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From compassion to coercion
Author: David McGrogan

This book describes how human rights have given rise to a vision of benevolent governance that, if fully realised, would be antithetical to individual freedom.

It shows that contemporary human rights practice is increasingly managerial in nature, interested above all in measuring and improving human rights performance. This has the effect of shifting the focus of human rights from the individual rights-holder to the activities of the duty-bearer: the state, international organisation, or business. The result is a preoccupation with achieving measured improvements within abstract groups such as the population or ‘stakeholders’, with the individual rights-holder being relevant only insofar as he or she is a datapoint in a larger grouping. The book then analyses this trend and its consequences. It describes human rights’ evolution into a grand but nebulous project, rooted in compassion, with the overarching aim of improving universal welfare by defining the conditions of human well-being and imposing obligations on the state and other actors to realise them. The ultimate result is the ‘governmentalisation’ of a pastoral form of global human rights governance, in which power is exercised for the general good, moulded by a complex regulatory sphere which shapes the field of action for the individual at every turn.

The conclusion is that it is unsurprising that this alienating discourse has failed to capture the popular imagination – and that if the human rights movement is to succeed it may be necessary for it to do less rather than more.

David McGrogan

strict they may prove inflexible. This means that standards are best left open-ended, which in turn means that a class of experts must come into existence “with sufficient latitude to adjust and optimise, to balance and calculate.” 5 Implementation of the purpose, in other words, is too nuanced and complex for as blunt an instrument as law, and must be replaced with the “contextual ad hocism ” of technical expertise. 6 The result is a turn to policy making: a shift from “international law’s archaic mores [to] a political science-inspired language of

in Critical theory and human rights
David McGrogan

may be necessary to “govern a little less.” Critiques of managerialism While “the governmentalisation of global human rights governance” is my own coining, I am far from being the only theorist to have identified a significant movement towards the managerialisation of human rights taking place, or to have developed a critique of it. And, of course, what is taking place in the field of human rights has much in common with developments in other fields of international law – not to mention across governance in general around the world. That is to say, the

in Critical theory and human rights
David McGrogan

achieve them programmatically. We saw that this often derives from a conception of the State itself as a universitas – an enterprise association with the amorphous goal of improving the well-being of its members. In such circumstances, law is frequently mobilised to achieve that goal. We concluded that international law will be similarly led to take on a teleocratic guise when international political organisation is thought of in terms of a universitas , and that this will therefore be true of international human rights law specifically. This suggests that

in Critical theory and human rights
Abstract only
David McGrogan

it would be a mistake to describe it as a rejection of international law as such. As James Crawford and Koskenniemi both rightly point out, the basic principles of public international law – sovereignty, non-intervention, diplomatic law, pacta sunt servanda (which Crawford calls “necessary international law”) – are not subject to challenge and appear in some ways to be stronger than ever. 9 What is being challenged instead is, in Koskenniemi’s words, its “ideological ambiance.” 10 It is the ambitions of raison du monde which are being challenged – that

in Critical theory and human rights
Abstract only
The vain search for legal unity in the fragmentation of global law
Andreas Fischer-Lescano and Gunther Teubner

distinct nations of private international law, but from collisions between distinct global social sectors. 2 And indeed, a quarter of a century later, an almost explosive expansion of independent and globally active, yet sectorally limited, courts, quasi-courts and other forms of conflict-resolving bodies did occur. 3 The Project on International Courts and Tribunals 4 has

in Critical theory and legal autopoiesis
Abstract only
David McGrogan

, governing themselves inter se by rules to which they and they alone are subject, suddenly finds the human individual thrust into its midst. For hundreds of years, “international law and the law governing individual life did not come together.” 4 But the creation of the United Nations (UN) Charter and Universal Declaration of Human Rights (UDHR) brought about the recognition that “the individual, by dint of the acknowledgement of his fundamental rights and freedoms, [is] the ultimate subject of international law.” 5 This story has been criticised more or less

in Critical theory and human rights
David McGrogan

of techniques developed in the context of business management in other fields – or, alternatively, simply hierarchical or “top-down” organisation in general. 2 The purpose of this section is not to provide a survey of those existing usages or to provide a definition of general applicability. Rather, it is to outline the core elements of what I will refer to subsequently as “managerialism” within the context of human rights for the purposes of this volume, drawing primarily on the work of the most prominent thinker in the field of international law to have

in Critical theory and human rights
David McGrogan

suggested was the case with law in general, these conditions partially exist in the realm of ideas and are partially simply pragmatic. In the first place, the international human rights system, like all international law, remains predicated on the principles of Westphalian sovereignty – irrespective of sustained and widespread scepticism, dissatisfaction, and rebuke – and the result of that brute fact is that direct rule-making and enforcement is conceptually impossible. In the second, the inability of law to achieve desired ends in its own right – its incapacity to, for

in Critical theory and human rights
Peter J. Spiro

. States are even becoming constrained by international law in their membership practices, something that hardly computes in a Walzerian equation (Spiro 2011 ). “Access to citizenship” points to citizenship for habitual residents as a baseline from which to perfect other rights. It also looks to apply non-discrimination norms to citizenship practice, a radical departure from the historical discretion afforded sovereigns respecting membership. To

in Democratic inclusion