Sunday 27 October 2013

Is exclusion necessary for inclusion? 2) Human rights law can modernise legal linguistics

Simply put, citizenship is desirable because it offers protection. To acquire citizenship, one must adhere to mainstream norms, as defined in the law. Those who have extra-normal lifestyles are treated as outside the system and are therefore unprotected. These extra-normal lifestyles are not necessarily chosen, but might be indigenous, traditional, radical, or perhaps simply undesirable.

“Bare life” manifests as a legal existence without citizenship (what Hannah Arendt called “statelessness”). Without legal protection, a category of society can be discriminated against. For this reason, the law is the most important dogmatic authority in the 21st century.

In this way, the process of marginalisation/exclusion serves to contextualise the significance – and the import – of citizenship. Those without the protection of citizenship end up as the homo sacer (a Roman term describing a person who can be legitimately sacrificed; he or she is outside the protection of the law).

Perhaps counter-intuitively, human rights law maintains this system of governance because it necessarily exists within it. Democratic judiciaries adhere to 21st century boundaries of sovereignty – as upheld in international law, which is sponsored by the United Nations. According to this model, the suspension of judicial authority (and therefore the defiance of legal jusridiction) is possible in favour of sovereign, Executive decision-making. This creates Agamben’s so-called “State of Exception”.
As human rights law does not directly challenge this system, it is complying with the reproduction of “Bare Life”. However, the law challenges it from within by chipping away at the linguistic limitations of (inherently conservative) dogmatic concepts of identity. The law explores the boundaries of language as it defines and redefines words like “gender”, “marriage”, and “privacy” so as to ensure their meaning is as contemporary as possible.

By using human rights law to modernise legal linguistics, the dogma that upholds Bare Life can be critiqued.

A state's official decision-making must be continuously challenged because language and social norms often change more quickly than the legislative process. Citizens may ask: “Why is this behaviour forbidden?” If the prohibition does not withstand international law's doctrines – “necessary in a democratic society”, “in the public interest”, “in the interests of national security”, etc. – there is no legitimate reason to prohibit that behaviour. The likelihood is that many behaviours prohibited today will not be prohibited forever. For instance, the criminalisation of homosexual acts is now outdated. The legal status of marital rape has altered with evolving views on the equality of the parties to the legal contract of marriage. These 'norms' have changed as our understandings of the behaviour changes.

It is never a question of a behaviour being right or wrong. It is a question of whether we believe a behaviour to be right or wrong now. The law can influence this. Examining our current norms and challenging them according to the Rule of Law is perhaps the best way to combat a Modern paradigm whereby exclusion is necessary for inclusion.

Is exclusion necessary for inclusion? - 1) The person who can control language can control society

The concept of identity is fluid, changing with contemporary politics. As language evolves to unite people – through understandings of ideas like “nationality”, “race”, or “ethnicity” – the idea of ‘Self’ reflects these changes. Identity is not definitive, but is interdependent and inter-relational.

The recent news story about Romany child abduction feeds into this sense of identity: the media constantly questions who belongs in our society and who does not. We typify social categories so as to relate to each other more easily, and we self-identify in opposition to the Other. This Other is, in turn, defined by the Law.

The Law outlines who is worthy of protection. Nominally, modern laws in Europe operate on the basis of a rights-based framework. The European media, however, often portrays a supremacist outlook whereby the victims are largely white, Christian, and ‘Us’. The adoption of the name “Blonde Angel” for an abducted child is a clear manifestation of this perspective.

In Northern Ireland (NI), there is a battle within the law to define where the lines of protection should be drawn. The Appeal Court has stretched the relevant language to include unmarried couples in the list of legitimate adoptive parents in Northern Ireland (in line with English Law and Scots Law). NI Minister of Health, Edwin Poots, has challenged the Appeal Court’s decision and will follow the issue to the UK Supreme Court in defiance of a decision that accepts gay and unmarried parents as legitimate adoptive parents in NI.

The idea of mainstream norms is a product of dogma. The ideal that all humans should behave in a particular way could be construed as moral authoritarianism. Yet, this is how the law’s authority functions. Within this model of government, the Law dictates what we can and cannot do, what we can and cannot say, who we can and cannot be.

Dogma changes through language. Where words evolve, the subtext and context of norms alter. Theoretically, therefore, the person who can control language can control society. The usual mode of control thus far in the 21st century is via the Rule of Law. The law may criminalise attitudes so long as the restrictions are within the accepted bounds of the time. (For example, restrictions on liberty must be “necessary in a democratic society” or “in the public interest”, etc. Of course, these phrases are subject to change according to which judges/systems are interpreting.)

The law serves to maintain a concept of identity – so as to uphold Order - and therefore necessarily propounds a concept of the Other. Giorgio Agamben elaborated on this in the 1990s (Homo Sacer). His theory of “bare life” suggested that the marginalisation of certain groups was inherent to democracy in its present paradigm.

Without a comparator, the projected benefits of maintaining particular norms are not apparent. This comparator is manifested as the Other, who is excluded in law. John Pilger has recently released his latest film, called “Utopia”, which addresses the treatment of aboriginal peoples by the Australian state. The aboriginals were excluded so as to prioritise Australian colonial values and alienate the culture of the native population. This is one of the many historical examples of groups' legitimate exclusion in the law. Jewish citizens in Germany were discriminated legitimately within the laws of 1930s Germany, and Palestinian citizens of Israel have been treated differently under the law more recently, with horrifying consequences.

In this manner, it is arguable that the lifestyle of the Romany people is marginalised legitimately today.