Democracy - human rights - the State of law:
An attempt at an analysis of a challenge
MİTHAT SANCAR
In everyday language the terms of democracy, human rights and the State of law are perceived as complementary aspects of the same political ideal; thus it is inconceivable that they might be in tension and conflict. This article explores some possible forms of these tensions and conflicts, without arguing that they are inevitable. There are quite a few theoretical undertakings to bring these three concepts together in an harmonious framework based on equivalency of them. This article concentrates on Jürgen Habermas’ theoretical construction based on the “system of rights”, which I consider to be the most important among similar theories. Furthermore it is attempted to explain the basic features of the equivalency that Habermas tries to formulate between democracy, human rights and the State of law, and an assessment is offered as to what extent his attempt is successful.
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Outlines of a topography of cruelty:
Citizenship and civility in the era of global violence
ETIENNE BALIBAR
The article approaches to questions of cruelty and civility in the context of globalization. It focuses on issues of citizenship and segregation, asylum and migration, mass poverty and genocide. The case of European citizenship is discussed at length, in particular how the development of a “European apartheid” (in comparison with South Africa) alongside the development of a formal European citizenship constitutes an obstacle to the formation of a genuinely democratic European community. Thus the notion of European citizenship indicates the emergence not only of communitarian demands and identity politics but more importantly that of quasi-apartheid structures and institutions. On a global scale, a welfare state is politically impossible. Instead, we witness a systematic use of varieties of extreme violence and mass insecurity to prevent collective movements of emancipation, which can be called a politics of global preventive counter-revolution and counter-insurrection. This is also, and unavoidably, an “anti-politics,” for it suppresses the very conditions of building a politics. Hence it is important to recognize the totalitarian aspects of globalization. In this respect, the institution of borders is significant. In modernity this institution operates as sovereign or non-democratic condition of democracy. Today it continues to work as the cornerstone of institutional violence, i.e. as a major instrument of security control, social segregation, and unequal access to the means of existence, hence as a means of institutional distribution of survival and death. While the globalization of various kinds of extreme violence produces a division of the globalized world into life zones and death zones, democratization of borders becomes a necessity. This implies the organization of human rights and institutions of citizens’ rights beyond an exclusive membership to one single community. This is a question of permanent acces to rather than entitlement to citizenship, which is not simply a legal status but a collective civil process.
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On the margins of humanity: Rights
MAHMUT MUTMAN
Following the recent literature on the topic, the article aims to conceptualize the practical discourse of human rights from a new perspective. Rather than founding rights on the basis of an universalist and trancendentalist humanist philosophy, it argues that the rights are created in the process of social struggle, in the very coming-together or formation of sociality. Therefore its only “basis” is that of differential force field in society. The difficulty of “rights” is that it does not emerge from a given foundation or ultimate guarantee but rather its absence. The practical discourse of rights implies that the very definition of “human” cannot be dissociated from the inhuman. The human “dignity” which is supposed to found the discourse of humanity is an effect which acts as if it is a cause. Once both the human and hisĞher rights are conceived as the result of a creative social process however, the work of reason is left open.
Two great modern philosophical discourses on law, morality and politics, Kant’s and Hegel’s, are embodied in the current discourses of global liberalism and authoritarian nationalism. Their respective attempts at founding rights in transcendental cosmopolitanism and statist communitarianism share a foundationalist commitment to rationalism. In the face of this double bind, and following recent works, it is argued that justice never gives itself fully for it appears not from a rational foundation but rather as the gift of those who suffer from its lack. In the process of social change, which requires the constitution of civility and citizenship, the rationalist foundationalism is translated into a proceduralist and instrumentalist concept of law limited with merely re-writing laws and rights —a closed and restricted conception. An active constitution of civility and citizenship requires a new concept of politics according to which what Raymond Williams called “unlearning the inherently dominative mode” is an essential aspect of education in citizenship, i.e. the formation of a habit of critical thinking, and a consideration of collectivity in plural terms as collectivities whose lines of force traverse each other, as well as every collectivity as always a collectivity of singularities.
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Spinoza and the beginnings of the theory of rights
CEMAL BÂLİ AKAL
Spinoza’s conception of the structure of the modern locates it outside of transcendental reference and within a purely worldly framework. It foregrounds an individuality that is treated discretely from ideology and community. Spinoza approaches the individual not from the perspective of his institutional utility, but exclusively in relation to his human limitations or vice. Through two fundamental arguments, he encloses the individual in a protective domain: First, he summarises the freedom of thought, “a public law which admits of penalty for deeds alone, with no statute allowing for the prosecution of speech.” In a second step, the body is added to the domain of inalienable rights. As the philosopher brings his theory to rest upon the body, he rejects all forms of the transcendental. In a further step, he openly challenges the power structure of modernity: Since each body is the measure of ‘good and evil’, the judgment of good and evil acquires the character of the bodily-individual. Thus emerges a universality in which every body and thought, and every relative ‘good and evil’ individually determined by that body or thought, is infinitely fragmented, multiplied, equalised, mutually limited, and cast in equilibrium.
This universality is linear in the historical sense. It is supported by Spinoza’s concept of equality authorised equally by the philosopher’s Pantheistic bent. Equality, necessary for counteracting desire, can come into being only in a contractual philosophy dependent from individuals’ equalisation within a framework that tolerates their vulnerability to vice. The concept of right exists exclusively for the sake of the atomised unit of the society and its state; for and with the individual, that is. The concept is limited by modernity, but is universal for modern societies. Certainly, the ‘New Middle Ages’ following upon the Modern, will invalidate Spinozean discourse. The project of the ‘Age of Tribes’ is incompatible with Spinoza’s theory of right. Any form of community narrower than the nation-state will bring the end of the individual. In the name of individuality, Spinoza resists the oppression of members of sub-formations (ethnic, religious, etc.) within modernity. According to Spinoza’s logic, rights may be defended in an ever-widening meta-institution alone.
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The problem of perspective in the debates
on human rights and Islam
ZERRİN KURTOĞLU
The aim of this article is to draw attention to the non-religious origins of the concept of human rights, and to propose that the ‘human rights’ cannot be discussed as a concept stemming from the religious domain. The prominence of the problem in the agenda of political debates is related to the crisis of modernity in general, and to the political crisis in Turkey in particular. Therefore, in this article, the relationship between religion and politics is discussed as a consequence of two splits of modernity, namely the split between the universal and the particular, and the split between ethics and politics. These are analyzed in the context of religion-state relations in Turkey.
The debate on human rights and Islam in Turkey have entered the political agenda of the intelligentsia through such concepts as religious pluralism and democracy, and some turning points in the political history of the country, like 12th September (1980) and 28th February (1997). This debate is in fact not the subject matter of Islam per se.
Here it is claimed the resolutions proposed till now on the issue of human rights and Islam delimit themselves to either an Islamic or a moral framework and the reflections on the human rights concept in Islamic cultures should be made in non-religious domains.
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International crimes and human rights
TURGUT TARHANLI
Relations between states have been the main indicator in the field of international law-making, however it would not be unrealistic to assert that in the post-Second World War era or within the United Nations system the socially multi-channelled character of international law also covers the individual. During that period proliferation of international legal mechanisms for protection of human rights at different levels and through different avenues is a fact. On the other hand, ironically it can be said that the trial of the Major Nazi War Criminals at Nuremberg just after the War was a considerable event for the emerging role and importance of the individual in international law. It was a step forward not only to be punishing the high level officials of the Third Reich as being responsible for initiating an aggressive war, but determining the limits of the political power within a state and of course, on the other hand, the domain of the rights of people against the administration. Today, it can be said that determining the limits of the power of a state is one of the issues of international concern, an emerging principle having erga omnes character. To scrutinize the acts of the state needs to take into consideration the connection, at all levels, between the world public order and the individual responsibility. At this point there emerges two points to be discussed. Primarily, what is the position and the priority of an international lawyer to evaluate this issue differs than a criminal lawyer? Second, to what extent the concept of ‘human rights’ and the concept of ‘international crime’ should be interpreted interchangeably?
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The relation between sovereign nation-states and supra-national judicial organs: The case of Croatia
OZAN ERÖZDEN
The institutionalisation of supra-national jurisdiction of human rights is a new but improving trend of nowadays. But, the supra-national justice still needs the active involvement of nation-states to carry out its functions and to implement its decisions. This involvement has the potential to bring nation-states, in some cases, in an open or hidden conflict with supra-national judicial instances. Furthermore, in such situations, usually, the co-operation or the collaboration with the supra-national judicial body becomes a topic of debate for internal politics. This paper, in the light of the example provided by the relations between Croatia and the ICTY, tries to describe the extent of the problem.
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The ideology of the legal profession in Turkey
HALUK İNANICI
The legal profession had no precedent in Turkey, when it was instituted in the late nineteenth century. In the Tanzimat period, when the Western laws and legal institutions were adopted in the Ottoman Empire, the concept of legal representation entered the Ottoman law. The 1876 “By-Law for Legal Professionals” provided a legal framework which remained in effect until the enactment of the law for the legal profession. That was the process of the formation of the modern identity of Turkish legal professionals.
The classical aspect of the modern identity still seems to dominate the worldview of the Turkish legal professionals. However, they have been undergoing a very profound change which might be called a modern or postmodern process that has paved the way for a qualitative transformation. It can be argued that a new identity has begun to emerge as a result of this transformation. This new identity is that of ‘a legal technician’ who is supposed to perform solely a formal, technical function free of ‘values’. Turkish legal professionals appear to be entrapped between the classical values of the profession and the transformation related with the new identity. Futhermore, professional, political, and practical problems peculiar to the Turkish society occupy a significant place in their mental map. Thus, the ideology of Turkish legal professionals represents a fragmented structure, which gives rise to quite opposing attitude due to differing political convictions.
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The redefinition of the legal professional’s
identity on the tripod of law, politics and ideology:
A case for the early Republican era
AYLİN ÖZMAN
The process of secularization within the sphere of law constituted one of the most significant components of the Ottoman-Turkish modernization. The Tanzimat period which gave an end to the dominance of Islamic law and initiated a new system based on the coexistence of two totally different systems of law, European vs. Islamic, represented the initial phase of this secularization process. In this sense, while signifying the start of a new era during which the Western concept of justice was injected to the Ottoman socio-political system, the Tanzimat reforms gave way to a dualistic structure both in institutions and thinking. The Kemalist reform during the early Republican period had terminated this dualism through the total reception of the Continental European system of law. In addition to its role in terms of the construction of a unified system of law, the Kemalist law reform prepared the legitimization grounds for the cultural and political developments planned by the Republican project of modernization and thus constituted a major tool for the Kemalist cadre for reconstructing the social practices and cultural habits of the society in line with the Republican ideology. In this sense, the secularization of law was regarded to be a guarantee both for the transmission of the Republican ideology to the future generations and to the future success of the WesternizationĞcivilization project.
It has been in this context that the recruitment of a new generation of legal professionals which would fulfil the mission of protecting as well as promoting the new legal culture with all its implied meanings of “rule of law” and the reidentification and socialization of the legal professionals of the old regime proved to have priority within the Kemalist agenda. However, the process of moulding out a “new” profile for the “old” had its own conflictual dynamics, shaped by the perverse relationship between the Kemalist cadre and the legal professionals of the old regime which were labelled as the most dangerous and insidious enemy of the new regime.
This study elaborates the Kemalist project of secularization within the sphere of law during the early Republican era with reference to the mentioned dynamics and policies concerning the redefinition of the identity of the legal professionals as well as their recruitment along Republican lines. Certain formations which reflect the dichotomy between the tradition and change within the sphere of law both in terms of mentality and practice constituted the major axis of the study. Throughout the study, a thematic, rather than a chronological plan is carried out and chronological aspects are used as the tools of the former. The secularization of law education and the reorganization of attorneyship and bar associations are taken as the basic reference points due to their significance in terms of providing certain clues with regard to the mentioned dichotomy and conflicts.
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(Im)Possible paths between liberal democracy
and radical democracy
MESUT YEĞEN
For sometimes, it is suggested that liberal democracies are in a “crisis”. The crisis, it is argued, is due to the fact that today’s democracies can no more cope with the “problems” came forth in “the late modernity”. However, it is believed that the crisis could be overcome by means of building a path between liberal democracy and radical democracy. It is clear that this contention presumes the possibility of building a path between these two democracies.
This essay, however, questions the very possibility of building a path between liberal democracy and radical democracy. (Im)possible paths between liberal democracy and radical democracy are examined throughout this essay by means of exploring the dispute between “deliberative democracy” and “agonistic democracy” on the central categories of politics. This examination has found that the ways these two democracies perceive the category of “the political” are, to a considerable extent, irreconcilable. This, on the other hand, gives way to the conclusion that the path between liberal democracy and radical democracy is not as smooth as it is assumed.
Abstracts (İngilizce özetler)
Abstracts (İngilizce özetler)
