renewal of the notion of the community

Submitted By:

Amr Abdel Rahman Ahmed.
           In anthropology the interest in the self has led to a renewal of the notion of the community, and of the interrelated ness of the two entities. Thus, the concern with the individual is also a concern with the community and with the world. Moral agency takes place within a shared space. According to Hastrup, in so fare as this is rule-governed, the rules are not primarily expressed in legal language, but in social practice.

The idea that to follow a rule you must either obey it blindly or be able to rationalize it completely, is related to an idea of a consciousness that is supremely monmoligical. In traditional modern epistemology, the view of the acting subject is one of a disengaged self, who is able to upon sound judgments on the basis of reason. This notion of the self is notion of a person who is primarily a mind that is a subject of reason and representation rather than an embodied agent. Accordingly all acts are equally monological and carried out on the basis of single person judgment. ….. In this view, any agent is capable not only of reasoning and controlling his or her act, including the tempering of derives, but also of ruling out irrational actions.

It is obvious that the existence of the other is excluded from the consideration of such a monological actions.

It is fallacy to see the rule as-represented – as the effective factor, but it is a common misunderstanding, because the representation is all we can see. The rule however is but an expression of a situated, embodied sense of what must be done. Representation s are abstracted from lived time and space , and to make them the ultimate cause of any thing , is to make actual practice in time and space merely derivative or simply an application of a disengaged scheme. The stone does not drop to the earth because of the gravity law, but because of that force which the law of gravity represents. Similarly written laws, including human rights law, that aim to universal audience will not push the world to change by them selves. But the values and the other themes of directive forces that are represented in the laws may do exactly that, provided they promote an understanding of a common good.

The rest of chapter II

The international human rights systems and the response to the cultural claims:

      It is interesting to notice that the category of cultural rights within the international regime of human rights has witnessed ongoing significant shifts in the course of the response to the claims of recognition by the different social groups. Indeed, in the context of the persistent seeking for a true universality by the different human rights bodies they tried to internalize the claims of cultural identities into its structure of conventions and charter that transcend the authority of any repressive regime that suppress the minority fundamental rights. So, first in the course of the political conflict under the authoritarian and nationalist regimes the category of minority has been arisen as an idiom for the ambiguous political; and economic claims in order to fit into the proposed categories by the international human rights instruments. Consequently these instruments by its turn tried to respond to those claims on its definite way, by codification. such codification which takes place through an over legalized idiom led to the transformation of the cultural right from a project of construction of the individuals in a world that respect the fundamental human rights to an essentialized static and a historical identity .

         In the universal declaration it is stated that

1: everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

2: everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

                                                                                       (UDHR, Article 27)

According to Hastrup, clearly it is the culture of the individuals that is of the concern of the declaration. and this point can be traced back to the idea of ‘culturation ‘ or building in early German humanism, as both the process by which the person become more knowledgeable and conversant with the expanding world , and the result of that process . The same vision of cultural person was dominant in the covenant on political and civil rights. It is stated that

1: the states parties to the present covenant recognize the right of everyone to

a)Take part in cultural life ;

b)      Enjoy the benefits of scientific progress and its applications;

c)Benefit from the protection of the moral and material interests     resulting from any scientific, literary or artistic production of which he is author.

2: the steps to be taken by the states parties to present covenant to achieve the full realization of this right shall include those necessary for the conversation, the development and the diffusion of science and culture.

3: the states parties to the present covenant undertake to respect the freedoms indispensable for scientific research and creative activity.

4: the states parties of the present covenant recognize the benefits derived from the encouragement and developments of international contracts and cooperation in the scientific and cultural fields.

                                                                                (ICESR, Article 15)

it is significant to notice that the cultural rights in both documents acquire a complementarily existence . In other words it is not mentioned as a fundamental and inalienable rights as such, they are seen mainly as instrumental to the social and economic rights, in that culture and education provide a Gateway to the fulfillment of other rights. Thus, being cultivated or educated is a means to participate creatively in society, to make optimal use of prosperity and resources in general, and thus to secure an adequate standards of living.

      This perception of the cultural rights as complementarily and functional has witnessed a notable shift as a result of the attempt to assimilate the different cultural claims in the body of the human rights instruments. This shift has many definite characteristics. The first one is the transformation of the nature of the cultural right form an individual right to a group one. In the main instrument that has just been sited the main influence the main influence is clearly on individual rights, as all other rights in the system. It is the individual right to enjoy the ‘culture ‘that is in focus, pointing to an almost touching humanist program. Obviously, cultural rights in this respect are not simply linked to education, of course, but cut across a number of other rights that relate to civil, economic, and political spheres. The general implication is clear, however: the state must protect the individual cultural rights. So far the cultural rights confirm the general ambition of the human rights system. The individualist nature of the cultural rights is supported by the very fact that the document that tackled the cultural claims was the covenant on civil and political rights which is concerned by organizing the relationship between the state and its citizens in the political realm. It is mentioned in article 27 that

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

                                                                                      (ICCPR, Article 27)

States are obliged to guarantee the basic rights of persons who belong to certain groups. Those rights are not derived from such a membership; they are derived from the fact of being human. another reading of the same article may be that persons shouldn’t denied the accessibility of enjoying their rights that are mentioned , defined and organized by this convention due to their affiliation of a particular social group. The state obligation here is formulated in a negative nature and is derived from the border lines of the principles of non-discrimination. However, a striking shift has been taking part all over the last 2 decades in the human rights regimes towards the emergence of the cultural rights as merely one of the group rights that should be protected by the state and the international instruments.  Ironically , the new category of cultural rights started to acquire an essential capacity that are acquired by the other well defined rights like the right to life or freedom of expression which are well known as the first generation rights . in the declaration on minorities for example culture figures as well bounded whole of which one is a part , and as an essence off identity and belonging. This essentialization of culture  is actually what anthropologists have left behind and replaced with a more dynamic view of cultures as always in the making , and therefore simply a more or less temporary framework of understanding and moral agency. It is stated in the declaration on minorities that:

States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.

                                                               (Declaration on minorities, Article 1)

       in the course of analyzing the main causes that lie behind this radical transformation from individual/supplementary rights to group/fundamental rights ,hastrup argues that the increasing appeal to cultural rights in the human rights system is related to several issues,

It is a feature of globalization, which has co-produced an awareness of distinction and an increasing emphasis on the culture as difference. Another reason for its pertinence is related to the historical fact that most conflicts today are so-called ethnic conflicts in contrast to earlier inter-state wars. At closer inspection these ethnic conflicts are often rooted in economic discrimination or unequal distribution of sacred resources. … Ethnicity can be considered as a banner under which new goals can be set. It is a characteristic of ethnic conflict that that take place within states that are no longer perceived in terms of nation-state, and they raise endless new questions of how to define peoples minorities and indigenous people that are (or are perceived to be) subject to discrimination collectively, and beneficiaries of particular rights within the ever expanding human rights system. (Hastrup)

Limits and ambiguities:

Casting minority as a moral and legal category in need of special protection entails the view of minorities as victims of majority strategies of assimilation and suppression. While it is often the case, it leaves out any notion of different kind of relationship between majority and minority, and it fails to address the internal dynamics and individual differentiation within the minority itself.

        The instruments dealing with the collective cultural rights not only refer to culture as essence but do so recurrently by emphasizing people’s own culture , implying a relationship of possession. It is therefore little to be wondered that cultural rights became mentally (and to a certain extent, legally) linked up with prosperity rights. In the case of indigenous people in particular, their rights have been framed by a quest fro protection of their intellectual property rights. In other words the more recent note of culture as a property implies an association of groups with particular objects, material and intellectual, and the associated right is the right to protect the cultural property, the heritage. The link between representing cultural right as a possession and the representation the human rights in general as entitlement, is obvious. The politics of redistribution that might be seen as inherent in the first notion has given way to a politics of recognition stressing distinctions and accommodation of cultures. The theoretical or anthropological problem here is that cultures are conceived as akin to species, which may be destroyed if not explicitly protected.

          The main tyranny of the notion of the cultural rights are derived from the possibility of its contradiction with the basic ambition of the human rights project it self which is constructing a new model of a universal human being.  In terms of Hastrup

If the original documents operate on the basis of inclusion into an all-embracing  family of humans ,the more specific documents of later years aiming at accommodating particular regions, religious communities or other groups( and more of them are asking for their own conventions ,e.g. sexual minorities), have become exclusive . This seems to be the case also to Cairo declaration on human rights in Islam and the Arab charter on human rights. The point is that granting rights to particular groups on the basis of their distinction introduces an element of exclusion that potentially subverts the principle of equality.

To conclude, what is stake here is not so much the respect for diversity as it is the transformation of multiple diversities into the unifying genre of the human rights discourse. The moral and political complexities inherent in this are not simply reducible to the legal genre. At court, the complexities can be dealt with in more subtle ways than the texts themselves suggest, but as guidelines for social and political action, rights alone will not do. Human rights cannot trump culture in this way. tion ‘ or building in early German humanism, as both the process by which the person become more knowledgeable and conversant with the expanding world , and the result of that process . The same vision of cultural person was dominant in the covenant on political and civil rights. It is stated that

1: the states parties to the present covenant recognize the right of everyone to

d)      Take part in cultural life ;

e)Enjoy the benefits of scientific progress and its applications;

f)  Benefit from the protection of the moral and material interests     resulting from any scientific, literary or artistic production of which he is author.

2: the steps to be taken by the states parties to present covenant to achieve the full realization of this right shall include those necessary for the conversation, the development and the diffusion of science and culture.

3: the states parties to the present covenant undertake to respect the freedoms indispensable for scientific research and creative activity.

4: the states parties of the present covenant recognize the benefits derived from the encouragement and developments of international contracts and cooperation in the scientific and cultural fields.

                                                                                (ICESR, Article 15)

it is significant to notice that the cultural rights in both documents acquire a complementarily existence . In other words it is not mentioned as a fundamental and inalienable rights as such, they are seen mainly as instrumental to the social and economic rights, in that culture and education provide a Gateway to the fulfillment of other rights. Thus, being cultivated or educated is a means to participate creatively in society, to make optimal use of prosperity and resources in general, and thus to secure an adequate standards of living.

      This perception of the cultural rights as complementarily and functional has witnessed a notable shift as a result of the attempt to assimilate the different cultural claims in the body of the human rights instruments. This shift has many definite characteristics. The first one is the transformation of the nature of the cultural right form an individual right to a group one. In the main instrument that has just been sited the main influence the main influence is clearly on individual rights, as all other rights in the system. It is the individual right to enjoy the ‘culture ‘that is in focus, pointing to an almost touching humanist program. Obviously, cultural rights in this respect are not simply linked to education, of course, but cut across a number of other rights that relate to civil, economic, and political spheres. The general implication is clear, however: the state must protect the individual cultural rights. So far the cultural rights confirm the general ambition of the human rights system. The individualist nature of the cultural rights is supported by the very fact that the document that tackled the cultural claims was the covenant on civil and political rights which is concerned by organizing the relationship between the state and its citizens in the political realm. It is mentioned in article 27 that

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

                                                                                      (ICCPR, Article 27)

States are obliged to guarantee the basic rights of persons who belong to certain groups. Those rights are not derived from such a membership; they are derived from the fact of being human. another reading of the same article may be that persons shouldn’t denied the accessibility of enjoying their rights that are mentioned , defined and organized by this convention due to their affiliation of a particular social group. The state obligation here is formulated in a negative nature and is derived from the border lines of the principles of non-discrimination. However, a striking shift has been taking part all over the last 2 decades in the human rights regimes towards the emergence of the cultural rights as merely one of the group rights that should be protected by the state and the international instruments.  Ironically , the new category of cultural rights started to acquire an essential capacity that are acquired by the other well defined rights like the right to life or freedom of expression which are well known as the first generation rights . in the declaration on minorities for example culture figures as well bounded whole of which one is a part , and as an essence off identity and belonging. This essentialization of culture  is actually what anthropologists have left behind and replaced with a more dynamic view of cultures as always in the making , and therefore simply a more or less temporary framework of understanding and moral agency. It is stated in the declaration on minorities that:

States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity.

                                                               (Declaration on minorities, Article 1)

       in the course of analyzing the main causes that lie behind this radical transformation from individual/supplementary rights to group/fundamental rights ,hastrup argues that the increasing appeal to cultural rights in the human rights system is related to several issues,

It is a feature of globalization, which has co-produced an awareness of distinction and an increasing emphasis on the culture as difference. Another reason for its pertinence is related to the historical fact that most conflicts today are so-called ethnic conflicts in contrast to earlier inter-state wars. At closer inspection these ethnic conflicts are often rooted in economic discrimination or unequal distribution of sacred resources. … Ethnicity can be considered as a banner under which new goals can be set. It is a characteristic of ethnic conflict that that take place within states that are no longer perceived in terms of nation-state, and they raise endless new questions of how to define peoples minorities and indigenous people that are (or are perceived to be) subject to discrimination collectively, and beneficiaries of particular rights within the ever expanding human rights system. (Hastrup)

Limits and ambiguities:

Casting minority as a moral and legal category in need of special protection entails the view of minorities as victims of majority strategies of assimilation and suppression. While it is often the case, it leaves out any notion of different kind of relationship between majority and minority, and it fails to address the internal dynamics and individual differentiation within the minority itself.

        The instruments dealing with the collective cultural rights not only refer to culture as essence but do so recurrently by emphasizing people’s own culture , implying a relationship of possession. It is therefore little to be wondered that cultural rights became mentally (and to a certain extent, legally) linked up with prosperity rights. In the case of indigenous people in particular, their rights have been framed by a quest fro protection of their intellectual property rights. In other words the more recent note of culture as a property implies an association of groups with particular objects, material and intellectual, and the associated right is the right to protect the cultural property, the heritage. The link between representing cultural right as a possession and the representation the human rights in general as entitlement, is obvious. The politics of redistribution that might be seen as inherent in the first notion has given way to a politics of recognition stressing distinctions and accommodation of cultures. The theoretical or anthropological problem here is that cultures are conceived as akin to species, which may be destroyed if not explicitly protected.

          The main tyranny of the notion of the cultural rights are derived from the possibility of its contradiction with the basic ambition of the human rights project it self which is constructing a new model of a universal human being.  In terms of Hastrup

If the original documents operate on the basis of inclusion into an all-embracing  family of humans ,the more specific documents of later years aiming at accommodating particular regions, religious communities or other groups( and more of them are asking for their own conventions ,e.g. sexual minorities), have become exclusive . This seems to be the case also to Cairo declaration on human rights in Islam and the Arab charter on human rights. The point is that granting rights to particular groups on the basis of their distinction introduces an element of exclusion that potentially subverts the principle of equality.

To conclude, what is stake here is not so much the respect for diversity as it is the transformation of multiple diversities into the unifying genre of the human rights discourse. The moral and political complexities inherent in this are not simply reducible to the legal genre. At court, the complexities can be dealt with in more subtle ways than the texts themselves suggest, but as guidelines for social and political action, rights alone will not do. Human rights cannot trump culture in this way.

The emergence of cultural rights as a strategy:

Minoritiazation here draws on an older discourse of Macedonian nationalism, borrowing its symbols and its narratives of illicit occupation and anti colonial struggle. But it also draws on the human rights discourse, constructing minority hood via unjustly denied rights and recognition. The reformulation involves two related processes : first , a process of reduction in which the diversity , fluidity and ambiguity of cultural forms , practices and meanings are simultaneously fixed and transfigured ; second , a process of extension , in which the authoritative version is reprojected onto , or claimed for , the population as a whole .

     The politics of the formulation of the Macedonian minority is considered a very illustrative example in the course of the study of the generative capacities of the legal discourse. It represent an ideal example about the decisive role that the legal representation may play to transform the culture from a project has a futuristic and constructive horizons to a heritage that is formed allover the history and should be preserved ;in other words the concept of culture acquired the very nature of the concept of right which is the entitlement ,the possession and the property and has lost the characteristics of the universalistic utopian project which was characterizing it all over the 19^th and 20^th centuries to degenerate to a regressive backward one that reserve the status quo and plays a significant role in suppressing the subjectivities of the lay people who are the very resaone d’etre to its existence.

     In their public statements in human rights for a , on their websites , and in their local publications, a wide spectrum of local and Diaspora Macedonian human rights organizations , along with many national and international NGOs that support them, define the contours of the Macedonian minority . It is conceived as a community of sufferers whose members are persecuted merely because they fit within the Greece’s ideology of ethnic homogeneity. Seeking to challenge the state ideology of ethnic purity, the movement offered another alternative which is hardly less totalizing. In order to make their argument persuasive, they must impose unity and suppress differences within population they claim to represent: hence they have asserted singularity through a common name (Macedonians) and through a common language (Macedonian), and they have tried to transform minority from a stigmatized to a valorized and politically useful term of identity. They have claimed a common history, creating narratives that ignore or flatten out difference in the identities and affiliations within this population and present a monolithic account of assimilation processes. They have presented Greek policy as continuous through time. Their accounts are typically rendered in a language of oppressive state and innocent victims, brutal assimilation, forced nationalization, memoricide.

     The claims made by the Macedonian human rights movement, are articulated largely as ‘rights to culture’ – the rights to use group’s language, true name, the right to dance its dances. The movement’s calls for the affirmation of these cultural forms have undeniably struck a shored within the wider community, especially a widespread desire for the recognition of the legitimacy of the language, after decades of denigration. It has won some supporters, particularly in the western Macedonian region. It has, moreover, prompted a reconsideration of the meaning of being Macedonian.

      This is the central ambiguity of a minority rights discourse: that it must deny ambiguity of and fix difference, in the realm of identity, and of cultural practice, in defense of distinct cultures. Recognition of one’s culture is increasingly constructed and consequently increasingly experienced as a deep primordial human need, as well as an inalienable right, one whose denial brings both suffering and indignation.

       The emergence of the movement in this particular moment reflects developments in dispersed local and very different social and institutional arenas which are nonetheless profoundly interconnected and mutually implicating within the global framework of rights processes. Cowan briefly specify four developments of the past fifteen years which played a crucial rule in the emitting of the movement. First, The expression of political and economic claims in the idiom of the ethnicity, especially in the north western Greek Macedonia led to an intensification in the salience of the ethnicity and an incipient mobilization around the ethnic claims. Second the Macedonian Diaspora, particularly in Canada and Australia, became increasingly mobilized around the issues of language and culture, partly under the influence of those countries’ multiculturalism. They set-up human rights committee, which offered moral and material support to relatives and compatriots in Greece. Third, and the most important in the course of our study, both international and European legal arenas began to expand the space for cultural claims and to strengthen mechanisms for protecting and promoting the endangered cultures and minorities. Finally the outlook of war in Yugoslavia in 1991, followed by the establishment of the old republic of Macedonia as a new state and diplomatic battle over the name, propelled the movement into international limelight. In complicated ways, this (newly contextualized) visibility altered perceptions of its activities, both at home and internationally, and opened avenues for strategic actions.

    Such a distinction urges a further examination to the 2 different approaches to the social contract theory which formed the very bases of the revolutionary ideas in the both countries and the significant role that has been played by the legal positivist doctrines in the foundation of the actual human rights systems. In this respect a brief presentation of Lock's argument about the social contract theory is inevitable.

      The centerpiece of the lock's second treaties of the government was the chapter on property when he represented his famous account of the origin individual ownership in an imaginary state of nature." God gave the world to men in common. In the state of nature no one originally had dominion over the plants, animals and lands to the exclusion of others. Yet, even then lock stressed that there was property ' for every man has a property in his own person and in the labor of his body ,and the work of his hand" when a man mixed his labor with something by removing it from its natural state , lock argued , he thereby made it acorn ,or apple ,or fish, or deer, his property" at least where there is enough and as good left in common for others " the same was true , lock argued for appropriation of land by tilling , planting ,and cultivating.

     Lock did not give any supporting reason for his decision to characterize one's interest in one's own person in terms of ownership .he seems to have expected from his reader to accept without question the proprietorship of one's body was a god given right , as natural as breathing . after his demonstration that the individuals property rights were anterior to government, lock went on to his next proposition, namely, that the essential reason human being submit to government is to safeguard their property " in a move that was to have great significance for Americans he announced tat he would use the word property to designate, collectively, "lives, liberties and estates". According to lock the preservation of property is the great and chief end for which men come together into commonwealths.

      No political philosopher from the continental branch of the enlightenments accorded such a high place for the property. Indeed, as Rousseau imagined the human being in the state of nature they had "neither houses, nor huts, nor any kind of property"

      According to glendon, lock's aim was to present a persuasive argument to legitimate the transition from unfettered royal power to constitutional monarchy. as an advocate lock knew the case against the divine right of kings would be strengthened if he could persuasively establish that there are natural rights exist prior to and independent of the sovereign state in the agrarian society of seventeenth century England and , property was the most appealing candidate for such a right. Lock's inspired choice for property served simultaneously to delegitimate the monarchy as it then existed, and to butters the political powers of both the landed gentry and the rising merchant classes. Property was the linchpin in his foundation for government based on consent. The history of these rights can be traced back to the alleged customs Saxons forebears and a long list of statutory instruments that conventionally begins with the Magana Carta of 1215.

      The metaphor of property played a dual role in the human rights thought. The first one which has been just presented is using the notion of property right to constitute a government that is based on consent and its main mission is to safeguard the main rights and freedoms of the people. The second one is to rearrange the field of the rights talk in the vocabulary of the possession. Since the property is fashioned as the founding natural right and the source of the other fundamental rights the rest of the human rights regime body such as the right to life has been translated in terms of possession or in the modern rights talk an entitlement.

       In spite of the clear contradiction between the both tradition and historical paths took part on equal footing in shaping the actual human rights regime. Both of the two great traditions have a potential absolution of the notion of rights. In Dowrkin's famous formulation, rights are often seen as trumps –cards which automatically win-that are, as considerations overriding all other considerations. It is easy to see how, on this account; rights could exist in opposition with the common good. Indeed, the very point of having rights, according to rights theorists, is precisely to be protected from someone else's notion of the common good. Rights absolutists may reject the notion n that there could be a concept of the common good. Moreover, whether being naturalist or positivist, one can find support for his argument in the human rights document themselves. According to Hastrup, while the articles generally tend to stress the aspect of positive law, the preambles more often than not provide the philosophical or moral underpinning of these. For example it is addressed in the universal declaration that

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscious and should act towards one another in a spirit of brotherhood. (UDHR, Article 1)

This well known article points top a transcendental human nature expressed in terms of in terms of social values that are naturalized.

    If human rights are held universally- that is, equally and by all-one might imagine that they are hold universally against all other individuals and groups. Indeed, it is not the dominant contemporary international understanding. Human rights although held equally by all human beings are held with respect to and exercised against the sovereign territorial state. The covenants and other international treaties establish rights for all individuals. The obligations they create, however, are only for the state. And states have human rights international obligation only for their nationals (and foreign national in their territories or otherwise subject to their jurisdiction or control).  Contemporary international and regional human rights regimes are supervisory mechanisms that monitor the relationship between states and citizens. They are not alternatives to fundamentally statist conception of human rights.

      The centrality of the states in the contemporary construction of human rights is also     clear in the substance of universally recognized human rights. Some, most notably rights of political participation, are typically restricted to citizens. Other rights apply only to residents. For example, states have international human rights obligation to provide education and social insurance only to its residents. The remaining internationally human rights such as freedom of speech and protection against torture, apply to foreign nationals only while they are subjects to the jurisdiction of the state.                         Foreign states simply have no internationally recognized human rights obligation to protect foreign nationals abroad from, for example, torture. They are not even at liberty to use more than per5suasive ways on behalf of torture victims. Current norms of state sovereignty still prohibit states from acting coercively abroad to remedy torture and most other violations of human rights.

         This focus on state -citizen relationship is also embedded in the daily language. A person beaten by the police has her human rights violated but it is an ordinary crime, not human rights violation, to receive an identical beating at the hands of a thief or a neighbor. In addition, internationally human rights violations are distinguished from war crimes. Even when comparable suffering is inflicted on innocent civilians, we draw a shape categorical distinction based on whether the perpetrator is one's own or a foreign government.

      The state, precisely because of tits dominance in the contemporary international relations, is the central institution available for effectively implementing internationally recognized human rights. 'Failed states', such as Somalia, suggest that one of the few things as frightening in the contemporary world as an effectively repressive state is no state at all. Human rights are thus not only concerned with preventing state-based wrongs. They also require the state to provide certain goods, services and opportunities. There are many examples about the positive role of the state with respect to the implementation of the essential rights and freedoms. Although it is very obvious in the realm of the economic and social rights, such a role is present vis- a-vis  many political and civil rights. For example, the effective implementation of the right of non- discrimination often requires extensive positive actions to realize the underlying value of equality. Furthermore, rights that guarantee political participation are nor merely instrumentally valuable in controlling the state, but good in themselves. The state is required not merely to refrain from certain harmful, or even destructive, actions, but to create a political environment that foster the development of active, engaged and autonomous citizens.

      The end of cold war has brought many challenges to the prolonged existed regime of human rights that may undermine the prominent role of the sovereign state. Donnelly summarizes these challenges as follows .first, existing multilateral procedures are being used vigorously and with greater impartiality. In bilateral relations, human rights in most countries continue to become a more deeply entrenched and less controversial foreign policy concern. In addition, non governmental organizations and human rights advocate have become a significant part of the political landscape in a growing number of third world countries and the former soviet block.

     Perhaps the most dramat5ic development was the response to the crime of genocide. During the cold war era, genocides in places like Burundi, East Pakistan, Cambodia and Uganda, were met by verbal expression of concern, but little concrete actions (except by neighboring states –India Vietnam and Tanzania with a strong selfish interest in the intervention). However, the international tribunals of former Yugoslavia and Rwanda, created in 1991 and 1994, have revived the long –dormant Nuremberg precedent. Further more, the general assembly's decision to establish a permanent international tribunal that followed by Rome treaty to establish the international criminal court, suggests a deeper normative transformation. Genocides, it appears, has finally become considered truly intolerable by the international community.

     Another normative deepening is suggested by the growing penetration of human rights in other areas of international concern. The most striking one, according to Donnelly, is the explicit incorporation of human rights concerns into multilateral peacekeeping operations.

In response to these arguments Donnelly proposes two main arguments that support his point of view about the statist nature of the international human rights regime.

     First , with respect to the integration of the human rights concerns in the work of peace keeping missions ,Donnelly argues that because most of these cases arose in the context of ending internationalized civil wars ,they do not provide a precedent for the UN action in the absence of peace and security mandate. In addition, most of those missions rested either ion the consent of the authorities of the state in question ort the near complete collapse of the civil authority. Only in Iraq, which is a very special case, and in Haiti, a questionable precedent because of the American hegemony was there a substantially coercive element directed against an established, functioning governments.

       Then he argues that willingness to act in response to genocides , the collapse of civil order , or a brokered invitation does not obviously translate into willingness to take similar actions in response to human rights violations that are less sever than genocides ,or even when a genocidal government maintain considerable control over its territories. In addition, cases such as China, Cuba, Zaire and Burma suggest that recalcitrant states can effectively assert their sovereign rights to engage in gross and persistent systematic violations of internationally recognized human rights. Furthermore, more ordinary or less spectacular patterns human rights violations still provoke remarkably modest international responses. In fact, the dramatic demise of many of the most brutal regimes seems to have, at least partially , obscured the public awareness of the interest in the persisting serious of human rights problems in numerous liberalized but by no means democratized countries.

     At the end Donnelly concludes that, looking at these changes in the post cold war era, from a broad systematic perspective, the progress of recent years appears real but very incremental and only on the fringes. The international community has become willing to respond to gross human rights violation in greater number of instances. A decision seems to have been reached that genocides are no longer be tolerated. but in situation of ordinary, even sever violations , of human rights short of genocide by government with some capacity to rule , we still lack not only the authority for but the rudimentary beginning of practice of coercive international actions on behalf of internationally recognized human rights.

    Drawing on the work of the American jurist Hohfold, Fennis tries to explicate the meaning of right as formulated and being understood and exchanged by the wide range of lawyers and people who are involved in the juridical disciplines and activities. The fundamental postulates of his system are: 1) all assertions or ascriptions of rights can be reduced without remainder to ascription of one or some combinations of the following four rights: (a) 'claim-right'( called by Hohfeld 'right stricto sensu') ,(b) ' liberty' ( called by hohfeld ' privilege') , (c) 'power' , and , (d) 'immunity' ; and 2) that to assert a Hohfeledian right is to assert a three term relationship between one person , one act –description and one other person . these two postulates , for Fennis, supplemented  by a vocabulary partly in current use and partly devised 'ad hoc' generate the following logical relationship ( where A and B signify persons, natural or legal , and ǿ stands  for an act description signifying some act:)

1)      A has a claim-right that B should ǿ, if and only if A has a duty to A to ǿ.

2)      B ahs a liberty (relative to A) to ǿ, if and only if A has no-claim right (' a no-right') that B should not ǿ.

3)      B has a liberty (relative to A) not to ǿ, if and only if A has no-claim-right ('a no-right') that B should ǿ.

4)      A has a power (relative to B) to ǿ, if and only if B has a liberty to have his legal position changed by A's ǿ-ing.

5)      B has an immunity (relative to A's ǿ -ing), if and only if A has no power (i.e. a disability) to change B's legal position by ǿ-ing.

The denials of moeal agency and imposing constraints by the lawyers and judges on the human subjectivity through the way of representing the violation of rights have many political implications. These implications by their turns should be examined in the context of the triple relationship between the holder of rights, the nation state and the modern legal system. As we pointed out the construction of the self in the course of the bourgeoisie revolution led to vesting human rights in individual who are existed out side and prior to the political realm. This approach has many implications. According to Koskenniemi, this relation has three main impacts.

    One is the entrenchment of the idea of politics as already constrained by a nonpolitical vision of the good society understood as sum of total of individual rights that exists in a co-terminus relationship to each other. This is the core sense of liberal naturalism; the view that rights are exists out side the political society and is then brought inside by the legislation. Politics are thereby reduced to the declaration of truths already established elsewhere and the realization of a society already in a virtual existence. As politics lose their creative and imaginative character, they are transformed from their core sense as human vita active into an existence of technical competence by experts. Exit from the tragedy of incompatible and contested goods is bought at the expense of the bureaucratization of politics into balancing or the search of aggregate utility –paradoxically is the outcome of the rights discourse originally sought to combat.

    Secondly, it has been argued through this chapter that rights are individualistic. For rights discourse the individual is separable, unitary entity that has values or interests and thus rights, only as external attributes to itself but whose identity is not formed by them. Yet it is not clear of a distinction can be made between the self and the values and interests that it carries. But the rhetoric of tights fails to incorporate the reality where our individual selves are also products of the contexts in which we live. Therefore, thinking of politics in terms of rights is unable to reach the process in which the interests of the individuals and the individuality are formed, omitting the question whether having such rights and interests is good in the first place. Moreover, rights individualism loses a creative conception of the political, reducing citizenship to passive reliance on rights and political decision -making to an oscillation between individuals ethics and economics. No idea of civic virtue or political participation can be sustained through insistence on the priority of the rights over the good.

    Law in one way or another is one of the possible options to mediate between facts and norms or between what is and what is "ought to be". as this is/ought to be ,Sien/Sollen problem, this issues and all issues it breeds has been  a staple of western philosophy since Kant and Hume at least; and in jurisprudence any debate about natural law ,policy since or positive legtimation tends to make it the crux of cruxes .but it appears as well in the form of quite specific concerns expressed in the practical discourse of both law and anthropology : in the first case , in connection with the relation between the evidentiary dimensions of adjudication and the monistic , what happened and was it lawful . Geertz conclude that the skeltoniazation of fact so as to narrow moral issues to they point where determinate rules can be employed is the defining feature of the legal discourse. It is fact/rule oriented .the main concern of it is to squeeze the complicated story to its main element in order to find out the fact that fit to a settle rule and categories such as the penal categories such as thief, fraud; moral categories such as honesty and dishonesty. This general judgment needs more illustration through empirical examples. Through this ambition to construct the fact that can be understood by the body of legal rules the main developments of the western jurisprudence has taken place with accordance to two main concepts. The first one is the judgment. Judgment refers to the phenomena that sort's wrong form rights according to specific rule. The second process is the proof. The proof refers to the methods that sort real from unreal. It refers to the explication of the judgment from the fact.

      The law of evidence places sustainable restrictions on the court rooms testimonies, and that accounts given in courts would necessarily differ from those given in other contexts by examining instances in which evidently constraints were placed on witnesses' accounts, we would be able to make a useful interference about how witnesses would structure their accounts in the absence in such strains. According to xy, lay witnesses come to courts with a repertoire of narratives conventions that are always frustrated, directly or indirectly, by the operation of the law of evidence. Consider for example the following constraints that are imposed by the law of evidence on witnesses' accounts in the most American courts.

1. A witness may not ordinary repeat what other persons have said abourt the events being reported ;
2. A witness may not speculate about how the situations and events being reported may have appeared to other people or form other perspective ;
3. A witness may not comment on his or her reactions to ,or feelings and beliefs about , events being reported;
4. In responding to a question , a witness ordinarily may not disagree from the subject of the question to introduce information that he or she believes critical as a preface or qualification;
5. A witness may not normally incorporate into his or her account any suppositions about the state of mind of the persons involved in the events being reported ;
6. Value judgments or opinions by lay witnesses are generally disfavored;
7. Emphasis through repletion id restricted;
8. Substantive information should not be conveyed through gestures alone ;and
9. Wittiness is generally forbidden from making observations about the questions asked or to comment on the process of testifying itself.

    The law of evidence is in one sense epistemological: it imposes on witnesses accounts of the laws views on what constitutes a fact and what source of information are reliable .the previous texts demonstrate that witnesses come to courts with their own epistemological assumptions, and that these assumptions are often in conflict with the ones embodied in the law of evidence.

      Both litigant and witnesses adopt a relational/interpretative based approach to the case that try to locate its wider social context and intervene in formulating it by their comment, interpretations and opinions. Such an approach is suppressed by both lawyers and judges who represent the law's tendency which is fact/rule based one.        

        By locating the last interrelated processes of imagining the real and constructing the facts in its wider social contexts we can reach some key features of the legal language that are going to be the main subjects of criticisms in the coming parts of the thesis .

·        Objectificating and reifying: it ids obvious that the legal language excludes the moral, emotional and relational aspects of the litigants narratives. Through reducing the narratives of the litigants to its main elements that can be understood and assessed by the legal rules that are represented as explicit to these experiences decontextualize the fundamental moral issue that lays in the heart of the litigants' claims, such as their views justice, honesty and honor.

·        Self referential "elitist and statist one": the previous settled rules by its turn are interpreted, revised and formulated by the work of judges whose role, as we pointed out before, is to decide what the law is by interpreting the work of the other judges. Therefore this language figure as self referential that excludes any possible contribution by the lay people in formulating the legal rules.

·        Individualistic language: such a tendency tat is inherent in the very nature of the fact/rule oriented legal language to strip the fact from it relational aspects leads on the long range to the appearance of the individual as the main and fundamental subject of the discourse. The individual figures in such rules and penal categories as a universal entity that acquires definite features that precedes his category as a person or a member in a social and cultural group. Paradoxically this individualistic approach is combined by imposing many constraints on the subjectivity of those transcendental individuals that are derived from the law of evidence or the different technicalities and arrangements of the court rooms. This imposition is interilaized and incorporated into the experience of the social agents. In other words it became one of the by which ordinary people perceive their experience and reconstruct it.

These features would have the most of importance I the course of the debate on the representation of human rights violations and the position of moral agency in such a representation. These issues are going to be tackled in the next part of this chapter.