End of Human Rights by Costas Douzinas - Essay Example

? Human Rights and justice The postmodern notion of the human rights can be said to find its roots within the concept of Westphalia which is an acronym for the system of the equal and sovereign states and followed with the peace treaties of Westphalia made in the year 1648 signaled the termination of thirty years war and igniting the concept of sovereign statehood1. The system of Westphalia can be represented as an institutional conglomeration directed towards the foundation of the political life based on two central pillars that is of the territoriality as well as the segregation of the external influencing factors from the structures of the domestic authorities2. Postmodernism will be a significant parameter on the basis of which discussions of the human rights and justice will be made. Majority of the studies centering on the postmodernism initiates with that of a remark that post modernism is inflicted with the attributes of ambiguity and mysteriousness. The diverse facet of post modernism does not direct towards the concentration on a single identity and that the words like “isn’t this, it isn’t that, it isn’t a whole series of things” 3 are generally attached in sharp contrast with the concept of modernism. One of the most predominant features of the post modernist view is the negation of the friendly relation with the human rights which further stands on the rudiments of antagonism towards the concept of the self-governing subject as well as that of the idea of universality. One of the preeminent scholars in the field of postmodernist view of human rights is Costas Douzinas. The paper will be centering on the discussion of the human rights and that of justice with the special reference to that of Costas Douzinas famous writing “The End of Human Rights”. A short insight into the book, “End of Human Rights” The book written by Costas Douzinas provides an attempt in examining the history and the philosophy of human rights from a viewpoint of non liberal perspectives4. The book is elucidated on the notion that most liberal of the institutions is not properly understood with the help of political as well as legal philosophy due to its lack of intellectually restricted and ethically impecunious dimension of individual subject and that of the social bond5. The liberal philosophy is infused through the works of the classical jurists and that of the eminent philosophers like Hobbes, Locke and that of Kant rather conjecturing on their pale jurisprudential imitations. In the subsequent sections the classical critics like that of Burke, Marx, Hegel and Heidegger are utilized in order to investigate the limitations of the liberal philosophy. The book seeks towards the reactivation of the tradition of dissent and rebellion which are directed towards the history of rights for the purpose of sketching a significantly new utopian atmosphere from within the historical immanence and the utilization of the same in order to criticize the legal institutions. The book also argues that once the end of the process of recovering transcendence in immanence is lost then the perspective of the human rights becomes imminent6. But this elucidation is highly obscure at this initiation phase of the paper. Although this short description is provided in order to have a narrow glimpse of further description of the paper upon the background on which it will be explained. Escalating significance of human rights in the modern times In the modern times in which we live is basically the ‘age of rights’ and the concept of human rights have been regarded as a chief criterion of the political legitimacy. The human rights can be viewed as a trajectory which involves itself in the process of legitimizing and delegitimizing the power. In the words of John Rawls human rights can be said to be that of “a necessary condition of a regime’s legitimacy”7. Development and deviation between various concepts Concentration on the individualistic nature The development path can be traced back to the juncture when the French in the Declaration of Rights of Man in the Article 2 states that, “the ending view of every political association is the preservation of the natural and imprescriptable rights of man”. Karl Marx, one of the modern theorist in his essay, “On the Jewish Question” 8 directs towards the idea of the political emancipation that the reduction of man into a civil society can be fragmented into that of two parts namely that of egoistic, independent individual on one side and that of a citizen and a moral person on the other hand. Marx has stated that this conception directs in the bourgeois state towards the achievement towards a dual nature of life one is that in the community of politics and the other one is that in the civil society. With this Marx also directs towards the association of the individual and that of the society in a unified paradigm. Marx also opined that the human beings must possess or develop the ability of recognizing his own forces as social forces and they needs to organize them and thus no longer separate the social forces from himself in the form of varied political sources9. In other words Marx attacked that the grounds of human rights as it was his belief that the they represented a general false view of the nature of the human beings as selfish as well as egoistical and that the social structure was consisted of a bulk of those people. These ideas were also synonymous to the ideas exposited by that of the Bentham, Burke10 . Thus the modern view circumscribes the concept of autonomous behavior and that of individual sense which rests high above that of the nature. This was the notion of the modern theorist Descartes. His theory was rejected by the philosophers in the later phase but it can be found that for more than two hundred years the majority of the people concentrated their belief within the concept of an autonomous self. The notion of the autonomous rational self can be said to form the pillars of the enlightened humanism with its theories related to politics, free market economics and that of radical individualism11. But the post modernism shifts away from this pre existent dimension. These can be said to be associated with two major reasons. The primary reason is that in the nineteenth century the world has experienced severe levels of injustice among the human beings. There has been intensified maltreatment of the people under the authoritarian and that of the totalitarian governments in the second half of the twentieth century which brought created and evolved a popular, demand for the protection of the human rights. The second reason can be said to be of the development of the democratic dogma with the expansion of the ideal of equality as well as in the Universal Declaration of the Human Rights12. Challenging the Biblical ideology The dynamics of post modernism can be said to inflict a direct challenge towards the enlightenment doctrine and they stand in the denial of the rational objectivity. The light of the post modernist view focuses on the concept that the human beings are generally an extension of the culture and the agenda of individual self is altogether eradicated from its core. The post modern theoretical foundations aim at the idea that the human beings are basically social constructs and socially determined beings. The human beings do not possess any individual personhood as they are generally the natural products of the culture. Personal identity and thought of the human beings is the product of evolution of the values of culture and the thought process is contextual and the individuals are subjected to non denial of this concept. It can be analyzed as well as argued robustly that the much of the post modern concepts highlights on anti humanist doctrines. The post modernism directs towards the provision of the idea that there is no existence of universal human essence and that of no inherent human values. The identity, values and civil rights of the human beings are not intrinsic rather they are described to be of the accidents of various cultural origins. 13 Nation state and the human rights In his book Douzinas offers a dual observation. From his statement it is known that the “human rights have won the ideological battles of modernity” and “ our age has witnessed more violations of their principles than any of the previous and less ‘enlightened' epochs." 14The very dual observation of Douzinas is directed towards understanding the way of human rights in a certain way in accordance with that of the tradition of liberal humanism which animates them. In order to remain faithful to the spirit which animates the human rights generates a question which the liberal humanist presupposes regarding the universality of the law and the possibility of a final victory15 The book can be understood on the backdrop of the final victory and the word end attached to the title. He tries to focus on his attack on the modernist view and that of the nation state by stating that, “[t]he end of human rights comes when they lose their utopian end”16. He tries to say that the domain of the human rights is situated uncomfortably between a transition zone of apology and that of a utopia. The explanation of Doziness points to the fact that the mass scale acceptance of the human rights in its official or modernist term will lead to an increased use in the accountability of the usage of the power of the state. Seeing from one angle it can be stated that human rights are ought to be animated by a certain spirit of rebellion against that of power and point and to that of injustice done towards the ordinary people. The victory of the human rights can be depicted as a collapse of the differences between apology and that of the utopia which could also lead to the taming of the moral rebellion through forces of power. Douzinas states that the concept of true victory regarding that of the human rights can be found to be incorporated within their domain of non victory as well as in the inability of their full actualization. In the words of Douzinas it can be stated that the human rights have, "remain necessarily and radically negative both in their essence and in their action" and to the “extent that they become positivised legal discourse and join law's calculation, thematisation and synchronization, they share the quest for subjecting society to a unique and dominant logic which necessarily violates the demand of justice" 17. The author opines that the symbolic importance of the human rights is that these inscribe the elements of the futurity within law and states that the future promised by that of the human rights will never be achieved. The imaginative foundation which offers a promise is not an actual place and for that reason it cannot be perceived as that of as a destination. This can be depicted from the words of the author that, "all utopias, when they arrive, turn out to be the negation of their promise. Utopia’s vocation is never to become a topos but to act as a negative prefiguration of the future which helps understand and judge the infamies of the present" 18 Saving the Human rights from themselves In the postmodern view the human rights will have to be saved from the human rights itself 19. The human rights are required to save from the triumphalism in order to allow moral criticism and judgment with the policy of establishment of a better future which will be coming in the future. Doziness incorporates the name “transcendence” proposes that the human rights triumphalism leads to the fact that the human rights stands in the way of denying transcendence within the trajectory of the understanding of apology and utopia, that of power and right, is and ought, facts and values , real vis-a-vis ideal. The human rights triumphalism is generally marked with the negative attributes of historicism which stands in the way of validating its own truths going in the lines of Leo Strauss stating that, "no ideals or standards exist outside the historical process and no principles can judge history and its terror" (10). The human rights for the purpose of retaining their utopian pillars of understanding in the reality must not be adversely affected of inflicted by that of the transience of the history. The paradigm of the human rights must not be evaluated or reduced according to their specific as well as the present manifestations. Precisely, it can be stated that the aim of Douzinas is targeted towards the saving of the human rights with the weapon of defending the same with the idea of transcendence and he aims in doing so for the purpose of escaping from the historicism simultaneously plunging into an ahistorical universalism which will lead to the establishment of an optimal human rights. In the book in the first phase in the "The Genealogy of Human Rights", undertakes a critique the Kantian sense that the human rights can be regarded as an entity in the identification of the conditions of existence20. In the genealogy, the author depicts a narrative which points towards the decline of the natural law from its initiation phase in the ancient Greece and has pointed out two major points in this case. Firstly, saying that the evolution of the human rights is directly associated with that of the decline of the natural law and ultimately leads to that of the transformation of the objectives right to that of the subjective right with the agenda of right as my right. They evolve as a result of the conclusion of the disappointment of the world whereby the politicization of nature which are sanctioned by the individual will with the place of the standard of right with the precision that the story line is bounded by the degeneration of the natural law and the human rights have only paradoxes to other and the paradoxes are built-in parameters. The notion of the human rights are internally incorporated with that they are used as the defense mechanism of the individual against that of a state power constructed within the image of an individual with the possession of absolute rights21 . Incorporation of the ethics within the legal field The concentration of the concept of ethics in the legal field is highly associated with that of the human rights and Douzina’s attaches the human rights judiciously with that of the posing of the human rights as an alternative approach towards the history of the natural law22. The nexus of the natural law is also not devoid of that of constraints and the author spends a significant amount of time on the dimension of the enlightenment with regards to that of the human rights 23 There can be several instances which can be mentioned. As that of an actively heterosexual Russian female is suddenly informed that she is not able to play or participate in the Olympic games as a woman as she has been found to be a man genetically. A New Jersey family takes their doctor to the court for the allowance of the wrongful birth of their Down syndrome child. In recent years there have been around three hundred lawsuits which have been found in the courts in the recent years. A child who is conceived in California only for the purpose of serving as a bone marrow donor for an older sibling and the cells are harvested with the outcome of the living of her sister. Now in the genetically improved world it has been not only possible but has also the legal validation in the creation of a human life for the purpose of treating them as spare parts. These ethical elements have to be incorporated into the understanding of the human rights and the protection of the human rights have to made possible to the utmost and expansion of the same to the limits to which it can be stretched24. Endeavor in saving the fate of the human rights The post modernist proponents of the human rights are highly focused for the purpose of saving the fate of the human rights and highly consider it as a noble objective25. Douzina’s arguments is directed towards the non support of the contradictory as well as that of the paradoxical existence of human rights in practice when they are generally taken hostages by the governments as well as that of the liberal jurisprudence and in that case the people shall not lead to the abolition to that of their great aspirations which is in close proximity towards their final victory. Douzina’s in his book targets at the policy of reactivation of the tradition of the human rights in the forms of both as a path of dissent and rebellion and that of a dimension in the process of criticizing the conservatism of law. He also states that through the process of following the way of the original utopia that the trajectory of the human rights can be saved as well as can be made independent at the same time. Douzinas proposes that the future of the human rights falls within a domain which sets itself apart from that of the state politics of human rights and morality which the world have evidenced within an array of several political constructs in several countries. One of the significant is that of the intervention of NATO in the several wars like that of the Kosovo war, Iraq war and so on. There has been a fashionable moral turn within the foreign policies of the Western government which has predominated in the late nineties directing towards the increase in the symbolic capital in the West. The American and British led NATO was prepared in the taking of the military actions against Iraq and that of against the Serbs over Kosovo with very little protests heard in that of the brutal killings of around 250,000 Kurds by the Turkish forces within a span of twenty five years and also the genocide of the people of the East Timor by the forces of Indonesia over a span of around thirty years. Douzinas has specially emphasized on the insurrections by the NATO, UN in the suppression of the human rights within the framework of the so called protection of the same 26. In the war with the African country of Libya, the military forces of the United States and that of the NATO in pounding the Libyan towns, cities, villages and the target of overthrowing the government of Muhammad Gaddafi27. There have been serial bombing operations with the numbers crossing more than 16,000 and 6,100 strikes with combined blockades including around 17 warships. The American military headquarters Pentagon and NATO claimed repeatedly that their combined war against the North African nation of Libya has been completely designed in the order to protect the civilians from the prevailing anarchical situation. They claimed that the endeavor was the process of designing the fight was to crush down the imperialist backed insurgency. There have been various reports which indicated that the war which was launched by the United States as well as that of the several Western and European countries has been an underlying systematic boogey trap in terrorizing as well as subjugating the common people of Libya. On the month of July 25, 2011, the forces of NATO bombed away a hospital in the Libyan city of Zlitan which killed around seven people including that of three physicians and multiple air assaults jeopardizing and adversely affecting the food warehousing system in that city. It can be also said to be a preplanned process because before the above stated assaults, NATO also executed a number of raids in the capital of Libya, Tripoli. The devastating bombs hit a compound of a governmental building and they claimed that it was the command and the control center for the Libyan military and also stated that the attack on the hospital was also done as they formed parts of the suspect lists of the NATO commandos but they never thought or care about the innocent lives and made an arbitrary attack28. In this respect Douzinas has stated that, “These discrepancies give rise to criticisms of the hypocrisy or cynicism of the great powers”29 and suggests a path of rebellion and protest against the existent individualism of the western powers which are actually harnessing the concept of human rights within a very limited boundaries and also destroying the fundamentals of the human rights. The abstractness of the concept of humanity The concept of humanity has been a complex phenomenon and it can be said to be an invention of modernity30. In the juncture of pre modernism and modernism, both the countries of Athens and that of Rome had citizens and that they did not possess the men within the sense of the human species. The free men were those who were those of Athenians or Spartans, Romans or Carthaginians, Greeks or barbarians but not humans. The Roman republic was the first to incorporate the concept of humanitas which was a translation of a Greek word for education and good conduct31. With the passage of time man acts as an ontological principle of modernity as an imaginary foil for the national citizen, which is the real beneficiary of rights32. The nation state comes within the existence through the exclusion of several other people and that of the nations. The modern subject reaches her humanity with the acquiring of the political rights of citizenship which leads to the gurantee of her admission to the universal human nature along with the exclusion of the status others. The alien is that acted as a non citizen which is barbarian. A barbarian do not posses rights because he is not part of the state and he acts forms a part of the lesser human being as he is not a citizen in the true sense of term. The alien is basically the gap between that of a man and that of a citizen. In today’s globalised world, not to have citizenship to be a refugee is the worst fate. The alien is the gap between man and citizen. In globalised world not to have citizenship to be a refugee is the worst fate. The concept of colonialism and that of the human rights movement together forms a continuum which finds its roots with the great discoveries of the new world and now has been carried on the streets of Iraq with the transformation of the civilizations to that of the barbarians. The claim for the spread of reason and that of Christianity, the western empires flourish their sense of superiority as well as their universalizing momentum. The urge is a predominant one in today’s world and the belief in the universality of the world view remains strong as that of the colonialist. There is very little difference in the imposition of good governance or between proselytizing for Christianity and human rights.  They comprise both ingredients of the cultural parcel of the West, violent and redemptive at the same time. Douzinas in his end of human rights states that the end of the human rights carries the notion of resisting the public as well as private domination and oppression. There is the loosing in that end when they become the political ideology of the neo-liberal capitalism or that of the civilizing mission. It is argued that the notion of humanity has no fixed meaning and is unable to act as the source of moral or legal rules. The concepts of power, kingdom and cosmopolitanism, dominion and rights, law and want are not deadly enemies. The period after that of 1989 combines an economic system which generates a huge structural inequality and that of the oppression with a juridical as well political ideal promising the way of dignity and that of equality. Universalism and behavior communitarians rather than being opponents are two types of humanism dependent on each other. They are faced by the ontology of singular fairness. “In advanced capitalist societies, human rights de-politicise politics and become strategies for the publicisation and legalization of (nihilistic and insatiable) individual desire. The bio-political turn makes human rights tools of control under the promise of freedom. Against the cosmopolitanism of neo-liberalism and empire, the cosmopolitanism to come offers the late modern principle of justice”33 Conclusion The paper centered on the amalgamation of the human rights and justice within the canvas of a post modern view and that of the backdrop of Costas Douzinas, “The end of the human rights”. The post modern concept highlights on the individualistic behavior of the modern human rights theories and explains how that acts as a promoter of violation of the human right within a purview of protection of the human rights. The inference which can be drawn here is that the states are generally the major protectors as well as that of the violators of the human rights simultaneously. The claim of the national sovereignty intersects with that of the willingness to construct effective remedies and according to Douzinas it will bring an end to the human rights paradigm if there is no re invention of the original utopia. References 1. Antaki, M, (2003), The World(lessness) of Human Rights, available at, < http://lawjournal.mcgill.ca/documents/Antaki.pdf> accessed on August 18, 2012 2. Arslan, Z, (1999), TAKING RIGHTS LESS SERIOUSLY:POSTMODERNISM AND HUMAN RIGHTS, Vol. 15, No 2, available at, accessed on August 18, 2012 3. Azikiwe , A, (2011), Libya war exposes U.S./NATO crimes against humanity, available at: < http://www.workers.org/2011/world/libya_war_0804/> accessed on August 20, 2012 4. Bauer, B, (1843), On The Jewish Question, available at, < http://www.marxists.org/archive/marx/works/1844/jewish-question/> accessed on August 18, 2012 5. Baars, G, (2012), Law(yers) congealing capitalism: On the (im)possibility of restraining business in conflict through international criminal law, available at, < http://discovery.ucl.ac.uk/1348306/1/1348306.pdf> accessed on August 20, 2012 6. Bulletin of the Atomic Scientists, (1987), available at: http://books.google.co.in/books?id=jwYAAAAAMBAJ&pg=PA2&lpg=PA2&dq=The+post+modernist+proponents+of+the+human+rights+are+highly+focused+for+the+purpose+of+saving+the+fate+of+the+human+rights+and+highly+consider+it+as+a+noble+objective&source=bl&ots=Inp93E4Wbd&sig=hrEeGei5wpj1jivxjT18VBJ6M1w&hl=en&sa=X&ei=E-4xUK--HsXqrQfg_4HoDA&ved=0CDsQ6AEwAw#v=onepage&q&f=false (accessed on August 20, 2012) 7. Douzinas, C. (2009) The paradoxes of human rights, available at, < http://xisimposioaifp.wordpress.com/2009/02/11/costas-douzinas-the-paradoxes-of-human-rights/> accessed on August 20, 2012 8. Douzinas , C, (2000), The End of Human Rights: Critical Legal Thought at the Turn of the Century, Hart Publishing 9. Endres, K, W & Lauser, A, (2012), Engaging the Spirit World: Popular Beliefs and Practices in Modern Southeast Asia, Berghahn Book 10. Hamid, U, (2009), Promises, pitfalls on the path to end forced disappearance, available at: < http://www.thejakartapost.com/news/2009/04/23/promises-pitfalls-path-end-forced-disappearance.html> accessed on August 20, 2012 11. Harding, C & Lim, C, L (1999), Renegotiating Westphalia: Essays and Commentary on the European and Conceptual Foundations of Modern International Law, Martinus Nijhoff Publishers 12. If God is Dead, then Thank Goodness for International Law, (2012), available at, < http://www.paclii.org/journals/fJSPL/vol06/14.shtml>accessed on August 20, 2012 13. Khuri, R, K, (1998 ), Freedom, Modernity, and Islam: Toward a Creative Synthesis, Syracuse University Press 14. Leffel, J, (2012), Engineering Life: Defining "Humanity" In A Postmodern Age, available at, accessed on August 20, 2012 15. O’Balance, M, Civil War in Lebanon, 1975-9 (1998), Palgrave Macmillan 16. PERSADIE, N (2007), A Critical Analysis of the Efficacy of Law as a Tool to Achieve Gender Equality, University Press of America 17. Research interests, (n.d.), available at, < http://www.bbk.ac.uk/law/our-staff/ft-academic/douzinas/research> accessed on August 20, 2012 18. Rawls, J (2008), Lectures on the History of Political Philosophy, Harvard University Press 19. Selznick, P, (2008), A Humanist Science: Values and Ideals in Social Inquiry, Stanford University Press 20. Scott, P, D, ( 2000), Deep Politics III, available at, < http://history-matters.com/pds/DP3_Overview.htm> accessed on August 20, 2012 21. Straumann, B, (2008), The Peace of Westphalia as a Secular Constitution, available at, < http://iilj.org/aboutus/documents/Straumann.Westphalia.pdf> accessed on August 18, 2012 22. The Canadian journal of law and jurisprudence, (2000), Volumes 13-14, Faculty of Law, University of Western Ontario 23. Teitel, R, (1997), Human Rights Genealogy, available at < http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3392&context=flr&sei-redir=1&referer=http%3A%2F%2Fwww.google.co.in%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dthe%2520genealogy%2520of%2520human%2520rights%26source%3Dweb%26cd%3D1%26sqi%3D2%26ved%3D0CEYQFjAA%26url%3Dhttp%253A%252F%252Fir.lawnet.fordham.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D3392%2526context%253Dflr%26ei%3DROsxULSfLorlrAfCo4DwAg%26usg%3DAFQjCNEqdWZal0Jkx5qneyrOe1YCiG_cug#search=%22genealogy%20human%20rights%22> accessed on August 20, 2012 24. Weinberg, M, (1996-1997), The Human Rights Discourse: A Baha'i Perspective, available at < http://info.bahai.org/article-1-8-3-2.html> accessed on August 18, 2012 25. Havel, V, (n.d.), The Need for Transcendence in the Postmodern World, available at, < http://www.worldtrans.org/whole/havelspeech.html> accessed on August 20, 2012 Read More