Yussef Al Tamimi, 14 November 2017

This is a brief reflection on Nicola Perugini and Neve Gordon’s wonderfully intricate book The Human Right to Dominate (Oxford University Press 2015).

Gordon and Perugini claim that it is problematic to regard human rights as having any sort of essence. The ‘original’ is an illusion. But it seems that the essentialist problem is moved to domination. Domination and the dominated are regarded as completely objective terms throughout the book. A remark on the last page of the book: “human rights should be measured in relation to domination”. So positivistic! Falls totally out of line with the rest of the book which takes a strong non-positivistic, anti-legalist stance. Will not everyone/different sides or settlers claim that they are the ones who are dominated? Isn’t it always that people try to use a concept, language or system to their own benefit?

When I asked them this question, they said: yes, of course people will use concepts and systems to their own benefit and they will also claim that they are dominated. Language and rights will always be appropriated and co-opted, but this doesn’t mean that we shouldn’t reformulate. From time to time we should reformulate discourse to bring life to justice. They don’t see domination as an objective term, but as a ‘contingent universal’; it is terminology that can have some impact for now and then we need to refresh it. Language has its power and loses it again.

This seems to me a terrible and bleak future. We become language nomads jumping from one word to the other, without a structural solution.

Seeing human rights as a language is not only there in Perugini and Gordon (p. 12, 25), it’s also there in Naomi Klein’s The Shock Doctrine: in her account of the Chilean case she describes how the activists dropped their usual denunciations of the bourgeoisie and “learned the new language of universal human rights.” (p. 120). Susan Marks in her article Human Rights and Root Causes also refers to an account which claims that more Africans are refraining from using human rights language because it fails to provide them with what they need to fight injustice (p. 73).

So what to do with this view of human rights as ‘merely’ a language? They believe that “Human rights only exist because they are talked about”. Marie-Benedict Dembour in her book Who believes in human rights? calls such human rights scholars, ‘discourse scholars’, to which she also includes Koskeniemmi and herself. What distinguishes Perugini and Gordon from a protest scholar like Upendra Baxi, is that the latter ultimately does believe that human rights are useful means to set human beings free from suffering and oppression. For Perugini and Gordon, and so it seems for Klein and Marks, human rights are possibly morally counterproductive because they inhibit the imagination of more emancipatory projects.

The conclusion with the solutions is the weakest part of the book, as Perugini and Gordon themselves readily admit. Dembour already notes this in her book, that discourse scholars are very good at exposing the defects of human rights discourse, but are not good in proposing something instead. However, for her, this is an inherent part of the discourse scholar mentality, because for them uncertainty is in fact the best antidote against arrogance and power.

It is here where I disagree. I tend to agree that uncertainty can act as an antidote to restrict the exercise of power. Keeping things undetermined leaves the powerful in a state of not being able to control the course of action. The question is if uncertainty leaves the powerless in any better state. Uncertainty can equally pose as a smokescreen for dominant actors to act as they wish. Read in this light the critique of discourse scholars can be seen as a direct attack of the principle of legal certainty, or the rule of law, relating to the idea of legal indeterminacy advocated by Crits in the 80’s. Rather than committing fully to the deprofessionalisation that Perugini and Gordon advocate, I prefer to think of ways of redrawing the professional system as to resolve the flaws currently faced, as fundamental as they are. The indeterminacy of law as well as the interconnectedness between language and domination should be embraced as an inherent characteristic of norms and power, but forsaking interpretation without any guidelines leaves the system vulnerable to a state of uncertainty in which financial, political and other interests can flourish even more.