GlobalUSAtion: Lawyers, Human Rights and the Contradictions of the Legal Order

It is the dependence by states, and capital, on the legal order which has put lawyers in a strategic position of great importance. It has called forth lawyer- resistance in the courts and, latterly, outside the courts, usually integrated with other social movements but occasionally as a separate body of lawyers. In each of the four countries, lawyers have played a significant, even a leading part, in public resistance-outside the courts- to state attacks on human rights. In three countries lawyers went on strike and demonstrated vigorously against specific actions and policies of repressive regimes. In Pakistan the lawyers- resistance movement was an important factor in the electoral victory of Musharraf’s opponents. And the lawyers’ movement in that country, under the leadership-at least symbolic- of the Chief Justice, continues to play an important role in the politics of constituting the new government and the heralded reform program.

In the Philippines, progressive lawyers have played an important role in opposing the corrupt and vicious Arroyo regime. While there have not been lawyer strikes, as far as I know, lawyers have been comprehensively engaged in resistance activity both in and outside the courts, as well as in anti-regime activities of a densely organized and courageous civil society. Tragically, but perhaps not surprisingly, a number of lawyers have been assassinated by agents of the state during Arroyo’s governance.

Much of the lawyer-resistance activity has been based in struggles for human rights. It is clear, then, that the concept of human rights, institutionalized at the international level in the Universal Declaration of Human Rights, and the two Covenants-on civil and political rights, and on social, economic and cultural rights- provides an important ideological basis for challenging state and, perhaps to a lesser extent, corporate activity in denial of those rights. It is fair to say that around the world, the appeal to human rights has been a strong weapon in struggles for democracy, justice, equality, and the protection of our environment.

Michel Foucault has written:

“It seems to me that the real political task in a society such as ours is to criticize the working of the institutions which appear to be both neutral and independent; to criticize them in such a way that the political violence which has always exercised itself obscurely through them will be unmasked, so that we can fight them.”

While the extent to which law appears “neutral and independent” varies from country to country-perhaps from North to South- and surely from class to class, I think we can agree with the general thrust of Foucault’s message, and here apply it to the concept, and practice, of human rights which carries with it such ideological power.

Human Rights and “Humanitarian Intervention” in a Globalising World

In this and the following section I want to look briefly at some problems and limitations of human rights. Perhaps the most problematic issue in contemporary human rights discourse is that of “humanitarian intervention”. It is a broad and historically laden concept which I will briefly introduce. What we are faced with is the reality that many countries have used the moral and emotional appeal of human rights to justify intervention in other countries. Sometimes such intervention is based on a combination of reasons, including, eg, security (Tanzania’s invasion of Uganda which led to the destruction of the repressive Amin (Regime); restoring to power an unlawfully deposed government which had previously been democratically elected (the USA in Haiti, at that time backing President Aristide). Sometimes there are fundamental strategic reasons, as we have seen in Iraq where the USA justified the invasion in 2003, particularly ex post facto (no WMD having been found), as being in the interests of the Iraqi people and their human rights. Some of these interventions are unilateral, some multilateral, and often with some degree of involvement/commitment of the United Nations. An interesting current debate has arisen about Burma, the problem for the Left presented by the catastrophe there and the attempts to force solutions on the regime of the Generals.

I have mentioned only a few “human rights” or “humanitarian interventions”. There have been many more, especially in recent times. (In earlier times, colonial interventions were often justified as bringing “civilization” to savages or bringing “Christianity” to pagans etc). If it is a universal concept such that there ought to be interventions whenever there are substantial human rights under threat, then given the appalling and widespread violations of human rights in the world today, we could expect to see a world of continuous conflict. But, of course, we do not. Such interventions tend to be highly selective regarding those who are to be protected and those who will be left unprotected. We are well aware of the shameful history AmeriKa has in supporting, and installing, brutal regimes around the globe. Surely it is not being cynical to suggest that strategic rationales-not least what is good for capital- play a fundamental part in determining who gets to “benefit” from “humanitarian interventions”, some of which, perhaps most, are certainly “imperialist interventions”. That they are overwhelmingly North v South is surely strong evidence of that proposition, particularly in view of the historic and systemic exploitation of the latter by the former.

In the period of AmeriKa’s overseas imperialism commencing with Hawai’I in the 1890s, I believe the USA has been the leading intervenor in the world. ( and I am bracketing the “Indian Wars”, the “Mexican Wars” and the ideological “Manifest Destiny”-not to mention the hypocritical Monroe Doctrine-plus Japan and China in the latter half of the 19th century and early 20th). It has also been the leading purveyor of “humanitarian intervention”. Its massive power to do so remains, despite the morass it has jumped into in Iraq and Afghanistan. In this “post-Westphalian” context where national sovereignty and the (theoretical) strict limits on the use of inter-state force appear to be subordinated to the market imperatives of global capitalism, the use of “human rights” as a major ideological justification for future interventions seems certain.

Of course the use of “human rights” as an ideological weapon does not mean that we need turn our backs on the idea of resisting their violation. Nor does it necessarily mean that all state/multi-state/UN interventions to solve human rights abuse should be condemned, although that could be seen to be a reasonable principle given the historical record. Nevertheless, I would be reluctant to adopt what was after all a principle established to ensure peace and stability-as it suited the protagonists-in the interest of protecting emerging nation-states and capital accumulation. There may be positive examples (eg Cuba in Southern Africa-if that had been the USA we would surely have seen it in less positive terms!) which demonstrate that this is a matter to be decided on perceived consequential grounds: will it work for the masses, and is it really about human rights? In discussing means and ends generally, Trotsky, in debate with the American philosopher, John Dewey, argued that not all means are justified but the means would be justified if the action really has the tendency to liberate mankind. A major practical problem with that approach is, of course: who gets to decide? Given the record, one would have to assume it would normally be those with the most power (Iraq demonstrates this well. Around the world the masses opposed the invasion while the UN was suckered by a deceitful AmeriKa). But again, life is full of contradictions, and one of the opportunities presented by aspects of globalization is the capacity for progressive forces to join together in constituting an international standard regarding the use of force to intervene for humanitarian purposes.

Another way to look at the issue is to ask: what is the alternative to state(s) or international intervention? What should we look to in the longer term? I would argue that we need to look toward the strengthening of the political power of the masses to act both nationally and internationally so that they eliminate the need for external intervention by anti-liberatory institutions such as the capitalist state(s) or even international institutions such as the UN which are largely under their control.

Contradictions of Legal Order: against and for positivism

In this section I will raise and very briefly discuss some of the issues which are now being widely discussed in the debate over rights in a globalized world. In some respects, these are issues which have been discussed for more than a century on the Left, going back to Marx and Engels, and even further in the long history of the emergence of what we call today human rights.

Share This Post