Towards a Dianthropological Praxis of Human Rights 71
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EUROPEAN ACADEMY OF LEGAL THEORY ACADÉMIE EUROPÉENNE DE THÉORIE DU DROIT EUROPESE AKADEMIE VOOR RECHTSTHEORIE COMMON HUMANITIES AND HUMAN COMMUNITY - TOWARDS A DIANTHROPOLOGICAL PRAXIS OF HUMAN RIGHTS BY CHRISTOPH EBERHARD MASTER’S THESIS IN LEGAL THEORY 1996-1997 DIRECTED BY PROF. R.B.M. COTTERRELL - UNIVERSITY OF LONDON Formulating the rules for a meeting of cultures is an urgent need of our times. No particular culture has the right to set the pattern, and no pattern can be set without a certain preunderstanding of the other culture. A pattern can be established only if some people succeed in undergoing a genuine internal experience of both cultures. Extrapolation will not do here. Only living“rosettas” will help the mutual decipherment. (PANIKKAR 1979 : 362-363) Die zwei Parallelen Es gingen zwei Parallelen ins Endlose hinaus, zwei kerzengerade Seelen und aus solidem Haus. Sie wollten sich nicht schneiden bis an ihr seliges Grab : Das war nun einmal der beiden geheimer Stolz und Stab. Doch als sie zehn Lichtjahre gewandert neben sich hin, da wards dem einsamen Paare nicht irdisch mehr zu Sinn. War’n sie noch Parallelen ? Sie wußtens selber nicht, - sie flossen nur wie zwei Seelen zusammen durch ewiges Licht. Das ewige Licht durchdrang sie, da wurden sie eins in ihm; die Ewigkeit verschlang sie als wie zwei Seraphim. (MORGENSTERN 1973 : 298-299) La paix est toujours présente. Vous n’avez qu’à écarter les obstacles qui la troublent. Cette paix, c’est le Soi. (MAHARSHI 1993 : 416) (There is an English translation of MORGENSTERN and of MAHARSHI in the Annexes.) CONTENTS INTRODUCTION 1 PART I : OUR COMMON HUMANITIES - THE GROUNDING FOR A DIALOGICAL AND INTERCULTURAL HUMAN RIGHTS IDEAL 9 CHAPTER I : The Requirements for Genuine Intercultural Dialogue 13 I. The Rhetoric of the Dialogue II. The Paradigm of the “Encompassing of the Contrary” 15 III. The Dialogical Approach : Dialogical versus Dialectical Dialogue 17 IV. The Diatopical Approach -Diatopical Hermeneutics 20 CHAPTER II : Crystallizing and Modelling our Common Humanities 23 I. “Thinking God - Thinking Law” - Legal archetypes and logics 24 II. Crystallizing our Common Humanities 26 1. Identification 2. Differentiation 29 3. Submission 31 4. The Indian Archetype 34 III. Modelling our Common Humanities as a Platform for Intercultural Dialogue 36 1. The Subject of Human Rights 38 2. The Different Social Orders 3. The Legal Tripod 39 4. A Platform for Intercultural Dialogue on Human Rights 40 PART II : OUR HUMAN COMMUNITY : TOWARDS A PLURAL AND PRAXIS ORIENTED HUMAN RIGHTS PARADIGM 45 CHAPTER III : Community - A Paradigm for Intercultural Human Rights’ Thought 48 I. The Modern Paradigm and its Transformations 1. The Modern Paradigm 49 2. A Change of Perspective : From a “Legal System’s” to a “Legal Actors’” View ? 52 II. The Human Rights’ Community - A New Paradigm for Human Rights’ Thought 57 1. The Scope of the Paradigmatic Change 2. The Human Rights’ Community 60 CHAPTER IV : Operationalizing the Human Rights’ Community through the Concept of Game 65 I. The Concept of Game in Legal Theory II. The “Jeu de l’oie” or “Legal Monopoly” 69 PART III : TOWARDS A DIANTHROPOLOGICAL PRAXIS OF HUMAN RIGHTS 71 CHAPTER V : A Dialogue with the Spiritual Traditions in order to Enrich our “Picture” of Man 83 I. Spiritual Traditions and the Human 85 1. What are Spiritual Traditions and what could they Contribute to the Human Rights’ Discussion? 2. Man Seen through the Prism of the Spiritual Traditions 90 II. Enriching the Notion of Dignity by the Spiritual Teachings: Towards a Homeomorphic and Communitarian Picture of Man 93 CHAPTER VI : Towards a Dianthropological Praxis of Human Rights 99 I. The Cosmotheandric Intuition 100 II. Love, Wisdom and Peace as the Cornerstones of a Dianthropological Praxis of Human Rights 102 III. Towards a Dianthropological Praxis of Human Rights 105 CONCLUSION : BUILDING A COMMON FUTURE AS BRIGHT AND COLOURED AS THE RAINBOW 107 ANNEXES 112 BIBLIOGRAPHY 129 “Are human rights universal, a cultural invariant, that is to say, part of a global culture ? (...) Because the question of universality is the answer to an aspiration of completeness, and because each culture ‘situates’ such an aspiration around ultimate values and universal validity, different aspirations to different ultimate values in different cultures will lead to isomorphic concerns which, given the adequate hermeneutical procedures, may become mutually intelligible and mutually translatable. At best it is even possible to achieve a mixture and interpenetration of concerns and concepts. The more equal power relations among cultures are, the more probable it is that such mestizaje might occur. A balanced cross-cultural mestizaje of concerns and concepts is the multicultural correspondent of single-culture universality. (...) alongside the dominant discourse and practice of human rights conceived as a globalized Western localism, a counterhegemonic discourse and practice of human rights conceived as a cosmopolitan politics has been developing. The central task of emancipatory politics of our time, in this domain, consists in transforming the conceptualization and practice of human rights from a globalized localism into a cosmopolitan project.” (de SOUSA SANTOS 1995 : 337-339) In this thesis we will try to take up the challenge de SOUSA SANTOS is presenting to us. We will try to make a contribution to the emergence of an intercultural mestizaje of Human Rights. What is at stake ? In my opinion, it is to enable the emergence of a universally accepted and efficient Human Rights’ system. Or it is rather, as I will develop in this thesis, the building of a working Human Rights’ Community. We seem to be invited to rethink the contemporary paradigm of Human Rights’ thought and practice as it seems less and less able to respond to the challenges facing us. First, Human Rights are de facto not universal. They are not universally guaranteed to every human being. They are violated, and often grossly, all over the world. Second, even their abstract universality is more and more challenged. This is especially the case through their increasing questioning by non-western cultural traditions. The Vienna World Conference on Human Rights of 1993 provided a good illustration of this trend. There the western character of the universal declaration of Human Rights of 1948 has been criticised by a group of Asian, African and Middle East countries. It has for example been advanced that collective rights should get their place next to individual rights, economical rights next to political rights, and that rights should be counterbalanced by corresponding duties. It has been argued that these demands express specific civilisational values (LE ROY 1997a : 1-2). Thus posing our western theory and practice of Human Rights as universal without further questioning, becomes a less and less tenable and intellectually satisfying position. Nevertheless it is as untenable to deny that by its development of Human Rights through its culture and history, the western tradition has touched upon something universal. The respect for human life, the ideal of human fraternity (see articles 1 and 3 of the declaration of 1948) cannot be reduced to a western invention. They bear something more, plunging its roots in the most profound depths of human experience. Engaging into an intercultural dialogue on Human Rights, trying to achieve a mestizaje of Human Rights should thus not be interpreted as the taking of a completely relativistic standpoint, or as the negating of any universality of Human Rights. Engaging in intercultural dialogue on Human Rights should in my mind rather be seen as a constructive, rather than as a destructive endeavour. The point is not to deconstruct the western approach by refuting its universality. The point is rather to enrich this approach through different cultural perspectives in order to progressively achieve an intercultural tradition of Human Rights, a mestizaje of Human Rights. PANIKKAR (1984a : 30) can help us to illustrate this point of view : “Human Rights are one window through which one particular culture envisages a just human order for its individuals. But those who live in that culture do not see the window. For this they need the help of another culture which sees through another window. Now I assume that he human landscape as seen through the one window is both similar to and different from the vision of the other. If this is the case, should we smash the windows and make of the many portals a single gaping aperture - with the consequent danger of structural collapse - , or should we enlarge the viewpoints as much as possible and, most of all, make people aware that there are - and have to be - a plurality of windows? This latter option would be the one in favor of a healthy pluralism.” Engaging in healthy pluralism is what lies at the core of our whole present endeavour. We will strongly refuse to take the look through the western window for the only and all encompassing view. And we will also strongly refuse to engage into absolute cultural relativism. Healthy pluralism demands us to recognize plurality. But it also demands us to keep in mind its underlying unity. It respects and takes seriously all cultural universalisms, which is to say the specific cultural ways to access to the universal, but at the same time it emphasises that an intercultural universality, a mestizaje of Human Rights can only emerge and can only be entertained by the intercultural dialogue of these different universalisms. Our standpoint is thus neither universalistic nor relativistic. It is pluralistic. The problem with the universalistic position is that it is highly ethnocentric, as it turns in an undue manner values and conceptions of the society of belonging into universal ones (TODOROV 1992b : 21-22). Dialogue thus becomes impossible. Indeed dialogue is first of all “duo-logue” (PANIKKAR 1979 : 346).