Are the powers of traditional leaders in South Africa compatible with women’s equal rights?: Three conceptual arguments

This paper is about conflicts of rights, and the particularly difficult challenges that such conflicts present when they entail women’s equality and claims of cultural recognition. South Africa since 1994 has presented a series of challenging—but by no means unique—circumstances many of which entail conflicting claims of rights. The central aim of this paper is, to make sense of the idea that the institution of traditional leadership can be sustained—and indeed given new, more concrete powers—in a democracy; and to explore the implications that this has for women’s equality and equal human rights. This is a particularly pertinent question in the South African context, and I think it is worth reiterating from the outset that there is a distinct impression that women’s equality is always “up for grabs” when other, perhaps more powerful interests, come into play, in a way that would be unacceptable for other aspects of identity, and therefore signifiers of equality. It would be inconceivable, for example, to countenance a claim for a hierarchical racial arrangement in a given community, no matter how deeply culturally entrenched that arrangement was, and regardless of how much support it (ostensibly) had from the community concerned. I think therefore that we are obliged to ask difficult questions about the new legislation on traditional leadership, and to put it under the microscope of political theory in assessing the claim that this is one way of recognizing people’s rights and freedoms in a new democracy. The Traditional Leadership and Governance Framework Act 2003, omits reference to the “powers” of traditional leaders, but rather refers to “functions and roles” which was regarded as something of a victory for women’s rights groups. However, the Commission on Gender Equality (CGE) and others point out that this victory has been all but nullified by the Communal Land Rights Act, 2004, which allocates powers of land administration to traditional councils, which are headed by traditional leaders. In any event, the “functions and roles” that traditional leaders are allocated in terms of the 2003 Act are sufficiently extensive that they may be seen to allocate “power” with the reference to lesser competence appearing to be a mere semantic device for the sake of compromise.     

Are There Universal Collective Rights?

The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen’s definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies “thin” (relative, contingent) universality, which might be operationally worked-out as in Donnelly’s three-tiered scheme of concepts–conceptions–implementations. The second part is devoted to collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political–philosophical justification and legal–theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law—peoples, minorities, and indigenous peoples—and investigates whether certain rights vested in these collectives might, according to Sen’s standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists.     

The ethos of sovereignty: A critical appraisal

Taking as its starting point the commonly held claim about the obscurity of the concept of sovereignty, the article first identifies a fundamental paradox between the classical Westphalian notion of state sovereignty and human rights. In the rhetoric of international politics, attempts to establish the responsibility of states to respect human rights and fundamental freedoms within their jurisdictions are often countered with claims referring to the “sovereign equality” of all states and the subsequent principle of non-intervention. The article suggests that in a more contemporary understanding of sovereignty the responsibility of a state to respect human rights and fundamental freedoms is seen as a constituent ingredient of the state itself. The chapter continues to elaborate how this change has come about. The classical notion of sovereignty is illustrated through a reading of Bodin’s Six Books of the Commonwealth (1576). In Bodin’s world, sovereignty is a constitutive element of the state, and the possibility of a multitude of sovereign entities in a global world logically denying the possibility of any “supra-national” normative framework is still a minor consideration. This possibility is only worked out with the emergence of international law. In both classics such as Emmerich de Vattel’s The Law of Nations (1758) and more contemporary treatises such as Lassa Oppenheim’s International Law (1905), state sovereignty has become conditional to recognition by other sovereign states and a subsequent membership in the “family of nations.” The conditional membership in the “family of nations” involves a contradiction: a sovereign state must act in a “dignified” manner, it must use its sovereignty with “restraint” by respecting the human rights and fundamental freedoms of its citizens, i.e., it must employ its sovereignty in a non-sovereign way. This restriction of sovereignty, addressed as “ethical sovereignty,” becomes a constitutive element in a post-Westphalian state and a central ingredient in the contemporary doctrine of humanitarian intervention. The article further criticizes the various uses (and abuses) of “ethical sovereignty” in the regulation of “failing” and “rogue” states and concludes by identifying its general political dangers. Finally, with reference to Jacques Derrida’s Rogues (2003), the article suggests a more radical reappraisal of the concept of sovereignty. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs.¹ —Lassa Oppenheim But to invoke the concept of national sovereignty as in itself a decisional factor is to fall back on a word which has an emotive quality lacking meaningful specific content. It is to substitute pride for reason.² —Eli Lauterpacht     

Compliance and Non-compliance with International Human Rights Standards: Overplaying the Cultural

This paper interrogates a ‘positive’ view of culture’s (potential) role in widening compliance with international human rights standards, which (1) concentrates on the ‘cultural’ bases of conflict over rights and, in consequence, (2) focuses primarily on cultural interpretation as a means of achieving greater respect for rights norms. The thrust of the paper is that the relationship between culture and human rights norms is much more complex than this positive perspective implies and, this being so, that some of its claims about the potential benefits of cultural interpretation for widening rights compliance are hard to sustain. I substantiate this argument by exploring five challenges to this approach.     

Beyond “Nonsense on stilts”: Towards conceptual clarity and resolution of conflicting economic rights

Many of the debates concerning the existence of economic rights obfuscate the meaning of the possession of a right to an economic good. In order to provide clarification, several theoretical questions must be probed. This essay explores each of these issues in order to demonstrate that greater conceptual clarity repudiates the arguments against the existence of economic rights. It also seeks to attenuate the vexing problem of necessary and painful tradeoffs between competing rights claims. The final portion of this essay heuristically demonstrates how greater conceptual clarity can aid us in dealing with complex policy issues involving competing rights claims. The phase “Nonsense on stilts” is borrowed from Jeremy Bentham’s refutation pf “Natural” rights. Jeremy Bentham, “Anarchical Fallacies” in Human Rights, ed. A.I.Melden (Belmont, CA: Wadsworth, 1970), 30–31.     

Human Rights,Intellectual Property,and Struggles for Recognition

This article examines recent controversies over the relationship between human rights and intellectual property rights (IPRs). Many activists have claimed that IPRs conflict with human rights. Others have argued that IPRs are themselves human rights. The article approaches the debate as an opportunity to clarify the nature of IPRs in relation to human rights, as well as the nature of contemporary struggles over these rights. After surveying the dual expansion of both human rights and IPRs and rejecting the view that IPRs are rooted in human rights, the author investigates the example of the HIV/AIDS crisis and the global Campaign for Access to Essential Medicines in order to illustrate attempts to represent IPRs as an outright threat to human rights. Highlighting the limitations of a human rights-based critique of IPRs, he concludes by proposing to study contemporary conflicts over IPRs and human rights as struggles for recognition and as struggles over the institutionalization of a transnational “recognition order.”

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The Principle of Generic Consistency as the Supreme Principle of Human Rights

Alan Gewirth’s claim that agents contradict that they are agents if they do not accept that the principle of generic consistency (PGC) is the supreme principle of practical rationality has been greeted with widespread scepticism. The aim of this article is not to defend this claim but to show that if the first and least controversial of the three stages of Gewirth’s argument for the PGC is sound, then agents must interpret and give effect to human rights in ways consistent with the PGC, or deny that human beings are equal in dignity and rights (which idea defines human rights) or that they are agents (and hence subject to any rules at all). Implications for the interpretation of the international legal system of human rights inspired by the Universal Declaration of Human Rights 1948 are sketched.     

Violence against women and economic, social and cultural rights in Africa

International human rights treaties and declarations lay out the interconnection of civil and political rights with economic, social, and cultural rights. However, it was not until 1993 at the 2^nd UN Conference on Human Rights in Vienna that governments agreed that all of women’s rights are an integral part of human rights. Promoting women’s economic, social, and cultural rights is a critical human rights advocacy issue. Poverty leaves women more exposed to violence and less able to escape it, and severely restricts women’s ability to organize and fight for change. The article describes work by AI and other NGOs on violence against women and its connection with women's poverty and lack of education, healthcare, housing, and access to land in Africa. Besides the burgeoning of African women’s organizations calling for protection of all women’s human rights, a second hopeful development has been approval in July 2003 of an historic Protocol on the Rights of women in Africa.     

The possibility of secular human rights: Alan gewirth and the principle of generic consistency

This article explores Alan Gewirth’s argument for a secular foundation for the idea 2 of human rights as a possible response to Michael J. Perry’s claim “that the idea of 3 human rights is…ineliminably religious.” I examine Gewirth’s reasoning for constructing 3 a theory, namely that existing theories are fundamentally flawed and leave the idea of human rights without a logically consistent foundation, before considering in detail his claims for the Principle of Generic Consistency (PGC). Having looked at his critique of numerous other theories, as well as at his own argument about human action grounding basic rights to freedom and well-being, I then offer a critique of Gewirth’s PGC. Ultimately my conclusion is that Gewrith's 3 theory relies too heavily on the notions, first that we have a meta-desire not to contradict ourselves and, second, that we are unable to find persuasive justifications for our behavior that might allow us to avoid self-contradiction. If one is not troubled by charges of self-contradiction or, as is more often the case, one does not recognize that one’s victim is as much a human being as oneself, Gewirth’s theory 5 V 3 will not seem particularly persuasive. *** DIRECT SUPPORT *** A28BB025 00003     

There is no “point” in decision-making: a model of transactive rationality for public policy and administration

The hope that policy-making is a rational process lies at the heart of policy science and democratic practice. However, what constitutes rationality is not clear. In policy deliberations, scientific, democratic, moral, and ecological concerns are often at odds. Harold Lasswell, in instituting the contemporary policy sciences, found that John Dewey’s pragmatist philosophy provided an integrative foundation that took into account all these considerations. As the policy sciences developed with a predominantly empirical focus on discrete aspects of policy-making, this holistic perspective was lost for a while. Contemporary theorists are reclaiming pragmatist philosophy as a framework for public policy and administration. In this article, key postulates of pragmatist philosophy are transposed to policy science by developing a new theoretical model of transactive rationality. This model is developed in light of current policy analyses, and against the backdrop of three classical policy science theories of rationality: linear and bounded rationalism; incrementalism; and mixed-scanning. Transactive rationality is a “fourth approach” that, by integrating scientific, democratic, moral, and ecological considerations, serves as a more holistic, explanatory, and normative guide for public policy and democratic practice.     

Responsibilities for Human Capabilities: Avoiding a Comprehensive Global Program

Violence, poverty, and illness are all too prevalent in our world. In order to alleviate their hold systematically, we need normative schemes with a global reach and with definite responsibilities. Martha Nussbaum’s human capabilities theory (Martha Nussbaum 2006) provides us with an insightful example. The Universal Declaration of Human Rights (The United Nations 1948), however, already includes most of the human capabilities central to Nussbaum’s theory, and violence, poverty, and illness usually appear as objectionable enough without any additional reference to capabilities. In the current article, the author argues that the primary global responsibilities can mainly be established without Nussbaum’s account of capabilities. The human rights-based approach is more promising for this purpose (Jack Donnelly 2007; Abigail Gosselin, Human Rights Review 8:35–52, 2006; Ivar Kolstad, Human Rights Review, doi:, 2008). However, the author also contends that Nussbaum’s theory may be very instructive as a relatively comprehensive moral approach that supplements the human rights view and inspires its adherents to assume secondary responsibilities in addition to the primary ones. Once we learn to see Nussbaum’s agenda in this way, not as the global program, but as one of the many reasonable and relatively comprehensive views in the global background culture, we can also learn to cultivate the responsibilities it implies in a duly dialogical way.     

Conceiving human rights without ontology

Conclusion In his book, World Poverty and Human Rights, Pogge sets out to articulate an approach to basic justice that is inversal and cosmopolitan. This notion of justice is to be articulated through the language of human rights. Pogge’s arguments about justice, moral universalism and cosmopolitanism are impressive and reward serious study. It is to be hoped. indeed, that many aspects of his argument might be adopted by the elite ruling classes of world politics; they have much to offer in the project of creating a world that is humane for all. The issues that I have raised in the foregoing argument however are central to the integrity of Pogge’s project. I have argued, in sum that it is not possible to advance a program for the expansion of justice and the implementation of human rights in world politics without making an appeal to a specific account of the nature of justice and of human rights. The account that informs Pogge’s argument is that of political liberalism, and this is an account that has much in its favor as a preferred vehicle for justice in world politics. However, this account makes itself vulnerable when it argues for universal principles without acknowledging their partisan and normative base. My argument has been that this issue is at the center of Pogge’s attempt to isolate the conception of human rights he explicates, which he wants to serve as the language for his global ethical universalism, from the ontological affirmations which make that conception of human rights possible, and which of necessity tie human rights to a specific conception of the nature of the good for human persons and groups. The attempt to establish a single, universal criterion of justice, and to express it in the language of human rights, is undermined from within for as long as it fails to engage with ontological concerns.     

On the Other Side of the Curtain: A Reassessment of Non-Elite Human Rights Experiences and Values in Poland

In this paper, I explore the formation of human rights attitudes among what I call the “silent majority” in the post-communist countries of Central Europe and the former Soviet Union. This is the large, diverse group of people never directly confronted with harsh methods of repression under communism. I argue here that the foundations for conceptualizing human rights are based on the degree and saliency of exposure to rights violations and that, for many citizens of Central and Eastern Europe, life behind the “iron curtain” is associated with relatively fewer rights violations than life after the iron curtain’s fall. Comparative personal experiences will play a key role in explaining how these citizens conceptualize human rights. I test this argument by applying it to the cases of Poland, where I conducted a total of 68 randomly selected non-elite interviews in an effort to probe for key factors defining individuals’ conceptions of human rights.

Sharing natural resource management responsibility: Examining the New Zealand rock lobster co-management experience

Co-management, in which government and resource users share responsibility for managing a natural resource, is attracting considerable attention in both public policy and common pool resource research. However, little is understood about how this approach arises in a mature regulatory setting, or about its strengths and weaknesses. This study uses the experience of the New Zealand rock lobster (Jasus edwardsii and Sagmariasus verreauxi) industry to illustrate what co-management is and how it develops. This is followed by an assessment of co-management in this regime. Development of co-management is an evolutionary process that requires commitment from both government and industry. Strengthened property rights and management expertise provide the incentives and tools to develop a robust co-management regime. However the characteristics of the property rights bundle must be carefully matched to the regime’s biological, social, and regulatory setting.     

Revisiting the Political Theory of Party Identification

Recently, Lewis-Beck et al. (The American Voter Revisited, 2008b) re-created The American Voter using contemporary data. Although these scholars ultimately conclude that voters today behave in ways that are consistent with the account of voting behavior presented in The American Voter, their work nonetheless highlights the importance and value of re-examining past ideas. Given that Lewis-Beck et al. have re-tested the findings of The American Voter, it is both timely and worthwhile to re-examine Fiorina’s (Retrospective voting in American national elections, 1981) political theory of party identification, which is often seen as a critique of the theory of party identification presented in The American Voter, using newly available panel data. In this paper, I re-examine Fiorina’s (Retrospective voting in American national elections, 1981) political theory of party identification using data from the 2000–2002–2004 NES panel study. In addition to applying Fiorina’s approach to party identification to new data, as a more robust test of Fiorina’s theory, I develop a model of party identification where changes in party identification are modeled as a function of the actual changes in retrospective political evaluations. Overall, my findings are broadly consistent with the findings from Fiorina’s original model of party identification; however, my analysis suggests that the distribution of opinions in the electorate and elite signals may be important to changes in party identification.     

Resorting to Statism to Find Meaning

The paper develops the idea of configuration of ownership to distinguish three primary political ideologies: (classical) liberalism, conservatism, and leftism. The liberal configuration is atomistic in its recognition of owners and ownership claims; it conforms closely to Adam Smith’s “commutative justice,” which Smith represented as a sort of social grammar. The conservative configuration also strives for a social grammar, but it counts among the set of owners certain spirit-lords such as God and Patria. The liberal and conservative configurations become isomorphic if and only if the ownership claims of the conservative spirit-lords are reduced to nothing. The left configuration ascribes fundamental ownership of resources to the people, the state, and sees laws as organizational house-rules into which one enters voluntary by choosing to remain within the polity; the type of justice that pertains is parallel to Smith’s “distributive justice,” which Smith associated with aspirational rules for achieving beauty in composition. The scheme illuminates why the left’s conception of liberty consists in civil liberties. The formulation of configurations is used to interpret the semantics of the three primary ideologies. Meanwhile, it is noted that actually existing parties and movements are admixtures of the three primary ideologies. For example, what makes Republicanism “conservative” is that it is relatively conservative; it by no means thoroughly or consistently rejects the precept of collective ownership by the polity.

Human Rights Enjoyment in Theory and Activism

Despite being a seemingly straightforward moral concept (that all humans have certain rights by virtue of their humanity), human rights is a contested concept in theory and practice. Theorists debate (among other things) the meaning of “rights,” the priority of rights, whether collective rights are universal, the foundations of rights, and whether there are universal human rights at all. These debates are of relatively greater interest to theorists; however, a given meaning of “human rights” implies a corresponding theory of change and through that can be an important guide to the practice of human rights activists and their funders. In practice, any organization can describe their work as “rights based.” This article clarifies the practices of human rights activists and their funders that are consistent with a theory of human rights as (1) universal, (2) interdependent across groups and categories of people, (3) indivisible across issue areas and claims, and (4) measured by the enjoyment of rights.     

Bridging the human rights—Sovereignty divide: Theoretical foundations of a democratic sovereignty

Human rights and sovereignty are generally construed as disputatious, if not entirely incompatible; the liability of the former constrains the license of the latter. This article challenges the certitude of that notion and argues that democratic, isocratic, and humanistic elements, or what may be thought of as precursors of human rights, are actually embedded in early theories of sovereignty, including what I call Bodin’s hierarchical, Althusius’ confederative, Hobbes’ singular, and Hegel’s progressive/constitutional sovereignty. Despite the differences in governmental structure to which each attaches sovereignty, each disassociates sovereignty from its agents (who does the work of supreme authority) and aligns it to its end (the good of citizens). From them I derive eight theses to ground a democratic, human rights friendly conception of sovereignty, which aids in bridging the divide between human rights advocacy and sovereign defenders.     

Are the social sciences really inferior?

Fritz Machlup, at the time of his death in 1983, was emeritus professor of economics at Princeton University and professor of economics at New York University. A former president of the American Economic Association and the International Economic Association, his many influential publications included A History of Thought on Economic Integration, Methodology of Economics and Other Social Sciences,and The Production and Distribution of Knowledge in the United States.This article, which was a favorite of Machlup’s, is reprinted from The Southern Economic Journalof January 1961, with the permission of that journal.