Costas Douzinas - The End of Human Rights: Critical Thought at the Turn of the Century

THE END OF HUMAN RIGHTS

THE END OF HUMAN RIGHTS

CRITICAL LEGAL THOUGHT AT THE TURN OF THE CENTURY

COSTAS DOUZINAS

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Costas Douzinas 2000

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Contents

Preface

This is the final part of a trilogy that Ronnie Warrington and myself planned in the late 1980s. The first two volumes Postmodern Jurisprudence and Justice Miscarried were published in 1991 and 1994 and contributed to the creation of a distinct British critical legal movement and to the turn of legal scholarship towards ethical concerns. This final volume of the trilogy completes the intellectual journey Ronnie and I started with the aim of reconstructing legal theory for a new world of cultural pluralism, intellectual openness and ethical awareness. Fate ordained that I would not have the privilege of discussing ideas, disputing arguments and writing this book with Ronnie. The End of Human Rights is dedicated to him.

When I started my career, my then Head of Department told me that if I persisted with my theoretical interests, my academic future would be limited. A few years later, an article of Ronnie and myself was rejected by a learned law journal because it used words like deconstruction and logocentrism, which could not be found in the OED. How things have now changed. Our article was eventually published and went on to be translated in five languages, a rather unique achievement in law. The word deconstruction appears commonly in law textbooks and articles. An interest in theory is a positive advantage for young scholars applying for academic posts.

Legal education has been experiencing recently something of a Renaissance, which has put it back where it belongs, at the heart of the academy. The Critical Legal Studies movement was pivotal in this development. But I should add that for me the greatest achievement of critical lawyers is that they teach, research and write under the guiding principle that a law without justice is a body without soul and a legal education that teaches rules without spirit is intellectually barren and morally bankrupt. This book, a critique of legal humanism inspired by a love of humanity, belongs to that climate. It aims to offer an advanced textbook of legal theory and human rights for the melancholic lawyer at the end of the most atrocious century in the history of humankind.

I had the amazing good fortune to be involved in the establishment and phenomenal success of the Birkbeck Law School in the early 1990s. This success would not have been possible without the extraordinary group of committed academics and imaginative scholars, my former and current colleagues, who made Birkbeck the best little law school in Britain. I owe many intellectual debts to all of them and in particular to Peter Goodrich and Nicola Lacey, my predecessors as Heads of the Birkbeck Law School. Peters historical sensitivity, fiery imagination and acerbic sense of humour have contributed to the writing of this book and the wider critical legal project in many ways, many conscious and acknowledged, others unconscious and opaque. Nicolas gracious wisdom and friendly advice in relation to this and many other projects has been invaluable. Critical legal studies would not have been such an influential movement without those two charismatic friends.

Many colleagues and friends have contributed to the writing of this book over the last two years. I cannot mention them all. But I have great pleasure in thanking some friends, whose contributions are close to the surface of the text. I should like to thank in particular Alexandra Bakalaki, Bill Bowring, Julia Chryssostali, Lindsay Farmer, Peter Fitzpatrick, Rolando Gaete, Adam Gearey, Shaun McVeigh, Les Moran, Tim Murphy and Adam Tomkins. The students of the Human Rights course at the Birkbeck Law School have contributed to this book through both their huge enthusiasm and commitment to human rights and their suspicions towards all grandiose statements by the powerful. Over the years, I learned more from them than they possibly learnt from me.

Research for this book was greatly facilitated by various grants and fellowships. Birkbeck College gave me a long sabbatical leave after the completion of the establishment of the Law School. Part of the research was carried out at the European University Institute, Florence and at the Universities of Princeton and the Cardozo Law School, New York, where I held various fellowships in 1997 and 1998. Yiota Cravaritou was a great help and inspiration at Florence, Jeanne Schroeder and David Carlson were important sources of edification in New York, while Kostis Douzinas and Nancy Rauch provided the most wonderful hospitality and animated discussions in New York. Natasja Smiljanic and Maria Kyriakou were invaluable research assistants at various points of the project. My daughter Phaedra suffered seriously in the summers of 1998 and 1999 when rather than going swimming with her, I kept writing and being an unsociable and irritable companion. Nicos and Anna Tsigonia provided inspiration and challenged ideas. Finally, my deepest thanks go to Joanna Bourke who, throughout her annus mirabilis of 1999, kept being a resourceful and tolerant company and altogether fabulous.

Dryos, Paros, August 1999

PART I

THE GENEALOGY OF HUMAN RIGHTS

The Triumph of Human Rights

A new ideal has triumphed on the world stage: human rights. It unites left and right, the pulpit and the state, the minister and the rebel, the developing world and the liberals of Hampstead and Manhattan. Human rights have become the principle of liberation from oppression and domination, the rallying cry of the homeless and the dispossessed, the political programme of revolutionaries and dissidents. But their appeal is not confined to the wretched of the earth. Alternative lifestyles, greedy consumers of goods and culture, the pleasure-seekers and playboys of the Western world, the owner of Harrods, the former managing director of Guinness Plc as well as the former King of Greece have all glossed their claims in the language of human rights.1 Human rights are the fate of postmodernity, the energy of our societies, the fulfilment of the Enlightenment promise of emancipation and self-realisation. We have been blessed or condemned to fight the twilight battles of the millennium of Western dominance and the opening skirmishes of the new period under the dual banners of humanity and right. Human rights are trumpeted as the noblest creation of our philosophy and jurisprudence and as the best proof of the universal aspirations of our modernity, which had to await our postmodern global culture for its justly deserved acknowledgement.