A Latin American Sociopolitical Conceptualization of Human Rights

Abstract

Unlike their counterparts in Asia and Africa, many Latin American human rights scholars have passively accepted the supposed cultural relevance of the liberal discourse of human rights and have limited academic studies to the sphere of legal analysis. Nevertheless, the work of the social sciences in the region has enriched human rights thought and the practices of social movements have enriched human rights practice. This article proposes that the study of human rights in Latin America needs to move beyond the comfortable limits of European liberalism and enter the field of political sociology that studies precisely where violations occur and the construction of hemispheric defense by social movements. This suggests that a truly Latin American notion of human rights would be sociopolitical rather than legal as the major contribution of the region to discourse has been its philosophy of action and the practice of social movements inspired by this philosophy. More specifically, the article proposes a way to conceptualize human rights from a sociopolitical and Latin American perspective in such a way that it recovers the historical legacy of social struggles from a discursive perspective, relying in particular on ideas of genealogy and intertextuality and is based on the thought of Latin American, Asian, and African theorists and philosophers who have moved beyond the confines of liberalism.

Ariadna Estévez has a PhD in Human Rights from the University of Sussex (Brighton, England), a MA in Political Sociology from City University (London, England), and a BA in Journalism and Mass Communication from the National Autonomous University of Mexico (UNAM). Dr. Estevez's area of specialization is the social and political theory of human rights as it relates to international political sociology.

She is currently a full-time researcher at the Centre for Research on North America at the National Autonomous University of Mexico (UNAM). She is also a professor-tutor for the MA in Human Rights and Democracy at the Latin American Faculty of Social Sciences, Mexico (FLACSO Mexico).

Notes

1. For an interesting discussion on the thinkers of New Spain, see: BEUCHOT, Mauricio. (2000) Filosofía social de los pensadores novohispanos (México: IMDOSOC). IBARGÜENGOITIA, Antonio. (1994) Filosofía social en México, siglos XVI al XX (México: Universidad Iberoamericana). Para la adopción del liberalismo en el pensamiento mexicano véase: REYES HEROLES, Jesús. (1978) México. Historia y Política (Madrid: Tecnos). HALE, C. A. (2005) El liberalismo mexicano en la época de Mora (México: Siglo XXI).

2. The national security doctrine supported repression by military juntas in the Southern Cone. It “views ‘geopolitics’ as occupying a central place within human knowledge. … Geopolitics holds that individuals and groups must be subordinate to the state, which it views as a kind of organism and as the ultimate source of values. There is a basic Hobbesian assumption that all states are permanently at war with one another, although they may form alliances against common enemies. The whole art of governance is understood as synonymous with strategy; the greatest good is national security. Even economic growth is first justified in terms of security. The welfare of citizens is subordinate to security, although it is admitted that beyond a certain point unmet needs themselves threaten security if they generate unrest. … The agents of development are elites, both military and technocratic. … The remaining groups in the nation, including peasants, labor unions, and university students and faculty, are seen as minors still needing tutelage. … Another assumption of national security is that the nation is allied with the United States in the East-West Conflict. Religion is seen from this perspective. Western Christian civilization is threatened by Marxist atheism in the East.” BERRYMAN, Phillip. (1987) Liberation Theology. Essential Facts about the Revolutionary Movement in Latin America and Beyond (London: I. B. Tauris & Co. LTD.).

3. For an overview of transition to democracy according to its authors see: O'DONNELL, Guillermo, SCHMITTER, Philippe C., and WHITEHEAD, Laurence. (1986) Transitions from Authoritarian Rule. Prospects for Democracy (London: Johns Hopkins University Press). DIAMOND, Larry, LINZ, Juan J., and LIPSET, Saymour Martin. (1989) Democracy in Developing Countries (Boulder: Reimer; London: Adamantine).

4. Apart from transition to democracy theory here discussed, there are other two major theories of democratization that measure democracy against the parameters of its minimalist definition. The first is modernization theory, which links democratization with modernity and its underlying assumption of progress, arguing that democracy was a product of advanced capitalism. It emphasizes the social and economic features of democratization. The second is historical sociology or the structural approach, which looks at how the changing relationship between the state and classes determines the political system. It highlights power relationships among classes through time. See: POTTER, David. (2000) Explaining democratization. In David Potter, David Goldblatt, Margaret Kiloh, and Paul G. Lewis (eds.), Democratization (Cambridge: The Open University Press).

5. For an interesting discussion of how and why liberation theologians rejected ideas of democracy and human rights throughout the 1970s, see “The Development of Liberation Theology: The Marxist Phase”, In SIGMUND, Paul E. (1990) Liberation Theology at the Cross Roads. Democracy or Revolution? (New York: Oxford University Press). In this chapter, Sigmund provides a characterization of the most important representatives of Marxist liberation theology, such as Gustavo Gutiérrez, Juan Luis Segundo, José Miguez Bonino, Hugo Assmann, Enrique Dussel. See also BERRYMAN, Phillip. (1987) Liberation Theology. Essential Facts about the Revolutionary Movement in Latin America and Beyond (London: I. B. Tauris & Co. LTD.); AGUAYO QUEZADA, Sergio, and PARRA ROSALES, Luz Paula. (1997) Las organizaciones no gubernamentales de derechos humanos en México: entre la democracia participativa y la electoral (Mexico: Academia Mexicana de Derechos Humanos); GRUGEL, Jean. (2002) Democratization: A Critical Introduction (New York: Palgrave).

6. Genealogical views of human rights have been developed by Baxi himself in his distinction between modern and contemporary human rights, and by A. Woodiwiss in relation to the idea of universal human rights at the UN. See: BAXI, Upendra. (2002) The Future of Human Rights (New Delhi: Oxford University Press); WOODIWISS, Anthony. (2002) Human rights and the challenge of cosmopolitanism. Theory, Culture and Society, 19(1–2), 139–155.

7. Critical Legal Studies is a current of thought in the study of law, with expressions in both the United Kingdom and the United States, which has adopted Jacques Derrida's notion of deconstruction to call attention to how some legal doctrines are based on unjust assumptions that discriminate against particular social groups. This current emphasizes the use of deconstruction techniques to gain political insight into the law—with politics understood here as morals and justice—and allows for the inclusion of The Other. In the words of M. Rosenfeld, “legal discourse—and particularly modern legal discourse with its universalist aspirations—cannot achieve coherence and reconciliation so long as it produces writings that cannot eliminate from their margins ideological distortions, unaccounted for differences, or the lack of full recognition of any subordinated other.” ROSENFELD, Michael. (1998) Just Interpretations: Law between Ethics and Politics (Berkeley: University of California Press), p. 14. For a general discussion of the use of deconstruction in Critical Legal Studies and other related currents, see: BALKIN, Jack M. (2005) Deconstruction's legal career. Cardozo Law Review, 27(2), 101–122.

8. The role of human rights NGOs in text construction at the international level could be traced in some studies examining the influence of these groups in norm-making. See: RISSE, Thomas, ROPP, Stephen C., and SIKKINK, Kathryn. (1999) The Power of Human Rights. International Norms and Domestic Change (Cambridge: Cambridge University Press). KOREY, William. (1998) NGOs and the Universal Declaration of Human Rights: A Curious Grapevine (New York: St. Martin's Press).

9. This reinterpretation of human rights law through intertextuality is mostly related to the authoritative interpretation of human rights law in judicial institutions for the production of jurisprudence and legal defense. In legal studies there is a large body of literature addressing the issue of the nature of legal authority and how this should be interpreted when defending cases or establishing jurisprudence. Some argue that the law should be interpreted in the light of lawmakers' intentions, while others argue that interpretation should be validated in terms of the benefit it brings to the defendant. For Critical Legal Studies scholars, there is no single answer to this: “no theory or legal interpretation can be foundational in the sense of offering a primary or central method. None of the familiar methods of legal interpretation—canons of textual construction, history, structure, precedent, consequences or natural justice—can stand as a self-sufficient ground for legal interpretation. Nor can any one be elevated above the others as a general rule. Rather, deconstruction argues that interpretation is a pragmatic enterprise drawing on each of these modes of argument in a creative tension. The art of legal interpretation is the art of using the multiple tools of interpretation without being able to rely on any single tool as foundational.” BALKIN, Jack M. (2005) Deconstruction's legal career. Cardozo Law Review, 27(2), 101–122, 114. For different approaches to interpretation, including the influential proposals of R. Dworkin and H. L .A. Hart, see: MARMOR, Andrei. (1997) Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press).

10. The realization of this twofold surplus of political meaning can be appreciated in the literature on Charter 77, which was set up in 1976 in Czechoslovakia as a response to the repression of an underground rock band that wrote critical songs about socialist society and politics but mainly challenged the state monopoly of art and culture. As members of the band were jailed and subjected to unfair trials, a group of Czechoslovakian citizens that had been critical of the lack of liberty in their country demanded the socialist government comply with the human rights norms it committed to when accepting the Helsinki Act. This was the beginning of a long struggle for human rights in Czechoslovakia that ended with the country's democratization. SKILLING, H. Gordon. (1981) Charter 77 and Human Rights in Czechoslovakia (London: Allen & Unwin); EINHORN, Barbara, KALDOR, Mary, and KAVAN, Zdenek. (1996) Citizenship and Democratic Control in Contemporary Europe (Cheltenham: Brookfield US/Edward Elgar). For the impact of the Helsinki Act commitments on democratization in the whole of Eastern Europe see THOMAS, Daniel C. (2001) The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (New Jersey: Princeton University Press).