Commodification, Identity and Campus Politics

With the start of the new University year in South Africa upon us, it seems pertinent to comment upon some of the recent trends in university politics. While debates concerning identity politics, intersectionality and the ‘new left’ are nothing new, having become increasingly popular abroad in recent years, there is a worrying scarcity of such analysis and examination originating from the left in South Africa. Indeed, much of the writing concerning the new left seems to originate from the right and from echo chambers such as The Rational Standard. The following is a brief comment upon the nature and role of identity politics, as well as some thoughts about the commodification of identity.

What should not escape our attention is that, at the core of the recent Fees Must Fall university shutdowns and protests, is a fundamental antipathy towards capitalism. This is illustrated by various calls to ‘rail against the commodification of education’, reference made to the ‘capitalist class’ in Fees Must Fall statements and various criticisms of capitalism leveled by left student organizations. Of course, this is not representative of the entire movement and one would be remiss to generalise a movement which, at its core, is made up of various other movements and groups with different ideological positions. One can, however, identify a number of common themes that exist within the broader movement. A focus on identity, the consequences of identity and a general reliance upon identity politics which has been made popular by various academics and the struggle movements in the US. We can define identity politics as a set of positions based on the interests, perspectives and narratives of social groups with which people identify. Politics, in this case, includes ways by which a person’s politics may be shaped by certain aspects of their identity. In South Africa, particularly at the University of Cape Town, identity politics has offered a means by which people can share and express their ideas and struggles. As a result, those who have been marginalized are given a platform from which they can express themselves. Unfortunately, as is often the case with such an approach, this has resulted in the view that the person’s identity either validates or falsifies the statements that they have expressed. Through the use of ‘subjective narratives’ and terms such as ‘my truth’, these movements are able to avoid having to grapple with realism and the implications of objective, fact based discussions. That is not to say that these opinions and views do not have a place in rational discussion, but by admonishing those who present statements and hypotheses that can be tested, while presenting one’s own personal experiences as the only truth, the framework by which rational discussion can occur is diminished. The result of this, thus far, has been a growth in identity based politics, a reliance upon ones own identity as a basis for discussion and claims and the ad hominem criticism of those who presents alternatives.

But, within the current framework, is it not the case that the consequence of ‘buying into identity’ will lead to the inevitable commodification of identity? That is to say that by expressing how society and the market should respond to my presence, one is furthering the goals of capitalism itself.

One might regard this as a misnomer, as a commodity, by its very nature, is a product. Something that can be bought and sold, traded and given away. As such, in what sense can identity be commodified? One can talk about two possible meanings for identity as a commodity. The first is that self-understanding is often mediated by the consumption of goods, images and symbolism. Self-definition, in this sense, depends upon the appropriation of the traits of commodities. Our understanding of the self, of identity and of our social relationships is often determined by the experiences and identification with the things that we buy. As a consumer, identity is increasingly shaped and conditioned by the patterns of our consumption The second form of commodification of identity relates to the organization of the personal and the social on the basis of our relationship with the market. This relates to the practice of personal branding and of appearance manipulation, a strategy of creating a name and image of ourselves that we use for economic and social gain.

Immanuel Wallerstein noted that the evolution of capitalism has involved the commodification of everything. Early colonialists made a “market” for the identity of the Other, in which they have traded as a commodity ever since. The expropriation of imagery, ideas, stories and art for symbolic and hegemonic purposes has led to the development of market in which commodity no longer relates to the object itself, but to the meaning and identity associated with it.

By incorporating the language of self-determination and transformation, capitalism is able to harness the idea that being true to our unique inner selves is a powerful moral idea. This is most evident in the use, by market players, of powerful messages that rail against the conventional norms of society and sell products as instruments of liberation. The result is a market ethic of nonconformism coupled with vigorous consumerism. The issue here is that, as identity becomes more valued by mainstream society, it also become more valuable to those who would use it to their own advantage. If being a part of a group is materialistically advantageous, those that can assimilate that identity will do just that. As is the case with black identity in the USA, creating profit from identity becomes a business that is relatively easy to maintain. What it requires is the continued reproduction of that perceived identity – which creates the opportunity for perpetuating stereotypes and manipulation of that identity. Such commodification of identity becomes a dynamic part of the system of oppression as any and all marketing of the identity in question becomes complicit with the existing exploitative-oppressive nature of the structure itself. Although identity politics, in this case, presents itself as a remedy for the stressful tensions and antagonisms of capitalism, it actually functions as a perfect ideological supplement to capitalism.

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Church & State

The separation of Church and state is seen as a pillar of modern society, but this was not always the case. For much of our history, the influence of the Church upon the general populace was matched only by its influence upon the laws of the state. This, in itself, was not an issue at the time as the views espoused by the clergy were widely held by lawmakers and thinkers alike. In 17th century Europe, many intellectuals and academics believed that the occult operated in tandem with the sciences and that the two were not mutduckingually exclusive. This group of enlightenment intellectuals included John Locke and Isaac Newton among their number. Influenced by both the laws of the time and the religious doctrine of the Church, such beliefs were widespread and culminated in the witch trials that swept through Europe and the Americas. The matter was complicated by the fact that the heresy laws were all encompassing, witchcraft simply constituted one of the many violations that fell under the general law of heresy. Framed as such, one bore the onus of proving that one was innocent of witchcraft and any other charges brought against their person. The reverse onus made it incredibly difficult for one to prove their innocence as the burden of proo
f fell upon themselves rather than upon their accusers.

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In England, the war against witchcraft finally ended with the adoption of the Witchcraft Act of 1735. This was a result, in part, of growing uncertainty among the public intellectuals. It was no longer the view that the sciences and occult could operate in parallel or that they shared any common thread. It was claimed that the practice of witchcraft and the influencing of the material world with esoteric forces (alchemy and the like falling under this bracket) was impossible and any to claim the ability to do so were charlatans. As this thought filtered down to the general populace, the legislators once again took steps to legislate against witchcraft. This time, however, with a different goal in mind. The Witchcraft Act made it a crime for any person to claim that another had magical powers or was practicing witchcraft. The maximum sentence for such a crime was one year imprisonment. Although this period saw a decisive change in the approach taken to religiously driven paranoia, the Church still had a great influence upon the boni mores of society.

Until 1961 it was, paradoxically, a crime to commit suicide. Those who attempted suicide and failed could be prosecuted and imprisoned. This law had been in force, in England and Wales, since 1554. The most obvious influence for this was the position the Church took upon the act. It was considered a mortal sin to commap_copyit suicide and the Church refused to bury the victim in consecrated ground.

Indeed, up until 1823, the bodies of suicides were impaled with a stake and buried at crossroads. Medieval English judges had developed this method for two reasons:

  1. The burial of the corpse at a crossroads had symbolic meaning.
  2. Burial there made sure that the ghost of the deceased was kept firmly in place as a result of the constant passing of traffic. The ghost, supposedly becoming confused by the amount of traffic, would not know which direction to take.

There was, however, another rationale behind the approach taken by the English courts. In addition to the refusal to bury the body in consecrated ground, the goods and property of the deceased became forfeit to the state. Suicide was considered to be a crime against the monarch and, as such, a matter for royal justice.

Intellectual Property, Fan Art and South Africa

In the recent weeks I’ve had a number of discussions with artists and designers about the do’s and don’ts of fan conventions and art in the digital environment. This is, in part, a result of the annual Fancon: Cape Town Comic Con, but the discussion also falls within a larger framework relating to the ease by which one can upload and share media on various online platforms.

With Fancon around the corner, now seems as good a time as ever to address some of the misconceptions concerning intellectual property and so called ‘fan art’, as well as a few other genres of artistic expression most often found at comic book and fan conventions.

Applicable Law

While the global laws relating to intellectual property rights are generally very similar, there are a number of minor differences that can be found among the various national jurisdictions. For example, in the United States the ‘Fair Use’ provisions have been said, by some, to provide a means by which fan art can be justified and, as such, fall outside of the ambit of infringement. However, in South Africa the ‘Fair Dealing’ provisions are noticeably different and do not allow for such an argument to be made.

It is important to note that any violations of a claimants IP rights will be determined by the laws of the jurisdiction said violation is claimed to have occurred in. For example: If a company in the US determines that one or more of its IP rights have been violated by an artist that has created and distributed the work in South Africa, said company will have to utilise South African laws in order to bring any legal action.

The relevant South African laws are the Copyright Act and the Trademarks Act. Due to the nature of fan art it may be the case that the rights violated are sourced from both of these Acts.

What is Fan Art?

Fan art typically refers to the production of media (art, animations, writing etc.) created by fans of a work of fiction. The fan art is usually derived from an original piece by persons who are 1) not the original author 2) have not been commissioned to create the piece 3) have not been authorised to make the piece. While it is not uncommon for the owners of the original work to endorse fan art, or certain instances of it (by sharing such art on social media platforms or running competitions), the legality of fan art has been hotly contested in the US and other foreign jurisdictions.

Copyright Law in South Africa:

The Copyright Act 98 of 1978 grants the copyright holder a number of exclusive rights, the violation of which constitutes an infringement and is actionable.

In relation to artistic works, section 7 of the Act provides that copyright in an artistic work vests, in the owner, the exclusive right to do or to authorise the doing of a number of acts in the Republic. Those relevant to this examination include:

a) Reproducing the work in any manner or form

e) making an adaptation of the work

f) doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d).

These are, for the most part, self-explanatory. Reproducing the work in any manner or form would include making unauthorised t-shirt prints, posters and digital copies. It is important to note that the exploitation of the work (the sale) is not relevant. One infringes copyright by engaging in any conduct that falls within the exclusive rights of the copyright holder, regardless of whether or not one distributes the subject of the copyright issue.

Derivative Works:

Special mention should be made of derivative works, as there seems to be some confusion as the ambit of the copyright holders rights in this regard. The confusion seems to be based upon the fact that fan art (rather than simple replication of an original) often consists of a variety of new and imaginative scenarios. For instance: A well known character depicted in a different pose or in a new environment. That is, the character is derived from an original piece but is set in a scenario drawn from the artists own imagination. While the new piece may be eligible for its own copyright protection, the ownership of said copyright will vest in the copyright holder of the original piece (the piece the art is derived from) and will still constitute an infringement. In terms of South African copyright law, derivative works will constitute an infringement.

Infringement:

Infringement, in terms of the Copyright Act, falls into two categories. That of primary and secondary infringement. Primary infringement occurs when the infringer commits any of the acts which, in terms of the Copyright Act 98 of 1978, the copyright holder has the exclusive rights to do or to authorize. This, as noted above, relates to the act itself and would be the primary concern of artists directly infringing copyright by creating unauthorised pieces.

Secondary infringement occurs when the infringer, whilst not actually committing the act of primary infringement, knowingly does something to further the commission of the primary infringements. For instance, setting up a market or shop that deals exclusively in copyright infringing material. It is important to note that the infringer must knowingly do something that furthers the commission of the primary infringement.

Criminal Offences:

While most infringements relating to the Copyright Act concern civil offences, section 27 of the Act provides for instances where copyright infringement will become a criminal matter.

In terms of the section any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright—

(a) makes for sale or hire;

(b) sells or lets for hire or by way of trade offers or exposes for sale or hire; (c) by way of trade exhibits in public;

imports into the Republic otherwise than for his private or domestic use;

(e) distributes for purposes of trade; or

(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringing copies of the work, shall be guilty of an offence.
A person convicted of an offence under this section shall be liable—

(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;

(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates.

The first South African case concerning copyright as a criminal offence was the Four Corners case. The offender, after uploading a torrent to a popular website was found guilty in terms of the above sections and sentenced to a three year suspended sentence and fined R3000.

While, of course, there are a number of exceptions to the above (those pertaining to satire and criticism), such activities seem to run counter to the notion of ‘fan art’. Moreover, the common practice seems to focus on the printing and sale of derivative works. Such activities generally violate the provisions of the Copyright Act and, despite the fact that such activities, in relation to fan art, have yet to see legal action follow in South Africa, that is not to say that they will not in the future.

Challenging Human Rights

The rise in prominence of human rights in contemporary liberal capitalist societies is perhaps one of the most important ideological and political facts of the 20th century. As a relatively new foundation of human order, human rights have attained a position of immense power. Through various bodies, and under the façade of being ‘self-evident’, a poorly disguised set of Western values are enforced around the world. States are prompted to change their constitutions and fundamental laws in accordance with a set of norms and standards – namely, democracy, human rights and the rule of law – or to face international sanction. As a political and economic mechanism, human rights have become sacred in nature and, as a consequence, beyond criticism in many spheres of society. To challenge the ideology of human rights is to question the foundations of this theory, to query the nomological status of these rights, to evaluate their application and to examine the possibilities of manipulation to which these rights can be subjected.
 
Before such an examination can begin, it is pertinent to briefly contextualize human rights and to place them within their larger legal and theoretical framework. This is to elucidate what is at issue, and to create the basis for the focus of this examination. Political or civil rights differ from human rights in that they belong to certain kinds of political institutions. Rights of this kind operate within a given society to provide assurances for ordinary individuals. They act to legally constrain the actions of the government and provide a facility for making legal claims in a country’s courts when these rights are infringed upon. They are internally constructed and depend upon the society in which they are established. This is not to say that these rights are not often based upon, or influenced by, a particular conception of human rights. Indeed, numerous human rights and national rights documents are complimentary positivizations of the same idea. However, the consequences of the violation of politically constructed civil rights differ significantly from that of the violation of a human right. For example, judicial review of administrative action for the violation of a right in the first sense in contrast to the use of an extraordinary remedy for the violation of a right in the second sense (military intervention). Although there are undoubtedly more approaches to the study of and justification for human rights, I shall focus my attention on just two of the most popular conceptions. These are the traditional and the political conceptions of human rights.
 
Let us begin with the traditional conception of human rights. Here, human rights are defined as rights which rely on no contingent fact except for the laws of nature, the nature of humanity and the fact that the right holder is a human being. These are innate rights, thought to be inherent in human nature, that have existed in every individual before the development of social relations. quote-nothing-is-unchangeable-but-the-inherent-and-unalienable-rights-of-man-thomas-jefferson-14-57-57That is, they are subjective attributes of every human and are pre-political and pre-social. They are necessarily individual in nature and constitute the privileges which the agent that possesses them can enjoy. Prerogative of all humans, they are independent of space and time, are valid at all times and in all places and independent of personal conditions, political situations and historical attributes. By their very definition they are universal and inalienable. As such, no state can abrogate them, create them or grant them. This approach aims to derive human rights from basic features of human beings. In creating a normative list the traditionalist is confronted with numerous problems. I shall focus on two of them.
 
First, the traditionalist blurs the lines between that which is considered valuable and that of a right. In doing so, he misconstrues the relations between the values and the rights he seeks to uphold or create. Simply put, the traditionalist argues that because something is greatly valued or desired by society, we must claim a right to it. This presupposes the fact that that which is desired by society is not subject to change. This may sound counterintuitive but a study on culture and moral development around the world has shown that certain moral themes are recurring in these societies. According to Steven Pinker, and on the basis of this study, there are five primary moral spheres on which we base our actions. These are harm, fairness, community, authority and purity. Clearly the traditional approach would be supported by the fact that humans, around the world, share certain moral norms. However, one should note that this study was confined to the Indian city of Bhubanesewar and Hyde Park in the United States. This hardly constitutes a worldwide study. Furthermore, Bhubanesewar forms part of the “Golden Triangle” and is one of India’s most frequented destinations. This, coupled with the fact that it is one of India’s fastest-developing cities, places the study in the appropriate context. As noted above, it would certainly adds substance to the traditionalist’s case if it were the fact that humans share general moral norms but, to place certain moral elements as “primary”, as Pinker does, a more systematic analysis is required. human-rights-5-638Surely more is required than a poll and one, it should be noted, that does not make its principles of interpretation explicit. Furthermore, Pinker’s examples do not make room for the more complicated questions regarding morality which, in turn, would allow for a more in depth analysis and comparison of the content of general morals in different regions. For example, Pinker claims that one of the hallmarks of moralization is that people feel that those who commit immoral acts deserve to be punished. As a consequence, it is allowable to inflict pain on those who commit an immoral action. In fact, it is wrong not to do so. On this basis, a more interesting question, it is submitted, would have concerned the morality of state execution or, alternatively, questions pertaining to the morality of allowing prima facie immoral actions to be committed against persons who have acted immorally. Furthermore, one can readily accept that the content of certain rights or freedoms have changed throughout history. For example, certain primitive societies did not consider the abandonment of the infirm or elderly to be murder, nor did they consider exposing their new-borns to the elements to be murder. Addressing these questions would determine whether, in contemporary societies, the content of such rights are, likewise, subject to change. Aside from this, there may be a more logical approach to Pinker’s study: Societies that did not adopt these ‘moral’ guidelines failed to progress as a society and, as a result, perished. These principles may simply lead to the most efficient structuring of society and those that failed to adopt them were unable to properly structure their societies, unify and defend themselves against more ordered societies.
 
If one were to accept that that which is considered valuable by society is subject to change then the reasoning of the traditionalist fails for human rights, in the traditionalist sense, are said to rely on no contingent factors and are independent of the norms of society. But this argument fails on another ground. In attempting to derive an inherent right from that which is considered valuable, the traditionalist fails to show why, because something is considered valuable, it establishes a right.40369ab Gewirth, in attempting to create a foundation for human rights based on agency, thinks that in voluntary and purposive action, every agent must consider freedom and well-being as necessary goods. He believes that there is a general right to freedom because it is a necessary condition of human purposive action. This claim is clearly false as it would mean that slaves cannot act purposively. Furthermore, those who are not in a position to act purposively (the infirm or elderly) would never be in a position to attain or utilize such a right.
 
Another advocate of the traditionalist conception, Griffin, takes human rights to be those important rights that are grounded by the fact that we are human. He claims that because humans have a conception of ourselves and of our past and future, we are different from other animals. Human rights are therefore the protections of human standing or, as he puts it, personhood. The notion of personhood is broken down into three components. First, to be an agent in the fullest sense, we must not be dominated or controlled by something else; therefore, his first argument is for autonomy. Secondly, he argues that one’s choice must be real; one must have a certain minimum education and information and, following this, one must have the minimum resources to act in accordance with this choice. He calls this the minimum provision. Finally, he argues that one must be able to pursue what one deems worthwhile without being forcibly stopped. He calls this liberty. Griffin’s theory relies not only on the fact that people value their personhood but that it is valuable. However, he fails to offer any convincing reason as to why that value establishes a right. This is not the only problem that confronts his theory. Take, for instance, the first condition. By Griffin’s reasoning, a person who is controlled by his commitment to his employer does not enjoy the full status of personhood. Now, one could argue that exercising a contractual right to limit one’s own freedom is, in fact, the highest form of freedom. The validity of this argument would depend on the interpretation of the claim. The first interpretation would be that, in limiting one’s freedom one is unrestricted and what occurs after that is irrelevant as one has utilized full contractual capacity. That is, by choice, one has restricted one’s self. The second interpretation would regard what follows, that of having limited one’s own personal liberty and autonomy and the inability to escape such commitments as being the focus. As a consequence of exercising such a freedom one is now limited and cannot exercise a similar freedom until the initial commitments are met. As a result, one has a diminished personhood. It is submitted that the second interpretation is correct. Logically, it makes sense to examine the consequences of exercising the freedom, rather than simply the initial action.
 
Another issue confronts the second component of personhood: the minimum provision. For freedom of choice to be real, by Griffin’s reasoning, one must have a certain level of education and resources in order to enact said choice. It follows that those who have only a ‘pseudo-choice’, such as the choice offered to the adolescents of Amish communities after Rumspringa, have a diminished personhood. It is logical that a large majority, unable to cope, would return to Amish society. Thus, as a consequence of social conditioning and the fact that they are brought up in virtual ignorance of the excess of American society, Amish youth have what Žižek refers to as the “unfreedom of choice”. 2015_11_zizek_booksThat is, while they are formally given a free choice, the conditions in which they must make such a choice render the choice unfree. By Griffin’s reasoning, this is a violation of the minimum condition, therefore, a human right. It seems readily apparent that Griffin is conflating the notion of personhood with his particular conception of a good life.
That human rights are independent of space and time, are valid at all times and in all places requires further examination. Clearly, the argument proposed requires human rights to be rights that we have and not that we think we have. Take, for example, European early modern humans. For this argument to hold true, we must be able to attribute what we characterise to be human rights today to an early modern human forty thousand years ago. Regardless of the circumstances of his human life and societal construction (if any), the rights that we hold to be valid today must have application then. Admittedly, one must concede that human rights-claims are normative rather than descriptive in nature but we are not examining how early modern humans were treated, rather, how they ought to have been treated.
 
Even accepting this it seems absurd to attribute such rights to a people who lived in such a distinctly different environment and with such a limited field of knowledge. The General Assembly of the United Nations has declared, inter alia, that everyone has the fundamental and universal right to work and protection against unemployment. The rights to work and to protection against unemployment presuppose modern institutions and the state. Quite obviously this cannot have applied to Cro-Magnons and early modern Homo sapiens who existed in a time where the state (the institution intended to protect against unemployment) did not exist, nor did any such conception of it. One could broaden the scope and argue that, since time immemorial, we have had the right to the state and that, as a consequence of this, all of the rights simply flow once the state has been established. Aside from the considerable amount of proof that would be required to prove such a thing, it seems strange that throughout the existence of mankind these rights have existed, only to be realised after thousands of years. Simply put, it does not make for a compelling argument.
 
This problem has not been diminished by time. The fact is that this issue is still relevant today where creating a normative list, in the face of such diversity of cultural, societal and economic environments, seems insurmountable. The problem becomes most evident by the fact that although there have been a multiplicity of human rights declarations, not all of these stress the same rights (some stress certain rights over others, others add duties etc.). In fact, these declarations are not even founded upon the same principles.
 
The Western conception of human rights, that is – one that takes account of individual rights – is hardly one shared by the rest of the world. This includes countries that adopt charters and declarations regarding so called fundamental rights. A clear example of this can be found upon an examination of the Universal Islamic Declaration of Human Rights. In its Preamble, the declaration announces that “Therefore we, as Muslims who believe a) in God, the Beneficent and Merciful , the Creator, the Sustainer, the Sovereign, the sole guide of mankind and the Source of all Law.” The declaration goes on, clearly basing itself on religious grounds and making further reference to the Prophet Muhammed, divine guidance and the obligation to create an Islamic order. Basing universality on a certain religious doctrine does not make for a compelling argument, particularly so because the set of values are supposed to be valid for the entire world. Clearly the universality that is referred to here is quite different from the Western conception of universality as found in the European Convention of Human Rights or the Universal Declaration of Human Rights, both of which cautiously avoid any such references to God. united-nations-human-rightsUniversality properly so called – namely that of individualist, secularised societies – is the universality referred to by the West when such claims concerning human rights are made. It is this model alone that is promoted and offered to the rest of the world, often as an overriding principle. But even within this model, the application of human rights can be seen to be internally contradictory. Take, for instance, the laws concerning abortion in France. Since 1975, French law has guaranteed the right to abortion but in 1994 France adopted a text on bioethics in the National Assembly which prohibits the experimentation on embryos, alleging the need for “the respect of the human being from the commencement of life”. If the embryo is not a human being, why would one be prohibited from experimenting on it? If it is, abortion cannot be justified. It seems apparent that, at least in this context, human rights are becoming more of an “all-purpose expression”, having an ever changing meaning that one attributes to them depending on the circumstances of their invocation.
 
Having scrutinized the traditionalist conception of human rights, it is necessary to examine the political conception. That is, human rights as visualized by Joseph Raz and John Rawls. However, before an examination is undertaken, it is pertinent to make a few preliminary remarks about the content of these writers work. Although Raz and Rawls may both be defined as advocates of the political conception, they are not always in agreement. It is therefore appropriate to examine these writers individually. For the purposes of this inquiry, the political conception of human rights is defined as rights which set limits to the sovereignty of states. A violation of said rights, or the anticipated violation, is a defeasible reason for taking action against the rights violator by the international community. Sovereignty, in itself, did not justify any such violation of what we now deem to be ‘human rights’ but it protected the states from external interference. A violation of human rights now disables any appeals to state sovereignty in order to rebuff international intervention.
 
Human rights, Rawls tells us, are a class of rights that play an important role in a sensible law of people. These rights limit the justifications for war and its conduct, and they specify limits to a regime’s personal autonomy. On this, Raz and Rawls are in agreement. However, Rawls claims that human rights are necessary conditions of any system of cooperation. If these rights are regularly violated, we have command by force, a slave system and no cooperation of any kind. Social cooperation, argues Rawls, acts to fulfil fair terms of cooperation and mutual advantage, it is always for mutual benefit and every participant can be reasonably expected to accept these terms, provided that everyone else accepts them. All who cooperate must benefit or share in common benefits. As a consequence of this, Rawls creates a numerus clausus of human rights. Amongst others, the right to life, to liberty, to property, and to formal equality are human rights. In The Law of Peoples, Rawls extends his hypothetical social contract to apply beyond the individual state. In doing so, Rawls modifies it so that the parties that choose the law of the peoples are representatives of peoples – and not the individuals. Peoples, in the Rawlsian sense, are groups that are united by “common sympathies” and who have a shared sense of justice or conception of the good. Rawls imagines an international “original position” in which all reasonable liberal peoples are represented. Liberal peoples are defined as having a basic structure that includes a constitutional regime that respects certain basic rights and liberties equally and for all citizens. Furthermore, it gives protection of these rights and liberties preference over the claims of the social good and assures that all citizens have access to the primary good required to make productive use of these freedoms.
 
An important criticism of this approach is that, in saying that the parties represent peoples, one is propagating a view in which the fundamental principles of international law that will be chosen will reflect the interest of those who support the dominant or official conception of the good or of justice in society. As a consequence of this, the interests of dissident individuals or minorities are utterly disregarded. Aside from having dominant societal views as representatives of the people, a number of criticisms can be levelled against Rawls’ theory. First, like the traditionalist, Rawls fails to scrutinize the relationship between values and the rights he argues for. Although Rawls accepts that not all wrongs committed constitute a violation of human rights, he fails to distinguish human rights from other forms of rights or values. Rawls creates a list of principles which, it is claimed, would be readily accepted by reasonable peoples. Anticipating criticism that his principles are purely Western in nature, Rawls creates a “second original position”. While the first original position represents the perspective of decent liberal peoples, the second represents the perspective of decent nonliberal ones. A decent people satisfy two conditions. First, the society in question does not have aggressive, interventionist aims in foreign policy and respects the sovereignty of other societies. Second, the society has a common good conception of justice. Each person’s interests must be taken into account, public decisions and basic human rights are secured for all, people are treated as the subjects of legal rights and duties and judges accept and apply the common good conception of justice in carrying out their public responsibilities. Rawls accepts that there will always be some degree of cultural diversity and that this will be represented by a diversity of political forms, many of which may be incompatible with his first original position but still satisfy conditions that justify their recognition as cooperating members of international society. Although, as a list of liberal aspirations, this sounds quite compelling, it exposes a contradiction in Rawls’s approach. The veil of ignorance, at least in A Theory of Justice, is said to screen the choice of principles from the influence of any variable elements, including any conceptions of good. This cannot be reconciled with the creation of a second original position which takes account of cultural, political and social differences. Finally, it does not follow that a society that does not respect the human rights listed by Rawls rules by force. It would be absurd to consider a society which does not and has never recognised the right to private property as a society which rules by force. The society may have communal property, owned by the clan and utilized by all. Would this society not enjoy social cooperation?
 
Raz, as an adherent of the political conception of human rights, is in agreement with Rawls as to the definition of human rights. That is, human rights operate to limit the sovereignty of the state. However, Raz argues that human rights are moral rights held by individuals. These moral rights attain the status of human rights only when the social and political organization of a country make it appropriate to hold the state to have a duty to protect these rights. That is, they are contingent rights and lack universality as they exist only when certain conditions are met. If these conditions are met, the individual attains a moral right. If these conditions are met throughout the world, then the right becomes a human right and the state does not enjoy immunity from international intervention if it violates such a right. Using education as an example, Raz argues that the relevant interest of the right-holder is to be equipped with the skills and knowledge which will enable him to lead a rewarding life. This is dependent upon the conditions in which the individual finds himself. If formal education is required to meet this interest in the society, the individual attains a right to it. Raz offers a conception of human rights that lack a foundation (in that they are not grounded in a fundamental moral concern) but, he claims, enjoy rational justification.
 
Having alluded to it above, it seems pertinent, at this point, to address what I have termed the internal inconsistency of human rights. In contemporary society, we view and identify rights in general terms – the right to life, the right not to be tortured and so forth. If, as Raz argues, the designation of human rights should depend on an all-things-considered-approach, this general approach to human rights must be rejected. Instead we must examine human rights and the appropriateness of intervention on a situational and conditional basis. The problem here is that, all-things-considered, we may have the right to free-speech-in-Kosovo in 2003 but what we would usually identify as that same right may not prove to be a human right in 2015. Furthermore, it seems strange to define such a regional set of rights as ‘human’ when the general discourse of rights has created the impression that human rights have a more settled basis. Jeremy Waldron argues that a conception of human rights that relies on contingent and situational factors is counterintuitive as it allows for too many factors to influence the relevant judgment. He argues that, because of technological advancement, humanitarian intervention is easier. As a consequence of this, it is appropriate to consider a wider range of cases as potential human rights violations. He infers from this that certain rights become human rights which were previously not, simply because it is easier to intervene upon their violation. However, this criticism seems misplaced. Raz does not argue that human rights are contingent upon the ability of other states to intervene upon their violation. Whether they have a right to intervene seems to be independent of any such ability to do so.
 
Rights, in terms of the political approach, only fall into the “special” category of human rights if their violation warrants the suspension of a state’s sovereignty. Regardless of the approach taken, whether it is traditional or political, almost everyone will accept that when an individual is tortured, a human right is violated. However, it is unlikely that one would accept that when just one individual is tortured, humanitarian intervention and the suspension of the state’s sovereignty is justified. Accepting this, Rawls writes that any systematic violation of these rights is serious in nature. He later adds that the principle of non-intervention does not apply when the serious violation of rights has become endemic in the state concerned. That is, human rights are a matter of international concern when a society fails to respect its people’s rights on a sufficiently large scale. Similarly, proponents of humanitarian intervention argue that the threat or use of force across borders by other states is aimed at preventing or ending widespread violations of human rights.
 
Raz, who prides himself in having offered an account that highlights the importance of individual rights, seems to be disillusioned. The approach offered highlights only the importance of a large cluster of rights violations. This only helps to further complicate the matter as we cannot infer from the fact that something is part of a cluster of human rights that are being violated that it is itself a human right. This is because if one does infer such a thing, it may imply that the violation of the individual right is in itself a justification for intervention. One could, perhaps, argue that this approach may embrace the individualism of human rights if one assumes that a single rights violation is a defeasible ground for intervention, which Raz does. However, such a case would rarely result in an actual intervention until it is accompanied by hundreds of other such instances. This would restore the normativity of human rights but this normativity would only be minimal. As a consequence, individual human rights lose their trumping importance and the relevance placed on them is considerably diminished.
 
Whether one accepts human rights as inherent and universal or as rights which enjoy rational justification, the manner in which these rights are applied often creates a cause for concern. In Europe, during the period of transition for many of the former Soviet states, human rights were invoked in order to promote what is often referred to as “democratic conditionality”. The European Commission for Democracy through Law acted to assist the former Soviet states change their constitutions and fundamental laws in accordance with the European norms. This was done by respecting the standards of the European Council, with a focus on democracy, human rights and the rule of law. In contemporary times we are witnessing much the same influence wielded by the European Court of Human Rights which is working to ever further its definition of what constitutes a real democracy. The Court, by setting the main standards of democracy, is increasingly affecting the constitutional laws of European states, so much so that it risks breaching their independence.
 
This is not to say that human rights should be abandoned or that their importance is overstated. It goes without saying that human rights play an important role in the law of nations and that they provide both a foundation for the good practice of states and recourse for the people within those states. Rather, I have argued that we should not overlook the foundations of such rights and, further, that these rights are not beyond scrutiny or criticism. The foundations of human rights are not without contradiction, neither are they as obvious as one would expect from such a demanding ideology. In fostering debate about the nature of such rights, their origins and the source of this “special” category of rights we may better understand the nature of the global community and the potential for interaction between the members of such a community.

Father to Us All – The Supremacy of War

 

Heraclitus, an Ancient Greek philosopher, once said “War is the father of us all, king of all. Some it makes gods, some it makes men, some it makes slaves, some free.” One may be persuaded to think that a statement from a time so different to our own no longer holds sway over society. That the world has advanced to a point where conflict can no longer create gods and kings. Times have changed and so, inevitably, the context of such words changes too. In the setting of the classical period of Greece this notion would make profound sense. After all, the words of Heraclitus were followed by the defeat of the Persians at Marathon, the coming of Alexander the Great and the birth of democracy in Athens. But, despite the passing of years, the words of Heraclitus can be found echoing over two millennia later in the American Civil War, with the emancipation proclamation and again as the allies freed Europe from Hitler’s rule. War is as integral a part of society as it has ever been. The changes in modern thinking and culture prove to be superficial in comparison to the driving force that war has provided and has remained throughout the centuries.

downloadThe modern aspects of war are numerous and have been demonstrated to play a pivotal role in the construction of contemporary society. The Israeli-Palestinian conflict has resulted in a culture of war that has affected not only the state and people residing within it, but those surrounding Israel as well as those who would call themselves her allies. The culture of war can be expanded to encompass the “threat of war” and its uses as a political and social factor in modern state affairs. This results in a society that is desensitized and prepared for a war, either at home or on a foreign front. The government, through media frenzy or through the slow implementation of policies, creates a state that is predisposed to war. In all cases of modern conflict a form of justification is advanced, regardless of how substantive this justification is. From the on-going conflict in Israel, the American involvement in Iraq to the recent intervention by the South African government in the Central African conflict, all of which have had some form of justification. The most recently publicized escalation, that of the volatile North Korean state, has been greeted by both mass hysteria (That of the press) and calm contempt (Those with the power to implement policy). While the media rattles off frantically about the threat of nuclear warfare and the danger to the West the defense secretary of the United States announces an extra $1 billion dollar increase to the budget in order to add to missile interceptors in Alaska. This hysteria and panic allows for the pentagon and defense institutes in the United States to justify the increase in expenditure in arms as well as increasing the size of the U.S military sphere around the world.

the-four-horsemen-of-the-apocalypseThe conduct of warfare, through land, air and sea has undoubtedly led to great technological innovation. The fundamental question is to what extent has warfare and the culture of war created a technologically driven society? The notion that necessity drives innovation may be applied to this question. The more recent and commonly used examples of innovation driven by warfare include that of the space race, Manhattan Project and utilization and advancement of radar, but one could make reference to things as arbitrary as the toaster or sanitary napkin. Factory setups change, in order to meet the vast quantities of manufactured goods required during the war and, although the short term effects of war tend to be an economic boom, these results are unsustainable. This results in an economy that may rely, predominantly, on a war to succeed in its goals. War has resulted in advances not only within the technological field but within the social structures of society too. The emancipation proclamation, 5105792the women’s rights movements and the upheaval of the political and social structures in the Middle-East have all been influenced significantly by warfare. Indeed, the decolonization of Africa occurred, in many instances, due to the vying moral and ethical ideologies that became apparent at the end of the Second World War and the start of the Cold War. The pressure put on the colonial powers by the United States and Soviet Union resulted in empires of the West giving up their colonial accessories.

Athena-fighting-Gigantes-Atti-white-ground-black-figure-lekythos-500-BC-GelaPolitics and war have always been interlinked. This can be observed in the contrasting views of the Soviet Union and the United States to the motivations behind the involvement of foreign interests in Central Africa. Woodrow Wilson, re-elected not least because he kept the United States out of the first part of the Great War, said “The world must be made safe for democracy. Its peace must be planted upon the tested foundations of political liberty”. The threat of a German Europe was enough of a reason to plunge the United States into the First World War and, ironically, lay the foundations for Hitler’s Germany. The notion of a “threat” has played a consistent role in world politics. From the threat of losing an ally to the threat of terrorism or the threat of losing national interests or resources. Woodrow Wilson, who did not want to bring the U.S into the Great War, found himself assenting with the war enthusiasts. This issue, the “threat” has been reoccurring throughout history. The French legislature was pressured by, firstly the conservatives, and then by both the liberal and conservative branches of state to welcome the war with Prussia in the 19th century. The Communist revolution and French revolution were both spurned by conflict and resulted in conflict. War can unite a state, even if the resulting actions and consequences are disastrous for the nations involved.

The relationship between war and man is inseparable and the conflict drives society onward, for better or worse. Although the reasons for going to war may be relatively different to those in the golden age of Greece (Democratic values, moral necessity etc.) mankind still finds himself embroiled in wars across the world, influenced socially and politically by the outcomes and decidedly ignorant to the lessons history has taught us. The original meaning and context of the words may have changed but the purpose that Heraclitus intended remains the same. No longer does a king need a crown, for power and wealth are all the signs required for us to know that not much has changed.

Note: This was written in 2013 and published by Liberty Voice.

A History of Violence

We are bombarded by our television screens, on a daily basis, with seemingly senseless violence, grotesque executions and barbaric practices. Indeed, shows such as Game of Thrones and Vikings make common use of such themes and even, at times, use it to drive their respective plots forwards.Although this may all seem very detached from reality – such shows are fictitious or very loosely based on real events – our own history offers far darker tales than those that are drawn from the minds of writers and producers. Indeed,this may be where such a fascination with violence comes from.

It all began a long time ago. A very long time ago. In 1991 the body of a man was found frozen in the Ötztal Alps on the Austrian – Italian border. The body was frozen in ice and was initially believed to be the body of a lost mountaineer. However, after scientific analysis, it was found to have belonged to a man who lived between 3359 and 3105 BCE. At the time, it seemed to be the discovery of the remains of a peaceful mountain dweller who had died due to exposure or a man who had simply gotten lost and starved before being frozen. Gaisbergferner_gletscher_ötztal
The remarkable discovery took a macabre turn when it was discovered that Ötzi had an arrow embedded in his left shoulder. Further research revealed that Ötzi had bruises and cuts on his hands, wrists and chest. Moreover, he had suffered cerebral trauma as a result of a blow to the head. The exact cause that led to the blow on his head that eventually killed him is unclear. However, it has become quite clear that Ötzi suffered a horrific death. A number of theories, following this gruesome discovery, have been posited. He may have been the victim of a ritual sacrifice: his life offered to appease whichever gods the people worshiped. Some have claimed he was a casualty of a battle and others: that he was murdered.

In War: What Is It Good For? Ian Morris used anthropological and archaeological evidence to examine the prevalence of violence in early population groups. He concludes that as many as 1 in 10 people died violent deaths at the earlier stages of modern homo sapien development. This flies in the face of the many theories and conceptions we might have of the hunter gatherer and early nomadic societies. Indeed, the idea of the Noble Savage (which has already met it’s demise through other studies) is falsified.

senate_paintingBut what about more civilized times? Have there ever been civilized times? Of course, most of us are familiar with the assassination of Julius Caesar but the Roman empire has played host to a number of both successful and failed assassination attempts. Galba, who ruled Rome for an entire seven months before his death, was assassinated by his own Praetorians. After his demise, Galba’s head was brought to Otho (who had orchestrated the assassination) who promptly gave it to his camp followers who then paraded and mocked it. His head was then buried in a tomb by the Aurelian Road. The history of Rome is filled with such incidents and both usurpers and legitimate rulers have often found themselves at the end of the blade.

Hundreds of years later and Italy finds itself, yet again, in the grips of a politically motivated violence. giuliano_de'_medici,_1475-78_02This time, with the Pope as a co-conspirator. The Medici family ruled Florence, much to the dismay of the Pazzi, who were another powerful Florentine family. In 1478, the assassins struck at Lorenzo and his brother Giuliano de Medici. Giuliano, who was stabbed in excess of 19 times, eventually bled to death on the cathedral floor. The assassination had taken place during High Mass. His brother, Lorenzo, survived and the Pazzi plan fell apart as the citizen of Florence threw themselves behind the Medici. In the ensuing chaos the assassins were killed and the Pazzi family were hunted down and murdered.

It was not just political murders, war and pillaging that occupied the medieval rulers. Sexual deviancy, rape and ritual murder was more common place than is often thought. Gilles de Rais , who shall go down in history as “Bluebeard”, being one of the most infamous perpetrators of such acts. After being visited by a practitioner of the dark arts. Gilles became obsessed with the abduction, rape and murder of the boys and girls of the village he ruled. Gilles_De_RaisThe children were abducted by men he had hired and who watched as he undertook these grisly acts. Dozens of children were killed by him and he often kept “a few handsome heads” as “relics”. Eventually the Church caught up with him and he was left to hang in a gibbet before being cast into the flames.
Witchcraft and heresy became an obsession of the Church during the darker years of European history. Indeed, even in a time of religious reformation and the supposed ushering in of a new era, Martin Luther wrote, in the Sermon of Exodus in 1526, that it is a just law to do away with sorceresses. Witches, even those who do no harm, shall be burned as they have made a pact with the devil himself. Such superstition and a fear of the paranormal led, as these things often do, to senseless violence and the “purging” of Europe of witchcraft.349x450x130343-004-CDD9D558.jpg.pagespeed.ic.KePTkowQyW

All witchcraft is heresy but not all heresy is witchcraft. The distinction became important as those who opposed the Church were brought to heel. The Church used the power of the Inquisition and it’s loyal followers to carry out a series of horrific attacks against dissidents and political enemies alike. The heresy laws provided a catch-all for those the Church wished to see dead. As witchcraft was simply one of the many violations of the law of the Church that fell under heresy, one bore the onus of proving not only that one was innocent of witchcraft, but all of the other charges brought against their person. If an accused could show that he (but normally she) was innocent of witchcraft, she may still be found guilty of heresy and the same punishment would ensue. The Maid of Orléans: Joan of Arc is a perfect example of this. After, unsuccessfully, prosecuting her for witchcraft, the Church managed to find her guilty of a number of other offences. She was, eventually, burnt on the stake for the crimes of cross-dressing(a punishable offence) and other such spurious charges.

Despite our fascination with television shows, movies and books and the violence embedded in them, it is readily apparent that our own history offers a more grotesque story than any writer or producer could ever imagine. Indeed, George RR Martin has noted that there are scenes just as harrowing and gruesome as those depicted in “A Song of Ice and Fire” in our own history. Although this post has used examples from history, one would be remiss not to note the abundance of contemporary examples. Steven Pinker, in The Better Angels of our Nature, claims that we are living in the most peaceful time in our species’ existence. Although this may be true, I think this topic is better left for another time.