The Blackwell

Companion to Law and Society

Edited by

Austin Sarat

• A Blackwell"-fl Publishing

© 2004 by Blackwell Publishing Ltd except for editorial material and organization ([) 2004 by Austin Sarat

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Contents

�a X List of Contributors xm

1 Vitality Amidst Fragmentation: On the Emergence of Postrealist Law and Society Scholarship Austin Sarat l

PART I PERSPECTIVES ON THE HISTORY AND SIGNIFIC ANCE OF LAW AND SOCIETY RESEARCH 13

2 Law in Social Theory and Social Theory in the Study of Law Roger Cotterrell 15

3 Profession, Science, and Culture: An Emergent Canon of Law and Society Research Carroll Seron and Susan S. Si/bey 30

PART II THE CULTUR AL LIFE OF LAW 61

4 The Work of Rights and the Work Rights Do: A Critical Empirical Approach Laura Beth Nielsen 63

5 Consciousness and Ideology Patricia Ewick 80

6 Law in Popular Culture Richard K. Sherwin 9 5

Vlll CONTENTS

7 Comparing Legal Cultures David Ne/ken 113

PART III INSTITUTIONS AND ACTORS 129

8 The Police and Policing Jeannine Bell 131

9 Professional Power: Lawyers and the Constitution of Professional Authority Tanina Rostain 146

10 Courts and Judges Lee Epstein and Jack Knight 170

11 Jurors and Juries Valerie P. Hans and Neil Vidmar 195

12 Regulators and Regulatory Processes Robert A. Kagan 212

13 The Legal Lives of Private Organizations Lauren B. Edelman 231

PART IV DOMAINS OF POLICY 253

14 Legal Regulation of Families in Changing Societies Susan B. Boyd 255

15 Culture, "Kulturkampf," and Beyond: The Antidiscrimination Principle under the Jurisprudence of Backlash Francisco Valdes 271

16 The Government of Risks Pat O'Malley 292

17 Thinking About Criminal Justice: Sociolegal Expertise and the Modernization of American Criminal Justice Jonathan Simon 309

18 Rights in the Shadow of Class: Poverty, Welfare, and the Law Frank Munger 330

19 Immigration Susan Sterett 354

20 Commodity Culture, Private Censorship, Branded Environments, and Global Trade Politics: Intellectual Property as a Topic of Law and Society Research Rosemary J. Coombe 369

CONTENTS IX

21 Legal Categorizations and Religion: On Politics of Modernity, Practices , Faith, and Power Gad Barzilai 392

22 The Role of Social Science in Legal Decisions Jonathan Yovel and Elizabeth Mertz 410

PART V H O W DOES LAW MATTER? 433

23 Procedural Justice Tom R. Tyler 435

24 A Tale of Two Genres: On the Real and Ideal Links Between Law and Society and Critical Race Theory Laura E. Gomez 453

25 The Constitution of Identity: Gender, Feminist Legal Theory, and the Law and Society Movement Nicola Lacey 471

26 Sexuality in Law and Society Scholarship Leslie]. Moran 487

27 Law and Social Movements Michael McCann 506

28 "The Dog That Didn't Bark": A Sociolegal Tale of Law, Democracy, and Elections Stuart A. Scheingold 523

PART VI STUDYING GLOBALIZATION: PAST, PRESENT, F UTURE 543

29 Ethnographies of Law Eve Darian-Smith 545

30 Colonial and Postcolonial Law Sally Engle Merry 569

31 Human Rights Lisa Hajjar 589

32 The Rule of Law and Economic Development in a Global Era Kathryn Hendley 605

33 Economic Globalization and the Law in the Twenty-first Century Francis Snyder 624

Index 641

31

Human Rights

LI SA HAJJAR

Toward the end of Calling the Ghosts, a documentary film about the war in Bosnia, there is a scene in which the two central characters are looking through a rack of postcards. Jadranka Cigelj and Nusreta Sivac, Bosnian Muslim women who sur­vived the Serbian concentration camp of Omarska, had come to the Netherlands to testify about their experiences before the International Tribunal for the Former Yugoslavia. The voiceover is Cigelj, reading the card they sent to their former Serbian colleagues in their former hometown, the ethnically cleansed city of Prijedor: "Greetings from The Hague. Hope to see you here soon." Those two short sentences speak volumes about modern ethnic hatred, genocidal violence, and torture, as well as the survivor spirit and demands for justice.

When the women were incarcerated and repeatedly raped by Serbian soldiers, the possibility of legal retribution was virtually unthinkable. The illegality of Omarska was obvious, as evidenced by the precautions taken by the commanders of the camp prior to a visit by foreign journalists to obscure the harms being perpetrated there. But they had little reason to imagine, let alone fear, that they could be held account­able. At that time, there was no institutional mechanism to enforce the international laws being violated in Omarska. But the fact that there were laws "in the books" inspired the women, when they were released, to document their own and fellow prisoners' suffering. Although the initial purpose of their documentation project was to facilitate recovery, it also constituted evidence of crime.

In 1993, when the United Nations created an ad hoc tribunal for the former Yugoslavia, the testimony of survivors was instrumental in preparing indictments. The postcard scene in Calling the Ghosts portrays this transitional phase in inter­national law enforcement and institution building. It also provides a vivid, ethno­graphic image of "law in action." For Cigelj and Sivac, their transformation from "victims" to "witnesses" is an empowering rejoinder to the violence that unmade their world.

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HUMAN RIGHTS IN THE FIELD OF LAW AND SOCIETY

Studying the power of law to make and to change social relations is a cornerstone of law and society scholarship. It is a shared interest in law as a social phenomenon and force that brings scholars from across the disciplinary spectrum to this interdisciplin­ary field. However, until the 1980s, little attention was devoted to international law or law in the international arena. Rather, the field was dominated by the study of law in a particular country or community, or comparative analysis of law in select countries. Research on globalization and international law has picked up over the last two decades. Commenting on this trend, Silbey writes:

[S]tudying the social organization of law is a particularly good way to study the exercise of power under globalization: first, because so many of these new forms of interactionand exchange are organized through law; and, second, because to some extent, we have already been there …. Not only is there a noticeable structural homology between the narratives of globalization and liberal legalism, but the gap between law in the books and law in action revealed in much sociolegal scholarship can also be observed in the accounts and practices of globalization. Not only do we observe a consistent contradiction -the gap between ideal and reality- but the same gap is produced: abstract formal equality and substantive concrete/experiential inequality. (Sil bey, 1997: 230)

Human rights are a creation of international law, and therefore a manifestation of the globalization of law. As such, they constitute a rich and relevant vein of inquiry for law and society scholars. Moreover, like human rights discourse, much of law and society scholarship tends to embody a commitment to justice, empowerment, and rights.

In the Anglo-American academy, the field of law and society has been enriched by research on human rights and related topics. Indeed, this has contributed to the internationalization of the field itself. Conversely, the interdisciplinarity of the field can enrich scholarship on human rights. For example, the burgeoning interest in cause lawyering illuminates connections among legal activism, international laws, and social movements mobilized in struggles for rights. The field's venerable trad­ition of applying sociopolitical analysis to legal texts and institutions is inspiring work on these topics at the international level. Enduring concerns about legal pluralism and legal consciousness lend themselves readily to investigations of human rights organizations and activism.

In this chapter, I provide a brief (and admittedly selective) history of human rights, highlighting some of the concerns that resonate in the field of law and society. I am particularly interested in one of the abiding concerns of the field: the "gap" between "law in the books" and "law in action." I would also note at the outset that the concept of "human rights" has multiple meanings and interpretations; in my analy ­sis, I emphasize the centrality of violence.

VIOLENCE, JUSTICE AND SOCIAL CHANGE

In the twentieth century, planned and organized violence to achieve political ends reached unprecedented levels. But also unprecedented in this era were efforts to construct a global regime of law to regulate and restrict violence. The relationship

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between these two phenomena, violence and law, is dialectical. As Austin Sarat and Thomas Kearns point out:

[V]iolence … is integral to the constitution of modern law, and … law is a creature of both literal violence, and of imaginings and threats of force, disorder and pain …. Vio­lence thus constitutes law in three senses: it provides the occasion and method for founding legal orders, it gives law (as the regulator of force and coercion) a reason for being, and it provides a means through which the law acts. (Sarat and Kearns, 1993: 1, 3-4)

These three dimensions of the relationship between violence and law are useful for understanding developments in international law. The violence of two world wars was a constitutive factor in strengthening humanitarian law (otherwise known as the laws of war), and international shock and revulsion at the Nazi Holocaust provided a crucial negative inspiration leading to the creation of a new body of international law to establish human rights. The third dimension, the violence of law, features in this account, too, but until quite recently it remained a promise (or threat) unfulfilled.

Until the end of World War II, international laws were oriented almost entirely to relations among states, excluding, for the most part, matters concerning the rela­tions between states and their own subjects. Sovereign states comprised a "commu­nity of equals," and sovereignty constituted a form of supreme authority, based on principles of independence, domestic jurisdiction, and noninterference. Most human beings had no claim to international rights because they had (virtually) no standing in international law. But World War II took a toll on the legitimacy of this Westpha­lian order. The grimmest lesson of the war was that the most egregious atrocities were not illegal because there were no laws to prohibit them and no authority to prevent them.

At the end of the war, new legal ground was broken when tribunals were established in Nuremberg and Tokyo to try Axis leaders. The process of establishing the tribunals and the proceedings that took place therein clarified the content and extended the parameters of "war crimes," articulated a new category of crimes ("crimes against humanity"), and established the basis for a new form of rights ("human rights"). Criminalizing and prosecuting state violence was a radical legal innovation because it eroded states' sovereign prerogatives to use violence with impunity. Indeed, Hermann Goering, one of the architects of the Nazi "Final Solution," used this transgression of legal precedent to challenge the prosecution: "But that was our right! We were a sovereign state and that was strictly our business."

Even some legal experts who condemned the violence were concerned about the legitimacy of prosecuting its authors. While law can be (and often is) used to innovate changes, the legitimacy of law depends on an appearance of stability and predictability. Legal reasoning appeals to precedent, to pre-existing principles, to prevailing views about order, justice, and rights. Thus these tribunals defied legal convention: they were created and used to hold individuals legally accountable for violence they undertook as agents of their states, actions that were not, at the time they were perpetrated, recognized as crimes. As Aryeh Neier explains the legalistic critique of the tribunals:

Adherents of positive law – that is, those who reject the application of natural law or higher law principles and who believe that only laws enacted by appropriate authorities

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are valid – argued that trying Germans and Japanese for crimes against humanity violated the fundamental principles of legality: nullum crimen sine lege (no crime without law) and nulla poena sine crimine (no penalty without crime). (Neier, 1998: 16)

But the heinousness of the violence overwhelmed legal conservatism in that transitional moment. According to Robert Cover, "The defense of the Nuremberg trials .. . was sounded at the outset in terms of the capacity of the event to project a new legal meaning into the future" (Minow, Ryan, and Sarat, 1995: 196). In his opening statement as lead prosecutor at the Nuremberg tribunal, US Supreme Court Justice Robert Jackson justified the undertaking as commensurate with the rule of law:

If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law [and given] a fair opportunity to defend themselves – a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission. (cited in Minow, 1998: 31-2)

The principles justifying the prosecution of Axis leaders were as lofty as they were radical. In principle, individuals were being tried for crimes against "humanity" and "peace," not against the particular victims of their regimes. In principle, the author­ity of the tribunals derived from the "international community," not the victorious nations. In principle, the indefensibility of superior orders would serve as a deterrent against future atrocities, a ringing warning of "never again." And in principle, the precedents established through the tribunals would enable the pursuit and prosecu­tion of other individuals suspected of engaging in similarly heinous acts. According to Neier, "The tribunals advanced the idea that law generally, and international law in particular, can deal with great matters and that legal process may be relied upon to deal appropriately with the most grievous offenses by human beings against other human beings" (1998: 18).

Along with the tribunals, in the immediate postwar period, two of the most significant initiatives to build an international legal regime were the creation of the United Nations (UN) in 1946 and the passage of the Universal Declaration of Human Rights (UDHR) in 1948. The mandate of the UN, enshrined in its Charter, made human rights a prominent theme, albeit conceiving such rights not as an end unto themselves but rather as a means to ensure global peace and security. The UDHR was more high-minded, declaring human rights to be "inalienable" – an end in themselves. Although the UDHR was a nonbinding agreement, it laid out a framework for a common set of rights that all humans could claim, and served as a reference for subsequent promulgation of laws to codify those rights.

The postwar tribunals had operationalized the violence of law. But stripping state agents of "sovereign immunity" and prosecuting them for political crimes had a chilling effect on international law enforcement in their aftermath. Early efforts to build on the Nuremberg precedent by instituting an international criminal justice system were thwarted because, as Louis Henkin explains, "the principal powers [i.e., the permanent members of the new UN Security Council I were not prepared to derogate from the established character of the international system by establishing law and legal obligation that would penetrate Statehood in that radical way: clearly

HUMAN RIGHTS 593

they themselves were not ready to submit to such law" (cited in Steiner and Alston, 1996: 123).

Ironically, as the rhetorical influence of human rights was gaining ground, the ground itself was eroding. In the postwar era and for decades thereafter, political exigencies, notably states' defense of their sovereign prerogatives and Cold War polarizations, subverted the enforceability of human rights and humanitarian laws.

HUMAN RIGHTS AS UTOPIA

The concept of utopia, once defined as imagined perfection, has expanded to include cures for imperfection. By this definition, any struggle or movement for rights could be conceived as utopian to the extent that it represents a desire to make the world a "better place" for the (would-be) beneficiaries. The utopianism of rights, and the vision of human dignity (and vulnerability ) upon which rights strategies are based, is grounded in modern legal liberalism: rule of law, equality among the subjects of law, and universalized application and enforcement within the jurisdiction of law (see Dworkin, 1977; Donnelly, 1998; for skeptical assessments, see Fitzpatrick, 1992; Scheingold, 1974).

The idea of human rights is undisputedly utopian because it assumes and asserts that all human beings are equal in their humanity. But since humans do not actually live as equals, the idea is also revolutionary because it challenges hierarchies of power and privilege upon which political, economic, and social orders around the world are based.

Louis Henkin (1990) has described the twentieth century as the "age of rights. " His intention was not to proclaim a victory for rights, but rather to acknowledge the influence of the idea of rights on the expectations and struggles of people around the world. Indeed, the right to rights has become an internationalized – if far from universalized – norm. Abdullahi An-Na'im defines the "human rights paradigm" as "the idea that the protection of certain individual and collective/group rights . .. is a matter of international concern, rather than the exclusive internal affair of states" (2001a: 87). According to Richard Wilson: "Notwithstanding disputes over their conceptualization and application, human rights are among the few utopian ideals left, and there is still a remarkable degree of consensus by governments on the principle at least that certain rights be protected under international law" (Wilson, 1997: 1).

Human rights are legal entitlements. To understand what human rights "do" or can do, it is necessary to appreciate what rights are. Rights can be defined as practices that are required, prohibited, or otherwise regulated within the context of relationships governed by law. To create new rights requires the creation of new laws, or reinterpretation of existing laws in new ways, or extension of the jurisdic­tion of laws to new subjects. The process of creating new rights emerges and proceeds in response to changing perceptions about social needs and problems, which, in turn, mobilizes a swell or shift in the balance of politicolegal forces to act. The products of that process, new laws that establish new rights (or revise or extend existing rights), impose changes by legally regulating relationships and practices in new ways. In short, rights are both markers and means of social change.

The idea of international human rights had been in circulation for decades prior to the first substantive steps to institutionalize it (see Keck and Sikkink, 1998; Lauren,

594 L I SA HAJJ AR

1998). One of the leading crusaders for human rights was the prominent British utopian writer, H.G. Wells. At the beginning of World War II, Wells wrote:

At various crises in the history of our communities, beginning with the Magna Carta, and going through various Bills of Rights, Declarations of the Rights of Man and so forth, it has been our custom to produce a specific declaration of the broad principles on which our public and social life is based . . . . The present time seems particularly suitable for such a restatement of the spirit in which we face life in general and the present combat in particular. (cited in Lauren, 1 9 9 8 : 52)

In true utopian fashion, Wells and the many other individuals and groups who mobilized and collaborated during the war years strived both to enunciate principles of human rights and to advocate their incorporation into the postwar international order. While this mobilization replicated and built upon similar activities during World War I, the failures of those earlier efforts to prevent a second global conflagra­tion fortified the movement and legitimized their demands for change. For example, whereas in World War I nine out of ten of the millions of casualties were soldiers, in World War II the proportions of soldier and civilian casualties were roughly even (Gutman and Rieff, 1999: 10). In addition to concerns about the harms wrought by the war, rights activists like Mohandas Gandhi and W.E.B. DuBois were animated by the injustices of colonialism and racism. World War II highlighted the linkages among these concerns; the politics of race (racial superiority and extermination), and the conquest and control of foreign lands were central to Axis war aims, and thus became central to the discourse and aims of the Allies' campaign as well. The war against fascism was pitched to the public as a fight for " freedom" (e.g., see US President Franklin D. Roosevelt's "Four Freedoms" speech), and the Allies' victory seemed to offer an opening to connect anticolonialism and antiracism to the postwar agenda for international legal reform.

But in the process that ensued, the utopian vision prioritizing the interests and needs of human beings was overwhelmed by realpolitik. The changes in inter­national law after World War II that created human rights did not undermine the centrality of states to political life around the world. Nor did the new international institutions replace or diminish the authority and power of states over their subjects. Rather, the creation of human rights entailed the elaboration of new international­ized norms of government to which all states would be expected to adhere, while preserving the general principle of states' rights as sovereign entities. Consequently, while states' rights were revised (e.g., they could no longer claim the "right" to exterminate civilians), states retained their status as the premier subjects of inter­national law. Put simply, human rights obtain their " universalizing" character from the fact that people are subjects of states, and states are subjects of international law. Thus the establishment of human rights simultaneously revised and reinforced the state-centrism of the international order.

The most obvious problem with this arrangement was the lack of effective means of global governance to ensure law enforcement. Under the state-centric structure of the UN, states were both the governors and the governed – the makers, the enforcers, and the subjects of these laws. This meant, for the most part, that the protection and promotion of human rights depended on self-enforcement by states. Thus the availability of human rights was contingent on the willingness of individual states to behave and conform, and dependent on the system of states to act against those that did not (see Falk, 1985).

HUMAN R I GHTS 595

While some states willingly instituted domestic reforms in keeping with their international obligations, most refused to regard human rights law as binding and enforceable, especially if the implications would compromise vested interests. Obvi­ous examples were resistance by imperial states to relinquish colonial possessions, or to dismantle racial or ethnic hierarchies. Unenforceability of international law was compounded by the dynamics of Cold War rivalries between "East" and "West," and superpower competitions for power and influence across the global "South." Certainly, the rights of "self-determination" and "equality" enshrined in the UN Charter and the UDHR informed anticolonial and antiracist struggles, but these moral-legal imperatives did not mitigate the difficult and often violent processes of decolonization and desegregation.

The human rights idea was further compromised by sharp ideological disagree­ments over the nature of rights and the contested legitimacy of universalism. In the UDHR, political and civil rights and social and economic rights were conceived as "indivisible." However, Western leaders and leading human rights scholars tended to argue that political and civil rights were the priority, or even the only kind of "real" rights, since social and economic rights could not be guaranteed or enforced without violating the "freedom" of the market and the rights to profit and property. Leaders of socialist and developing states and scholars committed to those goals tended to argue that social and economic rights had to be prioritized to create conditions of equality. This would inevitably entail limitations on political and civil rights, and justify the use of force in putting down resistance. Socialists challenged the liberal legal emphasis on individual autonomy and freedom, emphasizing alternatively the need for a strong state with a centralized economy capable and committed to pursuing an agenda to remake the social order by redistributing goods.

The other major debate about human rights arose over the meaning and legitim­acy of "universalism." Specifically, the debate circulates around the changes envi­sioned and imposed through the establishment of international legal norms. Critics of universalism assumed or were given the title of "cultural relativists." Their arguments were twofold: that human rights enshrined Western values of individual­ism (since individuals were constructed as the "beneficiaries" of human rights law) which contradicted social arrangements and values emphasizing collective relations and mutual duties, and that the imposition of universal standards was a new form of imperialism over non-Western societies (see Pollis and Schwab, 1979; Renteln, 1990).

THE " G AP " P RO B LEM

The paramount "problem" of human rights has always been the gap between codified principles of rights ("law in the books"), and the enforcement or enforce­ability of law ("law in action"). To illustrate these gaps and their ramifications, we can consider three bodies of law: the Genocide Convention, the four Geneva Conventions, and the Torture Convention.

The Genocide Convention, promulgated in 1948, was a clear rejoinder to the Holocaust. Its aim was to prohibit and thus deter mass killing. But the Convention reflected a very particular – and limited – understanding of prohibited violence. While genocide was categorized as an international crime whether it occurred in war or peace, prohibited practices are defined as those intended "to destroy, in whole or

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in part, a national, ethnical, racial o r religious group, as such." The exclusion of "political groups" and the insertion of the phrase "as such" during negotiations over the language of the Convention were insisted upon by the major powers as means of preserving their own prerogatives to act – including violently – against "political enemies" (Kuper, 1994: 3 2 ) . As Diane Orentlicher notes,

What was left out of the convention is as important as what was included. Although earlier drafts . . . listed political groups among those covered by the intent requirement, this category was omitted during final drafting stages. Too many governments, it seemed, would be vulnerable to the charge of genocide if deliberate destruction of political groups fell within the crime's compass. ( Orentlicher, 1 9 99: 1 54 )

The omissions in the Genocide Convention's wording, as well as the lack of political authority to enforce the prohibition preserved the very vulnerability that the Convention was intended to rectify. Since 194 8 , millions of people have been systematically slaughtered by their governments, and until 1993 there was not a single effort by signatories to fulfill their own obligations to "prevent and punish" this crime. Moreover, even military responses to thwart genocide have been pro­tested and resisted by the UN as illegitimate interference in sovereign states' "in­ternal affairs" (see Finnemore, 1996 ).

Unlike the Genocide Convention, which was part of the "new" body of inter­national human rights law born in the aftermath of World War II, the four Geneva Conventions (1949) fall within the domain of international humanitarian law, which has a longer and more established pedigree. These Conventions address the legal conduct of war, armed conflict, and military occupation, identifying and prohibiting actions against civilians or combatants that would constitute "war crimes." Pro­hibited practices include forced relocations and deportations, torture, collective punishment, hostage taking, extraj udicial killings, and the deliberate targeting of civilians during military operations (see ICRC, 1989).

The Geneva Conventions have status as "customary law," which means that they are binding on all states. (The alternative, "conventional law," is binding only on signatory states . ) As customary law, "grave breaches" of the Geneva Conventions carry universal jurisdiction, meaning that violators can be prosecuted in any compe­tent legal system (i.e., a national legal regime ). But despite this provision, violations of the Geneva Conventions were rampant and unpunished. As Lawrence Weschler opmes,

[I] nternational humanitarian law has stood largely mute, palsied in part by the fear ofmost national governing elites – and in particular the successive leaderships of the fivepermanent Security Council members most in a position to invoke those norms – thatthe glare of such attention might one day be turned on their own actions. (In the UnitedStates this tenor of concern often took the form of the anxious assertion that "by thatlogic Henry Kissinger could have been held liable for the Christmas bombing of Hanoi" -as well he might have been.) ( Weschler, 1 9 99: 2 1 )

Like the Genocide and the Geneva Conventions, the Torture Convention outlaws particular forms of violence. However, the former were immediate responses to World War II whereas the latter was promulgated in 1 984. Another difference was that the Torture Convention came into being as a result of pressure and advocacy by nongovernmental organizations (NGOs) rather than an initiative of government

H U M A N R I G H T S 597

representatives. Indeed, torture was the breakout issue for the development of an international human rights movement, led by Amnesty International (Al). AI, which was formed in 1961 in response to concern about the arrest of people because of their political ideas and activities, and concern about the torture and ill-treatment of prisoners, led the campaign for a UN convention prohibiting torture (see Rodney, 1996).

The Torture Convention differs from the Genocide Convention in certain crucial ways. First, the prohibition of torture and ill-treatment extends to every human being regardless of any aspect of his or her identity. Second, the prohibition is absolutely nonderogable (although the definition of torture does exclude coverage of "pain and suffering arising only from, inherent in or incidental to lawful sanc­tions" ). Nonderogability means that there is no basis upon which any state can legally claim a "right" to torture, as the practice is defined under the convention. Third, the Convention criminalizes the use of violence by public agents against people in custody, which distinguishes torture empirically and legally from other forms of violence, such as those arising in the context of warfare or conflict (see Hajjar, 2000; Scarry, 1 985 ) . Fourth, the Convention explicitly recognizes universal jurisdiction for the prosecution of perpetrators.

The Genocide, Geneva and Torture Conventions were created to redress problems of violence. Did these laws make the world a "better place" ? If assessment depends on whether these laws have been enforced, then the answer would be no. However, the creation of these laws did articulate principles and outlaw practices that would constitute violations, and this provided a "standard against which the conduct of governments is measured – an indirect yet still important contribution to human rights" (Neier, 1998: 21).

A C T I N G O N P R I N C I P L E

The history of human rights encompasses not only the creation of laws but failures to adhere to and enforce those laws. Human rights activism is the organized response to this failure. Because of the institutional weaknesses of law enforcement mechanisms at the interstate level, NGOs with human rights mandates were estab­lished to operate in the breach. The various strategies deployed for such purposes include monitoring and reporting on violations to foster awareness (see Cohen, 1995 ) , advocacy work to encourage actions or interventions to curb or stop viola­tions, and litigation to adjudicate the applicability of international laws.

Over the last 30 years, the human rights movement has become truly globalized, evident in the mushrooming of organizations around the world and the strengthening of transnational and international networks. Notwithstanding dis­agreements over priorities and strategies, this movement is united by a common mandate to improve adherence and enforcement of international laws. Human rights activism and networking developed to fulfill a panoptic function of inter­national surveillance by documenting and protesting violations. In so doing, the harms and injustices to which people around the world are subjected have been brought into the public domain where they demand and command an audience. While human rights activism rarely has been sufficient to end violations, it certainly has contributed to the influence of law in the international arena, and the influence of international law in domestic arenas.

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WOME N ' S RIGHTS AS HUMAN RIGHTS

In many ways, the kinds of activities to achieve and protect women's rights replicate initiatives to secure other types of human rights. Violence and vulnerability have been abiding concerns in the construction and promotion of women's rights. How­ever, women's rights pose the quintessential challenge to the "universality" of human rights, which is premised on the principle of human equality. In societies around the world, sexual and other differences between men and women lend themselves to understandings of gender inequalities as both derivative of and conforming to "nature." Moreover, gender inequalities and hierarchies have been justified as crucial to social order and cohesion, and staunchly defended as an aspect of a given culture.

Initially, the means of establishing women's human rights hinged on the principle of nondiscrimination. Thus any rights enshrined in the UDHR and other inter­national legal instruments would, in principle, apply to women. However, reliance on nondiscrimination made international law a weak resource for women because the primary danger was envisaged as an invasive and repressive state. Consequently, forms of violence and harm to which were women were subjected as women were ignored by international lawmakers and thus remained immune to prohibition. For example, violence perpetrated between family members was (until recently) regarded as beyond the scope of international intervention.

The process of making women's issues, needs, and vulnerabilities "visible" entailed the extension of the human rights paradigm to previously excluded areas, including the so-called "private sphere" of the family. The Convention on the Elimination of All Forms of Discrimination Against Women ( CEDAW ), which came into force in 19 8 1, established the "indi visibility" of women's rights in public and private life ( see Fried, 1994 ) . While CEDAW recognizes the importance of culture and tradition, it imposes on signatory states an obligation to take "all appropriate measures" to modify social and cultural patterns of conduct that are discriminatory or harmful toward women.

But CEDAW failed to identify violence against women as a human rights viola­tion. Responding to this lacuna, in the 1 9 80s, women's organizations around the world began campaigning for international recognition and prohibition of domestic violence as a human rights violation. In the 1 990s, domestic violence became a major issue in a worldwide campaign to end violence against women. In 1993, women's groups presented a petition with almost 500,000 signatures from 1 28 countries to delegates at the World Conference on Human Rights ( held in Vienna, Austria), demanding recognition of violence against women as a violation of their rights. In response, the UN adopted the Declaration on the Elimination of Violence against Women, defining it as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life." In 1994, the UN appointed the first Special Rapporteur on Violence against Women. In 1995, the Beijing Platform of Action (issued at the conclusion of the UN Fourth World Conference on Women held in Beijing, China) included an affirmation of the need to combat domestic violence and outlined specific measures to combat it ( United Nations, 1996 ).

These initiatives have extended the reach of international law into the "private sphere," while seeking to "mainstream" women's rights by holding states account-

H U M A N R I G H TS 599

able for their enforcement. But the successes of this campaign also sparked criticism and reprisals by social conservatives around the world, who have responded nega­tively to efforts to empower women and endow them with enforceable rights, especially within the context of the family. In many societies, official and popular aversion to enforcing international standards for domestic relationships has proven far more powerful and influential than the forces seeking to promote and protect the rights and well-being of women.

Debates over women's rights have been particularly rancorous in many developing countries (see Hajjar, forthcoming; Merry, 2001; Riles, 2 000). Indeed, women's rights, and the issue of gender relations more generally, have become the primary redoubts of anxieties about the ( putative) Western imperialism of human rights. Ongoing struggles over women's rights exemplify enduring disputes over legal j urisdiction and authority, namely whether international standards will prevail, or whether other bodies of law (constitutional, religious, customary) are accorded precedence when there is a contradiction.

T RANS I T I ONS TO J U STICE

One of the necessary characteristics of law is the realistic threat of "legitimate violence." Indeed, while human rights often are spoken about and championed in idealistic terms as a means of helping people, harming people – perpetrators of violations – by prosecuting and punishing them for their illegal actions is an integral, if long unfulfilled, dimension of the human rights enterprise.

In the 1990s, the enforceability of international law entered a new phase, often designated as a "transition to justice" (see Kritz, 1995a, 1995b, 1995c; Teitel, 2 000). This phase is marked by a broadening of human rights activism and strategies from struggles for rights to include struggles against violators. It began with the creation of UN ad hoc tribunals to prosecute the perpetrators of gross violence in the former Yugoslavia (1993) and in Rwanda ( 1 994). Since then, tribunals have been estab­lished or planned in other places, including Sierra Leone, Cambodia, and East Timar (see Bass, 2001; Robertson, 2000). A "nonjudicial" alternative to dealing with past atrocities is truth commissions, to date established in over 23 countries (see Hayner, 2001).

Another major development was the indictment in 1998 of former Chilean dicta­tor Augusto Pinochet, who was arrested in London on a warrant by a Spanish judge, charging torture, genocide, and other gross violations. The Pinochet case became a precedent because of his political status as a former head of state, and because of the willingness of a foreign national court to regard that status as irrelevant, albeit the charges that he l d up in Britain were restricted to torture and he was released because of "ill health" (see Sugarman, 2002). The "Pinochet precedent" was heralded as a recuperation of the Nuremberg legacy by depriving leaders of the protection of "sovereign immuni ty" for certain classes of crimes. But also like the Nuremberg legacy, the enforceability of international law has had a chilling effect to restrict or thwart the use of universal jurisdiction to prosecute officials accused of perpetrating or abetting gross violations (see Hajj ar, 2003).

A third development was the passage in 1998 of the Rome Treaty to establish a permanent International Criminal Court. The treaty obtained the needed number of ratifications in July 2002. The I CC is intended for the prosecution of individuals

6 0 0 L I S A HAJ J A R

charged with the most serious human rights violations when national courts fail or are unable to bring them to trial. But the ICC will have jurisdiction only over crimes committed after its creation (i.e., no retroactive jurisdiction ) , and it remains a matter of debate whether perpetrators from countries that have not signed the ICC treaty can be prosecuted in this venue. Of particular concern to ICC supporters is the US govern­ment's adamant opposition, including the passage of national legislation that would punish (non-NATO) foreign countries for cooperating with the ICC, and dozens of bilateral "immunity agreements" the US has pressured other countries to sign.

These recent developments have had substantial impact on international law, but also reveal the durability of the "gap problem . " The laws in the books have been changing under the auspices of the UN tribunals and the ICC, and in response to the "Pinochet precedent." One significant aspect of these changes is a burgeoning merger of humanitarian and human rights law. Ruti Teitel refers to this amalgamation as "humanity's law. "

I n the emerging regime, the scope of the humanitarian law system i s expanded dramat­ically, and merged with the international law of human rights. In the new humanitarian­ism, the normative apparatus of the law of war, particularly its criminal justice dimension, is expanded way beyond its historic role. This move . . . shifts the law of war . . . from the periphery of international law to its core . . . The new legal humanitar­ianism emerges to address the pervasive political violence of recent years, [and] in so doing, it restructures the reigning international value system, and redefines global rule of law. (Teitel, 2001: 5-6)

For the international human rights community and scholars and commentators concerned about human rights, the "new legal humanitarianism " is being lauded as a breakthrough in the decades-long efforts to close the gap between the principles and practice of human rights. Martha Minow expresses the kind of cautious optimism that has become a common theme:

Perhaps more unusual than the facts of genocide and regimes of torture marking this era is the invention of new and distinctive legal forms of response. The capacity and limitations of these legal responses illuminate hopes and commitments of individuals and societies seeking , above all, some rejoinder to the unspeakable destruction and degradation of human beings. (Minow, 1998: 1 )

But the new legal humanitarianism is also spurring resistance. "Political realists," who champion state sovereignty and geopolitical stability through balance-of-power politics, are opposed to strengthening international law enforcement because it necessarily comes at the expense of state power and discretion. Moreover, realists argue, legal humanitarianism is a slippery slope that threatens the stability of the international order and risks overextension (or misuse) of resources (i.e., military and intelligence) needed for domestic/national security. The US government is at the forefront of resistance, selectively utilizing the discourse of human rights to justify the "war on terrorism" launched in response to the September 1 1 , 200 1 , attacks, while rebuffing the applicability of international law to its own practices in waging that war, and actively undermining the goals and efforts of other states to strengthen law enforcement mechanisms.

Critics of the new legal humanitarianism also include some political and intellec­tual progressives, who see a connection between the expansion of "global law" and

HUMAN RIGHTS 6 0 1

other deleterious forms o f globalization. Tony Evans argues that the current era of unbridled free-market capitalism and US global hegemony is just as inimical to human rights, if differently so, as polarizing Cold War politics of previous decades. He writes, "Since the structures and practices of globalization are the cause of most violations of human rights, reliance on a legal system that seeks to apportion blame and punish individuals seems misplaced" ( Evans, 1 998: 1 7).

In response to this line of criticism, Michael Ignatieff rebuts the conflation of international law and economics: "[T]he moral globalization does not go hand in hand with economic globalization. On the contrary, human rights activism is working to mitigate globalization's effects" (200 1 : 1 6). In a similar vein, Abdullahi An-Na'im argues that

the modern concept of human rights is the product of a long history of struggle for social j ustice and resistance to oppression that is constantly adapting to changing conditions in order to better achieve its obj ectives . . . [A ] s local particularities diminish under the force of globalization, the push for universal human rights becomes more common. But since global ization reflects the unequal power relations between de­veloped and developing countries, the tension between the relative and the universal will remain. To keep this unavoidable tension from repudiating the concept of human rights and frustrating its purpose in different societies, there must be a deliberate effort to build an overlapping consensus around the normative content and implementation mechanisms of human rights. (An-Na'im, 200 1 b: 9 5 )

An-Na'im urges a balance between the emphasis on protection of political and civil rights through prosecution and other legalistic strategies with a wider set of nonlegal strategies in order to strengthen "nonjusticiable" claims and entitlements, namely those relating to social, economic, and cultural rights (see An-Na'im, 200 1 b).

Admittedly, the new legal humanitarianism is only one dimension of contempor­ary human rights discourse and practice. But its importance lies in its potential to change the content and uses of international law, and to create new goals and consequences of legal action and activism. Equally important are the measures and pressures mounted to inhibit law enforcement in the twenty-first century.

NEW D I R EC T IONS F O R L A W A N D SOC I E T Y RESE A RCH

At this juncture, the interpenetrations and overlapping interests of human rights scholarship and the field of law and society are increasingly evident. In particular, the new legal humanitarianism raises questions that beg for the kinds of theoretically informed analysis of the organization and power of law that characterize schola r ­ship i n this field.

Rapidly changing circumstances in the international legal arena have inspired calls for more theoretical clarity for its own sake as well as to ground and guide empirical investigations. According to Adamantia Poll is, "At present human rights scholarship is in what Thomas Kuhn calls a preparadigmatic state, a condition that characterizes social science theory as a whole" (Pullis, 2000: 22). While there could be no unifying "theory of human rights" any more than there could be a "theory of law," there is a compelling need to develop and refine intellectual resources to understand and explain, to support and/or to criticize the transforming impact of international law on the global order. According to Ruti Teitel,

602 LI S A H A JJ AR

The core predicates of the [post-World War II] regime are now undergoing su bstantial transformation that goes to the basic structure and core values of the international legal system; but these changes are not necessarily sel f-evident, and do not easily comport with our intuitions about the direction of international law. Therefore, we need to better understand the constitutive interaction of law with historical experiences. This necessitates interpretative principles regarding the development of the international legal domain. (Teitel, 200 1 : LS )

Among many scholars working in the field of law and society, there is a sense that we are "here together" to contribute substantively to progressive social change. The prevailing assumption that the field is comprised of "engaged intellectuals" is often a starting point for suggestions about the direction our scholarship should take. For example, Boaventura de Sousa Santos encourages engaged academics to devote more concerted attention to the relationship between law and emancipatory pro­j ects, which would include human rights.

[W]e must reinvent the future by opening up a new horizon of possibilities mapped outby new radical alternatives . . . We must also define the emergent paradigm, this beingthe really important and difficult task . . . . Utopian thinking has thus a double purpose: to reinvent maps of social emancipation and su bjectivities with the capacity and desire for using them. N o paradigmatic transformation of modern law would be possible without an utopian legal su bjectivity: from the law-abiding citizen to the law­influencing citizen. (Santos, 1 9 95: 572, 573)

Scholars can play a role in influencing the development and uses of international law by weighing in on debates over interpretations and applications of law, and evaluating the impact of legal initiatives to promote human rights and punish violators. The field of law and society is well positioned to respond to calls for paradigmatic work and political engagement to service the visions of j ustice, empowerment, and rights that underlie demands for human rights.

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