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”
The Centre for Disability Law and Policy at National University of Ireland, Galway will run a conference on the 3rd of May 2013. The title of the conference will be ‘Community Living for all’ – A Conference on the Future Role of the European Union Structural funds to Advance Community Living for Older People and People with Disabilities’. It will be ‘an event in association with the Irish Presidency of the Council of the EU’ which is appropriate given that a stated priority of Ireland’s EU Presidency will be to finalise agreement on the Multiannual Financial Framework (MFF) that will determine the EU budget from 2014-2020 and therefore cohesion funding. The event is jointly directed by Senator Katherine Zappone, member of the Senate of Ireland and the Centre for Disability Law & Policy directed by Professor Gerard Quinn.
The conference is open to all interested in the development of positive EU social policy in the fields of ageing and disability.
The speakers are drawn from a variety of EU-level institutions and others including the European Commission, the EU Fundamental Rights Agency, the European Group of National Human Rights Institutions, the United States Federal Administration for Community Living. European level civil society groups will be represented by the European Disability Forum and Age Platform Europe. The United Nations Office of the High Commissioner for Human Rights (European Region) will also be represented. The growing role of European philanthropy in achieving community living will be represented by the European Foundation Centre.
The conference will be opened by the Irish Minister for Older People, People with Disabilities, Mental Health and Equality – Kathleen Lynch, T.D. More details on the conference and registration is available here.
Recently, there have been the rumblings of an emergent pan-Latin American student movement. Crucially, this potential movement coheres around the demand for a right to education. In Colombia and Chile a new front is being fought against the creation and maintenance of private education and the implicit commodification of learning. However, this emergent trans-continental rights-demand is not simply another traditional usage of rights. Very often, when we hear ‘human rights’ we think about them in the most legalistic of senses. They are fetishized as that which the state may guarantee for the subject. As noted by all sorts of critical theorists, such an identification leads to a thorough limitation of political agency. The political subject is figured simply as the individual in need of the state’s protection. I have recently argued, in Human Rights and Constituent Power, that we must begin to think about a different human rights, a differential human rights. This idea of rights would have, as its condition of existence, a fundamentally split nature. On one side is the closure implicit in the juridical form, but on the other is the radical political demand to reshape the world. I have suggested that we might term this second limb ‘right-ing’ – in that it is a potent and creative process rather than something which is always already given. Let me develop the idea a little more in the context of the radical demand for a right to education instantiated in Chile and Colombia.
The ‘Chilean Winter’ has seen massive student demonstrations against one of the most privatized educational systems in the world. Joined by trade unions and other left organizations, the students have mobilized and manifested themselves in public space. They have fought for the re-establishment of public institutions which would be run on a not-for-profit basis. They have argued against the private universities and secondary schools that render education as a commodity. Continue reading “A New Latin-American Students Movement & The Right To Education”
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”
At last weeks first birthday workshop on human rights in Ireland, Fergus Ryan from DIT, suggested that the crucial problem for human rights activists in Ireland was that decisions at the ECHR or Supreme Court were seen as the end of the story, ignoring what he called the ‘cultural change’ necessary for successful human rights action. He argued that you cannot adduce this or that ECHR decision in a political argument and expect that to be the end of the matter. Rather, it is necessary for people to culturally buy-in to human rights. To this point, Mark Kelly of the Irish Council for Civil Liberties asked; how long do we have to wait for cultural change. I want to suggest that Continue reading “Human Rights and Irish (Political) Cultural Change”
In this podcast recorded earlier in August, our regular blogger Mairead Enright conducts a wide-ranging interview with Seyla Benhabib; the Eugene Meyer Professor of Political Science and Political Philosophy at Yale University. We apologise for the poor quality of the sound in places – the interview was recorded over a bad line. You may need to turn your volume up higher than usual.
Interview with Seyla Benhabib
In the interview, Mairead first asks Prof. Benhabib whether her idea of ‘disaggregated citizenship’ accurately describes global transformations in states’ relationship to migrants and whether she is still hopeful that citizenship can be rethought among cosmopolitan lines. Prof. Benhabib discusses the idea at length, using the case of the EU and insists that the evidence points to a long-term trend in Europe and the United States toward the uncoupling of the entitlements of citizenship from ethnic belonging.
Human Rights in Ireland is delighted to welcome this guest post from Catherine Turner, Transitional Justice Institute, School of Law, University of Ulster. You can find out more about Catherine on our guests page.
Since the signing of the Good Friday Agreement in 1998, significant amounts of time, effort and money have been poured into the drafting of a bill of rights for Northern Ireland. The reasons for this process are well documented, focusing primarily on the need for a “strong and inclusive” bill that will reflect the “particular circumstances of Northern Ireland”.
In an article published this month in (2010) 3 Public Law 451 (Westlaw UK subscription required), I suggest that while there has been much focus on the proposed content of a bill of rights, fundamental questions surrounding the desirability of legal entrenchment have been overlooked. At the heart of the bill of rights debate lie fundamental questions of law, state and society. There are competing political philosophies at play which, if properly understood, can contribute significantly to our appreciation of the divergent opinions and views on the proposed bill. Continue reading “Guest Contribution: Turner on Human Rights & Northern Ireland”
We are delighted to welcome a Guest post by Dr Ben Golder on the critical theory of human rights.
Responding to recent engagements with the late work of French Philosopher Michel Foucault, I will argue that he does not submit to the ‘moral superiority’ of humanism and introduce a liberal humanist subject, as is often argued. Rather, Foucault’s late investigations of subjectivity constitute a continuation and not a radical departure from his earlier positions on the subject. Such a reading helps us to assess Foucault’s late supposed ‘embrace’ of, or return to, human rights – which is here re-interpreted as a critical anti-humanist engagement with human rights, conducted in the name of an unfinished humanity. In this way, this paper engages not only with the way in which mainstream accounts of human rights tend to assimilate anti-foundational and post-structural challenges, but also with the quality of Foucault’s own political legacy and future in the age of human rights, 25 years on.
According to a curious, but persistent, reading, Foucault finally succumbed to the ineluctable lure of the subject in his ‘late’ work. In his studies of ancient Greek and imperial Roman ethics, and in his contemporary political interventions, so goes the story, Foucault abandoned – or, in more nuanced renditions, progressively relinquished – his archaeological and genealogical critique of the subject. According to this reading, what emerged phoenix-like from the embers of Foucault’s exhausted genealogical project was none other than a liberal humanist subject – a pre-discursive, fully autonomous and unconstrained subject ‘beyond power and knowledge’, as one recent teller has it. Crucially, one of the political effects of this putative revision of Foucault’s views on power and subjectivity (and something entirely coincident with it) is, we are told, his unqualified ‘embrace of human rights’ principles (Dosse, p336), indeed even his ‘shocking … advocacy’ (Paras, p12) of such. Enter the triumphant subject of human rights; exit, somewhat confusingly, the genealogy of power/knowledge.
Continue reading “Foucault, Anti-humanism and Human Rights – Guest Post by Ben Golder”
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”