Niezen CSSH Article 2011

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CSSHDISCUSSION

The Social Study of Human Rights.

A Review Essay

R O N A L D N I E Z E N

Anthropology, McGill University

The Idea of Justice, by Amartya Sen (Cambridge: Harvard University Press,

2009).

Surrendering to Utopia: An Anthropology of Human Rights, by Mark Goodale

(Stanford: Stanford University Press, 2009).

Prisoners of Freedom: Human Rights and the African Poor, by

Harri Englund (Berkeley: University of California Press, 2006).

It is noteworthyand at the same time a bit disappointing in a what-took-so-long

sort of waythat a recent innovation in the study of human rights should involve a

focus on the lives of the people directly affected by them. To explain this delay of

the obvious would probably call for a review of the persistent influence of Kantian

transcendentalism, the quasi-utopian search for ideal justice, and the inherently

abstract nature of law in its quest for impartiality. A similar effort could be

applied toward fully understanding the changed circumstances that encouraged

the shift toward practical realism. It would have to take into account the surpris-

ingly late elaboration and popularization of human rights instruments, the prolifer-ation of transnational NGOs that act on new opportunities to exercise moral and

political influence, and the growing reach of new technologies of information

and communication (necessary tools for the emergence of transnational NGOs).

All of these developments have raised the prominence of legal issues and strategies

among those once considered isolated and, in varying degrees, uncivilized. But

whatever the dominant trends might once have been, and whatever new, enabling

circumstances have recently emerged, there can be little doubt that over the last

several decades a shift has taken place in the study of human rights toward prac-

tical or applied realism, with a focus on ordinary actors.This review essay considers three recent contributions to a body of litera-

ture on human rights that take as their starting point this very assertion of

Comparative Studies in Society and History 2011;53(3):682691.0010-4175/11 $15.00# Society for the Comparative Study of Society and History 2011doi:10.1017/S0010417511000296

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realism, as against established traditions of abstraction, formalism, and utopian

imaginings. Amartya Sen, in The Idea of Justice, makes his argument in a

general way, calling for a practical reasoning that avoids the pitfalls of the

quest for perfect justice. He proposes a close study of the relationship

between social institutions and actualas opposed to idealindividual behav-iour, which, he argues, cannot but be critically important for any theory of

justice that is aimed at guiding social choice towards social justice (69).

Here Sen departs from the failings of abstract political philosophy in much

the same way that his 1999 book Development as Freedom pointed to the

flaws and, ultimately, cruelties built into the abstractions of dominant,

GDP-based economic theory. Human rights are important to this effort, as

the expression of broadly legitimate aspirations for human improvement,

with built in possibilities for the kind of negotiated, pluralist universalism

that Sen sees as providing something close to an answer for the ever-problematic quest for justice.

The other two books that I discuss here make distinct contributions to a sub-

discipline referred to with growing frequency as legal anthropology. Mark

Goodales Surrendering to Utopia provides an overall justification of this

field of study, while documenting and theorizing his way around its neglect,

particularly in the realm of human rights. The practical reality of law gets its

closest treatment in Harri EnglundsPrisoners of Freedom, in which the distor-

tions of universal human rights ideals are observed in interactions between the

underclass of Malawi and their would-be advocates. There can be no better

answer to Sens call for practical legal realism than Englunds account of the

relationships between NGO workers and their supposed beneficiaries, with

its seemingly limitless capacity for unintended (mostly disastrous) conse-

quences resulting from the legal aid workersideas and attitudes: a potentially

lethal combination of narrow legal knowledge, radical hope, and moral hubris.

The order in which I have arranged my treatment of these books can be seen

as something like a sliding scale of increasing distance from formal systems of

abstract principles that reject contingency, toward an acceptance or privileging

of the everyday uses and consequences of justice in action, which seek to

accommodate particularism, paradox, and conflicting values. In arranging the

reviews this way my secondary goal is to see at what point certain key assump-

tions and perspectives fall away and are replaced by others, making it possible

to consider the gains and losses of the various starting points and their corre-

sponding methodological approaches to the social study of human rights.

The first step we will take in this overview is what Amartya Sen, in The Idea

of Justice, refers to as liberation from positional sequestering, by which he

means the movement beyond disconnected musings or thought experiments

about the nature of perfect justice, while orienting our search for justice

instead toward the practical necessities of value pluralism and negotiated com-

promise. Sen takes as his starting point a respectful critique of John Rawlss

T H E S O C I A L S T U D Y O F H U M A N R I G H T S 683


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hugely influentialA Theory of Justice(1999 [1971]) and its revival of the con-

tractarian approach to justice, which uses a hypothetical original position as a

device for arriving at the fundamental principles of justice as fairness. The

elegance and influence of this approach derive in good measure from the

fact that out of a purely abstract starting pointthe imagined coming-togetherof people with diverse interests and conditions in life seeking a just constitution

it becomes possible to envisage real-world possibilities for institutional reform.

But in accomplishing this, as Sen points out, it fosters a kind of rational utopian-

ism that thrives in its distance from the untidy implementation of ideals.

In its most basic form, Sens critique has been made many times before, and

not only with reference to Rawls. Ultimately, it has its counterpart in the

German Enlightenment of the late eighteenth century, particularly Herders

rejection of any philosophy of history (mainly those of Kant and Voltaire)

inclined toward abstraction, rational ordering, and a privileging of cosmopoli-tanism. In his 1774 essay, This Too a Philosophy of History, Herder makes a

passionate plea for the study of the actual and the real as against abstract prin-

ciples: Have you ever taught a child to walk from the most abstracttheory

of motion?(2002: 279). The solution was then, as now, some form of empiri-

cism, but Herders approach was infused with now discredited (butpersistent!)

romantic longings after the inner essence ofVlkerwho embodied historically

distinct conditions of life.

Despite the long history of the cause of empirically grounded realism, Sen

takes an original approach by going outside the familiar canon of political phil-

osophy, drawing on eastern concepts, and in the process adding to the univers-

ality of his ideas, which, after all, have universal aspirations. Leaving the safe

confines of closed, transcendental logic calls for an argument that in some way

corresponds to its great ambitions, that remains globally inclusive, that still

answers to the needs of those who hanker after universals. This Sen provides

in part with a wide-ranging, at times entertainingly imaginative inclusion of

the political philosophies of Eastern classics. Not only does world-embracing

empiricism have deep roots in the Occidental imagination; the Indian

emperor Ashoka has much to tell us about tolerance and dialogue, and

durable universal lessons are to be found in Indian epics like the Valmiki

Ramayana and the Mahabharata. In particular, classical Sanskrit provides

the concept ofnyaya, the idea of justice as it is realized in the world, in its

effects on human lives, underscoring Sens central argument thatthe subject

of justice is not merely about trying to achieveor dreaming about achiev-

ingsome perfectly just society or social arrangements, but about preventing

manifestly severe injustice(21).

While Sen should be given credit for clearly and convincingly posing the

challenge of realism in the formulation and actualization of justice, and com-

mended for the effort to apply some of the same empirically grounded prin-

ciples of his welfare economics to global principles of justice, he

684 R O N A L D N I E Z E N


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ultimately retreats to the safety of abstraction in thought and method. There is,

for example, a certain hopeful defiance of realitywhile robustly arguing for

its virtuesthat applies to his conception of human rights. These he presents as

universal moral claims, separate and distinct from their actual origins within the

state-centered anarchy of international law. The very real mechanisms of andimpediments to the application of human rights, which can be found in the

workings of international agencies, the interests and policy decisions of

states, and the often quasi-utopian ambitions of transnational NGOs, are

nowhere to be seen in his portrayal of human rights as a moral vision. The leg-

islative dimension of human rights and the manner of their application are sec-

ondary to their status as ethical claims constitutively linked with the importance

of human freedom, and the robustness of an argument that a particular claim can

be seen as a human right has to be assessed through the scrutiny of public

reasoning, involving open impartiality(36566).As a corollary to his emphasis on public reasoning, Sen identifies a new

quality to justice claims that have particular relevance for the effectiveness

of human rights: the growing significance of media and with it new possibilities

for information and communication to mobilize social activism. Having broken

out of the limits of transcendentalism and embraced the complexity and ambi-

guity of human experience, a great deal hinges on media and mobilization of

public opinion. Sens starting point here is public response to famine, in

which greater possibilities of media coverage can make the fate of the

victims a powerful political issue with far-reaching effects on the climate of

media coverage and public discussion, and ultimately on the voting of others

a potential majority(34344). This is good news as far as it goes, but it leaves

the overall picture of the implications of media for the practical fate of justice

largely untouched. Take, for example, the toxic effect on public reason (and

hence democracy) of the U.S. Supreme Courts 2010 decision to allow corpor-

ations to spend anonymously and without limits on political advertising. Or con-

sider, more generally, the problem of the sheer volume of rights claims through

media, which diminishes the public influence of nearly everyone with a legitimate

need of redress from inequity or oppression, that is to say, nearly everyone other

than those who suffer visibly and catastrophically, enough to move increasingly

jaded distant spectators to action. Given that the reality of peoples aspirations

and experience with justice are what human rights are all about, then more atten-

tion can certainly be given to such uncomfortable truths, simply in the interest of

depicting rights in action, without necessarily succumbing to the paralysis of

hyper-criticism.

Sen invests heavily in social choice theory as the privileged technique for

arriving at a grounded approach to justice, and this would appear to be the ulti-

mate source of his departure from the real-world engagement that he advocates

with such persuasiveness. In social choice theory we find established methods

(described but not actually applied in the book) for taking human preference



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into account in such all-important endeavors as formulating economic policy

and designing voting procedures. It is, as Sen explains it, an evaluative disci-

pline in which the outcomes take the form of ranking different states of

affair from a social point of view, in the light of the assessments of the

people involved (95). The central problem with this is that even in theabsence of a real demonstration of the method applied to justice issues, we

can foresee its central failing: We can expect the key concepts of justice to

be very different from the raw material of economics and political preferences,

by whichlargely through Kenneth Arrows demand for clearly defined

axioms (1950)social choice theory has proven itself. Corn, casualties, and

pre-reified political choices lend themselves more readily to identification

and articulation of values than do freedom, justice, democracy, and other con-

cepts at the foundations of liberalism (another slippery idea) considered glob-

ally and comparatively. Sens privileged method involves broadening theapplication of social choice theory to include concepts which, when applied

to humans in social context, add the vexations of translation to their inherent

obscurity. Expanding the methods of social choice to include a wider range

of concepts, perspectives, and informational outputsdoes not promise a con-

vincing answer to the need for engagement with the lived experience of policy

decisions and institutional practice.

Faced with the same incompatibility between formalism and experience, and

while sharing the substance of Sens critique, Mark Goodale arrives at quite a

different preferred solution: the long-term ethnographic perspective of anthropol-

ogy. For Goodale, those who take a philosophical approach to rights and justice

see problemsas either conceptual in themselves or, if not, then they believe that

the solutions to problems should, in the best of circumstances, be conceptual

(47). But there can be no practical answer to questions that are embedded in

the abstracted spheres in which competing accounts of concepts clash (48).

Rawlss deductive approach, in particular, has reinforced a philosophy of

justice that is remote from human experience: [I]t is impossible to know

whether there can even be empirical correspondence between the implications

deduced from unproven first principles and the practice of everyday life(117).

In response to this state of affairs, Goodale proposes a new discipline, or

rather a dusted off discipline that has been sadly overlooked in the development

of human rights. Anthropology, with its simultaneous commitments to the

common qualities of humanity and to humanitys tremendously varied

expressions of difference, has what it takes to make sense of the extended

reach of transnational norms and institutions and provide a corrective to

abstract, global normativity. Human rights, in particular, Goodale argues,

would look different if anthropological perspectives had, from the beginning,

been taken into account, above all through greater attention to collective

rights. This is now the emerging trend, with the plights of ethnic minorities

and indigenous peoples coming to the fore (and to the forums), creating not



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just a challenge for the human rights movement but contributing new questions

and material for social research.

Goodale argues persuasively that the postnational constellationmarked

by the growing importance of transnational norms and institutionshas

created new conditions, in anthropology and other disciplines of socialinquiry, for the ethnographic method. These may seem unlikely circumstances

for a method so firmly grounded in intimacy and locality. But more than ever

before, it is possible to witness at first hand the encroachments of ideas and

institutions with global reach. Foundationalism and universalism are them-

selves ideas that can become particularly meaningful in social practice, and

the anthropologist (or other researcher or cultural critic) does a valuable

service by making their importance and power topics for close engagement

and critical scrutiny(9). In much simpler terms, lawyers and bureaucrats are

now among the savages of ethnological inquiry, and one of the newest researchchallenges is to observe in practice the connections between their thinking and

the social orders they influence.

Discussions of human rights, however, are complicated by the fact that

certain core meanings are apprehended by people intuitively, emotionally,

and implicitly.This observation supports the point I made earlier concerning

the difficulties of extracting the measures that are built into Sens approach to

social choice theory. It means, It is only through the close ethnographic

engagement with the practice of everyday life that [alternative ways of under-

standing the range of problems associated with relativism and human rights]

become apparent (59). Goodale illustrates this point by citing the work of

other anthropologists, such as Shannon Speeds (2008) study of the transna-

tional networks that converge on the indigenous resistance movement in

Chiapas, Mexico, and a major contribution to legal anthropology by Sally

Engle Merry (2006), who makes her own use of comparative ethnography to

highlight some of the moral vexations of human rights, particularly womens

rights, when translated and applied (or in her terms vernacularized) in

local settings with their own assemblages of custom and political interest.

One of the core issues presented by Goodale involves a distinction between

human rights universality and human rights universalism. Universality is based

on the idea of common humanness, a claim that is at the core of the modern

ideas of human rights (15). Human rights universalism, on the other hand,

involves a kind of utopianism in action, the complicated discursive presence

of these claims as they are acted upon within existing legal, moral and political

practice (15). Anthropology contributes to both domains. The cause of uni-

versality has benefited from anthropologys arguments in favor of humanity

as a single, undifferentiated species, over and against the disorienting fact of

human multiplicity, with anthropologists in the early history of human

rights successfully asserting (without recognition of this accomplishment)

the most important putative cross-cultural fact: that human beings are



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essentially the same and that this essential sameness entails a specific normative

framework(18).

Universalism is also evident in anthropology. In fact, in recent years it has

moved front and center, particularly in more recent attempts by individual

anthropologists and the disciplines largest professional association tore-engage with human rights as both an object of study and a vehicle for eman-

cipatory political practice(19). And largely through its post-colonial commit-

ments to emancipation, anthropology has become mired in the newest

contradictions of culture. Anthropologists have shifted from the idea of

culture as a bounded entity, often some permutation of the German Kultur

with a K with its affinity to the idea of an inner essence orVolksgeist, to

an idea of culture with an emphasis on process or more particularly on inter-

subjective meanings and practices that are shifting and contested. This con-

ceptual transformation, however, remains incomplete, in part because of theobjectifying effects of human rights advocacy, which anthropologists as an

entirety (as would-be defenders and describers of the marginalized and forgot-

ten) have taken up with alacrity. Universalism, with its utopian overtones, is

reflected in the choice of anthropologists to tightly bundle their political com-

mitments with their professional practice (121). But how is it possible to

promote a peoples rights when their identity as a people is analytically inse-

cure, when they represent just one of many possibilities for collective self-

representation and rights claims? Goodales conceptual map makes it possible

to see a fundamental contradiction in the consensual foundations of anthropol-

ogy: it categorically rejects the notion of bounded culture, while engaged in

advocacy premised on the cadastral orientation of the law of peoples, and

that periodically implicates anthropologists in the boundary-enhancing fabrica-

tions of identity construction and the politics of micro-nationalism.

The cultural contradiction (or contradictory approach to culture) that plagues

the agencies of global governance runs along similar lines, though its origins in

policy are quite different. Human rights are based in a core conviction that fol-

lowed from the experience of World War II and the era of decolonization: that

individuals required protection from states, often from the very states of which

they are citizens, and that human rights could serve as an ultimate check on the

abuses of culture manifested as nationalism(75). But this went along with an

impulse to redefine culture as a kind of property, without which individuals

would be unable to prosper, and following from this, to codify cultures, to

name them and to list the essential attributes that the global community

would be committed to protect. Hence, we arrive at the cultural protection

initiatives of UNESCO, as in the 2001 Universal Declaration of Cultural Diver-

sity, which returns to the professionally discarded anthropological approach to

culture as a bounded object of inquiry, appreciation, and protection.

Also possible through the new anthropology of law are ethnographies of

human rights networks, with NGOs as the principal actors whose behavior is



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the problem of investigation. Human rights networks have hegemonic ten-

dencies, or tendencies to become imperial, through the evacuation of

alternative discourses on the basis of what the imperial power believesearn-

estly or notis the correct, or morally superior, or economically more advan-

tageous set of perspectives and practices(108). The common denominator ofGoodales critiques of the cultural conceptions of agencies of global govern-

ance and of human rights-oriented NGOs is their shared resort to distorted con-

ceptions of culture connected to unrealistic futurism, as captured in a

summarizing statement: The problems that culture poses for human rights

theory and practice will not really be solved until those who have chosen to sur-

render to utopia come to terms with everyone else(90).

The programmatic nature of Goodales overview necessarily introduces the

despair of sweeping, unassailable critique based on the clarity of fact and

reason, while calling on his readers to take his glimmerings of optimism onfaith, based as they are (as with Sen) in a methodethnographythat lies

within his specialized competence but beyond his immediate purpose. Harri

Englund, in Prisoners of Freedom, accomplishes what Sen and Goodale, in

the books I have chosen to review, cannot: a critical study of human rights

in practice dedicated to a single, tightly focused setting.

The evidence in Englunds book advises caution with Sens admiration for

freedom. At the intersections of NGOs and the poor of Malawi, normative

approaches to rights often become entangled in the very rhetoric that needs

to be scrutinized, a situation that makes salientthe perils of isolating political

freedoms as the essence of democracy(12). The situation Englund describes

making full use of his fluency in Chichewa and the experience of many years in

Malawi, together with the moral authority of his ongoing commitments to

working in the regionis at variance with the complacency of those who

have convinced themselves of possibilities of human betterment simply by

evangelizing the moral message of rights. In Malawi,NGOs, in effect, exercise

a form of self-control, potentially far more insidious than any law that the gov-

ernment can formulate. Their discourse is elitist, even though many of the self-

proclaimed experts of freedom, democracy, and human rights do not belong to

the elite (20). Translation of human rights instruments has taken place as a

top down exercise, with no evidence of attempts to consult a broad cross-

section of native speakers before launching a translation for human rights

(48). And human rights discourseeven when asserting all individuals as

equalscan be deprived of its democratizing potential and made to serve par-

ticular interests in society(49). This is a setting in which well-meaning acti-

vists believed that their knowledge of rights had not yet touched the lives of the

grassroots. Activists sought to enlightenthe Malawians they considered as the

grassroots, also known as the masses. They referred to this process with the Chi-

chewa verb kuwunikira, which connotes the shedding of light. Activists saw

themselves as the torchbearers, the ones who brought light to the darkness(71).



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One of Englunds more disconcerting findings is the extent to which an

NGOs legal officers used their apparently exclusive legal knowledge to

avoid confronting the exploitation that many Malawians endured. Under

these circumstances, democracy and human rights were not allowed to

exist as contested concepts, amenable to the expression and negotiation ofdiverse interests(125). Instead, contempt for the victimhood of their clients,

made each of them appear as a saboteur of his or her own freedom(129).

Englunds critique is accomplished not just in the manner of an expos, not

just as an effort to bring out the real life consequences of evangelical

approaches to human rights, but applies equally to the rethinking and reframing

of the idea of justice, the very problem engaged in by Sen. It describes circum-

stances in which the universalism of preconceptualized ideas of freedom and

democracy inevitably results in their negation. Hypocrisy is built into the intel-

lectual tool kit of Africas rights reformers from the outset. The parameters oftheir discussions with supposed beneficiaries of freedom and democracy are

closedor perhaps open only in the way of traps, ready to spring shut on entry.

Unexpectedly, Englunds blistering condemnation of human rights

approached as a creed leaves room for optimism, or at least recognition of

ongoing possibilities for the ideals of democracy, development, and freedom

that are the driving forces of the rights movement. In contrast with the

narrow, subject positions of rights activists, the claimants seeking legal aid,

and the urban poor caught in the midst of moral panic consistently voiced con-

cerns that were of general import. They demanded attention to the necessity to

inform any realization of human rights with an understanding of the situations

in which people live(204). Clearly enough, an alternative approach to human

rights universalism would begin with close attention to the conceptualizations

of the rights-related ideals of the Africans themselves, that is to say, to navigate

the civic virtues that emerge out of explicit and inclusive negotiation (193).

This finding would certainly appear to have wider implications than the par-

ticular setting and circumstances of Malawi, but the necessarily tight focus of

Englunds ethnography, which is its specific strength, at the same time leaves

unanswered some of the comparative implications of his work. Englund

approaches his ethnography with an unusual, perhaps unique, degree of

honestyverging on contempt for the kind of power interests that commonly

manage to control both the lives of the poor and the findings of researchers

and this makes it difficult to generalize from the setting he describes. There is

enough of a ring of truth to his account of the activistselitism and complicity

with the attitudes and structures of extreme social inequalities to suggest that

this is common to human rights activism almost everywhere. But there

remain some settings where we see an everyday practice in which the subjects

of rights are engaged in more direct, strategic use of human rights and their

starry-eyed NGO advocates, not just engaged in futile resistance through sys-

temically incompetent NGOs or passively venting their agency through wild



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rumors. The Maasai of Kenya and Tanzania, for example, have made active use

of activists, seeking protection from state encroachments on pasturage by pur-

suing legal claims and participating in various international forums as an indi-

genous people and as a pastoral people (Hodgson 2004). Englund would very

likely not deny that human rights are malleable by the particular interests of thepowerless as well as the powerful, though his emphasis is clearly on the abuses

of states and NGOs. This strategic use of human rights networks and insti-

tutions of course raises possibilities for new avenues to power from within

the communities of the marginalized. At the same time, new strategies of

rights campaigning add the complexities of cultural appeal to potentially sym-

pathetic audiences as a rights strategy, with its built in potential for self-

stereotyping and corruption of the goals of self-determination (Niezen 2010).

This is simply to say that Englunds courageous ethnography raises compara-

tive questions and possibilities, which he points to but cannot fully realize in asingle ethnography, in which the outlines of an alternative approach to human

rights, absent the errors of elitism and imperialism, can be seen more clearly

than ever before.

This brings us to an important common denominator evident in all three

approaches to the social study of human rights: none call for an outright rejec-

tion of transnational normative systems. There are no romantic longings after

simple, self-enclosed prosperity, just a certain Weltschmertz in response to

the systemic suffering and indignities imposed on people who deserve better.

Human rights are now mainstream, an unavoidable fact of life, with which

we as scholars with critical training can either reconcile, and to which we

can apply our skills of observation and interpretation, or which, in our

absence, will change the world for better or worse (and probably a bit of

both in varying degrees).

R E F E R E N C E S

Arrow, Kenneth. 1950. A Difficulty in the Concept of Social Welfare. Journal of Pol-itical Economy58, 4: 32846.

Herder, Johann Gottfried. 2002. Philosophical Writings. Michael Forster, ed.Cambridge: Cambridge University Press.

Hodgson, Dorothy. 2004. Once Intrepid Warriors: Gender, Ethnicity, and the CulturalPolitics of Maasai Development. Bloomington: Indiana University Press.

Merry, Sally Engle. 2006. Human Rights and Gender Violence: Translating Inter-national Law into Local Justice. Chicago: University of Chicago Press.

Niezen, Ronald. 2010. Public Justice and the Anthropology of Law. Cambridge:Cambridge University Press.

Rawls, John.A Theory of Justice. 1999. Rev. ed. Cambridge: Belknap Press of HarvardUniversity Press.

Sen, Amartya. 1999. Development as Freedom. New York: Anchor.

Speed, Shannon. 2008. Rights in Rebellion: Indigenous Struggle and Human Rights inChiapas. Stanford: Stanford University Press.


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Niezen CSSH Article 2011