We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway. In this guest post Dr. Hickey reflects on the work of Ronald Dworkin. Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.
The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.
Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations. Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.
And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!
You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations. Continue reading “The Rich Legacy of Ronald Dworkin: 1931-2013”
Sanex, a toiletries corporation, have a new advert. They tell us that ‘Your underarm skin has three fundamental rights: A right to effective twenty-four hour protection, to moisturization and to a natural Ph balance’. In this post I would like to briefly explore these rights, before talking a little more seriously about two newer rights that have a little more political effect. Let me pose two questions that this advert suggests: firstly, who/what is the subject of the rights and secondly, what are its effects, in base political terms. Obviously, Sanex are suggesting that across the world, human skin is being oppressed by those dastardly humans who wear(?) it…. The subject of these three fundamental rights appears to be one’s skin, and its protection occurs through Sanex’s ‘dermo-active-three complex’. The effect of this right, is clearly that other toiletry companies do not respect the fundamental rights of your skin. There is a fissure between the person and their skin and it is the skin that holds these rights. One can only imagine what rights other parts of your body might have, and how they might be ‘respected’. The conflict of my constitutive parts is going to have the courts busy for years I suspect – the skin on my face has the right to air and sunlight, but the hair that grows there is surely violating these right. My beard has the right to exist, but shaving clearly violates it… In fact the problem of excretion in general is going to be a minefield for rights-talk.
There is an important point here: rights are deeply linked to desire. Rights are (at least in one sense) a manner of authorising or (pro)claiming the authority of your desire. There is a complex interplay between recognition of the legitimacy of one’s (political) desires and identity.Sanex are thus tapping into this authorisation inherent in rights, and combining it with the pseudo-scientific jargon that has long been a hallmark of cosmetics campaigns. They are withdrawing the sense of rights and in the hollow shell of the term laying crass commercial interests. But what of rights in all this: We have long known that rights were infinitely reversible, that there is no pure liberatory or progressive essence at their heart. In fact, individual rights stem precisely from such a reversibility – human rights stem from the sovereign’s natural right to rule which morphs into the natural rights of the individual before and during the enlightenment. Rights themselves are reversible and have no necessary political position
Continue reading “An Infinite Reversibility: The Rights to the City, of Skin and of Truth”
In the last months, we have seen the emergence of ‘Anonymous’. In particular, in the days after the widespread attack on Wikileaks (following their publication of leaked US diplomatic memos) they emerged with a fairly credible threat to take down major global internet presences (belonging to both states and corporations). They have continued to post a variety of curious videos to YouTube that threaten corporations and regimes alike (see for general information here and here, on Operation Payback see here, on Algeria; here, and on Egypt; here). In general, these messages seem to coalesce around the demand to stop attacks on free speech particularly through the internet. This ‘movement’ is strange to the ears of those associated with human rights as it seems to mix postmodern cosmopolitan demands for human rights with a radical political philosophy of the multitude. This is an uncomfortable mix on the face of it because the radical politics of Hardt and Negri or Agamben (for instance) are inimical to traditional human rights. I want to argue that this is not such a fundamental contradiction. What Anonymous seem to see is the radical democratic potential of human rights – this would be a potential quite distinct from the conventional renderings.
The first point to note is that while Anonymous make statements and undertake actions they are not a unity. Continue reading “Anonymous Hacktivism & the Discourse of Human Rights”
DuVall summarises the American abolitionist Frederick Douglass’s thought: ‘if submission were replaced by civil resistance, the people could pierce the shroud of oppression, shifting power in a way that few in the world would have comprehended.’ The starting point for civil disobedience is injustice. However, the question always placed at the feet of those who resist by breaking the law, is whether such acts can ever be right. Civil disobedience became a major question for political theory in the US in the sixties and seventies. I want to suggest that two of the issues raised in that debate can usefully be drawn out here. Firstly, there is the question of whether civil disobedience is non-violent by definition. And secondly, there is the question of whether civil disobedience requires a sort of existential choice between security and order. (For further discussion of these points and more, see ‘The Defense of Conscience – A Limited Right to Resist’, which this piece draws upon).
Let me begin with the definitional debate. Bedau states ‘Anyone commits an act of civil disobedience if and only if he acts illegally, publicly, non-violently, and conscientiously with the intent to frustrate (one of) the laws, policies, or decisions of his government.’ Continue reading “Civil Disobedience: Protest, Violence and Anarchy”
Colm O’Cinneide is Reader in Laws at University College London. He is the author of several books, including Discrimination Law: Theory and Context (with Malik and Bamforth).
It is a great pleasure to take part in the celebration of this blog’s first anniversary. It occupies a prominent place in my extremely cluttered Internet Explorer Favourites folder: very few legal or human rights blogs anywhere in the world match it in terms of quality.
Reading its contents over the last year, I have been struck by the way in which human rights arguments can now be mobilised in multiple different contexts. The language of rights has become a flexible and sophisticated instrument: it now offers a very potent, powerful and convincing way of seeing the world and of trying to change it. Continue reading “Anniversary Blognival: O'Cinneide on Human Rights Today”
In his insightful ‘Inaugural Editorial’ for the Irish Human Rights Law Review, Donncha O’Connell briefly addresses the lack of enthusiasm in Ireland for a political approach to human rights (rather than juridical). There is much to commend the editorial. Perhaps the most interesting element is O’Connell’s sense of the political and its relation to human rights. He poses the traditional dichotomy between law and politics, and furthermore within politics, between social movements and the traditional political sphere of the legislature. He argues that human rights in Ireland tends to be too focused on the juridical forms, ‘Too much time [he says] is spent on winning arguments about textual formulae that may or may not affect actual outcomes for actual human beings’ (p.xi). However, he argues that at the base of this lies a dysfunction in the Irish polity. Referring to civic republicanism, he diagnoses this fundamental dysfunction as an absence of ‘public morality’. In this critique, he shows himself to be alive to the problem of rendering human rights as an essentially legal form, thereby excluding other disciplinary perspectives. However, there is a secondary issue: Once you accept this initial refusal to enclose human rights in law, the question becomes how to frame the political sense of human rights. I would like to take up O’Connell’s analysis, and push it in a different direction.
Continue reading “Retreating the Political in Irish Human Rights: Donncha O'Connell's 'Inaugural Editorial' in the Irish Human Rights Law Review”