Human rights law and the marginalized other / William Paul Simmons.
2011
K3240 .S544 2011 (Map It)
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Details
Author
Title
Human rights law and the marginalized other / William Paul Simmons.
Published
Cambridge, [U.K.] ; New York : Cambridge University Press, [2011]
Copyright
©2011
Call Number
K3240 .S544 2011
ISBN
9781107010079 (hardback)
1107010071 (hardback)
1107010071 (hardback)
Description
xvi, 251 pages ; 24 cm
System Control No.
(OCoLC)708762908
Summary
"This is a groundbreaking application of contemporary philosophy to human rights law that proposes significant innovations for the progressive development of human rights. Drawing on the works of prominent 'philosophers of the Other' including Emmanuel Levinas, Gayatri Chakravorti Spivak, Judith Butler, and most centrally the Argentine philosopher of liberation Enrique Dussel, this book develops an ethics based on concrete face-to-face relationships with the Marginalized Other. It proposes that this should inspire a human rights law that is grounded in transcendental justice and framed from the perspective of marginalized groups. This would continuously deconstruct the original violence found in all human rights treaties and tribunals and promote preferential treatment for the marginalized. It would be especially attentive to such issues as access to justice, voice, representation, agency, and responsibility. This differs markedly from more conventional theories that prioritize the autonomy of the ego, state sovereignty, democracy, and/or equality"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 229-245) and index.
Record Appears in
Table of Contents
Preface
xiii
Introduction: Deconstruction, Concrete Universalisms, and Human Rights of the Other
1
Deductive and Inductive Universalisms
3
Concrete Universalisms
6
Toward a Concrete Universalism of the Other
9
Cauterization of the Other
10
Book Outline
13
The Marginalized Other Does Not Appear Here
15
pt. I
Deconstruction of Human Rights Law
1.
Arendt, Little Rock, and the Cauterization of the Other
19
Arendt's "Reflections on Little Rock"
20
Analysis of Arendt's "Reflections on Little Rock"
23
Arendt's Misapplied Typology of the Private, Social, and Political
24
Arendt's Misreading of the Little Rock Context
27
Arendt on Judgment
29
The Stages of Judgment
30
Judgment of a Narrow Elite
32
Arendt and the Other
36
The Cauterization of Pity for the Other
37
Solidarity with the Other
39
Return to Little Rock
40
Conclusion
41
2.
Democracy, Human Rights, and L'Affaire du Foulard
44
L'Affaire du Foulard
46
Laicite and L'Affaire du Foulard
49
L'Affaire and the Voice of the Other
54
Leyla Sahin v. Turkey
56
Turkish Secularism
57
The Sahin Case
60
The Margin of Appreciation and Consensus Doctrines
62
The ECtHR's Judgment
64
Judge Tulkens' Dissent
65
The Aftermath of Sahin
67
Benhabib's Democratic Iterations and L'Affaire du Foulard
68
Benhabib and L'Affaire du Foulard
69
Benhabib, Multiculturalism, and the Other
71
The Need for a Continuous Deconstruction of Law
73
Derrida and the Force of Law
74
A Deconstruction of Founding Violence
76
Transcendental Justice, Democratic Iterations, and L'Affaire du Foulard
80
pt. II
Phenomenology of the Saturated Other
3.
Derrida, Levinas, and the Rights of the Other
85
Derrida and le Tout Autre
86
Levinas and the Other
89
Transcendence and the Other
89
Law and Institutions
91
Levinas and Arendt on Human Rights
92
The First Hendiadys: Arendt's The Rights of Man and the Citizen
93
The Second Hendiadys: Levinas' The Rights of Man and the Other
97
Levinas on Sabra and Chatilla
99
The Individualized Other and Mere "Moments of Negation"
102
Toward a Phenomenology of the Saturated Other
105
4.
The Saturated Other
107
Jean Luc-Marion's Saturated Phenomena
108
Levels of Saturated Phenomena
109
Marion and the Individuation of the Other
110
Dussel's Other as an Individualized Saturated Phenomenon
113
Levels of Exteriority
113
Dussel's Grand Synthesis: Etica de la Liberacion
117
Responding to the Other
120
Tolerance and Patient Listening
121
Solidarity with the Other's Proyecto
123
Toward a Human Rights Law of the Marginalized Other
124
pt. III
Human Rights of the Marginalized Other
5.
Learning to Learn from the Voice of the Other
129
The Silencing of the Other in Human Rights Law
130
Ranciere and the Sans Part
131
Law's Categorization
132
Law's Silencing of the Other
133
Spivak and the Impossibility of "Entering the Other's Space"
137
Representing the Other
137
Learning to Learn from the Other
141
Toward a Human Rights Tribunal of the Other
143
Social Action Litigation in India
143
Narmada: The Limits of the People's Court
146
Project Background
147
The Counter-Hegemonic Struggle
149
The Supreme Court Decision
152
Representing the Rights of the Other
155
Conclusion
158
6.
Self-Ascription by the Marginalized Other in Asylum Law
160
Butler and the Social Construction of Identity
162
The "Don't Ask, Don't Tell" Policy
164
Self-Ascription, Responsibility, and the Social Theorist
165
Butler and Levinas
167
Truth Regimes
169
Summary
171
Self-Ascription in Asylum Law
171
Silencing of the Other in U.S. Asylum Cases
173
Membership in Particular Social Groups
179
Conclusion
186
7.
Heteronomic Rights and Duties
189
Rights and Duties in the African Human Rights System
191
Affirmative Duties to Fulfill Economic, Social, and Cultural Rights
192
The Right to Define Rights in Canadian Aboriginal Rights Jurisprudence
197
The Right to Define Fundamental Rights: R. v. Van der Peet
198
Justice L'Heureux-Dube's Dissent in Van der Peet
201
Rights Hierarchies and Heteronomic Tiered Scrutiny
203
Fiduciary Duties and the Honor of the Crown
205
Heteronomic Rights and Duties in the Inter-American Court of Human Rights
209
Innovative Reparations Ordered by the Inter-American Court
209
Moiwana v. Suriname
213
Conclusion
218
Conclusion: Working with the Marginalized Other to Deconstruct and Reinvigorate Human Rights Law
220
Review of the Theoretical Argument
220
Can Law Empty Itself of Itself?
222
Continuous Deconstruction and Reinvigoration
224
Bibliography
229
Index
247