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Critical Legal Conference 2009
Revolutions in Natural Law
In the 1971 debate between Foucault and Chomsky (see video links below), we can witness what are now familiar opposing positions: 1) Chomsky's classical view of (human) nature as a founding essence that demands political revolution to enable it to flourish; and 2) Foucault's radical disavowal of (human) nature as a construction of systemic institutional power which, when relied upon as a revolutionary ideal, merely reproduces the systemic injustices it purports to overthrow. Given the advances in philosophical and critical thought since then, for example, Bruno Latour's critique of mononaturalism in modernity, Pierre Hadot's emphasis on the historical movement from the "secret of nature to the mystery of Being" and, not least, Costas Douzinas' genealogy of natural law and right, is there the possibility to move beyond the strict opposition exemplified by Foucault and Chomsky towards a concept of natural law that makes sense for our time? Must nature necessarily be conceived as a determinate (transcendental, mythological or theological) essence in the classical manner? And can nature be conceived outside an institutional or ideological framework of understanding? More generally, how can the link between nature and law/ethics/normativity be understood today? If nature is to be rethought, how does this impact on the relation between positive (legal) human rights and natural right? Is natural law a purely Greco-Roman concept or does there exist some 'non-Western' notions of a relation between nature and ethical or legal action broadly defined? Are there any links that one can make between the 'universal' and 'nature' other than to charge them with being accomplices in imperialism? What could a 'postmodern' concept of natural law look like other than a hyper-positivisation of human rights? What of the prospects for a revolution in natural law?
Gilbert Leung
gillyleung@gmail.com
Foucault and Chomsky Debate: Part 1; Part 2
Accepted paper abstracts
Natural Law After Fideism
This paper builds on my previous published research where I studied how Aristotle's dualism and Aquinas's theism led to important differences in their theories of natural law, and how contemporary natural law theory has tried to revive the tradition without speaking about metaphysics. What I argue here is that while natural law seeks for the universal and objective, the actual tradition has been based on presuppositions that are not universal. This is what is especially objectionable to modernity in that while Enlightenment thinkers sought to provide rational justification, it has been pointed out by Foucault and others that in fact this was just another form of fideism. This continues in contemporary natural law: for instance, John Finnis proposes as the summum bonum that unifies all other goods "friendship with God," and yet theism has not been established through rational justification. And yet, the "hyper-positivisation of human rights" imports assumptions about what is good in order to define what rights are necessary to achieve the good life. The problem in both approaches is the same: fideist assumptions. Thus, my argument is that a postmodern concept of natural law must begin by avoiding fideism by starting with formal similarities that are true of all. If nature is defined as "what all members have in common and what distinguishes them from non-members," there is a necessary link between the universal and natural that excludes imperialism which by its nature is imposed and excluding. So, for instance, the formal realties of choice, value, thinking, means and ends, human dignity, sexuality and origination, justice and suffering provide a framework within which to work toward agreed upon content. I conclude by suggesting that it is only in such a law that a unifying framework can be achieved to support and protect what is unique and different.
Owen Anderson
Arizona State University
The Adikia Hypothesis: Can Communism Save Human Rights?
The human rights movement claims that there are individuals and identities (communities). This is true if we add that there are individuals, identities and their radical response to adikia.
The oldest extant western text, a fragment by Anaximander, speaks of an adikia (dislocation, disjointure, injustice) that opens history as its reparation. This paper argues that adikia is the primordially synchronic social condition: it has politico-historical, theoretical and subjective aspects and leads to historical change as ongoing struggle between dike and techne. The subjective responses to adikia's epochal instantiations make dissent and revolution the way of history. Communism is the name of the modern response to adikia. Its principle of (right to) revolutionary equality could save the principle of rights from its immersion in the bio-political control of life.
Costas Douzinas
Birkbeck, University of London
Denatured Natural Law
The phrase 'denatured natural law' was originally coined by Hans Kelsen to describe the transformation of natural law into the ideology of positive law. A natural law that 'delegates' positive law empowers positive law to replace it. It becomes a natural law without nature, which for Kelsen is no natural law at all.
I would like to usurp Kelsen's phrase and impose upon it a totally different meaning derived from the history of ideas. The Stoics were the first to associate nomos with phusis, turning nature into divine ordinance against thesis (posited articles of law). In the process, they created a problem with respect to the precise content of natural law that has been the subject of contention ever since. Zeno, the first Stoic, was almost erased from the history books for suggesting that according to natural law, one should practice free love in a moneyless and institutionless commune. Seen as an embarrassingly false articulation of natural law, later Stoics put forward their own more 'reasonable' versions. Indeed, throughout history, there have been as many versions of natural law as there have ideas about nature, which leads me to defend the notion that there is only one thing that is certain about natural law - its radical uncertainty.
This uncertainty chimes well with a distinct line of thought that runs from Heraclitus to Heidegger. For such thinkers, phusis, natura or Being is conceived negatively as that which loves to hide, tends to disappear or is veiled. In a sense, the nature of nature is to be without clear access to nature, or more radically, to be without nature itself. If this is so, only a small and fairly obvious step needs to be made to associate a 'denatured natural law' to an ethics of Being (Heidegger) or law of existence (J-L Nancy). In taking this step, natural law might more coherently be understood in terms of its innate revolutionary zeal.
Gilbert Leung
Max Planck Institute
for Comparative Public Law
and International Law
Black Natural Law: Reason, Affect, and Human Nature in Douglass and King
Many legal theorists concerned with issues of race, particularly those associated with critical race theory, are suspicious of natural law. Critical race theorists are interested in social factors, particularly those pertaining to race, that influence lawmaking and adjudication – and they are interested in using that knowledge to affect change in the interest of disadvantaged races. Critical race theorists are suspicious of universal claims, such as those perceived to be made by natural law theorists about human nature, both because such claims are thought to conceal political motivations and because they are thought to inhibit political action. Yet a great many leaders in struggles against racial injustice have appealed to a universal human nature, and to natural law. Are appeals such as those of Frederick Douglass and Martin Luther King, Jr., to be understood as nothing more than rhetorical flourishes?
The image of natural law as making universal claims about the constitution of human nature often tends towards caricature. Many contemporary natural law theorists are committed only to a characteristically human capacity for practical reason, and to the view that we can discern basic principles of practical reasoning. But when advocates of racial justice appeal to universal human nature, they do not seem to be referring to a capacity for or principles of practical reason. Taking the words and narratives of Douglass and King as sites of investigation, I argue that the shared human nature to which these advocates refer is affective rather than rational. Drawing on recent work by theorists and philosophers of affect, I argue that affect (for instance, to suffer and to love) is not reducible to practical reason, but can still provide a robust foundation for natural law. Moreover, I argue that this affect-centered account of natural law should be appealing to critical race theorists.
Vincent Lloyd
Georgia State University
Global environmental injustice and the natural rights revolution in Madagascar
Land in rural Madagascar is typically managed through kinship organisation, with descent groups using particular parts of a village landscape. Several types of rights coexist, for example sacred forests may be treated as a form of common property for collective ceremonial use, permanent agricultural land as family private property, and forests for land reserves and grazing may be partitioned on the basis of lineage or held as a village commons. New family property is acquired through first occupancy and clearing of the lineage/village commons and secured through continued cultivation. Since pre-colonial times, these rights co-existed with (largely ineffective) state legal institutions. But in recent times, the spatial superimposition is causing conflict because new kinds of rights are being created under policies to enlarge protected areas and to credit Reduced Emissions from Deforestation and Forest Degradation. For example, one recent issue is how to convince rural people who claim rights to forests for land and livelihood, that under state law they do not have this right, but only a right to be compensated for avoiding deforestation, plus a right to ancestral domain insofar as compatible with biodiversity and carbon values.
The universalistic rationale of participatory conservation is to achieve substantive effectiveness of public policy through guarantees of procedural justice. New procedures of ‘benefit-sharing’ and ‘power-sharing’ include stakeholders (such as rural populations) hitherto excluded from the decision-making process. The purpose is to re-frame power relations in order to protect nature, or to control land and resources in accordance with particular cultural conceptions concerning the environment. The necessary condition is that all stakeholders commit to following the agreed procedure and to accepting its outcomes. According to the procedural model, land tenure policy cannot be considered just a) unless all participants trust the procedure to be fair and commit to accepting its outcome whatever it may be, and b) unless this procedure has in fact been followed to allocate property rights.
Based on extensive fieldwork, the paper argues that neither of these conditions is met in rural Madagascar where diverging definitions of nature and rights to land and resources are re-framed by the participants as a means to maintain power relations or to control people in new ways.
The purpose of re-negotiating the properties of property, and of socially constructing nature, is not to protect nature but to maintain the idea of a ‘naturally given’ order of precedence among first occupants, later settlers and political authority. Relations between humans change only as a consequence of constructions of nature. The conclusion to be drawn from environmental property rights revolution is that rural people are not trapped in an un-changing tradition, but committed to another kind of procedure. Put differently, procedural justice has a substantive core: not only just procedures and their effective implementation, but also minimal common values.
Frank Muttenzer
Graduate Institute of International and Development Studies, Geneva
Gandhi: Emancipation through Natural Law
The questions raised by this theme, though not novel, are of key importance nonetheless due to their bearing on the conceptions of human rights, universal norms, imperialism, emancipation, and politics. They are equally vital, if not more, due to their impact on the individuals' understanding of ethics and morality, which is subsequently reflected in individual and collective actions.
This paper will not address these questions through a focus on academic exchange of ideas and arguments, but will draw out lessons from an era of pursuit of truth exhibited in the life of one man, which then had a deep impression on the wider humanity. But it is important to highlight that these were not mere theoretical lessons that were the preaching of one individual, and nor were they representation of a single culture and ideology; rather, they were born out of intercultural translation of several distinct traditions, and then substantiated through practice and struggle. This paper would turn to Gandhi's ideas for responses to the questions raised here.
Gandhi's ideas, expressed in his numerous writings and his various biographies, are not limited to one discipline, but discuss nature, law, ethics, morality, universalism, emancipation, politics, revolution, rights, duties, westernisation, cultural relativism, traditionalism, and much more, weaved together into one stream that he considers an individual life can be modelled against. His own life was a struggle towards this, which then reverberated across the globe in the lives and movements of Nelson Mandela, Martin Luther King Jr., and Aung San Suu Kyi, among others.
Taking lead from this, the paper would present a view of nature and law which is essentially non-Western, but does not react against the West; which is grounded in religion, but not dogma; which is universalistic, but not hegemonic; and which is individualistic, yet geared towards the collective – the emancipatory view of natural law.
Raza Saeed
University of Warwick
God of War: Reading the Chomsky-Foucault Debate into Anti-Terrorism Legislation
Building upon the fundamental difference between the existence of an underlying innateness of human nature and the absence of the same, and given that the Chomsky-Foucault debate reveals a certain arbitrariness in what the concept of human nature signifies, we would like to consider how these issues relate to anti-terrorism legislation. In so doing, we will consider interpretations of legitimacy, legality, justice as well as how the dialectic between the government and the citizen impacts upon sovereign authority in terms of legislation. We feel that it is of utmost importance to try and cull out a more formal definition from the above mentioned debate of what exactly law is and what it seeks to achieve. Until that is realised, we feel that it would be futile to further dwell upon how they may look at any legislation. The scope of our research will thereby limit itself to the original debate between Chomsky and Foucault as well as to later commentaries that have focused on this war of wits. While our position is perhaps more sympathetic to Foucault than Chomsky, we will nonetheless try and take as neutral a view as possible.
Priyanka Shukla and Vrinda Singh Oberoi
National Academy of Legal Studies and Research (NALSAR), Hyderabad
Lessons from a Right to Revolution?
Human rights usually found themselves in either positivistic edict or metaphysical assertion. The Universal Declaration of Human Rights (along with its subsequent legalisation in the Covenants) looks to both of these for legitimation. However there is another, very different approach to human rights. The right to revolution ruptures the UDHR's easy blurring of the positivistic and the metaphysical, by rendering both foundations void. The traditional reaction is therefore to discard this right because it cannot fit within these bases of legitimacy. This paper seeks to do precisely the opposite. It seeks to take the right to revolt seriously and ask what are its lessons for a different thinking of human rights. This alternate human rights cannot rest upon stable human properties or neat teleologies. Instead of possessive individualism, statism and the levelling down of sense so implicit in current human rights, the right to revolution points to the radical non-metaphysical core of rights which Douzinas calls 'right-ing'. This paper modestly seeks to take the right to revolution seriously, and ask what lessons we can learn from it. It looks to Locke and the English Revolutionaries for a radical understanding of nature, but seeks to understand them through Engles' assertion that 'the right to revolution is the only real "historical right"'.
Illan rua Wall
Oxford Brookes University