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Published online by Cambridge University Press: 24 April 2015
A few years ago I visited Nicaragua as part of a program sponsored by my university. We traveled by bus to the coffee country outside of Matagalpa and met with members of the Union of Organized Women of Yasica Sur, in a community center the women had built in a hollow beside the road. The president of the group described how thirty years ago, she and a small group of women organized to improve the supply of drinking water for their children. Over time, the women moved from providing water to providing schools and bridges, and then affordable medical care and medicines. The organization now has about one thousand members and is one of the most effective in the region. Yet the needs are still great.
Many of the women had walked for over an hour in their best clothes to visit with us. As we listened to them, I heard also my aunts and grandmothers, who did not look so very different from these women, who were just as smart, determined and hard-working, and whose lives were not so very different, except their crop was not coffee: it was sugarcane and pineapple. The sense of connection was shortlived, however. There was a question-and-answer period, and the president asked us what we did at home. One of my colleagues shared she was an environmental engineer, who specialized in lakes. The president smiled and said, “We could use you here.” Then I told her I taught international law. The president listened for the translation, regarded me and said, “I am not educated. Your work is too high for me.” So much for my solidarity with the Union of Organized Women of Yasica Sur.
1. With regard to what we are able to teach one another, Chandra Mohanty argues that women like the members of the Union of Organized Women of Yasica Sur provide “the most inclusive viewing of social power.” Mohanty, Chandra Talpade, “Under Western Eyes” Revisited: Feminist Solidarity through Anticapitalist Struggles, 28 Signs: J. Women & CULTURE in Soc'y 499, 511 (2003) [hereinafter “Under Western Eyes” Revisited[CrossRefGoogle Scholar.
For a discussion of the challenges facing the region we visited, see Centro de Servicios Educativos en Salud y Medio Ambiente, Diagnóstico de Percepciones de Violencia Hacia Niños, Niñas y Adolescentes, en Quince Comunidades Rurales del Municipio de San Ramón, Matagalpa [Diagnosis of Perceptions of Violence Towards Boys, Girls and Adolescents in 15 Rural Communities of the Municipality of San Ramón, Matagalpa] 4, 8 (2008)Google Scholar, available at http://www.cesesma.org/documentos/CESESMA-percepciones_de_violencia.pdf (Spanish).
The type of trip I participated in is not without controversy. On the positive side, it provides economic benefits to the host country. Lópes-Guzmán, Thomás J. & Cañizares, Sandra Maria Sánchez, Desarrollo socioeconómico de las zonas rurales con base in el turismo comunitario: Un studio de caso en Nicaragua [Socioeconomic development of rural areas based on community tourism: A case-study in Nicaragua], 62 Cuadernos de Desarrollo Rural 81 (2009)Google Scholar. In addition, some commentators argue that alternative forms of tourism alert visitors to the issues that face particular communities. McGehee, Nancy Gard, Alternative Tourism and Social Movements, 29 Annals Tourism Res. 124 (2002)CrossRefGoogle Scholar. The trips can also enable cultural exchanges that are good in themselves, Higgins-Desbiolles, Freya, More Than an “Industry”: The Forgotten Power of Tourism as a Social Force, 27 Tourism Mgmt. 1192 (2006)CrossRefGoogle Scholar; and they can lead to activism upon return to the home country. McGehee, Nancy Gard, Social Change, Discourse and Volunteer Tourism, 32 Annals Tourism Res. 760 (2005)CrossRefGoogle Scholar.
At the same time, such trips can evoke memories of the grand tours associated with the nineteenth and twentieth-century social policies of Western Europe. Scholars express concerns that pre-existing biases prevent real learning; that such biases can be imposed in the host country and simply be reinforced while tourists are there and upon their return. Sin, Harng Luh, Volunteer Tourism—“Involve Me and I Will Learn”?, 36 Annals Tourism Res. 480 (2009)CrossRefGoogle Scholar. They argue that such trips, particularly because they are more participatory, use up scarce resources and can destabilize communities. Butler, R.W., Alternative Tourism: Pious Hope or Trojan Horse?, 3 J. Travel Res. 40, 41, 45 (1990)Google Scholar; Weaver, David Bruce, Sustainable Tourism: Theory and Practice 46 (Elsevier 2006)Google Scholar. One of the reasons for sharing this story is because of the ambiguities it presents.
2. Mark 7:27-28 (Unless otherwise indicated all Biblical citations are taken from the New International Version 1978).
3. Rajagopal, Balakrishnan, International Law from Below. Development, Social Movements and Third World Resistance (Cambridge Univ. Press 2003) [hereinafter International Law from Below]CrossRefGoogle Scholar; Rajagopal, Balakrishnan, International Law and Social Movements: Challenges of Theorizing Resistance, 41 Colum. J. Transnat'L L. 397, 410 (2003) [hereinafter Challenges of Theorizing Resistance]Google Scholar.
4. Jouannet, Emmanuelle, Universalism and Imperialism: The True-False Paradox of International Law?, 18 Eur. J. Int'L L. 379 (2007)CrossRefGoogle Scholar.
5. Sen, Amartya, Development as Freedom 57 (Anchor Books 1999) [hereinafter Development as Freedom]Google Scholar; Sen, Amartya, Rationality and Freedom (Belknap Press 2002)Google Scholar; Sen, Amartya, The Idea of Justice (Belknap Press 2009) [hereinafter The Idea of Justice]Google Scholar; Nussbaum, Martha C., Women and Human Development: The Capabilities Approach (Cambridge Univ. Press 2001)Google Scholar; Nussbaum, Martha C., Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press 2007) [hereinafter Frontiers of Justice]Google Scholar.
6. Boucher, David, Political Theories of International Relations: From Thucydides to the Present 395 (Oxford Univ. Press 1998)Google Scholar.
7. Volf, Miroslav, Exclusion & Embrace: A Theological Exploration of Identity, Otherness, and Reconciliation (Abingdon Press 1996) [hereinafter Exclusion & Embrace]Google Scholar; Volf, Miroslav, Free of Charge: Giving and Forgiving in a Culture Stripped of Grace (Zondervan Pub. House 2005) [hereinafter Free Of Charge]Google Scholar; Volf, Miroslav, The End of Memory: Remembering Rightly in a Violent World (W.B. Eerdmans Pub. Co. 2006) [hereinafter The End of Memory]Google Scholar.
8. I acknowledge that many who are engaged in these issues do not find a theological perspective meaningful; thus, this paper will be of little interest or relevance. It is my hope, however, this article will be seen as part of what Jürgen Habermas terms ‘reflexive appropriation.’ habermas, Jürgen, Between Naturalism and Religion: Philosophical Essays (Polity Press 2008)Google Scholar. Charles Griswold's recent work on the philosophy of forgiveness, which draws in part from the sermons of Joseph Butler, is a good example of such appropriation. Griswold, Charles L., Forgiveness: A Philosophical Exploration 19–37 (Cambridge Univ. Press 2007)CrossRefGoogle Scholar.
For a masterful treatment of issues of belief and unbelief and of the possibility of meaningful theological discourse, see generally Taylor, Charles, A Secular Age (Belknap Press 2007)Google Scholar. In this regard, for an argument that religion and international law share the same conceptual features, see Kennedy, David, Images of Religion in International Legal Theory, in The Influence of Religion on the Development of International Law 137 (Janis, Mark w. ed., Marinus Nijhoff Publishers 1991)Google Scholar.
The literature on the intersection of religion and disciplines such as political science, foreign relations, and law is voluminous and even a cursory review of it is well beyond the scope of this article. Discussions of the relationship between religion and international law are found in The Influence of Religion on the Development of International Law, supra, and Religion And International Law (Mark W. Janis & Carolyn Evans eds., Marinus Nijhoff Publishers 1999). For recent works on Christianity and public affairs more generally, see, e.g., Berman, Harold J., An Ecumenical Christian Jurisprudence, in 1 The Teachings of Modern Christianity on Law, Politics & Human Nature 752 (Witte, John Jr. & Alexander, Frank s. eds., Colum. Univ. Press 2006) [hereinafter Teachings of Modern Christianity]Google Scholar; Carter, Stephen L., Liberal Hegemony and Religious Resistance: An Essay on Legal Theory, in Christian Perspectives on Legal Thought 25 (McConnell, Michael W., Cochran, Robert F. Jr., & Carmella, Angela C. eds., Yale Univ. Press 2001)Google Scholar; Forrester, Duncan B., Christian Justice and Public Policy (Cambridge Univ. Press 1997)CrossRefGoogle Scholar; Kent Greenawalt, Reflections on Christian Jurisprudence and Political Philosophy, in 1 Teachings of Modern Christianity, supra at 715; Hehir, J. Bryan, Responsibilities and Temptations of Power: A Catholic View, 8 J.L. & Religion 71 (1990)CrossRefGoogle Scholar; Rothkamm, Jan, On the Foundations of Law: Religion, Nature, Morals, 21 Ratio Juris 300 (2008)CrossRefGoogle Scholar; Witte, John Jr., God's Joust, God's Justice: Law and Religion in the Western Tradition (W.B. Eerdmans Pub. Co. 2006)Google Scholar.
I am also aware that this article will follow two familiar argumentative structures, both subject to criticism. In one, theology provides a solution to an otherwise intractable conceptual or ethical problem. The weakness of this approach is that over time, plausible non-theological solutions tend to edge theology to the margins of discourse. This leads to a second related approach: an attempt to show either how non-theological solutions were anticipated by theology or can be accommodated by theology. The problem with this approach is related to the problem with the first: in the end theology ends up “baptizing” an otherwise non-theological solution, with the result that theology provides no critical value and indeed becomes invested in such a solution.
9. Mark 7:24-30. The story also appears in Matthew. Matt 15: 21-28.
10. One translation reads, “The woman was a Greek, born in Syrian Phoenicia.” Mark 7:26. According to Joel Marcus, the Greek term used here could indicate a “Phoenician from the province of Syria” or a descendent of Phoenicians who had intermarried with Syrians. Marcus, Joel, The Jewish War and the Sitz in Leben of Mark, 111 J. Bib. Lit. 441, 445–46 (1992)Google Scholar.
11. Mark 7:27 (author's translation).
12. Mark 7:29-30 (author's translation).
13. It is important to recall that Christianity began as a movement within Judaism. Runesson, Anders, Rethinking Early Jewish-Christian Relations: Matthean Community History as Pharisaic Intragroup Conflict, 127 J. Bib. Lit. 95, 100 (2008)Google Scholar. One of the more important results of recent scholarship is a growing understanding that Judaism, as practiced in the first century, was more diverse than it is depicted in the gospels. See, e.g., Judaism in Late Antiquity (Neusner, Jacob ed., Brill Academic Publishers 1996)Google Scholar; Maccoby, Hyam, Early Rabbinic Writings (Cambridge Univ. Press 1988)CrossRefGoogle Scholar; Vanderkam, James C., An Introduction to Early Judaism (W.B. Eerdmans Pub. Co. 2003)Google Scholar; Wylen, Stephen M., The Jews in the Time of Jesus: An Introduction (Paulist Press 1996)Google Scholar. One implication is that in several respects, the contrasts between Jesus, and for example, the Pharisees, were not as sharp. See, e.g., Maccoby, Hyam, Jesus the Pharisee (SCM Press 2003)Google Scholar (arguing that Jesus was not only sympathetic to aspects of the Pharisee movement, but a Pharisee himself). For a discussion of the field, see Green, William Scott, Introduction: The Scholarly Study of Judaism and its Sources, in Judaism in Late Antiquity 1 (Neusner, Jacob ed., Brill Academic Publishers 1996)Google Scholar.
14. Robertson, A.T., The Teaching of Jesus in Mark's Gospel, 52 The Biblical World 83, 88 (1918)Google Scholar; Burkill, T.A., The Historical Development of the Story of the Syrophoenician Woman (Mark VII:24-31), 9 Novum Testamentum 161, 162 (1967)CrossRefGoogle Scholar; Martin, Ralph, Mark: Evangelist & Theologian 212 (Zondervan Pub. House 1973)Google Scholar.
J. Duncan M. Derrett gives a closely related, jurisprudential account of the story. Under this interpretation, the woman's reply gives Jesus legal grounds to provide benefits to Gentiles that belong first to the Derrett, Jews. J. Duncan M., Law in the New Testament: The Syro-Phoenician Woman and the Centurion of Capernaum, 15 Novum Testamentum 161, 165, 171 (1973)CrossRefGoogle Scholar.
15. Howard, George, A Note on the Short Ending of Matthew, 81 Harv. Theol. Rev. 117, 119 (1988)CrossRefGoogle Scholar, (citing Beare, Francis W., The Earliest Records of Jesus (Blackwell Pub. 1962)Google Scholar (“The harshness of the sayings of Jesus … still puzzles the Christian reader, who finds it impossible to imagine Jesus addressing the distraught mother in such terms.…”)); Martin, supra note 14, at 211 (“That term ‘dog’ is one of grave insult and it cannot be denied that an extremely harsh refusal of her request is implied. She is reproached for what she is, by birth and religion.”) (citations omitted).
16. Pedersen, Sigfred, “κύων,” in 2 Exegetical Dictionary of the New Testament 332 (Balz, Horst & Schneider, Gerhard eds., W.B. Eerdmans Pub. Co. 1981) [hereinafter Exegetical Dictionary]Google Scholar. See also Witherington, Ben III, The Gospel of Mark: A Socio-Rhetorical Commentary 232 (W.B. Eerdmans Pub. Co. 2001) (describing the term as an insult)Google Scholar.
17. For a discussion of early interpretations of the story, see Alonso, Pablo, La Mujer Sirofenicia en la Interpretación Patrística [The Syrophoenician Woman in Patristic Interpretation] 80 Estudios Eclesiásticos 455 (2005) (discussing allegorical interpretations of the story by early church leaders)Google Scholar. The Pseudo-Clementine Homilies, a romance written sometime between the second and fourth centuries CE, contains a more elaborate version of the story: the woman is named Justa, and her daughter, Bernice. Jesus rejects her as a Gentile who engages in unclean eating practices, hence the reference to throwing food to the dogs. Justa's reply indicates she is willing to forsake such practices and becomes a convert, thus allowing Jesus to heal her daughter. Justa's husband drives her from the home because of her conversion. Because she is affluent, she is able to remain single and adopts two males as sons. The Clementine Homilies, Homily II, Chs., XIX-XXI, in 8 Ante-Nicene Fathers: Fathers of the Third and Fourth Centuries: The Twelve Patriarchs, Excerpts and Epistles, the Clementina, Apochrypha, Decretals, Memoirs of Edissa and Syrian Documents, Remains of the First Ages, 223, 232 (Roberts, Alexander & Donaldson, James eds., Smith, Thomas trans., American ed., Christian Literature Publ'g Co. 1886), available at http://files.libertyfund.org/files/1975/1333.08J3k.pdfGoogle Scholar. Alan Cadwallader argues that the recasting of the story in the Homilies is an attempt to reassert male hierarchy. Justa, as depicted in the Homilies, “serves the needs of the … male characters in the story and the narrative concerns of the male author.” Cadwallader, Alan H., What's in a Name? The Tenacity of a Tradition of Interpretation, 39 Lutheran Theol. J. 218, 231 (2005)Google Scholar. This is done in part by embedding the story as a conversation between Clement and Peter. Id. Further, Cadwallader points out, she remains a “widow” for the sake of her faith, yet brings required male authority into the home in the form of her two adopted sons. Id.
18. “κυνάριον,” Exegetical Dictionary, supra note 16, at 332. The same word kunárion, also appears in the Matthean version.
19. See, e.g., Fllson, Floyd V., A Commentary on the Gospel According to st. Matthew 180 (Harper 1960)Google Scholar; Taylor, Vincent, The Gospel According to St. Mark 350 (St. Martin's Press 1952)Google Scholar.
20. Filson, supra note 19, at 180.
21. This implies at least three contexts for meaning: first, how the story was used and interpreted when it was first told, probably in oral form; second, how it was used and heard by Mark's first audience, as the story was integrated into his gospel; and third, how it was interpreted by the wider church.
22. White, L. Michael, From Jesus to Christianity 14 (Harper San Francisco 2004)Google Scholar.
23. Id. at 15.
24. Id.
25. A good discussion of these issues is found in Johnson, Luke Timothy, The Real Jesus: The Misguided Quest for the Historical Jesus and the Truth of the Traditional Gospels (Harper 1996)Google Scholar. For a recent discussion of a method for using historical-critical methods, tradition, and reason to derive a picture of Jesus, see Ratzinger, Joseph, Jesus of Nazareth: From the Baptism in the Jordan to the Transfiguration xi–xxiii (Doubleday Pub. 2007)Google Scholar. For a more general discussion of how scripture functions as an authoritative source in theology, see Kelsey, David H., The Uses of Scripture in Recent Theology (Fortress Press 1975)Google Scholar.
26. White, supra note 22, at 15.
27. Id.
28. Riches, John K., The Social World of Jesus, 50 Interpretation 383, 388 (1996)Google Scholar; Fernández, Miguel Pérez, Rabbinic Texts in the Exegesis of the New Testament, 7 Rev. Rabbinic Judaism 95, 100 (2004)CrossRefGoogle Scholar (“[G]alilee was a particularly Hellenized region, recently reconverted to Judaism by the Maccabees”).
29. Fernández, supra note 28, at 100.
30. Rhoads, David, Jesus and the Syrophoenician Woman in Mark: A Narrative-Critical Study, 62 J. Am. Acad. Rel. 343, 358 (1994)Google Scholar.
31. These forms of resistance are discussed in the now-classic Scott, James C., Weapons of the Weak: Everyday Forms of Peasant Resistance (Yale Univ. Press 1985)Google Scholar.
32. Rhoads, supra note 30, at 358.
33. Id. at 358-59 (citations omitted).
34. Nelavala, Surekha, Smart Syrophoenician Woman: A Dalit Feminist Reading of Mark 7: 24-31, 118 Expository Times 64, 68 (2006)CrossRefGoogle Scholar.
35. Freire, Paulo, Pedagogy of the Oppressed 126 (Ramos, Myra Bergman ed., Continuum Pub. Co. 1970)Google Scholar. Elisabeth Schüssler Fiorenza views the woman as being less deferential than do either Rhodes or Nelavala. For Fiorenza, “the woman has broken all the rules of conduct. She has shown no proper feminine sensitivity at all.” Fiorenza, Elisabeth Schüssler, But She Said: Feminist Practices of Biblical Interpretation 103 (Beacon Press 1993)Google Scholar. Further, “[although Jesus does not address her directly, brushing away her request, she continues to insist that the boundaries between inside/outside, private/public, male/female must be crossed.” Id.
36. Rhoads, supra note 30, at 370.
37. Id.
38. Theissen, Gerd, Lokal-und Sozialkolorit in der Geschicte von der Syrophoenikischen Frau (Mark 7:24-30), 75 Zeitschrift fur die Neutestamentliche Wissenschaft 202 (1984) (German)Google Scholar; Theissen, Gerd, The Open Door: Variations on Biblical Themes 41 (Fortress Press 1991) (arguing the woman belongs to a “tiny Hellenized upper class in the east of the Roman Empire.”)Google Scholar. As discussed earlier, the version in the Pseudo-Clementine Homilies also depicts the woman as a person of means. Supra note 17.
39. Hollenbach, Paul W., Jesus, Demoniacs, and Public Authorities: A Socio-Historical Study, 49 J. Am. Acad. Rel. 567 (1981)CrossRefGoogle Scholar.
40. Fanon, Franz, The Wretched of The Earth (Grove Press 1963)Google Scholar.
41. Hollenbach, supra note 39, at 575.
42. Id.
43. Id at 579.
44. Most scholars acknowledge that a major portion of Jesus' ministry was devoted to healing the sick and performing exorcisms. See, e.g., Borg, Marcus J., Jesus: Uncovering the Life, Teachings, and Relevance of a Religious Revolutionary 146–50 (Harper 2006)Google Scholar. Persons afflicted by illness stood outside the ambit of the community, as well as God's favor. As N.T. Wright puts it, “The effect of these cures [by Jesus] … was not merely to bring physical healing; not merely to give humans … a renewed sense of community membership;… but to reconstitute those healed as members of the people of Israel's God.” Wright, N.T., Jesus and the Victory of God 192 (Fortress Press 1996)Google Scholar. However, Wright is dubious of what he terms “fashionable” interpretations of the story. Id. at 309 n.244.
45. Bae, Hyunju, Dancing Around Life: An Asian Woman's Perspective, 56 Ecumenical Rev. 390, 399 (2004)CrossRefGoogle Scholar.
46. Id.
47. Pedersen, supra note 16.
48. Rhoads suggests “[i]ronically, the woman's proverb may well have expressed the despair of the Galileans themselves, that (unlike us Galileans), ‘Even dogs get crumbs.’” Rhoads, supra note 30, at 370.
49. Derrett, supra note 14, at 173.
50. Gundry-Volf, Judith, Spirit, Mercy and the Other, 51 Theology Today 508, 521 (1995)CrossRefGoogle Scholar.
51. Bae, supra note 45, at 399.
52. Theissen, supra note 38, at 46.
53. See, e.g., Koskenniemi, Marth, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge Univ. Press 2002) [hereinafter The Gentle Civilizer of Nations]Google Scholar; Goldsmith, Jack L. & Posner, Eric A., The Limits of International Law (Oxford Univ. Press 2005)Google Scholar.
54. Koskenniemi, Martti, The Politics of International Law—20 Years Later, 20 Eur. J. Int'L L. 7, 9 (2009) [hereinafter The Politics of International Law—20 Years Later[CrossRefGoogle Scholar.
55. Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argument: Reissue with New Epilogue (Cambridge Univ. Press 2005) [hereinafter From Apology to Utopia]Google Scholar. Nathaniel Berman identifies challenges to both the status of international law and international law's coherence and argues that there will never be a completely satisfactory answer to those challenges. Berman, Nathaniel, Intervention in a “Divided World”: Axes of Legitimacy, in Fault Lines of International Legitimacy 115, 118–19 (Charlesworth, Hilary & Coicaud, Jean-Marc eds., Cambridge Univ. Press 2010)Google Scholar. Nikolaos Tsagourias discusses the shortcomings of natural law, and positivist and procedural accounts of international law in Tsagourias, Nikolaos K., Jurisprudence of International Law: The Humanitarian Dimension (Manchester Univ. Press 2000)Google Scholar. Both natural law and positivist theories of international law seek a “rational foundation for legal rules which is a matter of knowledge not of opinion.” Id. at 54. However, “[b]ecause the search for foundations can regress ad infinitum, the selection of a certain basis is unavoidably subjective.” Id. In this regard, even an approach which seeks to base law on a set of shared human values is not completely satisfactory, as Tsagourias points out, because “it simultaneously embraces individualist criteria based on rational decision but also communitarian criteria based on the negotiated wishes of particular communities.” Id. As for procedurally based conceptions of international law, the problem is that the chosen procedures almost invariably embed substantive values that predetermine procedural outcomes. Id. at 55.
56. The Politics of International Law—20 Years Later, supra note 54, at9, 15-16.
57. Thomas Pogge writes:
Official estimates show 830 million humans chronically undernourished, 1,100 million lacking access to safe water, and 2,600 million lacking access to basic sanitation. About 2,000 million lack access to essential drugs. Some 1,000 million have no adequate shelter and 2,000 million lack electricity. Some 774 million adults are illiterate and 218 million children between five and seventeen do wage work outside their household—often under harsh or cruel conditions.… Roughly one-third of all human deaths, 18 million annually, are due to poverty-related causes.… People of color, females, and the very young are heavily overrepresented among the global poor, and hence also among those suffering the staggering effects of severe poverty.
Pogge, Thomas W., Growth and Inequality: Understanding Recent Trends and Political Choices, 55 Dissent 66, 72 (2008) [hereinafter Growth and Inequality]CrossRefGoogle Scholar.
58. Id. at 72. Pogge argues these rules enable and enforce the transfer of natural resource and borrowing privileges that harm the poor. Pogge, Thomas, World Poverty & Human Rights 118-22 (2d ed., Polity Press 2008) [hereinafter World Poverty & Human Rights]Google Scholar. See also Roller, Peter, International Law and Global Justice, in Legitimacy, Justice and Public International Law 186, 187 (Meyer, Lukas H. ed., Cambridge Univ. Press 2009) (“[I]t becomes pretty clear that the misery in many regions has a lot to do with the prevailing international system, comprising international law as its normative order and international politics as its actual practice.”)Google Scholar.
59. Id. Koskenniemi also believes “our practices, institutional and conceptual frameworks somehow help to sustain” this division. From Apology to Utopia, supra note 55, at 606. This is the structural bias in which “the system still de facto prefers some outcomes or distributive choices to other outcomes or choices.” Id. at 605-07.
The disparate impacts and the disadvantages of poorer countries with respect to international law have been the subject of a wide-ranging literature. For discussions of the experience that poorer countries have with the international trade regime in dispute resolution, the formation of policy, and the substantive law itself, see, e.g., Smith, James, Inequality in International Trade? Developing Countries and International Change in WTO Dispute Settlement, 11 Rev. Int'l Pol. Econ. 542 (2004)CrossRefGoogle Scholar (arguing that procedural rulings by the WTO Appellate Body, such as allowing NGO participation in some disputes, disadvantages poorer countries in the WTO dispute resolution process); Jones, Kent, Green Room Politics and the WTO's Crisis of Representation, 9 Prog. Dev. Stud. 349 (2009)CrossRefGoogle Scholar (discussing the problems poorer WTO members encounter in attempting to influence WTO policy); Wade, Robert Hunter, What Strategies are Viable for Developing Countries Today? The World Trade Organization and the Shrinking of ‘Development Space,’ 10 Rev. Int'L Pol. Econ. 621 (2009)CrossRefGoogle Scholar (arguing that WTO substantive disciplines have limited the ability of poorer countries to craft their own development policies, thus perpetuating the disparities between richer and poorer countries).
In the area of climate change, several have argued that poorer countries will be hurt more by the adverse effects of climate change than polluter countries and will be less able to respond to those effects. These poorer countries, however, have less ability to influence climate change negotiations. See, e.g., Ashton, John & Yang, Xueman, Equity and Climate in Principle and in Practice, in Aldy, Joseph E.et. al., Beyond Kyoto: Advancing the International Effort Against Climate Change 61, 61–62 (Pew Ctr. on Global Climate Change 2003)Google Scholar; Nhamo, Godwell, From Brazil's CDF to Kyoto's CDM: Revisiting Equity Issues in Global Climate Governance, in Globalisation & Governance 236 (Boulle, Laurence ed., Siber Ink 2011)Google Scholar (arguing that the rejection by developed countries of a 1995 Brazilian proposal to establish a Clean Development Fund underscores the tensions between developed and developing countries in the international response to climate change).
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61. Falk, Richardet. al., Introduction, in International law and the Third World: Reshaping Justice 1, 5 (Falk, Richardet. al. eds., Routledge-Cavendish 2008)Google Scholar.
62. Id.
63. Imperialism, Sovereignty, & The Making of International Law, supra note 60, at 267, 311.
64. Several scholars argue (this in line with some of the criticisms raised by Pogge) that the web of international institutions form, to use Bhupinder Chimni's terms, a kind of quasi state whose purpose is to facilitate and create the conditions for the operation of capital. See generally Chimni, Bhupinder S., International Institutions Today: An Imperial Global State in the Making, 15 Eur. J. Int'L L. 1, 1–2 (2004)CrossRefGoogle Scholar. See also Challenges of Theorizing Resistance, supra note 3, at 410.
65. See, e.g., International Law from Below, supra note 3. Rajagopal argues that development as currently understood preserves and has its origins in earlier forms of colonialism. At the same time, this understanding of development has itself evolved in response to resistance from the various instantiations of the Third World. Id. at 39-49.
66. See, e.g., Manifesto, supra note 60, at 16-17 (criticizing an emphasis on private human rights over social rights); Fagbongbe, Mosope, The Future of Women's Rights from a TWAIL Perspective, 10 Int'L Comm. L. Rev. 401, 404 (2008)Google Scholar (arguing that the development of human rights law at the -same time Western influence increases over the Third World creates a contradiction, allowing human rights to serve as both a “taming device” and a “weapon” of struggle) (citations omitted); Rajagopal, Balakrishnan, Culture, Resistance, and the Problems of Translating Human Rights, 41 Tex. Int'L L.J. 419 (2006)Google Scholar (expressing concerns that human rights discourse could push out other types of emancipatory discourse taking place in the Third World). Rajagopal in particular argues that international human rights discourse has become subsumed by development discourse, as unsuccessful attempts by the Third World to address economic issues directly caused the Third World to turn to human rights discourse and through it, to emphasize economic and social rights. International Law from Below, supra note 3, at 216-18. Thus, for Rajagopal, the tension between universality and cultural relativity that troubles human rights discourse is the same as the tension between modernity and tradition that runs through development discourse. Id. at 212.
67. A thorough appraisal of these issues requires the input of many fields, each of which has contributed a large literature. Among the evaluative tasks are: tracing the history of western expansion; assessing the political, social, and economic impacts of such expansion on other societies; determining the extent to which that past experience has put into place or set into motion structures and dynamics that both persist and continue to be reinforced by powerful international actors; clarifying the relationship between these structures and dynamics and human suffering; and of course, determining the role that international law plays in each of these areas. Besides the literature cited in other parts of this Article, see, e.g., Jones, Todd, Liberalism and Cultural Policy in Indonesia, 13 Social Identities 441 (2007)CrossRefGoogle Scholar (discussing the impact of liberalism on Indonesian cultural policy in both the colonial and post-colonial periods); Lazreg, Marnia, The Colonial in the Global: Where Does the Third World Fit In?, 26 J. Third World Stud. 17 (2009)Google Scholar (arguing that colonialism persists or has been revived with increasing globalization); Sidaway, James D., Spaces of Postdevelopment, 31 Progress in Human Geography 345 (2007) (surveying the literature of postdevelopment and linking current trends to colonial and post-colonial legacies in various countries)CrossRefGoogle Scholar.
68. Imperialism, Sovereignty, & The Making of International Law, supra note 60, at 8.
69. As William Scheuerman puts it, “Western ideals of the rule of law and human rights are unlikely to gain a firm footing if they continue to be plausibly associated with economic and social policies which exacerbate the economic misery of hundreds of millions of our fellow human beings.” Scheuerman, William E., “The Center Cannot Hold”: A Response to Benedict Kingsbury, in Moral Universalism and Pluralism 205, 216 (Richardson, Henry S. & Williams, Melissa S. eds., N.Y.U. Press 2009)Google Scholar.
70. The United Nations Development Program reports in 2005 that in India, the death rate for children ages 1-5 is 50% higher for girls than boys. Watkins, Keithet. al., Human Development Report 2005: International Cooperation at the Crossroads: Aid, Trade and Security in an Unequal World, United Nations Development Program 6 (2005)Google Scholar. The United Nations Population Fund reports that as of 2005, although there had been improvements in access to primary education in Northern Africa and Southern Asia, disparities between boys and girls with access remain “a serious concern” in Southern Asia, sub-Saharan Africa and Western Asia. United Nations Population Fund, Gender Equality Fact Sheet, available at http://www.unfpa.org/swp/2005/presskit/factsheets/facts_gender.htm. At that time, of the 800 million illiterate adults in the world, two-thirds of them were women. Id. Sixty percent of the estimated 550 million working poor are women. Women have less access to paid employment and make up the largest share of the informal employment sector (with the exception of the Middle East). Id. With respect to political power, the United Nations Population Fund notes that as of 2005 women held only 16% of legislative seats worldwide. Id.
71. Charlesworth, Hilary & Chinkin, Christine, The Boundaries of International Law: A Feminist Analysis 1 (Juris Pub. 2000) [hereinafter The Boundaries of International Law]Google Scholar.
72. Charlesworth, Hilary, Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations, 18 Harv. Hum. Rts. J. 1, 11 (2005)Google Scholar.
73. Id.
74. Id.
75. Id. at 14-15. See also The Boundaries of International Law, supra note 71, at 48-50.
76. Id. at 15.
77. Otto, Dianne, The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade, 10 Melbourne J. Int'L L. 1, 5 (2009) [hereinafter The Exile of Exclusion]Google Scholar. Otto argues these three developments are illustrated by the UN Security Council's adoption of Security Council Resolution 1325, which recognized the role women play in international peace and security. Id. at 5-9; S.C. Res. 1325, U.N. SCOR, 4213th meeting, U.N. Doc S/RES/1325 (Oct. 31, 2000).
78. The Exile of Exclusion, supra note 77, at 10. Otto argues that despite the progress marked by Security Council Resolution 1325, that resolution itself and follow-up Resolution 1820, also illustrate these concerns. Id. at 13-15; S.C. Res 1820, U.N. SCOR, 5916th meeting, U.N. Doc S/RES/1820 (June 19,2008).
Otto engages the earlier work of other scholars who have identified the dangers of mainstreaming in other international settings. The Exile of Exclusion, supra note 77, at 9-10, (citing among others Baden, Sally & Goetz, Anne Marie, Who Needs [Sex] When You Can Have [Gender]? Conflicting Discourses on Gender at Beijing, in Feminist Visions of Development: Gender Analysis and Policy 19, 20–12 (Jackson, Cecile & Pearson, Ruth eds., Routledge 1998) (raising concerns about mainstreaming in international development)Google Scholar; Razavi, Shahra & Miller, Carol, Gender Mainstreaming: A Study of Efforts by the UNDP, the World Bank and the ILO to Institutionalize Gender Issues, Occasional Paper No. 4, U.N. Research Institute for Social Development 67–69 (08 1, 1995)Google Scholar (discussing how gender mainstreaming has been sidetracked in those institutions through lack of senior management support, resources, and expertise, and marginalizing of mainstreaming efforts)).
79. The Exile of Exclusion, supra note 77, at 15.
A report issued in August 2010 by the United Nations Office of Internal Oversight Services confirms many of the criticisms of gender mainstreaming raised by Charlesworth, Otto, and Razavi and Miller. United Nations, Office of Internal Oversight Services, Thematic Evaluation of Gender Mainstreaming in the United Nations Secretariat, U.N. Doc. A/65/266 (08 9, 2010) [hereinafter Internal Oversight Report]Google Scholar. Among other things, the report found that mainstreaming was not always well understood in various parts of the UN Secretariat, id. at 15, and that leadership and accountability for gender mainstreaming was weak. Id. at 19.
In 2010, the United Nations reorganized various parts that addressed women's issues into a single entity, the United Nations Entity for Gender Equality and the Empowerment of Women, or UN Women for short. G.A. Res. 289, U.N. GAOR, 64th Sess., at 8, U.N. Doc. A/64/289 (July 21, 2010). (The UN Women website is available at www.unwomen.org.). UN Women is charged, among other things, with furthering gender mainstreaming in the United Nations system. Id. at 9. The Internal Oversight Report recommends that UN Women engage in a re-evaluation of gender mainstreaming within three years. Internal Oversight Report, supra at 79.
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85. Dube, Musa W., Searching for the Lost Needle: Double Colonialization and Postcolonial African Feminisms, 5 Stud. World Christianity 213, 214, 216–17 (1999)CrossRefGoogle Scholar. As might be expected, these differences exist within countries. Aída Hernandez Castillo, for example, discusses the differing priorities of Mexican feminists located in urban areas and indigenous Mexican feminists. Castillo, R. Aída Hernández, Entre el etnocentrismo feminista y el esencialismo étnico. Las mujeres indígenas y sus demandas de género [Between Feminist Ethnocentrism and Ethnic Essentialism: Indigenous Women and their Demands of Gender], 24 Debate Feminista 206 (2001)Google Scholar. On the possibility of a transnational feminism, see, e.g., MacKie, Vera, The Language of Globalization, Transnationality and Feminism, 3 Int'l Fem. J. Pol. 180 (2001)CrossRefGoogle Scholar (suggesting that an examination of feminism movements in the Asia-Pacific region could help move the focus away from the dichotomy between western and non-western feminisms).
Rhoda Howard-Hassmann provides an interesting schematic of what in her view is the “complex reality that characterizes the lives of most women in the West, and that is increasingly characteristic of the lives of women in the non-Western world.” Howard-Hassmann, Rhoda E., (Dis)embedded Women, 24 Mich. J. Int'L L. 227, 236 (2002)Google Scholar. Using a sociological approach, Howard-Hassmann argues a woman has her own identity and at the same time overlapping commitments to a number of groups: family, job, private interests, religion, friendships, community and country. Id.
This complexity does not imply that points of view are incommensurate. Rather, “[t]he challenge is to see how differences allow us to explain the connections and border crossings better and more accurately, how specifying difference allows us to theorize universal concerns more fully.” “Under Western Eyes” Revisited, supra note 1, at 505.
86. As is well known, the post-colonial and feminist critiques of international law are significantly informed by concepts taken from post-modernist thought. There is in some strands of both critiques a suspicion of universalism, especially universal concepts such as “civilization,” “development,” the “Third World,” or “woman” or “man” when they are given ontological status as natural parts of the “real” world. Besides the epistemological and ontological problems associated with identifying universally applicable concepts such as liberty or freedom, attempts to universalize are often unsuccessful and are always “formulated from a particular standpoint.” Id. at 106-07. On the issues related to essentialism and its relationship to forms of oppression, see, e.g., Spelman, Elizabeth, Inessential Woman: Problems of Exclusion in Feminist Thought 133–59 (Beacon Press 1988)Google Scholar; Harris, Angela P., Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581 (1990)CrossRefGoogle Scholar. For this reason, universalities make possible scales and gradations and the measurement of people or countries based on purportedly universal criteria, which makes oppression possible. On the misuses of the universal concepts in the encounter with other peoples, see Imperialism, Sovereignty, & The Making of International Law, supra note 60, at 52-55; Boucher, supra note 6; The Gentle Civilizer of Nations, supra note 53.
The suspicion of universalism is closely tied to concerns about essentialism: the belief that one can get to the heart of what it is to be a woman or a man, Asian, African, or European, and then base one's actions on those purportedly essential aspects. As Charlesworth and Chinkin put it, such essentialism “confuses social relations with immutable attributes” and thus excludes other possibilities for social relations that would better respond to the complexity that makes up the human being in the world. The Boundaries of International Law, supra note 71, at 52. Thus one of the goals appears to be particularity that has a greater appreciation for the nuances of human life and could allow for greater individual thriving, a set of rich communities of the kind envisioned by Iris Young. Young, Iris Marion, Justice and the Politics of Difference (Princeton Univ. Press 1990)Google Scholar. As I will show, the approaches described in the next three subparts respond in some way to these theoretical critiques.
87. Okafor, Obiora Chinedu, Poverty, Agency and Resistance in the Future of International Law: An African Perspective, in International Law and the Third World: Reshaping Justice 95, 105 (Falk, Richardet. al. eds., Routledge-Cavendish 2008)Google Scholar; Challenges of Theorizing Resistance, supra note 3, at 399-400; Sornarajah, Muthucumaraswamy, Power and Justice: Third World Resistance in International Law, 10 Singapore Y.B. Int'LL. 19 (2006)Google Scholar.
88. Sornarajah, supra note 87, at 25.
89. Challenges of Theorizing Resistance, supra note 3, at 400. As Otto puts it, it is quite possible for subaltern speech to be described as “a ‘clamor,’ the spread of ‘rumor,’ the noise of ‘the mindless rabble,’ the disorganization of ‘the traditional community,’ and the impulse of ‘religious fanaticism.’” Otto, Diane, Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference, in Laws of the Postcolonial 145, 167 (Darian-Smith, Eve & Fitzpatrick, Peter eds., Univ. Mich. Press 1999) [hereinafter Subalternity and International Law]Google Scholar.
90. Id. at 408-11.
91. Id. at 416 (citing Cultures of Politics/Politics of Cultures: Re-Vlsioning Latin American Social Movements 7 (Alavarez, Sonia E.et al. eds., Westview Press 1998))Google Scholar.
92. Id. at 417.
93. Id.
94. Id.
95. Stark, Rodney, The Rise of Christianity: A Sociologist Reconsiders History 73–93, 104–11, 118, 124–25 (Princeton Univ. Press 1996)Google Scholar.
96. Boucher, supra note 6, at 378.
97. Id.
98. Id.
99. Boucher distinguishes the nation from the state. “A nation is a community of people with an aspiration to be politically self-determining, and the state is the set of political institutions that they aspire to achieve.” Id. at 389 (citations omitted).
100. Id. at 387.
101. Id. at 379.
102. A classic literary example is Ellison, Ralph, Invisible Man (Vintage Books ed. 1972) (1952)Google Scholar.
103. The Gentle Civilizer of Nations, supra note 53, at 517. See also Boucher, supra note 6, at 379 (The state is also founded on patterns of exclusion and inclusion, patterns which are historically contingent and thus not pre-ordained.).
104. In this regard I appreciate conversations with Tayyab Mahmud, who reminds me that in post-colonial studies the work of understanding the history of international law in the context of colonialism and its current impacts is far from over. For an example of his contributions to this literature, see Mahmud, Tayyab, Colonial Cartographies, Postcolonial Borders and Enduring Failures of International Law: The Unending War along the Afghanistan-Pakistan Frontier, 20 Brooklyn J. Int'L L. 1 (2010)Google Scholar (discussing among other things how colonial demarcation of borders influence the current conflict in Afghanistan and Pakistan).
Rajagopal is aware of the questions I raise here. He acknowledges that social movements are “extremely diverse and dramatically vary from country to country or even from region to region.” International Law from Below, supra note 3, at 249.
105. Writing in 2003, his primary interest is in understanding how social movements might impact the current doctrines and principles of international law. Id.
Chimni, on the other hand, suggests some form of democratic socialism. Manifesto, supra note 60, at 21. Such ideals would be realized through reform instead of revolution and would be open to reliance on market institutions. Id. At the same time, Chimni's article is intended only to initiate a debate on these issues, id. at 4, and thus does not develop fully how such ideals would be realized.
106. International Law from Below, supra note 3, at 262.
107. Id.
108. Challenges of Theorizing Resistance, supra note 3, at 412.
109. As Cass Sunstein explains it, incompletely theorized agreements are theoretical compromises that allow persons with different points of view to reach an agreement on one level of abstraction while not reaching agreement on other levels. Sunstein, Cass R., Designing Democracy: What Constitutions do 44 (Oxford Univ. Press 2001)Google Scholar. I discuss this concept in somewhat more detail in my discussion of Sen's comparative approach. See infra text accompanying notes 158-59.
110. Habermas, for example, sees one of the roles of formal legislatures as selecting and justifying policies that have already been “discovered” through interactions in the public sphere. Habermas, Jürgen, Between Facts and Norms: Contributions to Discourse Theory of Law and Democracy 307 (Rehg, William trans., MIT Press 1996) [hereinafter Between Facts and Norms]Google Scholar.
111. Jouannet, supra note 4.
112. See supra text accompanying note 63. The problems of ideology are discussed in connection with the concept of democracy in Marks, Susan, The Riddle of all Constitutions: International Law, Democracy and the Critique of Ideology (Oxford Univ. Press 1999)Google Scholar. Marks' analysis of ideology is found in ch. 1, id. at 1-29, and then used throughout.
113. Held, David, Democracy: From City-States to a Cosmopolitan Order?, 40 Pol. Stud. 10, 25–26 (1992)CrossRefGoogle Scholar.
114. Jouannet, supra note 4, at 406. See also Koskenniemi, Martti, International Law and Imperialism, in Contemporary Issues in International Law. A Collection of the Josephine Onoh Memorial Lectures 197, 198 (Freestone, Davidet. al. eds., Springer 2002)Google Scholar (“There is an ambivalence about international law. Sovereignty and international governance seem both good and bad, liberating and threatening at the same time: neither provides a recipe against domination.”).
115. Id. at 380-87. Jouannet stresses that she does not mean that international law has adopted “a particular form of religion, culture, morality or conception of happiness.” Id. at 388. Instead, ideas embodied in international law, such as democracy and human rights,
express a juridical and liberal conception of “ justice” that should remain neutral vis-à-vis the varying conceptions of the good, and aim instead to respect the plurality of subjective individual values and goods, the internal plurality of each state, and the cultures, religions and opinions of each individual.
Id.
116. Id. at 389.
117. Id. at 390.
118. Id.
119. Id., at 398.
120. Id. at 401 (emphasis supplied). Jouannet does not expressly identify what those trends of thought are. My guess is that Habermas's theory of communicative action and his attempt to ground law and democracy from such action is an example of inter-subjective thought to which Jouannet is referring. 1 Habermas, Jürgen, The Theory of Communicative Action: Reason and the Rationalization of Society (McCarthy, Thomas trans., Beacon Press 1984)Google Scholar; 2 Habermas, Jürgen, The Theory of Communicative Action: A Critique of Functionalist Reason (McCarthy, Thomas trans., Polity Press 1987)Google Scholar; Between Facts and Norms, supra note 110.
121. Jouannet, supra note 4, at 401-02. Habermas's more recent discussions of this process appear in Between Naturalism and Religion, supra note 8.
122. Jouannet, supra note 4, at 404 (citing Berman, Nathaniel, Les ambivalences impériales, [Imperial Ambivalences], in Droit International et Imperialisme en Europe et Aux Etatsunis [International Law and Imperialism in Europe and the United States] 131 (Jouannet, Emmanuelle & Ruiz-Fabri, Hélène eds. 2007)Google Scholar; Berman, Nathaniel, “But the Alternative is Despair”: European Nationalism, and the Modernist Renewal of International Law, 106 Harv. L. Rev. 1792 (1993)CrossRefGoogle Scholar; Berman, Nathaniel, Modernism, Nationalism, and the Rhetoric of Reconstruction, 4 Yale J. L. & Humanities 351 (1992)Google Scholar; Berman, Nathaniel, A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework, 33 Harv. Int'L L.J. 353 (1992))Google Scholar.
Another scholar who has employed psychoanalytic concepts to international law is Tawia Ansah. See, e.g., Ansah, Tawia B., Genocide and the Eroticization of Death: Law, Violence and Moral Purity, 14 So. Cal. Interdisc. L.J. 181 (2005)Google Scholar; Ansah, Tawia B., A Terrible Purity: International Law, Morality, Religion, Exclusion, 38 Corn. Int'LL.J. 9 (2005)Google Scholar.
123. Jouannet, supra note 4, at 405.
124. Id.
125. There is a sense in which Rorty reaches the same result, although he writes in hermeneutic terms. For him too, it is not rationality or legality which leads liberal society to an aversion to cruelty. It is the warp and woof of modern life, most importantly expressed in literature. Rorty, Richard, Contingency, Irony, and Solidarity 141–88 (Cambridge Univ. Press 1989)CrossRefGoogle Scholar.
Martha Nussbaum also explains the human propensity for “bad behavior” through psychoanalytic concepts. She argues that such bad behavior stems from the anxiety and shame of incompleteness each person experiences at infancy as it dawns on him or her that “good things” do not always come instantaneously. Such pain leads to shame and revulsion that is projected outwards “onto subordinate groups who conveniently symbolize the problematic aspects of humanity, those from which people want to distance themselves.” Nussbaum, Martha C., Radical Evil in the Lockean State: The Neglect of the Political Emotions, 3 J. Moral Phil. 159, 164 (2006)Google Scholar.
126. Jouannet, supra note 4, at 403.
127. Id.
128. Nussbaum argues that the shame and disgust that motivate bad behavior against others can be overcome in part through the cultivation of compassion through public institutions and public education as an aspect of civil religion. Id. at 169. See generally Nussbaum, Martha C., Upheavals of Thought: The Intelligence of Emotions (Cambridge Univ. Press 2001)CrossRefGoogle Scholar; Nussbaum, Martha C., Hiding from Humanity: Disgust, Shame and the Law (Princeton Univ. Press 2004)Google Scholar.
129. These are the same questions Rorty asks of the ironist, for whom there is no vocabulary that is somehow in touch with some outside reality that does not derive from herself, see Rorty, supra note 125, at 73. Namely, he asks, is it possible to be a “private self-creator and a public liberal?” Id. at 85. On the ironist's conception, human solidarity is a matter of “a common selfish hope, the hope that one's world—the little things around which one has woven into one's vocabulary—will not be destroyed.” Id. at 92. As for public purposes, for Rorty “it does not matter if everybody's final vocabulary is different, as long as there is enough overlap so that everybody has some words with which to express the desirability of entering into other people's fantasies as well as into one's own.” Id. at 92-93. Although there are no valid reasons to care about suffering—all the ironist can hope for is “making sure that she notices suffering when it occurs.” Id.
130. Jouannet, supra note 4, at 406.
131. Id. (citing Xifaras, Mikhaïl, Commentaire, in Droit International et Impérialisme en Europe et Aux Etats-Unis [International Law and Imperialism in Europe and In the United States] 183 (Jouannet, Emmanuelle & Ruiz-Fabri, Hélène eds. 2007))Google Scholar.
132. Jouannet, supra note 4, at 407.
133. Boucher, supra note 6, at 400.
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143. The Idea of Justice, supra note 5.
144. Id. at 5-7.
145. Id. at 5-6.
146. See supra note 137.
147. The Idea of Justice, supra note 5, at 15-16,96-105.
148. Id. at 16. Koskenniemi shares this intuition. He also downplays the role of international legal institutions in addressing questions about the distribution of what he terms “material and spiritual values.” From Apology to Utopia, supra note 55, at 604. Inasmuch as institutions are themselves a set of rules and procedures, they too are indeterminate, such there can be no sense that institutions work towards a common good. Id. The result is that different societies demand different things of the same institution, while common solutions proposed by institutions affect different societies in different ways. Id.
149. The Idea of Justice, supra note 5, at 17, 86.
150. Id. at 45-46. Sen is aware of the limitations of reason and acknowledges the powerful role emotions play in human behavior. Id. at 48-51. For Sen, however, that reason has limitations does not mean it should be abandoned; the solution to bad reasoning is better reasoning. Id. at 49. Further, for Sen reason and emotion do not necessarily conflict, and in any case, even emotion benefits from an assessment via reason. Id. at 50-51.
151. Id. at 324.
152. Id. Sen uses instances of such democracy in the histories of non-Western societies to argue democracy is not purely a Western tradition. Id. at 329-32. See also Sen, Amartya, Democracy as a Universal Value, 10 J. Democracy 3, 12–16 (1999)CrossRefGoogle Scholar (arguing that Asian and democratic values are not necessarily in conflict).
Koskeniemmi is similarly attracted to this form of deciding what to do “here and now.” From Apology to Utopia, supra note 55, at 544-45. He also believes that decision-making involves reconciling “incompatible suggestions for how to solve normative problems,” a process which involves public discussion and criticism: “The legitimacy of critical solutions … [lies] in the openness of the process of conversation and evaluation through which it has been chosen and in the way it accepts the possibility o[f] revision—in the authenticity of the participants' will to agree.” Id.
153. Arrow, Kenneth J., Social Choice and Individual Values (2d ed., Yale Univ. Press 1963)Google Scholar. Arrow proposes several conditions. First, every set of possible orderings of preferences should be admissible. Id. at 24. Second, there should be a positive relationship between social orderings and individual preferences: if every individual's preference for a particular state rises, one should see it rise in any corresponding social ordering. Id. at 25-26. Third, any social ordering should be independent of irrelevant alternatives. Id. at 26-27. Fourth, there should be unanimity: the social welfare function representing citizens' preferences should not be imposed. Id. at 29. Finally, there should be no dictatorship; that is, there should be no one person whose preferences are the sole basis for the choices made by a society. Id. at 30. Arrow goes on to show formally that no majority voting system can satisfy all these conditions. Id. at 46-59.
154. For a non-technical discussion of the major responses to Arrow's theory, see Sen, Amartya, The Possibility of Social Choice, 89 Am. Econ. Rev. 349 (1999)CrossRefGoogle Scholar. On the significance of Amartya Sen's contribution to the literature, see Arrow, Kenneth J., Amartya K. Sen's Contributions to the Study of Social Welfare, 101 Scand. J. Econ. 163 (1999)CrossRefGoogle Scholar.
155. The Idea of Justice, supra note 5, at 93. Permitting interpersonal comparison of utilities is one means of achieving formally coherent consensus. Arrow, Kenneth J., Freedom and Social Choice: Notes in the Margin, 18 Utilitas 52, 55–57 (2006) [hereinafter Freedom and Social Choice]CrossRefGoogle Scholar.
156. For a discussion of the limitations of conventional utility theory to solve normative issues, see Read, Daniel, Experienced Utility: Utility Theory From Jeremy Bentham to Daniel Kahneman, 13 Thinking & Reasoning 45, 56 (2007)CrossRefGoogle Scholar. Read, who champions a form of experienced utility proposed by Daniel Kahneman, gives a good overview of the major developments in utility theory as he compares and contrasts experienced utility with other approaches. One of Sen's most significant contributions to social choice theory is his showing that even in situations where several of Arrow's conditions are relaxed, it is impossible to reconcile even modest Pareto-based decisions with a strongly held liberal belief that individuals should have freedom to choose particular outcomes (such as the color of one's room or what book one will read). Sen, Amartya, The Impossibility of a Paretian Liberal, 78 J. Pol. Econ. 152 (1970)CrossRefGoogle Scholar. This result puts in question whether Pareto-efficiency alone can serve as the basis for social choice.
157. The Idea of Justice, supra note 5, at 228; Development as Freedom, supra note 5, at 17.
158. The Idea of Justice, supra note 5, at 228; Development as Freedom, supra note 5, at 17. Sen distinguishes between “comprehensive outcomes,” in which the outcome and the methods or reasons associated with an outcome are taken into account, and “cumulative outcomes,” in which only end-states are considered. The Idea of Justice, supra note 5, at 22-23.
159. Nussbaum's framework conceives of the human being as “a dignified free being who shapes his or her own life, rather than [is] passively shaped or pushed around by the world in the manner of a flock or herd animal.” Nussbaum, Martha, Capabilities and Social Justice, 4 Int'L Stud. Rev. 123, 130 (2002) [hereinafter Capabilities and Social Justice]Google Scholar.
160. Id. at 132.
161. Id. at 132-33; The Idea of Justice, supra note 5, at 106, 233.
162. The Idea of Justice, supra note 5, at 102-05, 107.
163. For a discussion of international global health and recommendations for changing the international structure of intellectual property protection to address the issue, see, e.g., Pogge, Thomas W., Human Rights and Global Health: A Research Program, 36 Metaphilosophy 182 (2005)CrossRefGoogle Scholar. At the same time, the comparative approach avoids some of the formal and practical conundrums raised by a purely Pareto-optimizing approach to social questions discussed above.
As might be expected, the capabilities approach has also generated a wide literature that has tried to assess whether it serves as a viable alternative to standard economic accounts of development. Wiebke Kuklys provides, among other things, a good overview of attempts in the literature to implement various aspects of Sen's approach, in particular addressing the difficulties in measuring human capabilities. Kuklys, Wiebbce, Amartya Sen's Capability Approach: Theoretical Insights and Empirical Applications (Springer 2005)Google Scholar.
For a good example of how a human capabilities understanding of development (in conjunction with public goods theory) would impact international intellectual property law, see Chon, Margaret, Intellectual Property and the Development Divide, 27 Cardozo L. Rev. 2821 (2006)Google Scholar.
164. See generally Marks, supra note 112 (cautioning against the ideological uses of democratic liberalism as applied outside the West).
165. This is not to say that such approaches should be rejected simply because they have been criticized. Still, since one of the concerns of this Article is how international law is perceived and operates in parts of the world and among people where suffering is attributed in part to impositions of ideologies, it is worth exploring a view that tries to avoid capture by a particular kind of ideology.
Sen himself is aware of the criticisms raised by scholars of post-colonialism. For his views on issues of identity, see Sen, Amartya, The Argumentative Indian: Writings on Indian Culture, History and Identity 85 (Picador 2005) [hereinafter The Argumentative Indian]Google Scholar; Sen, Amartya, Identity and Violence: The Illusion of Destiny (W.W. Norton & Co. 2006)Google Scholar.
In reviewing Sen's work, Vishanthie Sewpaul notes that Sen agrees “[f]he need to resist colonial dominance, is of course important.” However, Sen insists, “it has to be seen as a fight against submissive compliance, rather than as a plea for segregation and localism.” Sewpaul, Vishanthie, Challenging East-West value dichotomies and essentialising discourse on culture and social work, 16 Int'L J. Soc. Welfare 398, 404 (2007)Google Scholar (citing The Argumentative Indian, supra, at 85). In this vein, Sewpaul makes the point: “Simply because certain ideas, values, theories and technologies are linked to the West, they should not be condemned or rejected.” Id. “Moreoever,” she adds “given the historical, cultural and intellectual interconnections across the globe, it is often hard to differentiate what is Western and what is Eastern.” Id. As discussed earlier, Sen argues that elements of authoritarianism and democracy are present in both Western and Eastern traditions. Sewpaul also points out that even science, often associated with the west, was valued and heavily influenced by Islamic and Chinese culture. Id.
166. Capabilities and Social Justice, supra note 158, at 130. See also Nussbaum, Martha C., Human Capabilities, Female Human Beings, reprinted in Global Justice: Seminal Essays 495, 526 (Pogge, Thomas & Moellendorf, Darrel eds., Paragon House 2008)Google Scholar (arguing “we do have in these areas of our common humanity sufficient overlap to sustain a general conversation, focusing on our common problems and prospects.”).
167. Capabilities and Social Justice, supra note 158, at 131. For further discussion of Nussbaum's concept of universals, see Alkire, Sabina, Valuing Freedoms: Sen's Capability Approach and Poverty Reduction 32–34 (Oxford Univ. Press 2002)CrossRefGoogle Scholar.
168. Freedom and Social Choice, supra note 154, at 58-60. On the latter point, Arrow cites Eric Fromm's classic Escape From Freedom. Id. at 59, n.22; Fromm, Eric, Escape from Freedom (Farrar & Rinehart, Inc. 1941)Google Scholar. One could of course characterize such fear of freedom as pathological, but to do so would open oneself to the criticism of Foucault.
169. Sen anticipates democratic impulses in the Middle East before these recent events. He writes, “The illusion of an inescapably non-democratic destiny of the Middle East is both confused and very seriously misleading—perniciously so—as a way of thinking about either world politics or global justice today.” The Idea of Justice, supra note 5, at 335.
170. World Poverty & Human Rights, supra note 5 8, at 40-43.
171. This is a feature of any cultural tool, including a comparative approach. Balkin, J.M., Cultural Software (Yale Univ. Press 1998)Google Scholar.
172. Perhaps this is one reason why Nussbaum parts with Sen by exploring how a human capacities approach would be implemented by the state. See generally Frontiers of Justice, supra note 5.
173. Expressly with regard to Rajagopal and Jouannet and impliedly with regard to Sen.
174. Kingsbury, Benedict, International Law as Interpublic Law, in Moral Universalism and Pluralism 167, 173 (Richardson, Henry S. & Williams, Melissa S. eds., N.Y.U. Press 2009)Google Scholar.
175. Exclusion & Embrace, supra note 7. Volf writes about his own experience of being interrogated by Yugoslav security officers as a potential security risk during the 1980s in The End of Memory, supra note 7, at 3-6.
176. Id. at 21 (emphasis removed).
177. Hegel, Georg Wilhelm Friedrich, Phenomenology of Spirit 111–19 (Miller, A.v. trans., Oxford Univ. Press 1977) (1807)Google Scholar. For a recent discussion of the master-slave relationship, see Kamal, Muhammad, Master-Slave Relationship in Hegel's Philosophy, 25 Indian Phil. Q. 455 (1998)Google Scholar.
178. Fanon, Frantz, Skin, Black, White Masks (Philcox, Richard trans., Grove Press 2008) (1952)Google Scholar; Said, Edward W., Orientalism (Pantheon Books 1978)Google Scholar; Said, Edward W., Culture and Imperialism (Alfred A. Knopf, Inc. 1993)Google Scholar.
179. de Beauvoir, Simone, The Second Sex (Parshley, H.M. trans., Penguin 1972) (1949)Google Scholar.
180. Lens, Vicki, Supreme Court Narratives on Equality and Gender Discrimination in Employment: 1971-2002, 10 Cardozo Women's L.J. 501, 504 (2004)Google Scholar. See supra text accompanying notes 72-81.
181. Gill, Emily R., Autonomy and the Encumbered Self, in Radical Critiques of the Law 109 (Griffin, Stephen M. & Moffat, Robert C.L. eds., Univ. Press Kan. 1997)Google Scholar.
182. Id. at 114 (quoting Elsenstein, Zilla, The Female Body and the Law 54 (Univ. Cal. Press 1988))Google Scholar.
183. Berteaux, John A., What Are the Limits of Liberal Democratic Ideals in Relation to Overcoming Global Inequality and Injustice?, 6 Human Rts. Rev. 84, 93 (2005)Google Scholar (arguing that liberal ideals have been shaped to legitimate inequality and injustice in liberal states: as a consequence the application of liberalism to other parts of the world can have the same result).
184. Robert Trivers argues that altruism between unrelated individuals is plausible if it is returned. Trivers, Robert L., The Evolution of Reciprocal Altruism, 46 Q. Rev. Biology 35 (1971)CrossRefGoogle Scholar. Under some circumstances, the approach Volf advocates would exceed the strong version of Peter Singer's maxim of preventing “bad things from happening unless in doing so we would be sacrificing something of comparable moral significance.” Famine, Affluence, and Morality, supra note 142, at 241.
185. Exclusion & Embrace, supra note 7, at 26.
186. Id. at 29.
187. See supra text accompanying note 119.
188. Id. at 103.
189. Id.
190. Id. at 118.
191. Id. at 115-16.
192. As Charles Griswold writes, “Forgiveness is a virtue against the background of a narrative about human nature and its aspirations that accepts imperfection as our lot.” Griswold, supra note 8, at 14.
193. Exclusion & Embrace, supra note 7, at 123. Volf believes, however, in the value of rage at oppression. Volf refers to the imprecatory Psalms in which the Psalmist calls on God to wreak vengeance on his enemies. Id. at 123. Volf argues that the expression of rage before God is necessary to prevent the double exclusion: “[B]y placing unattended rage before God we place both our unjust enemy and our own vengeful self face to face with a God who loves and does justice.” Id. at 124.
194. Id. at 131-40. Volf explores these themes further in The End of Memory, supra note 7.
195. Exclusion & Embrace, supra note 7, at 135.
196. See “theodicy” in Thiselton, Anthony C., A Concise Encyclopedia of the Philosophy of Religion 306 (Oneworld 2002)Google Scholar.
197. Exclusion & Embrace, supra note 7, at 135.
198. Id. at 212-13. This is how Volf interprets the Syrophoenician woman's story. Id. at 213-14.
199. Id. at 219.
200. Id.
201. Id. For a detailed discussion of the unintended consequences of social tools, see Balkin supra note 170, at 32-39.
202. Id. at 109.
203. Id. at 109-10.
204. Id. at 145 (quoting Walzer, Michael, Thick And Thin: Moral Arguments at Home and Abroad 83 (Harv. Univ. Press 1994))Google Scholar. Volf does not believe in incommensurability of language games, but this appears to echo Otto's point that “noncommensurability can be a positive dynamic of social relations rather than something that requires disciplining and silencing.” Subalternity and International Law, supra note 89, at 172.
205. Exclusion & Embrace, supra note 7, at 145.
206. Id. at 145-46.
207. Id. at 146-47.
208. Id. at 147.
209. Id.
210. Id. at 147-48.
211. This is opposed to social arrangements based on social contract. Id. at 148-50.
212. Id. at 151.
213. See supra text accompanying notes 106-10.
214. Niebuhr, Reinhold, Moral Man and Immoral Society (Scribner 1932)Google Scholar.
215. See supra text accompanying note 172.
216. Volf describes how his parents' community enabled them to forgive people who were responsible for the death of one of their children. Free of Charge, supra note 7, at 211-14.
217. To be fair, Volf does distinguish between exclusion on the one hand, that is, to treat the other as an enemy, or to ignore, or to subsume him, id. at 67, and judgment on the other, meaning, the ability to tell when others seek to harm or to subsume you, to recognize when others are excluding you. He does not argue that we should abandon judgment Exclusion & Embrace, supra note 7, at 68. Moreover, he argues elsewhere that embrace is necessarily reciprocal-it is entirely possible the other will not wish to embrace the self. Id. at 142. But unless Volf is calling for pacifism as a social and not just an individual policy (he argues in this regard that God has a monopoly on violence, but concedes that it “may be that consistent nonretaliation and nonviolence will be impossible in the world of violence.” Id. at 301, 306), a community's resistance to the other, based on a judgment the other seeks to exclude it, could have the same downward spiraling effects as action motivated by exclusion. Perhaps we will have better motives for resistance, and such motives might temper that resistance, but it is unlikely the other will care. The other will view what we have done as exclusion.
218. Id. at 156. It is not within the scope of this Article to compare and contrast self-donation with the large literature that articulates an ethic of care. As Selma Sevenhuijsen describes it, such an ethic “focuses on values such as attentiveness to the need for care, willingness to accept responsibility for others as well as for the results of actions, and responsiveness.” Sevenhuijsen, Selma, Citizenship and the Ethics of Care: Feminist Considerations of Justice, Morality and Politics 70 (Routledge 1998)Google Scholar, citing Tronto, Joan C., Moral Boundaries'. A Political Argument for an Ethic of Care 127–37 (Routledge 1993)Google Scholar. An ethic of care also involves “attention to specific contexts and situations, and the opening up of a moral dialogue in which outcomes are not determined in advance.” Id. Such an ethic is intriguing because among other things, it views many relationships as givens, whereas the framework Volf uses understands that identity is determined by relationships, but begins with the potential for enmity. Under the ethic of care, relationships need not be framed in terms of selfishness or altruism. Held, Virginia, The Ethics of Care: Personal, Political, and Global 13–14, 129 (Oxford Univ. Press 2006)Google Scholar. See also Groenhout, Ruth E., Connected Lives: Human Nature and an Ethics of Care 21–51 (Rowman & Littlefield Pub. 2004)Google Scholar (describing the understanding of human nature in an ethic of care, as well as the ideals implicit in such an ethic); Bowden, Peta, Caring: Gender-Sensitive Ethics (Routledge 1997)Google Scholar (discussing an ethic of care in the context of the roles of mothering, friendship, nursing and citizenship).
219. I recognize the irony of a paper that discusses a variety of responses to current critiques of international law but focuses on only one theological viewpoint from only one faith tradition. For a discussion of how other faith traditions might address similar issues, see, e.g., King, Sallie B., Being Benevolence: the Social Ethics of Engaged Buddhism 202–28 (Univ. Haw. Press 2005)Google Scholar (discussing Buddhist concepts of justice and reconciliation); Alibašić, Ahmet, The Place for Others in Islam, 3 Comp. Islamic Stud. 98 (2007)Google Scholar (discussing a basis for co-existence under Islam); Kung, Hans & Homolka, Walter, How to do Good and Avoid Evil: A Global Ethic from the Sources of Judaism (Bowden, John trans., SkyLight Paths Pub. 2009)Google Scholar (a collection of essays by the authors and others providing the basis for a global ethic from Judaism).
The Sarvodaya Shramadana Movement of Sri Lanka is an example of a major development organization deeply informed by Buddhist thought. See A.T. Ariyaratne, Sarvodaya Shramadana Movement: Towards a Global Perspective from a Rural Experience, Talk delivered at the International Conference on Sarvodaya and World Development held at Damsak Mandira, Moratuwa, Sri Lanka (Apr. 1978), available at http://www.sarvodaya.org/about/philosophy/collected-works-vol-2/global-perspective.
220. From Apology to Utopia, supra note 55, at 557.
221. Kung, Hans, A Global Ethic for Global Politics and Economics (Oxford Univ. Press 1998)Google Scholar.
222. Falk, Richard, Hans Kiing's Crusade: Framing a Global Ethic, 13 Int'L J. Pol., Culture & Soc'y 63 (1999)CrossRefGoogle Scholar. Volf does too. See Exclusion & Embrace, supra note 7, at 284-85.
223. Falk, supra note 221, at 77.
224. Id. For Falk's own understanding of the role spirituality plays in international affairs, see Falk, Richard, Politically Engaged Spirituality in an Emerging Global Civil Society, 15 Revision 2 (Spring 2003)Google Scholar.
225. Reshaping Justice, supra note 60, at 3-4.
226. In the same way, Susan Marks suggests that international law ask the question, “Who benefits and at whose expense?” Marks, Susan, Exploitation as an International Legal Concept, in International Law on the Left: Re-Examining Marxist Legacies 281, 306 (Marks, Susan ed., Cambridge Univ. Press 2008)CrossRefGoogle Scholar.
Questions like these motivate the “method” proposed by Charlesworth and Chinkin to address the problem of exclusion of women in international law: to first ask whether women are literally present in international institutions, then explore the vocabulary of international law and the disparate impact of purportedly neutral concepts on women, which in turn raises questions how those concepts reflect deeper constructions of gender. The Boundaries of International Law, supra note 71, at 49-50.
227. There are other, more specific examples of how this approach could impact international law. Margaret Chon, for example discusses how an approach that takes into account the agency “of groups and individuals with relatively less voice and representation in formal legal structures” would reshape aspects of international copyright law. Chon, Margaret, Intellectual Property “From Below “: Copyright and Capability for Education, 40 U.C. Davis L. Rev. 803, 816 (2007)Google Scholar.
228. This “principle” is lived out in the New Testament story of Zacchaeus. Luke 19:1-10. Zacchaeus is a tax collector, who after encountering Jesus, says “Look, Lord! Here and now I give half of my possessions to the poor, and if I have cheated anybody out of anything, I will pay four times the amount.” Luke 19:8.
229. World Poverty & Human Rights, supra note 58, at 202-21.
230. These doctrines include special and differentiated treatment and the generalized system of preferences in international trade, and they include principles such as “the polluter pays” and “common but differentiated responsibility” for environmental harms in international environmental law. U.N. Framework Convention on Climate Change, art. 3, ¶ 1 (common but differentiated responsibility and polluter pays), art. 4, ¶ 1 (common but differentiated responsibility), S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 170 (May 9, 1992); U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (06 14, 1992)Google Scholar.
231. See supra note 59.
232. Imperialism, Sovereignty, and the Making of International Law, supra note 60, at 319.
233. Id. at 318.
234. Id.
235. Baxi, Upendra, What May the ‘Third World’ Expect from International Law?, in International Law and the Third World: Reshaping Justice 9, 17 (Falk, Richardet. al. eds., Routledge-Cavendish 2008)Google Scholar.
236. Id. at 18. The entire list includes: 1) the expectation of territorial non-aggression; 2) the expectation of gender equality and justice; 3) expectations regarding duties of assistance; 4) expectations concerning “global confessional politics;” 5) expectations of addressing new forms of “human rightlessness;” 6) expectations regarding human-rights based practices of human development; 7) expectations regarding sustainable development as they impact nuclear proliferation; 8) expectations of equal respect for all minorities; and 9) expectations regarding the subsuming of market principles to human rights. Id. at 18-19.
237. Okafor, supra note 87 at 100, 103-04.
238. Id. at 99.
239. Id. at 100-04. See also supra note 59.
240. Id. at 103.