Limits of human rights protection from the perspective of legal anthropology

Abstract

Aspiring to embrace the whole of a specific field of knowledge is an illusory temptation. The authors who attempt to do so are therefore few and far between. The opposite approach, which consists of defining the limits of a discipline, seems intellectually more honest. Yet here, too, there are few who are willing to take the risk. It would be hard to imagine thirty or so physicians getting together to produce a collective work focusing on the limits of their knowledge. It is certainly easier to sing the praises of the strengths of a discipline than to reveal its limitations. It is thus all the more remarkable that the venture undertaken by the initiators of Facing the Limits of the Law has now come to fruition. For what they have achieved is in effect a tour de force, gathering a large number of fellow jurists around a common project with the aim not of rehashing the law but, on the contrary, of identifying the questions, themes and aspirations that elude the field, or for which the law offers only partial solutions. The ambition represented by this work in a sense goes beyond the knowledge of the law, and aims at a better understanding of what it is that escapes its grasp and thereby challenges it. It implies calling into question the definition and the method of analysis of legal matters. It should come as no surprise that a team of legal anthropologists has shown a keen interest in taking part in this venture. According to Norbert Rouland, Legal anthropology is a science that, by virtue of its position at the threefold level of established norms, practices and representations by human actors, seeks to define the general operating mechanisms of legal systems, drawing upon the experiences of western and non?western societies.1 It does not consider law as a coherent set of rules decreed a priori by the public authorities or to the respect of which the latter can at the very least compel individuals. Anthropological experience reveals a multiplicity of laws, often inconsistent among each other, regarded as rational only by the group concerned, mostly independent ? at least partly ? of State authorities, and which for the most part cannot be reduced entirely to a set of rules. In order to do so, legal anthropology uses an empirical method that differs significantly from that of the classic legal sciences. The anthropologist is not interested solely in norms, but ascribes at least as much importance to their effectiveness. To his end, he or she studies the law primarily via the concrete behaviours of legal actors with respect to enacted laws or judicial decisions, which these actors may implement, challenge, circumvent or simply ignore. By revealing the gaps that can exist between the legal norm and the behaviours of individuals and groups, the investigations of the anthropologist in the field indicate, specifically, that the State is not the sole producer of law, but that law is very often made by various social groups as well. The anthropologist is generally more prepared to use the concept of ?differentiated worlds' ? some would refer in this regard to legal pluralism2 ? which shows more clearly what is happening in reality: rules of behaviour (laws) usually have meaning only in relation to the world of the actors to which they apply. Field research reveals numerous contradictions between State (i.e., official) legislation and its effectiveness in the field. To the anthropologist, the legal phenomenon is first and foremost, regardless of the local system, a set of individual and collective struggles and consensus on their results in the areas that a community or society considers vital. At the present time, anthropologists are called upon to address the most diverse range of questions: the struggle of indigenous communities throughout the world; the functioning of various forms of conflict resolution and/or search for conciliation; the difficult issue of addressing minority rights; the (re)definition of secularism, the reconciliation of universalism and particularism in the definition and implementation of human rights standards, etc. In what follows, we provide four illustrations of legal anthropological research. They all address ? in four different contexts ? the issue of the limits of human rights protection. These are research projects still in progress, conducted by researchers who, with a view to the book project Facing the Limits of the Law, have agreed to shed a particular light on their ? still very fresh ? field experience. They do so by showing how, in a particular context, that is to say starting out from the particular, the importance of human rights protection in shaping behaviours and expectations is intrinsically related to the particular culture and basic values of the actors involved and, albeit of lesser importance, to their positions with respect to State law, whether international, national or regional/local. The contexts described are very different. It is primarily the angle of approach that makes it possible to regard the four contributions as illustrations of a single intellectual process: through a concrete and varied subject matter that shows the existence of law(s) outside the State, one discovers a never?ending dialectical interaction between the formal and the informal, between State and non'state expressions of law and justice, an approach which breaks away from the vision that reifies the State and its laws as an artificial entity detached from the dynamic social context of its interpretation and application. Human rights protection is but a particular example of this phenomenon. The illustrations draw upon (field) experiences that differ vastly from one another. The first illustration (section 2 ? ?Racism and the Limits of the Criminal Law?) demonstrates the development by Belgian legislators over the past 25 years or so of an ever?increasing criminalisation of discriminatory acts, with a striking focus on racist speech and publications. But it also shows how restrictions on the freedom of speech that are primarily to be seen as displays of power on part of State authorities with a view to (re)affirming their primacy, but that do not address underlying problems such as fear and insecurity, may produce paradoxical outcomes. J. Vrielink, throughout his fieldwork, came across a number of such outcomes. The second illustration (section 3 ? ?The Limits of Human Rights Protection for Indigenous People?) addresses the limits of human rights protection for indigenous peoples. E. Desmet identifies three types of limits. A first kind of limit is conceptual: are human rights at all appropriate as an instrument for indigenous people to strengthen their claims and improve their position vis'?vis State authorities' A second limit is based on the observation that the concrete effect of (international) human rights on the legal situation and living conditions of indigenous societies remains in many cases negligible, since their implementation depends on a number of conditions that cannot easily be satisfied: the approval of global human rights standards, control by international treaty monitoring bodies and, last but not least, the acceptance (and thus effectuation) of international norms and court decisions as well as of constitutional provisions. A third limit are the many risks of misunderstandings between State authorities and indigenous movements, as well as within these movements, as to what the people concerned expect from the human rights system. The third illustration of anthropological expansion of the traditional field of legal research when addressing issues of human rights protection brings us to China (section 4 ? ?Confucian Tradition and Socio-Economic Rights Protection in Contemporary China?). Confucian values have recently been (re)introduced in the official State ideology of a ?Harmonious Society?. Field research reveals that in fact these values have never ceased to exist in Chinese society. The official revival of Confucianism in recent years only accentuates traditional practices. Human rights protection in China cannot be understood in disregard of these values and the practices they induce. S. Deklerck's short case'study of parents of autistic children serves to demonstrate this here. The fourth and last illustration concerns the observance of Jewish religious law and more particularly of Jewish divorce law (section 5 ? ?Judaism between Religious Freedom and Gender Equality?). J. Kusters wonders whether freedom of religion in itself can justify gender inequalities. Ethnographic data show that the construction of gender equality that is implied within the human rights system does not necessarily correspond to the aspirations of Jewish women. State intervention in such cases offers no solution to some of the hardships of Jewish divorce law, since the women are not looking for gender equality standards to be enforced in their own situation. When religious norms prevail, human rights appear bound to remain inadequate. The golden thread running through all four illustrations is the thesis of an incomplete State domination (tatisation?) of the law (section 6). © 2009 Springer-Verlag Berlin Heidelberg.