Academic journal article
By Twining, William
Law, Social Justice and Global Development Journal
In the context of 'globalisation,' Western jurisprudence has largely ignored non-Western viewpoints, interests, and traditions. This article takes a modest step towards de-parochialising our juristic canon by introducing writings about human rights of four 'Southern' jurists: Francis Deng (Southern Sudan), Abdullahi An-Nai'im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). All were trained in the common law and have published extensively in English, so their work is readily accessible, but their perspectives show some striking differences. Deng argues that traditional values of the Dinka of the Southern Sudan are basically compatible with the values underlying the international human rights regime. For An-Na'im, a 'modernist' interpretation of Islam is mostly reconcilable with international human rights, but acceptance of such ideas depends far more on conversations within Islam than on cross-cultural dialogue of external efforts. Ghai questions claims to universal human rights; however, from his materialist stance and his experience of postcolonial constitution-making, human rights discourse can provide a framework for negotiating settlements in multi-ethnic societies. Baxi argues that as human rights discourse is professionalised or hijacked by powerful groups, it risks losing touch with the suffering and needs of the poor and the oppressed, who are the main authors of human rights.
An-Na'im, Baxi, Deng, Ghai, Human Rights, Pluralism, Southern Jurisprudence, Universalism.
In Ahdaf Soueif's novel, The Map of Love, an Egyptian woman, Amal, is expecting an American visitor: 'Wary and weary in advance: an American woman--a journalist, she had said on the phone. But she said Amal's brother had told her to call and so Amal agreed to see her. And braced herself: the fundamentalists, the veil, the cold peace, polygamy, women's status in Islam, female genital mutilation--which would it be?' (1)
Amal is a cosmopolitan scholar, who moves easily between the worlds of Cairo, New York, and Europe. She is weary of the simplistic repetitious stereotyping of Egypt, Arab culture, and Islam by Westerners. Western normative jurisprudence faces similar charges of a repetitious parochialism about its agenda and about the bearing of other traditions on normative questions.
Western jurispudence has a long tradition of universalism in ethics. Natural law, classical utilitarianism, Kantianism, and modern theories of human rights have all been universalist in tendency. But nearly all such theories have been developed and debated with at most only tangential reference to and in almost complete ignorance of the religious and moral beliefs and traditions of the rest of humankind. When differing cultural values are discussed, even the agenda of issues has a stereotypically Western bias. How can one seriously claim to be a universalist if one is ethnocentrically unaware of the ideas and values of other belief systems and traditions?
As the discipline of law becomes more cosmopolitan, it needs to be backed by a truly cosmopolitan general jurisprudence. (2) My objective here is to make a small contribution to this cause by exploring the work of four non-Western jurists who are from 'the South' and who have made substantial contributions to the theory and practice of human rights: Francis Deng (Sudan), Abdullahi An-Na'im (Sudan), Yash Ghai (Kenya), and Upendra Baxi (India). I shall finish with some remarks on why I have selected these four individuals, who else might have been included, the similarities and contrasts in their perspectives, in what sense they can be claimed to be 'voices' from or of the South, and their relationship to some familiar strands in Western liberal democratic theory.
Since my immediate objective is to make the views of these four jurists better known, I shall try to provide a clear and fair exposition of their ideas about human rights, based on a finite number of accessible texts. …