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Truth and Method in the Domestic Application of International Law

Published online by Cambridge University Press:  09 June 2015

Reem Bahdi
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Extract

This paper presents a particular reading of Truth and Method, Hans-Georg Gadamer’s landmark text, as a lens through which to consider the meaning of international texts in domestic contexts. His thoughts have remained virtually unknown within international human rights law but is highly relevant to accommodating variations in interpretation between national jurisdiction.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 2 , July 2002 , pp. 255 - 279
Copyright
Copyright © Cambridge University Press 2002

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References

1. R.v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 2) [1999] 1 All ER 577 (House of Lords), R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no. 3) [1999] 2 All ER 97 (House of Lords).

2. Various authors have analyzed cases from these diverse jurisdictions. Examples include Byre, Angela & Byfield, Beverley, eds., Using International Human Rights Law in the Commonwealth Caribbean (London: Martinus Nijhoff, 1991)Google Scholar; Iwasawa, Yuji, International Law, Human Rights and Japanese Law (Oxford: Clarendon Press, 1999)Google Scholar; Confroti, Benedetto, International Law and the Role of Domestic Legal Systems (The Netherlands: Kluwer Law International, 1993)Google Scholar; Conforti, Benedetto & Francioni, Francesco, Enforcing International Human Rights in Domestic Courts (London: Martinus Nijhoff Publishers, 1997)Google Scholar; Donna E. Arzt, “The Application of International Human Rights Law in Islamic States” (1990) 12 Human Rights Q. 202; Li Zhaojie, “Effects of Treaties in Domestic Law: Practice of the People’s Republic of China” (1993) 16 Dal. L. J. 62; Hazel Fox, “The Pinochet Case No. 3” (1999) 48 Int’l & Comp. L. Q. 687; Michael Kirby, “The Australian Use of International Human Rights Norms From Bangalore to Balliol—A View to Antipodes” (1993) 16 (2) U. New S. Wales L. J. 363; Scheinin, Martin, “International Law in National Courts” in An Introduction to the International Protection of Human Rights: A Textbook, Hanski, & Suksi, , eds., (Turko/Abo: Institute for Human Rights, 1999) 417 Google Scholar; Scheinin, Martin, ed., International Human Rights Norms in the Nordic and Baltic Countries (London: Martinus Nijhoff, 1996)Google Scholar; Clark, Roger S., “International Human Rights Law Affects Domestic Law” in Human Rights: New Perspectives, New Realities, Pollis, A. & Schwab, P., eds., (Boulder, CO: Lynne Rienner, 2000)Google Scholar 185 [hereinafter New Perspectives]; Margaret Mulgan, “Implementing International Human Rights Norms in the Domestic Context: The Role A National Institution” (1993) 5 Canterbury L. Rev. 235; Stephen Donaghue “Balancing Sovereignty and International Law: The Domestic Application of International Law in Australia” (1995) 17 Adelaide L. Rev. 213.

3. Kate Millett “What Is To Be Done?” (2000) 75 Chi.-Kent L. Rev. 659 at 664.

4. Ibid, at 668.

5. International law has-been used as a tool of colonialism and imperialism. See New Perspectives, supra note 3 and David P. Fidler, “International Human Rights Law in Practice: The Return of Standard of Civilization” (2001) 2 Chi. J. Int’l L. 137.

6. For example, Human Rights Watch urged the Nigerian government to ensure compliance with international standards and the Nigerian constitution. See http://www.hrw.org/press/2001/01/nige-ria0123.html. Last visited February 2, 2001.

7. See for example the dissenting judgment in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Curtis A. Bradley & Jack L. Goldsmith, “U.N. Human Rights Standards and U.S. Law: The Current Illegitimacy of International Human Rights Litigation” 1997 (66) Ford. L. Rev. 319.

8. Regina v. Lord Chancellor, Ex Parte Witham [1998], Q.B. 575 at 585 (QB): “I do not find it necessary to refer to these [European Court] cases, since I consider that the issue may correctly be resolved by reference to the substance of our domestic law … it seems to me, the common law provides no lesser protection of the right of access to the Queen’s court than might be vindicated in Strasbourg.”

9. Karen Knop, “Here and There: International Law In Domestic Courts” (2000) 32 N.Y.U. J. Int’l L. & Pol. 501 at 505 [hereinafter Knop].

10. See for example Ed Morgan, “In The Penal Colony: Internationalism and the Canadian Constitution” (1999) 49 U.T.L.J. 447.

11. For a discussion of the debate over pluralism in the women’s rights context, see Radhika Coomaraswamy “Reinventing International Law: Women’s Rights as Human Rights in the International Community.” The Edward A. Smith Visiting Lecture Given at Harvard Human Rights Program (March 12, 1996) available at http://www.law.harvard.edu/programs/HRP/Publications/radhika.html. Last visited November 1, 2001.

12. Knop, supra note 9 at 527. Culture is seen as something that ousts international law.

13. Ibid.

14. See for example Farrokh Jhabvala, “Domestic Implementation of the Covenant on Civil and Political Rights” (1985) XXXII Netherl. Int’l. L. Rev. 461 who observes that the interpretation of the Covenant in different contexts makes it vulnerable to fragmentation.

15. Stephen M Feldman, “How To Be Critical” (2000) 76 Chi.-Kent L. Rev. 893 at 895–97.

16. See Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyer’s Publishing Company, 1989)Google Scholar especially the final chapter entitled “Beyond Objectivism” for an example of a work that is explicitly concerned with theories of language and international law.

17. Derek C. Smith, “Beyond Indeterminacy and Self-Contradiction in Law: Transnational Abductions and Treaty Interpretation in U.S. v. Alvarex-Machain” (1995) 6 (1) Eur. J. Int’l. L. 1 at 9 observes that the traditional model of interpretation frames the theory and practice of treaty interpretation in international law.

18. Muojekwu v. Ejikeme, [2000] 5 Nigerian Weekly L. Rep. 402 at 436.

19. Ibid, at 432.

20. Tremblay, Luc B., The Rule of Law, Justice and Interpretation (Montreal, PQ: McGill-Queen’s University Press, 1997)Google Scholar at 48–51 [hereinafter Tremblay].

21. Some draw a distinction between the drafter’s “meaning” and their “subjective intent.” See George H. Taylor, “Hermeneutics and Critique in Legal Practice: Critical Hermeneutics: The Intertwining of Explanation and Understanding as Exemplified in Legal Analysis” (2000) 76 Chi.-Kent. L. Rev. 1101 at 1105.

22. Sanford Levinson, “Law As Literature” (1982) 60 Tex. L. Rev. 373 at 391–92.

23. For a discussion in the domestic context, see Brian Langille, “Revolution Without Foundation: The Grammar of Scepticism and Law” (1988) 33 McGill L. J. 451 at 453.

24. Stanley Fish, Is There A Text in this Class? cited in Tremblay, supra note 20 at 43–44.

25. Ibid.

26. Tremblay, supra note 20 at 43–44.

27. Ibid, at 6.

28. See generally Comack, Elizabeth, “Theoretical Excursions” in Comack, , ed., Locating Law: Race/Class/Gender Connections (Halifax, NS: Fernwood, 1999).Google Scholar

29. Tremblay, supra note 20 at 6.

30. Ian Johnstone, “Treaty Interpretation: The Authority of Interpretive Communities” (1991) 12 Mich. J. Int’lL. 371 at 377–378.

31. For a discussion, see David Nelken, “Disclosing/Invoking Legal Culture” (1995) 4 Soc. & Legal Stud. 435.

32. Anne-Marie Slaughter’s vision of transjudicialism mirrors Fish’s interpretive communities thesis and Ian Johnstone’s application of it in the international context. See, for example, Anne-Marie Slaughter, “Human Rights International Law Symposium: A Typology of Transjudicial Communication” (1994) 29 U. Rich. L. Rev. 99 at 100.

33. This is not to deny that international law has been used as an instrument of colonization or that it continues to be invoked with such ends in mind. Rather, my point is that international law, properly applied, need not produce such a result.

34. See, for example, The Committee on Economic, Social and Cultural Rights, General Comment No. 9: The Domestic Application of the Covenant E/C.12/1998/24.CESCR.

35. See, for example, An-Na’im, Abdullahi, ed., Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: University of Pennsylvania Press, 1992)CrossRefGoogle Scholar and An-Na’im, Abdullahi, “Cultural Transformation and Normative Consensus on the Best Interests of the Child” in The Best Interests of the Child: Reconciling Culture and Human Rights (Oxford: Clarendon Press, 1994) 62.Google Scholar In his own contribution to this text entitled “The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights” at 19, Philip Alston argues that the room left within international law for cultural difference is the “elastic glue which enables the overall human rights enterprise to be held together and remain coherent.”

36. Bunting, Annie, Particularity of Rights, Diversity of Contexts: Women, International Human Rights Law and the Case of Early Marriage, SJD Thesis (Toronto, ON: Faculty of Law, University of Toronto, 1999).Google Scholar

37. Martha C. Nussbaum, “In Defense of Universal Values” (2000) 36 Idaho L. Rev. 379 at 444

38. Aihwa Ong, “Strategic Sisterhood or Sisters in Solidarity? Questions of Communitarianism and Citizenship in Asia” (1996) 4 Global Leg. Studies J. 107. Ong is an anthropologist who argues that “we need anthropologists as much as lawyers to do the work of understanding and promoting women’s rights.”

39. Knop, supra note 9.

40. Richard E. Palmer explains in “The Liminality of Hermes and the Meaning of Hermeneutics” at http://www.mac.edu/~rpalmer/liminality.html that the god Hermes was the messenger between Zeus and mortals. He was the “god of all translations and transactions between realms.” Last visited October 19,2001.

41. Frederick Mark Oedicks, “Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation”(1997) 50 Vand. L. Rev. 613 at 622.

42. Richard E. Palmer “The Relevance of Gadamer’s Philosophical Hermeneutics To Thirty-Six Topics of Fields of Human Activity” [A Lecture delivered at the Department of Philosophy, Southern Illinois University at Carbondale” April 1, 1999J at 5 available at http://www.mac.edu/~rpalmer/relevance.html. Last visited on October 19, 2001.]

43. Robin L. West, “Are There Nothing But Texts In This Class? Interpreting The Interpretive Turns in Legal Thought” (2000) 76 Chi-Kent Law Rev. 1125 at 1125.

44. Cited in Dennis M. Patterson “Authorial Intent and Hermeneutics” (1989) 2(1) Can. J. Law & Jur. 79 at 83.

45. Grondin, Jean, Introduction to Philosophical Hermeneutics (New Haven, CT: Yale University Press, 1994)Google Scholar at 124 citing Hans-Georg Gadamer at the Heidelberg Colloquium (July 9, 1989).

46. Gadamer, Hans-Georg, Truth and Method, trans. Barden, Garrett & Cumming, John (from the 1965 German 2nd edition) (New York: Seabury Press, 1975)Google Scholar at 358 [hereinafter Truth and Method]. [Originally published as Warheit und Methode (Tubingen: 1960).] Tradition should not be understood as a “supra-individual” entity that imparts understanding. For a slightly more detailed discussion of Gadamer’s notion of tradition, see Francis J. Mootz, “The Quest to Reprogram Cultural Software: A Hermeneutical Response to Jack Balkin’s Theory of Ideology and Critique” (2000) 76 Chi-Kent L. Rev. 945 at 954. Habermas rejected Gadamer’s notion of tradition as being inherently conservative and contrary to the powers of reflective understanding. He concluded that Gadamer’s theory did not adequately consider the social forces that distort language as a mode of domination. For a discussion, see Fred R. Dallmayr, “Borders or Horizons? Gadamer and Habermas Revisited” (2000) 76 Chi-Kent L. Rev. 825.

47. Howard, Roy J., Three Faces of Hermeneutics: An Introduction To Current Theories of Understanding (Berkeley: University of California Press, 1982)Google Scholar at 147: “Interpretation, then, institutes a circular movement between the interpreter’s expectations and the meaning residing within the text.”

48. Fred R. Dallmayr, “Borders or Horizons? Gadamer and Habermas Revisited” (2000) 76 Chi-Kent. L. Rev. 825 at 828

49. Truth and Method, supra note 46 at 245.

50. Ibid, at 358.

51. “Real experience is that in which man become aware of his finiteness. In it are discovered the limits of the power and the self-knowledge of his planning reason…. Thus true experience is that of one’s own historicality.” Ibid, at 320–21.

52. Ibid, at 406.

53. Ibid, at 269.

54. Ibid, at 350.

55. “This is part of the meaning in which every human, linguistically constituted view of the world lives. In every view of the world, the existence of the world-in-itself is implied. It is the whole to which the linguistically schematised experience is referred. The variety of these views of the world does not involve any relativisation of ‘world’…. Thus we hold that the connection with language which belongs to our experience of the world does not involve exclusiveness of perspectives.” Truth and Method, supra note 46 at 406.

56. Ibid, at 419.

57. For example, prohibitions on child labour might be set at a different age in different countries or contexts. The International Labour Organization takes such a contextual approach to the prohibition on child labour. For example, work in the context of the family farm is not regulated in the same way as work on a commercial farm.

58. Truth and Method supra note 46 at 471.

59. Ibid, at 419: “This event means the coming into play, the working itself out, of the context of tradition in its constantly new possibilities or significance and resonance, newly extended by the other person receiving it.”

60. Ibid at 321.

61. Ibid, at xxiv.

62. Similarly, Antoinette Sedillo Lopez, “A Comparative Analysis of Women’s Issues: Toward a Contextualized Methodology” (1999) 10 Hastings Women’s L. J. 347 aims at mediating between homogenizing universalism and paralyzing relativism by emphasizing the value of cross-cultural interaction in the understanding of self and other. “Cross-cultural interaction makes the previously invisible visible” at 354.

63. Truth and Method, supra note 46 at 405.

64. Ibid, at 341.

65. “Whether what is handed down is a poetic work of art or tells us of a great event, in each case what is transmitted emerges newly into existence just as it presents itself. It is not being-in-itself that is increasingly revealed when Homer’s Iliad or Alexander’s Indian Campaign speaks to us in the new appropriation of tradition but, as in a genuine conversation, something emerges that is contained in neither of the partners by himself.” Truth and Method, supra note 46 at 419.

66. Ibid, at 412.

67. Ibid, at xxv.

68. Ibid, at xxiv.

69. Ibid, at 416.

70. Grondin, supra note 45 at 124.

71. Isabelle R. Gunning’s work lives up to the hermeneutic ideal. It reflects a willingness to engage and understand the other and an ability to learn from the other without resorting to agreement for the sake of agreement or “pretend acts of respect.” See, for example, Isabelle R. Gunning, “Uneasy Alliances and Solid Sisterhood: A Response to Professor Obiora’s ‘Bridges and Barricades’ (1997) 47 Case Western Reserve L. Rev. 445.

72. Truth and Method, supra note 46 at 341.

73. Ibid. at 273.

74. Ibid. at xxv.

75. Allan Hutchinson might disagree with my reading of Gadamer in so far as Hutchinson reads Gadamer to support the conclusion that because everything has been constructed, everything can be deconstructed. Hutchinson is referring to Gadamer’s notion of tradition but he does not fully address Gadamer’s ideas on the importance of the other for hermeneutic interpretation. My reading of Gadamer is that the equality between self and other has not been constructed but is an integral part of being and thus a necessary part of any tradition. This reading might align me with more “conservative” natural law readers of Gadamer such as Ronald Dworkin. For a persuasive and compelling discussion, see Allan C. Hutchinson, “Work-in-Progress: Gadamer, Tradition, and the Common Law” (2000) 76 Chi.-Kent L. Rev. 1015.

76. Truth and Method, supra note 46 at xxv.

77. Heidegger, Martin, Being and Time, trans. Macquarrie, John & Robinson, Edward (New York: Harper & Row, 1962)Google Scholar at 41.

78. Ibid, at 67.

79. Ibid. at 237.

80. Gary Wickham, “Foucault and Gadamer: Like Apples and Oranges Passing In The Night” (2000) 76 Chi.-Kent L. Rev. 913. This is not to suggest that Gadamer simply applied Heidegger’s thoughts or that he did not have other influences.

81. Sartre, Jean-Paul, Being and Nothingness, trans. Barnes, Hazel E. (New York: Washington Square Press, 1956)Google Scholar at 321.

82. Ibid, at 350: “It is shame or pride which reveals to me the Other’s look and myself at the end of that look.”

83. Edward M. Morgan, “Discovery” (1999) 10 Eur. J. Int’l. L. 583 at 587, fn 21.

84. See Grondin, supra note 45 at 140 for a discussion of cultural relativism and Gadamer. Grondin himself does not advocate such an understanding of Gadamer.

85. For this reason, 1 reject the conclusion of some scholars that Gadamer’s theory does not provide a basis for cross-cultural criticism. See Gedicks, supra note 41 at 627. International instruments also protect culture while denying that it can be used as a pretext to subordinate or marginalize women. See Berta Esperanza Hernandez-Truyol, “Sex, Culture and Rights: A Re/Conceptualization of Violence for the Twenty-First Century” (1997) 60 Albany L. Rev. 607 for a discussion of how culture can be both recognized and rejected in the context of international law’s approach to violence against women.

86. See Patterson, supra note 44 for a defense of Gadamer against critics who charge him with expounding relativism and subjectivism.

87. This leaves open the question of how the term “within” a culture is defined. Geography is not necessarily determinative. For example, Mojubaolu Oiufunke Okome criticizes African women who “jump on the bandwagon of the anti-”FGM” brigade.” She urges them to be wary of “the undue cosmopolitanism that such action entails.” Her criticism suggests that she does not regard these women as being “within” the culture even though they live in it. Mojubaolu Oiufunke Okome, “African Women and Female Circumcision” paper presented at Lehman College, CUNY, April 26,1998 available on-line at http://www.africaresource.com/scholar/okom/womenl.html.

88. See John T. Valauri, ‘The Search for Constitutional Hermeneutics” (2000) 76 Chi.-Kent L. Rev. 1083 for a discussion of Habermas and Betti’s concern that Gadamer’s emphasis on tradition and prejudice as aspects of dialogue allows power to replicate itself at the expense of less powerful members of society.

89. Commentators critical of the imperialism and essentializing approach of Western feminists often do not deny the efficacy of cross-cultural criticism but resent the all-knowing attitude and refusal to examine self that often pervades Western analysis of the other. For example Nesiah, Vasuki, “Toward a Feminist Internationality : A Critique of U.S. Feminist Legal Scholarship” in Global Critical Race Feminism: An International Reader, Wing, Adrien Katherine, ed., (New York: New York University Press, 2000)Google Scholar at 47 argues that U.S. feminist legal scholarship approaches the “Third World” in a way that avoids critical self-reflection and change. In particular, she argues that U.S. feminists fail to interrogate how their decisions contribute to the oppression of women around the globe. She concludes that “this is not to say that we should not generalize but that generalization must always be hesitant and politically grounded…. Even when feminists deconstruct the presupposed commonality of women’s experience, they must seek to hold on to the possibility of a strategic feminist internationality.”

90. Donald L. Horowitz, “The Qur’an and the Common Law: Islamic Law Reform and the Theory of Legal Change” (1994) 42 Am. J. Comp. L. 233 argues that the boundaries between different legal systems including those of the United States, the European Union, the former Soviet Union, as well as those of the Islamic world are not watertight.

91. International human rights treaties often include the phrase “all appropriate measures.” This has been interpreted to mean that the treaties allow for variations based on social and cultural structures. For example, the Committee on Economic, Social and Cultural Rights has noted that “each state party must decide for itself which means are the most appropriate … [but country reports should indicate] the basis on which they are considered the most appropriate.” Committee on Economic, Social and Cultural Rights, General Comment No. 3: Nature of State Parties Obligation U.N. Doc. E/1991/23 at para. 4. See also Stark, Barbara, “The ‘Other’ Half of the International Bill of Rights as a Postmodern Feminist Text” in Reconceiving Reality: Women and International Law, Dallmeyer, Dorinda G., ed., (Washington: American Society of International Law, 1993)Google Scholar and Nyamu, Celestine Itumbi “Rural Women in Kenya and the Legitimacy of Human Rights Discourse and Institutions” in Legitimate Governance in Africa: International and Domestic Legal Perspectives, Quashigah, Edward Kofi & Okafor, Obiora Chinedu, eds., (London: Kluwer Law International, 1999)Google Scholar for illustration of what it might mean to own an international text.

92. Ed Morgan illustrates with reference to civil litigation how American courts have acted inauthentically. He frames his work in terms of Jean-Paul Sartre’s existentialist philosophy and his concepts of “insincerity” and “bad faith.” Morgan, supra note 83 at 587.

93. See Lama Abu-Odeh, “Post-Colonial Feminism and the Veil: Considering the Differences” (1992) 26 New Eng. L. Rev. 1527 for a tangible illustration of how difference need not impede discussion and may give rise to mutual change.

94. Gadamer’s theory aligns itself closely with Critical Race Feminism which focuses on the particularity and intersectionality and takes the local as its starting point while also engaging the universal. See Penelope E. Andrews, “Globalization, Human Rights and Critical Race Feminism: Voices From the Margins” (2000) 3 J. Gender, Race and Justice 373 for an example of such an approach in practice.

95. Consider, for example, the manner in which the Federal Court of Appeal insisted in Baker v. Canada that it would not be proper to consider the effects of deporting a parent on a child. The Court’s only task, according to its analysis, was to focus on the propriety of the deportation itself. See Sharryn Aiken & Sheena Scott, “Baker v. Canada (Minister of Citizenship and Immigration) and the Rights of Children” (2000) 15 J. L. & Soc. Pol’y. 211 at 213 for an overview of the decisions rendered and arguments advanced in this case.

96. Ibid. Again, contrast this to the Federal Court of Appeal’s approach to the question of “choice” in Baker. Following a long line of cases, the court held that Mavis Baker had a choice about whether or not to take her children with her to Jamaica despite the fact that she would be living in abject poverty in Jamaica and subject to relapse into illness.

97. The proper scope of the term “prostitute” is contested at the international level as it is in some domestic jurisdictions. Some urge a reconceptualization of prostitution as sex work. See, for example, Jo Bindman, “Redefining Prostitution as Sex Work on the International Agenda” Anti-Slavery International availble. at http://www.walnet.org/csis/papers/redefining.html. Last visited November 1,2001.

98. Truth and Method, supra note 46 at 341.

99. The fact that I have not suggested the right interpretation under Gadamer’s method should not be taken as a failure or oversight. Philosophical hermeneutics cannot resolve debates in the abstract because it is not intended to be normative. It aims to set out the conditions under which the debate must take place.

100. See Bunting, supra note 36.

101. The view that equality under the law is incompatible with different treatment has been increasingly challenged by legal scholars. See, for example, Minow, Martha, Making All The Difference: Inclusion, Exclusion and American Law (Ithaca, NY: Cornell University Press, 1990).Google Scholar Canadians should be very familiar with the notion that equality of treatment does not necessarily produce equality of results. On the contrary, substantive equality requires different treatment.

102. L. Amede Obiora, “Toward an Auspicious Reconciliation of International and Comparative Analyses” (1998) 46 Am. J. Comp. Law 669 at 678: “If universals are essences common across the universe … then the search for universals may be Utopian…. Conceivably, though, it is possible to ascertain cross-cultural constructs that mutually appeal in the name of justice to uniform ideals which rest on foundations that are autonomous from the rules of positive law.”

103. This is not an easy task given the complexity of the legal order across cultures. See, for example, Janet E. Ainsworth, “Categories and Cultures: On the “Rectification of Names” in Comparative Law” (1996) 82 Cornell L. Rev. 19 for a discussion of how understanding even the label that attaches to a given concept within another culture may require a broader socio-logical and philosophical understanding of the culture. However, international human rights law raises issues that are common among cultures and provides a common vocabulary with which to discuss those issues thereby making cross-cultural comparison easier.

104. See Claire L’Heureux-Dubé, “The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court” (1998) 34 Tulsa L. J. 15 for a judge’s perspective on the importance of considering international law and different perspectives.

105. Dallmayr, supra note 48 at 849 argues that Gadamer’s work calls for “inter-civilizational learning and practical engagement.” This project is threatened both by particularism and Occidental meta-theories that suggest a “superior” standpoint. See also Benedict Kingsbury “Confronting Difference: The Puzzling Durability of Gentili’s Combination of Pragmatic Pluralism and Normative Judgment” (1998) 92 Am. J. Int’l. L. 713 who argues that the tendency to see one’s system as superior remains prevalent in international law even though international scholars have paid homage at the throne of difference for centuries.

106. Craig Scott & Philip Alston, “Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoney’s Legacy and Grootboom’s Promise” (2000) 16(2) S. African J. Human Rights 206 at 210.

107. Hunt, Murray, Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1997)Google Scholar at 42–43.

108. This is another way of “making the text one’s own.” L. Amede Obiora, “Bridges and Barricades: Rethinking Polemics and Intransigence in the Campaign Against Female Circumcision” 47 (1997) Case W. Res. L. Rev. 275. Obiora criticizes Western feminists for their campaign against female genital mutilation. Her observations reinforce the importance of making the text one’s own and stress that imposing meaning on a culture only leads to alienation and rejection. See also at Hope Lewis, “Between Irua and ‘Female Genital Mutilation’: Feminist Human Rights Discourse and the Cultural Divide” (1995) 8 Harv. Human Rights J. 1.

109. Morgan, Discovery, supra note 83 at 603.