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LGD 2000 (1) - Peter Fitzpatrick


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Globalisation and
the Humanity of Rights

Professor Peter Fitzpatrick
School of Law, Birbeck College, London
peter.fitzpatrick@clickvision.co.uk
 

Abstract

In marked contrast to its self-presentation and theorisations, globalisation is shown to be constituted in a sharp and enduring division of the peoples of the world. Human rights, that seemingly most inclusive and most 'globalised' of artefacts, is itself shown to be constituted and sustained in that same division. With that division, globalisation and human rights operate as a national extraversion and as a neo-imperialism, yet they also operate in quite a different register. Globalism asserts an existent factuality in itself. It is the consummate achieving of the social, of 'global society'. As such, it allows of a direct claim on the global and the 'human' of human rights. Such claims can be made without the mediation and constriction of nation or imperium. Globalism and human rights, in short, are set in a particularity of exclusion, yet they would offer a palpable place for the universally inclusive. The hope denied in the first condition is enlivened by the second.

Keywords: Globalisation, globalisation theory, human rights, nationalism, particularism, universalism.


This is a Refereed Article published on 21 December 2000.

Citation: Fitzpatrick P, 'Globalisation and the Humanity of Rights', 2000 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2000-1/fitzpatrick.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/fitzpatrick/>



1. Introduction

There are aptly persistent academic conversations which would have it that all our doings have been done and that globalisation specifically is not to do with a new-created world but, rather, with a continuing imperialism writ somewhat large, even if now an 'imperialism without colonies' (cf. Magdoff, 1972). This paper recasts that assessment in a way which accommodates globalisation as a 'globalised nationalism' (Douzinas, 2000, p 212). In so doing, the paper follows a muted trajectory in globalisation theory itself. Such theory, in blunt outline, would distinguish itself from plain universalism because it emphasises the 'local' in a way which does not reduce it to being an instance of the global but, rather, accords it some distinctness (Robertson, 1987, p 22). It would want to differentiate yet integrate the 'global' and the local. But globalisation theory resiles from this challenging aspiration and seeks to divert it into varieties of universalist assertion. Although such assertion in the setting of globalisation theory may not explicitly trumpet imperial and nationalist arrogations, it does rely upon, refine and claim to give an universalist voice to them.

The arbitrary and uneasy way in which globalisation theory arrives at some encompassing universalist assertion does indicate, however, that a limit has been reached. It is as if, having recognised, to an extent that the particular or the local is integral to it, this version of modern universalism is now somehow perceived as incapable of (re)absorbing them in its own terms. The margins have escaped. Put in another perspective, the universal seems now to lack a widely accepted language in which the return of the particular or of the local could be demanded. Even though there are many languages making such demands - explicitly in systems theories and revivals of modernisation, and implicitly in discoveries of yet another end of history and of the 'fact' of 'globality' - the restlessness and the very diversity of these languages are redolent of a limit, a terminus.

With this intriguingly unruly end, we confront a terminal legality. The adherents of 'global law' introduce a type of legality in which law's intrinsic reliance on a place of determination, such as nation, is denied. Law thence becomes truly, transcendently global. It assumes a free-floating efficacy which matches the quality of 'deterritorialisation' claimed for globalisation. And law does seem to arrive at an apotheosis with globalisation, and seems to be at one with globalisation's most rarefied reaches. Yet this law remains an occidental and national creation, one which rejects the invitation to deliquesce and insists on its founding ground and in so doing endows the vacuity of globalisation with content. Like globalisation itself, a supposedly deracinated global law relies on and gives voice to imperial and nationalist arrogations. To reveal as much about global law, and about globalisation, is not simply to demystify them, to show them to be just as territorial and local as the entities against and over which they set themselves. It is also to indicate a 'space' of the universal which globalisation and global law seek to occupy terminally, but which can never be brought to any end. Seen in such terms, this space becomes one which can be occupied in quite other, liberatory ways. It is in globalisation's supreme legal artefact, in human rights, that these issues will be instanced and explored here.

A note about terminology. Appropriately enough for a 'global' discourse placing itself at an extremity of claims about the world, it is often difficult to tell whether it is meant to describe a state of affairs or to be a more distanced theorising about such a state (cf. Robertson, 1995, p 41). When description seems to be involved, the term used here will be 'globalisation'. When theory seems uppermost, the standard term 'globalisation theory' will be employed, and the term 'globalism' will be used to encompass both.

2. Making Global

As well as the contending diversity of universalisms, there are intimations of an ending, of a not going anywhere else, in the plain repetitiveness of pronouncements on globalisation[1]. Both diversity and repetition are accentuated in the wide range of official and academic discourses in which globalisation now has a hold (cf. Silbey, 1997). With its theorists being unable to locate a singular universal content for globalisation, depictions of it resort to the list. That is, the effort positively to locate claims to the universal produces the list which enumerates specific qualities whilst intimating an idea of a universal whole still going beyond and ultimately encompassing them. Apart from the tautologous - the global being simply affirmed as global - that whole is not given its own content.

To 'cover' these specific qualities, I will simply refer to the briefest and yet most compendious of lists and move on immediately to indicate some of the items which tend to be emphasized more than others (see Waters, 1995, pp 94, 123, 157). Perhaps the most invoked quality on the lists is an increasing connection or communication between people and places. This is said to be manifested in a 'time-space compression' (Harvey, 1989, p 240). Or there is a new 'time-space distanciation' which accompanies the 'intensification of world-wide social relations which link distant locations in such a way that local happenings are shaped by events occurring many miles away and vice versa' (Giddens, 1990, pp 14, 64). At the top of many lists are things seen in economic terms - the dominance of 'the market', the growth of transnational corporations, the mobility of capital and of labour, the increase in world trade. Considerable emphasis is usually placed on 'cultural' factors. These usually celebrate the supposedly tentacular efficacy of new technologies for disseminating culture or information. Then there is 'politics'. This is very much about governing and being governed and, in the literature on globalisation, politics is increasingly being subsumed in the label 'governance'. This term is often used to draw or to suggest a convenient distinction between a kind of unitary world government, now seen as an antique aspiration, and supposedly more diverse sets or clusters of governing relations. Politics is most prominent on the lists when it intersects with the economic. The most significant instance of this intersection comes from the so-called Washington consensus reflecting the views and dictates of, mainly, the International Monetary Fund and the International Bank for Reconstruction and Development, the 'World Bank'. As between these institutions, the consensus has of late become strained, but they both continue to focus and give effect to key imperatives of governance in which neo-liberal economic rectitude is prerequisite. Their requirements also extend to the observance of human rights and of the rule of law, and to 'democratization'.

There is, finally, one item on the list which is frequently mentioned in connection with all of the others - whether they be relational, economic, cultural or political - and that is that they are now not contained or containable within the sphere of the bounded nation (as if they ever were!) but somehow assume a cohering being beyond it. That is, attributes of the global are monotonously elevated in their being beyond the range of regulation or of the dominating concern of the nation and its state. This is not merely a matter of the dissolution or the displacement of nation in the direction of the global. Power is seen as inhering more and more in other entities 'besides' the nation-state - sub-national and international regions and transnational corporations being the most cited repositories.

Of course, the practical epistemology of all this transcends, and has to transcend the specificity and the diversity of the list. Simple specificity, obviously, would be too revealing of a situated superiority. Globalisation simply and singly is, or is assuredly becoming so. For this we have the word of new lords of human kind. In his State of the Union Address of January 27, 2000, the President of the United States confirmed: 'Globalization is the central reality of our time. There is no turning back'. The same authority, in a speech to the then rather more self-confident World Trade Organisation on May 18 1998, revealed that 'globalization is not a policy choice - it is a fact'. In the same forum and in the same global context, the Prime Minister of Great Britain decreed on the next day that 'whether there should be free trade' is not 'the question now', free trade is 'an irreversible and irresistible trend'. It may consequently seem a little puzzling as so why these oracles of the global go to such extraordinary lengths to bring about something that either exists already or is inexorable. Nor do their bald pronouncements sit easily with the fragility of 'the global market' and with escalating calls for the increased regulation of this now less-than-brave new world.

Perceptions contrary to those associated with globalisation are almost as well rehearsed and, if one of them predominates, it would be that this supposed globalisation is an extraversion of nation. The preponderance of trade and production remains concentrated within national borders and the 'global' lying beyond these is revealed as an extension of national economies. The global market and so-called transnational corporations remain primally connected to national economies and overwhelmingly to a limited number of these, a number which rarely strays or stays beyond North America, Japan and Europe. The global financial market is usually admitted to be an exception, being often hailed as autonomous and beyond the control of nation. Obviously effective as the financial market has been in outflanking particular national economies, it is hugely the emanation of the most powerful nations, integrated with their regulatory regimes, and far from immune to their combined control (see Hirst and Thompson, 1996, pp 129-36). Quite apart from that, finance is not yet quite everything and nobody seems to be arguing, yet, that a global financial market is sufficient to constitute globalisation. There is also a key element of the economy which is seen as becoming less global and that is the permitted mobility of labour across national borders. There are also dimensions of the economy, such as the interests of workers and environmental effects, which are somehow deemed less deserving of effective attention in global terms. Broadly similar observations have been often made about the national dominance of 'global' culture and politics, and these observations are greatly facilitated in the case of politics by explicit provision made for certain countries to control key institutions of 'global governance'.

Perhaps unsurprisingly, there is a marked tendency in these perceptions against globalisation to see it as more of the same, a tendency generously accommodated by the observers sympathetic to globalisation who describe it as an augmentation of what was already there - as a increase in world trade, an 'acceleration' of contact, an 'intensification' of relations, and so on (Giddens, 1990, p 64). If globalisation has been initiated in a break with what was, or if there has been a qualitative change emerging out of an 'intensification' of quantity, no one seems to have discovered these things (cf. Robertson, 1990, pp 20-8, 1992, pp 183-3). Certainly there are obvious similarities between accounts of globalisation and the 'old' ways of talking about imperialism and the expansionary dynamic of capital. The weary discursive legitimations of development and modernisation have now been resurrected as quite inviolate in the setting of globalisation. Even globalisation's supposed inclusion of the local as yet somehow contrary to its general sweep has a counterpart in a large and once influential literature which saw the advance of capitalism as reliant on 'traditional' pockets of production and culture (e.g. Taylor, 1979).

Globalisation and these apparent predecessors are not only at one in their claims to an encompassing coverage, they also confront similar challenges to such claims. Just as claims once made for the pervasion of capitalism and occidental imperialism were reduced in the revelation of contrary and potent modes of existence (e.g. Wolf , 1982), so also globalisation has been opposed by the vitality of economic relations, of cultural and political assertion, all countering the encompassing claims made for it – and often, more and more often specifically so (see e.g. Appelbaum, 1998 ). These not only deny 'global' coverage but also refuse to be reduced to some site of the 'local' related to that global. Globalisation seems, then, not to extend to large parts of the globe. Furthermore, elements of globalisation itself, such as the transfer of investment funds to an ever 'developing' world and the resulting pall of debt, keep people apart from its supposedly beneficent reach. Indeed, it is now uniformly recognised that processes associated with globalisation are impoverishing and marking apart much of the globe's population, even if apologists for globalisation regard these processes as ultimately and generally beneficial and inclusive[2].

Elusive as it still doubtless remains, globalisation in this account so far begins to resemble those more venerable yet still modern occupations of the world in the name of the universal. Denied a positive point of transcendent origin, the modern universal self-constitutes negatively in excluding what is other to itself. Like this universal, globalisation seems to make its foundational claim to an encompassing hold only in a relation to what it opposes or excludes. Also like the universal, the exclusion contradicts in its turn the foundational claim to inclusiveness, thus revealing an 'original' ambivalence or irresolution within globalisation. The comparable difficulty afflicting the modern universal has been putatively overcome by making the included element exemplary and setting the excluded on an aspirational or evolutionary path towards it. Most accounts of globalisation would also deem it to be exemplary, and see it as presently incomplete but in the process of being achieved by bringing in what is for the time being apart from it.

To put this comparison with the universal as well as globalisation itself in more palpable terms, and so as to introduce my argument to human rights, I will examine Santos's account of globalisation and such rights (Santos, 1995, ch 4). This account is taken here as the best and most productive posing of persistent questions attending globalisation and human rights - questions to do with the quality of being global and with the alterities and divisions fomented by claims to the global and to the human. Then, by way of parallels between such claims and the logics of the modern universal just outlined, I will pursue these questions in an analysis of globalisation theory before turning to and deconstructing a more typical account of human rights in such a way as, hopefully, to concentrate and illustrate all that has gone before. Finally, I will return to Santos's project in its spirit and try to indicate in a preliminary way what 'place' a global approach to human rights may assume in resistant or liberatory terms.

3. Human Rights and the Dynamic of Division

Human rights have, of course, long been spectacularly disposed towards the universal and endowed its vacuity with some content. Their predecessors in 'the rights of man', another assurance of certainty in an uncertain world, were professedly universal. Human rights themselves can now be made the subject of a Universal Declaration, 'declaration' drawing here on all that peremptory force which Zizek found in the declaration - its utterance bringing about a new 'state of things as already accomplished' (Zizek, 1992, p 97). So secured, when one authority says that 'international human rights is the world's first universal ideology,' Wilson can find that same authority 'only mildly guilty of hyperbole' (Wilson, 1997, p 10). In the setting of the global now, Robertson, widely considered the leading theorist of globalisation, views 'the thematization of the idea of human rights - in fact, the global institutionalization of the idea of the latter - as a move along… a trajectory… to global humanity', and he would add, still in the setting of globalisation, that 'although the principle of human rights is in one sense applied to individuals, its general significance has to do with the consolidation of the conception of humanity' (Robertson, 1992, pp 133, 184). Wilson's synoptic assessment has it that 'the past few decades have witnessed the inexorable rise of the application of international human rights law as well as the extension of a wider public discourse on human rights, to the point where human rights could be seen as one of the most globalised political values of our times' (Wilson 1997, p 1). More pithily, Teubner has it that 'human rights discourse has become globalised' (Teubner, 1997, p 770).

What now follows has to be an exercise in irony. Perspicacious as Santos's view of globalisation and human rights doubtless is, it remains enveloped by the constituent demands of globalisation, and these precisely counter the utopian transformation involving human rights which his project would seek to bring about. Santos tellingly pins down globalisation as the expression of particular Western interests, as 'the successful globalisation of a given localism', and as reproducing 'the hierarchy of the world system and the asymmetries among core, peripheral and semiperipheral societies', this is not a 'genuine globalism' (Santos, 1995, p 263). Although it is not evident what a genuine globalism may be, or how or from where we could know this to be, it would follow from Santos's criticism of the inauthentic variety that the genuine would counter these divisions in the world. For Santos human rights does counter these divisions and thus contribute to globalisation as a 'new universality', as 'global civil society', as embracing 'humankind', all of which involves or will involve a world-wide 'paradigmatic transition' (Santos, 1995, pp 348, 350, 358, 375). For such a sweeping scenario, the detail is disappointing. There is an international or 'global human rights regime' made up of general declarations 'centred on the United Nations' but it is 'weak… in enforcement terms' (Santos, 1995, pp 329-30). There are lists produced of good people and good causes promoting human rights, and there is the encouragement of culture to speak unto culture, religion unto religion, and so forth. It is difficult to discern anything in this miscellany indicating what a 'genuine' global condition or being global might be. There is, however, a claim to something like a general and uniform coverage of the globe in terms of that human rights regime, more specifically coverage as a perception of 'the emergence in the postwar period of an international human rights regime based on an international consensus on substantive norms with high moral voltage' (Santos, 1995, p 330).

In stark opposition to this claim, it could be said, there are few matters over which the globe has been more conspicuously riven of late than that of human rights. It is a widespread and by now standard criticism levelled by those outside of the West that human rights are an emanation and instrument of the Occident. Here Santos's own criticism is forceful. The 'history of human rights' in that same 'postwar period' which saw a general international consensus now reveals human rights as partial, as a 'globalised Western localism', the very 'concept of human rights lies [sic. ] on a well-known set of presuppositions, all of which are distinctly Western' (Santos, 1995, pp 338-9). Somehow human rights can also be extricated from all this, however, and especially from the occidental appropriation of the universal. They can, in one version, be 'transformed' from their original Western conception or, in another, they can 'recuperate' their 'inherent' emancipatory and utopian quality, with either cheerful outcome, they remain 'part of the conversation of humankind', sustained now by a 'new universality', even if somewhat precariously (Santos, 1995, pp 339, 347-8)[3].

Still, Santos remarks, human rights 'have often been appropriated by regulatory agendas', and this fate is mentioned in the setting of a 'statist logic' which now 'reorganizes in terms of global regulation what it disorganizes in terms of national deregulation' (Santos, 1995, p 336). Santos does not elaborate but his description of this particular 'statist logic' could not be bettered as an encapsulation of that 'Washington consensus' which Santos does avert to in another setting (Santos, 1995, p 356). Human rights have indeed been integral to the global enforcement of that consensus and have accompanied the imposition of neo-liberal economies on that large part of the world needful of human rights by another part replete with them, supposedly. In like vein, and in passing, Santos notes that 'after 1975, the U.S. Congress linked foreign aid to human rights' (Santos, 1995, p 335). Since then human rights have become more rather than less closely tied to this division of the world. Instances now unfortunately abound. To take just a single pointed one, when recently lecturing an African leader on the 'need to respect human rights, transparency and the rule of law', the Secretary of State for the United States also advanced the complementary 'need to make sure that human rights continue to be the bedrock of our relations'[4].

There seems to be nothing in Santos's universalist, utopian conception of human rights to distinguish it essentially from the divisive human rights which he describes as actually in operation. To fill out that point, I will briefly take the three most elaborated locations of human rights which Santos offers. One is the 'global human rights regime' itself, in its being buttressed by four 'regional subregimes'. Of these, 'the European' is first mentioned. It is accorded an 'overall strength' but with some 'weaknesses' and violations. The other three - the 'inter-American', 'the African' and 'Asia and The Middle East' - are either very weak or, despite having just been announced, simply non-existent. Violations in these three locations are considerable in comparison to the European (Santos, 1995, pp 330-4)[5]. The second instance of division concerns the 'rights of migrants', and here Santos explicitly signals an 'ambivalence' in the response of human rights to be found in the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families adopted by the General Assembly of the United Nations in 1990 (Santos, 1995, pp 298-301). That ambivalence arises out of the assertion by nation states of their territorial sovereignty in a way that makes the Convention discriminate between different types of migrant. There is yet a deeper ambivalence. Even with this discrimatory derogation from universal human rights, to bring the migrant within the formal protection of the Convention would evidently still be too disruptive of the nation state in that the Convention is made compatible with continuing denial of rights to the migrant by 'remaining almost unknown' and 'the best kept secret of the United Nations' (World Council of Churches, 1994)[6].

This kind of ambivalence is more explicit in the third and final case, the one to which Santos devotes most attention. It concerns the rights of indigenous peoples. Again, Santos sees this in terms of a conflict affecting the nation-state in its territorial sovereignty, this time in its being opposed by the ties to the 'land', the 'ancestral… territoriality' of indigenous peoples, their 'congruities of blood, religion, speech, custom' and 'primordial' attachments (Santos, 1995, pp 316-17, 319). Here, however, the nation-states seem strangely misguided:

'The fact of the matter is that, in most cases, the self-determination claimed by indigenous peoples has not included secession, statehood, or political sovereignty', and the claims of indigenous people 'can be made compatible with the sovereignty of the state in which they live' (Santos, 1995, p 321).

Perhaps, then, this anxious conflict has to do with something else - not only with the constituent difference between the nation-state and indigenous peoples, but also with a dangerous similarity between them, a similarity conceived in the very 'primordial' terms Santos, and many others, use to describe indigenous peoples[7]. Recognizing this difference and similarity would lay bare the 'original' irresolution with-in the nation-state itself - the irresolution between its particular and exclusive attachment to 'blood and soil' and its universal and inclusive assertion. In Perrin's where a similar and 'anxious' irresolution is found to pervade a remedial measure of human rights relied on by Santos, the United Nations Draft Universal Declaration of the Rights of Indigenous Peoples (Perrin, 1999 , Santos, 1995, p 318). Adapting the point to human rights generally, and as Perrin indicates, there is a profound dissonance between human rights as the new standard of civilisation and the inclusion within them of 'uncivilized' peoples definitively excluded in the very constitution of that standard (cf. Gong, 1984, p 91). Such divisions constitute yet counter the claim to the human in human rights. The consideration of these intimate effects of division within human rights will be taken up shortly. Before doing that, the claims of globalisation theory and of global law have to be dissected and, in a certain way, realigned.

4. Globalising Theory

Globalisation theory would seem to be afflicted, even if contentedly enough, with a primal divide the overcoming of which is repeatedly envisioned but never convincingly consummated. This divide is rendered variously in terms of the universal and the particular, homogeneity and heterogeneity, the global and the local, and such modifications of this last pair as 'globality' and 'polyethnicity' or 'multiculturality' (Robertson, 1992, p 112). There are revealing antecedents to globalisation theory prefiguring this divide. This theory emerged very much as 'grand theory', drawing on and maintaining the most expansive theorizing of society and social development, including theories of modernisation and of world-systems. What was stressed in globalisation theory in this initial drawing on antecedents was the homogenising force of the global. More recently, globalisation theory has also drawn on an heterogeneous strand in these antecedents. In a once familiar sociological idiom, those antecedent theories were not just about social 'convergence' but about 'divergence' also (Robertson, 1992, p 11). This perception of heterogeneity was encouraged with the academic advent of various 'posts', postmodernism and postcolonialism being the ones most relied upon in globalisation theory itself (Featherstone, 1995, pp 11-12, Turner, 1994, ch 14).

Although not without intriguing uncertainties, one formulaic response in globalisation theory to this primal divide and the various manifestations of it has been to enwrap them in some encompassing, unifying entity such as the universal newly perceived, or the global itself, or a global society - and it is with the global that 'society' now assumes its true position no longer bound to nation as its paradigm. Another container of division commonly advanced has been culture or global culture or, in more nuanced terms, culture as a 'space' of contestation between the global and the local (Featherstone, 1995). Even in such locations between the global and the local, culture remains oriented towards a unity. It inhabits global culture and a local culture alike, rendering them as significantly if not wholly the same. 'Society' can also operate in this meditative way.

All of which has not, however, left globalisation theory in an achieved or settled condition. Its primal divide between the global and the local seems to counter, even to substitute for, further theorising of what lies on either side of the divide or of anything that may overcome or contain that divide. The 'process' of globalisation is 'proving difficult to theorize' (Featherstone and Lash, 1995, p 2). This difficulty can result in something of an abdication, in another ending. 'Postmodernism and postcolonialism' now leave us with 'a lowering of theory's capacity to speak for people in general, to a greater acknowledgement of the limited and local nature of its assertions' (Featherstone, 1995, p 10). The less inhibited response to theoretical poverty has been to supplement it with prescription. 'The task for social science is to make sense of these new kinds of global-local relations…' (Lash and Urry, 1994, p 312). A 'more subtle interpretation' of such relations is 'required', and we 'should' in particular accommodate the local dimension more (Robertson, 1995, pp 38, 41). If however the theory is looked at more closely, it can, as I will now try to show, be productive in its seeming failure.

Which leads us to the second and main formulaic response apparently resolving the primal divide in globalisation theory. I will now try and show how the formulas involved here reproduce the divide rather than resolve it, and try as well to show how the divide corresponds to the 'old' modernist division between the universal and the particular. Perhaps the most cited resolving formula is Robertson's: there is, so he discerns, an 'interpenetration of the universalization of particularism and the particularization of universalism' (Robertson, 1992, p 100). Numerous other renditions are available but they all posit an integral connection between, as it is usually put, the global and the local (e.g. Friedman, 1994, p 12, Featherstone, 1995, p 103). Most compendiously, these two things are said to be 'relational' (Featherstone, 1995 , p 97). The seemingly insuperable difficulty in being simply relational is not considered. If things simply or purely relate, there is nothing to prevent their appearing or disappearing in each other. For example, when Friedman describes a 'weak' form of globalisation, it disappears in the local whereas with the 'strong' form the global comprehensively dominates (Friedman, 1995, p 77). There is, however, some recognition in globalisation theory that responsiveness to 'the Other' may 'lead to a disturbing sense of engulfment and immersion', a fate which could presumably then befall either the global or the local in their responsiveness to each 'other' (Featherstone, 1995, p 91). Yet the global and the local, the universal and the particular are decidedly not to disappear into each other. So we find that the promiscuous relatedness attributed to postmodernism is to be avoided: 'unless we are prepared to jettison the concept of form altogether and sink back into the flux of life, any attempt at theorizing entails the construction of forms and modes of representation' (Featherstone, 1995, p 80). The seductions of sinking are also indulged, however, as we will now see.

Much of this theorizing comes from the social sciences where the frustration of not being able to sharply identify something is usually relieved by the invocation of 'process' and this has served as another formulaic resolution of the divide. So globalisation has become 'global processes' encompassing the global and the local, or there is the revelation that 'globalisation is about processes of meaning that are of a global nature' (Friedman, 1994, ch 2, 1995, p 73). Or, in much the same way, globalisation is perceived to be about 'global flows', 'flux', 'global movements' (Featherstone and Lash, 1995, p 2, Featherstone, 1995, p 80, Appadurai, 1990, p 10). Moreover, 'trans-societal flows… are pushing towards 'a borderless global economy' (Featherstone and Lash, 1995, p 2). What happens to a flow or a movement when, in the absence of borders, it can no longer be seen - when, that is, there are no still marks in relation to which it can perceptibly flow or move? If that line of questioning were followed, there would remain no discernible limits within which globalisation could be identified at all[8]. Impressively insistent as it is, then, the relation between the global and the local, or between the universal and the particular, in globalisation theory remains quite mysterious. We may be able to delve further into the mystery, perhaps even begin to 'solve' it, by looking more closely at the claims made in globalisation theory to accommodate the global/universal and the local/particular.

For something that seems so central to globalisation theory, it is strange that the difference, or the similarity, between the 'old' universality and globalism's 'new' universality is so unexplored. Again and again a difference is propounded, at least implicitly. The difference is that the universal as global is integrally tied to the local. Short of a belief or a mythos giving access to a transcendent universal, however, the old universality itself could only be known or realised in the particular, a particular seemingly capable of being 'local'. The global appears to resemble the old universal readily in other ways as well. There is still in globalisation theory a turning into one, to borrow the etymology of 'universal', a turning which advances a new imago mundi in the fugitive form of the global itself. Furthermore, this global is attended with its own quasi-universals such as economy and the market, or communication and culture, all endowed with a transcendent, neutral value. The challenges involved in giving these, and the new universal itself, a palpable purchase are sometimes met in a neo-evolutionary mode - globalisation being something that is in assured progress. Its culmination, no matter what that could or could not ever be, has reserved for it a position of already transcendent efficacy. Like its preceding universal, the global has somehow broken free of the constraints of time and space. There is a 'disembedding', a 'lifting out' of social relations from local contexts of interaction and their restructuring across indefinite spans of time-space' (Giddens, 1990, p 21 - emphasis added). The global is not tied to primordial, contained locations. It is not 'fixed'. The global is 'deterritorialised', as it is so often put (e.g. Appadurai, 1990, pp 11, 15, Featherstone, 1995, p 5). Above all, in a literal way, globalisation is a neo-universal in the stance it endows on those advocating or empathetically observing it. Even though, presumably, such people are in or of the world, they can still stand apart from and come to the global, encompassing the indefinite, at least cognitively. The greatest gift of globalisation to its theorists and advocates lies in its absolving them from putting their own position in question, thence enabling them to occupy the deracinated universal.

Conveniently then, along with this bestriding of the world, globalisation theory finds it yet a habitable place -determinant, steady and amenable. That world now subsists in 'a global-human concreteness', or it becomes a 'global-human condition', 'a single place with systemic properties', 'a singular place'. 'There is now one world culture' and 'the world-as-a-whole' has truly turned into a 'reality', territorialised after all[ 9]. Even with the global now as concrete and contained, the proponents of globalisation theory still have a problem with position, but now in a reverse perspective. If the global has become empirically bounded, where can the observers of the global come away from it, stand beyond these bounds and see the global now as singular and entire? A return to the universal beyond, to some transcendence, seems to be inevitable.

Some redemptive response could be derived from another branch of globalisation theory. Here globalisation is not about the world or seeing the world as a singular place but, rather, about seeing it in diversity. This variation on the theory is usually associated with Appadurai who, in isolating certain aspects of globalisation, finds:

'…that these are not objectively given relations which look the same from every angle of vision, but rather that they are deeply perspectival constructs, inflected by the historical, linguistic and political situatedness of different sorts of actors: nation-states, and movements (whether religious, political or economic), and even intimate face-to-face groups, such as villages, neighbours and families'. (Appadurai, 1990, p 7).

In a like vein, Santos would espouse a 'cultural relativity' in which the universal is constituted solely in the perspective of each culture (Santos, 1995, p 337, cf. p 339). There is a somewhat similar resort to diversity when globalisation is rendered as a collection of different entities brought together in terms of 'multipolarity', 'competing centres', and such (Featherstone, 1995, pp 8-10). But if the various entities are to be in a relation, which they must be in order to make up the global, then each cannot simply be complete unto itself. There must be some element or configuring of commonality between them. To get around this, it is not enough to say that diversity is a matter of perspective, that things global can be seen in different ways. To adopt such a resolution is, borrowing from Goodman, to be 'confined to ways of describing whatever is described. Our universe, so to speak, consists of these ways rather than of a world or worlds', and, whilst contained or positioned by these ways, it is not possible to 'test a version of the world derived from them' by comparing it with a world [which remains] undescribed, undepicted, unperceived' (Goodman, 1978, p 3). What then may seem to the called for are 'objectively given relations which look the same from every angle of vision' (Appadurai, 1990, p 7). Yet this, in turn, is an impossibility. We can neither account for 'every angle of vision' within the world nor be 'objective' in the sense of standing entirely apart from it.

All of which only takes the analysis as far as the quasi-universalism of the global. Perhaps this impasse in globalisation theory can be overcome by resort to the presumed palpability of the local. Such resort, however, replicates the impasse, as we will now see. It is, of course, with the recognition of the local that globalisation theory would most emphatically depart from the homogenising claims of the 'old' universalism (e.g. Santos, 1995 , p 253). Aptly enough, this 'local' is set within the universal, or within the global as neo-universal. There is in this relation a containing ability of the global which seems to be read off its supposed scale. It is either pervasive or it is larger than the local, and the local thence becomes essentially bounded. This is not all. In some influential accounts, 'the local is itself a global product, in which the particular is an aspect of globalisation' (Friedman, 1995, p 72). Or, globalisation 'has involved and increasingly involves the creation and the incorporation of locality' (Robertson, 1995, p 40). Perhaps the more common view in globalisation theory sees the local as not quite so subordinate but still as open to penetration and shaping by the global (e.g. Giddens, 1991). The global is dynamic and effective, whereas the local is receptive and effected. In its main practical form, the local becomes the adaptation of consumption in various particular sites so as to accommodate a supply which is provided globally. The 'market strategy' which, in the euphonious lexicon of globalisation, goes under the name of 'glocalism' illustrates this in an extensive way: 'the term refers to a global strategy which does not seek to impose a standard product or image, but instead is tailored to the demands of the local market', an effective uniformity with marginal modification (Featherstone, 1995, p 9). A local which is recipient or merely reactive can adapt or resist only marginally. For example, Featherstone clearly believes that he is ascribing a considerable potency to the local when he says that, whilst media events 'may rapidly transit the globe, this is not to say that the response of those viewing and listening within a variety of cultural contexts and practices will be anything like uniform', and those affected by mass consumption and mass tourism can engage in 'a variety of strategies to re-constitute identity' (Featherstone, 1990, p 10).

Yet there are also indications in globalisation theory, even if rare indications, that the local cannot be simply stilled and dependent. For example, globalisation theory now usually relegates the nation-state to the local but, as Giddens observes, 'the development of the sovereignty of the modern state from its beginnings depends upon a reflexively monitored set of relations between states', those relations, in turn, are seen as a 'system' which 'came to exist globally' (Giddens, 1990, pp 256, 263). Hence 'the nation-state is not disappearing' and it is even enhanced with globalisation (Giddens, 1998, p 32). In this scenario the global seems to be made up, at least in part, of a collection of given 'locals'. And that perception returns us to the idea of the global as the recognition of diversity. In the present context, then, the global would be a collection of diverse 'locals'. Globalisation as 'cosmopolitanism', for example, requires us to recognise 'the Other' and, in so doing, to accommodate the 'diversity' and 'coexistence of cultures' (Hannerz, 1990, p 239). We are, however, pulled back from any prospect of the global deliquescing into these locals by the redemptive affirmation that there has to be not only 'a stance toward diversity itself' but even an engendered 'sense of mastery' over other cultures (Hannerz, 1990, pp 239-40). There is no need to extend this. The mixture is manifestly the same as before, when the impasse within the global was isolated, and a conclusion can be drawn.

Wrenching globalisation theory into line with the story told so far, the summary version of that story could be that there is an impasse between an orientation towards the universal and the determinantly particular within both the global and the local, and that the lineaments of an operative resolution can be borrowed in this way:

'Contrary to what has been advertised by both sides, universalism and particularism reinforce and supplement each other, they are never in real conflict, they need each other and have to seek to form a symmetrical, mutually supporting relationship by every means in order to avoid a dialogic encounter which would necessarily jeopardize their reputedly secure and harmonized monologic worlds. Universalism and particularism endorse each other's defect in order to conceal their own, they are intimately tied to each other in [sic.] their accomplice'.(Sakai, 1988, p 487)

More austerely, it could be said of the universal and the particular in this setting that each assumes its identity in opposition to the other. This opposition combines a mutual inviolability with a relation in which the opposed character of each is a condition of the identity of the other. Looked at another way, each takes on that which operatively remains of the other but which is incompatible with that other's identity. In these compensating divisions and exchanges, there is a displacement of elements which would compromise the purity and completeness of that identity.

With the seminal combining of the global and the local, globalisation theory is parasitic upon this dynamic of apposition. Along with this dynamic, it is possible for the global to be in the local and the local to be in the global, as the standard formula has it. Globalisation theory, however, does not pay the price of the global and the local thus being-with each other. Such theory, that is, does not countenance the formative irresolution, the 'indefiniteness' of the global and of the local (cf. Giddens, 1990, p 21). Instead, the global and the local are each accorded an integral existence – an existence bolstered by the unquestioned 'positions' of those who simply propound it.

There was, however, another mode of asserting globalisation's existence, and that was the neo-evolutionary one touched on earlier. Globalisation was transcendently yet to come and at the same time it was to have an achieved 'concreteness' here and now (cf. Robertson, 1991, p 76). This is one solid that does not melt into air. Rather, says Robertson, there is 'the development of this expanding 'mould' of globalisation' (Robertson, 1992, p 182). The uneasy parenthesis around 'mould' capture the point. Something can have the containing fixity of a mould yet, marvellously, accommodate an indefinite expansion. The mould does not crack. Hopefully, it should now suffice to point out, summarily, that evolutionary globalisation reproduces the irresolution of its components: it is both fixedly, determinantly particular yet 'lifted out' universally beyond the particular (cf. Giddens, 1990, p 21). This is the same irresolution that has just been extracted from globalisation theory more generally.

It is the same irresolution which also characterises the nation of modern nationalism and reveals globalisation as an extraversion of nation. The obvious puzzle is how this can be when globalism is monotonously invoked as that which surpasses nation, but 'nation' in this invocation is the contained, the singular and particular nation, the nation of blood and soil. With modern nationalism, nation, including the particular nation, has always been tied to nation as universal, to nation as intrinsically oriented beyond the particular. It was the diapason of such entities as the comity or, more expansively, the community of nations which, as it were, filled yet encompassed the divide between nation as particular and as universal, or between nation as exclusively national or inclusively international. With-in such entities as comity and community, nation was stretched on a scalar progression from an obdurate particularity to a perfected universality. The particularity and the universality here were fused in the idea of the exemplar. The universal had been almost achieved by some particular but exemplary nations at one end of the scale, but it was decidedly not achieved by those little more than savage nations at the other end. The graduated marker of this division has to be within or of the terrain marked, but at the same time it has to occupy an organising, cohering position apart from that terrain. There have been several candidates for this mark of hyperuniversality, such as the community of nations, civilization, modernity, Europeanness, and other occidental identifications. The global is the latest in a long series.

The self-constituting mark of the global is a mark of differentiation, a mark of exclusion and marginalization. This 'new' universal, no less than the old, takes its specular form in a negation of the non-global. We have seen already when looking at globalisation and its theory, including the instance of human rights, that globalism is attended by division. It transcends and coheres in rejection of what is thence other to it. Like the universal, the global would also extend to and include this very otherness. Indeed, so successfully has it done so that now, with 'world interdependence… there are no Others' (King, 1995, p 114). But always the qualification, the other side: this elimination of the other is discerned hesitantly, 'in theory at least', and discerned paradoxically, in still extant 'conditions of grossly uneven development' (King, 1995, p 114). Like the universal then, the global, in its exclusions and inclusions, is constituently fractured, ambivalent, unresolved.

There is a striking unoriginality to globalism which tends to confirm this resemblance. To repeat somewhat, theorists of globalisation first located it as emerging from prior universalising grand theory. It intensifies, increases, develops, accelerates what has already assumed an homogenising force. No discernible break, no novus actus , is advanced endowing globalism with an exclusive origin or with any fresh content. It is not surprising, then, that the vocabulary and the catch-phrases associated with predecessors are readily used. Among the more elegant similarities there is Robertson's rediscovery of 'the general movement of the world' in globalism, exactly the phrase J.S. Mill used in the setting of nationalism (Robertson, 1987, p 23, and for Mill see Hobsbawm, 1992, p 34). Another exact example would be globalism's claim to human rights and the tracing by Gong of the transition in international law from 'civilization' to 'human rights' as the new universal standard separating the worthy and the not (Gong, 1984, pp 81-93). Somewhat more wearily, there is the constant equation of globalism with modernity, the market, the end of history, and with the universal itself.

There is also a sustaining continuity in what is taken to be 'other' to the global. In globalism's self-presentation, the global relates integrally to the local. The normal, and normalising, terms of globalism enact contrary states which creatively transgress the global. The global in its acceleration and growth relegates the languid and static. Its intensity of communication isolates the uncommunicative. Its 'governance' divides those who globally govern, restructure, impose 'conditionality' from those governed, restructured, and subjected to 'conditionality'. These and other divisions will be illustrated shortly, but at this stage they could be grouped as instances of that divide which constitutes the global/universal itself and which ever ensures its dynamic of irresolution - that is, as 'barely reworked variants' of the relegation of the savage, the barbarian, the traditional, underdeveloped and backward, the atavistic nation, in the making of the modern universal (cf. Balibar, 1991, p 25).

5. The Rightful Human

These modes of creating the global/universal along with the suppression of its irresolution will now be illustrated in the deconstruction of a typical text elevating human rights or, more exactly, a 'human rights discourse [which] has become globalised' (Teubner, 1997, p 770). This exemplary text is Rhoda E. Howard's vigorous defence of international human rights against 'cultural absolutism' (Howard, 1993). Her argument could be readily replicated in the literature but the ostensible robustness of its delivery does facilitate summary.

Howard, as is usual, presents human rights as a universal good implacably opposed to and by a relativism which she calls cultural absolutism. It is never exactly clear what these human rights may be. They are ideals, matters of principle, 'transcendent ethical norms' not tied to palpable 'practice' ( Howard, 1993, pp 317, 338). They can thus exist in a 'universal' dimension. But they are also something different. Like the global in globalisation theory, they are not only transcendent but somehow palpable as well. They subsist factually in what it is to be human. They have some original empirical location in their issuing from the West, even if they can now extend beyond it. Somewhat less palpably, they are also associated integrally and generally with individualism, liberalism and, occasionally, social democracy. The immediate problem is that neither these particular qualities, nor the claims to be universal and transcendent and such, are exclusive to human rights. Such rights in Howard's account are left in almost complete vacuity and given no specific and positive content. 'Almost complete' because Howard provides a few examples of particular types of behaviour, such as 'polygynous marriage', which are said to have no relevance to human rights (Howard, 1993, p 337). The indefinite implication is that there are specific behaviours endowing human rights. Just what these may characteristically be is not revealed even though this seems feasible since provisions claiming to embody human rights are obviously plentiful. If specific examples were advanced, however, they would particularly locate human rights and thence counter the claims to universality and to the uniformly human.

We could approach this vacuity through a conundrum involved when talking about human rights as human - a conundrum embedded in the summary so far of Howard's views. The assertion of human rights, their effective existence, their inexorable instanciation, depends on their not being observed, and Howard's account brims with non-observance, usually located in 'third world' or 'non-Western societies' - the standard sites. Yet if being human is the intrinsic ground of entitlement to rights, and if human rights inhere, as they do so factually for Howard, in being human - in behaving or aspiring as a human being - then those who do not behave in accordance with or aspire to human rights must not be human. Alternatively, if they are human, then the rights cannot be. The resulting ambivalence both underpins and undermines human rights, and that is the leitmotiv of the rest of this section.

Intimations of some such difficulty surfacing in Howard's text are accompanied by strident affirmations that human rights are abstract and universal ideals and not connected to the exigency of 'practice'. How may this ethereal, unconnected universal speak? How could it ever palpably present itself and remain abstract and universal? Even if it could speak to us, how could we, who can only come from within what is universal, ever hear it, ever stand apart from it and perceive it as universal? Similar insuperabilities attend the claim to the encompassingly human. These have just been canvassed in the setting of globalisation theory. They are rendered poignant here because Howard soon contradictorily does and must claim that human rights are particularly located. The chosen location is the West.

We can now unravel how Howard bestows a paradoxically particular content on universal human rights by observing how cultural absolutism, far from being merely in chasmic opposition to the human universal, comes to its aid, becomes its necessary supplement, and makes its vacuous silence garrulous with meaning. We could begin to see how this is done by observing the travesty role in which Howard casts Said's Orientalism (1985). Howard elliptically calls on Said to produce an Orient that instances cultural absolutism (1993, p 327). This is appropriate enough. The Orient has long been presented in terms which Howard associates with cultural absolutism - presented as 'unchanging', inert and self-contained (1993, p 327). Said is saying much more, however. He sees the West constructing the Orient in an oppositional reference to itself. The West's meaning to itself comes through the West's 'setting itself off from the Orient as a sort of surrogate and even underground self' (Said, 1985, pp 3, 67). In a similar way, as we will now see, the identity of universal human rights comes from their being set against attributes associated in this text with cultural absolutism. That identity is thus endowed negatively and vacuously. As a result, it is not tied to any positive ascription that would counter its claim to the universal.

As a general conception, universal human rights are derived from their being the negation of a positive and excessive particularity. Cultural absolutism exalts an impossible particular. It is for Howard, something completely contained within a culture-bound, closed, exclusionary, traditional, authoritarian, status-ridden, static, 'pure and inviolable community' (Howard, 1993, p 325). Since 'cultural absolutism is the antithesis of human rights' (Howard, 1993, p 325), one has only to read off a redemptive contrary to cultural absolutism in order to find out what human rights are. They are, for a start, 'not culture-bound'. Indeed, they escape the trammels of culture altogether through their superseding cultural particularity - through their being 'transcultural' or able 'to transcend culture-boundedness' (Howard, 1993, pp 320-1). In formative contrast to the inequalities of status in traditional societies and to their fixed ascription of roles, human rights are 'held equally by every individual by virtue of his or her humanity' (Howard, 1993, p 315). Human rights are integral to liberalism, democracy, individualism, and progressive change, all of which happen to be typified by the West. In this, they are explicitly set against the static and pervasive dominance by community or the state in less happy climes. Above all, human rights are 'supreme' and 'fundamental', marking the place we all will or should come to (Howard, 1993, pp 318, 322). Cultural absolutism, in contrast, can only confer identity on societies in their distinct particularity. The most that can be hoped for societies in this fixed and contained condition is that they will 'change' and come to conform more to the universal in human rights even whilst carrying the consolation that 'many aspects of culture, such as kinship patterns, art or ritual, have nothing to do with human rights and can be safely preserved, even enhanced, when other rights-abusive practices are corrected' (Howard, 1993, pp 332, 337). Contradiction now intrudes since these societies are now envisaged as changing but are supposed to be static. They are to move alacriously towards the universal yet remain torpidly apart from it.

The story so far is that the idea of human rights is constituted in a negative reflection of qualities which it rejects or excludes, but these are not qualities which may be allowed to stay compliantly beyond some conclusively secured realm of human rights. If the idea of human rights results always from a negative rejection of certain qualities, then that rejection must be constantly or repeatedly sustained. For this to happen, the rejected qualities must be ever proximate to the human rights they serve to form. They must always affront and disturb human rights. Conveniently, in their heroic assertion, human rights sedulously provoke that which affronts and disturbs. A necessary proximity is thus assured. Human rights bring the excluded into proximity in the demand that the excluded become part of the universal. There is yet more. Conceiving human rights does not involve the rejection of qualities which are simply 'out there' and apart which then have to be brought into proximity. The rejected qualities themselves belong to human rights but are excluded in order to make a certain idea of human rights coherent and consistent. So, for Howard, human rights are universal but come from a particular place, the West. They are transcendent ideals not tied to practice, yet they are of the 'real' and exist 'in … practice'. Human rights are found in the aspiration of every individual member of humanity yet concretely only 'most people' want them. Human rights are intrinsically set against 'community' which is 'pure and inviolable' because formed in 'the exclusion of outsiders', yet human rights themselves assert a 'supreme' and 'fundamental' commonality through a similar exclusion (Howard, 1993, pp 321-2, 325).

This contrapuntal dynamic endowing some identity on human rights can be confirmed by showing how the identity dissolves when the dynamic fails. The last third of Howard's paper contains a radical departure from the argument engaged with so far. That argument set human rights 'antithetically' against cultural absolutism. Howard sees this cultural absolutism as taking on especially alarming dimensions because of a now rampant 'communitarianism'. She so ardently espouses the liberalism and individualism typifying human rights because they counter that communitarianism seen as part and parcel of cultural absolutism. Yet when Howard seeks to accommodate the standard criticism that 'universal' human rights enshrine occidental values, she does recognise the vices of 'unbridled individualism' in the West and she does recognise that 'liberalism in North America is overly individualistic' (Howard, 1993, pp 333, 336). 'Communitarian features' of society can then perform a meliorative function and indeed 'both in practice and in theory, we need to reconcile the communitarian and the individualist account of society' (Howard, 1993, p 332). This is all very well, but human rights took identity as individualistic because they opposed that which has now to be 'reconciled' with individualism. In the soup of reconciliation it cannot be clear how much, if any, individualism will survive the admixture. There is nothing to stop individualism disappearing into communitarianism or to prevent their both forming something quite different to either. In sum, those offensive qualities rejected in the making of a coherent idea of universal human rights were and remain with-in human rights, and when these qualities are explicitly recognized as with-in, the coherent or distinct identity of human rights disappears.

This 'return of the repressed' also comes about in another way which is more oblique but just as subversive. In constructing an idea of universal human rights, certain qualities were pitted against it - qualities intrinsically offensive, opposed or 'antithetical' to that idea. Once the universal is admitted into the equation, the opposition is ineluctable since anything opposing the omnipresent universal can only be of another dimension and absolutely apart from it. Yet if the rejected qualities were absolutely apart, they could not relate or be proximate to universal human rights and serve to constitute them. Relation is essential. The universal, however, can relate only by bringing everything to itself. So, in Howard's plot, there now occurs a miraculous transformation. The excluded - who were at first in their traditional, static, status-bound, irredeemably particular state absolutely beyond the pale - are now touched by the universal and bidden to become the same as it. They can now 'change', occupy some position on a continuum and eventually conform to universal human rights. After all, 'Westerners' themselves, were 'primitives whose societies underwent centuries of social change' (Howard, 1993, p 328).

How is such a stunning shift effected? Quite simply by taking those offensive qualities of the excluded which once objectively opposed human rights and changing them into subjective misperceptions of foolish Western observers, such as 'romantic' anthropologists. People like this, but no longer Howard now, present the excluded as 'unchanging', 'pure idealized', 'holistic' and typified by a distinct and uniform 'culture' (Howard, 1993, pp 326-7). What Howard once described as traditional now becomes distanced in quotation marks as 'traditional' (Howard, 1993, p 327). This shift allows her to say that it is the oppressively misguided observers who 'impose' identity on the excluded and prevent their joining the universal dispensation of human rights (Howard, 1993, pp 327, 329). The perverse anthropologist is not quite so potent as all this would suggest, however. Scenes are presented where Canute-like anthropologists attempt to hold back the tide of an inexorable Westernization (Howard, 1993, pp 326, 329). There is always and everywhere 'change' and 'progress' towards universal human rights (Howard, 1993, pp 332-5), toward a condition which is essentialized, absolutized, invariant, holistic - all those qualities excluded to constitute human rights in the first place.

We have now come full circle and, in abrupt summary, it could be said the discourse of international human rights would oppressively unite what is inevitably separate. That is, the problem with human rights is not that they are universal or that they have a particular practical purchase, or even that they contain both these qualities. The problem lies in these two things being made to correspond to each other. 'Universal' human rights correspond to some particular practice somewhere. The obvious contradiction is resolved by making the location of that practice transcendently exemplary. The practice can then correspond to the universal ideal. And that practice, trailing clouds of its universal glory, is definitively situated in the West, a 'West' which is the occidental orientation of the community of nations.

6. Conclusions

The unequivocal and imperishable quality of globalism's claim to inclusiveness can be countered perhaps too readily. What the present paper has sought to show is that exclusion not only persists with globalism but also serves to constitute it. In this respect, so the argument went, globalism was a national extraversion and an ample successor to modern imperialism. Both shared the force of that national extraversion which has been the focus of the second part of this book. This was not, or not only, the force of nation as a contained and excluding particularity, but of nation as in-between this particularity and the assumption of the inclusively universal. Globalism does seem, however, to 'make' a difference, and I will now end with an attempt to say what that difference is and connect it to human rights.

That difference could be approached through a shift, as between imperialism and globalism, in the ways through which the exemplar would seek to overcome the antinomy between the particular and the universal. With modern imperialism, the particular but exemplary carrier of the universal - the imperial nation, the comity of nations, and such – is at the forefront, occupying an explicitly predominant place, the sole source enlightening 'the dark places of the earth' (Conrad, 1960, p 4). With globalism, in contrast, the exemplar cannot be distinct and pre-eminent. Rather, the exemplar now finds itself subsumed in a uniform factuality of the global. To propound this factuality, to propound such a complete givenness, is to set the divide between exclusion and inclusion with-in globalism itself. The resulting fracturing or irresolution in the global is putatively overcome, as we will now see, by its concentrating and generalizing dimensions of modernity which would combine both sides of the divide. To provide some indication of how this is accomplished, I will return to the instance of globalised human rights and, in the process, implicate other dimensions of globalism.

Thus far, my engagement with human rights has been perverse. It has shown how the supposedly human in human rights divides and excludes, and it has shown how this division and exclusion are reconciled with the universally human through the elevation of the effulgent exemplar. In all this, human rights played the part of a modernist natural law by fusing fact and norm, fusing what exemplarily is with what should be, and what should be with what is. Yet what was involved here was found to be neither a simple exclusion nor a relation operating solely in terms of exclusion (cf. Agamben, 1998). Rather, the qualities attributed to the excluded were qualities contrarily subsisting with-in human rights. In this way, human rights assumed a self-contained, if riven and precarious, identity. The claim of such identity to the human could then dispense with national or imperial mediators between its universal pretension and its particular instantiation. Rights could now attach to the human without their coming through the dispensation of colonists or without their being first held by a citizen of a nation-state (cf. Arendt, 1958, ch. 9).

Even if it is now somewhat veiled, exemplarity does remain with particular nations and groupings of nations. These not only claim recognition as the congruent repository of human rights but also, when it comes to enforcing such rights, they arrogate to themselves 'the right to action', borrowing the phrase from Arendt ( 1958, p 296). Although these claims and this enforcement are more and more effected in the name of the global or of human rights or of the world community, and so on, they still manifest the most blatant discriminations and sustain an operative imperium[10]. A more nuanced version of this exemplarity comes with the global apotheosis of the capitalist market. Projecting the relevant historical experience onto the global, here is an involving existential foundation of equal legal right, yet one integrally compatible with a preponderant and exemplary position 'in' the market (Pashukanis, 1978). There is a further, and doubtless related, duplexity in the genealogy of human rights which also embeds exemplarity. Agamben puts it like this: in the formation of the modern political:

'the spaces, the liberties, and the rights won by individuals in their conflicts with central powers… simultaneously prepared a tacit but increasing inscription of individuals' lives within the state order…' (Agamben, 1998, p 121).

That for Foucault 'scarcely needs saying' and what he would want to pursue further is the extent to which and the ways in which right 'transmits and puts in motion relations … of domination' (Foucault, 1980, pp 95-6). Notoriously, Foucault found that these relations created a normalized, exemplary existence, and the focal carrier of that existence was the individual (e.g. Foucault, 1979). Just as notoriously, this individual was seen as the effect of the 'power' creating or 'subjecting' it (e.g. Foucault, 1979, p 30, 1980, p 98). Yet, more sotto voce now, for Foucault the individual was not thereby completely bound but had always to extend beyond and resist that power and subjection ( Foucault, 1970, pp 313, 318, 1982, 1987, p 6). What would seem to be a similar process can be discerned in modalities attending the global. There is now an increasingly tentacular extension of the disciplining power of the market and of the 'rationalities' of capital, a power brought to bear largely by those subjected to it and, to do as much, they would have to retain some active agency.

The proponents of human rights have long found in them a 'right of action' markedly less compromised by its associations, and this right has been readily transposed to the global. For Patricia Williams, rights can exist freed of 'a constricted referential universe': 'For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity' (Williams, 1991, pp 153, 159). Such eloquent advocacy makes poignant the expanding legal and political purchase of human rights globally conceived. It is not only that 'human rights doctrine has been adopted by many people to whom it was once foreign' (Wilson, 1997, p 9), but these same people are frequently well aware of how human rights are appropriated to their detriment. These attachments to human rights could, then, be see as at best unpropitious when it is recalled that human rights, as well as their antecedents in natural law and modern natural rights, were constituted by excluding the kinds of people who now in some number would uphold them. Nor can such exclusion be confined to some distant, now surpassable origin since, as we saw, this exclusion continues to endow human rights with an operative coherence and some constituent resolution. Doubtless varying contents are being found or emphasized in the diverse uses of human rights, but there does seem to be still a commonality of 'human rights' involved and it does not seem to be a commonality contested in any ultimate way, at least not as yet. Yet, like any legal artefact human rights can always be otherwise than what they are. They exist not just in a determinant particularity but also in an illimitable responsiveness – nursing the 'unconquerable hope'[11]. In that lies their involving promise, yet also their seductive oppressions.

Endnotes

1. Sarah Kyambi and Colin Perrin contributed greatly to and enlivened preparatory work on this and the next section.

2. Santos (1995, chapter 4) provides an invaluable conspectus which broadly supports the account given here of globalisation and its contraries. My appreciation of that work is heightened rather than diminished by the disagreement with it which now follows.

3. Santos tries to dispose of Western-style universality by resort to a strong relativism, from which he then departs before finally elevating this 'new universality' (Santos, 1995, pp 337, 339). The impossibility of such a relativism is dealt with in my next section when considering globalisation theory.

4. See the International Herald Tribune for December 16, 1997. The reported consolation for the country in question, Zimbabwe, was that 'while the United States pursued human rights and democracy in Africa, it would ensure that it understood 'the local context'.

5. Later Santos, while noting that 'monuments have… messy origins', does say that human rights have 'messy origins, ranging from the genocides of European expansion, to the Thermidor and the Holocaust', origins sometimes now hidden by 'the clean, clear-cut ahistorical formulations to which they [that is, human rights] have lent themselves' (Santos, 1995, pp 345-6).

6. Parker (1997) provides a sharply observed depiction of the migrant constituted in the alterity of the national persona.

7. For an invaluable survey and analysis of the literature depicting indigenous people in such terms see Tennant (1994).

8. These points about discernible flows and borders are derived from Perrin (1996, 2n.1, 33-4 n.40). I am not, of course, positing a purity and fixity of the border in contrast. The affirmed entity is with-in its border only through a constant moving beyond it and return.

9. For the quotations in the last two sentences (and they could have been much added to) see, in order, Robertson (1991, p 76, 1987, p 23), Robertson and Lechner (1985, p 103), Featherstone (1995, pp 92, 102), Hannerz (1990, p 249), Robertson (1990, p 21). The 'original' text here is probably Moore (1966).

10. For example, and concentrating much of Chomsky's argument in The New Military Humanism: Lessons from Kosovo (1999), if some bombing of Belgrade in what has become called NATO's human rights war against Serbia was justified because of the 'ethnic cleansing' and massive displacement of oppressed peoples in Kosovo, then presumably Bogota and Ankara should by now have been reduced to rubble. And if the Bosnian and Kosovar horrors justify indictments for war crimes against various Serbian luminaries, then the activities of United States leaders in or affecting Colombia and Turkey, to continue with Chomsky's examples, are also deserving of such assiduous attention.

11. The phrase comes from Arnold's 'The Scholar Gipsy' (Arnold, 1956, p 352).

Bibliography

Agamben G (1998) Homo Sacer: Sovereign Power and Bare Life trans. Heller-Roazen D (Stanford: Stanford University Press).

Appadurai A (1990) 'Disjuncture and Difference in the Global Cultural Economy', Public Culture 2:1.

Appelbaum R P (1998) 'The Future of Law in a Global Economy', Social and Legal Studies 7: 171.

Arendt H (1958) The Origins of Totalitarianism (San Diego: Harcourt Brace & Company).

Arnold M (1956) 'The Scholar Gipsy', this version in Hayward, J (ed.) The Penguin book of English verse (Harmondsworth: Penguin 346-52).

Balibar E (1991) 'Racism and nationalism', in Balibar, E and Wallerstein, I (eds) Race, Nation, Class: Ambiguous Identities (London: Verso).

Chomsky N (1999) The New Military Humanism: Lessons from Kosovo (London: Pluto Press).

Conrad J (1960) Heart of Darkness, in Three Short Novels (NewYork: Bantam)

Douzinas C (2000) The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford: Hart Publishing).

Douzinas C and Warrington R (1994) Justice Miscarried: Ethics, Aesthetics and the Law (London: Harvester Wheatsheaf).

Featherstone M. (1990) 'Global culture: an introduction' in Featherstone, M (ed.), Global Culture: Nationalism, Globalization and Modernity (London: Sage).

Featherstone M. (1995) Undoing Culture: Globalization, Postmodernism and Identity (London: Sage).

Featherstone M. and Lash S (1995) 'Globalization, modernity and the spatialization of social theory: an introduction' in Featherstone, M et al. (eds) Global Modernities (London: Sage).

Foucault M (1970) The Order of Things: An Archaeology of the Human Sciences, trans. Sheridan A (London: Tavistock).

Foucault M (1979) Discipline and Punish: The Birth of the Prison trans. Sheridan A (Harmondsworth: Penguin).

Foucault M (1980) Power/Knowledge: Selected Interviews and Other Writings 1972 - 1977 trans. Gordon C et al. (Brighton: The Harvester Press).

Foucault M (1982) 'Afterword: The Subject and Power' trans. Sawyer L in Dreyfus, H L and Rabinow, P (eds) Michel Foucault: Beyond Structuralism and Hermeneutics (Brighton: Harvester Press, pp. 208-26).

Foucault M (1987) The Use of Pleasure: The History of Sexuality: Volume Two, trans. Hurley R (Harmondsworth: Penguin).

Friedman J (1994) Cultural Identity and Global Process (London: Sage).

Friedman J (1995) 'Global system, globalization and the parameters of modernity', in Featherstone, M et al. (eds) Global Modernities (London: Sage).

Giddens A (1990) The Consequences of Modernity (Cambridge: Polity Press).

Giddens A (1991) Modernity and Self-Identity: Self and Society in the Late Modern Age (Cambridge: Polity Press).

Gong G W (1984) The Standard of 'Civilization' in International Society (Oxford: Clarendon Press).

Goodman N (1978) Ways of Worldmaking (Brighton:Harvester).

Hannerz U (1990) 'Cosmopolitans and locals in world culture' in Featherstone, M (ed) Global Culture: Nationalism, Globalization and Modernity (London: Sage).

Harvey D (1989) The Condition of Postmodernity (Oxford: Basil Blackwell).

Hirst P and Thompson G (1996) Globalization in Question (Cambridge: Polity Press).

Hobsbawm E J (1992) Nations and Nationalism Since 1780 (Cambridge: Cambridge University Press).

Howard R E (1993) 'Cultural Absolutism and the Nostalgia for Community', Human Rights Quarterly 15:315-338.

King A D (1995) 'The times and spaces of modernity (or who needs post-modernism?)' in Featherstone, M et al. (eds), Global Modernities (London: Sage).

Lash S and Urry J (1994). Economies of Signs and Space (London: Sage).

Levinas E (1981) Otherwise than Being, or Beyond Essence trans. Lingis A (The Hague: Martinus Nijhoff).

Magdoff H (1972) 'Imperialism Without Colonies' in Owen, R and Sutcliffe, B (eds) Studies in the Theory of Imperialism (New York: Monthly Review Press).

Moore W E (1966) 'Global Sociology: The World as a Singular System', The American Journal of Sociology, 71: 475.

Parker K (1997) 'Official Imaginations: Globalization, Difference, and State-Sponsored Immigration Discourses', Oregon Law Review 76: 691.

Pashukanis E B (1978) Law and Marxism: A General Theory (London: Ink Links).

Perrin C (1996) Breath From Nowhere: Justice and Community in the Event of Human Rights, Ph.D. Dissertation, University of Kent at Canterbury.

Perrin C (1999) 'Approaching anxiety: the insistence of the postcolonial in the declaration on the rights of indigenous peoples' in Darian-Smith, E and Fitzpatrick, P (eds) Laws of the postcolonial (Ann Arbor: Michigan University Press).

Robertson R (1987) 'Globalization Theory and Civilization Analysis', Comparative Civilizations Review 17: 20.

Robertson R (1990) 'Mapping the global condition: globalization as the central concept' in Featherstone, M (ed) Global Culture: Nationalism, Globalization and Modernity (London: Sage).

Robertson R (1991) 'Social theory, cultural relativity and the problem of globality' in King, A D (ed) Culture, Globalization and the World-system: Contemporary Conditions for the Representation of Identity (Basingstoke and London: Macmillan).

Robertson R (1992) Globalization: Social Theory and Global Culture (London: Sage).

Robertson R (1995) 'Globalization: time-space and homogeneity-heterogeneity' in Featherstone, M et al. (eds) Global Modernities (London: Sage).

Said E W (1985) Orientalism (Harmondsworth: Penguin).

Sakai N (1988) 'Modernity and its Critique: The Problem of Universalism and Particularism', The South Atlantic Quarterly 87: 475.

Santos B de Sousa (1995) Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (New York and London: Routledge).

Silbey S (1997) 'Let The Eat Cake: Globalization, Postmodern Colonialism, and the Possibilities of Justice', Law and Society Review 31: 207.

Taylor J G (1979) From Modernization to Modes of Production: A Critique of the Sociologies of Development and Underdevelopment (London and Basingstoke: Macmillan).

Tennant C (1994) 'Indigenous Peoples, International Institutions, and the International Legal Literature from 1945-1993', Human Rights Quarterly 16:1-57.

Teubner G (1997) 'The King's Many Bodies: The Self-Destruction of Law's Hierarchy', Law & Society Review 31:763.

Turner B (1994) Orientalism, Postmodernism and Globalism (London: Routledge).

Waters M (1995) Globalization (London: Routledge).

Williams P (1991) The Alchemy of Race and Rights (Cambridge Mass.: Harvard University Press).

Wilson R A (1997) 'Introduction' in Wilson, R A (ed) Human rights, Culture and Context: Anthropological Perspectives (London: Pluto Press).

Wolf R R (1982) Europe and the People Without History (Berkeley: University of California Press).

World Council of Churches (1994), Ecumenical Refugee and Migration News 94/10.

Zizek S (1992) Enjoy Your Symptom!: Jacques Lacan in Hollywood and Out (New York and London: Routledge).

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