CSSH DISCUSSION

The Social Study of Human Rights.

A Review Essay
RONALD NI EZEN
Anthropology, McGill University
The Idea of Justice, by Amartya Sen (Cambridge: Harvard University Press,
2009).
Surrendering to Utopia: An Anthropology of Human Rights, by Mark Goodale
(Stanford: Stanford University Press, 2009).
Prisoners of Freedom: Human Rights and the African Poor, by
Harri Englund (Berkeley: University of California Press, 2006).
It is noteworthyand at the same time a bit disappointing in a what-took-so-long
sort of waythat a recent innovation in the study of human rights should involve a
focus on the lives of the people directly affected by them. To explain this delay of
the obvious would probably call for a review of the persistent influence of Kantian
transcendentalism, the quasi-utopian search for ideal justice, and the inherently
abstract nature of law in its quest for impartiality. A similar effort could be
applied toward fully understanding the changed circumstances that encouraged
the shift toward practical realism. It would have to take into account the surpris-
ingly late elaboration and popularization of human rights instruments, the prolifer-
ation of transnational NGOs that act on new opportunities to exercise moral and
political influence, and the growing reach of new technologies of information
and communication (necessary tools for the emergence of transnational NGOs).
All of these developments have raised the prominence of legal issues and strategies
among those once considered isolated and, in varying degrees, uncivilized. But
whatever the dominant trends might once have been, and whatever new, enabling
circumstances have recently emerged, there can be little doubt that over the last
several decades a shift has taken place in the study of human rights toward prac-
tical or applied realism, with a focus on ordinary actors.
This review essay considers three recent contributions to a body of litera-
ture on human rights that take as their starting point this very assertion of
Comparative Studies in Society and History 2011;53(3):682691.
0010-4175/11 $15.00 # Society for the Comparative Study of Society and History 2011
doi:10.1017/S0010417511000296
682
realism, as against established traditions of abstraction, formalism, and utopian
imaginings. Amartya Sen, in The Idea of Justice, makes his argument in a
general way, calling for a practical reasoning that avoids the pitfalls of the
quest for perfect justice. He proposes a close study of the relationship
between social institutions and actualas opposed to idealindividual behav-
iour, which, he argues, cannot but be critically important for any theory of
justice that is aimed at guiding social choice towards social justice (69).
Here Sen departs from the failings of abstract political philosophy in much
the same way that his 1999 book Development as Freedom pointed to the
flaws and, ultimately, cruelties built into the abstractions of dominant,
GDP-based economic theory. Human rights are important to this effort, as
the expression of broadly legitimate aspirations for human improvement,
with built in possibilities for the kind of negotiated, pluralist universalism
that Sen sees as providing something close to an answer for the ever-
problematic quest for justice.
The other two books that I discuss here make distinct contributions to a sub-
discipline referred to with growing frequency as legal anthropology. Mark
Goodales Surrendering to Utopia provides an overall justification of this
field of study, while documenting and theorizing his way around its neglect,
particularly in the realm of human rights. The practical reality of law gets its
closest treatment in Harri Englunds Prisoners of Freedom, in which the distor-
tions of universal human rights ideals are observed in interactions between the
underclass of Malawi and their would-be advocates. There can be no better
answer to Sens call for practical legal realism than Englunds account of the
relationships between NGO workers and their supposed beneficiaries, with
its seemingly limitless capacity for unintended (mostly disastrous) conse-
quences resulting from the legal aid workers ideas and attitudes: a potentially
lethal combination of narrow legal knowledge, radical hope, and moral hubris.
The order in which I have arranged my treatment of these books can be seen
as something like a sliding scale of increasing distance from formal systems of
abstract principles that reject contingency, toward an acceptance or privileging
of the everyday uses and consequences of justice in action, which seek to
accommodate particularism, paradox, and conflicting values. In arranging the
reviews this way my secondary goal is to see at what point certain key assump-
tions and perspectives fall away and are replaced by others, making it possible
to consider the gains and losses of the various starting points and their corre-
sponding methodological approaches to the social study of human rights.
The first step we will take in this overview is what Amartya Sen, in The Idea
of Justice, refers to as liberation from positional sequestering, by which he
means the movement beyond disconnected musings or thought experiments
about the nature of perfect justice, while orienting our search for justice
instead toward the practical necessities of value pluralism and negotiated com-
promise. Sen takes as his starting point a respectful critique of John Rawlss
T H E S O C I A L S T U D Y O F H U M A N R I G H T S 683
hugely influential A Theory of Justice (1999 [1971]) and its revival of the con-
tractarian approach to justice, which uses a hypothetical original position as a
device for arriving at the fundamental principles of justice as fairness. The
elegance and influence of this approach derive in good measure from the
fact that out of a purely abstract starting pointthe imagined coming-together
of people with diverse interests and conditions in life seeking a just constitution
it becomes possible to envisage real-world possibilities for institutional reform.
But in accomplishing this, as Sen points out, it fosters a kind of rational utopian-
ism that thrives in its distance from the untidy implementation of ideals.
In its most basic form, Sens critique has been made many times before, and
not only with reference to Rawls. Ultimately, it has its counterpart in the
German Enlightenment of the late eighteenth century, particularly Herders
rejection of any philosophy of history (mainly those of Kant and Voltaire)
inclined toward abstraction, rational ordering, and a privileging of cosmopoli-
tanism. In his 1774 essay, This Too a Philosophy of History, Herder makes a
passionate plea for the study of the actual and the real as against abstract prin-
ciples: Have you ever taught a child to walk from the most abstract theory
of motion? (2002: 279). The solution was then, as now, some form of empiri-
cism, but Herders approach was infused with now discredited (but persistent!)
romantic longings after the inner essence of Vlker who embodied historically
distinct conditions of life.
Despite the long history of the cause of empirically grounded realism, Sen
takes an original approach by going outside the familiar canon of political phil-
osophy, drawing on eastern concepts, and in the process adding to the univers-
ality of his ideas, which, after all, have universal aspirations. Leaving the safe
confines of closed, transcendental logic calls for an argument that in some way
corresponds to its great ambitions, that remains globally inclusive, that still
answers to the needs of those who hanker after universals. This Sen provides
in part with a wide-ranging, at times entertainingly imaginative inclusion of
the political philosophies of Eastern classics. Not only does world-embracing
empiricism have deep roots in the Occidental imagination; the Indian
emperor Ashoka has much to tell us about tolerance and dialogue, and
durable universal lessons are to be found in Indian epics like the Valmiki
Ramayana and the Mahabharata. In particular, classical Sanskrit provides
the concept of nyaya, the idea of justice as it is realized in the world, in its
effects on human lives, underscoring Sens central argument that the subject
of justice is not merely about trying to achieveor dreaming about achiev-
ingsome perfectly just society or social arrangements, but about preventing
manifestly severe injustice (21).
While Sen should be given credit for clearly and convincingly posing the
challenge of realism in the formulation and actualization of justice, and com-
mended for the effort to apply some of the same empirically grounded prin-
ciples of his welfare economics to global principles of justice, he
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ultimately retreats to the safety of abstraction in thought and method. There is,
for example, a certain hopeful defiance of realitywhile robustly arguing for
its virtuesthat applies to his conception of human rights. These he presents as
universal moral claims, separate and distinct from their actual origins within the
state-centered anarchy of international law. The very real mechanisms of and
impediments to the application of human rights, which can be found in the
workings of international agencies, the interests and policy decisions of
states, and the often quasi-utopian ambitions of transnational NGOs, are
nowhere to be seen in his portrayal of human rights as a moral vision. The leg-
islative dimension of human rights and the manner of their application are sec-
ondary to their status as ethical claims constitutively linked with the importance
of human freedom, and the robustness of an argument that a particular claim can
be seen as a human right has to be assessed through the scrutiny of public
reasoning, involving open impartiality (36566).
As a corollary to his emphasis on public reasoning, Sen identifies a new
quality to justice claims that have particular relevance for the effectiveness
of human rights: the growing significance of media and with it new possibilities
for information and communication to mobilize social activism. Having broken
out of the limits of transcendentalism and embraced the complexity and ambi-
guity of human experience, a great deal hinges on media and mobilization of
public opinion. Sens starting point here is public response to famine, in
which greater possibilities of media coverage can make the fate of the
victims a powerful political issue with far-reaching effects on the climate of
media coverage and public discussion, and ultimately on the voting of others
a potential majority (34344). This is good news as far as it goes, but it leaves
the overall picture of the implications of media for the practical fate of justice
largely untouched. Take, for example, the toxic effect on public reason (and
hence democracy) of the U.S. Supreme Courts 2010 decision to allow corpor-
ations to spend anonymously and without limits on political advertising. Or con-
sider, more generally, the problem of the sheer volume of rights claims through
media, which diminishes the public influence of nearly everyone with a legitimate
need of redress from inequity or oppression, that is to say, nearly everyone other
than those who suffer visibly and catastrophically, enough to move increasingly
jaded distant spectators to action. Given that the reality of peoples aspirations
and experience with justice are what human rights are all about, then more atten-
tion can certainly be given to such uncomfortable truths, simply in the interest of
depicting rights in action, without necessarily succumbing to the paralysis of
hyper-criticism.
Sen invests heavily in social choice theory as the privileged technique for
arriving at a grounded approach to justice, and this would appear to be the ulti-
mate source of his departure from the real-world engagement that he advocates
with such persuasiveness. In social choice theory we find established methods
(described but not actually applied in the book) for taking human preference
T H E S O C I A L S T U D Y O F H U M A N R I G H T S 685
into account in such all-important endeavors as formulating economic policy
and designing voting procedures. It is, as Sen explains it, an evaluative disci-
pline in which the outcomes take the form of ranking different states of
affair from a social point of view, in the light of the assessments of the
people involved (95). The central problem with this is that even in the
absence of a real demonstration of the method applied to justice issues, we
can foresee its central failing: We can expect the key concepts of justice to
be very different from the raw material of economics and political preferences,
by whichlargely through Kenneth Arrows demand for clearly defined
axioms (1950)social choice theory has proven itself. Corn, casualties, and
pre-reified political choices lend themselves more readily to identification
and articulation of values than do freedom, justice, democracy, and other con-
cepts at the foundations of liberalism (another slippery idea) considered glob-
ally and comparatively. Sens privileged method involves broadening the
application of social choice theory to include concepts which, when applied
to humans in social context, add the vexations of translation to their inherent
obscurity. Expanding the methods of social choice to include a wider range
of concepts, perspectives, and informational outputs does not promise a con-
vincing answer to the need for engagement with the lived experience of policy
decisions and institutional practice.
Faced with the same incompatibility between formalism and experience, and
while sharing the substance of Sens critique, Mark Goodale arrives at quite a
different preferred solution: the long-term ethnographic perspective of anthropol-
ogy. For Goodale, those who take a philosophical approach to rights and justice
see problems as either conceptual in themselves or, if not, then they believe that
the solutions to problems should, in the best of circumstances, be conceptual
(47). But there can be no practical answer to questions that are embedded in
the abstracted spheres in which competing accounts of concepts clash (48).
Rawlss deductive approach, in particular, has reinforced a philosophy of
justice that is remote from human experience: [I]t is impossible to know
whether there can even be empirical correspondence between the implications
deduced from unproven first principles and the practice of everyday life (117).
In response to this state of affairs, Goodale proposes a new discipline, or
rather a dusted off discipline that has been sadly overlooked in the development
of human rights. Anthropology, with its simultaneous commitments to the
common qualities of humanity and to humanitys tremendously varied
expressions of difference, has what it takes to make sense of the extended
reach of transnational norms and institutions and provide a corrective to
abstract, global normativity. Human rights, in particular, Goodale argues,
would look different if anthropological perspectives had, from the beginning,
been taken into account, above all through greater attention to collective
rights. This is now the emerging trend, with the plights of ethnic minorities
and indigenous peoples coming to the fore (and to the forums), creating not
686 R O N A L D N I E Z E N
just a challenge for the human rights movement but contributing new questions
and material for social research.
Goodale argues persuasively that the postnational constellationmarked
by the growing importance of transnational norms and institutionshas
created new conditions, in anthropology and other disciplines of social
inquiry, for the ethnographic method. These may seem unlikely circumstances
for a method so firmly grounded in intimacy and locality. But more than ever
before, it is possible to witness at first hand the encroachments of ideas and
institutions with global reach. Foundationalism and universalism are them-
selves ideas that can become particularly meaningful in social practice, and
the anthropologist (or other researcher or cultural critic) does a valuable
service by making their importance and power topics for close engagement
and critical scrutiny (9). In much simpler terms, lawyers and bureaucrats are
now among the savages of ethnological inquiry, and one of the newest research
challenges is to observe in practice the connections between their thinking and
the social orders they influence.
Discussions of human rights, however, are complicated by the fact that
certain core meanings are apprehended by people intuitively, emotionally,
and implicitly. This observation supports the point I made earlier concerning
the difficulties of extracting the measures that are built into Sens approach to
social choice theory. It means, It is only through the close ethnographic
engagement with the practice of everyday life that [alternative ways of under-
standing the range of problems associated with relativism and human rights]
become apparent (59). Goodale illustrates this point by citing the work of
other anthropologists, such as Shannon Speeds (2008) study of the transna-
tional networks that converge on the indigenous resistance movement in
Chiapas, Mexico, and a major contribution to legal anthropology by Sally
Engle Merry (2006), who makes her own use of comparative ethnography to
highlight some of the moral vexations of human rights, particularly womens
rights, when translated and applied (or in her terms vernacularized) in
local settings with their own assemblages of custom and political interest.
One of the core issues presented by Goodale involves a distinction between
human rights universality and human rights universalism. Universality is based
on the idea of common humanness, a claim that is at the core of the modern
ideas of human rights (15). Human rights universalism, on the other hand,
involves a kind of utopianism in action, the complicated discursive presence
of these claims as they are acted upon within existing legal, moral and political
practice (15). Anthropology contributes to both domains. The cause of uni-
versality has benefited from anthropologys arguments in favor of humanity
as a single, undifferentiated species, over and against the disorienting fact of
human multiplicity, with anthropologists in the early history of human
rights successfully asserting (without recognition of this accomplishment)
the most important putative cross-cultural fact: that human beings are
T H E S O C I A L S T U D Y O F H U M A N R I G H T S 687
essentially the same and that this essential sameness entails a specific normative
framework (18).
Universalism is also evident in anthropology. In fact, in recent years it has
moved front and center, particularly in more recent attempts by individual
anthropologists and the disciplines largest professional association to
re-engage with human rights as both an object of study and a vehicle for eman-
cipatory political practice (19). And largely through its post-colonial commit-
ments to emancipation, anthropology has become mired in the newest
contradictions of culture. Anthropologists have shifted from the idea of
culture as a bounded entity, often some permutation of the German Kultur
with a K with its affinity to the idea of an inner essence or Volksgeist, to
an idea of culture with an emphasis on process or more particularly on inter-
subjective meanings and practices that are shifting and contested. This con-
ceptual transformation, however, remains incomplete, in part because of the
objectifying effects of human rights advocacy, which anthropologists as an
entirety (as would-be defenders and describers of the marginalized and forgot-
ten) have taken up with alacrity. Universalism, with its utopian overtones, is
reflected in the choice of anthropologists to tightly bundle their political com-
mitments with their professional practice (121). But how is it possible to
promote a peoples rights when their identity as a people is analytically inse-
cure, when they represent just one of many possibilities for collective self-
representation and rights claims? Goodales conceptual map makes it possible
to see a fundamental contradiction in the consensual foundations of anthropol-
ogy: it categorically rejects the notion of bounded culture, while engaged in
advocacy premised on the cadastral orientation of the law of peoples, and
that periodically implicates anthropologists in the boundary-enhancing fabrica-
tions of identity construction and the politics of micro-nationalism.
The cultural contradiction (or contradictory approach to culture) that plagues
the agencies of global governance runs along similar lines, though its origins in
policy are quite different. Human rights are based in a core conviction that fol-
lowed from the experience of World War II and the era of decolonization: that
individuals required protection from states, often from the very states of which
they are citizens, and that human rights could serve as an ultimate check on the
abuses of culture manifested as nationalism (75). But this went along with an
impulse to redefine culture as a kind of property, without which individuals
would be unable to prosper, and following from this, to codify cultures, to
name them and to list the essential attributes that the global community
would be committed to protect. Hence, we arrive at the cultural protection
initiatives of UNESCO, as in the 2001 Universal Declaration of Cultural Diver-
sity, which returns to the professionally discarded anthropological approach to
culture as a bounded object of inquiry, appreciation, and protection.
Also possible through the new anthropology of law are ethnographies of
human rights networks, with NGOs as the principal actors whose behavior is
688 R O N A L D N I E Z E N
the problem of investigation. Human rights networks have hegemonic ten-
dencies, or tendencies to become imperial, through the evacuation of
alternative discourses on the basis of what the imperial power believesearn-
estly or notis the correct, or morally superior, or economically more advan-
tageous set of perspectives and practices (108). The common denominator of
Goodales critiques of the cultural conceptions of agencies of global govern-
ance and of human rights-oriented NGOs is their shared resort to distorted con-
ceptions of culture connected to unrealistic futurism, as captured in a
summarizing statement: The problems that culture poses for human rights
theory and practice will not really be solved until those who have chosen to sur-
render to utopia come to terms with everyone else (90).
The programmatic nature of Goodales overview necessarily introduces the
despair of sweeping, unassailable critique based on the clarity of fact and
reason, while calling on his readers to take his glimmerings of optimism on
faith, based as they are (as with Sen) in a methodethnographythat lies
within his specialized competence but beyond his immediate purpose. Harri
Englund, in Prisoners of Freedom, accomplishes what Sen and Goodale, in
the books I have chosen to review, cannot: a critical study of human rights
in practice dedicated to a single, tightly focused setting.
The evidence in Englunds book advises caution with Sens admiration for
freedom. At the intersections of NGOs and the poor of Malawi, normative
approaches to rights often become entangled in the very rhetoric that needs
to be scrutinized, a situation that makes salient the perils of isolating political
freedoms as the essence of democracy (12). The situation Englund describes
making full use of his fluency in Chichewa and the experience of many years in
Malawi, together with the moral authority of his ongoing commitments to
working in the regionis at variance with the complacency of those who
have convinced themselves of possibilities of human betterment simply by
evangelizing the moral message of rights. In Malawi, NGOs, in effect, exercise
a form of self-control, potentially far more insidious than any law that the gov-
ernment can formulate. Their discourse is elitist, even though many of the self-
proclaimed experts of freedom, democracy, and human rights do not belong to
the elite (20). Translation of human rights instruments has taken place as a
top down exercise, with no evidence of attempts to consult a broad cross-
section of native speakers before launching a translation for human rights
(48). And human rights discourseeven when asserting all individuals as
equalscan be deprived of its democratizing potential and made to serve par-
ticular interests in society (49). This is a setting in which well-meaning acti-
vists believed that their knowledge of rights had not yet touched the lives of the
grassroots. Activists sought to enlighten the Malawians they considered as the
grassroots, also known as the masses. They referred to this process with the Chi-
chewa verb kuwunikira, which connotes the shedding of light. Activists saw
themselves as the torchbearers, the ones who brought light to the darkness (71).
T H E S O C I A L S T U D Y O F H U M A N R I G H T S 689
One of Englunds more disconcerting findings is the extent to which an
NGOs legal officers used their apparently exclusive legal knowledge to
avoid confronting the exploitation that many Malawians endured. Under
these circumstances, democracy and human rights were not allowed to
exist as contested concepts, amenable to the expression and negotiation of
diverse interests (125). Instead, contempt for the victimhood of their clients,
made each of them appear as a saboteur of his or her own freedom (129).
Englunds critique is accomplished not just in the manner of an expos, not
just as an effort to bring out the real life consequences of evangelical
approaches to human rights, but applies equally to the rethinking and reframing
of the idea of justice, the very problem engaged in by Sen. It describes circum-
stances in which the universalism of preconceptualized ideas of freedom and
democracy inevitably results in their negation. Hypocrisy is built into the intel-
lectual tool kit of Africas rights reformers from the outset. The parameters of
their discussions with supposed beneficiaries of freedom and democracy are
closedor perhaps open only in the way of traps, ready to spring shut on entry.
Unexpectedly, Englunds blistering condemnation of human rights
approached as a creed leaves room for optimism, or at least recognition of
ongoing possibilities for the ideals of democracy, development, and freedom
that are the driving forces of the rights movement. In contrast with the
narrow, subject positions of rights activists, the claimants seeking legal aid,
and the urban poor caught in the midst of moral panic consistently voiced con-
cerns that were of general import. They demanded attention to the necessity to
inform any realization of human rights with an understanding of the situations
in which people live (204). Clearly enough, an alternative approach to human
rights universalism would begin with close attention to the conceptualizations
of the rights-related ideals of the Africans themselves, that is to say, to navigate
the civic virtues that emerge out of explicit and inclusive negotiation (193).
This finding would certainly appear to have wider implications than the par-
ticular setting and circumstances of Malawi, but the necessarily tight focus of
Englunds ethnography, which is its specific strength, at the same time leaves
unanswered some of the comparative implications of his work. Englund
approaches his ethnography with an unusual, perhaps unique, degree of
honestyverging on contempt for the kind of power interests that commonly
manage to control both the lives of the poor and the findings of researchers
and this makes it difficult to generalize from the setting he describes. There is
enough of a ring of truth to his account of the activists elitism and complicity
with the attitudes and structures of extreme social inequalities to suggest that
this is common to human rights activism almost everywhere. But there
remain some settings where we see an everyday practice in which the subjects
of rights are engaged in more direct, strategic use of human rights and their
starry-eyed NGO advocates, not just engaged in futile resistance through sys-
temically incompetent NGOs or passively venting their agency through wild
690 R O N A L D N I E Z E N
rumors. The Maasai of Kenya and Tanzania, for example, have made active use
of activists, seeking protection from state encroachments on pasturage by pur-
suing legal claims and participating in various international forums as an indi-
genous people and as a pastoral people (Hodgson 2004). Englund would very
likely not deny that human rights are malleable by the particular interests of the
powerless as well as the powerful, though his emphasis is clearly on the abuses
of states and NGOs. This strategic use of human rights networks and insti-
tutions of course raises possibilities for new avenues to power from within
the communities of the marginalized. At the same time, new strategies of
rights campaigning add the complexities of cultural appeal to potentially sym-
pathetic audiences as a rights strategy, with its built in potential for self-
stereotyping and corruption of the goals of self-determination (Niezen 2010).
This is simply to say that Englunds courageous ethnography raises compara-
tive questions and possibilities, which he points to but cannot fully realize in a
single ethnography, in which the outlines of an alternative approach to human
rights, absent the errors of elitism and imperialism, can be seen more clearly
than ever before.
This brings us to an important common denominator evident in all three
approaches to the social study of human rights: none call for an outright rejec-
tion of transnational normative systems. There are no romantic longings after
simple, self-enclosed prosperity, just a certain Weltschmertz in response to
the systemic suffering and indignities imposed on people who deserve better.
Human rights are now mainstream, an unavoidable fact of life, with which
we as scholars with critical training can either reconcile, and to which we
can apply our skills of observation and interpretation, or which, in our
absence, will change the world for better or worse (and probably a bit of
both in varying degrees).
R E F E R E N C E S
Arrow, Kenneth. 1950. A Difficulty in the Concept of Social Welfare. Journal of Pol-
itical Economy 58, 4: 32846.
Herder, Johann Gottfried. 2002. Philosophical Writings. Michael Forster, ed.
Cambridge: Cambridge University Press.
Hodgson, Dorothy. 2004. Once Intrepid Warriors: Gender, Ethnicity, and the Cultural
Politics of Maasai Development. Bloomington: Indiana University Press.
Merry, Sally Engle. 2006. Human Rights and Gender Violence: Translating Inter-
national Law into Local Justice. Chicago: University of Chicago Press.
Niezen, Ronald. 2010. Public Justice and the Anthropology of Law. Cambridge:
Cambridge University Press.
Rawls, John. A Theory of Justice. 1999. Rev. ed. Cambridge: Belknap Press of Harvard
University Press.
Sen, Amartya. 1999. Development as Freedom. New York: Anchor.
Speed, Shannon. 2008. Rights in Rebellion: Indigenous Struggle and Human Rights in
Chiapas. Stanford: Stanford University Press.
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