by Helen M. Stacy. Stanford, CA: Stanford University Press, 2009. 280pp. Cloth $60.00. ISBN: 9780804745390. Paper. $21.95. ISBN: 9780804760959. E-book $21.95. ISBN: 9780804771023.
Reviewed by Sanghamitra Padhy, Department of Political Science, Davidson College. Email: sapadhy [at] davidson.edu, spadhy15 [at] hotmail.com.
HUMAN RIGHTS IN THE 21st CENTURY represents a Janus faced institution; its expansion and its violations, point to legal, moral and ethical incapability of the system to redress the politics that shapes claims to rights. This necessitates not only a revisit of the philosophical tradition of human rights, but also, a resolution of the longstanding impasse in building a Universal human rights regime. Helen Stacy’s book HUMAN RIGHTS FOR THE 21st CENTURY: SOVEREIGNTY, CIVIL SOCIETY, CULTURE addresses this very question of how to build bridges across different spectrums of human rights.
Taking into account the important critiques of the human rights movement, notably its baggage of colonialism, national sovereignty, weak institutions and multiculturalism- she builds the case for a universal human rights system through a neo-institutional analysis that calls for: relational sovereignty, reciprocal adjudication, and regional human rights system. The beauty of this book lies in the author’s ability to kill two birds with one stone: she redraws the political history of human rights by examining socio legal contests to rights through the modern period and second, promotes a constitutive analysis to building universal human rights through law and courts. In the process, Stacy poignantly brings the normative and empirical realm of human rights literature together and also, builds a dialogue for universal human rights based on local understandings to provide a fresh and much needed direction to human rights movement in the 21st century.
In this book, Human Rights in the 21st Century, the author argues that the philosophical limitation of the human rights development is its incapability to address the challenges raised by the critiques of global human rights: national sovereignty, civil society and colonial and culturalists. Unlike many in the Absolute/Universalist camp of human rights scholarship such as Jack Donnelly (1982, 2007) and Rhoda Howard (1995), Stacy does not dismiss the veracity of the criticisms, but rather engages with each of these debates to find a defensible premise of constructing a universal human rights theory. The author gives full credit to Makau Mutua’s (2004) claim about the colonial logic of absolutist human rights ideology as she makes an important point about Australian aboriginal’s victimization by the paternalist state. This has many parallels with African and Asian debates about human rights too, where scholars and activists have resisted the imposition of western norms and rather ask for a multicultural debate on human rights. [*152] She identifies the paternalism inherent in human rights law and seeks to evolve a mechanism to transcend the culturalists and absolutists debate to build a universal legal discourse.
This position has been talked about in human rights literature- cultural anthropologists such as Abdullah AnnNaiem (1992), Alison Renteln (1988) and Sally Engle Merry (2003) have argued for a shared understanding of human rights based on least common denominators and by Amartya Sen (2009) and Martha Nussbaum (2003), who advocate a capability approach to human rights. However, remiss in these accounts has been the factor of political history of human rights genealogy. Helen Stacy sponsors that much needed shift in retracing the historical path, not from the institution of human rights in the UN system, but from the perspective of law and society struggles since the modern period. She argues that human rights origin is not the product of patch work put forward by the western world in the aftermath of Second World War, but can be traced back to the evolution of international law and the anti- slavery movement of the 19th century. What Stacy advances here is the concept of historicity to build bridges across cultures and hence, situates human rights not in the normative plane of ideas alone, but in the practical world of how countries and societies can work together to build a global human rights standard. The book thus makes a radical departure from conventional ideas of ethics (Sen 2009; Nussbaum 2003) and law as the source of human rights to one of genealogy.
Genealogy is used not only to redraw the conceptual map of human rights but also to chalk out a practical feasible option for human rights interventions. The book employs the political history analysis to examine how sovereignty could be used to bridge the goals of human rights and humanitarianism. Stacy forcefully argues for a shift from the conventional “command of the state” model as imagined in the spaces of Westphalia treaty to a relational sovereignty based on relationship between governments and citizens in which the international community unilaterally, bilaterally and multilaterally exercises an interest. The relational notion, factors in the global context to the notion of state, acts as a measure of when and how states should intervene, and hence adds a practical tool to human rights machinery. She makes it clear that interventions have to be regulated from a relational point of view led by persuasion and by emulation through gradual change implemented from within local population. It’s interesting how the shift in understanding the historical time frame of human rights institutions from the 1940’s to its 500 year long genealogy accommodates local and particular interests.
The second part of this book advances on the political history of rights development to analyze the limitations of the working of human rights institutions and posits constructive pathways to rework the institutions. It is here that Stacy builds and defends the case for the Triad or the Courts to protect rights over civil society activism and market mechanisms. Courts not only have tremendous potential as instruments of social control and change, but also their triadic position gives them a character of independence, impartiality and justice which are quintessential to [*153] human rights law. The book while notes this capacity of law, it makes important arguments about the site of law, its ability to include social movements in the debate about public values and allocation of government resources and hence its ability to bridge politics and practice. She puts forth three specific institutional qualities of Courts that gives it an edge over civil society–1) legal reasoning of the courts advances rights beyond mere recognition, and gives the requisite space to particulars 2) its fact finding ability and 3) public reasoning process about conflicts. Through this nuanced and rich analysis of role of law and courts, Stacy shows a direction to how human rights can progress beyond legal positivism and civil society analysis to construct a universal standard.
However, unlike, conventional legalistic approaches that debate about creation of universal institutions, such as the International Criminal Court or International Court of Justice; she adopts what many may say a bottom-up or a constitutive approach to human rights institutions. The main claim being that the legitimacy of the institution rests on socio legal interactions, which can be built when social forces can relate to and have geographical and cultural relationship with the institutions. Law and courts therefore need to be equipped with cultural diversity, and this, as Stacy contends, requires a constitutive model such as hybrid courts and regional human rights court system. She demonstrates that institutions such as the International Criminal Court, International Criminal Tribunals or the International Court of Justice have failed because of the disconnection between global human rights standards and local human rights norms and institutions. Human rights law therefore needs to accommodate and integrate the local perspective- much in the genre of the works of Sally Engle Merry (2003), Anna Naiem (1992) who have examined the global local interaction amongst civil society groups. The book advances on this scholarship to show how human rights institutional development can adopt a constructive approach to be relevant to people in different geographic and cultural regions.
The inclusion of political history and the constitutive institutional approach centering on law and courts makes this book a fascinating account of contemporary human rights. However, what also needs to be advanced in this socio legal analysis of human rights is the notion of spatiality- to what extent does the site make a difference to how human rights are integrated in local cultural and social space. While the ethics of cooperation and culture of accommodation in its genealogy helps shed the baggage, it is important to note that this genealogy is mostly centered in spaces occupied by those in the west, and hence some of the negotiations are not inclusive of the South. It will be important to add in the argument by scholars such as Abdullah An’Naiem and Alison Renteln to find a space to build an intercultural dialogue based on a least common denominator. In terms of institutional ability, the focus on law and courts adds legitimacy to human rights by giving space to particulars, but it will be worthwhile to examine to what extent domestic legal culture facilitates the promotion of human rights. Most of Stacy’s empirical data here is built on successful stories of the European system, or the Colombian and Indian [*154] Supreme Court. The question remains if the agenda of Courts and law can be advanced beyond these specific sites. These are probably questions for future research to advance on Stacy’s contribution to the scholarship.
This book is a great addition to human rights, law and society, international and comparative law literature- not only as the bridging point between ethical and empirical realities, but for the practical solutions it offers to the development of a conceptual understanding of human rights. The interconnections between global and local, and construction of institutions from the local level provides a pathway to resuscitate the institutional legitimacy of human rights.
An-Naim, A.A. (ed). 1992. HUMAN RIGHTS IN CROSS CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS. Philadelphia: University of Pennsylvania Press.
Donnelly, Jack. 1982. “Human Rights and Human Dignity. An Analytic Critique of Non Western Conceptions of Human Rights.” 76 AMERICAN POLITICAL SCIENCE REVIEW 303-316.
Donnelly, Jack. 2007. “The Relative Universality of Human Rights.” 29 HUMAN RIGHTS QUARTERLY 281-306.
Howard, Rhoda E. 1995. “Occidentalism, Human Rights and the Obligations of Western Scholars.” 29 CANADIAN JOURNAL OF AFRICAN STUDIES 110-126.
Mutua, Makau. 2004. “The Complexity of Universalism in Human Rights.” in Andras Sajo. HUMAN RIGHTS WITH MODESTY: THE PROBLEM OF UNIVERSALISM. Boston: M. Nijhoff Publishers.
Merry, Sally Engle. 2003. “Human Rights and the Demonization of Culture (And Anthropology Along the Way).” 26 POLITICAL AND LEGAL ANTHROPOLOGY REVIEW 55-77.
Nussbaum, Martha. 2003. “Capabilities as Fundamental Entitlements: Sen and Social Justice.” 9 FEMINIST ECONOMICS 33-59.
Renteln, Alison D. 1988. “Relativism and the search for Human Rights” 90 AMERICAN ANTHROPOLOGIST 56-73.
Sen, Amartya. 2009. IDEA OF JUSTICE. Cambridge, MA: Harvard University Press.
© Copyright 2010 by the author, Sanghamitra Padhy.