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For those who might have an interest, I have posted for comment or reaction, a discussion draft of my essay, Overcoming the Human, Rights, and the State in Human Rights. With any kind of luck a later (and hopefully more polished ) version will find its way into A Research Agenda for Global Power Shifts and International Economic Law (Edward Elgar, forthcoming 2024) a collection of essays put together through the magic of its editor, Joel Slawotsky.
The essay was meant to respond to a very specific challenge: to think about the transformation of a field and with it the research agenda, or better put, to align theory and examination to the shifting object of study. That alignment requires something quite difficult for an academic--a thorough and honest examination not just of the underlying ideologies shaping the way objects and processes are "seen" and "given meaning" but also how the ideologies that the examiner brings to the examination also substantially obscures anything but the examiner's own ideological lens, desires, objectives, etc.
I try to apply that double lens to the field of human rights in economic activity by unpacking the trajectories of its categorical elements--the human (in themselves or within their environment), rights (the obligations and privileges of the human protected by its collectives), and the state (the institutional expression of the collective through which rights can be identified and administered). Together they describe the epistēmē (understood as "the strategic apparatus which permits of separating out from among all the statements which are possible those that will be acceptable" Foucault, Power/Knowledge (C. Gordon (ed) Pantheon 1980, p. 197) of the emerging era of human rights in the context of economic activity. The abstract suggests the task:
The Universal Declaration of Human Rights appeared to define human rights even as their scope, practice, interpretation, and ideological foundation remained contested, assuming as given core concepts of the human, law, and the state. The given is now contested. That contestation is the focus of this contribution, which uses two contemporary projects to examine the emerging contestations: transforming the objectives of economic activity, and exploiting generative AI in the service of that transformation. The examination is framed within six broad emerging categories of inquiry: decentering the human from human rights in an era of sustainability and climate change; decentering rights in an age of accountability, compliance, and remediation; privatizing the public sphere; governmentalizing the private sphere; managing discretionary supervision in politics and markets through law; and substituting or supplementing supervision through data based analytics, predictive and descriptive analytics, and generative non-human decision making machine for humans and human collectives.
Comments and reactions are always welcome. One grows through engagement. The draft may be accessed at SSRN here. The Introduction follows below.
A Research Agenda for Global Power Shifts and International Economic Law
Joel Slawotsky ed.; Edward Elgar
Overcoming the Human, Rights,and the State in Human Rights
Larry Catá Backer (白 轲)
W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs
Acting University Ombudsperson (from October 2021) University Ombudsperson Elect
Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802 1.814.863.3640 (direct) || lcb11@psu.edu
ABSTRACT: The Universal Declaration of Human Rights appeared to define human rights even as their scope, practice, interpretation, and ideological foundation remained contested, assuming as given core concepts of the human, law, and the state. The given is now contested. That contestation is the focus of this contribution, which uses two contemporary projects to examine the emerging contestations: transforming the objectives of economic activity, and exploiting generative AI in the service of that transformation. The examination is framed within six broad emerging categories of inquiry: decentering the human from human rights in an era of sustainability and climate change; decentering rights in an age of accountability, compliance, and remediation; privatizing the public sphere; governmentalizing the private sphere; managing discretionary supervision in politics and markets through law; and substituting or supplementing supervision through data based analytics, predictive and descriptive analytics, and generative non-human decision making machine for humans and human collectives.
Key Words: human rights, AI, governmentalization, ideology, markets
1. Introduction
Since the 1947 and the embrace of the Universal Declaration of Human Rights (UDHR),[1] the state of the field of human rights has been ’settled’ and stable even as the interior spaces of the field that then emerged remained embroiled in contestations about scope, practice, interpretation, and ideological foundation. That settlement, requires an epistemology; and that epistemology requires its own first principles,[2] which may be induced (from the particular to the principle) or deduced (from the principle to the particular)[3] around human rights as a given core truth.[4] This framework, and its faith in constitutive principles existing outside deductive or inductive norms,[5] is especially critical within the legal structures through which human rights has increasingly sought to be expressed, and then realized.
One might reduce them to three. These posit the supremacy of the (1) human in ordering social relations, (2) legality as the language and ideology for rationalizing the human in social relations; and (3) state and political ordering as the vehicle for realizing the first two principles. In the field of human rights, these first principles might be usefully reduced to three core premises around which the entire edifice of human rights (as a legal and normative objects)[6] are elaborated, and thus elaborated, projected onto the entire field of international law.[7] These principles are imprinted not just in the text of the great post 1945 human rights instruments,[8] but also within the broader reach of international humanitarian law,[9] and now the legalization of humanity’s rights in the environment,[10] what is sometimes referenced as the core or essence of human rights.[11] The first principles may be deduced from the practices and expressions of human institutionally driven rights; at the same time these practices themselves become an expression of the first principles in the face of the experience of operationalization. The dialectic between first principles and its derivative practices then forms a closed loop, though a very broad one.
This conceptual/phenomenological dialectic manifests itself around the pragmatics derived from first principles. The first, that the human (or humanity) is the fundamental reference point for the elaboration of fundamental relations, privileges, burdens, and power relations, individual or collective), is the starting point for more specific rationalizations of the human and human social relations.[12] The core of this first principle is grounded in the presumption of hierarchy, with the human at the apex; that is, that humans serve as organizing concept for all relations that touch or affect humanity.[13] The principle that the human occupies the apex core, defining, place in the elaboration of rights, can be found in a variety of places. It has figured prominently in environmental litigation,[14] as well as in the development of international environmental rights standards.[15] The human is at the center of the rights to development, which is “an inalienable human right,” in which the “human person is the central subject.”[16] The consequence is a perspective that defines a human rights economy as requiring, “inter alia, business models that place ‘people and the planet at the heart … with the goal of measurably enhancing the enjoyment of human rights for all’.”[17] Human-centered rights has become a centerpiece of the conventional approaches to the technologies that are meant to enhance rights.[18] But even the human in human rights has its ideologies and rationalizing structures.[19]
The second, that human social relations must be articulated and exercised through the language and symbols of privileges, responsibilities, that is of the right to have rights.[20] Rights are understood as a function of and from the perspective, of the human; human rights posits the relationship of the human (and their collectives) as expressed through the parallel concept of rights that are constitutive of the human.[21] That is that these are the core conditions of humanity that may not be detached from people without robbing them of their essential character. Rights, then, are both characteristics of the human person, and are premised to be a set of entitlements either to do certain things, or to be protected against interference by others in the doing or being of something. It is then a matter of describing those rights to give them form. Rights also suggest a corresponding obligation on others to respect the right or to ensure that the right is protected.[22] The fundamental premise of right has an ontological dimension as well—touching on a subsidiary premise that what one is due (or to which one is entitled) is an essential element of defining the human person in themselves and within their networks of social relations in a way that is adjudged good, correct, proper and the like.[23] Rights, however, tend to be understood less from their theoretical foundations (as existing outside and autonomously of the human collectives that give them expression) than as the means for giving expression to practical normative objectives.[24] In this sense, the second “first principle” of human rights posits that the expectations and entitlements of the human condition must be expressed as rights. In the contemporary era, rights assume less of a moral and more of an ideological foundation. The presumption that expectations ought to be framed within a rights discourse generally goes unchallenged; the ideologies that give content and that rationalize these rights, on the other hand, acquire a substantial amount of attention.[25]
The third embeds both the human and the rights in politics expressed through legalities. At the center of those legalities is the state, as the apex political organ, but now subsumed within the constraining consensus of the community of states expressed through the instruments of international public law and norms. [26] Here, the third “first principle” is understood as expressing the premise that the human at the center of expectations expressed as rights can be given authority and deployed as a basis of human relations only through the apex political institutions and organs of human social relations—the state. It also suggests a subsidiary premise—that this authoritative expression through the political organs of human social relations are most authoritatively expressed in law;[27] even when those organs delegate it back to non-state systems, for example institutionalized religion with its own human rights language.[28] Where that law is situated remains an object of contestation, though not the privileging of law as a dispositive form of enforcing rules of social relations in the political sphere. That is, that the tropes, discourses, performances, and rituals of law are a necessary predicate for the elaboration of rights, which assume their character of special where they center the human within the cluster of expectations. Where and what law is remains bound up in traditional connections between the authority of the state and the force of law. Social norms remain problematic.[29]
That these conceptual first principles appear to have had an influence shaping the parameters that have framed the field of human rights in the modern era is clear. Less clear is the relationship between the UDHR and these first principles. The UDHR might itself be understood both as the contemporary articulation of human rights first principles, perhaps as articulations of some sort of natural rights, or common expectations of human social relations.[30] Alternatively, the UDHR could be understood as the aggregation of a set of particulars that represent major substantive derivations from the first principles from which the UDHR themselves derive,[31] which could be further developed in solidarity with and aligned to the first principles of human rights,[32] with or without the discursive tropes of rights.[33] And, indeed, the listing of rights in the UDHR and then in an expanding universe of additional listings in national and international law, norms, declarations and the like, suggested the constitution of “a common standard of achievement for all peoples and all nations,[34] which itself was grounded in anterior principles. This tension, though, is mimicked in processes of embedding human rights in human activities through political collectives.
The dialectic of first principles and their pragmatic derivatives produce the contemporary conventional discursive tropes, texts, and sensibilities (imaginaries) of human rights, especially in the field of economic activity—the central focus here.[35] These areas might be usefully grouped into six broad emerging categories of inquiry: (1) decentering the human from human rights in an era of sustainability and climate change; [36] (2) decentering rights in an age of accountability, compliance, and remediation;[37] (3) privatizing the public sphere;[38] (4) governmentalizing the private sphere;[39] (5) Managing discretionary decision-making in politics and markets through law;[40] and (6) substituting or supplementing discretionary decision making through data based analytics, predictive and descriptive analytics, and generative non-human decision making machine for humans and human collectives.[41] Despite their breadth and scope, these categories can be reduced to the generative questions from which the first principles of this field are being reshaped, and with them the research agendas that follow: to what ends are human activities to be directed?; and by whom or what should this direction be shepherded?
It is to the dynamic responses to these generative questions that these six areas provide a useful framing, especially as they currently intersect in the pragmatic implementation of derivative human rights based objectives.[42] Though bound up in their pragmatics (to implement contextually relevant realizations of policy objectives), their analytical framing might be better understood through the lens of first principles (human/rights/states) as a function of their appearance within the six dialectical categories described here. The remainder of this essay considers each of these within two specific contemporary contexts. Section 2 focuses on the subtextual challenges bound up in the evolution of business models for sustainable development. These touch on the core issues of human centeredness, and on the nature of the role of the state and private sectors in economic activity.[43] Section 3 turns to the issues of governance frameworks for artificial intelligence and predictive models, as they affect and are affected by human rights concerns.[44] Each of which suggests important avenues for future research grounded in the trajectories of development in which the interactions between norm and implementation may appear to be heading. Together they suggest the potential transformation of the thrust and objectives of the human rights project, and with it, the thrust and scope of research in the field built around the way in which the answers to the generative questions of first principles is being transformed in the current era—a phenomenological epistemology of the rationalization of rules for social collectives.[45]
[1] Universal Declaration on Human Rights (adopted 10 December 1948) 217 A(III) (UNGA), art 7 (hereafter “UDHR”).
[2] That which in Husserlian phenomenology is understood as principles that are given, or which have the quality of “giveness.” Cf., Pierre-Jean Renaudie, ‘Ways of Being Given: Investigating the Bounds of Giveness Through Marion and Husserl,’ in S. Lofts, A. Calcagno (eds.) Breached Horizons: The Work of Jean-Luc Marion (Rowman & Littlefield, 2017).
[3] Marc Gasser-Wingate, ‘Aristotle on Induction and First Principles’ [2016] 16(4) Philosophers’ Imprint 1-20; considering Aristotle, Posterior Analytics (The Internet Classics Archive by Daniel C. Stevenson, Web Atomics. World Wide Web presentation is copyright (C) 1994-2000, Daniel C. Stevenson, Web Atomics) available <https://classics.mit.edu/Aristotle/posterior.mb.txt> accessed 1 January 2024.
[4] Michel Foucault, Subjectivity and Truth: Lectures at the College de France 1980-1981 (Graham Burchell tr, New York, Picador, 2017) (“It is a question of the experience we may have of ourselves. . . when there exists in fact, historically, in front of him, in relation to him, a certain truth, a certain discourse of truth—either so as to accept it as true, or so as to produce it himself as truth” ibid., 26”).
[5] Catherine Herfeld and Milena Ivanova, ‘Introduction: First Principles in Science—their status and justification’ [2021] 198 (supp.14) Synthese S3297-S3308, S3297-98.
[6] On the objectification of concepts within the structures of meaning making, see, Luis Radford, ‘Three Key Concepts of the Theory of Objectification: Knowledge, Knowing, and Learning’ [2013] Redimat: J. Research in Math. Educ. 2(1): 7-44 (knowledge as a “culturally codified ensemble of actions” ibid., p. 12). On the inter-relationship between objectification, commodification, and standardization, see, Stefan Timmermans and Rene Almeling, ‘Objectification, standardization, and commodification in health care: A conceptual readjustment’ [2009] 69 Science & Medicine 21-27. The analysis is applicable, with equal force, to the operational framework of human rights in the international (legal) sphere.
[7] This assertion, of course, is both contestable, and at the heart of contestations about the character of the meeting lace of the mid-20th century projects of law, moral, and religious systems centered on the rationalization of human centered social systems. See, e.g., Michael J. Perry, The Idea of Human Rights: Four Inquiries (OUP, 1998); Samantha Besson, ‘The Law in Human Rights Theory’ [2013] 7(1) Zeitschrift für Menschenrechte-Journal for Human Rights, 120-150. See also, Michael da Silva, ‘Legal Doctrine as Human Rights “Practice”´[2023] 12(1) Global Constitutionalism 106-132 (rationalizing human rights normativity within a doctrinal cage).
[8] Key Among them are the two grand international covenants that were meant to transpose the moral aspirational manifestations of human rights in the UDHR into the language and sensibilities of law: UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3,
[9] International humanitarian law applies strictly to situations of armed conflict (though the boundaries of that definition may require change); human rights applies at all times, places, and spaces, at least within the jurisprudential boundaries of internal legality. See, Louise Doswald-Beck, Sylvain Vité, ‘International Humanitarian Law and Human Rights Law’ [1993] No. 293 International Review of the Red Cross available [https://www.icrc.org/en/doc/resources/documents/article/other/57jmrt.htm], accessed 3 January 2024.
[10] Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean,
healthy and sustainable environment, A/HRC/37/59 (24 January 2018) (presenting the framework principles on human rights and the environment; ibid., Annex).
[11] See, e.g., discussion in Pierre Thielbörger, ‘The “Essence” of International Human Rights’ [2019] 20 German Law Journal 924-939.
[12] See, e.g., Ellen Hay, ‘The Universal Declaration of Human Rights in “The Anthropocene”’ [2018] 112 AJIL Unbound 350-354.
[13] See, Michael Ignatieff, Human Rights as Politics and Idolatry (Amy Gutmann, ed: Princeton, NJ: Princeton University Press, 2001); p. 3-4.
[14] See, e.g., Inter-American Court of Human Rights, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity: interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights). Advisory Opinion OC-23/17 (15 November 2017). Series A No. 23. Solicitada por la Republica de Colombia, Medio Ambiente y Derechos Humanos, < https://www.corteidh.or.cr/docs/opiniones/seriea_23_ing.pdf> accessed 2 January 2024.
[15] Rachel Pepper and Harry Hobbs, ‘The Environment is All Rights: Human Rights, Constitutional Rights, and Environmental Rights’ [2020] 44(2) Melbourne Univ. L. Rev. 634-678. See also UNGA, ‘The human right to a clean, healthy and sustainable environment’ GA Res. U.N. Doc A/76/L.75 (26 July 2023) (recognizing “the right to a clean, healthy and sustainable environment as a human right”).
[16] Declaration on the Right to Development, UNGA Res. 41/128 (4 December 1986) ¶ 2.
[17] Role of business in realizing the right to development, Report of the Special Rapporteur on the right to
development, Surya Deva A/78/160 (12 July 2023); ¶ 74, quoting in part OHCHR, “Building economies that place people’s human rights at the center”(6 April 2023); available [at www.ohchr.org/en/stories/2023/04/building-economies-place-peoples-human-rights-center].
[18] Ben Schneiderman, Human Centered AI (Oxford, 2022) (enhancing human ways of thinking about technology affecting human ways of organizing their collective lives to enhance rights).
[19] Anna Greer, ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric” Law and Anthropocene “Humanity”’ []2015 26 Law Critique 225-249.
[20] James D. Ingram, ‘What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights’ [2008] 102(4) American Political Science Review 401-416.
[21] See, e.g., Peter Uvin, ‘From the right to development to the rights-based approach: how “human rights” entered development’ [2007] 17(4-5) Development in Practice 597-605).
[22] Described in a variety of different ways; for example the well-known notion of rights as “trumps” against interference. See, Ronald Dworkin, Taking Rights Seriously (2nd ed, London, Ducksworth, 1977); Ronald Dworkin, Law’s Empire (Harvard Univ. Press, 1986).
[23] Nicely summarized in Jack Donnelly, Universal Human Rights in Theory and Practice (3rd ed, Cornell University Press, 2013), pp. 7-24 (differentiating relevance of huma rights in moral and political theory ibid., pp. 60-62).
[24] José Alvarez, International Organizations as Lawmakers ((oxford, 2006).
[25] Cf., Joachim H. Spangenberg, ‘Blind Spots of Interdisciplinary Collaboration: Monetising Biodiversity: Before Calculating the Value of Nature, Reflect on the Nature of Value’ [2016] 3(1) CADMUS 115-128.
[26] Described and challenged in Larry Catá Backer, ‘Governance without Government: An Overview,’ in Gunther Handl, Joachim Zekoll, and Peer Zumbansen (eds) Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Brill, 2012).
[27] Nicola Jägers, ‘Human Rights Enforcement Towards a People- Centered Alternative? A Reaction to Professor Abdullahi An-Na’im’ [2016] Tilberg Law Review 275-283.; the critique at Abdullah An-Na’Im, ‘The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights’ [2016] 21 Tilburg Law Review 4.
[28] Larry Catá Backer, ‘God(s) over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century’ [2008] 27(1) Mississippi College Law Rev 11-65.
[29] Elinor Ostrom, Elinor, ‘Collective Action and the Evolution of Social Norms’ [2014] 6(4) Journal of Natural Resources
Policy Research 235-52; Eric Posner, Law and Social Norms (Harvard University Press, 2009).
[30] H.L.A. Hart, ‘Are There Any Natural Rights?’ [1955] 64 Phil Rev 175 (1955). Cf., Jack Donnelly, ‘The Relative Universality of Human Rights’ [2007] Hum. Rts. Q. 281; Vincent J. Carchidi, ‘The Nature of Morals: How Universal Moral Grammar Provides the Conceptual Basis for the Universal Declaration of Human Rights’ [2020] 21 Hum. Rts. Rev. 65-92.
[31] Evan Fox-Decent and Evan J. Criddle, ‘The Fiduciary Constitution of Human Rights,’ [2009] Legal Theory 301-336.
[32] Hans I. Roth, ‘P.C. Chang and Charles Malik: The Two Philosophers of the Universal Declaration of Human Rights’ [2023] 45(4) Hum. Rts. Q. 545-567.
[33] Eric Posner, -Human Welfare, Not Human Rights- “2008‘ 108 Colum. L. Rev. 1758.
[34] UDHR, supra, preamble.
[35] The history is long, stretching in its current forms back to the transformative agendas of the 1970s and the rise of the three dominant political ideologies of that day—liberal democratic, Marxist-Leninist, and post-colonial. For a brief recounting, see Larry Catá Backer, ‘Multinational Corporations, Transnational Law: The United Nations' Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsivity in International Law’ [2006] 37(2)( Columbia Human Rights Law Review 287-390.
[36] Ellen Hay, ‘The Universal Declaration of Human Rights in the “Anthropocene”’ [2018] 112 AJIL Unbound 350-354.Mariana Valverde, ‘From persons and their acts to webs of relationships: some theoretical resources for environmental justice’ [2017] 68 Crime Law Soc Change 547-562.
[37] Larry Cata Backer, ‘Transparency between Norm, Technique and Property in International Law and Governance: The Example of Corporate Disclosure Regimes and Environmental Impacts’ [2013] 22(1) Minnesota Journal of International Law 1-70.
[38] A. Claire Cutler, ‘Transformations in Statehood, the Investor- State Regime, and the New Constitutionalism’ [2016] 23 Indiana Journal Global Legal Studies 95-125; Larry Catá Backer, ‘The “Cri de Jessup” Sixty Years Later,’ in Peer Zumbansen (ed ) The Many Lives of Transnational Law
Critical Engagements with Jessup's Bold Proposal (CUP, 2020) 386-418.
[39] Larry Catá Backer, ‘Multinational Corporations as Objects and Sources of Transnational Regulation’ [2008] 14(2)
ILSA Journal of International & Comparative Law 499-524; Larry Catá Backer, ‘The Emerging Normative Structures of Transnational Law: Non-State Enterprises in Polycentric Asymmetric Global Orders’ [2016] 31(1) BYU Journal of Public Law 1-52.
[40] Larry Catá Backer, ‘A Lex Mercatoria for Corporate Social Responsibility Codes without the State: A Critique of Legalization within the State under the Premises of Globalization [2017] 24(1) Indiana Journal of Global Legal Studies 115-146.
[41] Larry Catá Backer, ‘Next Generation Law: Data-Driven Governance and Accountability-Based Regulatory Systems in the West, and Social Credit Regimes in China’ [2018] 28(1) Southern California Interdisciplinary Law Journal 123-172; Larry Catá Backer, ‘The Algorithmic Law of Business and Human Rights: Constructing Private Transnational Law of Ratings, Social Credit and Accountability Measures’ [2023] 19(1) International Journal of Law in Context 32-50.
[42] One speaks here to the organization of knowledge, which has both epistemological and machine learning dimensions, though in its pragmatics still a field of library science. Cf., Birger Hjørland, ‘Facet analysis: The logical approach to knowledge organization’ [2013] 49 Information Processing and Management 545-557. Cf., Jeremy Goodman and Bernhard Salow, ‘Epistemology Normalized’ [2023] 132(1) The Philosophical Review 89-145 (inductive knowledge); Martin Fricke, ¡Big Data and its Epistemology’ [2015] 66(4) Journal for the Assoc. for Information Science and Tech. 651-661.
[43] Mark Purcell, -The state, regulation, and global restructuring: reasserting the political in political economy,’ [2002] 9(2) Review of International Political Economy 298–332.
[44] See, e.g., Sakiko Fukuda-Parr and Elizabeth Gibbons, ‘Emerging Consensus on ‘Ethical AI’: Human Rights Critique of Stakeholder Guidelines’ [2021] 12 Global Policy 32-44 (“While human rights and ethics are not mutually exclusive
but are complementary, the real value added of human rights resides in accountability in its full sense, including remedy.” Ibid., p- 42).
[45] Manuel Gustavo Isaac, ‘Toward a Phenomenological Epistemology of Mathematical Logic’ [2018] 195 Synthese 863-874.
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