Diverse Persuasion(s): From Rhetoric to Representation (and Back Again to Rhetoric) in International Human Rights Interpretation

Abstract

This article proceeds from a way of thinking about legal-rights reasoning that is grounded in the rhetorical tradition. In light of questions of political legitimacy and personal ethics, a central premise of the article is that the rhetorical enterprise must situate itself within a paradigm of dialogic communication in which mutual persuasion is the orientation to argument and the quest for intersubjective validation of claimed premises, lines of argument, and conclusions is the purposive mode. The first step in the article is to move from a general conception of law as a field of rhetoric to an account of how such a conception can be a useful way of thinking about both the nature of (human) rights - assisted by the analytical account of the nature of rights advanced by Joseph Raz - and the interpretive processes of meaning-giving that go on within the international human rights treaty orders. The article then develops an account of representational diversity that builds on previous work on a notion of interactive diversity of knowledge and that situates such diversities as a sine qua non for the legitimate judicialization of interpretive authority in any legal order, but especially in the international realm. To accomplish this, the argument first reminds readers of the central problem of representation within an interstate conception of international human rights law that was first identified and grappled with by Hersch Lauterpacht as the dust of the Second World War was settling - how to justify granting the power of judgment (whatever its formal force) to an international human rights body in light of objections that such judgment represents an unjustifiable imposition from 'outside' a state and its society. The Lauterpacht concern with the representation of states on international bodies is then complemented by a perspective that draws lightly on the theories of process and authority of Myres McDougal and Harold Lasswell and on notions of counterfactual assent such as are associated with the communicative theorizing of Jurgen Habermas. It is argued that the central question of representation in evolving international human rights law should be one that leaves behind the implicit image of an international body as a surrogate for interstate deliberation. Instead, an approach is needed that locates the persuasive authority of international human rights bodies in a double conception of what is termed rhetorical responsibility: at one level, international human rights adjudication as a kind of microcosm of transnational dialogues over human rights in which, alongside representational concerns tied to political geography, non-state representational diversity is valued and given shape by purposive accounts of the point(s) of the international human rights enterprise; and, at another level, of international human rights adjudication as an enterprise that cannot ultimately be divorced from personal ethos and existential decision on the part of judges or analogous decision-makers. In a brief and deliberately tentative concluding section, it is hypothesized that the extent to which a (both) transnationalized and personalized idea of international human rights judging - animated by an ideal of dialogical universalism - can overcome legitimacy concerns based on societal sovereignty in a still-state-ordered world can only be understood alongside an account of two key framing variables. The first variable is the nature and degree of the formal power of an international body to bind states and other actors to its judgments. The second variable is the extent to which a body can plausibly present itself as playing a 'constitutional' role vis-a-vis the community of actors to whom its judgments are addressed.