Web viewRasch. The act of judgement ... as both word and concept has become ... The current model of production and distribution is simultaneously destroying the

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(Conference Draft)

“Love and Loathing”

Jason Backett

2017 Law and Development Conference

Cape Town, South AfricaSeptember 2017

American University, Cairo


Love and Loathing: Distorted Images in the European Mirror

ABSTRACT:

In talking about global poverty and underdevelopment, there are two stories to be told. One concerns how exploitation and plunder occur and are regulated; how public international law (PIL) functions to maintain a steady flow of resources from the underdeveloped to the overdeveloped. This is a story told by Jason Hickel, Susan Marks, Upendra Baxi, and Sundhya Pahuja, among others. It is a sordid tale, of the dependency of the developed upon the under developed; of the reliance of the master upon the slave. It is an intrigue detailing the plunder of trillions of dollars. I have written my small contributions to that narrative, but it is not my story here.

Instead, I want to tell the other story, the complementary story. The story of how this plunder and exploitation are covered up, elided, and, ultimately, ideologically reversed. This is the story of how the thieves become understood as heroes; of how the exploited become the feckless; it is the story of human rights, and of law and development. My basic claim is actually very simple (if somewhat controversial): while PIL facilitates plunder, and precludes the possibility of development, human rights law provides the alibi which denies to the underdeveloped even the moral right to develop. And the law and development movement ‘develops’ only an illusion of progress to distract from a reality of stasis or even regress.

PART 1: The Confusion of Mirrors and Lenses

“Mirrors should reflect more, before throwing back images.” Jean Cocteau.

Human rights are commonly understood as a lens through which the condition of people in various parts of the world can be impartially observed. But I believe this image is fundamentally misleading. Human rights law functions not as a lens, but as a mirror; this practice does not focus observation, rather it precludes observation, and understanding. Refusing to acknowledge this has important political consequences; it allows ‘us’, the developed, the civilised, to project our own constructions and fantasies onto ‘them’, the un(der)developed. In effect, this reiterates Edward Said’s process of orientalism.1

1 Orientalism

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Human rights and “law and development” function not to alleviate the conditions of the exploited, but rather to assuage the consciences of the exploiters. Global development has been a sham, but this does not mean that the human rights project has ‘failed’. Instead, I argue that the project has been a resounding success, it has done exactly what it was ‘meant’ to do: to justify the privileges of the wealthy by naturalising the deprivations of the impoverished. This is accomplished in numerous ways, primarily by processes of diversion, misrepresentation, and the localisation of pathology.2 The common factor is a process of constructing and (mis-)representing poverty and exploitation, under the guise of describing them.

International law – including human rights and law and development – reflects us, our civilisation and our progress; it embodies our idealised self-understanding as the common standard for all. In doing so it secures this ideal from critique or analysis. It creates a false necessity from a false contingency:3 they, who are not like us, should be like us.4 We, as the norm, must analyse – and try to compensate for – their deficiencies.5 The act of judgement becomes an act of self-exculpation. In ‘applying’ rules, in studying international law, in promoting Human Rights, Sovereignty, Constitutionalism, Development, or Humanity, we seek to exonerate those rules; and through them, to exonerate ourselves.

Consequently, a paper about development and/or human rights is always a paper about images and imaginaries. A paper of distorted reflections; for the gaze of law is not turned upon the suffering, upon the Wretched of the Earth. Instead the gaze is narcissistic: lawyers gazing at laws, and at themselves reflected (and beautified, “retouched” as photographers might say) in those laws. So, this is a paper about images, but also a paper without images. It is a paper about the images that we produce, but which we don’t see; the images which stabilise our thinking against reality. A paper, if you like, about savages, victims, and saviours.6

BACKGROUND, THE FIRST STORY SUMMARISED:

The global financial/resource economy has been built, for the last five hundred years, on the oppression, brutalisation, and plunder of non-white bodies and lands.7 The global political economy has functioned to legitimise or disguise this. The global legal order, to

2 Beckett “Creating Poverty”3 Marks4 Anghie, dynamics of difference and identity5 Rasch6 The phrase, of course, is Makua Matua’s.7 The Open Veins of Latin America

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regulate and naturalise it. Our world is neither colonial nor post-colonial; rather it is trapped in between, in the purgatory of neo-colonialism.8 In effect, however, we remain settler colonialists; just on a global scale.

It is now widely accepted that the era of colonialism saw a massive transfer of wealth (be that labour, resources, or money) from the colonized world to the colonisers. However, a moral economy has been allowed to develop, wherein the descendants of the colonisers are not responsible for their forebears’ actions or crimes, but are nonetheless entitled to inherit the profits these generated. In this context, it is understandable that demands for apologies and reparations for the crimes of colonialism are made. But what is, perhaps, less understood is the way in which such demands – in consigning the sins of colonialism to the past – disguise the (neo) colonial realities of the present.

[Section on neo-colonialism as realizing the dreams of the most farsighted colonial administrators]

Neocolonialism is a system whereby the former colonial powers (and the large-scale private interests they represent) give up formal control of a colonized territory, but retain de facto control of its economy. This is generally achieved through the complicity of the colonised elite (or those who succeed them, constitutionally or otherwise). It is, in effect, an outsourcing or freelancing of the role this elite already played in the colonial system: to maintain order amongst the natives, and to ensure resource flows from the colony to the metropole.

The process we now romanticize as decolonization (through law?) was negotiated, managed, and subverted, and lead, ultimately, to false, independence, “which, as Tsenay Serequeberhan observes, “is nothing more than the de facto renegotiation of the colonial status””.9 Following Frantz Fanon, Mobago More terms this “flag independence” (which he contrasts with genuine independence, or decolonization); it is a token, constrained, independence.

For Fanon, “it is the colonial peoples who must liberate themselves from colonial domination”. The colonial people … must make a distinction between the “true liberation” of unfettered freedom and a “pseudo-independence” whose economy is dominated by colonizers.”10 But, sadly, Fanon radically underestimated the tenacity of the colonial

8 Nkruhma9 Mabogo Percy More, “Fanon and the Land Question in (Post) Apartheid South Africa”10 Ibid.

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powers,11 and the deviousness of the global financial institutions through which they legitimated their continuing de facto control.12 The flow of resources from the underdeveloped to the overdeveloped countries did not end with the era of decolonization. In fact, the wealth disparities between these blocs have substantially increased in the decades of nominal, or “flag” independence:

In 2012, the last year of recorded data, developing countries received a total of $1.3tn, including all aid, investment, and income from abroad. But that same year some $3.3tn flowed out of them. In other words, developing countries sent $2tn more to the rest of the world than they received. If we look at all years since 1980, these net outflows add up to an eye-popping total of $16.3tn – that’s how much money has been drained out of the global south over the past few decades. … What this means is that the usual development narrative has it backwards. Aid is effectively flowing in reverse. Rich countries aren’t developing poor countries; poor countries are developing rich ones.

Decades of human rights, law and development, and even the awkward gestation of the right to development, have done little or nothing to alter, ameliorate, or improve this unequal distribution of resources and freedoms. The international war on poverty has been fought largely on a statistical register: how many people can be placed above or below a set line (the famous $1.25 a day International Poverty Line [recently recalibrated to a less elegant $1.90 a day]). But the success of this effort depends on the placement of the poverty line, and the parity at which purchasing power is set for each country, not on an actual reallocation of resources. Indeed, there are increasing numbers of academics, experts, and activists who argue that on a more realistic $5 per day poverty line, global poverty has actually, greatly, increased in recent decades. Indeed, as Pahuja notes:

[One] way of understanding the turn to indicators is as a manifestation of the anxiety of results, to shore up the project in the face of its failures, and to look for new ways to measure the project to ‘prove’ it is working.

Pahuja continues, “this failure is especially marked given the fact that in the twentieth century, the world economy has grown twenty times.” But she nonetheless concludes that, somehow, “these failures have not cast doubt on the project of development.” Hickel, among many others, has noted that the shift from the much criticized SAPs to the newly valourised PRSPs and recent initiatives around the “girl effect”, has been a shift of vocabulary rather than of prescriptive practice. But it has facilitated a paradigm shift in rationalizing failure:11 *** Need to mention Lumumba, Nkruhmah, and Sankara here.12 *** World Bank and IMF

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The rationale has come to be that structural adjustment failed to spur development and growth not because the economic policies were wrong, but because certain social structures in the global South prevented the policies from working … This twist of logic has allowed institutions like the World Bank and IMF to avoid responsibility for the human devastation that their economic policies have caused over the last three decades.

There are two separate but closely related movements at play here: the preclusion of development in the underdeveloped world, and the presentation of distributional choices as a lack of resources. These combine to present growth (including the various froms of “growth plus …”13) as the inevitable solution. This entrenches GDP as the natural order of things:

[GDP] was a number that provided scientific ratification for the United States, in its position as the world’s most powerful nation. It also replaced race as the measure of superiority between peoples … the success of independence struggles and the fatigue of Empire may have meant that former colonies were increasingly decolonising, but the universalisation of what we call international law during the imperial period meant that they could only decolonise through self-determination as nation-states … even with the realisation of the promise of formal sovereign equality, nation-states could still be ordered in a hierarchy, but with GDP instead of race as the securing value. (Pahuja 370)

FOREGROUND, THE ILLUSIONS OF THE SECOND STORY:

Human Rights law purports, through its expertise and restricted focus, to provide a neutral lens through which the world can be examined and evaluated.14 This is said to embody a universal understanding via which the dignity and freedom of individual human beings can be impartially assessed in any region or country of the world. Yet, of course, the human condition is very different in different regions of the world; and individual access to the basic material and spiritual necessities of human life is unevenly distributed. Human Rights, as impartial (expert) knowledge, as technique, purports to overcome, or efface, these differences; bringing a common standard to all. This is the standard ideological justification of all law or legal systems.

13 Sundhya14 Susan Marks “Root Causes”

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Law can be understood in myriad ways: as a system of rules,15 as a language,16 a way of looking at the world,17 or as a creator of meaning.18 In the former guises, law could be progressive or neutral, but in the latter, it can be reactionary. In this section, I will be looking at how the images, imaginary, and discourse, of human rights negate understanding of the structural forces which preclude development in so-called developing countries. For human rights do not act as a lens, but as a mirror; forcing each side to gaze at an unreal, stylised, image: preventing self-examination in one direction, generating self-loathing in the other.

Treating this mirror as a lens creates a disassociation between the material wealth of the Global North and the material deprivation of the Global South. The mirror reflects in both directions: idealising one image, pathologising the other. If we and our wealth are innocent, then their poverty is uncaused, or attributable, essentially, to localised factors or pathologies.19 Consequently, behind our image in the mirror lies the literal mirror-image: the barbarian, the self-impaired, the culturally inferior: the undeserving poor. The images in this negatively distorting mirror are intended to hold the gaze of the global poor. In constructing underdevelopment in a particular way, they lock in an image of what development means, of what it is to be developed; to be civilised – and of the gap between the Global South and civilisation.

Human Rights law, like any other form of international law, is radically indeterminate; yet the images which dominate it are remarkable consistent: the civilised European defined by his rights, development, and prosperity – reaching out to the uncivilised, the Darker Nations defined by the absence of rights, civility, or prosperity. The White Man’s Burden redux. Allied to this comes the legal economy of envy and self-loathing: if the standard of civilisation and development is set – beyond critique – then it must be aspired to:

In a situation where recognition is given without conflict, the master’s recognition … still leaves the slave in bondage, albeit being upgraded to the status of a human being … Through the very fact that the masters “decided to promote,” that is, made a concession to the Negroes, they invariably continued to retain their superiority and masterhood by other means.20

15 Ending Up/Down Arguments16 FATU17 ***18 Faith and Resignation19 Rawls, Collier20 Mabogo Percy More, “Fanon and the Land Question in (Post) Apartheid South Africa”

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European civilisation remains the (imaginary21) model, and must be reached through the (fetishized) European route to development.22 The non-European must aspire not only to a European standard of living, but also to a European understanding of personhood, culture, and the relations between these. The “gift” of freedom is made conditional upon its being exercised as a freedom to (try to) emulate the givers. Europe is posited as the norm. Defining expectations, it is placed beyond judgement;23 “knowledge comes from the developed world and is applied to the rest.”24

As each side is forced to gaze upon itself in this distorted mirror, the possibilities of development are frozen. Europe is developed, Africa must develop. Africa must become like Europe by overcoming the specifically African characteristics that prevent this from happening. Thus, African poverty appears (is presented as) uncaused, akin to European poverty of yesteryear,25 and thus escapable through industry, education, and determination.26 The question is reformulated: why has Africa remained stuck in history?

One story locates the causes of poverty in the political and institutional culture of poor societies—they have corrupt elites, oppressive governments, and no formal laws and institutions. In another explanation, the religious and philosophical traditions that underlie poor countries’ institutions are not adapted to a modern economy, and don’t reward the industriousness or co-operative talents of their members; or blame is sheeted home to the absence of infrastructure, and the limitations that offers to investors and local entrepreneurs.27

Human Rights re-enters here, as both image and narrative. Having defined development as emulating the idealised self-image of the civilised European, it becomes implicated in a fetishised history of European development, a history (re)presented – mirrored – as a road map to development: Rights – Democracy – Development.

This proposed future is, in fact, the literal inversion of the history of European Development (Development – Democracy – Rights28) which obscures the impossibility of realising rights without the material resources of development (and, it turns out, plunder). In setting rights as the historical, and ethical, prerequisite of development, it denies the under-developed not only the possibility of development; but even the moral right to

21 Ghandi22 “The Western Model is Broken”23 Rasch, Pahuja24 Pahuja 36825 Collier26 Rather than the plunder, exploitation, and genocide which fueled European development.27 Pahuja, 36728 Carbon Democracy

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progress toward prosperity. Leaving ‘us’ a flattering self-image in which to bask; and ‘them’ quite the opposite.

The uncritical acceptance of European exceptionalism and entitlement is illustrated with brutal clarity in the militarised, carceral, and evasive responses to the current (so-called) “refugee crisis”. Contrariwise, the non-European internalisation of this image can be discerned in the acceptance of no less a light than Chidi Anslem Odinkalu that we must frame African solutions from the premise “that resources and capacities in Africa, more than anywhere else in the world, are finite.”29 Africa is, of course, the most resource rich place on the planet, what is missing are not resources or capacities (unless Odinkalu is seriously suggesting Africans are genetically incapable of learning) but control: control over resources, over national development policy, over education. Conversely, European civilization is currently displaying a particularly virulent vision of its own barbaric capacity.

This combination of complementarily inaccurate images obscures the relationship between European over-development and African under-development; and the fact that European consumption patterns are not materially or ecologically available to all. European (over-) development necessitates African under-development. Only in seeing the inter-relation between the realities obscured by the comforting (or paralysing) images of rights and development can we open the path to a different understanding of development and civilisation, one realistically global in nature. “By centring the development story on growth, the promise to the poor is that they must invest their hopes of getting richer in increases in the overall size of the pie.”30 The question, the necessity, of global wealth redistribution is off the table.

With a distributive problem mispresented as one of resource deficiency, we are confronted with a variety of visions of “growth plus”: inclusive growth, pro-poor growth, sustainable development:

Indeed, development is the only language in which the problem of global poverty seems to be thought or addressed in international law and institutions. In other words, development as both word and concept has become a proxy for, or synonymous with, the way we talk about questions of material well-being and global inequality.31

29 “Back to the Future”30 Pahuja 37131 Pahuja 366

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I am not, however, suggesting that this is (often) done deliberately, cynically, or in bad faith; though the prominence of such neo-liberal war mongers as David Milliband in the humanitarianism industry does suggest some degree of cynical bad faith. Rather, this is a function of how the humanitarian movement views both the world and its own place within it. I would suggest that it comes from a certain naïve optimism which permeates the movement. This is most often manifested in a confusion between discursively establishing the presence of rights and factually realising the objects of those rights. That is, there is a tendency to confuse the act of proving a right to healthcare, water, shelter, etc. with the actual on-the-ground provision of medicine, housing, or potable water. But the two are not at all the same, and indeed are only vaguely related.

Because of this, the human rights practice becomes largely an ensemble of images,32 judgments,33 exoneration,34 damnation, and envy. The human rights discourse – academic, activist, and professional – is a discourse of normative delusion and imagination, sheltered by, and anchored to, a pseudo-judicial/legislative institutional structure. It is undeniable that there is a core of (six? eight? nine?) “major human rights treaties”, a variety of “authoritative” committees, a handful of regional courts, and a plethora of expert bodies, meetings, conferences, and other assorted convocations; which are tied into some kind of quasi-hierarchical institutional structure. But this does not mean that there is a legal system at play. Nor does it demonstrate the normative existence, let alone practical realisation, of human rights claims, standards, rules, or norms.

There are several reasons for this. Most fundamentally, none of the institutions alluded to above enjoys access to the monopoly of legitimate violence which separates law from other normative orders.35 Indeed, PIL has no monopoly on legitimate violence to offer – and, as O’Connell has demonstrated, municipal “apex courts”, which do enjoy such a monopoly, rarely offer expansive interpretations of human (especially socio-economic) rights.36 Closely related to this is the lack of hierarchy between, or consistency among, the declarations, interpretations, decisions, final acts, judgments, etc. produced. The so-called institutional context (or cluster) in fact operates in a de-institutional form.

As a result, that unspoken necessity which Cover has labelled the “jurispathic function”37 is absent. In Scobbie’s more prosaic terms, there is no-one to do the weeding in the garden of international law.38 As a result, normative claims proliferate into an uncontrollable 32 Economics of Fantasy.33 Death of Socio-Economic Rights34 Creating Poverty35 Weber, Kelsen, Cover …36 “Death of Socio-Economic Rights”; see also ECJ headscarf decision37 “Nomos and Narrative”?38 On Allot

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profusion; and there is no authoritative mechanism to separate valid from invalid, good from bad, existent from non-existent norms of human rights. The benefit to this is that any ethical claim can be presented as a peremptory demand of human rights. The downsides are that the same is true of the negation of such claims; and that there is no mechanism by which these peremptory demands can be actualised. They have a purely discursive, fantastical, existence.39

Put bluntly, every human rights claim (judgment, authoritative interpretation, activist argument, barrister’s brief, academic article, textbook, or learned monograph) is a work of fantasy, a literary intervention – be it a poem, a short story, a novella, or a novel. It is a manifestation of its authors’ political and/or ethical desires expressed in a particular dialect of legalese. Like Harry Potter, it is, generally, badly written childish fantasy, based on magical thinking. Like Harry Potter it is also, inexplicably, wildly popular around the globe.

Human rights do not offer an effective mechanism for the betterment of the impoverished, and development through law has – so far at least – simply not occurred. But this fact is displaced through the eschatological synergy of rights and development, which places these claims in an interminable state of suspension. One cannot have development without rights, nor rights without development – each discourse/institution defers simultaneously to the other, while offering itself as an alibi for that other; a literal embodiment of Derridean difference.

IMAGE AND RE-PRESENTATION:

As any good therapist would tell us, hearing is not listening, and listening is not necessarily hearing. Utterances must be contextualised and interpreted, perhaps even constructed. The same is true of images, seeing does not readily equate with understanding; constructing sense is an active, and political, feat.

Take, for example, one of the most harrowing images to come out of the Baltimore riots (in the US in 2015), Fox News’ “Mom of the Year”, Toya Graham.40 This African American mother acquired her fifteen minutes of fame after being videoed beating her (black) teenage son, and dragging him away from a protest against the police killing of local (black) youth, Freddie Gray. Please hold on to that image, of the black mother, using

39 Economics of Fantasy40 http://fox2now.com/2015/04/28/mom-of-the-year-baltimore-woman-praised-for-smacking-rioting-son/

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her own black fists, to beat the body of her black child into submission. How do we interpret, make sense of, that image? Perhaps the young man’s own rationalisation offers insight here: “She didn't want me to get in trouble (with the) law. She didn't want me to be like another Freddie Gray”.41 More bluntly, Ms Graham would rather beat her son than see him murdered by the police; the mom of the year, beating her black son into submission to white supremacy.

Obviously, this image is immediately framed by the image of Freddie Gray, lying, spine severed, dead, in the back of a Baltimore Police van. But behind that lies the unseen image of white supremacy (normalcy) and the operative, founding, image (the myth) of the dangerous black man.42 Images we create and inherit, but no longer see. But ‘we’ construct this mom of the year: presenting/understanding her as we would a responsible white mother, not a stereotyped chaotic black woman, disciplining her wayward white son, not taming her dangerous black man-child. Mom of the year, maintaining order and discipline, not entrenching structural inferiority; rescuing her son, not rationalising his oppression.

I believe this is analogous to how poverty and underdevelopment are framed by the international order. We are encouraged to focus on the immediate, the absence of resources/rights/development/etc. This is framed within an image of the corrupt or inefficient government, the backward culture. But the unseen images are the global economic-legal order, and its beneficiaries; us, the developed peoples and places. The beneficiaries of oppression and exploitation are mise en scene. The role of distribution or allocation is likewise invisibilised.

Drawing on the recent focus on the so-called Anthropocene, Anne Saab has developed the term “anthropogenic hunger” to offer an alternative framing of global food shortages.43 Saab’s basic thesis is that famine, malnutrition, and the deaths and suffering flowing therefrom, are human creations. They are not caused by a global shortage of food, but rather by the way food is distributed globally. Indeed, starvation is rarely, if ever, caused by a shortage of food, even locally; it is caused by a shortage of money, the starving simply cannot afford to purchase the food that is available.

However, in the inexorable logic of development, this distributional pathology is reframed as a question of insufficient resources. This allows for a developmental answer – the turn to technology, industrial farming, and genetically modified crops. This in turn plays into a pre-existing Western construction of Africa as barren and backward, a land “where nothing

41 http://edition.cnn.com/2015/04/29/us/baltimore-mother-slapping-son/index.html42 Black Lives Matter, Michael Brown, etc.43 ***

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ever grows, no rain or rivers flow …”44 Hiding questions of distribution and benefit [*** Marks poverty benefits some, even as it massively disadvantages others***] from sight and analysis is a political choice. It is a technique of normalization, which diverts inquiry and effort into unproductive channels.

Human rights, and law and development, are major instruments of this strategy of diversion:

By centering the development story on growth, the promise to the poor is that they must invest their hopes of getting richer in increases in the overall size of the pie. This is meant to increase the size of each piece proportionately. And if this also increases the size of the rich countries’ slice of the pie, or of the rich people in poor countries, well, it’s just a collateral benefit again, of doing good for the poor. It’s win-win again—self-interest and altruism happily co-existing.45

Psychologists call this process of construction and (self-serving) misrepresentation ***. It is, often, our default position, even with those in our own culture, social circle, families, and relationships. We construct ‘them’ and their problems in our image, inflected through our own commitments, concerns, interests, and beliefs. This is why “active” and “reflective” listening, and an awareness of “listener orientation” must be consciously learned; and form key therapeutic techniques.46

This is true in quotidian surroundings, and greatly exacerbated when we come to analyse the foreign and unfamiliar. Human Rights promised a solution to this problem, but in fact they aggravate it; because human rights are a mirror masquerading as a lens. It is precisely because we cannot see through the mirror, though we conceive it as a lens, that we subconsciously construct what is on the other side.47 Like the old saying, before judging someone, put yourself in their shoes: construct your imaginary of their position, and ask how you would act there.

So, we construct an understanding, an ensemble of images, of the undeveloped world.

44 Bandaid45 Pahuja 37146 ***47 Luhmann, internal environment

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WE CANNOT AFFORD MORE DEVELOPMENT:

The current model of production and distribution is simultaneously destroying the global eco-system required for human life, whilst serving the needs of only 30% of the global population.

As Fanon noted almost 50 years ago, the European model breeds death, and the non-European must learn to define himself in more than the negation or emulation of the coloniser. And, of course, as Spivak noted more recently, Fanon’s own gender biased images must also be problematised.

At whatever level we study it…decolonization is quite simply the replacing of a certain ‘species’ of men by another ‘species’ of men. Without any period of transition, there is a total, complete, and an absolute substitution” (1968:35-36).

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Web viewRasch. The act of judgement ... as both word and concept has become ... The current model of production and distribution is simultaneously destroying the