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LLM/MA Intensive Programmes

The History and Philosophy of Human Rights

LADD303S7

Module Guide2015/16

GENERAL INTRODUCTION TO THE COURSE

Welcome to History & Philosophy of Human Rights. This is a core module for the LLM/MA Human Rights programme.

There is set reading for each seminar, which is divided into essential and further reading. Students are expected to have studied the essential reading for each seminar and to be prepared to discuss that material in the light of the discussion questions for each seminar.

LECTURER DETAILS

Professor Costas DouzinasEmail: [email protected] 102, 16 Gower Street

Dr Stewart MothaEmail: [email protected], 202, 12 Gower Street

IMPORTANT DATES

Seminars start: Wednesday 16th March 2016Seminars end: Tuesday 22nd March 2016Coursework Submission Date: Monday 13th June 2016

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mailto:[email protected]

mailto:[email protected]

USE OF MOODLE

Please check regularly for updates, information and materials. Where possible the lecturers will draw your attention to new materials being placed on the sites, but it is considered to be your responsibility to stay informed and check regularly. If for any good reason you are unable to use Moodle and require assistance with obtaining the materials for the course please contact a member of the Administration Team at the Main Law School Office.

Essential reading for each seminar and assessment information will be placed on Moodle provided this is enabled by Copyright regulations.

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AIMS AND LEARNING OUTCOMES

Human rights have triumphed on the world stage. They unite left and right, north and south, the state and the pulpit, the minister and the rebel. Human rights are the fate of postmodernity, the energy of our societies, the fulfilment of the Enlightenment promise of emancipation and self-realisation, the ideology after the end of ideologies, at the ‘end of history’.

And yet many doubts persist. The record of human rights violations since their ringing declarations at the end of the eighteenth century is quite appalling. If the twentieth century is the epoch of human rights, their triumph is, to say the least, something of a paradox. Our era has witnessed more violations of their principles than any of the previous and less 'enlightened' epochs. The 20 th century was the century of massacre, genocide, ethnic cleansing, the age of the Holocaust. At no point in human history has there been a greater gap between the poor and the rich in the western world and between and north and the south globally. No wonder then why the grandiose statements of concern by governments and international organisations are often treated with popular derision and scepticism.

A second paradox bedevils human rights theory. While natural and later human rights are a great achievement of modernity, standard political and legal philosophy has failed to grasp their operation fully. Liberal philosophers are committed to an individualistic conception of society and a simplistic conception of the subject, as an isolated monad, that goes back to the classical theorists of the seventeenth and eighteenth centuries. As a result, some of the most important philosophical and social scientific developments of the last 200 years are neglected.

We will try to redress this omission starting with the genealogy of rights. Have the classical traditions of philosophy, law and Christianity contributed to the genesis of rights? Have rights contributed to the destruction of the pre-modern world? What type of subjectivity do rights construct and support? Antigone and Aristotle, Kant and Hegel, Marx and Burke, Freud and Lacan, Levinas and Derrida will help us in our quest.

Human rights have two aspects, an institutional and a subjective. Rights are an important institution of domestic and international law but they are also central tools in the construction of our identity and ‘subjectivity’. There can be no single theory of human rights because the term refers to many and different institutions, laws, campaigns, struggles and people. The various philosophical perspectives we will examine will help us understand different aspects of the operation and the rhetorical and political force of rights.

Teaching format

The course will be conducted through seminars by Costas Douzinas and Stewart Motha. The questions to be addressed and readings for each topic are indicated in this module guide. Seminar participants will present short papers on a particular

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topic, which will be followed by a discussion of the questions raised. EACH PARTICIPANT WILL BE EXPECTED TO PRESENT A 15’ PAPER. THE SEMINAR LIST RECOMMENDS ONE TITLE FOR POSSIBLE PRESENTATION IN EACH SESSION BUT OTHER TITLES MAY BE AGREED.

Assessment will be through a 4,000-word essay on any of the topics covered by the course. The essay topic must be approved by the convener.

Bibliography

The set textbook is Costas Douzinas, The End of Human Rights (Oxford, Hart, 2000). Most readings refer to chapters of this book. It is recommended that you purchase a copy of this book.

Other essential readings for each topic are found in the course materials distributed in advance.

There is an extensive bibliography on the theory and history of human rights some of which is quite repetitive and not always interesting. A new ‘revisionist’ historiography has emerged in the last decade. Interesting books in the area include:

Costas Douzinas, Human Rights and Empire, Routledge, 2007

Conor Gearty and Costas Douzinas, The Cambridge Companion to Human Rights Law, Cambridge University Press, 2012

Samuel Moyn, The Last Utopia, Harvard University Press, 2010

Costas Douzinas and Conor Gearty, The Meanings of Rights: The Philosophy and Social Theory of Human Rights, Cambridge University Press, 2014

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ASSESSMENT

The course will be assessed by a 4000 word research essay. Students may either (a) choose a question from the list of sample seminar questions that appears below, or (b) develop their own essay question in consultation with the lecturer.

Where students elect to develop their own essay question, the question must be finalized by mid-April. By this date, students must get approval for a question that is not on the list of sample seminar questions. Essays on questions other than those set out in the list of sample questions may not be marked if students have not consulted with the lecturer.

For the purpose of writing this essay, students are expected to consult a range of primary and secondary materials.

The essay must be footnoted and all sources must be properly cited. Failure to observe this obligation may result in the loss of marks. Students are reminded that the failure to acknowledge sources relied upon may amount to academic misconduct. Proven academic misconduct carries potential penalties of greater severity than the loss of marks.

A case list and bibliography must be submitted with the essay showing all sources consulted. The remarks above in relation to academic misconduct are also pertinent to the obligation in this paragraph.

The word limit for the essay is 4000 words. This word limit includes discursive footnotes, but not footnotes that only contain a citation to source. The case list and bibliography are not subject to the word limit. Where an essay exceeds the word length by more than 500 words then I retain the discretion to reduce the overall mark in proportion to the amount by which the word limit is exceeded.

Where the ability of a student to comply with the assessment requirements is compromised by illness or other adverse personal circumstance the matter should be brought to the attention of the relevant course director as soon as the student is aware of it.

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SUMMARY OF SEMINAR TOPICS

Wednesday Thursday Friday Monday Tuesday

Seminar 1:

Introduction

CD + SM

Seminar 3:

The modernity of rights

CD

Seminar 5:

Human rights, the values of a godless age? Liberalism, communitarianism, rights.

CD

Seminar 7:

The Limits of Human Rights – the Chagos Cases

SM

Seminar 9:

Rights and Sovereignty After Globalisation: Refugees

SM

Tea Break

Seminar 2:

Antigone’s struggle. The classical beginnings in Greece and Rome.

CD

Seminar 4:

From 1789 to 1989: From Natural to Human Rights

CD

Seminar 6:

Who is the ‘human’ of human rights?Humanity, humanism, postmodernism

CD

Seminar 8:

Rights and Sovereignty After Globalisation: Refugees

SM

Seminar 10:

Law, Violence, and Resistance

SM

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SEMINAR TOPICS AND READING GUIDES

Seminar 1

Prepare in advance of first seminar: Consider the meaning of the term ‘(human) rights’ in the following statements. Do some of these statements

use the term ‘(human) rights’ incorrectly?

1. All human beings are born free and equal in dignity and rights (UDHR).

2. I have the right to free speech and the right to form and participate in political parties (Chinese dissident).

3. In the case of Smith et al v UK, the European Court of Human Rights decided that a ban on gays and lesbians in the army violates their right to private, personal and family life guaranteed by art.8 of ECHR.

4. Everyone has the right to periodic holidays with pay.

5. I have a right to love and be loved and you are violating it (abandoned lover).

6. The aim of human rights is to defend the victims of atrocity.

7. It is the basic right of every English man and woman that the remnants of chicken tikka masala, the nation's favourite dish, can be put in the bin weekly (Eric Pickles, UK Communities Secretary).

8. We went to Iraq to bring democracy, human rights and freedom (Tony Blair).

9. The foetus enjoys the right to life.

10.We all have a human right to properly functioning electric appliances (British Minister for consumer affairs).

11.The miners strike was a fight between the right to strike of some against the right to work of others.

12.The right to work is a universal human right.

13. I have a right to clean air and a non-polluted environment.

14.The end of human rights is to resist the abuses – domination and exploitation -of public and private power.

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Seminar 2 - Antigone’s Struggle.

The classical beginnings

Questions for discussion

Whom or what is Antigone rebelling against?

Why has Sophocles’ Antigone captured the imagination of the world throughout

human history?

SEMINAR PRESENTATION TOPIC

‘What is the relevance of Antigone today? Are there situations in which you would consider acting against the law in obedience to a higher law?’

Readings

Douzinas, Chapter 2

Douzinas and Warrington, ‘Antigone’s Dike’ in Justice Miscarried (Edinburgh

University Press, 1994) Chapter 2, (Course Materials)

Leo Strauss, Natural Law and History (Chicago University Press, 1965), Ch III, ‘The

Origin of the Idea of Natural Right’ (Course Materials)

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Seminar 3 - Modern perspectives on rights


Discuss the political, economic, social and legal factors that led to the creation of

natural rights.

What is the importance of the distinction between rights of man and rights of citizen

in the French Declaration of Rights?


‘Marx dismissed natural rights as bourgeois inventions, Bentham as anarchical

tools. Do you agree with either from today’s perspective?’

ReadingsDouzinas, Chapters 4, 5.

Further Readings

Hobbes, Leviathan, Chapters 13, 14, 15, 17, 21.

John Locke, Second Treatise of Government, Chapters 2, 4, 5, 7, 8, 9.

Edmund Burke, Reflections on the Revolution in France, extracts

Jeremy Bentham, Anarchical Fallacies, extracts

Karl Marx, On the Jewish Question, extracts

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Seminar 4 - From 1789 to 1989:

From Natural to Human Rights

Questions for Discussion

Compare the American and French declarations of rights.

Compare the Universal Declaration of Human rights with the African Charter of Rights.


‘Why have human rights institutions and conventions proliferated so much in the last 60 years?’

ReadingsDouzinas, Chapter 6.

Documents

American Declaration of Independence

Bill of Rights of the United States

French Declaration des Droits de l’homme et du citoyen

Universal Declaration of Human rights (all the above in ‘Texts and Documents’)

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Seminar 5 - Who is the “human” of human rights? Liberalism, Communitarianism, Rights.


Discuss the liberal justification of rights.

Can we have a non-foundational defence of human rights?

What is the role of human rights in the postmodern world?


What are the main differences between the liberal and communitarian traditions of rights?

Readings

Douzinas, Chapters 8, 9.

Jack Donnelly, ‘Universal Human Values’, (Texts and Documents, 35)

Martha Nussbaum, ‘Capabilities and Human Rights’, (Texts and Documents, 59)

Richard Rorty, ‘Human Rights, Rationality and Sentimentality’, (Texts and

Documents, 84)

Charles Taylor, ‘Conditions for an Unforced Consensus on Human Rights’, (Texts and Documents, 74)

Documents

Universal Declaration of Human rights

African Charter on Human and Peoples’ Rights

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Seminars 6 - Who is the ‘human’ of human rights?: Humanity, humanism, postmodernism


How does dialectical thinking differ from standard approaches to law and rights?

How does law and rights help sustain individual and group identity?

What insights can psychoanalysis give into the workings of law?

What is law’s desire?

What does law fail to eliminate race discrimination?


‘Human Rights do not belong to humans, they create humans. Discuss the role of

rights in the development of human identity’

Readings

Douzinas, Chapters 11, 12.

Costas Douzinas, The End(s) of Human Rights, 26/2 Melbourne Law Review (2002)

(Texts and Documents, 168)

Costas Douzinas, 'Identity, Recognition, Rights: What Can Hegel Teach us about

Human Rights', Journal of Law and Society, Vol. 29, No. 3 (2002), 379-405.

Renata Salecl, The Spoils of Freedom, Chapter 8 (Texts and Documents, 132).

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Seminar 7 - The Limits of Human Rights: the Chagos Cases

Questions

What do the Chagos Islander cases disclose about the relationship between law and sovereign power?

How does space, territory, and the ocean impact on whether rights will be protected?

What does it mean for ‘life’ to be mediated by law?

SEMINAR PRESENTATION TOPIC:

‘Law serves the state and not the bearer of rights’. Discuss.

Readings

Stephanie Jones, “Colonial to Postcolonial Ethics: Indian Ocean ‘Belongers,’ 1668–2010,” Interventions: International Journal of Postcolonial Studies 11, no. 2 (2009): 212–34

R (on the application of Bancoult) (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) [2008] UKHL 61. Read Lord Hoffman, and Lord Bingham (in dissent).

The Queen (on the application of Louis Olivier Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 1502 (Admin)

Further Reading

Stephanie Jones and Stewart Motha, “A New Nomos Offshore and Bodies as Their Own Signs” (2015) 27:2 Law and Literature 253-278.

Mark Elliott and Amanda Perreau-Saussine, “Pyrrhic Public Law: Bancoult and the Sources, Status and Content of Common Law Limitations on Prerogative Power,” Public Law (October 2009): 697–723.

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Laura Jeffery, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration (Manchester: Manchester University Press, 2011)

Laura Jeffery, “Historical Narrative and Legal Evidence: Judging Chagossians’ High Court Testimonies,” PoLAR: Political and Legal Anthropology Review 29, no. 2 (2006): 228–53.

Steven Allen, The Chagos Islanders and International Law (London: Hart, 2014)

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Seminar 8 and 9 - Rights and Sovereignty After Globalisation: Refugees

Questions

What is the relationship between nation, citizen, and rights?

What is Arendt’s critique of the notion of ‘refugee’?

What is Rancière‘s critique of Arendt? What does Rancière mean by dissensus?

What is Agamben’s account of sovereign power and ‘bare life’?


‘The state of exception has become the norm’. Discuss

Readings

Hannah Arendt, “The Decline of the Nations State and the End of the Rights of Man” in The Origins of Totalitarianism. Chapter 9.

Jacques Rancière, “Who is the Subject of the Rights of Man?” (2004) 103: 2/3 South Atlantic Quarterly 297-310.

Arendt, Hannah. 1994. “We refugees”, in Marc Robinson (ed.) Altogether elsewhere: Writers on exile. (1994).

Stewart Motha, “The Redundant Refugee” (2016) Law and Critique

Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life. – extracts

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Further Reading

Said, Edward. Reflections on exile and other essays. (Cambridge, MA: Harvard University Press, 2000).

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Seminar 10 - Law, Violence, and Resistance

Questions

What is the relationship between law and violence?

What is the distinction between ‘mythic’ and ‘divine’ violence?

In what conditions is violence legitimate?


‘All new orders are born of violence; rights are the legacy of a temporary

peace’. Discuss

Readings

Walter Benjamin “Critique of Violence” in One-Way Street and other

Writings (1998, Verso, London). 132-154.

Stewart Motha, “Mistaken Judgments” in Austin Sarat (ed.) Law and

Mistake (Amherst: University of Massachusetts Press, 2016).

Further Readings

Hannah Arendt, On Revolution.

Judith Butler, “Quandaries of the Plural: Cohabitation and Sovereignty in Arendt” in Judith Butler, Parting Ways: Jewishness and the Critique of Zionism (New York: Columbia University Press, 2014) 150-180.

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