Foundations beyond law

Abstract

For many, the fall of the Berlin Wall and the end of the Cold War marked the triumph of human rights (discourse) and the inauguration of a new era which, in allusion to a term coined by American legal philosopher Ronald Dworkin, could be described as the ‘rights’ empire’. This ‘empire’ denoted, of course, not a reality in which all human beings did, in fact, enjoy the state of being represented by human rights, such as a life in dignity, civil and political liberties, the rule of law and democracy, and a (certain) degree of social welfare. Rather, it signified a discursive hegemony that turned human rights discourse into the common currency of a globalising world. In fact, the impressive expansion of the international human rights regime, and the proliferation of new constitutions with ample bills of rights in Central and Eastern Europe, Sub-Saharan Africa and Latin America have turned ‘rights-talk’ into the predominant instrument for defining and defending personal and collective identities. This does not, of course, allude to the reality behind rights-talk, which remains at best ambivalent, but to the fact that human rights has come to enjoy a near monopoly on emancipatory and utopian discourse in a post-communist and post-industrialist era. Who owns human rights (discourse)? Whoever seeks liberation from any type of real or perceived oppression couches his or her claims in the language of human rights. Whoever aspires to live out his or her particular identity also expresses this desire in human rights terms. Individuals and groups across the globe use human rights to articulate their claim for better lives. As such, they have at once become one of the defining discourses of globalised (post)modernity and an expression of its hubris. In their dominant interpretation they represent the ongoing process of emancipation and differentiation by individuals from social norms and governmental power that has become the hallmark of liberal democracy and market-based capitalism. Yet, they have also been at the heart of critiques of a ‘Western’ modernity that is seen to over-emphasise liberty over responsibility, individuals over nations, markets and competition over community and solidarity.