nazis were amusing themselves by torturing Jews. Here in the safe countries we find oursel\•es saying things like 'That's how things have always been in the Balkans', st1ggesti11g that, unlike us, those people are used to being raped and castrated. The contempt we always feel for losers - Jews in the thirties, Mt1slims now - combines with our disgust at the winners' behaviour to produce the semi-conscious attitt1de: ·a plague on both your houses'. We think of the Serbs or the Nazis as animals, because ravenous breasts of prey are animals. We think of the Muslims or the Jews being herded into concentration camps as animals, because cattle are animals. Neither sort of animal is very much like us, and there seems no point in human beings getting involved in qt1arrels between animals. The ht1man-animal distinction, however, is onlv, one of the three mai11 ways in which we paradigmatic humans distinguish ourselves from borderline cases. A second is by in\·oking the distinction between adults and children. Ignorant and st1perstitiot1s people, we say. are like children; they will attain true ht1manity only if rc1ised up by proper education. If they seem incapable of absorbing such education, that shows they are not really the same kind of being as we educable people are. Blacks, the whites in the United States and in South Africa used to say. are like children. That is why it is appr(>priate to address Black males, of whatever age. as 'boy' . Women. men ttsed to say, are permanently childlike; it is therefore appropriate to spend no money 11 their education, and to refuse them access to power. Wl1en it comes to women. however. there are simpler wa}'S of' excluding them from trtae ht1manity: for example, using 'man· a" a syno11ym of 'ht1n1an being' . As feminists have pointed ottt, such usages reinfclrce the a\'erage male's thankft1lness that he was not born a woman, .1.~ well as his fear of the t1lti1nate degradaticln: ft·minization. The exte11t of the latter fear is e\idenced by the particttlar sort of sext1al sadism Rieff describes. His point that stach sadism is ne, er absent from attempts to ptarify the species or cleanse the territ(lry c11firn1s Catharine Mac Kinnon ·s claim that, for most n1en, being a Wma11 d(>es r1ot count a~ a Wa)' of bei11g ht1111an. Being a nonn1ale is the third mai11 way of being nonhuman. There are several ways c>f bei11g non male. One is t be hor11 witl1out a penis; another is to ha\·e one ·s penis ct1t or bitten fl·; a third is to have been pt~nctrated by a pt.·nis. Many men ,vho have tx~en 1

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raped are convinced that their manhood, and thus their h11manity, has been taken away. Like racists who disco, er they have Jewish or Black ancestry, they may commit suicide out of sheer shame, shame at no longer being the kind of featherless biped that counts as human. Philosophers have tried to clear this mess up by spelling out what all and only the featherless bipeds have in common, thereby explaining what is essential to being human. Plato argued that there is a big difference between us and the animals, a difference worthy of respect and cultivation. He thought that human beings have a special added ingredient which puts them in a different ontological category than the brutes. Respect for this ingredient provides a reason for people to be nice to each other. Anti-Platonists like Nietzsche reply that attempts to get people to stop murdering, raping and castrating each other are, in the long run, doomed to fail - for the real truth about human nature is that we are a uniquely nasty and dangerous kind of animal. When contemporary admirers of Plato claim that all featherless bipeds - even the stupid and childlike, even the women, even the sodomized - have the same inalienable rights, admirers of Nietzsche reply that the very idea of 'inalienable human rights' is, like the idea of a special added ingredient, a laughably feeble attempt by the weaker members of the species to fend off the stronger. As I see it, one important intellectual advance made in our century is the steady decline in interest in the quarrel between Plato and Nietzsche. There is a growing willingness to neglect the question '\\'hat is our nature?' and to substitute the question 'What can we make of ourselves?'. We are much less inclined than our ancestors were to take 'theories of human nature' seriously, much less inclined to take ontology or history as a guide to life. We have come to see that the only lesson of either history or anthropology is 011r extraordinary malleability. We are coming to tl1ink of ourselves as the flexible, protean, self-shaping animal rather than as the rational animal or the cruel animal. One of the shapes we have recently assumed is that of a hurnan rights culture. I borrow the term 'human rights cult11re' from the Argentinian jurist and philosopher Eduardo Rabossi. In an article called 'Human Rights Naturalized', Rabossi argues that philosophers shot1ld think of this culture as a new, welcome fact of the post-Holocaust world. Tt1ey sho11ld stop trying to get behind or beneath this fact, stop trying to detect and defend its so-called ·philosophical presuppositions'. In Rabossi 's ,·iew, philosophers like Alan Gewirth are wrong to argue that human rights cannot depend on historical facts. 'My basic point', Rabossi says, is that 'the world has changed, that the human rights phenomenon re11ders human rights fo11ndatinalism 011tmoded and irrele,'clnt. ' 4 Rabossi's claim that human rights foundationalisn1 is outmodi'd see111s to 1ne both true and important; it will be my principal topic in this essay. I shall be enlarging on, and defending, Rabossi's claim that the qt1estion whetl1er human beings really have the rights en11merated in the Helsinki Declaration is not wc>rth raising. In particular, I shall he defending the clain1 that notl1i11g 1

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rele,-ant to moraJ choice separates human beings from anirnals t·xc·t~pt l1isto1ically contingent facts of the world. ct1ltural facts. This claim is sometimes called 'ct1ltural relati\·ism · by those who indignantly reject it. One reason they reject it is that such relati,·isn1 see1ns tt) them incompatible with the fact that ot1r human rights ct1lt11re, the culture with which we in this democracy identify ot1rsel,·es. is morally superior to other c11lt11res. I quite agree that ours is morall}' st1perir. but I do 11ot think this superiority counts in favt1r of the existence of a t1niversal huma11 nature. It wo11ld only do so if.we asst1med that a moral claim is ill-founded if not backed tip by knowledge of a distincti,·ely human attribt1te. But it is not clear why 'respect for ht1man dignit)·' - our se11se that the differences between Serb and M11slim, c:t1ristian and infidel, gay and straight, male and female should not matter - must presuppose the existe11ce of any sttch attrib11te. Traditionall}'. the narne of the shared ht1n1an attribt1te which sttpposedl~· ·grot1nds· moral it}' is ·ratio11ality'. Cultural relati\ism is associated with irrational ism beca11se it denies the existe11ce of morall}' relevant transc11ltt1ral tacts. To agree with Rahssi one 1nt1st, indeed. be irrationalist i11 the sense of ceasing to 111ake one's web of belief as cc>herent. and as perspict1011sl}' str11ctt1red, ~•s possible. Pt1ilc>sc)pt1ers like n1yself, wt10 tl1ink of rationality as simpl~· tl1e attempt at st1ch coherence, agree with Rabossi that fundatio11alist projects are 011t1noded. We see our task as a n1atter of rnaking our own culture the ht1man rights cttlture - 111ort~ self:-co11scitts and mtJrt 's co11structin, i11 recc11t decacles, t)f a constittatit>nal 'rigl1t to pri,·ac·~·· are exan1ples of this kind f sun1mar)'· \Ve see the fr111t1lation of s11ch sumrnarizing ge11t""ralizations as increasi11g tl1c prc.·dictabilit}'· and tht1s the po\\·t·r ,tnd efficic.·nc~·. four institt1tisophy. 12 Nietzsche was, I think. right n tl1e button when he offered his diagnosis. \\11at San1A-.y,1na called 'st1pernatt1ralism ·, the conftasion of ideals and power. is all that lies behi11d the Kantian clairn that it is not onl,·, nicer, but more rational, tr i11 \\'rath. are les.4' ft•lt. and sooner forgotte11 with them. In general. their existence appears to participate more of se11sation than reflectic,n . To this m11st be ascribed their disposition to slet'p when abstracted from their di,·ersions. a11cl unemployed in latx,r. An animal whose body is at rest. and who does nt reflect must be disposed to sleep of course: Thoma.~Jefferr,on. 'Nc>tes on Virginia', »'riting1, ed. Lipscomb and Bergh (Washington. D.C., 1905), 1,194. 3. Geertz, 'Thick Descriptior1 ', i11 his 71,e lntnprtlatiorz of Cullurr (1':e,v York: Basic Boc>ks. 1973), 22. 4. RaboMi also says that he does 11ot wish to questior1 'the idt:a of a rational foundatio11 f morality'. I am nol Sllre why he does 11ot. Rabc,s..~i may perhaps 111ean thal in the past - for example, at the tin1e of Kant - this idea still rnade a kind of se11se, but ii makes ser1se n longer. That, at any rate, is my \\11 ,iew. Kant \\'rote ir1 a period wt1en the 011ly alternative to religion seemed to be somethir1g like science. l11 st1ch a period. inve11ti11g a pset1dc>scie11ct." called 'the system of transcer1de11tal philosophy' - setting the stage for the show-st,>pping cli1nax ir1 which 011e pulls moral oblig,1tion ot1t of a transcer1dental hat rnight plat1sihl}' secn1 the or1ly way c,f saving mor.1lity from t.he hedor1ists on or1e side a11d the priests ,>11 the other. 5. The prt•se11t state of metaethical disct1ssio11 is admirably st1111n1arizcd ir1 Stephc11 Oar\\·all, Alla11 Gibbard and Peter Railton, 'TW-.trd /•"in d, .")irrk Ett1ics: Sme Tre nds'. Th, Philo.sophic,11 Rruit'u.1 l OI ( 1992). 115-89. Tt1is c,,111prel1er1sive and jt1dicit1s article t,lkt~s fr gra11tt>d that there is a prblem about ',i11dicatir1g 1l1t' ~je(·tivity of mor,1lity· ( 127). that the rt' is a11 intercsti11g qttestion as to whett1er mrals is ·Cg11 itive' or •11r1-pl1ers k11e\\· 111rt· a11tl1r,>plc~·. ,,r 1>sychc,lc>~·. r l1ist,,ry. B11t tilt" penulti111ate paragrapl1 111akes clear lhat, \\'itl1 r \\'itl1c,l1t s11ct1 assists, ' t',>tltt'.ltlprary met.:letl1ics 111(t1ld 111 1nerely tlt·rate hlll s11bsic.li1e ,,11r arti,ity· . Sht· gc1c·s 11 I a,k, ' Is tl1c.· large.· prc>prti,,11al inf prff n1etaphilosophical a11d hist\,·ard /·111 dt· .\ iirl, I-~th ist' \\"lt ct1ld11 't sta11d what D,trwin \,·as s.lyi11~ tt.·11t1s faith . ·rhe t111s11ht.llf,c:a11st te, say that t1r respc.,11st· t it sllf htan1a11 l1iste,ry, t>ttt rather a \\ illi11gr1t·ss t pick ot1rsc·lvt·s 11p ,111d trv • aga1r1. 8. Niet1schc was rigl1t t rer11i11d 11s tl1at 'tt1est· s.1111e 111t·11 \\'h. a11111gst tl1er11selvc·s. are s,, strictly c11.str,1i11ey 11111tt1al st1rveill.t11t·e a11d jt·aleJtlS\', '"11 art·", rt'S4>t1rc:etter 11ovel is like argui11g al>0t1t which is the st1peri(>r philosophical treatise: Mill's On l..ibrrty or Kierkegaard's Philosophiml fragmmts. 14. Tech11ically, l>f course, Ka11t denied knowledge in order to 111ake r(lm for n1oral faith. Btll what is tra11scende11tal 111oral philosophy if 11t the asst1ra11cc that the 11oncog11iti,·e imperative delivered \-ia the Cmn1011 morctl co11scious11css shws the existe11cc of a 'fact f>f rea"°n' - a fact abut what it is to be a human being, a rati The first form of recognition, which Honneth refers to as 'love', is initially experienced in the balance of separation and fusion which characterizes the relationship between the small child and its primary carer. Honneth contends that the ft1ndamental selfconfidence which this 'symbiosis refracted by recognition' provides functions as the basis for the development of more complex social relationships: 'this fundamental level of emotional confidence - not only in experience of needs and feelings, but also in their expression - ... constitutes the psychological pre-es not reflect an appropriate. non-androcentric ,raluing of their gender-specific contributions to society. Habermas's solution to tl1is problem is that wome11, like other groups, should constitute discussion fc>rums within the general space of the public sphere which could articulate their specific feelings, needs and aspirations, and feed them into the formal lawmaking process. Frorn Honneth 's perspective, however, this in itself wot1ld be inst1fficient to compensate for a sense of lack of worth, if not accompanied by a transformatio11

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THE Pnneth t1ses t.o st1bsta11tiate t1is argt1111ent - for example stt1dies of cl1ild development draw11 from the o~jt·ct-relations traditin in psychoa11alysis - has not itself l>t~e11 st1aped b)' ct1lt11rally spec~ific prest1ppsitio11s. Honneth tries to avc>id 1

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this problem by stressing the empirirol dimension of the enqt1iries he draws on - indeed, he describes his method, in a somewhat puzzling phrase, as ai1 'empirically controlled phenomenology'. 33 But this description surely begs the question. For as the history of the social sciences, with iL~ range of competing paradigms, amply demonstrates, the fact that the accounts of recognition on which Honneth relies can find empirical support does nothing to overcome their potential relativity. In his sense, even the st1pposedly 'formal' concept of Sittlichkeit which Honneth wants to provide runs a high risk of resting on material presuppositions, and the refore being ab initio nonnet1tral between competing conceptions of the good (social) life. On the other hand, even if one accepts, as seems only fair, that Honneth ·s account of the 'good life' achieves a high level of generality, albeit not pure formality, the range of contents which it can accommodate is still severely restricted by the key concepts arot1nd which it is organized. Honneth 's three forms of recognition are described as preconditions of at1tonomy and selfrealization, or what Honneth calls the 'unforced articulation and realisation of individual lifegoals'. Yet one can easily imagine other positions, even within the spectrum of contemporary ethics, such as those of Cl1arles Taylor or Emmanuel Levinas, in which the subordination of individual life-goals to 'the Other who dominates me in his transcendence', in Levinas's phrase, or the chosing of goals which respond to the claims which an ultimate, divine source of goodness makes upon me, claims which may thwart my personal aspirations, might be considered more important then self-realization understood in terms of individual fulfilment. 34 Thus, once the deceptive methodological patina is stripped away, it becomes clear that Honneth 's work takes a specific ethical perspective on human subjects and their integrity and well-being, and argtaes this throtagh by drawing both on philosophical reflection and empirical forms of enquiry. This is not to say that the resulting conception is arbitrary, of cot1rse - n1erely that its formality can only be a matter of degree. Accordingly, there seems to be no reason of principle why the claims could not be made even more specific, in the course of an attempt to assess and render compatible insights drawn from a variety of ethical and political traditions and orientations. Naturally, social-scientific. psychoanalytic and other forms of e,idence wotald play a major role in st1ch explorations - there could be no qt1estion of a purely philosophical 'deductic>n • of a picture of the good life. Nevertheless, the question of the ethical textt1re of the society which we inhabit, and should aspire to inhabit, could then once more become an explicit o~ject of philosophical reflection, in a way which has fallen into disrept1te in the {:ritical Theory tradition ever since Adorno 's Minima Moralia. The cot1nter-argt1ment that the answer to such a question will al,-vays be historically relative dc>es not seem to me to be decisive. For one can ft1llv, adrnit this relativitv. , while nevertheless insisting that it cannot be total. and that the answt~r shotald therefore be informed bv, an awart~ness of tl1e cc>nstant. ft1ndamental featt1rt deprive philc>sophy of any capacity whatsoever to engage with questions of the strt1cture and integrity of forms of life. On the contrary. t1is ct1rrent metaphilosophy distingt1ishes emphatically between two fundamental functions of philosophy. which he describes a'i those of ·stand-in· and 'interpreter'. As stand-in, philosophy t1olds open the space for, and acts as a collaborator with, reconstrtactive theories ir1 the ht1man sciences, which spell ot1t the implicit knowledge mobilized by certain very general ht1man competencies, and thereby helps to provide the underpi11ning for ttniversalistic theories of morality and law. In its interpretive function. however. philosophy explores. and may l1elp to correct, the reifications which ensue from the excessive predominance of one ratinality complex within the lifeworld, and helps to bring the cognitive and moral resot1rces developed within the institt1tionally specialized rationalit}' spheres back into its domain - tl1e only place where they can be put democratically to work. :i!> According to Haber mas, philosophy, i11 this interpretive role, is a ct1lturally specific acti,rity - it car1 only help to illuminate a determinate lifeworld, a partictalar totaJity of background asst1mptions, but cannot offer an accot1nt of the totality of the world as a whole, the 'object' of traditional metaphysics. As a conseqt1ence, philosph~· in its role as interpreter is also debarred from prodt1cing qtaalitati,·e rankings of different ct1ltural totalities. However, a paradox seen1s to result from this philosophical di,-ision f labotar between reconstrt1ctive and interpretive tasks. On the one hand. Habern1as attribt1tes tl1e cognitive progress of n1odernity to the differe11tiation of the three ,·alt1e spheres of 'truth·, 'rightness' and 'at1thenticit)·'. It is onl}' ¥1hen cogniti,·e claims, for exan1ple, can be filtered out from the S},11bolic a11d ethical cc>11texts in which thev, were forn1erlv, e1nbedded. and thematized with the aid f specific, institutio11alized frms of enquiry, that the epistemic take-off to modern science becornes possible. Similarl~·. modern moral uni,·ersalisn1 i111plies tl1e existence of a sphere withi11 which qt1estions ofjt1stice c,tn l>e treated b)· legal a11d other expert'i who are skilled in isolating norn1ati,·e isstaes. ,.\t the sa1ne time, }1owe,·er. Habermas stresses that - witl1in the life,vclrld - the three din1e11sions of ,,aliditv, conti11t1e to l>e intri11sically interwoven. Yet. if this is the case. a question arises concer11i11g which 'c>11tc>logy· sl1ot1ld be taken to l>e n1c.,re fundamental. As ~tartin Seel has expressed the isstae: does tt1e lifeworld exhibit an illt,sfl.\OII), trail~. ·r11()lllaS ~-1rc.·ss l~ll't7, pf>. ~\(il-7:\. 2. Jf1rgc.·11 l1ahc.·r111as. f"nkti:.itiil 1111d (;,,[t11n1:: llritrii1--,.,, :.ur /)i~k11nthrori1· d,,.-. /f,,cht:,; 1111d dr.\ d1'"1okr[111 "K· p. :):\t). 7. ll>icl. , p . 4-l. H. (:lat1s Offc:. 'Bir1clir1gs. Sl1arkles, Brakt·s: ()11 St·lf~(,irnilali,,11 Slr.ttt'gies·, i11 1\ . H(11111t·tt1 el al., eels, (,"u/tural-l'olitir,1/ /11t,·r1•f'nlion, in thl' l "11/ini.\hl'lt'r. t.·cl., \,-,,-,•rhtlirh1111K1 1011 \\'irt.,rha/i. ,\rb,,it 1111,I ~o:.i11/rr .\oli,/11ritiit. B.tcit·11-llaclcn: Ne ,111r1s \ -'- f>t>- :\ I :\-2:,.) ~I. ·1·1,,. 7-,,,.,n·y of (."nn11nu11irativt' :\rtion, \'. '.l il (1ra11s. altert•d). l (). Jf1rgt·11 I latx·r1nas. ·sophie t111d \-\'is.~11sc:l1aft ·. 1>- 48. 24. Ibid. 25. Axt~I Honneth, Thi' .\tn,l!J{l,Jor Rt'rJ(11ition: Jn, i\loral (;ramm11r of .\ori,1/ (,'011/li,-/s, tra11s. J(>el .~dersor1, Cambridgt·: 1•,,tity 1•res.'i l~>Y;), p. 174. 26. Ibid .• pp. 1j·ti,,• .\,•//. riclgc.· .\ l1\ : llar,-ard l 111i,·t·rsit)' Prt'S.'i 198~}. The l.t·\"i11as pl1r,L-.t· cl is fr«>111 1>- 21 :'l. 35. c:r..Jt1rge11 Hal>erlll~ls. ' Pl1ilS111111,111ikati\'c.·rM ~iti11alit."it . l.k111 Il•~ .. ,n..:->. p. .,., _.,.""It . 41 . J,1rgc.·11 Habt'rn1a,, ·~·fe1c1pt1,·sik 11acl1 ~,111·. i11 ,\ "nrh1111•/r1/>h_v,irh,·, l>,·11k1•T1. ~·ra11kf11r1 ;1111 ~lai11: St1l1rkatn(> I ~88. 1>- 2tl. -12. Ibid. -t'.\. ·t-:d1111111cl llt1si,c:rl t"1lx·r l.t· bt.·11s,,·t·h. J>J1it,,sJJl1it· 1111d \\"i,,e11sc.·t1aft ". i>- 41. 44 . .-\11 i1111>c,rt.111t rritc: rill f a,,t·ss111t·11t ft,r ,11t.·l1 tliSlicatit1 .· ('Ecln1t1nd H,1sserl (iber l..t.-l>en!'>"\\'elt. PhilSf>l1ie t1nd \\'is.~~11Sl1ysik und Religill l1t~llte'. i11 l,,r R,hahi/itini,ug di'.~ a11in1al rati11alt·, \,,,·triigP un,I :\bhrdinary legislation of different levels of go,,ernment can be invalidated on the grounds of conflict with these ft1ndamer1tal rights. That (stabjective) rigl1ts thus operate today as trumps is the convergence of two different if intertwined lines of promotion. On the one hand, there is the Id co11ception of the fundamental law of 011r polity. whict1 the decrees or decisions of the a11thority of the day cannot override. This played a role in pre-modern European societies, even as it did freqt1ently elsewhere. The entrenchment of Charters means that the lang11age of rights has become a pri\ileged idiom for a good part of this fundamental law. This is one line ss all societies. Again. analogotas concept~ can be found elsewhere. The place of rights in 011r political disco111·se today shows that it has also become the favoured idiom for this kind of law. We speak of a Universal Declaration of Ht1man Right~. This is the second line of ad\rance. The rights we now e11trench in charters benefit from both thest" promotions. These rights occtapy the 11iche which already existed in ma11y legal systems, whereby laws were st1bject to judicial review. While at the same time. their great fc>rce i11 modern opinio11 comes from the sense that the)' are 11ot jtast featt1res of ot1r legal tradition, that. the}' are not part of what is ctalturall)' conditioned, one option among others which ht1man societies c:an adopt, but f11ndame11tal, essential, helc111ging to ht11nan beings as st1ch in shc>rt inviolable. S the Western discot1rse of rights invcllves, on the one hand, a set c>t· legal fc>rn1s, by whicl1 i1111nt1nities a11d liberties are inscribed as rights, with certai11 c·nseqt1er1ces for the possibility of wai\'Cr, and for the ways in wt1ich they car, be secured; whether tl1ese i111n1unities and liberties are amor1g those frorn tirne to time granted by dul}' constittated authority, or ainong those ,vhich are e11trencl1ed in ft1ndamental law. And it in,·olves. on the other hand, a philosc>phy of the persn and c>f srtance to the indi\id11al, and 1naking significa11t 111,ttters turn on his or her power of co11st.·nt. \Vl1t!ll peple prlt~st against tt1e Western rights mdel, tt1e~: sc.·t~m t ha\·e

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this whole package in their sights. Taking it as a whole it is not simply wrong. of course, because the philosophy is plainly part of what has motivated the great promotion enjoyed by this legal form. Nevertheless, it will help to di~ tinguish them, because we can easily imagine situations in which, for all their interconnections, the package could be untied, and either the forms or the philosophy could be adopted alone, without the other. Of course, this might involve some adjustment in what was borrowed, but this inevitably happens whenever ideas and institutions developed in one area are taken up elsewhere. It might help to understand a little better just what exactly we might want ultimately to converge onto in the world society of the future, as well as to measure our chances of getting there, if we imagine variations separately on the two levels. This is what I want to do in the following pages. What I propose to do is to look at a number of places in which there seem to be obvious conflicts between the present language of human rights and one or more important cultures in today's world. The goal will be to try to imagine ways in which the conflict might be resolved, and the essential norms involved in the human rights claim preserved, and this through some modification, either of legal forms or of philosophy. But here I must straightaway make a confession. No merit attaches to this, because I shall be unable in any ca~ to hide what I now avow, as the argument progresses. I am a philosopher, and not a jurist. Consequently, what I have to say about the possible variation of legal forms will be terse to the point of near-silence, and not very interesting. I make the distinction, because I want to say some things about the conflicts which could perhaps be resolved through some greater understanding of alternative philosophical foundations for human rights. But I want to stake ot1t the category of resolution through innovations in legal forms, because I am sure that it will play an important part in arriving at an eventual world consensus. III That being said, I would like to look at four kinds of conflict. The first cotald perhaps be resolved by legal innovation, and I will briefly disctass this possibility. But it can also be tackled on the philosophical level. The other two involve the basic justification of human rights claims. In developing these, I will have to spell out mt1ch ft1rther the justificatory ba~is for Western thinking and practice about rights than I have in the rather sparse remarks above about Natural Rights theory. I shall return to this below. l. Let us take the kind of objection that I mentioned at the otttset, that someone like Lee Kwan Yew might raise about Western rights practice, and its alleged unsuitability for other sc>cieties, in particular East Asian ones. The ba~ic notion is that this practice supposes that individttals are the posse~ors of rights, and encourages them to act i11 consequence, that is. to go out and aggressively seek to make good their rights. But this has a nt1n1ber of'bad conseqt1ences. First of all, it foct1ses people on their rights, that is, what the~· can

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claim frorn society and others, rather than on their respo11sibilities, what tJ1ey owe to the whole community, or to its members. It encourages people to be self-regarding, and leads to a11 atrophy of the sense of belonging. This in turn leads to a higher degree of social conflict, more and more many-sided. tending ultimately to a war of all against all. Social solidarity weakens, and the threat of \1olence increases. This scary scenario seems rather overdrawn to some. But to others it seems to have some elements of truth. Including to people within Western societies, which perhaps might make tis doubt that we are on to a difference betwee11 ci\ilizations here. In fact, there is a long tradition of thinking in the West. warning against pure rights talk outside of a context where the political community has a strong positive value. This •cornmunitarian · theorizing has taken on a new urgenq· today, because of the experience of conflict and alienation and the fraying of solidarity in many Western democracies, notably but not only the US. Does this mean that Lee Kwan Yew's formula might offer a solt1tion to present-day America? The absurdity of this suggestion brings us back to the genttine differences of culture which exist today. But if we follow through on the logic of the 'communitarian· critiqt1e in the West we can perhaps find a framework i11 which to consider these differences. One of the key poinL~ in the critiqt1e of a too exclusive foct1s on righL~ is that this neglects the crucial importance of political trust. Dictatorships. as Tocqueville pointed out (in Dmwcracy in Amrrica). try to destroy trust between citizens. Bt1t free societies \ritally depend on it. The price of freedom is a strong common commitment to the political formula tl1at binds us, because without the commitment the formula would have to be aggressi\·ely enforced, and this threatens freedom . Bt1t what will very quickly dissol\·e the commitment for each and every one of us is the sense that the others no longer share it or are willing to act on it. The cornmon allegiance is nourished on trt1st. This goes for a political regime centred on the retrie\,al of rights as n1t1ch, perhaps more, as for any other. The cnditin of our being able to go ot1t and seek to enforce our own rights is tl1at the systern within which this is carried out retains the respect and allegiance of everybody. Once rights-retrie\-al begins to eat into this, once it begins to create,, sense of ernbattled grie\'ance pitting group against group, undermi11ing the sense of comn1on allegiance and slidarity, the whole systen1 of free-wheeling rights-e11forcement is in danger. The isst1e is not 'individualism· as st1ch. There are n1a11v forms of· this, a11d srne l1a\·e grc>wn up together with moclern, democratic forms of political allegiance. The danger is any form of either individt1alis1n or group identity \vl1ich l111dercut~ or u11der1ni11es tl1e trt1st tl1at we share a common allegiance as citizer1s of this polity. I don't \Vant to pt1rst1e l1l~re ,l se,trch intc> the conditions of political trust in \\!estern de111ocracies, ,it least 1101 for its wn sake.:) But I want t tise tl1is reqt1irement as a heuristic laper basket.~ The issue which arises from all this is perhaps the following: can tl1e immense power to create trust and cc>nsensus which resides i11 the Tl1ai monarchy be i11 son1e wa}· stabilizecl, regularized and channelled in supprt c>f constitt1tional rtale, and the defe11ct~ of certain human rights, st1ch as thost· concerned with the sect1rity of the person? l11 Weberian ter111s, cotald th(~ 1

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charisma here be 'routinized' enough to import a stable direction t it, \\rithout being lost altogether? I st1spect that there is somewhere a positive answer to this question. But I don't have anything concrete to propose here. I just use th is as the basis of some hypothetical conjectures. If a way could be found to draw on this royal charisma, together with the legitimacy enjoyed by certai11 individt1als of proven ·merit·, who are invested with a lot of moral authority in the Thai tradition, to enhance support for a democratic order respectful of those immunities and liberties we generally describe as human rights, t11e fact that it might deviate from the standard Western model ofjtadicial review initiated by individuals should be accorded less irnportance tha11 the fact that it protects human beings from violence and oppression. We would have i11 fact achie\·ed convergence on the substance of ht1man rights, in spite of difTere11ces in form.

IV 2. Bt1t suppose we take the 'communitaria11 · argurnents against Wester11 rights discourse emanating from other societies at another le,·el: not questioning so mt1ch the legal forms, bt1t expressing disagreement with the underlying philosophical justification? My example is again drawn from Thailand. This society has seen in the last ce11tt1ry a number of attempts to formt1late reforrned interpretations of the overwhelmingly majority religion of this Sciety: Theravada Bttddhism. Some of these have attempted to find a basis in this Buddhism fc>r democraC}' and human rights. One main su·eam of reform consists of moveme11t~ which (as the"· , see it) attempt to purify Buddhism, to tur11 it awa}' from a foct1s on ritual, on gaining merit, and even worldly success tl1rough blessir1gs and acts of piety, and to focus mre a Bt1ddhist

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\-ision of democratic society. One may see something paradoxical in this, in that this rather austere reformism is espoused by a relatively small elite, rather far removed from the religious outlook of the mass of the people. But the dedication of some members of this elite to democracy, equality and human rights commands respect. Phutthathat's reformism was the very opposite of a disengaged religion, unconcerned with the world. On the contrary, he and those inspired by him have always stressed that the path to enlightenment is inseparable from that of concern for all creatures, from metta (loving kindness) and karuna (compa~ion). We can't really be concerned with our own liberation without also seeking that of others, just as any acts of injustice towards them redound to our own continued imprisonment in illusion. Saneh Chamarik quotes the Buddha: 'Monks: Taking care of oneself means as well taking care of others. Taking care of others means as well taking care of oneself.' 11 This view leads to an activist concern for social justice and well-being. Phutthathat spoke of a 'dhammic socialism'. It is a spiritual stance which entails heightened standards of personal commitment and responsibility, of probity and dedication to dt1ty, even of self-sacrifice and dedication to the poor and downtrodden. Following Obeyesekere's analogy. one could say that it is reminiscent in this respect of Max Weber's description of early Calvinism, which propagated a 'this-worldly asceticism', 12 that prompted responsible, disciplined social action. But this concern is not necessarily democratic. It could also find expression in other modes of social reform action, including those which see the agency of reform as a minority with the right intentions. These modes are, after all, well rooted in Theravada Buddhist history, in particular in the paradigm model of the Emperor Asoka as the ideally just ruler and tapholder of dharma. This is, indeed, one of the models on which the Thai monarchical state was based. The dharmaraja is undoubtedly understood as an agency for good, for the welfare of the people, but he is not in any normal sense tclgether becauS11, the in1per·ative to pur1ish historic wrong-doing. Frotn tl1is Bt1ddhist JlersJlecti,·e cc>n1es ~• c,1t1tir1 against the plitics of anger, itself the pote11 tial sot.1r an important degree, they also serve to counter various forms of discrimination. This represents a shift in the centre of gravity of rights talk over the last centuries. One could argue that the central importance of non-discrimination enters American judicial re,iew with the 14th Amendment, in the aftermath of the Civil War. Since then non-discrimination pro,isions ha,·e been an important and growing part of schedules of rights both in the United States and elsewhere. This connection is perhaps not st1rprising, althot1gh it t()ok a long time to come to fruition. In a sense, the notion of equality wa~ closely linked from the beginning to that of Natural Right, in contradistinction to the place of subjective rights in medieval systems of law, which were also those of certain estates or privileged individt1als. Once right inheres in nature, then it is hard in the long run to de11y it to anyone. But the connection to equality is the stronger, becat1se of the thrust f rnodern humanism n1entioned ah,·e, which defines itself agai11st the view that we are embedded in a meaningft1l cosmic order. This latter has been a background against which variot1s forms of ht1man differentiation could appear natural, u11challengeable - be they social, racial or sext1al. The differences in ht1man society, or gender roles, cot1ld be understood to reflect differentiations in the order of things, and to correspond to differences i11 the cosmos, as with Plato's myth of the metals. This has been a very common form of thinking in almost all human societies. 17 The destruction of this order l1as allowed for a process of t1nma4iking of existi11g sc>cial and general differences as merely socially constructed, as witl1out basis in the nature of things, as revocable, a11d hence ultimately without jt1stification. The process of working this out has been long, and we are not vet at the end; bt1t it has been hard to resist in Western civilization in the la~t , two centuries. This aspect of Western right~ talk is often very hard to export. a~ it encounters societies in which certain of tl1c social differences are still considered vt·ry meaningful, and they a1·e seen in turn as intrinsically li11ked to certain practices, which in Western societies are now regarded as discriminator)'· 1-in of the criminal making amende lionourabl, ther1 the very horrr ot· regicide calls fc,r a kind of the,ltre of· the l1orrible ,ls

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the medium in which this undoing can take place. In this context, pain takes on a different significance; there has to be lots of it to make the trick. A principle of minimizing pain is trt1mped. And so we relate doubly to our forebears of two centuries ago. We have new reasons to minimize suffering; but we also lack a reason to override the minimizing of suffering. We no longer have the whole outlook - linked as it was to the cosmos as meaningful order - which made sense of the necessity of undoing the crime, restoring the breached order of things, in and through the punishment of the criminal. In general, contemporaries in the West are so little aware of the positive change they have gone through - they tend anachronistically to think that people must always have felt this way - that they generally believe that the negati\·e change is the crucial one that explains our difference from our predecessors. With this in mind, they look at the Shari'a punishments as the simple result of pre-modern illusions, in the same category in which they now place the ancien regime execution scenarios. With this dismissive condemnation, the stage is set for the dynamic I described above, in which contemptuotts denunciation leads to 'fundame11talist' reaffirmations, which in turn pro\·oke e,,en more strident denunciations, and so on. What gets lost in this struggle is what An-Na'im shows so clearly, the possibilities of reinterpretation and reappropriation which the tradition itself contains. And what also becomes in\isible is what could be the motor of this change, analogous to the role played by the cultttral revolution affirming ordinary life in the West. What this or these could be, it is not easy for an outsider to determine. But the striking Islamic theme of the mercy and compassion of God, reinvoked at the beginning of almost every Sura of the Qur'an, might be the loct1s of a creative theological development, which might help towards a converger1ce in this domain. In which case, we might see a co11sensus out of very different spiritual backgrounds, analogot1s to the Thai Buddhist ,,iews I disct1ssed earlier.

VII I feel that, if not sorne conclt1sion, at least some attempt to dra\\· tgt'tl1t'.r the threads of this lo11g and perhaps ra1nbling discussior1 wot1ld now be i11 rcler. Perhaps I can bring ot1t the main themes of the preceding pages. I started frorn the basic notion tl1at an unforced world Crlcl cn,·ergence will tll Ct>me tt1rot1gl1 a lc>ss or denial f traditi11s all art111d, bt1t ratht--r l>y crc.·ative rei1n111t·rsio11s f differe11t grt1ps, each in their c>w11 spiritt1,1I hcrit,tgt~. tr,1,·t·lli11g ciiffert.'Jlt rtltt·s t tl1c sa111t' g,tl . 1

Notes I. •·r,>111 lilt' l11lf'(>(lt1(·ti1111 l«> l '.\'/·,'. \(,'(). H11,111111 /li,l[hl,: ( ,'o ,n'11f'11t, 11111/ /11/,•rf,rt/n : .-\lla11 \\'ingatt· l~•-t~I. J>J> . l(>-1 I ; cilt:ss1,r1,ac l1 ·. J>J>. '..!X-~I ( '< 11al llt1111a11 Rigl1ls·. J>. I. alS 11. -1. 4. \\'l1ic-h is ,,·l1v l . lll«1tic.111 of " ·.,i,t•r, \,·hen he · 'J>«>kf ,,·ai,·,·r. :>. I l1.1,·t· talke(l al)( >ttt ,11ll,la111iall, -.i111ila1 i,,t1e, in ,,,111,·,,·l1a1 riclgt·, \1.\ : I lar\'.trcl l ;11i\'h1,,1/ .-\r1,.n11111·11t, (( :an1l>riclgt·. \1 :\ : liar,arul,lit· SJlht·re·. fl . ·r1ia1 is ,,·l1at is.,., tc.·r I ;l _ 22. I have clisct1s.,;t.·d ,lt gre,lter le11gth thn lt1te \'eto is r~jectt~d. 011 the r1e c ..111 ..tllo,v tl'lt.· ,1sse111hl)' t ,·t·rrttlt· the ,.c.. to. bttt reqt1ire a c1t1,tlifit~d n1~jrit)·· Tl1is ,,·,ts tl1t~ sl11tion ,tJJted in Pl1ilaclt.·lpl1ia. On tl1e tl1er t1,1nd, f>tle t·,111 ,1110,v tl1t· ,tssc·1nhl,· . t t>,·c·rr11le tl1e t~xe c·t1ti,·e b,· , an rdi11,tr~· 111,~jttt rt·ll Ile· del,t,·t·rl 11r1til c:l 1,ttt~r 1

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legislature. 55 This was the solution adopted in Paris, allowing the king to veto a proposal in two st1ccessive legislatures before the third one could overrule him. In both cases, the solution was defended, among other reasons, for its beneficial impact on passionate majorities. This argt1n1ent was made several times in the American debates. According to Madison, •a negative in the Ex: is not only necessary for its own safety, but for the safety of a minority in Danger of oppression from an unjust and interested Majority.' Gouvernet1r Morris was more specific. On July 19 he argued that the tipper house is needed as a check 'on the propensity in the 1st branch to legislate too much to run into projects of paper money and similar expedients'. Two days later he cited the same phenomena - 'Emissions of paper money, largesses to the people - a remission of debts and similar measures' - as reasons for a strong executive check. Mason similarly argued that 'Notwithstanding the precautions taken in the Constitution of the Legislature, it would so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. ' 56 In other words, the tripartite system provided a doubl.e cMck on majority n,k. 57 In the Assemblee Constituante, the argument took different forms. 58 For most deputies, executive veto was simply seen as a delaying and cooling device, a brake on passionate majorities. For the radical members of the assembly, it was rather a de\ice that allowed the nation to act as a check on its representatives. After the first veto, the nation could express its opinion through an election. As LaSalle put it, 'Le veto suspensif est comme tine sorte d'appel a la nation, qui la fait intervenir comme juge a la premiere session, entre le Roi et ses representants.' The argument came in two versions. Some delegates wanted to leave the decision to the legislature following the final veto. Others wanted primary assemblies to vote directly on the n1otion that had been opposed by the royal veto. 59 Executive veto is lM solution to tM probl.em of self-interested IRgislators. The role of the executive veto as a check on the tendency toward legislative tyranny was a permanent theme in the two assemblies. In Paris, Lally-Tollendal, citing England as a precedent, claimed that in 1688 the two chambers of Parliament abdicated some of their powers to the executive in order to pre\'ent legislative l}Tanny. Many other speakers in the Assemblee Constituante argued for the need for a TO}al veto to check the tendency toward legislative domination. In doing so, they indulged in considerable amounts of cant, imputing either a perfect harmony of interest between the king and the people that would enable him to check the aristocratic tendencies of the legislature, or a perfect coincidence between the will of the king and the general happiness. In the fall of 1789, nobody said outright that even a weak or depraved king would be a useful check on legislative tyranny. After the king's flight to Varenne. it. became more difficult to uphold the illusion of his benevolence and wisdom. In the debates on the king's imn1t1nity, Duport and Barnave argued that tl1e king could not serve his constitt1tinal ft1nction as check on the legislatt1rc tanless his person wa-; inviolable. 'Si le monarqt1c etait dependant dta Corps

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legislatif, ii en resulterait que nally elected lower house and in each of the equal-sized Czech and Slovak sections of the tipper house. 111 Poland, the situation is even more ironic. As part f the comprmise of the Round Table Talks between Solidarity and the go\·ernment, an tipper house ,vitl1 strong veto powers was introdttced into tl1e co11stitution. Although neither side cared abo11t the Senate itself, or tl1ot1ght that it would beco1ne a m~jor political actor, it turned 011J to be a crt1ther salient features. limiting n1yself to the countries that have completed the constitution-making process. Although all cot1ntries have constitutional pro,isions guaranteeing the rights of ethnic minorities. the force of this protection differs widely. The Bulgarian Constitution offers by far the ,veakest protection. For one thing. it contains a ban on political pa.r ties formed along 'ethnic, racial or religiot1s lines' (Art. 11.4). For another, the Bulgarian Constitution is special in that it c,ffers to ethnic minorities only the right to study their own langt1age (Art. ~~6.2), not the right to stt1dy (all subjects) in their own langttage. It t1as a ge11eral ban on reverse disc1imi11ation, on grottnds of race, nationality, ethnic self-identity, sex, origin, religion, edt1catio11, opinion, political affiliation, personal or social statt1s, property statt1s (Art. 6.2). The Romanian (:nstitution cntains a limited ban in Article 6.2, reqttiring the protection of 11ational n1inorities to 'cnform to the principles of eqt1ality and non-discrimination in relatit· tl1e clcpt1ties call fc>r thern. The most important fundamental changes are those which 'resol\·e c1n an}' changes in tl1e form of state str11cture or form of government· or which call fc>r a change in Artic.:lt."' 57.1 of tlle constittttion asserting that ·Tt1e ft1ndamental ci\il rights shall l>e irrevocable.' \\'ith the exception of the Bulg,trian pro,,isions for m~jor constittationctl changes, these systen1s offer a relati,·el}· weak prtt~ctio11 against the i111pt1lsc·s of passionate m~jrities. The protection f rigl1t~ may also be t1ncter111ined. perhaps more seriot1sly. b)· tl1e fact that the rele\·ant c11stit11tic>nal cl,ttises rt slability. except on the conditions and in a manner established by a law.• Similarl}·. Article 30.8 of the Romanian tA:>nstitution says that 'Indictable offenses of the press shall be established by law.· Although the Hungarian Constittttion contains similar clauses. their sting is drawn by Article 8.2 which asserts that statutes 'shall not limit the essential content of ft1ndamental rights', leaving the parliament free to expand the scope of right4i bt1t not tc> shrink them. 70 On the other hand, n1any rights are limited by pt1blic or even private interests. To take a typical example. Article 37.2 of the Bulgarian Constitt1tion says that 'The freedom of conscience and religio11 shall not be practiced to the detriment of national secttrity, public order. pt1blic health and morals.' 71 Whereas many constitt1tions as.4iert that rights can be limited by the rights of others, the Bulgarian Constitutio11 asserts that the)' shall not be exercised t the detriment of the 'legitimate interest~• of others. To have rights limited by the public interest is no dot1bt ine,itable. 72 If the)' can also be o,·erriden by private interests. however, the trumplike character of rights disappears entirely. Judicial rettiew. All countries in the region practise n: ant, or ex post re\riews ot· legislation b)' constitutional cotirts. 73 Tl1is was also a pro\rision in n1any of the communist constitt1tions, with the special featt1re. however, that decisions by the court cottld be annulled by p,1rlia1nent. In Poland, this \'erruling mechanism still obtains, although it is rarely utilized. It is more st1rprising to see that it is also incorporated in the newly enacted constitution of Romania (Art. 145. l). This is the 'backdoor' techniqt1e referred to abo,·e, by which the assembly may enact de facto amendments of the constitt1tion without goi11g to a refere11dt1m. One ca11 imagine circt1mstances in whict1 the rights-protectir1g ft1nction uld be t1ndermined by this procedt1re. One ,night also view it. however, as part of a S)'Stem of checks a11d balances, that is, as pre,•enting an undemocratic rule by the jt1diciary. The Hungarian cottrt has been by far the most active one. In the last fe\\' years it has emerged as a m,tjor political force, characterized as the n1ost powcrft1l constitt1tio11al cot1rt in the world. 74 Tw(> sets of ctecisions that ha\'e been t•specially importa11t concern legal reactio11s to acts committed tinder the commt1nist regime. In three cases tl1e cot1rt was asked to assess the constitutionality of la,vs regarding restitt1tion ot· nationalized land to its pre-communist O\\'ners.i 5 Tl1c cc>t1rt decided that the only re,tson fr discriminating betwee11 fc>rn1er landow11ers and owners of other types of confiscated property or. 111c>re crucially. betwee11 former owners and '11on-former wt1ers· (meaning thc>se wt10 did 11ot formerl}' hold any kincl of property). ,vottld be a forward1oking one. If st1ch cliscrirnination ,vould facilitate tt1e transition to a market ec:onorn}' or otherwise have good sc.>cial result~. it was allo,vable; if not, not. In partict1lar, the pattern of fc>r111er prperty holdings ,v,ts irrele,1ant. In a recent dt.•cision ib tl1e cc>11rt struck down as t1ncnstitt1ti11 is tl1e 1

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c:zech Reptablic, wt1ere the Hayekian inspirc1tion behind the constittttic>n st1ows itself in Article 98. l, which protects the ba11k from i11tervention by the exect1ti,,e. In Hu11gar}', Article 32.D of the constitt1tion stipulates that the president of the Natior1al Bank is appinted by the president of the Rept1blic for a term of six years. Both the fixi~• of ten tire and the fact that the president rather than the go,·ernment has the appointment power might seem tnstitt1tions i11 the regio11 makes any reference to the mode of go,·ernancc f state-ow11ed radio or television. (;h,rks anti balanrt's. \\'e can distingtaish amng a number of versions of the idea of· checks a11d bal,tr1ces. l"he textboclk idea posits three main instittttins - tl1e excc11tive, the legislati, e ,tnd tl1e j11diciary - which m11st be so rganizecl as to neutralize a11y tende11cy b) any one ot· them to 11st1rp power. l11 the twrate: it is a trt1stt'c, not si111pl)· a dele~atapt·r al\\·ays rnea11s 'si1111>lc 111aj< ,rity r,alc ·. 2 ...\ si111ilar s1c,ry fc,r 1',,r,.,·ay is tc,td i11 F. St:j. '.!. (,. ~trl \1arx. '/1,r t :1.~ht,·,·nth llr11111I. 11. 1fltl. i. l\arry. 'Is l)c:·1111>< ral·y S1x·c i~,1~· . :,(). 1·t1c· s.tntt• iclc·a 1111cit·rlit's lgenous Politicians', Ammcan Economic &view: Papen and .Procttdinl{l 66 ( 1976): 1-19. I nte as a curiosum that in the debates of the Assemblee Constituante the prposal was made (30: 97) to have periodical co11stitutional conventio11s called in a qt1asi-random manner, 11amely, by linking them to the death of the monarch. However, in these cases, as in n1any others, the advantages of rando111ization are easily seen to be offset by its drawbacks. See ge11er.1lly chap. 2 of my Solomonic judgemn,ts (Cambridge, England: (:ambridge University Press, 1989). Ar1 importa11t cxceptio11 is ra11domization i11 the judiciary, as further disct1ssed below. 17. Madison, Records, 1: 135. 18. For an analysis of the distinction between interest and J>assion amo11g the America11 founders, see M. White, Philosus sect, as a threat to the freeclm c)f W \\'ttld ,·ti chse? Si111ilarly. tl1c discu.4i..\it>n i11 the text st1ggests that cle111cxracit's c:a11 11ly ha,·t.~ two ltl tlf tht' fc,llc>\\'i11t,.t thrt·f n1y Politiral l'IJrho/~· (( :a111l>riclgt·. i-:11gl;u1d: c:a111hridgt' l'11i\'. at :\~>4. 1:-~tilt· gt' S i11clir1g, ~·c ,lraclXt'S i11\·,,lvc·cl i11 self-bincli11g. St·e P. St1l>er, ·1·11, l'nrtul,,x oj .v(/:.4 ,nnid,nnit (New Yrk: Pt.·ter l ..111g. I !>91)). '.{:,. I sinlplif\'. The ,1st· f q,aalificcl 111,~jritit's ca11 alSme11tar\' JJassicu1s. ))lt' likt' tlly th ~-,~~jc>rity Rt1lc: Al1t·r11atiV22; l\fadison, ibid., I: 218-19. , 54. Mrris, lvrnrd.5, 2: 52. 55. Recall here that the same tw procedures - ritarian i11terests rather than passi11s: see, however. note 21 ab,·e. 58. I am indebtecl t Ber11ard Mani11 a11d Pa..qt1alc Pasquino f29: l..ameth, ibid., 8: 551; (;rt·girc, ibicl., 8: 5(ii: (,.1Sall81 . 60. Lally-Tolle11dal. ibid., 8: 517-18: Mirabeau, ibid., 8: :J;\8; ~fa)c>llt'l, ibicl .. 8: 5'.\!">-:~t1; Dupid., 28: 26!l. 61 . Wilsc>11, ll.Prords, 2: :{()]. 62. Mc>rris, ibid .• 2: 2~~}-:~00. 63. l)'Antraigt1t·s..,\rfhi1 1,·.\, 8: ;°>44: ~-firal)t•at1, ibid .. 8: [,'.\~}; \fc>t111ier. it>iIll ; l.a11jt1inais, ibid. 8: :,88. 64. Sl1ern1a11, R,rord.\, I: f)(); Mrris, ibid., 1: 29; ~facliSll , ibicl., 2: I (>Y. • Morris, . 1·1·1 • u • t~'.rry, ·. 'b"t. >IC ., < .. :):>o~>: 1 : :>otl • 66. ·r11e fllc>~·i11g apf>lit's t till' sitt1ati11 at tl1e tin1c f \\'riti11g (April I~•~•:\). I pr11e11ts i11 lilt' fc:,r111cr Sc,,·it·t L111ic>11, partly l>t·c:at1se I k11c>,,· lt·ss allC>tat tllt' lll a11 '\'t,gslavia (St.·rbia a11d ~1011le11l·gr) 1l1at ,vas .1tt·cl c)ll .-\1>ril I :1. 1~)92. 67. Fc>r details, see \\'. ()siaty11ski, 'Tl1t· Rc>t111dtablt· ~l'gtiatic,11s i11 Pc>la11ct·. ,,·c>rki11g paper frpt', l .l11ivt'rsitY ,,f (:l1i(·agc> I.aw ScltOI. 68. Fc>r Pla11cl. St·t· .-\ . Raf>a11al Rl'lrn1 i11 (:1t·cl1c:,slc>v,1ki.1'. (J 11i1 1n,ity o/· st·t· tl1e J)(>tt·11tiall\' illilx·ral i111plic-atic>11s f this cla11s.·. tl1t· fc,1lc,,,·i11g c·l1arac·tld by a jt1dgt' parlia111t'nl . A si111ilar S\'ste111 c,l,tai11s i11 J>c,la11d. 111 Rc.> n1a11ia a11cl 8t1lgaria. rcti11arv jt1dges art· appir1ted l1y i11dt'pe11d a111c>11~ tl1c.- tl1ree p\\"t•r-s sl.tlt". 111 lft111g,1r,·. parlia1ne11t appc>i11t.s jtadgt·~ t the.· f(>11stilt11 io11al fw to bring abottt this selfgover11rnent (through cl mt1lti-part}' systetn or a single party; by proportional (>r first-past-the-post electoral systems, or on the basis of the 'blocked single slate'). Each cot1ntr}· also has the right to decide hr reasons dictated by reqt1irements of pt1blic order r natinal sec11rity, n1 be valid for all states in the world, ,tr1d ,vhict1 11,1,•t· as tJ1eir be11efiriarit·s tl1t· fi,,e tl1ot1s,,nd milli11 ir1habitants indeed exist and that 1nany states tend to take the same basic view of huma11 rights. Another answer to the above qt1estio11s might be found i11 the work of· the French philosopher.Jean Hyppolite. In 1964 H)ppolite wrote of tl1e paradc>x whereby our epoch is at the same time the one in ,vl1ich the 'cxiste11ti,tl

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ser1se of universality' is str(>ngest, partly because ·all regions of the eartl1 have now been discovered and have come into relationship with each other', and also the 011e in which there has bee11 the clearest 'decline in universal ft1ndations and standards' .5 And yet, this answer, right in itself, is not enough: there are specific reasons, ptettliar to l,,,.man rights. that militate against this tani\·ersalit),.

Divergences in Philosophical Conceptions and Cultural 'Iraditions l . .et me say immediately that universality is, at least for the present, a myth. Not only are human rights observed differently - certainly to differing degrees - in different countries; bttt they are also conrnved of differenU}'· I shall seek to identify the principal points on which the variot1s countries of the world still seern far apart: in other words, the points at which the effort at world unification, purst1ed in de,,eloping the three great docume11ts, has still not been accornplished. Firstly, there are profou11d divergences in the philosophical conc~tion of human rights. The Western countries continue tenaciottsly to defend their 'natural-law' \iew of l1uma11 rights - the one they put for,\'ard when the three great texts were being drafted. For them, human rights are innate in i11di,1dt1als, are an intrinsic factor in the 'qualil)' of the ht1man person', and hence precede any state structure and must be absolutely respected by governments. A state that violates then1 in its laws and its actions breaches one of the very prerequisites of ci,il coexistence between states and n1ay legitimately be brought to acco11nt. For the socialist countries, b)· contrast, ht1man rights exist only in societ)· and in the state, and only to tJ1e extent that the}' are specifically recog11ized. 'fl1ey do not pre-exist the state, but rather are af the whole Svereignty; in discussing in the p11blic fort1m war and peace, in concluding treaties fJf alliance with freigners, \'Oting on laws. i11 pronouncing judgme11ts, in examining accot1nts', and s n: the ancient~. tl1ough, 'acceJ>ted as cc>mpatible with this collective freedc>111 the i11di,ridt1al 's cornplete s11~jection to tl1e atathority of the wl1ole •.9 It is J>ref i11ternatic>nal scrutiny, is fr the indi,1(it1al who is denied a right to which he or she is e11titled, to ·activate· some form of i11ternational gt1arantee. And yet 11ot even the W«:>st shc>ws 111t1ch t.·ntht1siasr11 fr advocatir1g internatinal _j1,,liri,1/ gtaarantees: th,lt is. i11ter11ati far as to make specific criticism, let

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alone condemnations. From this point of view too, then, state sovereignty remains intact. It is easy to imagine how this kind of control is implemented in practice: every state tends to depict its own domestic system as a paradise, or something like it, and international bodies must confine themselves to articulating cautious doubts or setting forth considerations of a general nature. State sovereignty emerges victorious; individuals disappear from the international scene, and the violations they have suffered remain unexposed. Another sharp differentiation, again chiefly between East and West, concerns the conception of the link between human rights and tM maintenance ofpetue. For the socialist countries, protection of human rights is one of the ways of promoting the maintenance of peaceft1I relationships among states. They start from the arguments put forward at the end of the Second World War and 'codified' in the United Nations Charter. The great conflagration that had shaken the world had largely been due to the racist, totalitarian policy of Nazism. Accordingly, if political systems that respected human rights were gradually to be furthered throughout the world, this would help to ward off the threat of another world conflict. This argument, correct in itself, can, however, lead to a fallacious conclusion: peace being the supreme goal, everything else takes second puu,; accordingly, if in some particular circumstance the need to respect ht1man rights is liable to cause friction and conflict, thereby threatening peace, it must be swept under the carpet. Between the two goals, the one that must prevail is that of peace. Understood properly, this view is a logical extension of the idea that everything should turn arot1nd the essential pivot of state sovereignty, with its corollary of the prohibition on interference in the domestic affairs of other states. In fact, continually advocating the maintenance of friendly relationships among states as the ultimate goal leads to the perception that requiring some country to respect human rights may be a dangerot1s source of far-reaching disagreement, and accordingly such action should be rejected, indeed forbidden by the international community. (On this i~ue see however the qualifications I set out in the last section of this chapter.) The West's view is radically different. For the Western countries, the need to ensure respect for human dignity is always pre-eminent. It is therefore acceptable for a state or group of states to take initiatives and make dnnarc/U's towards another state to encourage, or even attempt to force it to show. greater respect for human rights, even if this goes against 'good neighbourline~•, or friendly relations in general. For the West, the proper balance between the need to respect the domestic affairs of foreign states and the countervailing requirement to do everything possible to promote respect for human rights is as follows. In cases where violations perpetrated in another state become serious, systematic and massive, intervention by other states or by international organs becomes acceptable, even if it necessarily gives rise t disagreements, tensions, or even conflict. A fourth area, where there is a wide gap between Western cot1ntries on the one hand and Third World and socialist states on the other, concerns the role and weight to be given to the 'international context' in the e\'ent of breaches of human rights. In the view of developing countries - joined here by Easter11

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THE P()LITit:S OF HUMAN RJ(;HTS European states - it is illogical and inappropriate to seek out violations committed in other states and then accuse the governments concerned of trampling on hurnan rights. Breaches of those rights- not only ci\il and political rights but also. and even more so. economic. social and cultural ones should instead be considered in the general context of the internal situation of the state being challenged, and also a~ regards the position of that state visa-vis other cou11tries. According to this \1ew, if accottnt is not taken of the overall picture, two risks arise. Firstly, one fails to identify, and come to grips with, the causes of the breaches of htaman rights. These causes normally lie i11 underdeveloprnent; in tt1e need to cope adeqt1ately with economic and social problems; and in international conditions, in the rnain economic ones, but also political ones (which are believed to explain why cottntries are, on occasions, compelled to suspe11d or restrict certain rights. such as trade union freedom. rights to pri\-ate property or freedom of' movement, in order to meet internatio11al economic presstares - for insta11ce. the need to pay debt~ to foreign banks or cme and abroad. The West's reply t(1 this thesis is that all t(>O often these argument~ act merely as a 'rationalization· of domestic failings: facile excuses, to jt1stif)· seritl1esis). This understanding is to sc>me t'Xt.e11t reflected in a spt.•ect1 deli,,ercd in l ~}77 by tl1e then l lS Secretarv, of State l~1ti11g t tl1e ft111da1nental needs f the l1t1r11an perso11: tl1e rights t \\'Ork. to decc"tlt hot1si11g. to no11rishmer1t, t.c.l protectio11 of l1ealtl1. Tt1irdl)'. still in so111e sc>rt f rder of in1portar1ce. are s111e ci,il and plitical rights like freedm f exprcssi 111t·t~t tt1c aspir,ttins ,111d idt~< ,lc,gic,tl C11ceptions of the Third \\rorld ,t11d tl1t· SllCi,tlist cot111tries. It 111igl1t therefre l>c regarded as a J>ns 11,t\'t' 11t C11siste11tl}' upl1elcl Vance ·s ,·iew in no Wa}' cletrac:ts fr111 its i11tri11sic: ir11prt;1nce) . 1·here has ,1ls l>t~ is scarcely st1rprising. For one thi11g, exte11si,·e politic,1I rigl1ts and liberties are integral to de1nocra9': they are neces.~r}· tr1s that, taken as a \\'l1ole, distingt1ish rnoder11 de1nocrac~· ( 11al s~'stern tl1at ,·ests control o,·er gcl\'ernment decisior1s abliged to m,tke a jttdgr11ent that cert,ti11 politic·,11 rigl1ts t·xist i11 that C0,·e a ct·rtain thresl1old, then b)· d1f,11ili11 tilt" ct111tr): is not 'de111c·r,1tic ·. Tprll 11 l J"ll'S.

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The range of rights and liberties available to citizens in democratic cot1ntries, however, goes well beyond what is strictly required for the existence of democracy itself, for people in democratic countries tend to valt1e rights and liberties generally. Stable democracies are st1pported by a broader culture, political and general, that places more than trivial value on such qualities as personal freedom, fairness, legality, due process and the like. While I can conceive of a purely theoretical democratic system in which persons acct1sed of strictly criminal offences had no right to a fair trial, and yet all the political rights and liberties necessary to democracy were perfectly protected, I very much doubt that such a strictly compartmentalized system would ever exist in the real world. Citizens who valued the rights and liberties required for the democratic process would hardly be so morally schizoid as to reject the right to a fair trial for criminal offences. To say that political rights are more fully protected in democratic than in non-democratic countries shot1ld not be misinterpreted as an invitation to complacency about the condition of rights in democratic countries. For one thing, economic and social rights, of which I say nothing in this chapter, are of course also important and vary greatly among both democratic and nondemocratic countries. Of more immediate relevance to the argument of this chapter is the fact that rights may be effectively projected above the threshold of 'democracy' or polyarchy, and yet fall well short of the standards to which people in democratic countries tend to aspire. For example, if it were not for recurring invasions of political and civil rights in the United States, the American Ci\il Liberties Union would soon cease to exist. Whether ft1ndamental rights are protected better or worse in the United States than in other democratic cot1ntries I cannot say, but I doubt whether any democratic country fully lives up to its own standards of ht1man rights. Moreover, even among countries above the democratic threshold, the effectiveness and stability of the rights, liberties, opportunities and institt1tions integral to democracy vary considerably, and they may also vary over time within a country. In order to discuss these variations, and more importantly those among non-democratic countries, I am going to draw heavily on a recent study by Michael Coppedge and Wolfgang Reinicke. Coppedge and Reinicke ranked 170 independent countries as of mid-1985 on four criteria: free and fair elections, freedom of political organization. freedom of expression, and availability of alternatives sot1rces of information. Within each criterion Coppedge and Reinicke created three or fot1r categories into which cot1ntries cot1ld be assigned. For example, on the criterion of free and fair elections, countries were assigned to one of three categ11 are. c1r believe themsel,·es t be. i11 a pspects for ac.·l1ie, i11g a ft1ll system f democratic rights and liberties are very l1igh. A11d in s far as ,ictrs inside r tlt~ide the cou11try are in a position to dw,1rd a ft1ll systen1 of de1nocratic rights and liberties. Bt1t imagine instead tl1at \\'hat ,ve h,l\'e is a cot111try like those i11 scale type VIII. St1ppose further that all fi,,e of the conditions ,nentioned earlier are t1nfavt1rable tr1s deepl~· committccl t democrac~· l foct1s 11 tl1c i111111ediate g,tl f full democrac~·. ,,·l1at are thev, t dcJ? I ,vant t propse thc·rt·frt· tl1.-1t i11 attc.·111pti11g l a11s,,·er tl1t• ft1r q11estio11s I ptJle ttst'ftal t folln-cle1nc>cratic g\'ernme11t may well decide that the g-ains from repression r1c> l11ger t~xceed the e 1111t1st1ally l1igt1, \\'l1ile the Cf>sts of accepting or tolerating fair trials, partic11larly in political c,ises, 111~1y be quite extraordinary. It· these asst1n1ptio11s are correct then an effecti\-·e right to a fair trial need not r1eccssarily conic~ i11to exister1ce prir tel the 111c>rt· strictly political rights J

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necessary to democracy. Evidently then we cannot uncover the relation between democratization and a right to a fair trial without looking at experiences in a large number of countries, and analysis of patterns in a large number of countries.

IV Conclusion

My argument, in summary, is then as follows: 1. The most comprehensive systems of political rights and liberties in the contemporary world exist in democratic countries. Even democratic countries, however, vary in their protection of political (not to mention other) rights. 2. Many countries are not democratic and are t1nlikely to become so in the foreseeable future because the conditions that tend to favour democracy are weak, or the conditions that tend to favour authoritarian regimes are strong, or both. 3. However, non-democratic countries vary greatly in the extent of political (and pre-political)rights and liberties. They can be arrayed, more or less accurately, on a scale - an ascending series of thresholds - extending from countries in which political rights are virtt1ally non--existent to countries in which political rights are close to the threshold of democracy. 4. Given the wide variety of political systems in the world and the great variation in the conditions that tend to favour democratization or authoritarianism, a feasible strategy for contributing to the development of rights in a non-democratic country would be: (a) Carefully consider the concrete conditions and characteristics of the country, including the direction and rate of recent changes. (b) If the underlying conditions are generally favourable for the prospects of democratization, press for full democratization. (c) If not, adopt an incremental strategy. Identify the 11ext feasible threshold of rights and liberties, and first seek to consolidate rights at this threshold. The immediate aim need not be democracy, but attaining one of the prior rights and liberties necessary for democracy.

Postscript, October 1990 \\'ben I wrote the material above for the Oslo meetings i11 June 1988, I certainly did not foresee the speed with which movements to,vard democratization would occur in the Soviet Union and Eastern Et1rope. To what extent does the argt1ment I presented at that time reqt1ire modificatio11 in the light of the extraordinary speed and magnitude of these changes? The events surely challenge one assumption I then thought reasonable that 'in the foreseeable future near-polyarchies and proto-poly-archies are tar more likely to attain democratic levels of political rights than cot1ntrit·s near the bottom of the scale'. The fact is, in the original scale tl1e Sc>,,iet

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l J11i(1n and the Eastern Et1ropean cotantries were classified by Coppedge a11d Reinicke, qt1ite properly, at or near the most extreme authoritarian end f the scale. It was 011ly a year later, af't er the Osl(> 1neetings, that I ptrlled these cot1ntries ot1t and made them special cases, as they are shown in the figures now presented here. Yet the e\'ent~ clo appear to confirm the expla11atin, in sectio11 II. I abo,·e. cratization. 1. \\'hen Gorbachev re,·ersed sixty years of policy and practice tinder which c>pposition was systen1aticall)· silenced in the So,riet Union by violent coercio11 and intimidation, pt1blic opposition immediately sprang tip and hithert st1ppressed demands for political rights and liberties became irresistible. Likewise, when it became evident to people in the cot1ntries tinder So,iet dornination that pubic political activity would no longer be coercively stappressed, the democratic oppositions took ot·f like wildfire and helped to bring about the liberalization and democratizatin of their regimes. 2. As figt1res 9.2-9.4 illtastrate, ma11y of tl1e social and eco11omic characteristics of the USSR and, even mc>re. of countries like Czechoslovakia. Ht111gar}', Pola11d and East Germany wt~re at variance with the extrerne at1thoritarianism f their regimes. In man)' respects. in their socioeconon1ic levels these cot1ntries were closer to the matttre democratic cot1ntries (e,·cn thottgh the gaps were great and a major sot1rce of discontent) than to the less de,·elc>ped Ct111tries ,vitl1 highly at1thoritarian regirnes. 3. \\'hen the expansic,n f political rights ancl liberties made it possible for hithert sttppressed cleavages to appe.1r, cc>nflicts among sharply di,ided s11bct1ltures rapidly ernerged. Ho,v, and l1ow st1ccessft1lly, these conflicts will Ile n1anaged withotat impairing or re,·ersing the 010,·ement toward democrati1ation and liberalization ren1,1ins higt1ly u11certain, particularly in the So\iet l fnion. Clearly one part of an)' solt1ti11g stappc>rt for the indepen· der1t effects on the prspecratic icit·as tl1at \\'Crciations and grot1ps seems to me to fit their explyarcl1ies. electi11s shot1ld be seen as a critical stage following a process of liberalization, prob,tbly a lengthy process. in which the prior instittttions and appropriate u11derlying co11ditions for stable democracy have de\·eloped. I believe this is correct. Yet I probably ttnderestimated tl1e extent t wl1icl1 the setting ot· elections can under some conditions tttrn into a dri,,jng force tl1at enormously speeds tip the \Vhole seqt1ence. What then are the reqttisite conditions? The a11swer, a spect1lative one no dot1bt, \\'Ottld take a separate esSct}', and I shall nt u11dertake to provide one here. But surely a11 ans\ver ,vt1ld include these three factors. First, if any f the five obstacles mentic>ned above stands massively in the way, elections cannot prodt1ce dernocracy and ft1ndamental rights. The lamentable example of El Salvadr, a11d the less well-known examples of Honduras and Guatemala, demonstrate that elections are not st1fficient to tra11sform a regime dominated by a militar)' establishment into a democratic government that respects ft111dan1e11t.1I rights. Second, the prir elements i11 the seqt1enct> - alternati, e sttr(·es m of expression and freedm t rga11ize - rnttst alrearl~· be in place firn1ly enctitl period. Third, inter11atic>11al pi11i11. i11frrn,tti,rim,.4i ""d (:Or,1plifl11r, 111ith Hu,nn,, RiKhls (()slo: &a11di11a\'ia11 ll11iversit~· Press, 1996). pp. 2'.l:l-:>I.

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=========10========= The Other's Rights Jean-Franrois Lyotard

'It seems that a man who is nothing but a man has lost the \'ery qualities which make it possible for others to treat him as a fellow man. ' 1 With this sentence, taken from the stt1dy on Imperialism which forms the second part of The Ongins of Totalitarianism ( 1951), Hannah Arendt defines the fundamental condition of human rights: a human being has rights only if he is other than a human being. And if he is to be other than a human being, he must in addition become an other human being. Then 'the others' can treat him as their fellow human being. What makes human beings alike is the fact that every human being carries within him the figure of the other. The likeness that they have in common follows from the difference of each from each. Thou shalt not kill thy fellow human being. To kill a human being is not to kill an animal of the species Homo sapims, but to kill the human community present in him as both capacity and promise. And you also kill it in yourself. To banish the stranger is to banish the community, and you banish yourself' from the community thereby. What is this figure of the other in me, on which, it is said, my right to be treated as a human being rests? It is this question to which I devote the rest of my reflections. 'Nothing bttt a man', writes Hannah Arendt. That is, nothing other than an individual of the species Homo sapims. A powerful species; in tl1e struggle for life enacted in the theatre of the world, Homo sapiens has emerged victorious over all other species. And it continues, successfttlly, to combat them, using hygiene, sanitary arrangements, the protection of the environme11t and so on. Each human being is a specimen of this species. He resembles any other member of the species. as a chimpanzee resembles a chimpanzee. Is the figure of the other (ape) prese11t in every ape? Apes are able to tell each other apart and to distinguish themselves from other species of animal . They can commt1nicate amongst themselves by systems of sensory signals based on the five senses and motility. These systen1s constitute a sort of langt1age which e11dows the animals with a srt of co111mt1nity i11 which 181

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affecti\·e states (Aristc>tle's pathnnata) are excha11ged. alcl11g with adn111itic>r1s as to condt1ct. This signal-based language is 11ot wholly lacking in the ht1man species, bt1t its role is cc>nfi11ed. Animals' capacity to communicate is determined by the ge11etic stck common to tl1e species, a11d is of the order of instinct. Huma11 beings h,,ve very few instincL~. 111 comparison with their anin1al brothers, yot1ng ht1n1an bei11gs are slictics, a11d a.s st1ch are cc>rrelated \\1tl1 ,w1v, a11d no,,, . clt~sig11,ttes the present oliwia r the moder11 "flit· citizc11 is the l1t1111,111 i11cli,,idt1al wl1c>st' rigl1t t ~tclclress tt1crs is rt'ry i11 apparer1tly unmotiv-atecl ways. They block interloc11tion. Witt1 tl1ern, tl1lt· wrong and a~iection f infr1tzlit1 er11pt intc> adt1lt rt~lati when a11d as the)' find it. I will speak very briefly about ct1rre11t challenges to the idea of human rights, and a te11de11cy in the schc>larly con1munity, which ma)' weaken it i11tellectt1ally and rnorally, S that it cannot help threatened societies and peoplt~s - or itself. 1

II A l1t1ge proportir1 of ht1n1a11 rigl1ts abtases 110w a11d in tl1e past l1a\'e lx'en btailt arot1nd variotas kinds of factual and moral errors that have been exploited by those seeking or possessing political and military power. St1cl1 violatio11s of human right~ have required the use of disinformation: violations of human rights in the name of ethnic natio11alism or race - tl1e abuse of other people because the}' are not see11 a~ hurnan beings - are a11 example. Since tile nineteer1tt1 centtJr}' the entire idea of race has been destroyed b}· science, h}' antl1rcJpnstrai11ts t1po11 intellectual work. Etl1nic 11ationalism is ;1 f,Ju11e 1994.) l11deecl, ·n1oral J>~tr,tlysis' ar1d the 'r,t,v display of power· are precisely \\'}1at \\le t1a,·e l1c·re, nc>,v, l(>nal material is in this case highly inadequate. In the second part of the constitt1tion, which regtalates basic rights. citizens are gtaaranteed 'freedom of belief, conscie11ce, thought, and the ptablic expression of thot1ght · (,\rticle 35). The concrete realization of this l>asic right is placed in a rather conft1sed and illogical ma11ner at the ver}' end f the constittation, in the (eighth) p,trt that refers to the Yt1gosla\' Arrn~·. Thtas. it ,ippears almost as if the writers of the constitt1tion wanted to avoid treating this as a basic ht1man right . However, there is no dot1bt tl1at the writt·rs of the cr1stitt1tic>n ,vanted to follo,v the sta11dard Eur,\sic ht1mar1 rigl1t, deri\ ed frm the frt~eclom of conscie11ce. Based on these legal pro\'isio11s, tl1e b,1sic right to reftase to bear arms in 111ilitary servi(·e is regt1lated in greater detail in the Ytagoslav Arrn}' Law ( 'Of'ficial Btalletin of tl1e FRY 110. 4:l/ 1994. Articles 296-300), as well as i11 tl1ic vs. cowardly pacifism. Finall}·, I will dra,v s111e conclt1sions abot1t the possibility of regi1lating this basic right de ft,g11 _f~rn1da, wl1ict1 '''ngress in Geneva, in 1920, the first re~ olution on the reftasal to bear arms was voted for. Similar resolutions followed at the International S)•ndicates Congress in Rome in 1922, the International Congress of Textile Workers in Vienna in 1926. etc. War Resisters International was founded in 1921, in the Dutch town of Bilthoven, its main goal being the ·anti-militaristic revolution· (cf. Rtanham Brown 1930: 13). IL~ members called themselves 'war resisters' and 'conscientious objectors', and. following the motto 'War never again·, undertook many meastares (regardless of legal sanctions) to spread the idea of the necessity of refusing not only to bear arms, but also to participate in the production and distribution of all kinds of weapons, or to participate in any preparation for a concrete military can1paign. This International. at the 1925 World Peace Co11gress in Paris, proposed a resoltation on the ret·usal to bear arrns, but it was defeated ( 195 votes against 145) . However, in 1926, delegates to the World Peace Congress in Geneva declared themselves as ha\ing the right to refuse to bear arms. Sirnilar decisior1s were voted for at the national peace congre~~s in France ancl Gerrnany. The first anti-militctristic mc>ver11ents of congregationals were

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formed in England and Switzerland in 1926, with the same basic aim of achieving the right to refuse to bear arms. The international organization of the congregationals was formed in 1928. At the start of World War I, the UK and the US became the first modern states to accept conscientious objection as a legitimate reason for the refusal to bear arms. After that, Scandinavian countries were the first to provide for the substitution of ci\ril service for armed military service. Denmark introduced an alternative military service in 1917 (which included work in forestry only), and was followed by Sweden ( 1920 for the congregationals, and in 1925 for all other people stating a conscientious objection) and Norway (in 1922 for the congregationals, and in 1925 for all other people stating a conscientious objection). However, it was still not thot1ght that refus-ing to bear arms in military service was a basic human right. This changed for the first time in 1949, in Germany. After the horrors of World War II, the idea gained ground that one had to devote much greater attention to the struggle against war. The struggle gained particular importance due to the lack of success of anti-war campaigns between the World Wars, as people realized that it should include all people who were willing to perform military service without bearing arms. Hence, Article 4 of the 1949 Bonn Constitution (of the Federal Republic of Germany) has a formulation later found in the constitutions of almost all European countries: 'No one can be forced to perform military service with arms against his will. The details are regulated by the Federal law.' The principle adopted by writers of the German Constitution consisted in treating this basic right as a specific evaluation of the basic human right to a free conscience. The formulation of this basic right was considered in the (future) Federal Rept1blic of Germany during the Constitutional Assembly in 1948, not only because of abstract-pacifist motives, but also because of the very concrete attempts of the Germans from the American, British and French occupation zones to avoid being sent to an eventual war to fight against Germans from the Soviet occupation zone. It is very important to bear this in mind, because of the later history of the right to refttse to bear arms in military service: the 'co11scientious objection' initially had a quite pragmatic aim of sparing members of an ethnic group the possibility, due to international circumsta.n ces, of shooting at each other. However, the definitive formulation from the Bonn Constitution gave this right a different meaning. The SPD Representative Bergstrasser gave tl1e following explanation for entering this right into the legal material: We have included l1ere this additional possibility. since this has to do with tl1e freedom of religion and freed om of cc>nscience. The additional possibilit)' [acknowledges] that people - we had in mind partict1larly the Mennonites. Jehovah's Witnesses, and members of other sects - do not want to bear arms in military service becat1se of tl1eir religiot1s convictions and their conscie11ce. ( Krol ls l 983: 22-23)

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There were four controversies related to the further de,·elopment of this basic right in Germany. First, there were more and more atheists, who stressed ht1manistic. ethical, or e,·en political connotations of this basic right (especially after the student movement of 1968), so the idea of religious o~jection became increasingly lost i11 a universalistic and religiously neutral concept of ·conscience•. Secondly, an increasing nurnber of people were not refusing to participate in any war against an}1 enen1y, bt1t against a specific e11e1ny and in specific circumstances (fc>r exan1ple, a nt1clear war) . Thirdl~·, tl1ere was a question as to whetl1er the reason of conscience shot1ld be 11niversally ,ialid for all forms of military ser,ice ( that is to say. incl tiding the civil service), or j11st for the ones that i11cluded ar111s-bearing. Finally. the possibility of state i11stitutio11s checking for and determining the existence of an 'at1thentic' conscience of a person, and then determining whether those individuals shot1ld be granted this basic right. was increasingly questioned a~ well. This led to the proposal that this basic right should be 'tan tangled· from the right to a free conscience. Onlv, the tl1ird of these contro,·ersies has been definitivelv, solved so far. Dt1e to a restricti, e and conserv.ati,,e politics of the proces..~ of ·ac knowldge1nen t' of the existence of tl1e ·co11scie11ce' objecti11 (,-tnnkninungsverfahrr.n). a great nt1mber of conscripts who wish to invoke their right tc> refttse to bear arms during militar}' ser,ice must hide their political rnoti,·es. or cloak then1 in religious or tini,·ersalistic-ethical concepts (Krolls 1983: l 08). while t1niversalizing tl1eir own 'sitt1atio11ally conditic>ned • pacifist ,ie,vs (Bf the Cn was hampered b}· \'Olt111taris111 a11d nt1merc)t1s relics fro1n tl1e S)'Ste111 of inqt1isition (Mohle and Rabe 1972: 53). as well as b)' tl1e nLlmrru.s rln1,.stl5 approach, wt1ict1 stipt1lated the exclusion frple tap to the n11mber that tl1e state cletermi11ed informall\·, and arbitraril\! (Krc>lls I 98:l: 4()). Howe,·er, one has to , note that the presst1re to use tl1is rigl1t is incre.1sing e,1er}· )'ear, so that the 11t1n1ber of 1nilitary cc>nSrmed ci,il ser,ice reacl1ed 160,()()() i11 19~)5, v,hic:11 is 100 tirr1t.·s mre tl1~1n i11 195i, y.•hen tl1is rigt1t ,va~ first made possil>le. That is wl1y 11e migt1t Sc.l)' that tl1e 1nilitar}'' r1eeds are still of primar)· i1nprta11ce, ..111d that tl1e basic rigl1t t reft1se to bear ar1ns in n1ilitar)1 ser,ice is 1101 ttsc~d as an a11the11tic u11limitecl l>asic l1t1man right (as stipulated in tl1e c:c>11stitt1tit>r1). bttt as ,l right tl1,1t is st1bj(·ct to lin1itatir1s - as pro,ided in tl1e 111ean time bv, tl1e Ger111a11 (:onsti tt1tional ( :otart (..\lex\', I ~)86: I Oi) . It Wttlci be iclectl fldicrl)·· people (tl1,1t is to s.'ly, people who would rl>lerns \\'l1ile i11 tl1e ar111~·. t1rir1g kingcl,>111s a11cl tbbes here went a step further than the lJasic premises of his theory allow for, since, in rder to preserve their honour. it is 11ot necessary for people to risk their lives in dt1els; i11 a societ}' that wot1ld c~fficie11 tly protect not jt1st lives and prperty, but also honour all its n1en1bers. a regular court prcecltare of protection would be quite e11ot1gh t(> satisfy e,·e11 tl1e 1nc>st l1011ot1r-abidi11g amo11g them. A more plat1sible soluti11 is pr tl1e111 that reft1se Duels. and Ignomin}· fr>r tl1e111 that 111ake tl1e (~hallenge' (Hobbes. 1966b: 81). In clll)' case. h11c.>t1r shbes t"\'t'r i11tended this consent to cc11r a'i a histt>rical fact, he diet expect it to l1a,·e a real etTect in preventi11g selfappointed wise 1nen and prophets from deceivi11g the people int(l st1rre11deri11g their n1inds to at1thority. (Kraynak. 1982: 846. also Orwi11, 19i~>)

Let us now consider how Hobbes's solt1tion for the relationship of a st1ccessfully co11stituted civil sc>ciety l(>ks S,"·s clearl)· tl1at Ht>bbes 111,1de a distinction between two separate ordt·rs: nt>c: 184)

•

,varrtrs, nlcm arist·s at the international level. We do not find in Hbbes·s ,vork arl}' hir1Ls ,1but tl1e J>~· creati11g a ri11itr, Hobbes' reply is very sophisticated: l Jpon this ~round, a man that is comn1a11ded as a soldier to fight ,tgainst tt1e e11em~·. thot1gh his so\ ereign have the right enough to punish his refusal with deatt1. m~1y ne,·ertt1elt'ss in 111an)' cases reft1se. \\1th out injt1stice ( ... ) . And there is all\\'a11ce to he 111acle fr 11at,1r,\I ti111t1ro,1s11ess; not onlv to women, of ' wl10111 no st1c·l1 a clar1gcrllS dtll\' is eXJ>t~ctccl, but also to men of feminine c,1,1r,\ge. \\llc11 ,\r111ies f1gt1t. tltt•re is 11 nt! side. c.>r both, a running away; yet \vl1e11 tl1ev. dt1 it nt Ut f trc~ ..,cl1er,·. . but fear. the\' . are not esteemed to do it t11~jt1stl)', btat ciisl11tt1ral.>I~--- fr tl1e same reasn. l a\!C>id battle, is not inj,1stice. but cowardice. B,11 he tl1,1t inrbes's premise. First, e\·ery ci\ne

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endangering him, regardless of whether it is a foreign enemy, or a sovereign himself. Hobbes has been sharply criticized for these opinions by those who defended a diametrically opposed 'heroic discourse' in the constitution of a society. The 'heroic discourse' brought to paroxysm a modern-age longing fr egalitarization - and it did so in the area of the virtt1e of bravery. As we saw with Descartes, establishment of the ideal of bravery for all individuals without exception led to declaring fear and cowardice as something pathological, both in an individual and in a social sense. Modern nationalist ideologies radicalized the whole matter, declaring whole peoples as 'heroic', and putting them completely at the disposal of their 'glorious' army leaders. To put things in a more concrete perspective, we shall see how this "heroic discourse' functioned among members of the German '1914 Revolution', socalled (on that 'revolution' in more detail, see Mommsen, 1990, and Liibbe, I 963). For the German '1914 Revolutionaries', Hobbes was certainly one of the greatest ideological enemies. His greatest 'sins' were his materialistic and atheist convictions that, according to them, led Hobbes into thinking that a man is 'naturally' free, and that he has certain rights that precede state. For example, Hot1ston Stewart Chamberlain assumed that nature does not know of any freedom, bt1t only necessity, while freedorn comes to man from God only, and from the (equally deified) national state. Hence, Chamberlain declared Hobbes to be the most ardent materialist and atheist, who despises everything that comes from philosophy and religion and talks of 'nonse11se such as .. natural laws"' (Chamberlain, 1917: 3). Freedom and right are, according to Chamberlain, totally on the other side - in the wars led by a national state, in order to win in the 'strt1ggle for st1rvival' and act1ieve world supremacy. Unlike Chamberlain, Werner Sombart did not object t prclaim him one of the fot1nders of· ttalitarianism, bt1t these came t little. (The same goes for less ambitiotts attempts to recognize in Hobbes a tl1ec>rist who grounded an at1tt1oritarian 'state-philosophical mdel of conficlence into an absolt1te powerholder' - as Martin Kriele cl,1ims e\'en today, for exarnple in Kriete, 1983: 219-220.) It is well known that Carl Schn1itt has hi111self denied the pssibility that Hc>bbes wa~ e\·en a member, let alne a fot1nder, f the theory of the ttalitarian or atathoritarian state. Tht~ reaso11 was (:le,tr: Hobbes clearly insisted on the \'ie,\' tl1at citizt·ns acqtairt' tl1e rigt1 t t ;1

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re,·olution at the very moment when a sovereign deprives them of securi~· and endangers their life or proper~· (Schmitt, 1937: 163). This was totall~· incon1patible with the 'heroic discot1rse' i11itiated by the '1914 Revoll1tio11aries' and finished bv, the '1933 Revltationaries'. The '1914 Revolutionaries· were, during World War I and immediately after it, tr}ing to pro,·e that Germany was a ·country of heroes' (contrary to the English, wt10 had bt"come that •C(lWardly philisti11e people·), and that thtas it had to \\in the (First World) war. One of the le,tders of this re,·olt1tion, Werner Sombart, believed in the sharp antagonis111 between a heric and a philisti11e spirit (embodied in the 'principal' antagnism betwee11 German}' and Engla11d). \\11ile a hero thinks about his dt1ties, a 111erchant is onl}· interested in his rights; a hero wishes to sacrifice his O\\'n life, while a merchant want~ to get son1ething from his ow11 life; a hero fulfils e,·ery task that comes from the 'higher authority', which is totall)' u11thinkable for a merchant, whose intert'st lies in 'li111iting' at1thorit)': fi11ally, a hero finds his existence only in his fatherland, especially if he is at war, while a n1erchant cannot even conceive of a 'fatherla11d', because he is a hard-core i11di,idualist (Sombart. 1915: 63-66). A philistine spirit pr(ljects it~ merchant beliefs onto a state and looks at it a~ a ·social contract' amc>ng i11di,idt1als, whose basic rights are higher than any state functions. \\'hen wc1r occurs, a philistine ca11not ha,·e any other relatin to it tha11 a pacifist one. His ide,tl is a 'perpett1al peace· . If t1e ca11nt avid war. then he condt1ct~ it as a defensive war. forming a paid army, wt1ic·h gc>es tf cnsc1ence. 'fhe actt1al core f the 't1err,ic discc>t1rse · ot· tday, what remains ifJu11ger's ideas arc depri\·t~d f their ra,lical militarism. is a belief that only 'her(>es' are ,vrtl1y of bt·ir1g trtalct 'break' ,1 Cward imn1ediatel~·. •

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and force him to look upon all the other 'normal people' and take up his place in the military). There is no mercy towards cowards, they are not worthy of that, and that is why they can be made into, finally, 'cannon fodder'. This 'heroic discourse' has particularly dreadful consequences in times of war. Then every individual is forced to prove his heroism through his own deeds, which can frequently result in complete disaster (as the example of Germany during World War I clearly shows). The essence of this danger was nicely summed up right after World War I by Ivan Aleksandrovic lljin, and there is nothing that one could add to it or take away from it even today: During war, every nation goes through such a spiritual and moral strain, that always exceeds its capabilities: a mass heroism is expected from it, although heroism is a matter of exceptions; it is required to show massive self-sacrifice, although self-sacrifice is a matter of high virtue; it is required to show a strength of character, a victory of spirit over the body, unconditional devotion to spiritual things, and all of it is connected to a deed of mass killing. for a deed of enemy and destrtaction. (lljin, 1995: 131-132)

IV Pomble Meanings of the Buie Human Right to Refuse to Bear Arms during Military Service Based on what has been said here, a different understanding-different, that is, from the one that lies behind contemporary legal provisions - of the meaning of the basic human right to refuse to bear arms dt1ring military service shall now be suggested. At the same time, it shall be insisted that only a professional army is appropriate for a contemporary pacifist society and that all de kge fermda solutions of the basic right to refuse to bear arms in military service should be provisional only, until a professional army is introduced (tendentially, as a part of the 'UN-World Police'). According to this understanding, Paragraph 2 of Article 137 of the Constitt1tion of the FRY should be deleted, and instead there should be included the following article in the second part of the constitution, the one devoted to basic human rights: Every military conscript is guaranteed the right to refuse to bear arn1s during military service. This right differs from the obligation to reft1se to use arms in military conflicts, when ever}· soldier has an obligation to reftase to use arms if by doing so he would commit a crime, according to the pro\isior1s f international law. Every military co11script who does not wish to fulfil military service with arms, otat of fear or other reasons, shall be enabled to ftalfil his ser, it~e. ;1ccording to his own choice, either withot1t arn1s in the Ytagoslav Arm}', or in the civil service, according to Federal law. Every military conscript who does not reftase to bear arms dt1ri11g militar~' ser\·ice shall be enabled to refuse to tast· arms fr re,1s11s of conscience, in sr>ecial cases, stipulated by Federal law. E,·ery soldier has the right to clesert otlt of cr,warclict'. or otl1er rt·as11s. if t lit· 1

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\'t1gsla\' Arm~· takes actions that igr1t~·. territ()ry. and constitt1tiws that there is a ditlere11ce between a right and ar1 obligatin to reft1se to use arms. The tise lw~·ing c>rclers'. That is why it is necessar}· t s,1~·. bci11g cc>n,icted either of reft1sal t(> he}· c>rclers, or of cc>mmitting a \\'clr crin1e), but the courts did not accept this Ltrg11n1ent (\\'hitto111e, l~l89: 3()). l11 Ll se11se, the attitttde of the American Cgicall}' crrt·ct: c~,·t·r~·c,ne gc>ing to war in principle accepts the pssibility that he will e11ter a sit11ation \\ l1ere it is necessary to choc>se hetwc~e,1 ref11si11g a11 order and comn1itti11g a crime. If any 1nilitar}· conscript was give11 a right to rc·ft1se tr> gllo\\'S frc1111 t.he very legal reg11lation of ,var crirnes, ancl it will rc111ain ~,1er1 after pec>ple ·s ar111ies are transforn1ed i11to prft>ssic,r1al 11c·s. ~:\'er)' basic right t rc·f11st' t l)t~,1r ,1r1ns dt1ri11g military ser,!ice \\'Ot1ld i11clt1dt~ tl1rt·e cliflc:rt·11t itt.·111s, t111dt·r tl1rt·c· clifft·rt·11t C11diti11s: 1

t111i,·t~rs:.1l rigt,r t rt~f11st· t ht.·,-tr ,.1r111s clt1ri11g 111ilit,1rv ser,·irt· tit f fe,1r (c>r Sr11t· tl1t·r re;tso11). ,l ref11s,1l t l>t'ar ,1r111s clt1ri11g 111ilitary ser,·icc i11 ir1cli,·icl11,1l cast.· s ht·c,1t1se f rnscri(lt \\'ttlcl ha,·e a rigt1t to ciecide ,vhetl1er he ,vanted to st·r,·e \\'itl1c>11t .1r111s in tl1c \ 'l1gc1sla, Ar111y, r lttside of it, in the ci,;J ser,,ict'. Ir1 tt1,1t c.·asBt,ckc11fc)rBt1IJ, Ht·clley ()~}HI) : '}-fc>hht·s a11y. ( ~·< ,rges ( I~1i:~ ): ( ;un·1it>r1 t>l /1t1)'\fl1l.\. \ "If - .\'/ f .\itrll'. 1-'r(·,nirr f".\1or ,/,. I 'tru110,11i,· ro roph>nP, Paris: ( ~allin1ar. ~f ark ( I Yi-t ) : · 1-f t.·s a11cl l·f is .-\t1H (4): ] :l4 2-1 :l:lf). Haffrtt:'r. Sch.1stiar1 ( I 9i~J): Prn,p"" oh11,- I ,1•~•111/f'. H.11nl>ttrJ{: \\"ill1eln1 (rilld111a1111 \ -'e rlag. Hl>lx·s. Tlt()lllclS (]Y(1f,a): l'hiu1t,a/>hirt1I llud111t1'1II\ (:011Cl'llr11i11.~ (~>1,rr11111rut flTld .\t.>rirty. i11: 1:·11gli.,I, \\r,1*\ of '/'ho,na., /-loh/>t'\ of .\la/,11,-.\ /,ur_l' (t·cl. ll~- Sir \\"illia,11 !\·flt·s,\'(>rtlt), .-\alt'11: S.:it·11tia \!t·rlag (st·ct,110 repri11t). ,·c,I. 2. l·f cl) : IYhrrnolh: /hr I li\tor_,· of tlu• (:,ru\r of thr ( :i1 •il \ \,,rs of f ~11gla11,I. in: il)i(I.. V()I. 6. llji11 . l\'alt .-\leksanr ..\hsf>lt1tis1n ·• 7·1,, .-\,nnira11 l'olitir11/ .\ ri,nt,· lln.rin.,, it1 (-1 ): H:\i-8-li. Krit'lc, ~-f art in ( I ~-➔ ~-t~) : ·s1aatspl1ilc>spl1ist·l1c L.et1rt·11 at1s rcibl~· tra11sferring childre11 f the grottp t another group. Conspiraq·, incitement, attt'111pt. a11d c·on1plicit~' i11 gt·n111nic, social a11d Cl1ltt1ral life ssibility of writing petitions in the language of a nationality which is not officially t1sed in court and sendi11g sun1mons in the language of the nationality to persons belonging to that nationalil)' who ttsed that language in the procedt1re if the langt1age is officially used in cotart (Art. 5, Art. 6.2 and Art. 8.2). 5. The l.,al,, on J,,itigation ( 1977) defines tl1e use of langt1age of nationalities in the same way as the Law on Criminal Procedtare. apart from a pro\ision that the expenses for translating into the langt1age of peoples and 11ationalities will be charged to the cot1rt (Art. l 03.2, Art. 104. l and Art. l 05). 6. The Lau, on Di.,;rlosure of fPderal J,,a1,1s and Othn- f~dn-al ugislati1111 n 11d (;enn-al Arts ( 1992) affirms that texts pt1blished i11 Albanian and lf t111g.tri,t11 are also authentic (Art. 4).

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Rt:GULATIONS IN THE REPUBLIC OF SERBIA

1. 1M Serbian Criminal Code ( 1977) punishes acts of mockery of peoples or

nationalities in Yugoslavia or ethnic groups (Art. 100). 2. The /...aw on Mass 1-,fedia ( 1991) designates incitement of ethnic, racial or religious hostility as a reason for the ban on the distribution of newspapers and dissemination of information in the mass media (Art. 20). 3. The Law on Radio and Telrvision ( 1991) states that preparation and production of radio and 1V programmes should also be done in languages of nationalities. 4. The l...aw on Elnnmtary Schools ( 1992) establishes that instruction for persons belonging to nationalities should be done in the language of the nationality or bilingually, the minimum requirement being fifteen pupils. If there are less than fifteen pupils, a special permit should be obtained from the Education Secretary. This curriculum includes a course in Serbian. If instruction is in Serbian, persons belonging to nationalities have the right to study their mother tongue with elements of their culture (Art. 5). 5. The Law on Grammar Schools ( 1992), in the same way as the Law on Elementary Schools, establishes the right of persons belonging to national minorities to have instruction in their mother tongue, i.e. the right to study their mother tongue. 6. The Law on Community Colleges ( 1992) stipulates that instruction can be performed in the language of national minorities, to which purpose, if the founder is not the Republic of Serbia, a special permit from the Republic go, ernment should be obtained (Art. 4.2 and 3). 7. The Law on Universities ( 1992) establishes that instruction can be performed in the language of other peoples and nationalities if there is a minimum of thirty stt1dents in the same year of study. If instruction is performed in the language of national minorities, registers, records and official identity documents will also be issued (transcribed) in that language at all levels of education. B. The Law on the Official Use of Langttagr. and Alphabet ( 1991) stipulates that of"ficial use of the Roman script as well as the language and alphabet of nationalities is defined in the Statute of each municipality, i.e. autonomous province. The lower procedure in which the rights and dt1ties of citizens are established can be performed in the langt1age of a nationality which is not officially ttsed in that institt1tion and which can be determined by that institution only in cases of disagreement between the involved parties, while the Serbian language will be given priority if it has been suggested as one of the langt1ages. Doct1ments of the second-degree procedures will be translated by the lower institution i11to the language ttsed in the first instance. In areas where languages of nationalities are not officially used persons belonging to nationalities have the right to use their language and alphabet in the procedure, lodge petitio11s, receive summons and give statements. They have ·the right to have the record translated (as it is written in Serbian), and all expenses for translation will be charged to that institution. Registers, official idc11tit}' dclct1ments and their forms will also be kept and/ or isst1ed in the 1 -

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language of the minority in official use, and geographical names, names of streets and squares, bodies and organizations, companies, information and traffic signs will also be written in languages of nationalities in official use in that area. REGULATIONS IN THE REPUBl.lC OF MONTENEGRO

l. The Montemgrin Criminal UJde ( 1978) punishes discrimination in the enjoyment of all rights on grounds of national, ethnic identity etc., the prevention of peoples and nationalities using their language and alphabet (Art. 52) and mockery of peoples or nationalities in Yugoslavia (Art. 90). 2. The Law on Mass Media ( 1990) prohibits incitement of national, racial and religious hatred and hostility as the orientation of the mass media (Art. 20). 3. The Law on Citizens' Associations (1990) prohibits associations and political organizations formed with an aim of inciting national and other hatred and hostility, and stipulates that persons previously convicted of these criminal offences cannot be founders of such organizations (Art. 4 and 5). 4. The Law on Violation of Public Order and Peace ( 1987) punishes offences against national, religious or racial feelings in public places (Art. 34). 5. The Law on the ,val of the Republic of Montenegro and &als ofState Institutions ( 1984) stipulates that the name of an institution situated in areas where bilingual administration is performed should be written in Albanian as well (Art. 9). 6. The Law on Elementary Schools ( 1991) determines that schools or classes with instruction in Albanian should be founded in areas inhabited by a great number of persons belonging to Albanian nationality, and that in areas where persons of Yugoslavian and Albanian nationality live together bilingual schools and classes can be established. In all other cases education in Albanian will be introduced depending on its feasibility. When instruction is in Albanian, Serbian must be studied. 7. The Law on Grammar .~chools ( 1991) stipulates that instrt1ction, depending on its feasibility, can be in Albanian, i.e. bilingt1al, whereali Serbian is compulsory (Art. 14). Certificates of enrolment and graduation certificates in schools where instruction is in Albanian will also be isstaed in Albanian, at all levels of edtication. The principal characteristic of the legal status of national minorities in Yugoslavia is that this subject, due to the federal form of government, is regulated by three constitt1tions. They differ in this matter not only as to the term for defining the concept of national minorities, but also in terms of the place of these rights in general systematization, the nt1mber and contentli of legal norms frmulating these rights and their concordance with standards c>f international law. The Yt1goslav Constitt1tion regulates the righLli of national minorities i11 accordance with the standards f the CS{:E (()SCE). H,vever, the c11se-

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qt1cnces of general inconsistency of domestic legal order are reflected i11 this field as well. The lack of coordination of the constitutions and regulations of the republics with those on the federal level reduces the effects of satisfactor}' formulation of the rights f national minffers the greatest challenge to the field of human rights today. The concept of ht1man right~ is one of the few moral \1sions ascribed to internationally. Althot1gh its scope is not universally agreed upon, it strikes deep chords of response among ma11y. Promotion f htaman rights is a widely accepted goal and thtas prre female foetuses at rates as high as 99 per cent in Bomba}', India; in China and India, the two most populotts nations, more males than females are born even though natural birth ratios would produce more fem ales. 3 • During childhood. The World Health Organization reports that in many countries, girls are fed less, breastfed for shorter periods of time, taken to doctors less frequently, and die or are physically and mentally maimed by malnutrition at higher rates than boys. 4 • In adulthood. The denial of women's rights to control their bodies in reprodt1ction threatens women's lives, especially where this is combined with poverty and poor health services. In Latin America, complications from illegal abortions are the leading cat1se of death for women between the ages of fifteen and thirty-nine. 5 Sex discrimi11ation kills women daily. , \\i'hen combined with race, class and other forms of oppression, it constitt1tes a deadly denial of women's right to life and liberty on a large scale throughout the world. The most pervasive \10lation offemales is \iole11ce against women in all its manifestations, from wife battery, incest and rape, to dowry deaths, 6 genital mutilation 7 and female sext1al slavery. These abt1ses occur in e,,ery cot1ntry and are found in the hrnc and in the workplace, on streets, on ca111pt1ses, and in prisons a11d

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refugee camps. They cross class, race, age and national lines; and at the same time, the forms this violence takes often reinforce other oppressions such as racism, 'able-bodyism • and imperialism. Case in point: in order to feed their families, poor women in brothels around US military bases in places like the Philippines bear the burden of sexual, racial and national imperialism in repeated and often brutal violation of their bodies. Even a short review of random statistics reveals that the extent of \'iolence against women globally is staggering: • In the United States, battery is the leading cause of injury to adult women, and a rape is committed every six minutes.8 • In Peru, 70 per cent of all crimes reported to police involve women who are beaten by their partners; and in Lima (a city of seven million people) , 168,970 rapes were reported in 1987 alone.9 • In India, eight out of ten wives are victims of violence, either domestic battery, dowry-related abuse, or, among the least fortunate, murder. 10 • In France, 95 per cent of the victims of violence are women; 51 per cent at the hands of a spouse or lover. Similar statistics from places as diverse as Bangladesh, Canada, Kenya and Thailand demonstrate that more than 50 per cent of female homicides were committed by family members. 11 Where recorded, domestic battery figures range from 40 per cent to 80 per cent of women beaten, ust1ally repeatedly, indicating that the home is the n1ost dangerous place for women and frequently the site of cruelty and tortt1re. As the Carol Stuart mt1rder in Boston demonstrated, sexist and racist attitudes in the United States often cover up the real threat to women; a women is mt1rdered in Massachusett~ by a ht1sband or lover every twenty-two days. 12 Such numbers do not reflect the full extent of the problem of viole11ce against women, much of which remains hidden. Yet rather than receiving recognition as a m~jor world conflict, this violence is accepted as normal or e,·en dismi~d as an indi,idual or cultural matter. Georgina Ashworth not.es that: The greatest restriction of liberty, dignity and movement and at the same ti1ne, direct ,·iolation llf the person is the threat and realization of viole11cc . .. Howe, er ,·iolence agai11st the fem,1le sex. on a scale which far exceeds the list of Amnesty International ,ictims, is tolerated ptablicly; indeed sotne acts of ,·iolation are not crirnes in law, others are legitimized by ct1stnl r Ct1rt f ,,•0111e11 "'·ith regard t 'second generation• huma11 rights such as the rigl1ts lc.>d. shelter. health care and employment. This is an approacl1 favo11rt~d b~· tl1c>se \\'h see tl1e dominant Western huma11 rights traditiJl «tnd i11terr1,t1ior1al law as too individ11alistic and identif)' Wrnen •s pprcssin as prin1arily eco11tnic. This ter1 l1,l\'C 1011g argtaed tl1,tt plitic:,tl l111m;:111 rights are me,1ni11gless to ma11y withc>llt ecc>no111ic rights as well. It foct1scs 011 tl1c prirnacy of· tl1e need to end W(>rnen 's en-rg,t11i1t·d labo11r. 1\nclther foct1s f this ,lJ>Jlrc>acl1 }1,ts bet·n l1igt1ligl1ti11g tl1e ft·111inizatin ()f p,·cr~· or ,vhat might ht.. tter l>e callt·cl tl1e i11crt.~cn1t· stric·tly fttt fern ales 110\\' c.cl111prise a l1igl1er percentage of the J>< )()r. l.ki11g at ,,.111nc.>111ic de,·t•lc>prnent

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is another example of this approach. Third World peoples have called for an t1nderstanding of socioeconomic development as a human rights issue. Within this demand, some have sought to integrate women's rights into development and have examined women's specific needs in relation to areas like land ownership or access to credit. Among those working on women in development, there is growing interest in violence against women as both a health and development issue. If violence is seen as having negative consequences for social productivity, it may get more attention. This type of narrow economic measure, however, shot1ld not determine whether such violence is seen as a human rights concern. Violence as a development issue is linked to the need to understand development not just as an economic issue but also as a question of empowerment and human growth. One of the limitations of this second approach has been its tendency to reduce women's needs to the economic sphere which implies that women's rights will follow automatically with Third World development, which may involve socialism. This has not proven to be the case. Many working from this approach are no longer trying t(l add women into either the Western capitalist or socialist development models, but rather seek a transformative development process that links women's political, economic and cultural empowerment. 3. !\'omens Rights and th, La1v. The creation of new legal mechanisms to counter sex discrimination characterizes the third approach to women's rights as human rights. These efforts seek to make existing legal and political institutions work for women and to expand the state's responsibility for the violation of women's h11man rights. National and local laws ,vl1ich address sex discrimination and violence against wome11 are examples of this approach. These measures allow women to fight for their rights within the legal S)'Stem. The primary international illustration is the Convention on the Eliminatio11 ot· All Forms of Discrimination Against Women. 21 The Convention has been described as 'essentially an international bill of rights for women and a framework for women's participation in the de, elopment process ... [which] spells ot1t internationally accepted pri11ciples and standards for achieving eqt1ality between women and men' .242 Adpted by the UN General Assembly in 1979, the Con\·ention has been ratified or acceded to by I 04 countries as of.January 1990. In tl1eory these cou11tries are obligated to pursue policies in accordance with it and to report 011 their compliance to the Committee on the Elimination of Discrimination Against Women (CEDAW). While the Convention addresses manv isstaes of sex discrimination, c>ne of its shortcomings is failure to directly address tt1e qtaestion of ,iolence agair1st women. CEDAW passed a resol11tion at its eighth St·ssion in Vienr1a i,1 l 98~} expressing concern that this iss11e be on it~ agenda and i11structing states to include in their periodic reports information abllt statistics, legisl~ttir the Convention also interprets the isstae f ,·ilence agc1i11st Wmen as 'clc~trl~· f1.1r1da1ne11tal to the spirit f tl1c 1

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Convention·, especially in Article 5 which calls for the modification of social and cultural patterns, sex roles and stereotyping that are based on the idea of the inferiority or the superiority of either sex. 24 The Convention outlines a clear human rights agenda for Wmen which, if accepted by governments, would mark an enormous step forward. It also carries the limitations of all such international documents in that there is little power to demand its implementation. Within the United Nations, it is not generally regarded as a con,·ention with teeth, as illustrated by the diffict1lty that CEDAW has had in getting countries to report on compliance with its pro,,isions. Further, it is still treated by governments and most nongovernmental organizations as a doctament dealing with women's (read, ·secondary·) rights, not htiman right4i. Nn·ertheless, it is a useful statement f principles e11dorsed h}' the United Natio11s arottnd which women can organize to achie,·e legal and plitical cl1ange in tJ1eir regions. 4. femi,iist Tran.sfonnati,ni of Human Rights. Transforming the human rights concept from a feminist perspecti,,e. Sf women, ht1man rights are affected by the entire society's traditional perception of what is proper or not proper for women. ' 25 Similarly, a panel at the 1990 lnterr1atio11al \\'01nen 's Rigl1L~ Action Watch conference asserted that 'Viole11cc ,-\gai11st \\'omen is a Ht1man Rights Issue'. \\1lile work in the tJ1ree previf ,1 hride as st1icidt• c>r a11 ar c·c,llefli,·ial rt·c·c,rrls fc>r 1987 slt\\"t•d I. 7H6 dt>\\1·y dt~atlts i11 l11dia alcntt'.. St·t' I lt·isc.~. 11tt· :l atx,,·c·. :1. i . Fc,r a11 i11-tl1 t·xa111i11atic>11 c,f tl1t· t>rac·tic·c· c,f fe:·n1alt' 11 : .-\ ( :ritic·al .-\1>1>rais.tl ·• 1111 ,,,,, n lfiKht., Q11,1rtn~v 1() ( 1~~~ ). 4'.l!J. 8. ( :. F.,·c·rt'lt KcH>p. ~1.1) .. '\'ic,le11c·t,• :\~ai11st \-\'c,n1c·11: .-\ (~ll,l>al t>rtlhlt·1n •• prt·se11t.1ticlll l1,· tl1t· St1rgt·c,11 ( ~t·11c.-ral 11i, a dt· l .l11a \ 'ic,lacit)ll PrVt'. '.\ . 15. Rai11t' Ei!'ilt·r. ' Ht1111an Rigl1ts: T,lward an l11tt·gralt~d Tl1t·t>r,· fc>r :\(·tio11 ·. Human lli~ht, Q!111rtrrl_\· ~I ( I ~)Hi) . ~Ji. S4..·t· alS :\Iida Brill . •\ .,)00(/_V :S Bu.'ii 11rt\: '/ "hr l'nrrutoxt's of·Prit•n0· (~c,,· 't'i,rk: ,\clclisc,n-\\'t·!'ilt·\', 1~~1()). 1(i . !:i!'ilc·r, 11le I :1 al>Vt' . ~~11. 1i. S.111clra ( :c,li,·t' r. ·t ·11itecl ~atic,11s \-fac·l1int·ric·-. c>11 \\:c,n1c.·11 's Rights: H,1,\· !\-fight Tilt'\" Bc.·ttc·r Ht·l1> \\~c,111c11 \\11st· Rigl11s .-\ rt· l\t•i11g \ 'ic,l.ttt·cl?'. i11 F.llt'11 l .. l.titz, lltirst lla1111t1n1 ar1cl ~ttl1ry11 .J. Bt1rkt'. t'OS., .\·no /J1rrrtio11s i11 Hu111,1n Ril{hl.'i (Pl1ilactelphia: U11iv. of Pe11n . Press. I ~•H~f). I H. \ ·larijkc: \1rt tc, ~(~() Fc,1 u111. Nairc,t)i, Kt·11ya. l~IH:1 ana11t·I. .-\n111t·sty l11tt·r11atit111al ~t·,,· \'c,rk Rc·gic,nal ( :c>11ft:rt·11 r t·. 14 1-' eh. 1~~tf). ~I . ( :c,11vt·11ti,,11 c>n 1t1c· llin1in.aticu1 c,f .-\11 Fc,rn1s,,f Discri111i11atic,n .\gai11st \\'t>n1c..·11, (; ..-\. Rc·s. '.~4 ./ 18(), t ·.~- Dc,r. :\ / Rt·s/ '. \4 _:' 18() ( 1~)8()). !!!!. l11tc.-r11a1icu1al \\'c,111,·11 ·s Ri~l1ts .- \rtic111 \\'.11ct1 , ··rt1t' ( :,,nve11t.icn1 11 tilt' Eli111i11atic,n f :\II Fc,r1r1s ,,f l)iscrin1i11a1ic,11 ..\~ai11!'il \\',,n1t'11 · ( ~finnt•;11)lis: ll111111>l1rc·,· l11stitt1tt· lic .-\flair-'. 1~188) . I . ~:\ . ( :t-:l).-\\\' ~c·,,·sll'ttc·r. '.\rel l.,•Hlt' ( l '.l .-\1>r. l ~~H~f). ~ (s11111111ar~· L: -~. Reprt 11 tht' F.igl11l1 Sc·s,icu1. l '.1'. l>,,t . •\ _! 44 : :\H. 14 .-\J>ril l~lH~l) . 24. ( :111111c111,\·t·altl1 Serrc·tarial. ·1·11c· ( :c)11,·t·11tic>11 ,,n tlit.· t-:li111i11atic,n f .-\11 1-·,lr111s c>f l)iscri111i11atill .-\gai11st \\"11n1c.·11 in tht· Rt·1>c11ti11g ('rc>cc.·,s - ,-\ \-1a1111al fc,r ( :c1n1n1c>rl\\'t·alth .Jt1risclit'tic>11s·. l .,,n,lc,n . l~tH~•~:-1 . SfJt·ec h gi,·t·11 hy '.\;i11c,tchka R«l'•t·a at :\1l1nt.·sty l111c.•r11ati,,11al ~ew 't'c>rk Regittal ( :nfert·11re. ~-l Fl'h. 1~•~tr1,clt1Clence. B,;gar1dage, banditry. pira~· and l>ld-fet1ds ,vc~.-t~ al\\·a,·s cm n1011. a11d in n1c>st states local \\'arlords retained • a goc>d dectl f indeJ>t~11dt•nt militar}' power. f\.1c,rec>\'er, the power of the political c:entre dt·per1dcrl i11 a fairl}· imtnediatt~ way 011 tl1e threat of ,iolence. Pre-111l1ght b)' modern society. whether in the speed of \'c-hicles r in the use of dried Sl1ps. is concretely translated fc,r tl1e J>t1ght and sold, co11ct',tls the e\'er-increasing complexity by \\'t1ict1 the ctltraclictins of time, prr>dt1ction and consumption r11t1ltipl)·· Ht"lt(·e is it pssible to t1ndert,1kt.· a st11ciy h}' which the three dimensic,ns of tin1e live and cJit_• befre a11d aftt•r the\' li\·e and die in consumer s,,c-it•tv? Wl1at 8

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disappear for the consumer, a phenomenological advertisement, which shrouds the laws by which time is made to appear consumable and nonconsumable? Likewise what is the time of consumer society when it purports to absorb time into the fractured cyclicality of reproduction and return: the reproduction of the end of history and the return of history of the 'end' both of which inflect themselves within the still time of eternal consumption? The end has arrived in so far as its image is postponed continually within the consumption of every image: consumer society as the highest realization of the Absolute Spirit of History in so far as the presma of the deferral of the end of society terminates itself, while deferring the end of the end - the end of time is infinite, the infinite reprise of the finite. The present is never itself present in consumer society, only the anticipated future which arrives before anticipation. Hence an imaginary future takes the place of the future imagined as the future of a present, a continual return of futures which is substituted for the eclipsed present lost among circulated futures that are consumed; consumer society is its future, which means that it is always already there even before it attempts to arrive at itself. That being the case, the strange creature that it is, what is the time of consumption and the consumption of time? On the one hand, time is desired as a commodity that should not be consumed, a reserve, which, paradoxically, will be used as the most consumable commodity within the time of consumption. For with ideological time accumulated as a surplus interval in which the time of labour appears to shrink, fetishized time is deferred to an ever closer future where time can be consumed, thus concealing the simultaneous expansion of production time required for time to appear reserved in the present. Every present divides itself into the necessary time by which consumption is deferred only to promise the consumption of what appears to be empty, unnecessary time. However, the distinction between necessary and unnecessary time is already the effect of consumer time and the cause of consumer society which perpetrates the distinction with respect to production and consumption. But what happens when the distinction confuses itself precisely when consumer society crosses both necessary and unnecessary time in the image of consumption and the shadow of production (and vice-versa) to determine the necessary font by which its regulations can be normalized and its ends realized? If indeed time is desired as a non-co11sumable necessity within the present deferral of the desired time of unnecessary consumption which is anticipated, then the structure of desire in consumer society is a time between present and future, necessity and contingency, prodt1ction and const1mption. Desired time is an interval, a pocket, a void of time betwixt the future event of consuming unnecessary time and the present event of desiring nonconsumable necessary time; the prest1pposition of ·desired time' before and after it is consumed. Modern consumer society is the contradiction of time lost and ti111e regained within the image of const1mption by which the question of ti111t•'s \·alt1e is prest1pposed. But if consumption itself is the image of timt· 's

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de,ralt1ation, then what is the time of the condition by which tirne is crk of consu1ner time by which society meast1res its virtt1al diachronic progress, a fetishization of time in the imagi11ed completion of a C}'Cle of consu111ption. Time moves on in const1mer society when co11sumption repeats the destruction of its origin. (:onsuming the origin of consumption itself guarantees the eternal presence f the consumption of time against the potential vicissitudes of a time of society witt1ot1t consurnption. Ne> time for time i11 consu111er society and to much time for its gluttonot1s anticipation. If a non-c:nsumable thery t)f historical tirne is both the hope and the impossibility for co11st1mer society to meast1re a time before and after const1mption, then it is a theory based on the contradictic>n not betwee11 past and present, bt1t betwee11 const1mpti,·e and non-consumptive time in relation to the 1nutable laws of the contradictio11s of consumer societv. , Baudrillard states. Tl1e entire discot1rse 011 consumption aims to tra.11sfc>rn1 the const1mer into the L'.11i,·ersal Being, the gener.tl. ideal, and fi11al incar11ation of the human specit"s. It atten1pts also to 111ake f co11st1111ptible111s. "The co11st1n1er is tl1t· hegi1111i11g and e11d c,f l1ist(>rtc,tl tin1e i11 the age f consumption; he rc~,·erses tl1e order by ,vhich the •history· of historical tin1e itself is t1r1derstood. For the r,rigi11 of the const1mer hi1nself is embroiled in a drearned tip histry, a cc>11cctio11 f a11 u11formed beginning of capital i11scribect forever in its fir1al end ,vithi11 the history of ·endings'. which ·coinciclerlt,tlly' correspnds tr> the dominant i1nage of the 'end of history' at the st>-c:allecl e11cl f Hist,,rv: and the ends ot· . tl1e consu111er is the end of l1istc>rv. , histor)', the targc"t c>f l1istor)', who const11ncs tl1e in1age of history's end. He11c:e t speak of tl1e t1istf}' rical tirne. Is it possible tl1at the co11su111er, if co11sidt--rt•d the e11d and ends of l1istorv, is the threshold of ' a tl1ef)' f histc>ric,tl tin1t· ,vhSt' i111age c·o11sists f tl1e plymorphus

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intersection of the three dimensions of time in its very consumption and not the asymmetrical prioritization of one dimension in its imagined and dissolved presence: the present that inherits the past to deliver the future? How is historical time consumed in 'age• when historical time is no longer one of the succession of ages, the successive consumption of ages? Or is the notion end' an alienated concept, which only indicates the origin of a great return of time, a revitalized form of virtual history, of which the Consumer marks the first epoch in the grand market of consumable things? The consumer is the site of the question of history in so far as he 'revives' the historicity of how history is produced and consumed. The time of consumption appears to be a time lost within the possibility of measuring finitude in terms of continuous, linear historical time; the consumptive time of finitude leaves behind the remains of the concepts of origin and death after the event of their const1mption. What remains after the consumption of death is not oblivion; historical time for the consumer creates the void of a present (consumes the present) first and then fills it with a nonconsumable past (previous deferral of wasted time which returns and remains as non-cons11mable) instead of const1ming the past in creating an absence which is then represented in the present, i.e. the consumable commodity of historical knowledge. Hence historical time is reversed in consumer society in so far as the present is already past in being consumed, while the past was never present in being non-consumable. To speak of transformation in history is to speak of the conditions by which the transformative process of consumption reconstitutes differing intervals of historicity within what appears a synchronic domain of consumer society; here change is impossible precisely because its possibility is recycled endlessly. The paradox of consumer society as synchronic is not based on the fact that the eternity of the universal gem of liberated, endless desire has bee11 uncovered beneath the dross of Man's search for his essence of history. Rather, the contradiction of const1mer time is the 'historical' coincidence of the concept of the end of history and the continuot1s possibility of the proliferation of the image of the end within a 'historically' finite str11cture: consumer society presents itself as its \'ery history within e\·ery instant of its apparent synchrony. Hence to think the relation between history and const1mer society is to think again the question of time and histor}· when histor}' is forced to account for the conditions of its appearance, which means the conditions of its prodttctions, from an indeterminate origin that is never ,1 const1mable present within historical time. Cons11mer society liberates tht• possibility of thinking again how history happens as such precisely becatist· the object by which history is localized - the past - can be mistake11 for the referent from where it is received - the prese11t. Concomitantly, pasts are invented thus liquidating the ground of a present within history. As a res11lt. if the past happer1s in the present. and the present passes but not into tl1e past, then history is the logic of transferable regimes of ternporalit}' wl1n retains exclusive a11thority in 'legislation. adjudication, policy execution· and 'responsibility for the exercise of these powers in conformity with inter11ational law', which tl1e US and Israel interpret as they plea..~e. The mea11i11g, as the knowledgeable Israeli analyst ~1eron Benvenisti observed after Cairo, is that 'tt1e entire intricate system of 1nilitar)' rdinances ... will retain its force, apart frorn ..such legislative regulatory and other powers Israel may expressly grant"' to the Palcsti11ians, while Israeli jttdges retain ·veto po\vers \'er any Palestinian legislatio11 ..that might jeop,trdize major Israeli i11terest~ "', which t1ave 'overriding power' (his q11otes are frorn the text of the (~airo agreeme11t). C>slo II stipulates further that the Palestinian (:ouncil that is to be elected mt1st recognize the ·1egal rights of Israelis related to Governrnent and ,\bsentee la11d located in are,1s ttnder the territorial jurisdiction of the Cou11cil'. In effect, the PA therefore acceJlts the legality of already existing Jewish settler11ent., and an}' further nes that Israel may choose to construct. ar1cl rec11g with recognition of· the legality of whatever Israel and its spor1sr have done and may choose to do. There ha~ been anc>ther cha11ge fro111 1988: at Oslo, Rabin and Shimo11 Peres were willing to 11egotiate with the PLO and recognize it as 'the rcprt·sentative of tl1e Palesti11ian people', at least in a side letter tt1ot1gl1 nt in the official agret~ment. In 1988, they had flatly reft1sed any dealings with tl1t· PLO. That transfrmation ha'i evn control by client forces. That trend proceeds, Middle East correspondent Graham Usher adds, alongside 'the repressi,·e Israeli regime of containment that since Oslo [I] has killed 255 Palesti11ians in the West Bank and Gaza, while attacks b,,, Palestinia11s have claimed 137 Israelis' (to mid1995). and has arrested 24()() Palestinians 'for alleged ..Islamist tendencies" between October 1994 and Jan11ary 1995• alone." The ratio of Palestinians to Israelis killed has declined since Oslo I, a te11dencv, described in Israel a11d the West as an increase in Palestinian terror~ not false, but not quite the whole story either. even more so if we bring in the suppressed topic of international terrorism in Lebanon. US-Israeli intentions to maintain those terrorist operations were made explicit the day that Shimon Peres asstamed his duties as prime minister. 'Peres Sets Tone of Post-Rabin Era'. a front-page 1Vew Yorlr Times headli11e read, introdt1cing a report that 'Israeli v.rarplanes shrieked o,·er Lebanon' and 'potanded the bases of radical Palestinian gt1errillas sc>uth of Beirut·. This is well bevond the 'sectarin: zone' that Israel rtans in south Lebanon with the aid ' fa terrorist mercer1arv, force, in violation of the demand of the UN Sec11rin·. (_:ot1ncil in ~1arch 1978 that it witl1draw immediate)}· and unconditionall~·Peres won onl}' praise tor this den1onstration of his intention 't(l ass11me rvtr Rabin's soldier's rnantle ,ls the scot1rge of Arabs who reject lsrc1el,s offer of peace'. The adjacent column condemned the 'desperate act, a horrible act, t.l1e work of cowarcls', whe11 terrorists attacked a US-run n1ilitary training c·entre in Ri}•ad}1, Saudi Arabia, the same da} Two weeks later, Hizbollah fired rockets into nortl1ern Israel, wotanding se,·eral ci\1lians, an act of terrorism that it clescribt~d as a 'warni11g response' to 'Israel's continuing aggressions', includi11g the demolition of l1omes by tl1e Israeli Army in Lebanon and the Israeli Na\'y's cc,ntint1ing ref11sal to allow l..ebanese fishermen to fisl1 off the l.eb,lnese Cuncil of West Bank settlers and editor of its extren1ist news-paper ,Vrkudnh. agrees with Sha.ron and the governing Labot1r Party: 'If the)· keep t tl1e curre11t plan, I can live with it', he says. Prime Minister Peres's right-l1and man. lAbour dove Yossi Beilin, explains that the Oslo II agreement '\\•as delayed for n1onths in order to gtaarantee that all the settlements would rernain intact and that the settlers ,vould have maximum securit,·. This e11tailed an immense financial investn1ent. The situation in the settle1ne11ts was r1e,,er better than that which wa.~ created following the Oslo II agreeme11t. • In his report on Oslo II to the Knesset, Rabin outlined 'the rnain changes. nc>t all f them, which we en,risin and want in the permanent solution·. In accord with these primar}· demands. hardl)' likely to be st1bject to negotiation, Greater Israel is l(> incrpor,,te 't111ited Jerusalem. which will incltade bc>th Ma'ale Adumim [a town to it~ cast] ,tnd Gi,•'at Ze'e,· [a suburb to it~ north] '; the .Jrdan Valley; 'bloc:s of settlements i11 Jt1dea and Samaria like the 11e in Gush Katif [ the sc,uther11 sectr of (;aza that Israel retains surrounding its settler11ents] '. These blocs are to i11clt1de 'Gt1sh Etzion. Efrat, Beitar and other commt1nities' in the West B,111k. The press reported that Ma'ale ,\dumim will be anr1ext~lishes cc)11tigt1ity between the twc> urban areas.i 'fhc meani11g of the 'r>eat·e of the ,·ictrs' has been spelled ot1t acctaratel)· in tl1e Hebrew press in Israel . Tel Aviv l J11i,,ersil)· Proft..ssor Tanya Reinhart hserverl after tl1c (:airo ,tgreernent that the arrange1ner1ts beir1g impsed sl1t1ld 11t be cc,rnpart•d witl1 tht~ t·nd c>f apartheid ir1 Sot1th Africa; rather, witt1 tl1e i11Jtit11ti,>11 f tl1at s~·stt~m. \\1th its 'home rt1le' pr£>\'isior1s for new ' i11dependt~r1t statc.·s·. ,ts tl1e~· were ,1e\\·cd by Sot1th African whites and their friends. Tl1t~ a11,tl)·sis, since rt·iterated h}· Ber1ver1isti and others. is qtaite reasc-,11al>le. P ,.\vi11eri pints tit th,tt 'In one se11se [Osl(-, II] is a 111~jr Arafat•, wh 'l1as clor1t· a rel.1ti,·c·I)· gcl jc1b gi,·i11g tt1c irnpc>ssible circt1111sta11ces tinder \,·l1ic·l1 he is \\'rking'. ·r11at is almst nstrt1ctt·ct tel fragment tl1c

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THE POLITIC:S OF HllMAN RIGHTS

region ft1rther into 'cantons', as they are called in the programmes of the t1ltra-right now being implemented. The new roads link the territories under Israeli control so that settlers can travel freely without having to see the Arab \'illages scattered in the hills, or the municipal areas run by the PA. (~onstruction of Israeli settlements, housing and infrastructure has accelerated since Oslo I was signed in September 1993. using funds pro,ided b)' the US taxpayer with the agreement of the Bush and partict1larly the Clinton administrations. The g\·ernment of Israel continues to pro,ide inducements t Jews to settle in the territories. where they enjoy a subsidized lifestyle well beyond tl1e reach of the general population; most recently, new efforts to encourage settlement in lands co11fiscated from Bedouins in ~1a'ale Adun1im, where a new bypass road was opened on October 23, 1995 and 6000 new housi11g units are to be erected by the year 2005 along with 2400 new hotel roon1s. its population projected to grow to 50,000. 8t1ilding starts increased by o,·er 40 per cent fron1 1993 to 1995 (not including East Jert1salen1), according to a report by Peace Now issued on October 10. thot1gh the)· are still well below 1992 levels. 11 The same conception, Israel Shahak observes. has been in1plemented in {;aza, 'sliced into e11cla,,es cc>ntrolled by the bypass roads [that] cttt the Gaza Strip i11 two, in its strategically most sensitive spot: between Gau to\\n and tl1e big reft1gee camps to the south of it'. The settlements 'serve as pivots of the road grid devised t er1st1re Israeli control' O\'er the areas granted 'autonomy', ,vhich are separated from Eg)·pt and from each other. In both Gaza and the West Bank, these arrangements allow Israel to co11tinue to imprison the population in whole or i11 part by road and area closures, as it has often done, sornetimes for 1011g periods. The motive for curfew-clost1re rnay be pt1nishment, or to deter possible terrrist action (particularl)', after some Israeli atrocity. or for several weeks dt1ring the signing of Oslo II). Or sin1pl}r to liberate Jewish citizens from the annO}'ing presence f tl1e locals, as when the Arab popt1latio11 of Hebron was locked tlp tinder twe11ty-fur-hot1r ct1rfew for four days during the Pa~,,er holidays in 1995 so tl1at settlers and 35,000 Jewish ,isitors brot1ght there i11 (·hartered bt1ses cot1ld ha,·e picnics and travel around the city freely, dancing in the street~ with pt1blic prayers to bri11g dow11 'the go,,ernment of the Left'. la}ing the cor11erstone for a r1ew resider1tial building, and indt1lging in other JJleast1res tinder the protective gaze of extra military forces, using tl1e opportt1r1it)' 'to i11sult the Palestini,t11s in1prisoned in their hot1ses and to thro\\· st11es at them if tl1ey dared to peek ottt of the \\indows at the Jews celebrati11g ir1 tl1eir city,· a11d fi11ally bringing the celebration to a close 'by settlers r,tn1pagi11g tl1rt1gl1 the Old (:it~·. clcstro}·i11g property, and smashing car windc>,vs ... in a city 111a~ic,1ll}· ries had 'devastated tl1e Palestinian eco11om,, and destroved 100,000 , 1

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families in Gaza alone', journalist Nadav Ha'etzni reported in May 1995, a •trauma' that can only be compared with the mass dispossession and expulsion of Palestinians in 1948, he added. The situation is likely to deteriorate as imported semi-slave labour displaces the Palestinian workforce from the only employment that had been allowed them. In such ways, •the Oslo Accords have created a truly new Middle East', Ha'etzni writes. 15 The rights of Palestinian workers in the 'new Middle East' were spelled out in a May 1995 ruling by Justice Y. Bazak of the Jerusalem District Court, rejecting a lawsuit brought by the workers' rights gro11p Kav La'Oved ('Worker's Hotline', Tel Aviv). The plaintiffs had requested restitution of SI billion withheld from salaries for social benefits that Palestinian workers had never received (pensions, unemployment payments and so on); the f11nds ended up in the state treasury. The co11rt dismissed the case, accepting the government's argument that Knesset legislation to implement the Oslo I accords retroactivel}' legalized the robbery, thus removing any legal basis for the suit. The court also accepted the government's argument that Israel's National Insurance Law grants rights only to residents of Israel. The deductions were never intended to ensure equal rights for the Palestinian workers, Justice Bazak ruled, but were designed to keep wages for Palesti11ians high on paper but low in reality, thus protecting Israeli workers from unfair competition by cheap Palestinian labour. This is •a worthy and reasonable p11rpose which is recognized by the Court' ,J11stice Bazak explained, •j11st as the legality of imposing customs taxes is recognized for the purpose of protecting the country's products .. .' One can see why the Israeli judicial system must retain veto power over any legislation that the Palestinian authorities might contemplate; and why American taxpayers m11st be kept in the dark about the use of the huge s11bsidies they pro,ride to Israel. These s11bsidies, incidentall}', are opposed by the public e\·en more tha11 most foreign aid, and are the one component that is immune from the sharp reductions now being instit11ted in the miserly US programme, an international scandal and virtually invisible if Israel and other US Middle East interests are excl11ded. It i11cludes, for example, twenty-five of 'the most sophisticated fighter-bombers in the world', the British press reports, a deal that 'slid through Congress with no objections b}· legislators and virt11ally n comment in the American media'. This is 'the first time stach highperformance rnilitary equipment has been sold unrestricted and unamended abroad since the Second World War' (•sold' means funded by US military aid), a 'decisive enhancement of Israel's military capabilities, giving it the power to strike at potentially dangerous nations far beyond its borders: Iran, Iraq, Algeria, and Libya for example.' The US 'appears to be reappointing Israel as local deputy sheriff, a role whicl1 ended with tl1e disappcarartce f the c is omitted. Not a word is said about water rights for the Palestinians, nor abol1t giving the1n a role in managing the waters of the Jordan ,·alley. · 'Palestinians are not even party to the negotiations', Brooke observes: 'Their omi~ion is staggering gi,·en that most of the Lower Jordan Ri\·er (from Kinneret to the Dead Sea) forn1s the bc>rder between .Jordan and what is likely in the near ft1tt1re to be Palestir1ian, nc>t Israeli, territory.' 19 His basic point is correct, but the omission beco111es less staggering wl1e11 we depart from the rhetoric abot1t wl1at lies down the road a11d atte11d to its factual basis: specifically. to the fact that Israel has always made very clear its intention to retain the _Jordan \'alley within Greater Israel. S tl1at Palf t111rest in the ,.\.r ab W111e st1reds of his ,vaning ~tt1thorit}· l>)' becomi11g an agent f tl1e pwt~rful, t1as l1elpecl tf sectalar 1\rab nati11,llism a11d the disarr,ty of the Sota th general I)'). ()11e nt,tble (.·c,r1scqt1e11ce f tl1is stacct·ss is 'tl1e real peace di,,ide11d ft>r Israel', as the l·ir,// .~trr,-t]r>11r11r l ; K sl1ippi11g ('111 pa11~·). · Israel \\ill look back on 1~)95 as the year wl1t·11 ir1tc·r11,1ti(>11al ti11,1r1ce and bt1sir1ess clisc,·ert~d its thri,·ing ecc,non1~··. tl1e f 'i11portion he accepted on the Da)' of Awe. As for what is 'undeniable• and 'irreversible·. readers can make their o,.,n g11esses, recognizing that these are spect1lations lacking any serious factual b,tsis. Those who 'know' that Rabin ·s course wot1ld lead to an authentic Palestinian state, not ·a Palestinian Bantustan '. might want to explain wh)' they dismiss out of hand not all relevant facts. but also tJ1e explicit state• men ts of the leadership, not onl)' Rabin, but also Shimon Peres, even more of a 'visio11ary dove· than Rabin. Explaining the Oslo II accords to a gather• i11g f arnbassadors in Jert1salen1, Peres responded to the question whether the permanent settlement could involve~• Palestinian state by making it cr)'Stal clear tl1at 'this solt1tior1 abo11t which everyone is thinking and which is what you want will never happe11 •. Two weeks before, journalist An1non Barzilai reports f11rther in Ha 'ar,tz., Peres responded with a resc>unding 'No' ,vhen asked at a meeting with the editorial board of NnvsrlH!l'k whether a Palestinian state might be the eventual 011tco1ne. He proceeded with a 'learned explanation', whicl1, howe,·er, was ne,·er completed, because the ,·crdict in the 0. J. Simpson trial was j11st then broadcast so that the meeting had to stop, ar1d af't erwards the 1Vn,1s11.,eek editors were 'too excited about the Vt"rdict' to ret11rr1 to his thot1ght~. 2:1 Part of tl1e st,tnd~trd stor)' is inciecd trt1t·. \\'t.· sht1ld ·score One f(>r

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Clinton' and observe what happened with Awe. The scale of the victory can only be appreciated by reviewing the history, almost totally suppressed in the US - and, quite interestingly, by now largely forgotten abroad, not only in Europe but in Latin America and elsewhere. The facts are not in dispute, and need not be re\iewed here once again. In brief, from 1967 to 1971 the US led the international consensus in support of a diplomatic settlement based on UN 242, which it understood as implying full peace in rett1rn for full Israeli withdrawal from the territories occupied in 1967 (with perhaps minor and mutual modifications). When President Sadat of Egypt accepted these terms in February 1971 in what Rabin describes in his memoirs as a 'famous ... milestone' on the road to peace, the US had to decide whether to keep to the policy it had crafted or join its Israeli ally in rejecting it. Kissinger insisted on 'stalemate' - no negotiations, only force - and won out in the internal conflict, setting the US on a lonely path as leader of the rejectionist camp, not only ignoring Palestinian rights (as did UN 242 and Sadat's offer as well) but also rejecting one of the two paired requirements of UN 242: Israeli withdrawal. US isolation deepened a few years later as the international consensus shifted to support for a two-state settlement incorporating the wording of UN 242, compelling Washington to veto Security Council resolutions, vote alone annually at the General A.~sembly (with Israel, and occasionally some other client state), and block all other diplomatic initiatives, a task that became increasingly complex from the early 1980s as the PLO more forceftilly called for negotiations leading to mutual accommodation, but was handled with ease, thanks to the services of 26 the intellectual communitv. , It was not until the Gulf War established 'What We Say Goes', in George Bush's words, that the US was able to initiate the Madrid negotiations, an authentic 'peace process' becat1se it was unilaterally run by Washington and restricted to its extremist agenda. The establishment of Washington's r~jectionist stand in Oslo I, and its affirmation in Oslo II, is an impressi,·e achie\·ement. The character of the trit1mph is revealed in a different way when we con1pare the reaction to the Rabin assassination with other cases, the n1ost obviot1s one being the assassination of Abu Jihad (Khalil al-Wazir) b)' Israeli commandos in Tunis in April 1988. This act of international terrorism was probably intended mostly for morale-building in Israel at the height of the popular uprising (Intifada), which Israel was then t1nable to st1ppress, despite considerable brtitality. On little credible e\idence, Abu Jihad was charged with directing the Intifada, a claim reported as fact in the US media, which did, however, recognize that Abu Jihad was known 'as one of tl1e n1sed ·the peace process·. insisting on somethi11g other than a peace of the ,ictors in which the Palestinians become 'just another crushed nation·. Adopting the technical usage. we can make sense of the weird comments of Dennis Ross, chief Middle East negotiator for the Bt1sh and Clinton adn1inistrations, reported b}· Tinvs ~1iddle East specialist Elaine Sciolino. Ross describes how in March 1993 Rabin presented Cli11ton \\-1th a 'brilliant, cogent, clearuld 1101 be able to deli,·er' - to deli,1er a 11on-rejectionist settlement recogr1izing the rights of the i11digenous population alo11gside of Israel. Sciolino refrains from ,tciding. But tile PLO refused to accept Rabin •s brilliant argument: 'at that pint tile)' hadn't demo11strated the)' were prepared to make peace'. Ross ·recalled'; Sciolino's term 'recalled' implies that the recollectio11 is accurate (one doesn't ·recall' what didn't happen). as indeed it is, if 'making peace· means accepting US--lsraeli terms, r~jecting UN 242 and any thot1ght of self-determination. When we adopt tile con,,entions. Ross·s statement is trans-formed fron1 gibberish to simple truth. and Sciolino is not misleading her readers by reporting all of tllis as factually acct1rate. A little confusing perhaps. but with a proper education it all works out. 28 We might ask what the authentic mart}T for peace wa~ up to when Abt1 Jihad was assassinated - at Rabin 's ·enthusiastic' initiative. Timl!S correspondent John Kifner reported frorn Jert1salem. Then defence minister. Rabin had ordered his troops to st1ppress the Intifada by brutality and terror, and shc>rtly after, to attack ,-i llages t1si11g plastic bt1llets. because 'more casualties ... is precisely our aim·, 't1r purpose is to increase the number of [ wot1nded] amng those who take part in \iolent acti,ities •. Their ·\iolent activities· are to dare to assert that they are free, Rabin explained: ·\\1e want to get rid of the ill11sifJ11 of some pegue · with the PLO in a last-clitch effcJrt to derail tlleir increasingly irritating calls fy ·t1arsh 1nilitary a11cl economic pressure' - exactly what happe11ed, allc,wi11g the ·peace prcess' tc> rest1me 11 t·t>t1rse.:..~ I

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Plainly, Rabi11 is a martyr for peace and Abu Jihad a terrorist whle becat1se it kept t Washingtnly a few }'ears ago. and ran e\·en see that 'lsrat·I agrc~es to quit \\1est Bank· when the}' kno\\· perfect]~· \veil that nothing rt is trt1e. That is reall)· impressive, and insu·t1cti,·e . Tl1e most i1nprta11t aspect c>f a11y dc>ctrinal S}'Stern is the \\Ta)' issues are framed and presented, tl1e prt~stappositions that are insinuated to bound dis-rtassion. re111ai11ing in,•isible, beyc.>nd reflec·tic>n or analysis. In the old So,iet l l11ion, the gan1e was o\·er if the question under debate was whether tl1e Kremlin had made a mistake in its defence of Czechoslovakia a11d Afghanistan; or in Nazi Germany, if the isst1e was whether the threat f the .Jews t civilizatill had been exaggerated. In the present case, what is in1portant is the cc>nqtaest of tl1e notion 'peace process·, which mttst be deprived of its meani11g and restricted to a tc~c·l111ical t1sage tl1at ensures that the game is \·er befre it bt~gins. Tt1at has been done. \'ery effectively, not b) the exercise of a11y partirltlar skill. but by sheer power. It is by now unimaginable that the tern1 ·pe,tce prcess' Wtald refer to the effort to achieve peace. 1·c1 be Slare. that concept of 'peace process' is too broad. Everyone wants pt·ace. even Hit1er ar1d Gcngt1is Khan. The question always is: on what tern1s? t r11der \vhose direction? 111 ottr highly disciplined intellectt1al culture, the a11swer t those qt1estins is a virtual reflex: on Washington •s terms, a11d t111der its clirectin. The cc>n,'e11ti11s have t1seft1l cor1seqt1ences. One is that the phrase ' the t :s gverr1ment is tf)'i11g t ad,·a11ce tl1e pe,tce prcess· is u-ue by definitio11. ,vhate,'er Wasl1i11gton l1appe11s t be ding - say. ttndermining diplomatic effrt~ t act1ie,·e peace. Ancl tl1e phr&lSt'. 'the LIS go,,ernme11t is tryi11g to lt11cler111ine tht· pt~ace prC in the present case for twenty-five }'ears. Tt1ot1gl1 tl1ere is tlrS, 1~l5); ·1111' 1~·11d of l'nl,.\ ti 11r ( ~1in11eSta, 1~J9f'i) . N,t.~·cr Art1ri, 1n, (Jbstrurtio11 of l'rat"f' ( ( :,>1nr11n (:t1rage. I 9~J:'>) . Or1 1993--9:>, see Edward Said, P,arl' and itJ /)i\rontrnt.'i (Vi11tagt', 199:,) a11t·r. l~l~}5); 'Tltt· ·r,1ba l11terin1 Agrt'e111t·11t, 1\notl1t·r ( :apil t1latic>11 by :\raf~,1 ·, Ha 'arf't:., .J ttly fi (Sl1al1ak tra11slatio11s, Sept. 1~~}5) . Shar11, Etl1a11 Brtlllllt'r, Roston (;fobt·, ~(JV. 17; llart·I. S,·l1n1t·111a1111. ls i11 Hn ·,1,-,.r-:... l\tav I 5: .Vn, 1 ~ /ro,n \\'ithi11.Jl111t• 199:>...\IS(> :\arc,11 Rack a11l11er. st·11ir staJT 1nt-1nlx·rs c,f R"l'st·lt·111. '/'iklcun lt>.4. I~~>:'> . C~ral1a111 l lsl1t'r. ,\U-:1,. 12 ~fa\'. l~lS. St·e alSt1 ( :l,·de . l-lalx·r111a11, ,\')~/ : ~1a\'. 1-1.15. I ~~•-:e, . 1-1. S.1r~1h K.1111i11kt·r a11ci .-\S.'-11,· (:.)(>Jl. '/m.t•n Pl1111rii111( l 111,/" ,\lllita,)· ()rn1/>rauirn of \.\atn (( :c,r11t·II. l~JH7) . St1lc,111c, ..\bra111c,,·itrl1, .\ 'l,n•n >,1"1i,n. ~tarc)1 3; cditr fla11c,c h ~-fa1·111ari. Ila ·arrt:... \1arc 11 Y (S)1al1a trar1slati11s . .-\pril) ; ll;1't•t1r1i, ,\fa n,11 \la\':>. l~lY~l. I fl. 1\..4,· I ..a'( )\·t·. J:\ , 1~»5 (Shahak. 'Tra11slatic,11s. · .-\1>ril) . St·t· \\ i,,1.d (>,-,In°', l'o111t'1-s ,111d l'rosprrts, tc,r f11rtl1er det.tils. IH . .Jt1liar1 ()zar1r1t· a11cl l>a,·icl (;arcl11t·r. ,.-, ·...\t1g. H: Stt·1>l1t·11 l.a11gfl1r. ..\llt·gra Pacl1t·c.· l1t> (Sc,fSt \,·t·, ) . ( .'li,1/ln,,,-. l',;c>\'.-l}ec. (alS .\IJ-:I. :\ ~c•,·. ) ; ( :c,ht·11 , ll11 ·a ,·,t:.. ..\l1g. 21 , 1995. l~J. (>utlook (\'a11cc,11,·t·r ). ()c:1, ., Ne>\'. I~>:',. 2(). St.·t· parti11: Diplc,111a,·\· ir1 rl1t· \lil'tn-ri,,J! l>,·"1orra,)· (I-fill & \\'a11g. l~~J2 ). '.-\ftt·r,,·c,rd'; \\i>rl,I (Jrdrn. c l1ap. '.J. 22. ,\111,· l)c,rksc:r t\l.1rc11s. \\ :~/. ~,·. 2: Jl1lia11 ()1a1111t·. 1-·1: ()ct. 24. l~~l:l. ()11 tl1t· tacit allianr c· . ,t·t· n1y ..\J>ril l!>,i artiri11tc.·d ir1 '/,11,lf1rd., a .\·n,• ('.ti/,/ \\i1r ( l'a11tl1t·cH1. l~JH:!) . It is 111c>s1 illt1111i11ati11g. l>ltl ht·,·«H1ct 1l1t' sc·«>flt' t>f tl1is ctisclas..,i\\' 1t1est· fac.·rs a.rt· fi11.tll\' t·11tc·ri11g n1ai11strt'a111 sc·l11,larship. 2'.~. Rat,ir1 . i11tt·r\'it',,·../n·11.\11/rn1 /lo,/ /111,,,·11lltio11,1l 1-'..tiition. \\'t't'k c.·r1di11g ()ct. l(l. l~)'.1. l'st1rr. ,\fl·.1. l'l J,111. I~I~>:> . :!4. l>t·rc.·k Br,,,,·n . .\la11,·l,1·,1,·, (;11flrrlifl11 \\i·rk~~- lt"acl ,tc,ry. f)y, ( :.\ .\I. St. 2H: 1-:1l1a11 Brc>1111c.·r. /J(;. S..·1>1. ~H ; R.\\'. .-\1>1>lt•..\·)-/ : St·1>t. :!~J: l)a\'i: (;Jt·1111 l-' ra11kt·I. \\7>,,·t·t·kl\', . . Ne,,·. 2i-l)c·c. '. \; S1c.-1>l1t·11 He 1\\·c· . ,\ '.\', 1i N:"',. 2:>. Bar,.ilai. Ila 'flr,·t-:... ()ct. 2-1. I !1~1:>. ~tl. 1-·t,r t·cl fron1 tl1em. \\1lile \\'e do 11ot k110,,· ho\\· n1an~· p(">Ssible t111clt·rstandi11gs cc>tald be derived from a partictalar text r c:1nmt111icati(>tl, \\'t' c-a,1 n11etheless make argt1me11ts of the ki11dJ f t1ndersta11dings th,1t c·,111 l>c.· ,tc:hit--,·ed. and, in n1an~· i11stances, for t'"-'' 'if>rrijir t1nrlt'rst,111cli11gs \\·l1i 1nake st1ch argt11nt~11ts drK.. s 1101 111e,1n tl1at 1t1c.· .111,tl~·st is "i11strt1ctir1g' peple as t \\·hich meani11gs are acttaally ac-hit·,·ecl r .\11,,11/d tx· ,1t·l1ie,·ecl; aJtl1t>t1gh mt1cl1 of media ·anal}·sis' dn ,lnd Sh,1rrck, 1979). ' If. in tl1t• lc,gic- r>f tl1t· c.·x1>lic,ttin, it so l1appens that certain renditions, certain ,·t·rsie.,11s f tl1t· \\"rlcl. het'111c..· t... lt1cicl,tted and, in doing s. tl1e rest1IL~ lo< ,k Ii kt·. h,t\'t.' tl1t.· ,l(>pt•,tr~111ce f ht-i 11g. ,t critic al f< )f111t1lati11, that shouki not l>P JPt>n a.~ 11 dep111·1,, rf /1·nm tlu a11a(-.·.\ i.\ . 7nr ·r,.itirnl ffll{l' • i.\ itsr{f a11 nchin,ed PMn1,mn1,,11 ,,n tl11· /J/.,, poJ.\il,/11 r1•ri/>if'11/ n11d th, ana()'.\ I. \\'hat ends tip looki11g likt' a critif the gals of tl1e a11al}·st C'l1ld Ix~ t ht· critical - the critical irnplications attenda11t t1p11 tl1t· anal}·sis is llt any ne of the range of existi11g et t1 ical p< >sit i( >11s nsider the ca.'ie of gic t.>f categorizatio11 embodied in tl1e clisptatt.'. i11 tl1c f'llc>,,,i11g \\"a~·: wl1ere,·er a prtagonist in the co11tr0\ er~· SJ>t~,tks c,f .:1hrtic>11 as ,l 111,1ttt.· r f 'mt1rrleri11g babies', he obliterates tl1e conc·e1)tt1,1I clisti11c·tic>11s betwc.~e11 'habit•s'. 'fc>cttast·s•, 'embryos', 'ga111etes' and ·z~'gtc.·s ·, alc,11g \\'itl1 their ,·er}' ciiffc.~rer1t etl1ical and e,,en thelogical implicatiJl l1is \v11 f'1itirt1l rc.·starct·s fc,r rhc.· 1>rn of an analysis of n1ear1ingJJti11s: ,tftt·r ,tll. tl1t.·st· ,trt· 11t is~·11c·r.-1tic· t hin1 but rather elt1cidate t~x.1ctl~- tl1t· 1>,tr~1111c·tt.'rs f ,t cri1ir.1I i11tt·r1>rt't,1tilgist 11,ts n cl1ic·t· lJt1t l clr.1,,· tlJJll his pr,tctical knowledge 4ts Cr111r1c>r1-sc~11se rt:stlr11 of tt1c· /01,ric of any st1ch resotarces. :\s ·rllfllt'r ,trgtl(~S:

r,,,,ld

1

:\t t'.verv stcllgical indifft~rence ·, and given Weber's argt1me11t in fa,·c,t1r r,f adopting a t111daries bfa 11on-thec>retical recipie11t of it, (d) the backgrot1nd commitment of a ri,al theoretical recipient of it. ( e) tl1e producer f it, (0 the organization for which the prdt1cer Wrks, etc. The analyst. b)· rontrasl, ,vho restricts himself tt> that form rl of criticality fa text is not ,o ip!io to cc>ncttr in that asst"ssn1ent as c>11e tl1at sh011.ld be add11ced. Shttld ,,·e discc>\'er, fclr exa1nple. that a gi,!en text n1akes a,·ail.1ble for sn1cone fa give11 hackgrn tl1,lt Xis the c,tst~ wl1t·rt·as Xis not the case in fact. must we. as a 111atter of tina~)·tiral slrtllf'!-._"\'. state tl1at .Xis not the case in fact lest ,ve be taken t cc>nct1r in its f,ic tic·it~·? St1reJ~, nt. (The con,·erse can also be proposed: r1amelv• tt1at wt1en it text n1,1k(•s ,t,·,tilable that Xis not the case, whereas in fact it is, the anal}'St must sa}· s ,ts a Jlart r,f his a11al)·sis - again surely not.) To clain1 that this is t'SSClltial .for {l1l{lz)•.~is is tackgrot1nd cc.>rnmitment(s) B. position Pca11 lJe fot1ncl as ge11eratable by Tir1 its i11terat·cion ,vith B, wt1ere B n1ay very v,ell •

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PAUL JALBERT

309

be defensible, conventional knowledge (or indefensible, con,·entional ignorance) of a particular sort, or where P may well be indefensible ( or defensible) from other points of view. Just because an elucidation of some Pgiven some Tand Bmay make some fellow analyst uncomfortabk (politically, ethically), this is insufficient reason (a) for their reft1sing to grant, on technical grounds, the claim that P was indeed a generated option from the interaction of Tand Band (b) for their discrediting and/or rejecting an analyst's work. For example, it can be shown that, given a specific background: B 1: Acceptance of an historical account of the West Bank and Gaza Strip which depicts it as an u0:justified occupation of other people's territory. a specific text: T: 'The new arrivals from the Soviet Union were taken to their homes in Jt1dea and Samaria to enjoy their new-found freedom from anti-sernitism. · can generate position: P1: 'Tis biased in favour of the Israeli official position.' Now, consider the gestalt opposite. Holding T constant, but \-arying B, T can generate a different P. Thus, with background: B2: The West Bank and Gaza Strip were historical)}· and rightf11lly Je\\·ish under the biblical names ofJudea and Samaria. text: T: 'The new arrivals from the Soviet Union were taken to their r1ew l1omes in Judea and Samaria to enjoy their new-found freedom from anti-semitism.' can generate: P2: •1· is simply a factual account of the situation being described.• &th positions5 can intelligibly be generated from the same text given tl1e difference in background commitments. How is this possible? That is \'t"rage of the l.eba11on War with my own analysis of that c:over,1ge.

Some Contrasting Conceptions of Media 'Criticism': A Case Study In 1983, Muravchik and I. independe11tly and for very different purposes, l1aci occasio11 tc> t1se the resot1rces of the Vanderbilt Uni,,ersitv, Television News Archi\·e in order to stt1dy US tele,ision network co,·erage of tl1e Israeli i11va~ic>11 of Lebanon which occurred in 1982. Mtaravchik pt1blished his report i11 the jt1r11al Policy Rroin,, (23, Winter 1983), a11d I prese11ted my (more extensive) analysis to Bc>stn l !11iversity in partial satisfaction of the reqt1ireme11ts for the PhD degree (Spring, 1984c). Arnong tl1e man}' points of· cntrast between tar rt·specti\·e treatment~ of the same corpus of media n1aterials were tl1e follo,vir1g: my analysis was based t1po11 n1y reprodt1ced trar1scriptions of· st1bsta11tial segn1e11ts f the actuall}' appearing coverage; rll)' a11al} tic efft1rt e1npl} ed tech11iqt1es drawn from lc>gic. linguistics a11d cthnc>metht>dt>log)'; a11d m}' objective wa4, the elucidatio11 of the 1neani11g strt1ctt1res f the mcclia depictions of the war. Mura,·chik 's stt1dy, tl the otl1t.~r hand, was an exercise in ideological criti(·is1n wl1se ain1 was to argt1e tl1at LlS network cverage could be generally ct1aracteriLed as having bee11 anti-Israeli i11 tone and sttbstance. 6 His direct qt1cJtatic>ns frt>m netwr1(·lt1sins was tl1e remark that: 'None of the net\\'orks acl1ie,•t~d .. . [a] rigc>rot1s stand,1rd in reporting on the events in lJeba11n. ,·erage w~1s erratic; NBC's g-c1ve the impressic,11 tl1,1t the 11etwrk \\'as 11 a crt1s,1rt1gl1 assessr11er1t of tt1e 111aterials t1po11 which I had been Wf ' sa1npli11g' relevant to this issue at all? \\··ere rding' putati,·ely detected b)' Mura,•chik i11 soml! of iL~ reporters· co,·erage? Did these reporters intentionally, deliberately, set out to load their words. as it \\'ere, or is there something else at work which could acco11nt tor tl1eir categorial selections? Mt1ra,1chik is perfectl}' entitled to his 'opinions' about US network co,·erage of the Lebano11 War. The question that faces 11s is to de,·elop methods \Vhereby ,ve can maintain a principled distinction benveen an 'opi11ion · (or a set of opinions C(>mprising a 'pole111ic') and a critical inference grou11ded in a lc>gical analysis of the san1e corpus of ernpirical materials. In order to gi,·e this distinctio11 sc>n1e flt~sh and blood, I ha,•t· selected for disct1ssion a fragment of ne,vs repc>rtage from NB(: tele,1sion news on Satt1rda}', 12June 1982. Remember tl1at. for ~·furavchik. 'NBC's [coverage] gave the impression that the network was 011 a cr11s,1de [agai11st Israel] ... (:BS tended to avoid tl1e tendentious or loaded wording that was t1sed often . .. by almost e\·er}·bod~on NBC.' Here is tl1e fragment: 10 NBC News. Saturday, 12.Jtine l~-}82 ( 18::\:l::~()) ( Patil Miller in Nabativel1) \\'hile Israelis patrewn is /101,, sucl1 a categclrial selectio11 ,-.·as acttaally used and in what disc11rsi,·e envirc>n111er1t. Erializing cc,mn1entaries, manifestly direct quotations ot· Israeli politicians, oflicials or SJ>okesmen a11cl sirnilar partisan contexts are dc>1nair1s witl1in which st1ch a dergatry ct1ar,tcterization of' the Palestinian f11 f biased news rt'pgories within a relatively less perspiciotis political fran1e 1111ts which is pertinent here. 1-~c>r example. I may truthftally say of s111eone tl1,1t he entertai11ed his friends at the party, but I will be found 1nrally c11lpal>le f n1islc~1fling ffi)' interlctitor if it turns out that the entert,1in111t~11t irecl cla ..siral tr a1>rc1acl1t•s re, tt·xts 111t>rt· gc.·nt·rallv 11.tvt· c.·xl1illitccl tl1is ass11n11>tit111. (f't>r a11 ill\1r11i11ating cli"" f tl1t· ht·rn1t·11c11tir scl1cH1ls. Sl'l' l'al111cr. I ~}(i~l .) .-\ 111f r11t·a11ing· I t·11ltt1ral c>~jt·rts, i11verage. See my unpublished paper, 'Media Analysis: On Distinguishing a Polemic from a Critique' (Jalbert, 1984a), which ca11 be obtained from the author. 8. Muravchik complains that •... a number of commentaries by Bill Moyers . .. though tempered by an effort to understand Israel's point of \iew, were clearly critical of Israel's actio11s, sometimes hyperbolically so. 011 15 June, Mr Moyers said that Israel had waged "total well'" and added tl1at "war unbounded follows the logic of hornets - everythi11g in their path is their enemy'" ( 1983: 43). The contrary can be argued: in a nt1n1ber of commentaries, Bill Mc>yers ca11 be found articulating opinions hostile lo the Palestinian cause. 011 Friday, 11 June 1982, broadcasting on CBS News at 17:52:30, Moyers characterized the Palestir1ian people as 'a peple displaced and abused, bloodless abstrdctio11s and born losers'. after having remarked twent}' seconds earlier that 'the war has improvt~d lsrdel's security lo the north·. Two mc>nths later, (ln Monday, 23 Aug11st 1982, broadca~ting (ln CBS News at 17:51:40, Moyers castigated 'Arafat a11d his allies' for not having accepted 'the reality of Israel', and adds that they had 'established within l..ebanon a terrorist state sworn to Israel's destrt1ction'. This is st1relv ' hyperbolic commentary in the reverse direction to that lamented by Muravchik. My pt1rpose here is not simply to score point"i agai11st Murdvchik's untenable assess1ne11t of US network coverage as biased against Isrdel. Rather, I am drawing atte11tion to the dar1gers i11volved in playing the sampling game. Perhaps Muravcl1ik cot1ld dredge tip ft1rtt1er examples to suit his pt1rposc and I coulcl reply with a similar volley f cu11ter-examples until both c,f us ran ot1l of patience. ( My ow11 data set co11sisL"i f l1urs of ,·icle recordi11gs of 11etwork coverage spa11ning all ft>ur months of tl1e war; 011ly hy st1~jecti11g t.t1ese n1aterials to the mc,st distorting operati11alizatin ct1ld it he re11derecl an1e11able l sa111pli11g f a11y ki11gic,\I disct1ssio11 c,f this issue, see Cc,t1ltcr ( I98~) . l 0. In reprr,dt1ci11g a tra11script fi·on1 act11al excerpts frm l JS tele,·isic,r1 11el\\·ork 11e\\·s broadca~ts. I adpl tl1e Ct>11,·c11ti(>11 f italicizing words, pl1rases r larger li11g,.1istic t1r1its Sse f t1ighlighti11g thse:- fragr11e11ts to ht· a11alyStl1er e11dge11t1s prperty f tl1e report. 111 aclditic,11, ( t1avc· i11clt1ded refc.•r tl1t· a years prior t the Israeli i11vasic>11 of l.eba11lished i11 tl1e l .1S ht·twee11 tilt' ratt'g.tJc:sti11ia11' .111er c·e11 t tl1 i11 k c,f tl1c·1n as "reftagt·t·s sc.~c·ki11g a t,, >n1c·la11cl "' ( '/'i ,n,, 14 :\1>ri I 1981 >: 42. , , ,I. :\). ()11e is lt'ft wr,11clc·ri11g, lt\,·c.·vcr \\'hat sc.-11ti111c11ts lite· r(·111ai11i11g :\4 pc.·r t·t·11t f tl1c· l .iS puhlirl rc·1>rtccl. 12. ,\.11 I arg11t·t·ak 1\l'k,t1t tl1t· I .c·l>a11c,11 \-\'ar· : l\·1illt'r's tlst~ f tl1c· catcgc>ry 'terrrist ' i11 ll1is \\"ay i11sl,t11ct·s a pi11t 111a(le I>~' lht· lt,giric111 \\'. B. (~allic ( l~J:l:>-6) . I le.· argt1c.·cl tl1at. t tl1t• clcgrce tl1at clcsrripti,,11s a11cl catc.:gc>ri1.atit>11s ,,f s,,rial pl1e11c,111c·11a are (1111c·riti(·ally a11cl llatl1 a11d telc·ri11c·thicist. a11d S(> 11 ' ((:tilter. l 9i~: 18 J l. 111 t·vt·ry rcl11flict, clisj1111c·ti\'t• catt·g(lri,aticlll clpt·ralt·s a11art11rt· c>f Palc·sti11i~-111 ft a urithdr(llJl(lf ( I 7: :1H: :1() ) . 14. ()11 titr.111flatic>11s ,,·t·rt· rc·asi11all\' ,t\'idcd, as i11 the ft>llowing t·xtr.trl frc,,n NB( : Nt·\\·s. \\'t•n1 Brt>ka\\·: '111 Sa1111 \\'ar ·,,•t·re rcn1sistt·11tl,· t·ritic:al r gt·n ( I ~•H~) alt·rts 11s tc> S11s cif St 1(' ial Praxi-. ·. _/011 rnal.fi,,· thr '/"hrnr_y of .\f knc>wledgt• \\1th its declared principle ,tll scie11tific tht·orics. whether trt1e or false a~ j,,,Igecl b)' 011r Jlresc.~r1t-n is tilt~ t11r11 t\-V,trcl l,tngt1c.1ge - r s< ,111c ,·ersicio-disct1rsi,·e constr11cti,ist argt1111c11t - flt"J>l}·ecl a~ a C1111tt~r t rt~alist cl,tims f whatever variety. l11 S far ~1s tl1t·sc~ argt1n1t"'111s l1a,·t· f1111d s11ppKr metaphor (for good a.nd trtae metaphr) is the Cndition for truth. ('\Vhite Mytholog)'', pp. 236-i) Again tt1is is cottched in Derrida's n1ixed-mode style of direct or oblique citation fro1n the sot1rce-text (Aristotle) con1bined with analytic commentary c1ncl critical exegesis. ~foreover, as the co11text makes clear, it is offered by wa)' c,f an illttstrati\'t' state1ne11t t1ght ever)-wl1ere adopts the same procedures in \\'hate\·er langt1age it chc>t f lang,1age, bt1t c>f p,trtict1lar linguistic structt1res. Chinese tl1ot1ght rn,ly well l1a,•e ir1,·e11ted categories as specific as tao, tl1e )'in and the ) 'nt1.g . it is nc>11etl1eless able tc> assi111il.1te the concepL~ of dialectical materiaJism r ql1antt1m n1echanics withot1t the strt1ctt1rc of the Chinese lang11age pro\·i ng a l1indra11ce. N t~pe of la11gt1age c.1n b}· itself alone ff far lo11ger dtaration - than an}1hing else on the scale (historic or gegraphical) that Benveniste associates ,vith 'particular' localized langt1agcs or culttares. In short, the whole passage tends towards a transcategrial conception c>f tl1c>t1ght. langtaage, reason and trt1th ,~hicl1 Bt~n\'er1iste can11l bring t1in1sclf t endorse explicitly - gi,-·e11 his lingt1istic-

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UNIVERSl1Y OF MICHIGAN

CHRISTOPHER NORRIS

329

relativist credentials - but which comes through in his argt1ment despite and against its overt professions of belief. Quantum mechanics has become a standard topos in current debates about ontological relativity and the issue of linguistic representation.1 6 It has spawned a great range of philosophical positions - realist and anti-realist with regard to the status of quantum phenomena and their implications for philosophy of science, epistemology and interpretation-theory. Benveniste makes only passing reference to this debate in the above-cited passage. However it does lend support to the view that some degree of ontological realism is presupposed in any discussion of qttantum mechanics that seeks an 'advance of thot1ght' through the elaboration and testing of specific conjectures. This applies even to highly speculative thot1ght-experiments - such as the famous series conducted by Einstein and Bohr - for which, as yet, there existed no means of observational or experimental proof. 17 For those experiments would quite simply have lacked all probative force had they not presupposed certain realist postulates concerning- for instance - the spacetime trajectory of photons or electrons, the eflects of particle charge, the well-defined limits placed upon simultaneous measurement of location and momentum, the behaviour of waves and/or particles tinder certain specified conditions, etc. 18 Nor is this argt1ment in any way refuted by their having given rise to heterodox ideas (complementarity, undecidability, Heisenberg's uncertainty-principle) that on the face of it would appear incompatible with a realist interpretation. For here again it is the case that these theories were arrived at only in response to certain deep-laid conceptual problems, problems that would not have arisen - or required such strongly counter-intuitive 'solutions' - except on the premise (the ontological-realist premise) that they captured something that was deeply and genuinely puzzling in the quantt1m-physical domain. 19 I should not wish to place too large a philosophical burden on Benveniste's brief reference to quantum mechanics or on Derrida's citation of it in support of his case - as against Benveniste - for the impossibility of relati\1zing trt1th to langt1age. Still it is a passage of some significance in the present context of argument. This emerges more clearly if one considers Benveniste's suggestion that 'modern epistemology' has no need of anything like Aristotle's table of the categories since 'it is more productive to conceive of the mind as a virtuality than as a framework, as a dynamism than as a structt1re'. 20 There is an echo here of Whorfian ethnolinguistics, more specificall} of Whorrs muchdebated claim that the ideas of relativity-theory or quantum mechanics could be better expressed in Hopi Indian than in any of the ml>dern European (Greek-inflt1enced) languages since Hopi manifested a different metaphysics, a world-view unencumbered by the subject/ object dualism or the rigid categorical framework of predicative grammar and logic. 21 What is curiot1s abot1t this claim, ali many commentators have noted, is the fact that these theories were expot1nded and de,,eloped not - as it happens - i11 Hopi btat in a range of other (mainly Et1ropean) langt1ages that on Whorf·s accotant should h~t,·e put up maximal resistance to their adequate expression. 1

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UNIVERSITY OF MICHIGAN

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THE POLITICS OF HlJMAN RIGHTS

All of which suggests that Davidson is right: that there is no making sense of the argument for ontological relativity if that argument is pushed to the point of denying the very possibility of adequate translation from one language to another. 22 What is involved here (once again) is a kind of thought-experiment, in this case an experiment with the idea of 'radical translation' condt1cted - as by Whorf or by Quine - with a view to establishing the incommensurability of diverse languages, conceptual schemes, ontological frameworks, etc. 23 But the result is rather to prove just the opp site: that any evidence adduced in support of such claims (whether ethnolinguistic evidence like Whorfs or hypotheticpe cannot be 'calibrated' with English, while on the other presuming to describe in f;ngush those ,rarious lexical and grammatical features of Hopi that supposedly render stich description impo~ible. My point in all this is that thought-experiments may have various (positive and negative) kinds of results. In some cases - like the Einstein/Bohr debates and subsequent quantum-physical conjectures - they serve as a means of formulating and testing theories which cannot at present be physically ,,erified but which none the less require that their terms be taken as referring to certain entities, processes or events whose behaviour under given conditions is ( to put it simply) what the experiment is all about. In other cases - as with Quine, Whorf and Benveniste - what begins as an argument against ontological realis1n (and in st1pport of the linguistic-relativist case) ends up by undermining its own thesis and thus showing such ideas to be strictly unintelligible. Nor should we be over-impressed by the fact that quantum mechanics has so frequently figt1red as a paradigm instance of ontological relativity in the thinking of Qtiine and others. 24 For this is to ignore what emerges very clearly in detailed accounts of those original thoughtexperiments; that is, the extent to which they all n,u,ssarily relied on a realist understanding of quantt1m phenomena even if the rest1lts turned out to reqt1ire some drastic modification to accepted ideas abot1t the ontology of the microphysical domain, the limits of precise measttrement, the wave/particle dt1ality, or the distinction between observing •subject' and observed 'object'. In this respect the Einstein/Bohr conjectures were on a par, ontologically speaking, with such pre,iotts classic thought-experiments as that by which Galileo proved the uniform (mass-independent) rate of gravityinduced acceleration for bodies in a state of free fall. He imagined the case of two sttch bodies, a cannc>nball and a musket ball, securely fastened together. 'Go figure!·, as they say; the experiment is enough to demonstrate cc>nclt1sively, as a matter of conceptual necessity, what Galileo would later put t the prof by his t>etter-k11ow11 series f empirical tests at the leaning tower of Pisa. 2:1

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Notes I. See especially Roy Bhaskar, .'icinitific Realism and Human Emancipation (London: Verso, 1986); Bhaskar, Reclaiming Reality: A Critical Introduction to umltmporary Philosophy (Londo11: Verso, 1989); Rom Harre, The Principks of Scientific '/"hinking ((:hicago: University of Chicago Pres.~. 1970); Rom Harre and E. H . Madde11, Caus,11 Pon1ers (Oxford: Blackwell, 1975); Wesley Salmon, ,5cienlific f..'xplanalion and the (:ausal Stn,cturt of the World (Princeton, NJ.: Pri11celon University Press, 1984);J.J. C. Smart, Philosophy and Scirntifir Rralism (Lo11don: Routleclge & Kega11 Paul, 1963); also-from a ra11ge of philosophical standpoints- Michael De,itt, Realism and 'fruth (211d edn., Oxford: Blackwell, 1986) ;Jarrett 1..eplin (ed.), .vinitific Realism (Berkele}' & Los Angeles: University of C:alifor11ia Press, 1984); W. H. NewtonSrnith, 1"he Rationality of .Scirnce (Lo11don: Roulleclge & Kegan Paul, 1981 ); Edward Pois, Radical Realism: Di,-,.ct Knowing i11 .~cience and Philosophy (Ithaca, N.Y.: (-:Ornell U11iversity Press, 1992); Nicholas Rescher, .lgar, l,aboratory Lifr: '/'h, Social (:OOstruction of .\cirntijir f't1rts (l..ondc,n: Sage, 1979); Andrew Ross, .~ Iran~ \-Vtathrr: (:ullure, .Srirnre ar,d 'frrhnology in lht Agr. of l~i1nit1 (l.,c:>ndt>n: Verso, 1991); JcJseph Rotase. K,imvl.td~ a11d l'oult'T: 'f'ott}{lrrl " Political Philo.cllgar, .Yirnc,: '/'h, \'i'Ty /,Ira (l_ondo11: Ta,istock, 1988); \Vc>lgar (ed.). Knou,k>dge and Ref1£xitrity: Nn.,, f 'rontin:t in th, .'x>ciology of K,iowlrdg, (Lon11: Sage, 1988). 3. See Rouse, Knowl.tdge a11d Power (p. c:it.) ft>r a sy11tl1esis of tl1cse varillS cultL1ralrelati,;st, 'str11g' socilogical, la11g11agc-hascd, dcpth-hcr1ne11eutic, ar1d ki11clred ,t11ti-realist trends. 4. See especially Richard Rorty, 'Scicr1cc as Solidarity', •Is Natural Scie11ce a N,1t11ral Ki11d?', and 'Texts and Lumps', i11 ()bjrtli1til_)', Ri·latitri.s,n, fl1ld J'n,tl, (Ca111bridgc: (:a111bridgc l l11iversity Press, 1991 ), pp. 35-45, 46-62, i8-92. 5. Sec· fr i11sta11ce Michael D11mmctt, '/r11tl, n111i ()tlll'T Eni,rrru1s (l.011clon: 011ck,\'c>rth. 1~)78); alS/1ic\, tl1Jl. :,:\(}-'.\~; p . :,:\I . 11. l)t·rricl.,. ··r11c S,1pplt·1,1t·11t f ( :(>ptal.,: Pl1ilc1sc11>l1,· tx·frc· I .i11gt1istic·, ·. i11 .\ln1J..rin, of l'hi/tJ\h_,. (c>J>. c·it. ). pp. li:">-~(l:l; f.111ilt· Rri1I (;af>lt·,: l ' ni,·t·rsity f ~tia111i t>rt·ss. 1~}71) . fr tilt' 111ai11 tt'Xls c>f ..\ristc1tlr ir1 . rit .), p . l~l:1. F11rtl1t·r rt·ft·rt~r1c·c.·s ~i,·t·n b~ title.· a11d J>agt· 11,1111l)('r i11 tilt' tt·xt . I:>. Rc1C"l1 . l 1hilo\o/1hir,1l 1-·01111,fatio11, of Qt1r111t11,n .\t,rh11,11r, (R. il~I . Ii . .-\. F.i11stc.'i11 . R. PSt'll, '( ~,11 tl1t· Q,1.,11t,1n1-~1t·rl1a11ic·al 0t-S. iii~O. ~it·I, Rc1l1r. artirlt· f 'kllllt' title·. l'h_,·., i,al Rn•in,1, \'c,I. 48 ( l~l~\:1). pp. n~l6-ill'.!. St·e al~.1 .J. S. & ·II . .'\/Jt•flknhl, an,/ l 'n,JN>akflbl, ;,, Quflt1/11n1 ,\1,·rl,11,ii,-,: a/>t.,.., 011 Qunnt11m l'hi/11.,,tph)· (( :i,111t>riclgt·: c:a111hriclgt·ri111t·11ts in Ph~·sics' , .\·n ,, .\rir11 t,,t. \ta,· nth l~~}:1. 1>1>- :!tl--'.\ l . I~•- •·r a ,trt1g 11t,)lc,~i(·al-rt•;1list ,·it·,,·. St'- 1~'.~~-~:!'. \. S('t ' Q,1i11c. ()11tolo,:i,nl H,·lntit'il_'t ,,,,,/ (Jth,·r J-.',,a,·, (. c·it . ): .-\lsc > \\ ,,,-,/ an,I (>h1,·;t (( :.1111l>ri,111,,la,ip. rit.l , I .,.) - •)(' .1 . , . 2-t . S< ·c.· Qt Ii 11 t·. • l\,·iric i-. 111 • ( . (;alilrc>. /)i (rour,r ot1 "/ i,•o .\·,, ,, .\ rif'11,·,·,. tra11s. S. l)raL.t· ( \facliS(lll , \\'isc-. : l '11i\'e r-.it,· f \\'is(·c111sin l'rlogy i11 Serbia, the intellectuals in the Belgrade NGO sce11e did not fall fc>r the pc>litical trick of nationalist self-interpretation by the Se rbian regin1e. The ,trroga11t abrogation of tl1e seco11d Yugoslavia was

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interpreted in this scene as an expression of perverted particularization of small nations which dreamed of becoming great. The short-lived course of nationalism had to ensure a legitimizing alibi to those political regimes on the territory of former Yugoslavia who, together with their nationalistic oppositions, emerged out of the old, communist nomenclature. The emphasized shift of the ideological centre (the totalitarian communist system was replaced by nationalist fundamentalism) did not yield a structural liberalization of the society. What was lacking was a total democratization of the administrative and political complex. The programmed attack on Western culture and civilization ('The New World Order') had as its goal the protection of an autocratic society and its governmentalized economy from the infiltration of polytheistic tendencies (popularly known as •privatization'). Instead of the economic dissemination of the capital-process, it was precisely through war i.e. through bloodshed - that in Serbia a centralized monotheistic model of the economy, which appears as a poor parody of industrial accumt1lation, was imposed. What emerged instead was the singular monopolization of power in whose midst operated the competing egoisms of the government and the opposition. The entire political space had been petrified by their joint egotism and attempts to trick each other. From such a molten midst en1erged a gigantic operation of irreversible monopolization at all levels of social power. The virus of twofold political coercion, occasionally neutralized within the struggle of principled egoisms, penetrated through all the zones of the social system and colonized the entire lifeworld. The 'Socialist' regime and its nationalist opposition did not hide that their one-off competition in antiWestern propaganda had a place in the ci,ilizational surrounding which they rhetorically denied. Given that the naive abolition of Modernity forcibly unfolded on the ground of modernism itself, it was only a matter of time when the local chain of violence would settle scores with the international community. The series of •peacekeeping interventions' had placed the onus on the expansionist goals of a regime which did not know how to protect itself from the international traun1a of st1bmission. Not even the monotonot1s rhetoric of the official pacifism (•Peace ha., no alternative'). which appeared in the post-Dayton phase, could remove the traces of such deadly politics. Those who willingly created this war, and who irresponsibly redt1ced tactical competition between the rept1blics to strategic antagonism between the states, could not expect to be showered with international respect. In spite of the real defeat of the project of the 'Greater Serbia', symbolic insiste11ce 011 a national identity did not lose significance. Such a nearly consenst1al identity became the dominant form of social reflection. For this reason, it is not stirprising that the imagined superiority of· the nationalists draws its strength from the resources of this provincial, local, populist c11lture. The Cf the war on the territory of former Yugosla\ia. The period frc>m 1990 tc> 1995 saw tl1c· founding of nearly all significant 11011-government organizati11s in Belgrade, Serbia: Tl1c Belgrade Circle, CAA, The Helsinki (.:Ommittee for Himan Rights i11 Serbia, The Fou11datic,11 for Huma11itarian Rigt1ts, Wc,me11 in Black, ·rhe Republic, The Belgr.tde C:e11tre fc>r Hu1nan Rigl1ts, Ccr1ter for Womer1 's Studies, SOS Telephor1e, Et1ropear1 Moveme11t ir1 Serbia. Bridge. Eco k (l>ru!{U .C,rbija. eds., lva11 Clvic, Aljc>sa ~ii111ica, Beogradski Krug, Borba, 8egrad, 1992) c·ame tit, this tt·rn1 took 011 a 111t1ch brc>ader n1ea11i11g, becn1i11g a syt1ony1n for stapprters of t.he Nt·w. Different. ,\ltc·r11ate, Parallel Serbia, a11d, sla,·ia. The term is freqt1e11tly ttsed in the service (>f precise.· difTert~ntiati,,n of natio11alist. pptalist and abc.l,·e all militarist optit1s, as wt'.ll ,L~ tl1e gV· ernme11t optio11 it.self. See thf the West. L'ltin1ately, tt1c~ nationalist intelligent~ia culd ma11t1facture, t111ciist11rbed, the 111ecli,, 't'xt1ltatin in 11atic,11al r0ts'. 5. &/grad, (;ire/, jtJUrnal. no. 1, 1994, p. 6. 6. 'That which is called totalitaria11ism is tl1e co111plete represe11tatif people, and i11 the Cmn1t1r1ist \'ersic>11. it is l1uma11ity ~-hich is created a!-1 h11ma11ii-y.' (Jc·a11-l .t1c Nancy. Thr .vn.~, of th, \.\'t>rld, tra11s. jt'ffrt·y S. l.ihrett, U ni,·ersitv of Mi1111eSt,l Prt·ss. I 998.) ' 7. Tl1e disti11gt1isl1ecl Bc.-lgracle a11thr Biljana Jova1111c·t·ptt1al creator c,f the prc>jm all part~ of frtnt·r 't'l1gc,sla,·ia, tl1at J>rt>jt·(>ks, Harmo11d~'\\'rtl1. I~Jiti. Ask.in, Richard. /)rfn1,iing /lj~htJ, Harvard Llnivt'rsity Prt'ss, (~111l>riclge, l\.1ass., 1~~)6. Barry. Brian, 1'11'1>ril's oj Ju 'ilirl', U11iversit)· (>f California Prcs.'i, Bcrkelev. I ~}8~}. Bereis, P., P,,ur d, ,\'ks, l.exi11gt()ll, ~1ass., l Yi~}. Browr1lie, la11, ed., /Jasir I >0,1, 1nr11l.\ 011 Hu1na,i llightJ. (:lart·11cl,>11 Prt'ss, ()xft>rc.l. I ~}i7. Brownlie, la11, c.·cl., /)o,·urr1r11I.\ 011 l/111n,z11 llighL'i, xfclrlisl1t·rs, S1r~t,IM>t1rg. 1!}1-!1.

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NOTES ON CONTRIBUTORS

f:rliiuterungnz z.ur Diskurs,thik, 1991; faktiz.itiil und &,/Jung, 1992.

Richard Rorty is Professor of Humanities at the U11iversity of Virginia. Charlottesville. He is the author of the books Philosoph)' and the Mirror of Natu1·,. 1979; Thr. Con.5equmr,s of Pragmatism, 1982; Conlingn,l)', lron_v a,,d .~lidflrit_v. 1989; Philosophirr,I Papers, vols. 1-11, 1991; Rorty and Pragmatism: Th, l'hilosophn- &spo,ids lo His f the Philosc>phy Departn1ent at the lJ hiversit)' of Essex. He is the at1thor of the books I.ogirs of Disint,gration: Post-.~truclt1rali~t 11ic,11ght and th, (;[a;""~ of (;ritiral 'Theo")', 1988; .4111,,,,,,"1.v a11d !iolidarit_v: lnten 1in.1Js with }ii rg,11 Hl1~r111a.5, 1992; /),r(>1l!ilruclitif .Ciubj,rlitiities. 1996; The J.imiti of l)isrochantment: f:5sa_)'s m, lf .vlf: .'itt,di,s in Rationfllil_)' and .~rial (;ha11.g,, 1988; lflrtll juslir1·: I Im,, lr1.'ilit11tions ,4/lorat, .'\r,1rr, (~s a11d lV,r,s.tflT)' Bt,rdm.s, 1992; Deliberalitlt'. J)nnorrao. l 9~l8 . 1,

Antonio Cassese is Prfc·ssr f International Law at the lJni,~ersit,, f 1-~lf (:,1liforni,1, lr,ine. He is the at1thor of the h