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LGD 2000 (1) - Jill Grime


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Different Priorities
Child Rights and Globalisation

Jill Grime
Child-Law Consultant
University of Warwick


Abstract

This article considers the appropriateness of the use of rights based strategies in meeting children's needs. In an era of proliferating international conventions this is an issue that demands further debate.

The starting point is the way that rights talk about children. It is suggested that ideas of difference are integral to child rights. Needs and rights are attributed on the basis of difference. The difference between children and adults is defined and informed by the scientifically based discourse of child development, on which a prescriptive model of childhood is built. Difference also structures the relationship between child rights and other cultural norms of childhood. Rights make claims to a universal application. Other constructions of childhood are redefined as local, and required to fit into the rights framework, or delegitimised.

Developing these points it is asked whether rights, as an internationally dominant discourse, can succeed in accommodating rather than excluding difference, since the process of exclusion involves an operation of power which serves to reinforce the status quo. This is a problem that is recognised in some theoretical perspectives (although only rarely applied to child rights). The response is usually in terms of restating universal claims, or advocating some form of cultural relativism. This article leans in favour of the latter. However, it also departs somewhat from this dichotomy, and argues, relying on ideas of chaos and complexity, that child rights need to be rethought.

Keywords: Difference; Child Rights; Globalisation; Chaos


This is a Refereed article published on 21 December 2000.

Citation: Grime J, 'Different Priorities: Child Rights and Globalisation', 2000 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2000-1/grime.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2000_1/grime/>



1. Introduction

Child rights get everywhere. They form the basis of indicators of national progress, the subject of media debate, and the centrepiece of international legal standards. Driven by the United Nations Convention on the Rights of the Child (CRC), policies to promote child rights are devised across the globe. In some quarters, the most vocal and dominant, such ubiquity is seen as, at worst, a qualified good. Problems are perceived by others, but child rights are persevered with as the 'language of priority in modern society.' (Campbell, 1994, p 263) or, as Baxi puts it in discussing the rights discourse as a whole, 'human rights languages are all we have' with which to challenge power (1998). My intention in this article is to question the language of rights, and to identify some of its limitations. What are its priorities, and what are the effects of applying rights to children?

Before I begin, though, I feel obliged to forestall a potential criticism from rights proponents, that I am simply indulging in an academic exercise, with little relevance to the 'real' world. Baxi, for instance, expresses his frustration with the intellectual meanderings of post modernists and relativists, which undermine the praxis of human rights, and fail to address the reality of human suffering (1998). I am, I hope, offering an academic analysis, that is after all a requirement of the discourse in which I am writing, but it is one driven by real concerns. As a lawyer who has experienced the operation of child rights at first hand, I want to ask if rights are the best we have, are they good enough? Post modern critiques (as Baxi himself acknowledges) are crucial in challenging the monolithic certainties of western thought. As I argue, the ideas of Derrida and Foucault (for example), can be used to provide a basis for what I suggest should be a priority, a rethinking of the language of rights. I make no apologies then for beginning this piece with a post modernist discussion of some of the characteristics of the rights discourse.

2. Rights Dynamics

The child rights discourse as a whole is complicated by the ongoing debate about the nature of child rights. An important tenet of the discourse is that to be a rights holder, one has to have the capacity to exercise those rights. Many theorists (and activists) would argue that children do not have the necessary capacity. As I mention below, the problem of attribution is a consideration in any discussion of the effectiveness of child rights. However my main concern is the conceptualisation of children which underlies this problem. In debating the nature of child rights, children tend to be lumped together as a homogenous group, circumscribed by age, or age ranges, depending on the theorist involved. Further, children as a group are contrasted with adults: rational/ irrational, mature/ immature; with the adult characteristic providing the norm. In effect, children are defined as not adult, as different, with the corollary that the nature of their rights is called into question. I would not for a minute deny that children have distinctive if not uniform characteristics. What I am concerned with here, though, is how these characteristics are understood, and the implications of this understanding. Following the deconstructive lead taken by Rose (1987, 1998), Prout and James (1990) and others, I will suggest that the definition of children as different is crucial to the way that they are understood in the child rights discourse.

Ideas of difference can be found at work in the rights discourse as a whole, not simply in relation to child rights. This can be demonstrated by reference to a piece by Donnelly, who, I would suggest, is a fairly typical representative of the mainstream of rights theorists. In an 'analytic critique of non western conceptions of human rights' (1986) Donnelly discusses human rights ideas in various cultural traditions, and concludes that none have a suitable equivalent to the western concept of rights. Non western concepts place too much emphasis on duty rather than rights, and (here he reveals his cold war antecedents) community, 'peoples', rights are allowed to trump those of the individual. Such is the contradiction between these positions that 'it would appear as if human rights could be combined with peoples' rights in any substantial way only with great risk to their essential character'.

In Donnelly's view it is uncompromised western human rights that are best placed to meet the needs of both western and Third World (sic) countries, because the:

'concerns and needs in the area of human rights and human dignity are, for objective historical reasons, essentially the same today in the Third World as they were two or three centuries ago in England and France.' (1986).

Modernisation is, in fact, placing non western societies in the same position as the more developed west. It is this process which provides a justification for the propagation of the rights discourse on an international basis, because rights have become as relevant in Africa as they are in Europe. Donnelly does not require a justification for his view that human rights should be propagated internationally, they justify themselves.

'...if we take seriously the idea of human rights, we must recognise them as both a historical product and of universal validity.... In fact, the idea of human rights would even seem to demand of us a concern for their realisation universally... [as for] any moral claim, which we know arises out of values that are genetically contingent but which, by their very nature must be taken to apply universally or nearly universally.' (1986).

In other words human rights are already universal because they are human rights.

What Donnelly is doing here is interesting. First of all he engages in a process of definition. It is not simply that he provides a definition of human rights as 'entitlements'. He lumps together different cultural values into one apparently homogenous 'non western' group, and treats them as dealing with human dignity. Significantly he also contrasts the two sets of ideas, arguing that human rights are in fact more effective in promoting human dignity. Non western ideas having been identified are excluded as irrelevant. There is no room in Donnelly's account for cultural relativism. Instead, as Fitzpatrick (nd) argues, it is a form of cultural absolutism that is 'the necessary supplement' which gives meaning to human rights claims such as those of Donnelly. Non western societies are, paradoxically, treated as being in the grip of absolutism, via the 'wistful social vision' of some commentators (Donnelly, 1986, Fitzpatrick, nd). Their values are de-valued, and other legal sensibilities ( Geertz, 1983) reduced to the status of tradition (Donnelly, 1986, Fitzpatrick, nd). In contrast western values are established as the prevalent norm. This tendency towards exclusion of 'non western' ideas and the associated promotion of western norms is an important dynamic of the rights discourse, both child and human.

Another dynamic in Donnelly's analysis is the relation between universalism and particularism, a dichotomy that may also be considered as typical of western thought. Particularism in this instance is understood as a (primitive?) tendency to refer to values integral to a society. Universalism, in contrast, is the application of general principles, perhaps derived from human qualities, to social behaviour. In his analysis Donnelly identifies the disappearance of particularism. Non western, traditional societies are changing, he says, they are becoming modernised. They are, by implication, becoming more like us. On the other hand, the values of one form of particularism are reinforced by Donnelly. In suggesting that human rights are not only more relevant, but are also universal in any event, he transposes concepts which have a specific origin, content and application, turning them into general principles which transcend cultural boundaries. Human (and child) rights, as Fitzpatrick suggests, apparently 'escape the trammels of culture altogether' (nd).

Derrida's analysis challenges the idea that rights are universal. He argues that the human rights discourse is limited by abuses such as apartheid. While this (or any other) negation of rights exists

'...the customary discourse on man, humanism and human rights has encountered its effective and as yet unthought limit, the limit of the whole system in which it acquires meaning.' (1986a).

The point here is not simply the obvious one that human rights do not have universal effect while abuses exist; rather that the discourse itself incorporates a limit, operating as it does within a system of thought that has produced both rights and racism. Fitzpatrick (nd) makes a related point: the assertion of human rights depends on them not being observed. Rights need racism, the one is constituted by the other. Derrida's work also points to another limit to the rights discourse. Rights lay claim to an essential form of humanity which has a universal applicability. In Donnelly's case essential humanity is represented by genetic factors (see above). Derrida argues that there is no essential human nature on which to base the rights of man (or children), there is, in effect, no essence, or none that can be conceptualised. In his terms, Donnelly is conflating genetic factors with cultural values. Rights belong to a particular system of ideas, they are limited because they are a cultural product.

Derrida's (and Fitzpatrick's) argument that rights are a cultural product has shaped my analysis. It translates into a demand that I situate myself within the western culture that produced human and child rights. My analysis will be constrained by that culture, as is that of Derrida. When confronted with apartheid, Derrida reached for essentials, for a law beyond law with which to condemn the system (1986). Nonetheless it remains important to be aware of the 'phantasms' of western thought, even if one cannot escape them, a point which another reference to Donnelly suggests. In failing to treat rights as a purely cultural product Donnelly fails to address the operation of power in his, and other commentators, analysis.

Baxi does not make this mistake, but he is critical of the absence of essentials in post modern analysis, precisely because it is an absence which robs rights of a platform, a set of universal norms, through which to address power, as Derrida found. To my mind this is the nub of the problem with rights: how do rights address power and how does power relate to rights? And power is what it is about, as Foucault recognised:

'When I think back now, I ask myself what else it was that I was talking about...but power?' (1979).

3. Foucault and Ideas of Power

The rights discourse deals in power. Donnelly, for example, argues that the individual needs rights to protect him (sic) from society which:

'in the form of the modern state, the modern economy, and the modern city, [appears] as an alien power'.

Rights are intended to restrict the power of dominant groups, and balance the interests of the individual against those of the state. Power, though, is left untheorised (admittedly a discussion of power is not the focus of Donnelly's piece). However an understanding of the way power works is important if rights are proposed as an effective response. Many child rights theorists also argue that rights empower. Roche, writing in and about the United Kingdom, is one of them. He argues that rights are a political language, a language that can change constructions of children and allow their stories to be heard. Power here is understood in terms of the power of social constructions to shape expectations and experience. In his concluding paragraphs Roche cites Patricia Williams:

'For the historically disempowered...rights imply a respect...that elevates one's status from human body to social being' (1995, emphasis added by Roche).

Power operates through the rights discourse rather than being activated by rights, as Donnelly implies. It is a recognisably Foucauldian approach to power, an approach that I now want to discuss in a little detail.

In considering power, Foucault's approach is to ask not what is power, but how power is exercised.

'To put it bluntly, I would say that to begin the analysis with a 'how' is to suggest that power as such does not exist. At the very least it is to ask oneself what contents one has in mind...' (1982).

How does power operate then, if it does not exist 'as such'? Foucault's basic proposition is this: individuals exist subsumed in a series of relations. They may be relations of capacity, of communication and of power. Power in this proposition is a relationship, not a separate entity. Power only exists when exercised between individuals and social groups.

Power is not, Foucault would suggest, a possession of, or a delegation to, particular social groups or institutions, for instance Donnelly's modern state, economy and city. That is, it is not a unidirectional force, emanating from a cohesive coalition within society and imposed on other social groups (1990). As a relationship, or network of relations, power operates at and between all levels and individuals in society. Further, Foucault argues that the operation of power is neither an act of consensus nor the effect of violence, but a mode of action which serves to 'structure the possible field of action of others' (1982), an understanding of power reflected in Roche's analysis. Foucault suggests that during the last two centuries power has increasingly been exercised in a particular way, a development of a technique originating in the Christian (Catholic) church, and which he designates 'pastoral power' (1982), a power which increasingly orientates itself around the state. Even if one does not accept the origin of this technique, Foucault's characterisation of its operation is persuasive. He suggests that this type of power is focussed both on the individual and on the community and relies on knowing the individual inside and out. Specifically, in this secular era, as the object and subject of medical and psychiatric knowledge. This approach can be seen in the relation of medicine and psychiatry to children, in the capacity of both disciplines to plot the child's expected development and intellectual skills.

The outcome of this technique of power is, according to Foucault, the subjection of the individual, that is, every individual is categorised and identified - man, woman, child, daughter, worker etc - and by that process is defined and understood. To be a child becomes being certain things, having certain needs, and being distinct from other social groups. This being a child is understood in this way not only by social actors who are not children, but also by children themselves. To be a child is to be an object of knowledge, but also to internalise that knowledge. Power is therefore experienced not merely as a negative force, but also a positive production of the individual.

Foucault's analysis of power is significant for the discussion of child rights for several reasons. It looks beyond dominant social groups to the immanent networks and effects of power. It is not a discussion at the level of 'class interests' or economic relations, but one which addresses the heart of the experience of being, of being a child. Equally it permits a discussion of how power operates, how knowledge and power combine to produce specific and powerful constructions of children. Difference, the difference between children and adults for example, becomes an effect of power.

This analysis of power, although reflected in Roche's piece, also calls into question his basic claim that rights challenge constructions of children. This is to distinguish rights from the social discourses which construct children. I would suggest though that, far from being distinctive in this way, rights are complicit in constructing the identities of children.

In suggesting that rights are complicit I am suggesting that law is a discourse of power. Foucault distinguished between the law and scientific discourses as modes of power. He argued that the law's influence was reduced in the context of the deployment of pastoral power. As mentioned above this form of power relies on medical and 'psy' discourses, discourses through which the individual can be constructed and regulated. In Foucault's analysis power has been increasingly exercised through such regulative 'disciplinary' modes of power rather than the repressive techniques represented by law.

'Our historical gradient carries us further and further away from a reign of law...' (1990).

Legal theorists, such as Smart and Fitzpatrick (see also Santos, 1995), have debated the consequences of this analysis for law. Both recognise that power operates extensively through disciplinary techniques, but both also argue that law continues to be a significant mode of power. Fitzpatrick, for instance, takes the position that law and administration (in the sense of disciplinary modes of power) are interdependent, complementary. Law provides a 'necessary supplement' for administration, by masking its operation in the legally constituted 'private' sphere of personal relations (1992). Equally law remains constitutive of social actors, through the promulgation of a legal subjectivity which replicates the controlled self responsible individual of the disciplinary techniques, and is defined in the negative as not black, female, or underage (1992). That is, it is an expression of difference.

Smart also identifies a form of co-operation between law and disciplinary modes of power (1989). She suggests that the 'human sciences' opened new fields of regulation, such as the family and childhood, which has given scope to legal intervention. The proliferation of rights attributed to children, rights based on the scientific analysis of children's needs, would support this suggestion. Indeed what seems to be happening, as Smart suggests, is that law is no longer simply acting as a repressive mode of power. In combination with disciplinary techniques it also acts to construct and regulate social relations.

The implications of these analyses can be worked through in terms of child rights. As mentioned above, one issue repeatedly grappled with is the question of the attribution of rights to children. Children are different from adults. They do not conform to the requirements of the legal subject; they are not rational, autonomous, self-controlled individuals, how can they be assigned rights? Various ways of addressing this problem are proposed, usually in terms of will (capacity) versus interest theories of rights, and I will refer briefly to the work of three authors, who take distinct positions in the ongoing debate.

Franklin (1986, 1995) offers a radical version of will based child rights. He argues that children should be treated as fully competent, with the full range of rights attributed to adults. What Franklin does not do, however, is explain how children will be able to exercise the full range of rights within current (or future) judicial arrangements. Equally, although attempting to circumvent the rational/irrational dichotomy which is used to distinguish children and adults, his claim that children are as rational as adults, does nothing to challenge the use of rationality as a basis for attributing rights.

Freeman (1983, 1992) attempts an accommodation between the rational legal subject and the irrational child, arguing that children should be understood as potentially rational and rights attributed that basis. However children still need to be restrained from possible from 'irrational' acts, illustrating the difficulty of reconciling child and rational being. Campbell (1992, 1994), in contrast, expresses a concern that a focus on rationality, (or potential rationality), unwarrantedly constrains ideas of child rights, and may be used to exclude children (and others) who lack rationality from possession of rights. He argues that the focus should be on children's interests, specifically children's current interests in being a child. This approach could challenge a rational basis for attributing rights, since rights are attributed on the basis of the child as a child, rather than on the basis of future rationality. Children could, potentially, be seen to have the right to make an 'irrational' choice, if it was one that fulfilled their current interests (working rather than going to school springs to mind as an example). However it is probable that Campbell would not go this far, since he has also argued that children may have rights but without the choice of election (1994). As a result, rationality creeps back in as a criteria for attributing rights, and children remain constructed as different, as more or less rational.

It is not only the attribution of rights to children which reflects the construction of children as different, the rights themselves refer to the same construction. Equally, the rights attributed illustrate the close co-operation between law and disciplinary discourses, law supports disciplinary effects.

Disciplines such as child psychology and child development incorporate the adult/child distinction in their analysis. It is taken as a given, one that is based upon the biological characteristics of adults and children. Children in these terms are physically and mentally immature; adults have achieved maturity. In a biological framework the conceptualisation of children is dominated by the idea of development: the movement from immaturity to maturity. As a biological process development is susceptible to scientific analysis. Physical growth can be charted and divided into stages according to chronological age. Cognitive and affective characteristics can also be identified and understood, as the work of Piaget suggests (1991).

Piaget makes the same sort of distinction between children and adults that can be found in the work of Freeman and Campbell. The essence of his analysis is that children's cognitive capacity is not only quantitatively different from that of adults, but that it is also qualitatively different (Stainton Rogers, 1992, p 95). This understanding, has helped to support a programme for teaching children to learn. It is a programme that has translated into an increasing formalisation of the learning process preferably located in a contingent institution - the school.

So having identified in children a need to learn, the discourses of child psychology have also helped to identify how that need may best be met, by sending children to school. As a result it is generally better for a child to go to school than to work.

Being better for children is one thing, but this opposition between work and learning goes further than that. It is not only better for children to go to school, children should go to school. The distance between these two statements is the distance between a scientifically established 'fact' and a social value, and it is a distance bridged by what Prout and James call 'sleights of hand' (1990).

To recapitulate. Discourses of child development, such as child psychology, contain ideas of progress and evolution, the same ideas which inform debates about social development. Implicit in both types of discourse is the notion of movement towards a completion and an achievement of potential. Less developed societies can be guided towards their full potential through sound political and economic policies; one has only to think of the work of Rostow, or even Robertson's stages of globalisation (see below). Social and scientific metaphors have become mixed in the 'development' debate. A similar conflation occurs in the application of scientific knowledge (particularly psychological knowledge) to social situations; that is biological characteristics are given a social meaning. In the case of children they are, as has been seen, defined as immature, lacking rational thought and as needing to learn. They are in effect proto social beings. This translates into a requirement that their development be secured. Following on from Piaget et al the mode of transition is clear, some form of structured learning process is needed, as a result of which children will become a social person prepared 'for an active adult life in a free society' (Unofficial summary article 26 CRC). In fact, child development is part of social development.

'The key message of the 1990 World Conference on Education for All in Jomtien, Thailand, was that investing in children's education is the single most effective way of achieving both accountable democratic governance and socio-economic development.' (Boyden, 1994 ).

In this interpretation learning is at one and the same time a natural and a social requirement. A natural and social requirement reinforced by social rules such as the right to education identified by the CRC, and echoed by an array of handbooks on child rights. Law complements the sleight of hand, and confirms the construction of children as different. At the same time other ideas of children, for instance ideas which do not demand that children be socialised through education, are excluded.

Not all theorists would agree with this understanding of the effect of law, including some of those who argue in support of the concept of rights. Baxi, for instance, is ambivalent towards the idea of construction. On the one hand he criticises discourse analysis, I think wrongly, for denying reality, including the reality of suffering (1998). On the other hand he accepts that rights do construct, but that the constructions in operation are more empowering than the 'primordial identities' that they replace (1998). I would suggest though, that in supporting the construction of children as different, as (for example) irrational and needing to learn, rights replace one set of stereotypes with another, stereotypes which fail to address, in fact exclude , the complexities of children's lives. Is a right to education empowering for all children, for children who need to work?

A final point on Foucault and power. Foucault developed a genealogical approach (1984) through which to locate the potential for points of resistance to the dominant constructs, a potential integral to his idea of power:

'Every power relationship implies, at least in potentia, a strategy of struggle, in which the two forces are not superimposed, do not lose their specific nature, or do not finally become confused. Each constitutes for the other a kind of permanent limit, a point of possible reversal' (1982).

Ideas of resistance from within law have been influential in conceptualising ways of addressing the operation of power through law (Ghai, nd, Merry, 1995). Baxi uses ideas of resistance and struggle in his analysis (1998). His argument relies on the inclusive nature of what he calls 'contemporary' human rights (1998). He contrasts this form of rights with 'modern' human rights, which was (and is?) exclusive in conception and implementation, applicable only to those with will and reason, that is adult western males, and denied everybody else. Contemporary human rights, on the other hand, supports a multiplicity of right claims. No longer the domain of western style states, local communities, NGOs, 'NGIs', everybody, can and do contest rights and struggle to develop a new discourse. I would question how far this free wheeling exuberance is currently available in many national debates on child rights, a point which leads me to look more closely at the context in which rights are discussed, using 'globalisation' as a focus for my analysis.

4. Globalisation

Globalisation is a buzz word of the 1990s that shows no sign of losing its resonance in the immediate aftermath of the millennium. It is often used as a way of conceptualising current social relations, and predicting future ones. Various accounts exist. One type of account focuses on the technological developments, which, at an apparently exponential rate, serve to bind the world together; developments which Giddens (1991) links to a change in the sense of self and social organisation. Other accounts chart, from positive (liberal) and negative (often neo- Marxist) positions, the advance of the capitalist market system and associated liberal values. In some of these accounts 'second' and 'third' world countries are identified as interacting with and perhaps growing more like, the 'first' world not only in economic terms but also in terms of value systems. Some proponents of child rights, those who treat the promulgation of the CRC as a relatively uncomplicated matter of acceptance and implementation, can be placed in this category (see for example Hammarberg, 1990). A third set of accounts look more closely at cultural values and asks how they are affected by the concentration of interaction generated by technological and economic developments. Although these accounts tend to have a teleological quality, they are important for my analysis. They provide a way into exploring how child rights, as a western cultural product, operate in an international context. I have found the work of two theorists particularly helpful, Robertson and Appadurai, who offer contrasting dynamic models of interaction on a global scale.

Robertson defines globalisation as involving 'the intensification of consciousness of the world as a whole' (1992) and at the centre of his analysis (and also that of Appadurai) is a concern with the way in which global consciousness is structured. How, Robertson asks, can global actors think about the world? In answer to this question he suggests that, in the current phase of globalisation, global ideas are structured around four organising components or 'reference points' identified as: national societies; individuals; the world system of societies; and human kind (1992). Global actors are, he argues, constrained to conceptualise the world in relation to these particular ideas.

This description of Robertson's model is derived from the initial summary which he sets out at the start of his analysis, and then goes on to develop in more detail. It should be apparent from the description, that this model of the dimensions of global consciousness involves an idea of integration at both epistemological and practical levels (despite his disclaimer 1992). In epistemological terms Robertson is setting out to capture the relationship between 'the world and the primary 'objects' which appear to exist in the world'(1992) in a way which recognises complexity and embraces both wholeness and discontinuity. He does this by identifying the basic components of the global field, such as 'national societies', and combining this identification with an acceptance that global actors may vary in the way they think about these components at different times and in different ways. At the same time he suggests that, practically, global actors have no option but to think about the world in terms of 'national societies', because of the particular historical trajectory that global relations have taken. It is possible, Robertson notes, that alternative forms of globalisation could have occurred, for example Islam 'has had a general 'globalising' thrust' (1992); but at present, and presumably for the foreseeable future, it is these essentially western reference points (although Robertson does not give them this label) which have come to dominate. The end result is, in Robertson's words, a trend towards 'unicity', as distinct from homogeneity or heterogeneity.

To develop his analysis of global interaction, Robertson stresses the need to focus on empirical situations, 'on actual intersocietal and intercivilisational encounters' (1992), and at this point he introduces the keynote notion of syncretisation, as a way of conceptualising how these encounters work.

Syncretisation is an idea derived from the study of religious systems, and is defined by Robertson as the 'mingling of two or more religious traditions' (1992). As this definition suggests, syncretisation appears once again to involve an integrative understanding of global encounters, a point also made by Robertson's empirical example that deals with religion in Japan. Japanese religion, Robertson suggests, represents a mixture of different traditions, which operate not to contradict but to legitimate each other. At an individual level this involves the acceptance, perhaps even the expectation, of the peaceable coexistence of different religious perspectives expressed by the saying '... Shinto is for life and Buddhism is for death.' (1992). Once again this understanding of global interaction as syncretisation allows Robertson to incorporate into his analysis ideas of uniqueness and discontinuity, wholeness and continuity.

Robertson's analysis of globalisation is useful because it provides a way into examining the relationship between disembodied global ideas and statements, and the concrete experiences of global actors at all levels. Another way of looking at the same problem is the work of Appadurai who presents a very different picture of global consciousness, one that focuses on disjuncture rather than integration, tension rather than syncretisation (1990,1996). He addresses what he calls the 'global cultural flow' through a series of 'scapes', understood as subjectively governed networks of abstract ideas and concrete experiences, loosely organised into five groupings: ethnoscapes, technoscapes, finanscapes, ideo and media scapes (1990). Appadurai sees these groupings, which fulfill a similar function to Robertson's reference points, as containing the 'building blocks' of the 'imagined worlds' of global actors (1990 ). This approach to the dynamics of global consciousness though, suggests the potential for a multiplicity of ways of conceptualising the 'world as a whole', according to the various ways that actors select these blocks and assemble them; a multiplicity signified by Appadurai's recasting of Anderson's descriptor as 'imagined worlds.' Adding another level of complexity, Appadurai states that at the 'core' of his model is the idea that there is a 'growing disjuncture' between the groupings or scapes. Cultural scapes inevitably overlap, but he suggests that the relationship between them changes as the speed of global interaction intensifies by means of technology and also through the increased movement of money, goods, and global actors themselves, all of which encourages the development of incoherence. As a result, the overall picture of global interaction proposed by Appadurai, is of a spiralling disconnection quite at odds with Robertson's movement towards unicity.

Of particular relevance to any discussion of international legal standards, is Appadurai's characterisation of ideoscapes. These he describes as a 'concatenation of images' of political and ideological ideas, ideas such as democracy and rights, derived from 'elements of the Enlightened world- view' (1990). As Appadurai acknowledges, within the western perspective these ideas have a certain coherence, but, he argues 'their diaspora across the world... has loosened their internal coherence'(1990). As politically charged ideas are translated from context to context, their meanings become fluid and unpredictable, informed by the process of communication and the context into which they are introduced. The concepts of rights and democracy have a global resonance, but the ways in which they are used and understood in China and the United States, or in Sri Lanka and Tanzania are not necessarily equivalent.

5. Globalisation and Child Rights

Theories of globalisation have influenced the analysis of some child rights commentators. Burman, for example, draws on Appadurai's analysis when suggesting that rights should be conceptualised as a globalised discourse, rather than as reflecting either local or global ideas (1996). By this she means that rights should be seen in dynamic terms, shaped by the interaction of local agendas, international relations and normative ideas, but equally as one in which specific ('northern') perspectives tend to dominate. Having defined the rights discourse in these terms she goes on to detail her concerns, concerns that I share, about the potential of rights to support the 'naturalization of normative evaluations about what children are, and should be like' (1996). As she suggests, rights become not simply legal claims, but expressions of the right way to secure appropriate child development, (1996), a tendency towards naturalisation that she sees as 'inherent to the enterprise of liberal rights'.

Burman's response to this rights based entrenchment of northern models of childhood is to propose (although she does not use this phrase) that rights should be made more culturally sensitive, while being retained as 'a broad ethical framework' (1996). This she suggests is a way forward down the 'difficult path' between cultural imperialism and relativism. More specifically she argues, following Parker, that the best interests principle should be interpreted in terms of local conceptions of childhood, while the CRC remains a frame of reference.

An-na'im's analysis is also concerned to make child rights more culturally sensitive (1994). He takes as a basic premise that child related norms can be and may continue to be divergent. This he treats as problematic in the context of the promulgation of a set of international child rights standards (1994). His proposed solution, reflecting the idea that cultures are inherently flexible and interactive, is the widespread adoption of procedures which promote dialogue and challenge power relations in the definition and implementation of the principle of best interest in a cultural context. For instance he discusses what he describes as the dilemma of child labour. It may be proposed to prohibit child labour where children cannot be safeguarded from its exploitative effects. However who is defining what is and what is not exploitation? What sort of work would be affected? Which children will benefit and how? An-na'im argues that all members of society should be given the opportunity to participate in a debate about these ideas, and enabled to express alternative ideas which can be incorporated into any policy formulation (1994). From this process a genuine normative consensus could emerge, based on an interaction between local ideas ('folk models') and international standards.

An-na'im's approach has much in common with that of Burman. Both recognise the power of dominant discourses in shaping child related norms internationally. Both argue for the need for a dynamic interaction between local and global ideas of childhood, and An-na'im proposes a model by which such an interaction can occur. There is a difference though, I think, and that is over the level of normative agreement possible internationally. Burman accepts, as I mentioned above, that there is the potential for both an essentialising imperialism and a spiralling relativism in a globalised discourse of rights. However she also argues that:

'acknowledging the power relations that enter into the production and interpretation of practices may not only relativize, but also, when attended to in their specificity, can fix interpretation.' (1996).

This would suggest that diverse child rearing practices could be recognised, but the retention of the CRC as a broad ethical framework would establish the limits of this diversity and curtail the 'radical indeterminacy' of globalisation. An-na'im goes further. He suggests that, in due course, 'a genuine normative consensus' can be achieved on both the definition and implementation of best interests. That this general consensus is not simply intra- cultural is suggested by his anticipation that local ideas, folk models, can be modified to take into account, or used to legitimate, international standards (1994). He seems to anticipate that child development practices can be brought more closely in line with the CRC. An-na'im, then, is suggesting that a truly universal set of norms may be achievable through global cultural interaction, while Burman limits herself to trying to tread successfully 'the difficult path between the globalizations of cultural imperialism and the cultural relativism of localized conceptions' (1996).

Burman and An-na'im represent a strand in the child rights debate which, unlike analysts like Donnelly, confronts the question of cultural interaction. It is a question that brings us back to the work of Appadurai and Robertson. Of course Appadurai and Robertson do not exhaust the various perspectives on global interaction, but they do provide interesting and contrasting scenarios.

6. Globalisation and Chaos

What is striking about the globalisation debate is the way that it reproduces that central dynamic of the Enlightened universe already discussed in connection with rights, the dynamic of difference: the relation of self to other, global to local, universal to particular. In many ways globalisation amounts to a reincarnation of the relativism- universalism debate, but an underlying assumption is that globalisation reflects a change in the relation between the universal and particular. Robertson's analysis is a case in point.

Robertson's treatment of the relation between the universal and the particular is consistent with his idea of a growing, integrative or syncretic unicity. Relativism, in his terms,

'involves, for the most part, [a] refusal to make any general 'universalising' sense of the problems posed by sharp discontinuities between different forms of collective and individual life...' (1992).

At the other extreme, Robertson suggests, is 'worldism', which is based upon the claim that it is possible to grasp the world as an analytical whole, a position which presumably involves a bias towards sameness as opposed to the radical difference of relativism. Robertson's analysis, on the other hand, involves the attempt to encompass the pressures towards sameness and difference in global interaction. More specifically, he suggests that the relation between universalism and particularism is a 'basic feature of the human condition' thematised 'with the rise of the great religiocultural traditions...' (1992). Further, he argues, this same relation is increasingly important in structuring understandings of the world as a whole. There is now an experience of both particularism and universalism (for example in the influence of concepts such as 'humanity' and 'the individual') to the extent that what we are seeing is a:

'massive twofold process involving the interpenetration of the universalisation of particularism and the particularisation of universalism...' (1992, italics in the original).

Universalism and particularism, he suggests, are 'basically complementary' (1992).

An-na'im shares with Robertson the idea of the potential for an integrative wholeness in global interactions, in his case encapsulated in the idea of a 'genuine' normative consensus. The implications of both accounts is that interpenetration or consensus will proceed in line with a western ontology. As already noted, Robertson anticipates that global actors will relativise themselves in terms of concepts such as the nation state and the individual. If this is the case, then it is possible that alternative ontologies, those that stress ideas of community for instance, will be excluded. An-na'im recognises the problem and hopes to address it through his model of dialogue. However he accepts that 'southern' theorists are in fact constrained by western ways of conceptualising childhood (1994), making effective dialogue difficult. Indeed western ideas have shaped his own approach. He does not hide his own personal commitment to the principles set by the CRC (1994). In both cases then integration or consensus may be at the price of exclusion. As such the new global relations envisaged by Robertson and by An-na'im may amount to no more than a continuation of the same old relations of power under a new name (Fitzpatrick, nd), but the construct of 'globalisation' allows this continuity to be obscured.

Appadurai provides a different way of conceptualising international relations, one that conflicts with that of Robertson (and also of An-na'im). It is a conflict which is made apparent in his opening statement:

'The central problem of today's global interactions is the tension between cultural homogenisation and cultural heterogenisation' (1990).

In Appadurai's terms, against the background of the moving landscapes of ideas, the potential exists for equally fractured and disjunctive apprehensions of sameness and other. Forces of homogenisation, deployed by states, aspiring nationalisms, campaign groups and intellectuals, interact with trends towards heterogeneity deployed by states, aspiring nationalisms et cetera. In terms of child rights the conflicting trends can be seen in the rush to ratify the CRC, combined with the widespread failure to implement it identified by Burman (1996). Political agendas demand simultaneously that states sign up as a mark of their civilised nature, and that local, especially religious, values associated with children and family be respected and promoted. The result, Appadurai suggests, is the:

'mutual effort of sameness and difference to cannibalise one another and thus to proclaim their successful hijacking of the twin Enlightenment ideas of the triumphantly universal and the resiliently particular.' (1990).

Although western 'master narratives' continue to bee influential in Appadurai's model of international relations (perhaps more influential than he would acknowledge), his 'chaotic' approach (1996) does suggest a way of getting beyond the same old relations of power referred to by Fitzpatrick above. Chaos, in this sense, refers to theoretical developments in physics and mathematics over the last three decades. As is often the case these developments are reflexive in their relation to other strands of western thought, including sociology.

A key concept of chaos theory, one that relates to Appadurai's discussion of the 'differential diaspora' of ideas, is that of dependent sensitivity to initial conditions. This concept marks a distinctive departure from classical physics in its treatment of systems modelling and variation. In brief (following Gleick's description in 'Chaos', 1987), classical physics employs a strategy of simplification in order to reach an understanding of physical systems. Systems are reduced to their component parts and reproduced in mathematical models which seek to approximate, rather to match exactly, the system's dimensions. Underlying this strategy is the assumption that small variations in the structure of a system will have negligible consequences for an understanding of the system as a whole. This assumption was exploded by the work of Lorenz amongst others. He found that small variations could have enormous consequences, a concept which he illustrated by reference to his chaotic water wheel. As might be expected, the flow of water on to the wheel causes it to rotate, a rotation that settles into a generally regular pattern. However, at a given rate of flow, the wheel begins to spin irregularly, and contrary to classical physics, never establishes a regular, predictable pattern. The change in the rate of flow in the system's initial condition, results in a change of behaviour from predictability to complete unpredictability.

The work of chaos theorists, including Lorenz, has been increasingly understood as indicating that physical systems are not necessarily predictable. This possibility has considerable implications for the way that the world is conceptualised, not least amongst physicists. Chaos disrupts the sense of an ordered universe, derived from physics' Newtonian heritage, the sense that it is possible to 'summarise the complexity of the world in a few simple rules' (Kadanoff, 1993). On the contrary the chaotic behaviour of Lorenz's water wheel demonstrated the existence of a radical disorder. Applied to Appadurai's model of the global system, with its potential for a multiplicity of initial conditions in terms of the imagined worlds of global actors, chaos theory suggests that the differential diaspora of ideas may produce not simply global disorder, but radical, unpredictable disorder in ways of conceptualising the world. Again in terms of child rights, this suggests that there may be a wide and unpredictable diversity of approaches, with different perspectives on children rejected, hybridised, or treated inclusively. Burman recognises this possibility when she suggests that rights are:

'unlikely to function as a direct equivalent to their originally western forms... since they operate in different political and material contexts.' ( 1996).

Clearly this is a very different scenario for the operation of child rights than one based on Roberston's analysis.

7. Chaotic Rights?

Chaos theory provides a useful metaphor for developing approaches to international legal theory. A version of difference which has been important in structuring ideas, particularly with regard to law, is precisely the relationship between order and disorder. For instance, the juxtaposition of law and disorder is a significant theme in Hart's 'Concept of Law' (1975). In a discussion of natural law, he suggests that it should have 'as a minimum content' rules which secure 'the minimum purpose of survival which men have in associating with each other' (1975). Unravelling this point a little, Hart's argument seems to be that the fundamental aim of human beings is to survive; survival may be achieved through social arrangements; and certain rules, 'truisms' derived from 'elementary truths about human beings' provide the basic structure of the necessary social arrangements.

The truisms identified by Hart seem to reflect a specific form of arrangement through which to achieve survival. An arrangement in which human vulnerability and potential aggression are recognised, as is the finite nature of resources, resulting in the need to respect a concept of property. As part of this social set up, which bears more than a passing resemblance to existing 'developed' societies, Hart includes the need to secure 'voluntary co-operation in a coercive system' (1975 italics in original). This requirement exists because even though all citizens may recognise the need to protect collective interests in order for society to survive,

'all are tempted at times to prefer their own immediate interests and, in the absence of a special organisation... many would succumb to the temptation' (1975).

Therefore those who cooperate to support social order, should be protected from those who do not, or cannot, by a special organisation, in other words by law.

As Fitzpatrick comments (1992) Hart's analysis establishes law as an ordering order. Order is a prerequisite and law delivers it (1992). Further, Fitzpatrick argues (1992, 1995), law acts as a bulwark against disorder, a specific form of disorder, the disorder of the 'other'.

In discussing the relationship between self and other, Fitzpatrick charts the development of a western perspective in which the natural order found in non western societies is both recognised by, and distinguished from, the civilised, artificial order of western societies (1995). This perspective involves the application of what he designates the principle of 'incommensurability', which he suggests has informed western thought. Incommensurability demands the acceptance of the internally incoherent assumption that all societies, peoples, cannot know each other. As a result the characteristics of non western societies are external to western in the sense of being absolutely different, unknown; but at the same time, by being external they also surround and encompass western societies. Civilised order, legal order, Hart's voluntary, coercive system, is what distinguishes western social organisation, and prevents disintegration into the surrounding partial disorder of the natural, non western state. Law, then, reproduces western social identity in its encounter with non western groups, excluding other accounts of order. It is, Fitzpatrick suggests, a reproduction that occurs in the application of western law to 'indigenous' (for want of a better word) peoples, and of post colonial law in law courts throughout the non western world.

Fitzpatrick suggests that there have been two distinct responses to this process of exclusion. Some have argued for the recognition of non western values as opposed to those of the west, an argument which as Fitzpatrick points out, reinforces the juxtaposition of west and non west, self and other. In contrast, a more 'transgressive' approach, has been to deny the categorisation of self and other, and to propose a different perspective through which to order identity. Again though, the attempt to overcome the original categorisation demands a recognition of its existence and of its dominance (1995). An alternative strategy, proposed by Fitzpatrick, involves neither the rejection of the original categorisation, nor the perpetuation of the other as different. Instead, he argues, that an effective approach would be the recognition of the other as the self; a recognition that would allow 'the excluded... to re-enter' and in so doing dissolve the opposition on which western identity is based.

Fitzpatrick's argument that the excluded be included has implications for the way that order is understood. If, in the dominant perspective, western order is opposed to non western disorder, a process of inclusion would demand a disruption of order, and an eruption of disorder into order. A dissolution of difference. It is at this point that one can begin to pick up resonances between Fitzpatrick's analysis and elements of chaos theory. Chaos theory, as already suggested, appears to indicate the disruption of order, of an ordered understanding of systems. At a given point systems will dissolve into disorder and become completely unpredictable. Yet chaos theory is itself unpredictable, because it is at least arguable that it rescues order from chaos.

The work of Feigenbaum and Mandelbrot for instance, suggests that patterns are perceptible in the disorder that chaos describes. The implication of their analysis being that chaos and order coexist. What chaos theory demands then is a new sense of order, one that includes disorder. Physicists can no longer 'summarize the complexity of the world in a few simple laws...', but must instead 'attempt to construct laws for chaos' (Kadanoff, 1993, p403). By analogy, and following Fitzpatrick's example, social laws may need to make the same attempt. An attempt which will involve inserting complexity into a 'few simple laws', including child rights.

Burman, of course, could be said to be confronting complexity. She suggests that the CRC can be retained as simply an ethical framework, one that provides the basis for a wide range of variety approaches to child development. By this means she seems to be trying to establish limits to diversity while at the same time recognising difference. A complex order is rescued from chaos, a 'difficult path' illuminated, but does she go far enough? Are the normative ideas that underpin rights sufficiently flexible to accommodate different accounts of childhood, even to the extent that Burman proposes? Is the ethical framework of the CRC separable from the vision of society, of the place of the child, that it imports?

I would argue that it is necessary to go further than Burman proposes; that Baxi's inclusive form of contemporary human rights can best be achieved by 'unthinking' (Santos, 1995) rights. Such unthinking involves 'thorough but not nihilistic destruction and discontinuous but not arbitrary reconstruction' (1995). For me the central issue in such unthinking would be the dissolution of difference that Fitzpatrick suggests. In terms of child rights this would mean the removal of difference as a structuring concept, through which children are defined (by means of the discourse of child development), and rights attributed. Rights would no longer be rights as currently conceived, but there would be a basis on which to deal with the complexity of children's lives.

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Rose Nikolas and Valverde Mariana (1998) 'Governed by Law?' 7 Social and Legal Studies 541-551.

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