Human rights in a wrong world

Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Cheltenham and Northampton, MA: Edward Elgar Publishing, 2018). 307pp., £90.00 hb., £19.95 pb., 978 1 78811 252 9 hb., 978 1 83910 447 3 pb.

Over the past few decades, various critical scholars have emphasised the limitations of human rights. Such scholars have, for the most part, proposed a return to human rights as the solution to its failures, hoping to revise the project through a renewed faith in liberal democratic values, as, for example, in scholarship by Wendy Brown, Costas Douzinas or David Kennedy. In Gender, Alterity and Human Rights: Freedom in a Fishbowl, Ratna Kapur also notes the uses, promises and limitations of the human rights project. However, rather than returning to the latter for answers to these limitations, Kapur goes further, seeking to think freedom through alternative registers beyond the bounds of the liberal legal fishbowl. The book is consequently essential reading for international lawyers, human rights lawyers and activists, and for critical thinkers across the disciplines, drawing on postcolonial, intersectional, feminist and queer theory, epistemologies of the global south and relationships between theory, activism and spirituality to provide a unique and in-depth analysis of the search for freedom beyond dominant systems of knowledge.

Much contemporary human rights scholarship can be seen as resting somewhere between a more doctrinal approach, seeking to use human rights law for social justice gains, and a more critical approach, which aims to understand what social justice outcomes are not seen by current human rights framings. Thus, while critical scholars note the ways in which human rights have become a powerful tool for governance with not always positive outcomes, people working more on the doctrinal side often hear this as a dismissal of their work and, in turn, dismiss critical perspectives for failing to offer practical solutions. While these two approaches tend to be set up in antithesis to one another, problematically equating, as Kapur states, ‘a liberal rights critique with pessimism, and a liberal rights deployment with optimism’, there are convergences as well as serious differences between them. Both, after all, want some form of social justice or freedom, to use Kapur’s terminology.

The fissure between these theories is often largest, however, at the ideological level. Terms such as freedom and justice are defined in very different ways by each, with more doctrinal approaches tending to define freedom and justice in liberal legal terms and more critical approaches seeking to define these terms beyond dominant liberal frames. Human rights lawyers and activists often demand answers to what they can do on the ground, but such answers, as Kapur’s book outlines with detail and nuance, are not always easily provided or are sometimes more complex than expected when one seeks to understand freedom beyond the liberal legal fishbowl. This, however, does not mean that critical approaches cannot also be affirmative.

Human rights law can, indeed, provide a moment of freedom or justice for many. But human rights law does not fundamentally challenge or, arguably, even seek to challenge structural injustices as created by colonialism and racism, patriarchy or capitalism. As Kapur notes, this has long been highlighted by feminist and postcolonial scholarship. Rather, human rights largely work within these systems of power and domination, often upholding such systems while offering ‘a potent form of seduction into a particular type of normativity and a specific mode of governance’; a form of what Lauren Berlant terms ‘cruel optimism’.

While human rights can and have been used for more transformational projects and while their impact does sometimes trickle out beyond the case at hand, human rights generally seek to address individual rights as isolated from broader power structures. There are, of course, some exceptions and some attempts to provide a more radical human rights-based approach. Nonetheless, the transformative project of human rights is often unclear, with the vast majority of human rights scholarship remaining tethered, as Kapur outlines, to a limited liberal account of freedom which reproduces the ‘neoliberal, wealth-producing, heteronormative, reproductive framework, as well as … [its] sexual, cultural, racial and religious prescriptions’.

On the other hand, critical approaches are much clearer in their transformative aims. For many critical scholars, such as Kapur, freedom must also be sought beyond the limits of the law. Freedom is not just about balancing people’s human rights against one another to provide liberal equality. Rather, freedom requires dismantling gender hierarchies, decolonising knowledge and power and challenging dominant epistemologies. Freedom cannot be sought within the neoliberal frame. Moreover, as Kapur uniquely adds, freedom is also about spirituality and about the search beyond anything the law can – at least as it is currently envisaged – comprehend. This does not, as Kapur notes, mean that the terrain gained by human rights advocacy should be surrendered, but, rather, that what is needed is ‘a more mindful and diligent approach’.

Gender, Alterity and Human Rights begins with an analysis of a few key examples of the inclusions and exclusions created by the human rights project, drawing on examples such as queer homonormativity (Chapter Two) and sexual security regimes (Chapter Three). In these analyses, Kapur focuses on the regulation of gender and sexuality, drawing on postcolonial, feminist and queer analyses to show that, while some have been slowly more included into the human rights frame, many are still very much excluded. One example Kapur discusses, in this vein, is the debate over the veil (Chapter Four). Many feminists have advocated for the legal banning of the veil, arguing that this piece of clothing is a symbol of women’s oppression. Cases then challenging legal bans have subsequently been brought to the European Court of Human Rights which has upheld such bans. (See Dakir v Belgium, 2017; Sahin v Turkey, 2005; S.A.S. v France, 2014.)

While, as noted, the bans are often articulated in terms of women’s rights, this perspective silences the many meanings of the veil. The veil is imposed on some but the veil is also worn by many by choice and, as Saba Mahmood’s Politics of Piety (2004) explores, can itself be a symbol of freedom. The veil legal cases and the wider debates on the veil and women’s human rights exemplify how human rights, despite claiming to be promoting the universal rights of all, include some and exclude others. These lines of inclusion and exclusion are, as Kapur notes, drawn in a way that is based around colonial and racist lines and the idea that Muslim women have no agency. ‘Muslims’, Kapur thus notes, ‘continue to be conceptualised as the embodiment of a threatening alterity, and always as incommensurable with the liberal values which are the substrate of human rights discourse’. Unveiling becomes a form of governance, excluding some from the universal humanity that human rights claim to promote, while forcing others to submit in order to be able to access the ‘freedom’ that human rights prescribes them.

Kapur does not deny that human rights have been used as an emancipatory tool for some but refuses to side-line the excluded in the name of those included, calling for those working in human rights to note these inclusions and exclusions and to challenge them. Yet Kapur’s project does not end here. Gender, Alterity and Human Rights also provides another layer of analysis which notes the inclusions and exclusions provided by the epistemological framing of human rights itself, questioning the ability of human rights to ever fully include, to ever be universal, let alone to provide freedom. While, arguably, human rights were never meant to provide ultimate freedom, they do claim universality and, as one of the most dominant discourses on social justice in the contemporary moment, human rights have come to be understood as the main frame of freedom in many parts of the world. This is problematic, working to exclude alternative perspectives. It is thus paramount that that which is not seen by human rights is made visible.

Kapur notes the difficulty of conceptualising freedom beyond the given terms ‘when we remain intractably constituted through a specific epistemological universe … [w]hen we are [and have been] so fully colonised into a specific way of thinking’. Parallels can be drawn here, as she acknowledges, with Judith Butler’s reflections on power in The Psychic Life of Power (1997), where, reading Foucault and others, Butler notes the cultural and political predicament of ‘how to take an oppositional relation to power that is, admittedly, implicated in the very power one opposes’.

This predicament is complex but many authors, including Kapur, offer varying ways out. Kapur sits here alongside authors such as Joan Wallach Scott who, in works including The Fantasy of Feminist History (2012), draws on psychoanalytic theory to identify a potential for radical change in fantasy. For Scott, while the concepts of the symbolic order ‘provide the language through which identities are formed, the unconscious foundations on which social practises are implemented … fantasy enables challenge and change’.

What brings these more hopeful critical voices together is a willingness to see beyond binary thinking. Such perspectives do not see structural forms of oppression as fixed, but rather focus on the power of the subject in fostering change. Butler’s solution, too, exemplifies this, noting how the fact that ‘agency is implicated in subordination is not the sign of a fatal self-contradiction’, but rather that such a reflection requires complex perspectives which note the subject’s implication within power as ‘neither fully determined by power nor fully determining of power’. Complexity is, in this respect, a positive source for change, noting and holding the contradictions together, being unafraid, in the words of Donna Haraway’s Cyborg Manifesto, of ‘contradictory standpoints’, searching beyond what is known while being attentive to the constraints of the now.

Kapur’s contribution draws similar lines of post-dualistic flight while also – in a similar vein to Scott – seeking an affirmative focus through affect and the politics of the everyday, highlighting the ‘relationship between the self’ and the ‘turn inwards’ as a way in which freedom can be sought beyond liberal registers. Kapur begins her journey into these non-liberal registers of freedom through a focus on Eve Kosofsky Sedgwick’s and Michel Foucault’s works on Mahayana Buddhism and the Shia Islam underpinnings of the Iranian revolution respectively (Chapter 6). Noting Sedgwick’s lamenting of the paranoia and the ultimate ‘intellectual finitude’ of critical theory, yet her love of deconstruction, Kapur discusses how she found an affirmative epistemology of non-dualism in Mahayana Buddhism. In a similar vein, Kapur discusses how Foucault, drawing on Shia Islam, turned away from the binaries underpinning the sovereign subject and the state (e.g. mind/body, public/private), looking instead towards ‘another political thought, another political imagination’ and noting the need for the transformation of the self. Kapur similarly draws on non-dualism and the turn to the self in her own exploration of freedom beyond the liberal fishbowl. Here, she looks primarily to the tradition of non-dualism found in the Indian philosophy of Advaita, which focuses on being and the self, seeing the self ‘as one not a fragmented whole – who ultimately is not defined by her labels or identities’. Freedom, from this perspective, is not a project to be sought elsewhere but necessitates self-inquiry.

Kapur’s turn to non-dualism and self-inquiry poses a radical challenge to the liberal frame of freedom provided by human rights. As Kapur notes, such a proposition calls on one to look inwards before seeking to ‘save’ others, noting the difficulty with being able to ‘theorise and/or even actualise freedom for others before we have successfully freed ourselves from our own deep conditioning, unmitigated phobias, discriminatory schemas and powerful sense of privilege and entitlement’. While this move could be seen as similar to and indeed has links with other critical human rights scholars, Kapur’s point is also much stronger, calling not just for further reflection before one acts but asking the actor to seek to understand freedom for themselves first, and subsequently to challenge the internalised normative frame of freedom offered by the liberal human rights project before seeking to save others.

Gender, Alterity and Human Rights ends with four examples of those who have sought freedom beyond liberal frames, exemplifying the inward journey required to truly seek freedom. Some of these stories, while requiring the reader to radically challenge their own thinking and assumptions around freedom, seem quite removed from human rights, so exemplifying the radical epistemic shift that Kapur calls for. For example, one such story is of Lalla, a fourteenth-century Kashmiri woman who renounced marriage and material life and wandered naked while undertaking a process of self-reflection and meditation through, in part, a turn to mystic poetry. Some examples, however, more easily pose challenges to human rights frameworks, such as the example of the legal battles around the Jain community’s practice of conscious fasting known as Santhara or Sullekhna. Kapur notes how this spiritual practice is ‘conscious and informed, grounded in the epistemological view shared by Hindus, Buddhists and Jains that the self/consciousness continues after it is released from the corporeal form’. Nonetheless, this practice has been ruled illegal in India, with parties having argued, first, that the practice is often used against ‘elderly women considered economically burdensome’ and, second, that the practise is in violation of the right to life (the act being likened to suicide, which was made criminal under Indian law by Christian British colonial rulers). As Kapur notes, such an understanding of the practise ignores ‘deeper philosophical aspects’. By ‘confining the issue within a rights paradigm’, the alternative registers of freedom sought through this practice are both silenced and denied.

Gender, Alterity and Human Rights is a bold book, unafraid to address the importance of the spiritual in an era where much critical scholarship either shies away from spirituality for fear of being deemed anti-secular or more actively and problematically takes secularism as an inherent underlying basis of good critical work. Further to this, Kapur requires her reader to reflect on their own perspective on life, to challenge their own understandings of freedom and to think on the self and what freedom means to that self. Ultimately, the book provides an affirmative way of thinking freedom at a time in global politics where it has become all too easy to collapse into negativity and nihilism.