Philosophy Study, ISSN 2159-5313 March 2013, Vol. 3, No.

3, 246-261

DA VID

PUBLISHING

Critical Human Rights and Liberal Legality: Struggling for The Right to Have Communal Rights
Roger Merino Acua
University of Bath

Recent critical approaches on human rights have exalted the potentiality of this category for seeking progressive agendas (Santos 2007) insofar as they are enacted within counter-hegemonic cognitive frames (Rajagopal 2006) towards the construction of subaltern human rights (Onazi 2009). Others, however, have pointed out that the human rights institutional and political hegemony makes other valuable emancipatory strategies less available, and that this foregrounds problems of participation and procedure at the expense of distribution (Kennedy 2005). Finally, others have explained how the abstractedness of the category entails a de-politicization (Rancire 2004; iek 2005; Douzinas 2007) or an emptiness that, of course, can be filled by progressive activism, but whose substance is easily reappropriated by those in power (Miville 2005). By engaging with the above-mentioned perspectives, and following the decolonial approach (Mignolo 2009; 2011), I suggest that the category human rights can be decolonized and being used for progressive agendas only after a comprehensive critique of liberal legality (that entails a critique of liberal abstract rationality, political economy, and modernity/coloniality) has been performed. Keywords: critical human rights, modernity, liberalism, decoloniality

1. Introduction: The Constitution of Liberal Legality

In De Indis et de ivre belli relectiones (1532), Francisco de Vitoria developed the first legal and political theory of conquest of liberal matrix (Hinkelammert 2004). He affirmed that the Indians owned the land in America, and discovery was not a proper legal mechanism for acquisition; however, although the Indians had certain rights to property, they can lose their rights if the conqueror had a just cause to make war against them (Gilbert 2006). The just war was legitimately applied if the Indians break their inherent obligations: (1) leave free passage to colonizers; (2) allow trading among colonizers; (3) share the wealth of their lands; and (4) allow the propagation of Christianity. Thus, just war meant a legal title on indigenous territory in favor of the colonizers as a consequence of a legal conquest (Gilbert 2006). In addition, Vitoria concluded that indigenous peoples were unable to manage a State because, among other failures, they had neither proper laws nor magistrates, Europeans therefore could undertake the administration of their country in their benefit (Gilbert 2006, 11). In sum, Vitoria provided the legal framework for the conquest of indigenous territories. Most theorists of the 16th and 17th centuries reaffirmed the principles of just war. For example, Grotius and Gentili distinguished from Vitoria only in its secular aspect: they rejected the idea that Christianity gave any rights to war, whereas they accepted causes such as cannibalism or refusal to trade through their territory
Roger Merino Acua, Ph.D. (c), Social and Policy Sciences, University of Bath, UK; main research fields: Critical Legal Theory, Political Philosophy, and Indigenous Rights. Email: R.A.Merino.Acuna@bath.ac.uk.

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

247

(Borch 2001; Gilbert 2006). Thus, colonial expansion was first justified by the papal assignation of the lands to be conquered, then by the divine rights of kings, and thenwith the success of bourgeois revolutionby a constitutional monarch thatsupported by parliamentwas entitled to make just wars (Hinkelammert 2004). The pattern was, however, the same: the expansion of liberalism meant the negation of colonized rights by the affirmation of colonizer rights (Lander 2000). John Locke in his Second Treatise of Government understood this right as individual property which is primarily a right of the human beings over themselves, exerted through liberty, and by occupying or working on nature: individual property serves as the regulative idea and constitutive form of the liberal order (Hardt and Negri 2009). For Locke, appropriation is the beginning and foundation of the right of property by assuming that no damage was inflicted on others because there is enough on earth (Olivecrona 1974). Hence, America was considered an empty space because it was not inhabited by individuals who respond to liberal conceptions. Indeed, Locke defended strongly the colonial enterprise: the expansion of colonizers private property was the inevitable outcome of industrial development and reason (Arneil 1994; Stewart-Harawira 2005). Similarly, in The Wealth of Nations, Adam Smith saw the native tribes of North-America in a primitive state, so they have neither sovereign nor commonwealth (Lander 2000). Furthermore, although key liberal foundational texts of the 18th and 19th century defined freedom and equality as opposed to slavery, they generally rejected ancient slavery at the same time that omitted to mention the actual slavery that supported their societies (Hardt and Negri 2009). For example, the Declaration of the Rights of Man of 1794 was also invoked by the revolutionary slaves of Saint Domingue (Haiti), but the French state re-instated slavery in 1803, showing how the constitution of liberal rights is related to the denial of others rights (Fine 2009). In fact, slavery was completely integrated into modern capitalist production: It is slavery which has given value to the colonies, it is the colonies which have created world trade, and world trade is the necessary condition of large-scale machine industry (Marx in Hardt and Negri 2009, 73). Similarly, with the independence of ex-colonies, the expropriation of indigenous land was justified in the necessity of unity and progress of the new nation-states. In United States first, and then in Latin America, indigenous peoples were excluded or violently included in order to exploit them as part of the project of construction of the nation-states. Hence, the historical process that consolidated and naturalized the relations of capitalist production and the liberal order had a profound colonial foundation (Lander 2000). It is not possible to conceive liberal legality without capitalism and modernity. Legal theory has provided legitimation to this triad (liberalism, capitalism, and modernity) and has hidden its dark side (exception, exploitation/dispossession, and colonialism). The official language of rights has been de-politicized and universalized, and the radical critiques have focused only on one aspect (or liberalism, or capitalism, or modernity). In this paper I am going to analyze the radical critiques of liberal legality and human rights and the radical potential of liberal Law. My argument is that a decolonial perspective constitutes the most radical critique against liberal legality because it also rejects the dominant political economy and Western modernity.

2. Liberal Legality Reconstitution against Anti-formal Tendencies of Modern Law

The same Natural Law tradition (Vitoria and others) that justified just war against Indians on behalf of God first, and then with the constitution of the modern nation-state, on behalf of reason and progress, provided the foundation of a rationalist project that supported bourgeois reforms and revolutions. The legal theory that

248

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

emerged from these processes was the positivist legalism based on the will theory which in Private Law meant that freedom of contract and private property were the pillars of civil society, and in Public Law that the social contract was the foundation of the liberal state (Villey 1996). These ideas were taken by the German historical school of the 19th century, which proposed that the national legal systems reflect the normative order of the underlying society. Then, the German Pandectists developed the scientific positivism aimed at constructing a system internally coherent rooted in a specific nation-state. Thus, the will theory becomes the classical formalistic approach to Law, understood as an apolitical rationalization project (Kennedy 2004). Law became thus synonymous with liberal legality, a neutral system of norms with nothing to do with colonialism and the violent expansion of capitalism. For Max Weber, this classical formalistic approach was a paradigm which expresses the principle of the consistency and gaplessness of the legal order, any other view of legality was an irrational anti-formal tendencies of modern Law (Kennedy 2004, 1052). The major expression of this un-politicized view of liberal legality was Hans Kelsens formalism, whereas the main examples of anti-formalism were Marxism, legal sociology, and Schmitts decisionism. Marx criticized liberal legality as an oppressive instrument (super-structure) that justifies bourgeois exploitation. Thus, Marxists criticized the Declaration of the Rights of Man and of the Citizen of 1789 because it obscured the fact that behind the abstract category of a citizen entitled with universal rights, there were concrete human beings who were owners or workers (Rancire 1992). Consequently, by being portrayed as universals human rights have an ideological function because in bourgeoisie society there are not universal interests common to all men, but class interests (Atienza 2008). The sociological critique is much more dispersed. The different variants of juridical pluralism assert that state Law is only one form of Law and is not necessarily the dominant one (Cotterrell 1983; Tamanaha 1995): Law exists in various layers or levels (Gurvithch), is expressed in associations (Gierke, Ehrlich), institutions (Hauriou, Romano) or social systems (Teubner) (Cotterrell 1983, 245). Carl Schmitt (2004) defined Law as a system of norms; however, a norm is a general and abstract proposition whereas any factual situation that must be evaluated is unique, so the decision-maker has an inherent power to decide whether that factual situation is subsumed by the general rule (McLoughlin 2009). For Schmitt (2004), legal positivism avoids this analysis by proposing a formalist definition, excluding considerations of social and political contexts, which require radical decisions to be taken even outside formal rules (McLoughlin 2009). Therefore, in reality judges have an inherent power beyond the Law in resolving legal cases, as well as the sovereign has an inherent power beyond the Law in administrating the society. For Schmitt (2007) this crude politics that becomes evident in exceptions (in hard cases for judges; in state of exception for the sovereign) is the content of the political, which is the capacity to define the antagonism between friends and enemies. Liberal legality is thus trapped at a crossroads: or it is absolutely and naively neutral denying the political and being thus destroyed by competing orders (lets say anarchism or communism), or it is falsely neutral and substantially authoritarian because in defining the political it excludes radically any competing order. It could be said that Marxs critique was directed primarily at unfolding the dark side of capitalism (accumulation by exploitation and dispossession); Schmitt the dark side of liberalism (exception and exclusion rooted in the very essence of liberalism); and somehow legal pluralism theorists could help to understand how Western modernity denies others legality. However, a comprehensive critique of these three foundational and interconnected elements of the legal order was not proposed. After the Second World War liberal legality and human rights were reinforced theoretically and institutionally.

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

249

Hannah Arendt (1973) blamed the international system for connecting citizenship to rights, those who have no recognized nationality lacked state protection. Thus, it was necessary to go beyond Kants perpetual peace: The right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself. This was a revival of Natural Law in the sense that the foundation of the protection of human rights cannot be assured by states or a confederation of states, but by humanity. On the basis of this new ius naturalism there was created an institutional framework (Declarations, United Nations agencies, International Courts of Human Rights) and an international discourse of human rights protection which claims that human rights exist independently of culture and ideologies (Zechenter 1997). Within legal theory a sort of eclectic view in relation to liberal legality emerged. In contrast to Kelsen, Gustav Radbruch argued that legal validity must be evaluated by certain minimum standards of justice: Law becomes illegal if it reaches a level of extreme injustice (in Haldemann 2005). He introduces the criterion of extremity to secure some legal certainty but at the same time to provide an escape from extreme unjust formal laws. Thus, Radbruchs formula proposes a middle way between natural Law and legal positivism (Leawoods 2000, 491, qtd. in Haldemann 2005, 167). Hence, hard legal formalism has been softened by appealing sometimes to principles, policies, or moral requirements (Kennedy 2004). This is especially evident in the dominant constitutional thinking. The combination of formalism and naturalism is called interpretivism that focuses on the role of principles beyond discretion or rules in judging cases (Dworkin 1978). On the other hand, a movement that initially attacked legal formalism, the Law and Economics approach, today is considered as a new formalism (Nourse and Shaffer 2009) which is based on abstract propositions rooted on Chicago economic assumptions. Again, liberal legality is de-politicized and universalized as a legal common sense, with nothing to do with exploitation/dispossession and colonialism.

3. The Potentiality and Limitations of (Liberal) Legality: Law as Emancipation

Legal pluralism re-emerged in the sixties in the form of cultural relativism, and recently as an important feature of the approach Law as emancipation. The early form of cultural relativism was a reaction to the ethnocentric assumptions of the nineteenth-century science which glorified Western societies. This approach became relevant with the American Anthropological Associations (AAA) criticism of the Universal Declaration of Human Rights. Although the criticism was very polemical, some concerns were well founded, such as the emphasis on individual rights and the denial of group rights (M. Brown 2008). In general, the cultural relativist critique aimed at denouncing the universality of human rights conceptualized as abstract legal rights, without considering their necessary institutional and socioeconomic dimension (Donnelly 1984; Pollis 2000), overemphasizing rights in isolation from their social context (C. Brown 1997). The usual reply is that cultural relativism justifies repressive regimes (Pollis 2000; Orend 2002; Harris-Short 2003). Thus, although cultural differences are admitted, the solution would be an intercultural dialogue through which rights may be universalized (Naim 1992), or to seek something that people from many different traditions can agree on as the necessary basis for pursuing their good life (Nussbaum 1997). Others emphasize the inclusion of outsiders to the system (Howard 1995); or finding new ways in which universal ideals can be internalized and legitimized in various cultures (Zechenter 1997). The eclectic argument is that both universalists and cultural relativists are equally deterministic in assuming a transition from tradition to industrial society on the one hand, and fixity and unchangeability of cultures on the other (Pollis 2000, 9); so, the cultural dialogue and consensus would be the solution. But what can

250

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

be observed more today is global dissent instead of consensus. Just after the debate between culturalists and universalists there was a new wave of human rights abuses such as terrorists attacks and illegal detentions and tortures exerted by Western powers (Douzinas 2007). Instead of trying to achieve an abstract consensus (which is equally transcendental as the very idea of human rights) or inclusiveness (which denies difference), there is a new branch of critical scholars who connect human rights to social movements. This critical approach could be called Law as emancipation, which is different from Marxist and cultural relativist critiques, both considered pessimistic by not finding any possibility of major social, political, or economic change through the idea of human rights (Stammers 1999). In contrast, they do not reject the category, but think that it can be used for progressive agendas (Santos 2002a). Thus, instead of conceiving human rights as universal, human rights are conceptualized as multicultural in order to propose a cross-cultural dialogue to find a mestizo conception (Santos 2002a); this is the radical democratic potential of human rights enacted by many counter-hegemonic struggles (Rajagopal 2006). With the same logic others talk about subaltern human rights (Onazi 2009) or human rights from below (Ife 2009) focusing on the real experiences of human suffering and the attempts to recognize these struggles. This means an exaltation of social movements that construct and use the human rights discourse (Stammers 1999). It is important to focus on the arguments of Boaventura de Sousa Santos, who has articulated this approach. For Santos (2002b), todays globalization is just one form of Western localism that became cosmopolitan and hegemonic. Against this version of globalization and cosmopolitanism there is emerging an oppositional subaltern cosmopolitanism which is the cultural and political form of counter-hegemonic globalization. Thus, the emancipatory potential of Law can be found on the legal dimension of counter-hegemonic global struggles developed by organizations and social movements. According to subaltern cosmopolitanism what makes liberal legality hegemonic is the specific use that the powerful make of it. Hence, Santos (2002b) argues that it is possible to use hegemonic tools (law and rights recognized by the state) for non-hegemonic aims. In fact, he welcomes a combination of counter-hegemonic legal strategies with liberal strategies, and the creation of political and legal hybrids such as human rights struggles: Law is not emancipatory or non-emancipatory; emancipatory or non-emancipatory are the movements, the organizations of the subaltern cosmopolitan groups that resort to law to advance their struggles (Santos 2002b, 495). The problem with this approach is that it tends to see liberal legality as neutral when in fact its basis is committed to capitalist political economy and Western modernity. The use of liberal legality by indigenous peoples is a clear example of the limitations of this view. When in the 1970s indigenous peoples engaged in transnational organizations, human rights was not a proper tool for their struggles. For indigenous peoples, human rights were expressions of the civilizing rhetoric of colonialism (Engle 2011). Engle (2011) explains how the principal strategy was external self-determination: in the case of US indigenous peoples saw themselves as nations that maintain a distinct legal and social system but are deprived of their territories; in Latin America, the focus was on autonomy, although it was not directed to secession, but to manage their social organization according to their institutions. As with the anti-colonialist movement, indigenous movements used an international legal framework based on self-determination instead of human rights (Engle 2011). However, in order to obtain some degree of protection they had to adapt their claims to the institutional frameworks that had been enacting during that time. They have obtained thus favorable decisions at International Courts of Human Rights, particularly the Inter-American System of Human Rights which recognizes the right

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

251

of collective property and the necessity to provide their consent before any activity that can affect their land is approved (Page 2004; Anaya 2005; Gilbert 2007). Likewise, after 20 years of negotiation at the United Nations, the Declaration of Rights of Indigenous Peoples (DRIP) was enacted in 2007. It recognizes strongly collective rights, the necessity of consent to exploit indigenous land and self-determination (Gilbert 2007; Fromherz 2008; Oldham and Frank 2008). However, there are many difficulties. The first problem with the system is the lack of enforcement. The Declaration is not a binding instrument and many countries (as the US and Canada) just refuse to be part of the Inter-American System or to respect its recommendation and decisions (Page 2004; Pasqualucci 2009). Thus, although International Law is not always effective, it is invoked, and risks not only legitimizing particular actions but also its very structure (Miville 2005). Another problem is that the indigenous policies of international financial institutions do not recognize the necessity of indigenous consent. For example, the World Banks (WB) Operational Policy 4.10 on Indigenous Peoples (OP) establishes that for all projects that affect native people, the WB borrower must engage in free, prior and informed consultation with indigenous peoples, but it is not necessary to obtain their consent (MacKay 2002). Thus, the appropriation of consultation by governance actors explains how it is easily incorporated into the neoliberal mainstream, specifically in the discourse of economic development (Rodrguez-Garavito 2011). This explains the fact that many companies see consultation as business-friendly mechanism that can ensure the label of social responsibility to cover the negative impacts of their activities on indigenous peoples (Rodrguez-Garavito 2011). In that context, the main problem of consultation/consent is that it is trapped within liberal legality and the dominant political economy. In addition, a more critical view on the decisions of the Inter-American System shows that it has not been as progressive as the Declaration (Pasqualucci 2009). The Inter-American Court does not protect the right of indigenous peoples to all natural resources on their lands. Moreover, in the Saramaka case, the Inter-American Court asserted that consent is only necessary in cases of large-scale development or investment projects that would have a major impact on a large part of their territory. Conversely, the DRIP calls in general for free and informed consent prior to the approval of any project affecting their lands or territories and other resources (Pasqualucci 2009, 90). This limitation seems to facilitate extractive activities thatalthough not develop in the whole indigenous territorycould harm indigenous land and livelihoods. Finally, although the DRIP has been celebrated for its extensive recognition of collective rights, many provisions regarding collective rights were deleted from the last draft of 1993. According to Engle (2011), these rights include collective rights to maintain and develop their distinct identities (Article 8), to determine their own citizenship in accordance with their customs and traditions (Article 32), and to determine the responsibilities of individuals to their communities (Article 34). These provisions were left aside because of the trade-off in assuming the framework of human rights (Engle 2011). However, the history of indigenous resistance shows that a simple application of liberal rights to indigenous peoples would be insufficient. For example, the repugnancy clause is often used to evaluate the validity of indigenous rights. This clause establishes liberal standards to determine which indigenous rules would be tolerable and which ones would be considered as unacceptable and backward. Thus, paragraphs (2) and (3) of Article 46 of the DRIP are indeed repugnancy clauses by subjecting indigenous rights to ambiguous standards such as human rights, democracy, good governance, and good faith (Engle 2011). Hence, the hegemony of human rights rhetoric and institutions affect the potential of other emancipatory

252

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

strategies (Kennedy 2005). The focus on human rights consultation and participation in all the binding instruments of recognition of indigenous peoples rights is made at expense of self-determination, autonomy, and the necessity of consent, communal rights that have profound redistributive features since they entail a limitation to the expansive nature of capitalism. In addition, human rights rhetoric emphasizes participation and procedure over distribution (Kennedy 2005). This is very clear also with the disregard of social and economic rights which, although recognized on the Universal Declaration of 1948, and in the subsequent International Covenant on Economic, Social and Cultural Rights (ICESCR), occupy a second class status (Beetham 1995; Leckie 1998). Modern liberal multiculturalism provides no platform to recognize a real indigenous autonomy. Multicultural liberals talk in terms of participation within liberal institutions and their solutions to collective disadvantage are framed in a liberal discourse of rights that has been historically forced on indigenous peoples. It is true that liberal multiculturalism has opened a space for the expression of indigenous voices, facilitating pro-indigenous policies and legislation, but it is necessary to acknowledge the limits of that space and its content: political participation, cultural rights, even decentralization and judicial and administrative autonomy, all of these are outcomes that have been provided under the condition to not challenge the political economy.

4. Law as Politics: The Right to Have Rights and the Right to Resistance/Revolution
The Critical Legal Studies (CLS) movement shares some features of Schmitts critique on liberal legality, but adding post-structuralism and post-Marxism to its theoretical background. The CLS critique has two components: the indeterminacy thesis and the ideology thesis (J. Whitehead 1999). The indeterminacy thesis claims that Law is internally and externally inconsistent: Law is internally inconsistent because legal reasoning is not an independent and scientific method that seeks particular legal results but is a system of manipulative techniques designed to obscure the fact that a judge is simply choosing between values. Consequently, Law is externally inconsistent because it does not really generate either predictable or objectively accurate results. The ideology thesis claims that Law is ideological and biased rather than neutral and independent (J. Whitehead 1999; Kennedy 2006). CLS has been criticized for its lack of positive agenda of change; they suffer from the political ambivalence of postmodernism by reproducing the material logic of global capitalism (Eagleton 1997). The critical approaches related to CLS also suffer lack of homogeneity. They share similar sources of knowledge but with different focuses, creating a bunch of theories and strains (critical feminism, queer legal theory, race theory, Lat-crits, and so forth) sometimes complementary and sometimes in contradiction. In that context, the rereading of legal Marxism is interesting because it can provide the agenda lacked by CLS. For critical Marxists the super-structural view of Law is misleading. Louis Althusser, for example, proposes a development from the analysis of property as a transcendental form of exploitation to the analysis of property as a system of material organization of bodies in the production and reproduction of capitalist society (in Hardt and Negri 2009). Frankfurt School scholars made a similar operation by emphasizing the rupture of the conceptual boundary between structure and superstructure. The result of these critiques was a shift from the transcendental to the immanent of legal categories (Hardt and Negri 2009; Steinberg 2010). China Miville (2005), after rereading Evgeny Pashukanis, arrives at similar conclusions. According to the commodity-form theory of Law the legal form is the necessary form taken by the relation between two formally equal owners of exchange values. Law is characterized by its abstract quality. Hence, Pashukanis critique of

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

253

Kelsen is similar to Schmitts critique: his theory sees Law as of the plane of ought rather than is that focuses on systematicity instead of applicability. The focus on Law as a real regulatory explains why the legal norm cannot be the basis of the legal form. The legal form is the form of a particular kind of relationship: rules can only be derived from it, thus, they are secondary, and their specific content is contingent (Miville 2005). Hence for Pashukanis Private Law is the primary level of Law: a complex legal system regulating all levels of social life can appear to differentiate itself from Private Law, but it ultimately derives from the clash of private interests. The legal form is, thus, intrinsic to any system of commodity exchange. That is why formal freedom and substantive un-freedom coexist under capitalism (Miville 2005, 93). Therefore, liberal legality is criticized not as a bourgeois superstructure, but because of its very abstraction that constitutes a regulative order that in spite of its claim of neutrality, embodies economic and power relations, and must therefore be radically re-politicized. The critique of human rights by Jacques Rancire and Costas Douzinas derives somehow from the radical critiques of Schmitt and Pashukanis.

4.1. The Politics of the Right to Have Rights

For Giorgio Agamben (2008) in the modern system of nation-states, human rights lack any protection when they are not recognized as citizen rights, namely, when they are not recognized by the state. Similarly, in Arendts view, we become equal only as members of a political community. Thus, in the exceptional situation of stateless people who only were entitled with abstract rights as human beings not as citizens, they were in fact not considered humans. This theorization led to the affirmation of the rights of human beings beyond state recognition. But it also led to the identification of the subject of the rights of man with the subject deprived of any right. Rancire (2004) has criticized this perspective because it would be the result of a process of de-politicization: they become the rights of those who have no rights; they become humanitarian rights, the rights of those who cannot enact them, the victims of the absolute denial of right (2004, 307). But they are not void; the void is filled by Western powers that intervene politically, economically, culturally, and militarily in the name of defending human rights (Rancire 2004; iek 2005). The emptiness of human rights, of course, can be filled also by progressive activism, but the substance of this abstract conception cannot be totally redirected to progressive discourses. The attempt to appropriate human rights for those projects entails abstracting that substance and thus abstracted is easily re-appropriated by those in power (Miville 2005). The abstract rationality, the very essence of human rights, not only hides concrete inequalities but also legitimates the liberal premises that facilitate those inequalities (Peterson 1990). Then, according to Andrew Schaap (2011), Arendts ontological trap leads to a de-politicized account of human rights and, even worst, it could justify an anti-political humanitarian politics. For Rancire Arendts view is flawed because of her conception of the political. Arendt sees the political as public communicative action between human beings that interact as equals; but this does not take into consideration that those who are considered to lack speech can actually struggle for the right to speech as political animals (in Schaap 2011). The notion of speaking animal is always contestable: after defined humans as speaking animals, Aristotle differentiated between those human citizens who have language and those less-than-human slaves that only can understand language. This means that politics also involves the struggle of the oppressed groups to be considered as speaking subjects within a social order that denies their participation in politics (in Schaap 2011). Consequently, for Rancire, the human in human rights does not necessarily correspond to a form of life, bare or otherwise ... rather, the human is a litigious name that can be invoked to

254

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

assert a fundamental equality (Schaap 2011, 23). Thus, while Arendt understands rights as a precondition for politics since they institutionalize an artificial equality that is constitutive of the public sphere, for Rancire politics is about struggling against political exclusion. Therefore, while Arendts conception of politics is essentialist by identifying an authentic politics with the recognition of the human potential of public discussion, Rancire (as Schmitt) advances a procedural notion of politics: politics does not correspond to a real or potential sphere, but rather to the dynamics of politicization (Schaap 2011). Agamben shares the logic of Arendt but without relying on any institutionalization to save rights; and instead of Rancire, he seems to deny the capacity of a bare life to enact politically its own humanity. Agamben (1998) traces the history of Western politics as the history of the production of homines sacri or bare lives which can be eliminated by anyone without sanction. The figure of homo sacer, from its Roman exiles to the prisoners of Auschwitz, is the key figure of the state of exception, a legal and political power inherent to the sovereign to determine a space of lawlessness in order to rule directly beyond the Law, deciding over the protection or destruction of a human body (Nikolopoulou 2000). Agamben (2005) goes beyond Foucaults biopower in the analysis of the archaeology of sovereign power. He concludes that the biopolitical power is not simply a modern phenomenon; its fundamental dimension existed in the roman category of homo sacer, medieval treatment of anomalies and current state of exceptions. Thus, by analyzing the concentration camps as example of the excesses of biopolitical terror, Agamben goes beyond Foucault analysis of micro-processes of biopower, demonstrating not only the biopolitical foundation of totalitarianism, but that power is embedded in totalitarian principles (Nikolopoulou 2000). Human rights in this view are dominated by biopolitical power. Rights are attributed to the human beings only if this attribution is the precondition of citizenship (Agamben 2008). In that context, the refugee represents a precarious condition because by breaking the identity between the human and the citizen, it causes the crisis of the fundamental fiction of sovereignty. Then, there is no autonomous space in the political order of the nation-state for something like the pure human: the status of refugee is considered a temporary condition that must be either naturalized or repatriated (Agamben 2008). Hardt and Negri (2009) criticize the fact that although Agamben distinguishes biopolitics from biopower, he leaves biopolitics powerless and without subjectivity, negating any possibility of biopolitical resistance. Thus, Hardt and Negri criticize Agamben in the same way Rancire criticizes Arendt: the lack of politics.

4.2. The Right to Resistance/Revolution

Douzinas (2010) has gone beyond the radical politics of Rancire and has advanced a right to resistance/revolution. The struggle for justice (dike) against an unjust order (adikia) is achieved through revolution. But revolution was not just a radical socio-political change, it became a normative principle: The right to resistance to oppression, a key political maxim of the French Declaration, became the highest form of freedom. The Declaration proclaimed revolution as modernitys techne and the right to revolution as freedoms principle. However, although revolution was admired for representing the historical struggles for freedom, it was rejected from the Declaration as a right. Once constituent power had been constituted, the right to revolution was eliminated. Kants ethic-political dislike of the right to revolution was adopted by the victorious revolutionaries and later by the human rights movement (Douzinas 2010). The Declaration of 1948 reproduces the French statement of equal freedom, but it does not recognize rights to resistance. Quite the opposite, the preamble states that the recognition of rights seeks to prevent

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

255

revolution, and article 30 prohibits radical transformations to the political and legal order: the reversal of priorities between the right to revolution and substantive rights was complete (Douzinas 2010, 93). Therefore, formal human rights became defense mechanisms against the possibility of resistance and revolution; todays human rights rhetoric individualizes political claims, transforming them into mere technical and isolated disputes, so human rights become rights to de-politicize politics. Nonetheless, for Douzinas (2010) the right to revolution cannot be omitted. There should be a struggle for the re-politicization of rights. But this re-politicization goes beyond Rancire radical politics. For Douzinas (2010), Rancires attempt to save human rights for radical politics is problematic. Rights have become the main tool of current hegemonic politics since most rights claims reinforce the established social order. In contrast, communisms normative call results from the failure of the promise of equality. It turns equality from a conditional norm into Alain Badious unconditional axiom: people are free and equal; equality is not an ideal aim but the basis for action; whatever denies this truth creates rights and duties of resistance (in Douzinas 2010). Douzinas (2010) attempts to provide a legal foundation for what Jacques Derrida (1992) conceives as the mystical foundation of authority: the revolutionary violence, or the founding violence in Walter Benjamin (1986). Revolutionary violence suspends law and constitution and justifies itself by claiming to be founding a new order that would replace a corrupt system. Although the revolution is accused of being illegal and brutal, when it succeeds, it is retrospectively legitimized as an expression of the eternal right to rebel against injustice (Douzinas 2010). These entail a right to Law that supports state action, and at the same time its challenges since it represents the violent foundation of the state and the immanent right to revolution. Today the right to Law is for Douzinas (2010) a right to resistance/revolution against whatever denies the axiom of equality that forms the normative maxim of the communist idea. This radical critique of liberal legality shares Schmitts critique of the liberal understanding of Law as neutral and formal process: the subordination to formal mechanisms and decisions detached from every substantive relation to Law and Justice results in an unconditional renunciation to any right to resistance (Schmitt 2004).

5. Decolonial Human Rights: Struggling for the Right to Have Communal Rights
In the current context of global coloniality can be observed clearly what Santos (2009) calls the Polanyi inversion: the market is not more embedded in the society, society is embedded in the market, so, whereas in the everyday social regulation Law becomes economics and economics become Law; Public International Law provides some progressive moments whereas remains manipulated by powerful actors. The classic legal theories have de-politicized and universalized (thus, legitimized) this order and its foundations. The formalistic approach to Law provides the formal structure of legal categories whereas hiding oppression; natural Law provides justifications for political interventions which can be progressive or conservative; most sociological approaches provides just descriptions of the complex social order. Meanwhile, the radical critiques of liberal legality and human rights only focus on political economy and/or liberal legality. Miville criticizes the commodity form of legality, namely the political economy inherent to liberal legality; Rancire criticizes the de-politicization of human rights (and liberal legality) that if understood comprehensively would deny the right to resistance/revolution in Douzinas. All of these critiques denounce the liberal abstractness as a mechanism of de-politicization and legitimation (conservation) of the liberal capitalist order but do not question the very foundation of this abstractness: Western modernity. The idea of individual rights rooted in Western thinking is based on the clear distinction between human

256

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

beings and nature, and the notion of individual private property. So, the individual exerts his property right on himself (his body as his property) and nature (as object or natural resource), and on the outcomes obtained (tangible and intangible) from those originals properties. In the public arena, it entails that a political unitthe statemust manage territorial sovereignty to ensure, primarily, the free use of property rights among citizens. For indigenous peoples there are not only individual but also communal rights which are based on their especial relation to their land. In that context, sovereignty is territoriality not for dividing and protecting specific individual ownerships, but to organize society according to harmonious relations among humans and non-humans. Obviously, each indigenous tradition has specific institutional arrangements, but what is common in most of them is the establishment of political institutions, jurisdictions, and economic management according to communal values. In general, there are three main divergences between Western liberal and indigenous communal systems (Holder and Corntassel 2002): first, many indigenous peoples view collective and individual rights as interdependent. Second, for those groups communal kinship extends to all individual members and species, so the groups survival is based on both individual and collective access to communal goods. Third, the material and non-material benefits provided to each member is not understood just in terms of individual gratification but in terms of general welfare and education (as the case of indigenous knowledge). In spite of the differences, the dominant liberal model of representative democracy undermines and marginalizes indigenous identities, social organization and political practices (Rivera 1990). The socialist model is equally flawed: the centralization of the monolithic party and state appears incompatible with indigenous political and social organization (Rivera 1990). For example, the Andean philosophy does not distinguish between nature of the human body and the body of nature, so, to live in harmony means to live in harmony not only among humans but also with all living beings (Mignolo 2011). Thus, nature is not understood as natural resource but as Pachamama (Mother Earth) with legal rights. This theoretical turn (recognized in the Ecuadorian constitution) expresses a deep contradiction between liberal and indigenous political economies and explains the tensions in implementing such a model. The liberal model articulates a commodity regime based on individual landholding, while the ethnic economy is oriented to the social and economic reproduction of the collectivity (Rivera 1990). These ideas are the basis of the philosophy of buen vivir (good life), suma kawsay in Quichua or Suma kamaa in Aymara, which cannot be conceptualized from the history of European societies but emerges from the history of indigenous societies (Mignolo 2011). These deep differences in political organization and definition of rights have been obscured by Western legal and political philosophy (Rivera 1990). For example, a theory of property which essentializes the liberal framework cannot understand indigenous communal land. When Europeans established systems of property on the colonies, indigenous peoples were already there, with their own systems of property and traditions. For James Tully (1994) contemporary scholars influenced by Locke or Kant take for granted an original starting point, without discussing the nature of indigenous property. Will Kymlicka, for example, locates indigenous claims within the Kant-Rawls framework, ignoring the fact that indigenous system of property is independent of Rawls thinking. Similarly, communitarian theorists usually agree with Rawls that we must assume Western institutions and theories as the authoritative framework to explain any legal and political theory. In sum, there is a perpetuation of a form of conceptual imperialism in legal and political philosophy (Tully 1994, 180). In that context, the main agents of the human rights discourse such as the UN, Western states, NGOs, and

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

257

Western academics, constructed the metaphor savages-victims-saviours at the centre of the human rights system. But this system entails a continuation of the legacies of colonialism because saving others reinforces the discourse of Western superiority (Mutua 2001; Abu-Lughod 2002). Then, the conversion of human rights from politicized entitlements to de-politicized entities that can be filled by humanitarian interventions can be read from a decolonial perspective and not necessarily from the radical politics of Rancire and others. First of all, the radical politics of Rancire is not radical enough. The question cannot be just Who is the Subject of the Rights of Man?, but more deeply, Who determines who is Man or Human?. The issue cannot be solved by re-politicizing the human, so that a bare life can dispute politically his humanity; but to de-link this very concept from Western ontology and epistemology. According to Walter Mignolo (2009) the concepts of man and human were inventions of European humanists of the 15th and 16th centuries. They invented this notion in order to debilitate the power of the Church and distinguish themselves from co-existing communities they perceived as a threat or enemies: Saracens or Easterners and pagans or rustic religions served to establish the difference with man.... Thus, the humanist was the one who placed himself in relation to the Saracens or Easterner, placed himself as Westerner, and Easterners were defined by Westerners as if Westerners had the universal authority to name without being named in return (Mignolo 2009, 8). With the consolidation of liberal reforms and revolutions in the 17th and 18th centuries, the Christian notion of humanity was abandoned by a secular bourgeois one, what was recognized on The Declaration on the Rights of Man and Citizen after the French Revolution (Mignolo 2009). In addition, as independent Nations in the emerging nation-states displaced the idea of nation (gentium) dominated by the Roman Church rule, a new figure of exteriority was created in opposition to the new concept of citizen: the foreigner enriched the list of exterior human, next to pagan, Saracens, Blacks, Indians, women, non-normative sexual preferences (Mignolo 2009, 14). In the Universal Declaration of Human Rights of 1948, human still was a given notion, but it was redefined according to a changing post-war world order in which US occupies the leadership role and promotes a reclassification of the planet: First, Second, Third World and Fourth World for indigenous peoples.... What was hidden was that the classification was made from the perspective of the First and not from the Second, Third or Fourth World (Mignolo 2009, 16). In sum, liberal legality has been implemented having as its premise the ontological and epistemological superiority of the West, so the human in human rights is an invention of Western imperial knowledge controlled by certain categories of thoughts embedded in Western histories and experiences (Mignolo 2009). In that context, Mignolo (2009; 2011) presents two options: to accept what is human according to Western knowledge; or to de-link, to engage in epistemic disobedience by denouncing the unilateralism and arbitrariness of the universal, and by affirming that being human is not being Christian or Kantian but it is, first of all, being able to dispute the imperial definition of humanity from Arabic, Urdu, Aymara, Quechua, or any other non-Western culture. From this perspective can be performed a radical critique on humanitarian intervention, which is not rooted primarily in the de-politicization of human rights, but in the control of what is human. Historically, the rights of the others have been destroyed in the name of preserving human rights themselves, constituting what Franz Hinkelammert (2004) calls the inversion of human rights. Thus, accusations of human sacrifices, cannibalism, widow immolation and, in general, primitive customs able to harm human rights have been important justifications for the conquest of Latin America, North America, Africa, or India. In sum, the West conquered the world, destroyed cultures and civilisations, committed genocides ... yet, all of this was done to

258

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

save human rights (Hinkelammert 2004, 2). Locke not only was the father of liberalism and the republic of private property (Hardt and Negri 2009), but also of the inversion of human rights: for him the liberal state is the fundamental order from which society must organize itself and the enemy is any opposition to bourgeois expansion (Hinkelammert 2004). This inversion of human rights can be summarized with these statements: no property for the enemies of property ... no liberty for the enemies of liberty (Hinkelammert 2004, 19), these propositions are clear examples of the interconnection between liberal legality, political economy, and modernity. Liberalism thus was born as an order that violently rejects any competitor through exceptional mechanisms of restitution of order. Therefore, the elimination of the right of resistance/revolution is not a betrayal of Western ideals but this is its very nature because it is rooted in the modernity project that promotes universalism and progress as paradigms. Hence, to oppose a right to Law (or a right to communism) against liberal capitalism as a new universal is just to reproduce the very logic of modernity. It is to create an absolute enemy that must be eliminated in Schmitts terms (Hinkelammert 2004), but that would be replaced for another totality. The decolonial optionin contrastdoes not attempt to provide a new truth, a new definition of a total order or of what it means to be human for all (Mignolo 2009; 2011). The de-colonial thinking strongly criticizes liberal legality, capitalism, and their epistemological and ontological foundation, Western modernity. It is against the denial of a different political economy and communal legality based on indigenous autonomy and communality, and not on individuality and commodity. But this communal perspective is not universal; it is committed to pluriversality.

6. Conclusion
Indigenous peoples struggles can be understood as struggles for the right to have communal rights in a sense very different of Arendt, and beyond the critiques of Rancire and Douzinas. This is not a right to politics or to belong to a political community. It does not assume that indigenous peoples are in a pre-political situation or that they have a right to revolution from a communist universalistic perspective. This right is first of all a right to de-link from Western epistemologies and ontologies, a right to dispute what is the meaning of humanity and to enact a decolonial option from the conceptual genealogy of indigenous thinking. Therefore, this is effectively a right to Law but not in a universalistic fashion but in a context of pluriversality in which must be respected different alternatives views of socio-political and economic organization. Thus, this right is not trapped in the dichotomy inclusion/exclusion, but it entails a struggle for autonomy or self-determination beyond modernitys epistemological and ontological premises, and liberal capitalism. Then, it is clear that the decolonial option instead of, for example, a reformist Welfare liberalism, does not advocate recognition in the sense of liberal toleration and cultural symbolism, but in the sense of a strong alternative system of thought and political and economic communal organization. In that context, human rights discourse in its transcendental and formal structure is connected to the Western-colonial reason which entails a globalization of liberal rights and de-globalization of communal and economic rights. Thus, the intercultural dialogue is trapped in the rhetoric of cultural recognition with little possibility of overcoming the political pre-established. What is needed is to provide a new political space that extends the political proper: a decolonial space that can change the terms of conversation. Decolonial human rights emerge, thus, as an option to reaffirm a cosmovision, legality, and economy that have been invisibilized

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

259

by different techniques from the colonial era until today. In that context, the strategic appropriation of human rights and International Law by indigenous movements becomes dangerous when the political struggle remains in the arena of symbolic culturalism without addressing critically the colonial matrix of power, which is founded on modernity, liberalism, and capitalism.

Works Cited
Abu-Lughod, Lila. Do Muslim Women Really Need Saving? Anthropological Reflections on Cultural Relativism and Its Others. American Anthropologist New Series 104.3 (2002): 783-90. Agamben, Giorgio. Beyond Human Rights. Social Engineering 15 (2008): 90-95. ---. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller-Roazen. Stanford: Stanford UP, 1998. ---. State of Exception. Chicago: U of Chicago P, 2005. Anaya, James. Indigenous Peoples Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources. Arizona Journal of International & Comparative Law 22.1 (2005): 7-17. Arendt, Hannah. The Origins of Totalitarianism. New York/London: Harvest Book, 1973. Arneil, Barbara. Trade, Plantations, and Property: John Locke and the Economic Defense of Colonialism. Journal of the History of Ideas 55.4 (1994): 591-609. Atienza, Manuel. Marx y los derechos humanos. Lima: Palestra editors, 2008. Balibar, Etienne. (De)Constructing the Human as Human Institution: A Reflection on the Coherence of Hannah Arendts Practical Philosophy. Social Research 74.3 (2007): 727-38. ---. Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty. The South Atlantic Quarterly 103.2/3 (2004): 311-22. Beetham, David. What Future for Economic and Social Rights? Political Studies XLIII.1 (1995): 41-60. Benjamin, Walter. Reflections. Essays, Aphorisms, Autobiographical Writings. Trans. Edmund Jephcott. New York: Schocken Books, 1986. Borch, Merete. Rethinking the Origins of Terra Nullius. Australian Historical Studies 32.117 (2001): 222-39. Brown, Chris. Universal Human Rights: A Critique. The International Journal of Human Rights 1.2 (1997): 41-65. Brown, Michael. Cultural Relativism 2.0. Current Anthropology 49.3 (2008): 363-83. Cosgrove, Richard. Scholars of the Law: English Jurisprudence from Blackstone to Hart. New York/London: New York UP, 1996. Cotterrell, Roger. The Sociological Concept of Law. Journal of Law and Society 10.2 (1983): 241-55. Derrida, Jacques. Force of Law: The Mystical Foundation of Authority. Deconstruction and the Possibility of Justice. Ed. Drucilla Cornell, Michel Rosenfeld, and David Gray Carlson. New York/London: Routledge, 1992. 3-67. Donnelly, Jack. Cultural Relativism and Universal Human Rights. Human Rights Quarterly 6.4 (1984): 400-19. Douzinas, Costas. Adikia: On Communism and Rights. The Idea of Communism. Ed. Costas Douzinas and Slavoj Zizek. London/New York: Verso Books, 2010. 81-100. ---. Human Rights and Empire: The Political Philosophy of Cosmopolitanism. Abingdon/Oxford/New York: Taylor & Francis, 2007. Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard UP, 1978. Eagleton, Terry. Las ilusiones del Postmodernismo. Buenos Aires: Paidos, 1997. Engle, Karen. On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights. The European Journal of International Law 22.1 (2011): 141-63. Fine, Robert. Cosmopolitanism and Human Rights: Radicalism in a Global Age. Metaphilosophy 40.1 (2009): 8-23. Fromherz, Christopher. Indigenous Peoples Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples. University of Pennsylvania Law Review 156.5 (2008): 1341-81. Gilbert, Jeremie. Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples. International Journal on Minority and Group Rights 14.2-3 (2007): 207-30. ---. Peoples Land Rights under International Law: From Victims to Actors. Ardsley: Transnational Publishers, 2006. Haldemann, Frank. Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law. Ratio Juris 18.2 (2005): 162-78. Hardt, Michael, and Antonio Negri. Commonwealth. Cambridge: The Belknap Press of Harvard UP, 2009.

260

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

Harris-Short, Sonia. International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child. Human Rights Quarterly 25.1 (2003): 130-81. Hinkelammert, Franz. The Hidden Logic of Modernity: Locke and the Inversion of Human Rights. Worlds & Knowledges Otherwise 1.1 (2004): 1-27. Holder, Cindy, and Jeff Corntassel. Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights. Human Rights Quarterly 24.1 (2002): 126-51. Howard, Rhoda E. Human Rights and the Search for Community. Journal of Peace Research 32.1 (1995): 1-8. Ife, Jim. Human Rights from Below: Achieving Rights through Community Development. Cambridge: Cambridge UP, 2009. Kennedy, David. The Dark Sides of Virtue: Reassessing International Humanitarianism. New York: Princeton UP, 2005. ---. Disenchantment of Logically Formal Legal Rationality, or Max Webers Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought. Hastings Law Journal 55.5 (2004): 1031-76. ---. La crtica de los derechos en los Critical Legal Studies. Revista Jurdica de la Universidad de Palermo 7.1 (2006): 47-89. Lander, Edgardo. La colonialidad del saber: Eurocentrismo y ciencias sociales. Perspectivas latinoamericanas. Buenos Aires: Clacso, 2000. Leckie, Scott. Another Step towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights. Human Rights Quarterly 20.1 (1998): 81-124. Mackay, Fergus. Universal Rights or a Universe unto Itself? Indigenous Peoples Human Rights and the World Banks Draft Operational Policy 4.10 on Indigenous Peoples. American University International Law Review 17.3 (2002): 527-624. McLoughlin, Daniel. In Force without Significance: Kantian Nihilism and Agambens Critique of Law. Law and Critique 20.3 (2009): 245-57. Miville, China. Between Equal Rights: A Marxist Theory of International Law. Leiden and Boston: BRILL, 2005. Mignolo, Walter. The Darker Side of Western Modernity: Global Futures, Decolonial Options. Durham, NC: Duke UP, 2011. ---. Who Speaks for the Human in Human Rights? Human Rights in Latin American and Iberian Cultures. Hispanic Issues 5.1 (2009): 7-24. Mutua, Makau. Savages, Victims, and Saviors: The Metaphor of Human Rights. Harvard International Law Journal 42.1 (2001): 201-45. Naim, Abdullahi. Human Rights in Cross Cultural Perspective. Philadelphia: U of Pennsylvania P, 1992. Nikolopoulou, Kalliopi. Homo Sacer: Sovereign Power and Bare Life. Substance 29.3 (2000): 124-31. Nourse, Victoria, and Gregory Shaffer. Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? Cornell Law Review 95.1 (2009): 61-137. Nussbaum, Martha C. Capabilities and Human Rights. Fordham Law Review 66.2 (1997): 273-300. Oldham, Paul, and Miriam Anne Frank. We the Peoples: The United Nations Declaration on the Rights of Indigenous Peoples. Anthropology Today 24.2 (2008): 5-9. Olivecrona, Karl. Appropriation in the State of Nature: Locke on the Origin of Property. Journal of the History of Ideas 35.2 (1974): 211-30. Onazi, Oche. Towards a Subaltern Theory of Human Rights. Global Jurist 9.2 (2009): 1-25. Orend, Brian. Human Rights: Concept and Context. Ontario: Broadview Press, 2002. Page, Alex. Indigenous Peoples Free Prior and Informed Consent in the Inter-American Human Rights System. Sustainable Development Law & Policy 4.2 (2004): 16-20. Pasqualucci, Jo M. International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples. Wisconsin International Law Journal 27.1 (2009): 51-98. Peterson, V. Spike. Whose Rights? A Critique of the Givens in Human Rights Discourse. Alternatives: Global, Local, Political, 15.3 (1990): 303-44. Pollis, Adamantia. A New Universalism. Human Rights: New Perspectives, New Realities. Ed. Adamantia Pollis and Peter Schwab. Boulder: Lynne Rienner Publishers, 2000. 9-30. Quijano, Anibal. Coloniality of Power, Eurocentrism, and Latin America. Nepantla: Views from South 1.3 (2000): 533-80. Rajagopal, Balakrishnan. Counter-Hegemonic International Law: Rethinking Human Rights and Development as a Third World Strategy. Third World Quarterly 27.5 (2006): 767-83. Rancire, Jacques. Democracy, Republic, Representation. Constellations 13.3 (2006): 297-307. ---. Politics, Identification, and Subjectivization. The Identity in Question 61 (1992): 58-64.

CRITICAL HUMAN RIGHTS AND LIBERAL LEGALITY

261

---. Who is the Subject of the Rights of Man? The South Atlantic Quarterly 103.2/3 (2004): 297-310. Rivera, Silvia. Liberal Democracy and Ayllu Democracy in Bolivia: The Case of Northern Potosi. Journal of Development Studies 26.4 (1990): 97-121. Rodrguez-Garavito, Cesar. Ethnicity.gov: Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields. Indiana Journal of Global Legal Studies 18.1 (2011): 263-305. Santos, Boaventura de Sousa. Another Knowledge is Possible: Beyond Northern Epistemologies. London: Verso, 2007. ---. Governance: Between Myth and Reality. RCCS Annual Review Sept. 2009. <http://rccsar.revues.org/95>. ---. Toward a Multicultural Conception of Human Rights. Beyond Law 9.25 (2002a): 9-32. ---. Toward a New Legal Common Sense: Law, Globalization and Emancipation. 2nd ed. London: LexisNexis Butterworths, 2002b. Schaap, Andrew. Enacting the Right to Have Rights: Jacques Rancires Critique of Hannah Arendt. European Journal of Political Theory 10.1 (2011): 22-45. Schmitt, Carl. The Concept of the Political. 1927. Trans. George Schwab. Chicago: U of Chicago P, 2007. ---. Legality and legitimacy. 1932. Trans. Jeffrey Seitzer. Durham, NC: Duke UP, 2004. ---. Political Theology, Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Chicago: U of Chicago P, 2005. Stammers, Neil. Social Movements and the Social Construction of Human Rights. Human Rights Quarterly 21.4 (1999): 980-1008. Steinberg, Marc W. Marx, Formal Subsumption and the Law. Theor Soc. 39.2 (2010): 173-202. Stewart-Harawira, Makere. The New Imperial Order: Indigenous Responses to Globalization. London/New York: Zed Books, 2005. Tamanaha, Brian. An Analytical Map of Social Scientific: Approaches to the Concept of Law. Oxford Journal of Legal Studies 15.4 (1995): 501-35. Tully, James. Aboriginal Property and Western Theory: Recovering a Middle Ground. Social Philosophy and Policy 11.2 (1994): 153-80. Villey, Michel. Grandeza y Decadencia del voluntarismo jurdico. Revista de la Facultad de Derecho de la Universidad Externado de Colombia (1996): 230-50. Whitehead, Jason. From Criticism to Critique: Preserving the Radical Potential of Critical Legal Studies through a Reexamination of Frankfurt School Critical Theory. Florida State University Law Review 26.3 (1999): 701-42. Zechenter. Elizabeth M. In the Name of Culture: Cultural Relativism and the Abuse of the Individual. Journal of Anthropological Research 53.3 (1997): 319-47. iek, Slavoj. Against Human Rights. New Left Review 34.34 (2005): 115-31.