Human Rights Law and the Marginalized Other

This is a groundbreaking application of contemporary philosophy to human rights law that proposes several significant innovations for the progressive development of human rights. Drawing on the works of prominent "philosophers of the Other" including Emmanuel Levinas, Gayatri Chakravorti Spivak, Judith Butler, and most centrally the Argentine philosopher of liberation Enrique Dussel, this book develops an ethics based on concrete face-to-face relationships with the Marginalized Other. It proposes that this ethics should inspire a human rights law that is grounded in transcendental justice and framed from the perspective of marginalized groups. Such law would continuously deconstruct the original violence found in all human rights treaties and tribunals and promote preferential treatment for the marginalized. It would be especially attentive to such issues as access to justice, voice, representation, agency, and responsibility. This approach differs markedly from more conventional theories of human rights that prioritize the autonomy of the ego, state sovereignty, democracy, and/or equality.

Dr. William Paul Simmons is associate professor, of political science and director of the MA. program in Social justice and Human. Rights at Arizona State University: His nterdisciplinary research employs numerous theoretical, legal and empirical approaches to social justice and human rights issues. He is the author of Ari:Archy and Justice: An Introduction to Emmanuel Levinas Political Thoughtand numerous. articles and chapters on contemporary; political thought. Dr. Simmons, also has worked extensively on,human rights issues in Mexico and at the U.S.Mexico border; He is co-editing a volume on localizing human rights in the U.S Mexico context and conducted, with Michelle Tellez, ground breaking ethinigraphic research; on sexual violence against migrant women. He has also published law review articles and a book chapter on violence against women in Giudad Juarez, Mexico, and has served as a consultant on human rights and social justice issues in The Gambia, China Mexico, and the United States.

Preface	p. xiii
Introduction: Deconstruction, Concrete Universalisms, and Human Rights of the Other	p. 1
Deductive and Inductive Universalisms	p. 3
Concrete Universalisms	p. 6
Toward a Concrete Universalism of the Other	p. 9
Cauterization of the Other	p. 10
Book Outline	p. 13
The Marginalized Other Does Not Appear Here	p. 15
Deconstruction of Human Rights Law
Arendt, Little Rock, and the Cauterization of the Other	p. 19
Arendt's "Reflections on Little Rock"	p. 20
Analysis of Arendt's "Reflections on Little Rock"	p. 23
Arendt's Misapplied Typology of the Private, Social, and Political	p. 24
Arendt's Misreading of the Little Rock Context	p. 27
Arendt on Judgment	p. 29
The Stages of Judgment	p. 30
Judgment of a Narrow Elite	p. 32
Arendt and the Other	p. 36
The Cauterization of Pity for the Other	p. 37
Solidarity with the Other	p. 39
Return to Little Rock	p. 40
Conclusion	p. 41
Democracy, Human Rights, and L Affaire du Foulard	p. 44
L'Affaire du Foulard	p. 46
Laicite and L'Affaire du Foulard	p. 49
L'Affaire and the Voice of the Other	p. 54
Leyla Sahin v. Turkey	p. 56
Turkish Secularism	p. 57
The Sahin Case	p. 60
The Margin of Appreciation and Consensus Doctrines	p. 62
The ECtHR's Judgment	p. 64
Judge Tulkens' Dissent	p. 65
The Aftermath of Sahin	p. 67
Benhahib's Democratic Iterations and L'Affaire du Foulard	p. 68
Benhabib and L'Affaire du Foulard	p. 69
Benhabib, Multicultural ism, and the Other	p. 71
The Need for a Continuous Deconstruclion of Law	p. 73
Derrida and the Force of Law	p. 74
A Deconstruct on of Founding Violence	p. 76
Transcendental Justice, Democratic Iterations, and L'Affaire du Foulard	p. 80
Phenomenology of the Saturated Other
Derrida, Levinas, and the Rights of the Other	p. 85
Derrida and le Tout Autre	p. 86
Levinas and the Other	p. 89
Transcendence and the Other	p. 89
Law and Institutions	p. 91
Levinas and Arendt on Human Rights	p. 92
The First Hendiadys: Arendt's The Rights of Man and the Citizen	p. 93
The Second Hendiadys: Levinas' The Rights of Man and the Other	p. 97
Levinas on Sahra and Chatilla	p. 99
The Individualized Other and Mere "Moments of Negation"	p. 102
Toward a Phenomenology ofthe Saturated Other	p. 105
The Saturated Other	p. 107
Jean Luc-Marion's Saturated Phenomena	p. 108
Levels of Saturated Phenomena	p. 109
Marion and the Individuation of the Other	p. 110
Dussel's Other as an Individualized Saturated Phenomenon	p. 113
Levels of Exteriority	p. 113
Dussel's Grand Synthesis: Etica de la Liberation	p. 117
Responding to the Other	p. 120
Tolerance and Patient Listening	p. 121
Solidarity with the Other's Proyecto	p. 123
Toward a Human Rights Law ofthe Marginalized Other	p. 124
Human Rights ofthe Marginalized Other
Learning to Learn from the Voice of the Other	p. 129
The Silencing ofthe Other in Human Rights Law	p. 130
Ranciere and the Sans Part	p. 131
Law's Categorization	p. 132
Law's Silencing ofthe Other	p. 133
Spivak and the Impossibility of "Entering the Other's Space"	p. 137
Representing the Other	p. 137
Learning to Learn from the Other	p. 141
Toward a Human Rights Tribunal ofthe Other	p. 143
Social Action Litigation in India	p. 143
Narmada: The Limits ofthe People's Court	p. 146
Project Background	p. 147
The Counter-Hegemonic Struggle	p. 149
The Supreme Court Decision	p. 152
Representing the Rights ofthe Other	p. 155
Conclusion	p. 158
Self-Ascription by the Marginalized Other in Asylum Law	p. 160
Butler and the Social Construction of Identity	p. 162
The "Don't Ask, Don't Tell" Policy	p. 164
Self-Ascription, Responsibility, and the Social Theorist	p. 165
Butler and Levinas	p. 167
Truth Regimes	p. 169
Summary	p. 171
Self-Ascription in Asylum Law	p. 171
Silencing ofthe Other in U.S. Asylum Cases	p. 173
Membership in Particular Social Groups	p. 179
Conclusion	p. 186
Heteronomic Rights and Duties	p. 189
Rights and Duties in the African Human Rights System	p. 191
Affirmative Duties to Fulfill Economic, Social, and Cultural Rights	p. 192
The Rights to Define Rights in Canadian Aboringinal Rights jurisprudence	p. 197
The Rights to Define Fundamentsl Right: R.V. Van der peet	p. 198
Justice L'Heurenx-Dube's Dissent in van der peet	p. 201
Rights Hierachies and Heteronomic Tiered Scrutiny	p. 203
Fiduciary Duties and the Honor Of th e Crown	p. 205
Heternomic Rights and Duties in the Inter-American Court Of Human Rights	p. 209
Innovation Reparations Ordered by the Inter- Amaerican court	p. 209
Moiwana v. Suriname	p. 213
Conclusion	p. 218
Conclusion: Working with the Marginalized Other to Deconstruct and Reinvigomte Human Rights Law	p. 220
Review of the Theoretical Argument	p. 220
Can Law Empty Itself of Itself?	p. 222
Continuous Deconstruction and Reinvigoration	p. 224
Bibliography	p. 229
Index	p. 247
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Human Rights Law and the Marginalized Other

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