FARID SAMIR BENAVIDES VANEGAS

HERMENEUTICAL VIOLENCE: HUMAN RIGHTS, LAW,AND THE CONSTITUTION OF A GLOBAL IDENTITYw

ABSTRACT. In this paper I want to analyze the process of denationalization of thelaw, to show how the globalization of the law can be considered as a new form ofimperial control, but this time, labeled as acting for the welfare of its victims. In thefirst part I will analyze the national character of the law and show how it was used as

an imperialistic instrument for the benefit of the imperial powers. In the second part Iwill show how the discourse of human rights and its universality has been the base todeny indigenous communities their right to define their own identity and how this

discourse was used to destroy the old conception of sovereignty. The globalization ofhuman rights implies the imposition of a western conception of rights, regardless ofthe contextual conception of the indigenous people. The discourse of human rights is

part of a hermeneutical violence.

1. Introduction

Human Rights have always been the symbol of equality and humanredemption. When people think about them, what they see is the wayto improve humanity and resist the power of states. In the liberaltradition, human rights are considered a victory against the state.From this perspective, human rights are universal and they symbolizewhat identify humanity as such. However, human rights can also bepart of a discourse of violence, that is, a discourse of hermeneuticalviolence in which the interpretation of the world of a particular groupis imposed as the interpretation as such. That means that the symbolof equality can at the same time be a symbol of oppression. Westernmodernity is based on the constitution of a liberal identity throughthe use of symbols. The work of Jean Baudrillard has shown us thatthe consumer society is the extension of the constitution of the sub-

wThis paper is part of a broader project. In that project I analyze the emancipatorycharacter of human rights in Colombia and how NGOs have used it to resist thepower of the state and to introduce a more emancipatory agenda. I also analyze the

commodification of indigenous lands and the role of human rights on that process.In this paper I want to focus on the constitutive character of the discourse of humanrights without taking into account the other aspects I touch in the broader project.

International Journal for the Semiotics of LawRevue Internationale de Semiotique Juridique 17: 391–418, 2004.� 2004 Kluwer Academic Publishers. Printed in the Netherlands.

jects in the capitalist world. In the same way that there was a processof constitution of labor in the 18th and 19th centuries, in the 20thcentury the process was accompanied by a constitution of the subjectas a consumer. Human rights have been part of this process ofconstitution of a liberal identity: to be a citizen means to be a con-sumer.1 In this way, ‘‘consumption is not the free activity of anautonomous subject; rather, it is constrained by the order of pro-duction, which gives rise and manages a system of needs, and by theorder of signification, which determines the relative social prestigeand value of the system of goods’’.2 In the same way that Baudrillardproposes to understand the sign value of commodities, in this paper Iwant to show the sign value of human rights. They are more than avictory against power, they have a constitutive character and they canbe part of a hermeneutical violence.3 What he says about consumersociety and the world of commodities can be easily applied to awestern conception of human rights:

‘‘Far from the individual expressing his needs in the economic system, it is theeconomic system that induces the individual function and the parallel functionality

of objects and needs. The individual is an ideological structure, a historical formcorrelative with the commodity form (exchange value) and the object form (usevalue). The individual is nothing but the subject thought in economic terms,rethought, simplified and abstracted by the economy. The entire history of con-

sciousness and ethics (all the categories of occidental psychometaphysics) is only thehistory of the political economy of the subject’’.4

The so-called superiority of the United States is their freedoms.The rhetoric after 9/11 showed that the average American believedthat the attacks were the result of envy for American liberties andcivilization. This discourse of a clash of civilization is based on thisidea of human rights a properly western and the civilizing mission asthe task of the western white man who need to civilize the world bybringing development and human rights. In this way human rights

1 Jean Baudrillard, The Consumer Society: Myths and Structures (London: Sage,1998); Nestor Garcia Canclini, Hybrid Cultures: Strategies for Entering and LeavingModernity (Minneapolis: University of Minnesota Press, 1995).2 Douglas Kellner, Jean Baudrillard. From Marxism to Postmodernism and Beyond

(Stanford: Stanford University Press, 1989) at 17. See also Mark Gottdiener, ‘‘TheSystem of Objects and the Commodification of Everyday Life: The Early Baudril-

lard,’’ in Baudrilard: A Critical Reader, ed. Douglas Kellner (Oxford: Blackwell,1994).3 Jean Baudrillard, For a Critique of a Political Economy of Sign (St Louis: Telos,

1981).4 Baudrillard as in Kellner (1989), Supra n. 2, at 24.

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are part of this process of westernization of the world. We witnessthis process of the imposition of a liberal identity on a global scale aspart of a process of ‘‘humanization’’ of the world. We see that warsare launched for the defense of human rights; humanitarian wars arepart of the order of the day.

Nietzsche analyzes the origin of morality but also the value ofmorality. In his analysis, he demonstrates that morality is the resultof the separation between the person and his actions. But this alsomeans that the person is not the one to be judged but his actions.According to Nietzsche this morality is the consequence that theweak had nothing that allows them to be called good. Since they wereslave and lack all the qualities of the masters, they converted all theircharacteristics as slaves in virtues. ‘‘It is only with the decline ofaristocratic values-judgments that this whole antithesis between‘egoistic’ and ‘unegoistic’ forces itself more and more on man’sconscience – it is, to use my language, the herd instinct which, withthat, finally gets its word in (and makes words)’’.5 It is the demise ofthe aristocracy that made possible the creation of modern morality.Ancient morality was based on the idea of status, and not on the ideaof deeds. In modernity the separation between the status and theactions allowed the existence of the concept of rights. Rights are thetriumph of the weak against the powerful. But the weak is notthe man without property, it is the bourgeois, as it is in Marx.

Nietzsche’s definition of morality shows that those with the powerto define the rules of morality can exercise violence too. According toNietzsche, the social contract is fraud by violence. From his point ofview, there is hermeneutical violence in the imposition of contingentsignifying regimes. That is to say, there is violence when we present asuniversal and permanent what is only contextual and contingent. Theuniversal conception of human rights is a way to present as universalwhat it is only contextual. Scholars like Peter Fitzpatrick have de-nounced this hermeneutical violence when they show that the law, withits abstract character, it is just the imperialistic imposition of localmeaning as if it were universal. I want to analyze the role of the law inthe constitution of hermeneutical violence and how that violence isused as a constitutional (legal) alternative to the constitution of reality.

In this paper I want to analyze the process of denationalization ofthe law, to show how the globalization of the law can be considered as

5 Friedrick Nietzsche, On the Genealogy of Morality (Cambridge: CambridgeUniversity Press, 1994) and Hanssen, Beatrice, Critique of Violence. Between PostStructuralism and Critical Theory (Rutledge: London, 2000).

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a new form of imperial control, but this time, labeled as acting for thewelfare of its victims. In the first part I will analyze the nationalcharacter of the law and show how it was used as an imperialisticinstrument for the benefit of the imperial powers. In the second part Iwill show how the discourse of human rights and its universality hasbeen the base to deny indigenous communities their right to definetheir own identity and how this discourse was used to destroy the oldconception of sovereignty. Using Fitzpatrick ideas, I will argue thatthe law has been a tool to transform the identities of subjugatedpeoples and to impose a white and western conception of justice. I willshow that the discourse of human rights are the new tool that has beenused to impose this conception through the analysis of recent decisionsof the Colombian Constitutional Court. The globalization of humanrights implies the imposition of a western conception of rights,regardless of the contextual conception of the indigenous people. Atthe end I will show that the process of globalization of the law isnothing different but a process of a western conception of humanrights, therefore, it is the globalization of a local conception of rights,in opposition of the indigenous conception of rights these communi-ties have. In this case, I will say that the discourse of human rights ispart of the second imposition of modernity, one in which humanrights are globalized and denying any alternative to modernity or evenany alternative modernity.6

2. Human Rights as Global Justice

One of the products of this globalized justice is the InternationalCriminal Court. On April 11th 2002, several European countriesratified the Rome Statute, completing in that way the sixty ratifica-tions required in order to coming into force. This will be the first trulyinternational permanent criminal tribunal, representing a greattransformation in international law.7 To some scholars, like Cherif

6 Arturo Escobar, ‘‘Anthropology and the Development Encounter: The Makingand Marketing of Development Anthropology’’, American Ethnologist 18/4 (1991),658–682; Enrique Dussel, 1492. El encubrimiento del otro. El origen del mito de la

modernidad (Bogota, Anthropos, 1992); Enrique Dussel, Etica de la Liberacion en laedad de la globalizacion y de la exclusion (Madrid: Trotta, 1998); Enrique Dussel, TheUnderside of Modernity. Apel, Ricoeur Rorty, Taylor and the Philosophy of Liberation(New Jersey: Humanities Press, 1996); and Anibal Quijano, ‘‘Coloniality of Power,

Eurocentrism, and Latin America’’, Nepantla. Views from the South 1/3 (2000).7 Rwanda and Yugoslavia were ad-hoc tribunals and with a limited scope in time.

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Bassiouni, this is an important step in the globalization of law andjustice, because those countries that are unwilling or unable to pro-viding justice for this sort of crimes will have to surrender theirjurisdiction in favor of an international tribunal that will bring beforejustice the culprits of the commission of the gravest kind of crimes, asit has been the case with the trial of former Yugoslavian president,Slobodan Milosevic.8 To others, like American Senator Jesse Helms,the international Court will affect United States’ sovereignty and itscondition as world’s Hegemon.9

Despite all the criticism, the International Criminal Court is justthe result of a twofold process: on the one hand, at the internationallevel, the world has witnessed the creation of different regionalinstitutions with the task of protecting human rights from the attacksof states. The Inter-American Court of Human Rights and theEuropean Court of Human Rights are part of that process of dena-tionalization of justice, with the purpose of guaranteeing individualsthose rights recognized in the Universal Declaration of HumanRights and other regional instruments. On the other hand, whileregional institutions were being developed, at the national level thestructure of the legal system was being changed. As part ofthe movement Law and Development, United States promoted thetransformation of the legal system of the Third World. Despite thefailure of that process, allowing the justification of authoritarian rulein countries like Brazil, nowadays United States, through the Agencyfor International Development AID, is promoting the adoption ofthe adversarial system in developing countries and the homogeniza-tion of criminal Law, under the flag of struggle against drugs,terrorism and illegal immigration.10

8 Cherif M. Bassiouni, ‘‘Policy Perspective Favoring the Establishment of theInternational Criminal Court’’, Journal of International Affairs 52/2 (1999).9 Jesse Helms, Personal View Jesse Helms: We must slay this monster Voting against

the International Criminal Court is not enough. The US should try to bring it down. inhttp://www.derechos.org/nizkor/impu/tpi/helms.html, last visited January 10, 2004.10 James Gardner, Legal Imperialism. American Lawyers and Foreign Aid in Latin

America (Madison: The University of Wisconsin Press, 1980); Boaventura de SousaSantos, ‘‘The Gatt of Law and Democracy: (Mis) Trusting the Global Reform ofCourts’’, in Globalization of Legal Cultures, ed. Johaness Feest (Onati: Instituto

Internacional de Sociologia del Derecho, 1987); Roberto Bergalli, ‘‘Globalizacion yControl de la Ciudad. Fordismo y Disciplina – Post Fordismo y Control Punitivo’’,in www.ub.es; Sergio Moccia, La perenne Emergenza. Tendenze Autoritarie nel Sis-

tema Penale. 2a. ed. (Napoli: Edizione Scientifiche Italiane, 1997) and Jesus MariaSilva Sanchez, La Expansion del Derecho Penal. Aspectos de la Polıtica Criminal Enlas Sociedades Post-Industriales (Madrid: Cuadernos Civitas, 1999).

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The process of globalization of criminal law means that the na-tion-state has lost its centrality in the definition of crimes and in thesolution of them.11 That is, the power of naming has left the nationalarena to go to the international arena, where western powers andwestern symbols shape the problems of the world. New types ofcriminality, like pornography on the Internet, international terrorism,drug traffic, traffic of immigrants, crimes against humanity, crimes ofwar, and genocide, have been defined outside the nation state. Themeasures that have been taken to solve those social problems do nottake into account the national borders; rather those borders are seenas an obstacle to control this new kind of criminality. In the newworld legal order the nation state has become just a mediator in thetask of enforcing the [inter] national law.12

The sovereignty of the nation state to produce the law has beenaffected by the process by which the ‘‘power to define’’ has beenpassed from the national arena to international institutions.13 Thisprocess of internationalization will end, with institutions like theInternational Criminal Court, in a process of globalization of the law,understood in the terms of a law produced from global institutions ofgovernance without the requirements of approval from the nationstates. The construction of a universal conception of human rightsand the coupling concept of jus cogens are steps in this direction.14

However, this process is not only the result of a globalizing pro-cess. It is true that the globalization of the economy and the existenceof the institutions of governance have made it possible. But withoutthe special nature of the law and its universalizing character it couldnot have taken place or at least not in the same manner. In modern

11 See for instance the extradition via fax in Europe or the European police spacethat allows the persecution against terrorism in Europe regardless any boundary.12 This is what has been called governance without government. See Antonio Negri

and Michael Hardt, Empire (Cambridge: Harvard University Press, 2001) andDanilo Zolo, Cosmopolis (Polity Press, 1997).13 This is the power of naming, that is, the power of symbolically constituting

reality. Pierre Bourdieu, ‘‘The Force of Law: Towards a Sociology of the Juridical

Field’’, Hastings Law Journal 38/5 (1987).14 According to this doctrine, once a human right or an international instrument is

labeled as jus cogens, it has to be enforced regardless the will of the state in which

that instrument has to be enforced. The concept of jus cogens and its history isanalyzed by Bassiouni in his analysis of the Barcelona Traction Case, and by theColombian Constitutional Court and its concept of ‘‘block of constitutionality’’ in

the decision that incorporated II Protocol of 1977 additional to the 1949 GenevaConvention. This concept will prove to be useful in the imposition of the whitediscourse of human rights to indigenous communities in Colombia.

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times the law was understood as the product of the national state, itwas identified with it. But its structure made possible its extension toother places and it allowed the domination of non-European coun-tries.

Law is a central part of modernity. As modern science, modernlaw can be defined in terms of rationality, calculability, predictabilityand control. But the law also has been placed in a determined terri-tory. Modern law shares with modern subjects its placement in theboundaries of the nation state, and therefore the law has been asso-ciated to a modern sovereign,15 that is, that one who has the powerover a territory and to define right and wrong in that territory.16 Inthis context international law is just the law that nation states haveaccepted to apply in its relations to each other, that is, it is just thecompact of multiple sovereigns.

With the appearance of institutions of governance and the dis-course of universality, the law lost its national character and thenation-state its ability to enforce it. This process represented theimposition of a global identity from above, because local communi-ties were defined in abstract terms and their identity was interpretedin the terms of the global discourse. The law and its abstract char-acter was a tool that proved to be useful in the universalization ofidentities and the conflation of local differences. First this process hadthe face of imperialism, and then it had the face of Empire, to useNegri’s words.17

The deterritorialization of the law implied the loss of place of thesovereign. Crimes were not defined in national parliaments, but inmeetings of the United Nations in Vienna, New York or Rome.18

15 On the concept of sovereignty, see Carl Schmitt, The Nomos of the Earth in theInternational Law of the Jus Publicum Europaeum (New York: Telos Press, 2003);

Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty(Cambridge: MIT, 1985); Carl Schmitt, The Concept of the Political (New Bruns-wick/New Jersey: Rutger University Press, 1975); and Heinz Klug, Constituting

Democracy: Law, Globalization and South African Political Reconstruction (Cam-bridge: Cambridge University Press, 2000).16 ‘‘The Classic Definition Given by Austrian jurist Hans Kelsen is that the law is

Command Plus Coercion,’’ in Pure Theory of Law, ed. Hans Kelsen (Berkeley:University of California Press, 1967) and Wolfgang Schild, Las Teorıas Puras delDerecho (Bogota: Temis, 1983).17 Saskia Sassen showed in a lecture at the University of Massachusetts, May 2nd

2002, that women’s identity is transformed by international law. They become illegalmigrants and therefore criminals subject to justice.18 Convention against Transnational Crimes. Vienna 1999–2000; Rome Statute of

the ICC, june 18th 1998, 1988 Vienna Convention, etc.

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Schmitt has written that he who is the sovereign defines the exceptionand the norm,19 and if we applied this concept to the current situationwe have to conclude that the nation-state is no longer the sovereignbecause it defines neither the exception nor the norm,20 which comesdefined from those institutions of global governance like the SecurityCouncil of the UN and the United Nations Secretary. Summarizing,the lost of territoriality of the law has meant the lost of sovereignty ofthe nation-state. Sovereignty has become placeless but even moreeffective.21

One important feature in this process of denationalization of thelaw and the establishment of a new sovereign has been the discourseof human rights, because they have come to shape a new conceptionof the law that can be applied regardless national sovereignty. Theprotection of human rights has transformed state relations as theywere after the Westfalia peace and WWII.22 Through the use of alanguage of protection of human rights, the core states have beeneager to intervene in the internal affairs of many countries but, on theopposite side, the discourse of sovereignty has been used to allowgenocides, as in Rwanda. Human Rights and Humanitarian wars arepart of the new panorama of a legal global culture. According toNegri and Hardt, ‘‘what stands behind this intervention is not just apermanent state of emergency and exception, but a permanent state

19 Schmitt (1975) and Schmitt (1985), Supra n. 15.20 To Carl Schmitt sovereign is he who decides on the exception. This is a pure

decision that is not derived from any norm. Moreover, the sovereign decides theextension of the exception and therefore the existence of the norm. He puts himself in

a position outside the law to define what the law is. ‘‘Although he stands outside thenormally valid legal system, he nevertheless belongs to it, for it is he who must decidewhether the constitution needs to be suspended in its entirety’’, Schmitt (1985), Supra

n. 15, at 5.21 The recent war in Iraq could be interpreted as the increasing of power of the

United State as the new Empire of the world. However, I think that the war shows

that the United States is not the Hegemon anymore and it has to appeal to militaryforce to keep its power. The role of Europe and the United Nations show howhegemonic and constitutive the discourse of human rights is. Europe has been willing

to go to the war when human rights are at stake, and in the United States manypeople supported the war not based on defensive reasons but on humanitarian ones.For the role of the US as the hegemon of the world, see Giovanni Arrighi, The Long

Twentieth Century (London: Verso, 1994).22 About the characteristics of the Westfalia model and the United Nations model

see Zolo (1997). Supra n. 8 at 94–97. Once the League of Nations was created the

Westfalia order changed into an international order. According to Negri/Hardt thisorder is now in crisis, giving room to a new imperial order. Negri/Hardt (2001).Supra n. 12 at 4.

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of emergency and exception justified by the appeal to essential valuesof justice. In other words, the right of the police is legitimated byuniversal values’’.23

However, the law has never been applied only nationally and, ofcourse, it has not been applied without contestation. Since the lawwas tied to the nation state, the role of the law was precisely to defineand constitute the identity of the nation that is taking part in thatstate.24As Fitzpatrick has demonstrated, the law has been used as aninstrument of the domination not only of a class over another, as inthe Marxist tradition, but mainly as a tool for the imperial coloni-zation of different countries.25According to Fitzpatrick the law hasbeen the tool for the denial of the national traditions and also of thedestruction of the national identity through the imposition of a newidentity through the law.26 The English nation state, for example,exported its law and its Englishness and extended this perception asthe epitome of the British Empire, even though those features werepart of only a nation that was not precisely homogeneous.27 Humanrights, through the nation-state, have created a global identity, thatis, a liberal identity that denies the particularities of local commu-nities in order to make them citizens or individuals.

Globalization is then not only about the extension of capitalismall around the world or the imposition of a neo-liberal conception ofthe economy to all the countries in the world. The process ofglobalization can also be analyzed through the role the law plays inthe construction of global identities,28 that is to say, the way peopleis defined and shaped through the law.29 Through the universalconception of human rights the internal constitution of the states

23 Negri/Hardt (2001), Supra n. 12, at 18.24 Dario Melossi, The State of Social Control : A Sociological Study of Concepts of

State and Social Control in the Making of Democracy (New York: St. Martin’s Press,1990).25 Peter Fitzpatrick, The Mythology of the Modern Law (London: Routledge,

1992).26 On this topic it can be seen the case of Hawaii in Sally Merry, Colonizing Hawaii

(Princenton, NJ: Princeton University Press, 2000).27 Peter Fitzpatrick, ‘‘Introduction’’, in Nationalism, Racism and the Rule of Law,

ed. Peter Fitzpatrick (Aldershot: Dartomouth, 1995). at 17.28 Eve Darian Smith, Bridging Divides: The Channel Tunnel and English Legal

Identity in New Europe, (Berkeley: University of California Press, 1999).29 Efren Rivera Ramos, The Legal Construction of Identity (Washington: American

Psychological Association, 2001); and Maria Teresa Sierra, ‘‘Indian Rights andCustomary Law in Mexico: A Study of the Nahuas in the Sierra de Puebla’’, Law andSociety Review 29 (2000).

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can be changed, as it was the case in South Africa, but also it candeny and discredit national and indigenous tradition, becoming anew way of imperial imposition of the law.30 In the language ofgovernmentality, we can say that the juridical that was present in theimperialistic character of the law, with institutions like the prisonand the school, has been replaced by global control. Human rightsare part of a governmental power that not only disciplines but alsoconstitutes.31

3. The Nation-state and the Law

The law can be analyzed from the standpoint that highlights itsracial character and the imposition of the values of a group ofpeople. A general conception about the law is that it is abstract andgeneral, and that is the only way to be applied in order to be equaland respectful of the rights of people. According to those concep-tions about the law, the only way of respecting the differences is bydenying them under the pure form of law. However, this conceptionof the law proved being a tool to impose the conceptions and powerof a class over another. Through its universal character the lawcould be imposed without showing its class nature.32 But the law ispart also of another myth. What I want to analyze here is thecharacter of the law as a national law, in order to show what is atstake under globalization. My purpose is to show that under themyth of the law, imperial states imposed their ideas about subjects,that is, they construed the subordinated subject through the law andmade him/her accept that condition. In other words, the universal

30 Klug, Heinz (2000), Supra n. 15, Boaventura De Sousa Santos, Globalizacion delDerecho (Bogota: Universidad Nacional de Colombia/ILSA, 1999). I want to useNegri’s distinction between imperialism and Empire, because the former is the

imposition of national law, like the British case, whereas the latter is the impositionof global law through institutions of global governance.31 Colin Gordon, Graham Burchell, and Peter Miller eds. The Foucault Effect.

Studies on Governmentality (Chicago: University of Chicago Press, 1991); Alan Hunt,Explorations in Law and Society. Towards a Constitutive Theory of Law (New York:

Routledge, 1993), and Victor Tadross, ‘‘Between Governance and Discipline. TheLaw and Michel Foucault’’, Oxford Journal of Legal Studies 18 (1998).32 The law can be analyzed using the concept of ideology as false conscience. But a

more fruitful way of analysis is the concept of ideology and hegemony as Gramsciexpresses it. This concept will help to understand why people could be constitutedthrough discourses without contesting the defining power of the law.

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character of the law constituted their identity as subordinatedsubjects.

Modern law is characterized by its formal character and by thefact that it is understood that there is a sole center where law isproduced, either the Parliament or the judges.33 Given this cen-trality, the law became tied to the nation-state, that is, there is alaw produced by the state to control a national community. It isthis centralization of the law and the creation of institutions incharge of administering it that determined the transition from afeudal society, characterized by a plurality of jurisdictions andadministrations, to a modern society, characterized by a centralstate and a central focus that delivers justice.34 The process ofrationalization of the lived-world was made also through the law.By denying the interference from systems different from the legalsystem, the law allowed the creation of its own discourse and itsown structures.35 Modern law has come from being autonomouslaw, that is to say, a law characterized by its formality, to beresponsive or reflexive law, that is, a law that incorporates materialelements in its regulation of society but that it includes thereflexivity to allow each system to govern itself as well. In otherwords, the modern law after the crisis of the welfare state had toface the existence of non-formal elements in its structure and the

33 The multicultural understanding of law is something new. The fact that

anthropology saw the law produced in ‘‘primitive’’ communities cannot mislead usbecause that law was understood as a primitive ‘‘law’’ and not as a modern one. Thatis, they were considered laws only as a way of speaking. About the different western

conceptions of the law, see Rupert Cross, Precedent in English Law (London:Clarendon Law Series, 1979); J.A.G. Grifith, The Politics of Judiciary. 3a ed (Lon-don: Clarendon Paperbacks, 1985); Victoria Iturralde de Sesma, El Precedente en el

Common Law (Madrid: Civitas, 1995); Gwynett Pitt, ‘‘La aplicacion de la Ley dentrode la tradicion del Common Law’’, in En La Crisis del Derecho y sus Alternativas(Madrid: Consejo General del Poder Judicial, 1995); Stephen Toulmin, ‘‘El futurodel Derecho. Distintas Perspectivas del Estado Nacion’’, in La Crisis del Derecho y

sus Alternativas (Madrid: Consejo General del Poder Judicial, 1995); Peter WesleySmith, ‘‘Theories of Adjudication and the Status of Stare Decisis’’, in Precedent inLaw, ed. Laurence Goldstein (New York: Clarendon Paperbacks, Oxford University

Press, 1991).34 Ignacio Aymerich Ojea, ‘‘Contractualismo y Pluralismo Jurıdico’’, in Derecho y

Sociedad coord. Roberto Bergalli (Valencia: Tirant lo Blanc Libros, 1998).35 Gunther Teubner, ‘‘Substantive and Reflective Elements in Modern law’’, Law

and Society Review 17/2 (1983). Pierre Bourdieu shows that this process is the result

of the division of labor in society in which the lawyers monopolize their field by usinga special language and becoming the experts in that field. Cfr. Pierre Bourdieu(1987). Supra n 13.

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fact that many legal decisions were taken outside the normalchannels of formal law.

The unity that characterized the law after the French Revolutionwas found in the modern state, that is, a state that was conceived as anation-state in which the nation was controlled under a centraladministration. The state became the center that gave unity to theplurality that came from the ancien regime. This centralization wasthe product of the activity of the State but also of the discoursesabout the law and the nation.36 The state as a central idea of thecontinental tradition of law is conceived as a mechanism of unity in adivided and uneven society.37Melossi in his analysis of the Europeanstate shows how the latter found unity under Hobbes ideas aboutLeviathan, that is to say, the only way the state could stop civil warin Europe was through centralization and the constitution of asovereign artificial subject.

The central feature of Hobbes’ Leviathan was its monopoly offear. As Schmitt has put it, people surrender themselves in thehands of the state because of fear to death. Hobbes Leviathan wasbased on this fear, for without a central definition of the enemythere is only civil war. It is the state the one who decides about thefriend and the enemy, it has the sole authority to determine thatspace of the political. This definition is made through the law, andtherefore the European state became a machine of producing laws,that is, the unity of the principle is concealed behind the unity ofthe state,38 through which the sovereign decides about friend andthe enemy.

Once this Leviathan was created, it monopolized not only theproduction of the law, but also the production of force and sym-bolic violence, in a way that became the only institution with thepower to impose coercion and definitions of the world.39 Besides thediscourse of a state equals a nation, there was a discourse of a stateequals a central law, that is, the only law recognized by the state

36 The construction of the American state from the central authority can be seen inStephen Skowronek. Building a New American State (Cambridge: Cambridge Uni-

versity Press, 1982).37 Dario Melossi (1990), Supra n. 24, at 15.38 John MacCormick, ‘‘Fear, Technology, and the State: Carl Schmitt, Leo Strauss

and the Revival of Hobbes in Weimar and National Socialist Germany’’, in PoliticalTheory 22/4 (1994), 619–652.39 Walter Benjamın, ‘‘Para una Crıtica de la Violencia’’, In Para una Crıtica de la

Violencia y Otros Ensayos (Madrid: Taurus Ediciones, 1991).

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was the law the state itself produced. This conception of the lawpointed to the conception of the law as the product of thesovereign, that is, the central power able to protect and therefore tooblige.40

The creation of the state is based on the determination of theboundaries through the determination of friends and enemies.According toCarl Schmitt, oneof thekey concepts to define the contentof the political is his distinction between friend and enemy, as the keycriteria to unite state and sovereignty with the political. Schmitt criti-cizes the pluralism of institutions because it destroyed the monopoly ofthe state as the sole entity able to determine the grouping in terms offriendship and enmity. The only way to save the state was through thedefinition of its friend and its enemies, and the right to competition inthe state and in the Parliament is allowed to those parties that showfidelity to the state.41 The extreme case of the political is the state ofwar,that is why to Schmitt sovereign is he who can declare the war. War isdeclared against those who are different from us, who do not belong toour group: our enemies. In Schmitt’s words, ‘‘for Clausewitz war is theultima ratio of the friend enemy grouping. War has its own grammar,but politics remains its brain. Its logic can be derived from the friendand enemy concept. Only in real combat is revealed the most extremeconsequence of the political grouping of friend and enemy. From thismost extreme possibility human life derives its specifically politicaltension’’.42

The law is then the production of the sovereign, that is, the centralauthority that governs the members of the nation. The nation, asFitzpatrick has shown, is presented as the will of the people and bybeing understood as a whole it gives to the law the abstract generalitythat is its main feature.43 The centralization of the state is producedthrough the protection of people from attacks coming from abroad.The European state was then constructed through the idea of sover-eignty of the nation, and in this creation the law played an important

40 Hobbes conception of the sovereign is protego ergo obligo. In his analysis aboutsovereignty Carl Schmitt shows that the central feature of sovereignty is the ability tocommand and to determine the normal through the power of determining the

exception. Cfr. Carl Schmitt (1985), Supra n. 15.41 It is ironic how Bonn Constitution replies Schmitt’s thesis through the establish-

ment of the concept of the enemy of the constitution. This relationship friend-enemyallowed the German state to develop a jurisprudence of exception to fight groups likethe Baader-Meinhoff in the seventies.42 Schmitt (1975), Supra n. 15, at 32.43 Peter Fitzpatrick (1995), Supra n. 27, at 17.

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role, because through it the sovereign made all the determinationsregarding friend and enemies and especially regarding the normand theexception.44

4. The Imperialistic Character of National Law

The law has been tied to the nation state as the central authority and asthe sovereign who determines the norm and the exception and in doingso protecting people from attacks from outside the boundaries of thestate. According to Fitzpatrick the law belongs to the mythology ofmodernity and this mythology is sustained in the experience of impe-rialism. This mythology is the mythology of the white western, and ispart of the white mythology.45 Law is read as taking the attributes ofwestern society, that is, this law is themodern law and the other are onlyprimitive law, primitive and unreasonable ways of solving social con-flicts.46

But law is not just the tool to dominate one group. The centralquestion, posedbyGramsci is the discussion aboutwhypeople obey thelaw, why they do not rebel against the law. One approach to thisunderstanding of the law is given by his conception of hegemony.According to this conception, people from a social class see the law asan appealing product of the ruling class; therefore they want to bedominated because in that way they could be part of the ruling class.The consent given by the dominated class is given because of theprestige of the ruling class and its position in theworld of production ofmeaning.47 However, this position has to explain why people develop a

44 To Schmitt the core of authority of the sovereign is his power to determine theexception and the normal, because he is who decides the restoration of normalitythrough the determination of the end of the exception. The exception shows where the

political power resides. Cfr. Carl Schmit (1985). Supra n. 15. For an analysis fromAgamben’s philosophy see Peter Fitzpatrick (2001).Bare sovereignty: Homo Sacer andthe instance of law. Lecture delivered at Amherst College in December 2001; Giorgio

Agamben. Homo Sacer. Il potere sovrano e la nuda vita (Torino: Einaudi, 1995); andGiorgio Agamben, Lo stato di eccezione (Firenze: Bollati Borenghieri, 2003); Hardtand Negri show that in the newWorld Order the exception determines the appearanceof Empire, that is to say, in this new World Order, who decides the exception become

the true sovereign. The relative and effective coincidence between the domestic and theinternational is given by the fact they operate in the terrain of exceptionality. Domesticand international law are defined by exceptionality. Negri/Hardt, Supra n. 12, at 16.45 Fitzpatrick (1992), Supra n. 25, at X.46 Fitzpatrick (1992), Supra n. 25, at 7.47 Rivera-Ramos (2001), Supra n. 29, and Laura Gomez, ‘‘Race Colonialism and

Criminal Law’’, Law and Society Review (2000).

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new identity through the law. The question is not only why people donot contest the law, but also how people have become constitutedthrough the law in away that avoids contestationandguarantee respectof the law even from the oppressed.

Another approach to this question takes into account the discur-sive production of reality. That is to say, people are not only con-trolled but they are also produced by the discourses of those with thepower of production of meaning. This approach shows that the lawnot only acts in society but it constitutes it.48 As Fitzpatrick haspointed out, ‘‘people are subjected to law through their own con-struction of belief in a myth of law’s authority’’.49 The constitutivecharacter of the law can be used to analyze how the law was used toconvey an imperial idea of the nation-state and the superiority of thenational group wherein that law was created. Several authors,amongst them, Fitzpatrick, Sally Merry, Maria Teresa Sierra andEfren Rivera Ramos, have analyzed this fact.

Peter Fitzpatrick, from a post-colonialist point of view, showsthat the law of the western societies was exported to the colonies inorder to educate those subjects through the law, but also in order tofacilitate their domination through the use of the instruments thatmade possible the domination of the poor classes in the colonizingcountries. The universal character of the law was used to legitimizethe use of the law in the colonized countries. The law not onlyallowed control but also construed the colonized as inferior and inneed of control by the ruling country. ‘‘This law was a prime jus-tification and instrument of imperialism, one which, in the assess-ments of the great practitioner-theorist of imperialism, would ‘raisethe mass of the people of Africa to a higher plane of civilization’, agift which should ‘deserve the gratitude of the silent and ignorantmillions’…’’.50

The use of the law presented the colonized subject as needed ofassistance and protection, but also as needing correction. The colo-nized subject did not have the status of a person and thereby he didnot have any right of self-determination. The purpose of the law hadthen to be the denial of the culture of the colonized subject. Fitzpa-trick has shown in his study of British colonial law that the law servedthe purpose of eliminating the other from the picture. Through the

48 John Brigham, The Constitution of Interests (Princeton: Princeton UniversityPress, 1998). Chap. 1.49 Fitzpatrick (1992), Supra n. 25, at 11.50 Fitzpatrick (1992), Supra n. 25 at 107.

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use of the repugnancy clause, the British judiciary understood that thenatives of the colonies did not have a distinct project and thereforetheir culture could be denied in order to allow the British governmentto implement its project for the colonies. The only way the nativescould be redeemed from the darkness of their primitive state wasthrough the European intervention, and this meant the Europeandomination.

Maria Teresa Sierra and Efren Rivera Ramos analyzed this kindof intervention and constitution through the law in their analysis ofthe American intervention in the former Spanish colonies.51 Sierraanalyzes how there is a process of negotiation and hybridizationbetween the national state and the indigenous communities but shealso shows that the national state shapes the conflicts in terms thatare foreign to the communities and therefore that has to be seen asnecessarily colonizing. On the other hand, Rivera Ramos shows thatthe Puerto Rican identity has been shaped through the use of theinsular cases, in which the United States Supreme Court created newsubjects under the dominion of the United States government. Thespecial status of Puerto Rico, for example, allowed the government toavoid recognition of the rights of Puerto Ricans to a jury and towelfare. This special status made them subjects with a reduced citi-zenship in a way that they appear to be immigrants with Americanpassport.

Sally Engle Merry in her analysis of Hawaii showed that westernlaw was used in different senses.52 On the one hand, it was used as anexpression of western customs and therefore of civilization. To do so,Hawaiians rulers travel to Europe to show that their constitution wasan European-like constitution whereby European states lackedlegitimacy to intervene in a European-like country. Hawaiiansunderstood very well that the colonizing process was made for thedomination of non-European countries. However, United States didnot think alike, and took advantage of the fact that American lawyerscontrolled the advocacy and the judiciary. Through this advantageand through the devaluation of the Hawaiian culture, United Statestook control of the island and several years later incorporated it aspart of the country.

Through this analysis we can see how the law has been related to thenation state but also to the constitution of colonial identities. As

51 Maria Teresa Sierra (1995), Supra n. 29; Rivera Ramos (2001), Supra n. 29.52 Sally Engle Merry, Colonizing Hawaii. The Cultural Power of Law (Princeton,

NJ: Princeton University Press, 2000).

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Fitzpatrick has pointed out, ‘‘the story of modern law is integral tothat of the nation. In its identification with nation, law acquires anorigin and a history compatible with its own self-presentation – itsclaims to encompass and combine the general and the particular,sovereign authority and the popular, assured order and change.Through the connectionwith the nation the law is presented as general,divorced from the contamination of any particular interest’’.53

What these studies show is that under the guise of the universal andthe abstract, the law presented itself as the civilizing feature of theprocess of colonization of the ‘‘primitive peoples’’: their law and theirculture were denied by the colonizer. The cultural features of thosepeoples were presented as primitives, as lacking of the rationalizingprocess. Even in contemporary descriptions of the law, European au-thors present European and American law as the modern law facing acrisis of materialization and reflexivity, whereas the law of the indige-nous communities is presented as primitive law or as no-law at all.54 Inthe next section we will see how the discourse of human rights andhumanitarian law are presented as features of law inmodernity and areshaped through a modern language of rights, where there is a subjectcontesting the state. Rights are understood as a victory against thestate, but they will also be understood as part of the process of mate-rialization of modern law.

5. The Discourse of Human Rights as Universal

Conceptions of Humanity

After the French Revolution the bourgeoisie used an idea of naturalrights to oppose the power of the state. The liberal discourse ofmodernity was characterized by the introduction of the idea of limitsto the action of the state, that is to say, by the idea of sovereignty ofindividuals, and by the promise of a community of equals, whichmeant the destruction of every communitarian tie.55 Modernitypresented the individual qua individual. In epistemology this discourse

53 Fitzpatrick (1995), Supra n. 27, at XV.54 See Teubner (1983), Supra n. 35, and Carlos Morales de Setien Ravina. ‘‘Intro-

duction. In Gunther Teubner/Pierre Bourdieu. La fuerza del derecho (Bogota: Edici-ones Uniandes/Instituto Pensar/Siglo del Hombre Editores, 2000).55 Jurgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures

(Cambridge: MIT, 1987). A critique of the destruction of community under thepretext of the community of equals, see Pietro Barcellona, Posmodernidad ycomunidad. El regreso de la vinculacion social (Madrid: Trotta, 1992).

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implied the appearance of a subject without any attribute, that is, arational subject who supposedly was representing every individualwith the ability of being rational. Kant in his Critique of the PureReason took this discourse, and the subject became not only thecenter for every epistemological discourse but also the center for theethical discourse.56 Human rights, the rights of every human being,were the rights of the rational individual, that is to say, the rights ofthose beings that have the ability to think rationally.

The empty form of the law, as it has been defined in Teubner, col-onized the discourse of human rights.57 This discourse is understood inreflexive terms, insofar as it is conceived as a set of procedural normsthat regulate processes, organizations and the distribution of rights andcompetences.58This conceptionof human rights from the standpoint ofmodern law can be analyzed as an effect of universalization or nor-malization, that is, the process of social authority exercised by thedominating culture to give efficacy to the juridical coercion.59

Despite the fact that human rights cannot be considered universalrights, they have been deemed universal, and this is due to its abstractform and the fact that they are enforced from the global institutionsof governance. Rhonda Howard has pointed out the lack of univer-sality of this rights writing that the conception of human rights is ‘‘aparticular conception of human dignity and social justice. They arenot synonymous of human dignity, despite its appearance together inthe Universal Declaration of Human Rights. Every society and everypolitical philosophy have conceptions of human dignity. Some ofthem, especially those that have their roots in the vision that thenation, the people, the community, or the family have precedenceover the individual- are radically in opposition to the idea of humanrights’’.60

In European and American philosophy there has been a discussionof the need of having a substantialization of rights. That is to say,from the perspective of authors like Richard Rorty, Will Kymlicka,and Charles Taylor, the liberal conception of rights has many flaws,

56 Immanuel Kant, Crıtique of Pure Reason (London: William Pickering, 1838).57 Teubner (1983), Supra n. 35.58 Teubner (1983), Supra n. 35.59 Bourdieu (1987), Supra n. 13 and Zolo (1997). Supra n. 12, at 118.60 Rhonda Howard, ‘‘Dignity, Community and Human Rights’’, in Human Rights

in Cross Cultural Perspectives. A Quest for Consensus, ed. Abdulla Ahmed An-Na’im(Philadelphia: University of Pennsylvania Press, 1992).

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especially in its pretension of universality.61 These authors considerthat rights are related to the community; that is to say, they are notuniversal but contextual. However, that interpretation assumes theidea of the clear division of the world and the possibility of makingclear distinctions between liberal societies and the other societies,especially fundamentalist societies. In the case of Taylor andKymlicka, they are thinking in the Canadian case and how to fit theliberal conception of rights with the idea of sharing the same territorywith the French population of Quebec and the indigenous commu-nities. Since this discussion is more about how the nation state dealswith different groups that are not part of the nation, it is of little helpin understanding the role human rights have served in this time.Richard Rorty, on the other hand, takes the liberal society ashomogenous and with the possibility of being distinguished from thefundamentalist society. However, he does not take into account theexistence of the third world in the first world, that is, the contami-nation of all cultures and the impossibility of making clear distinctionsbetween pure liberal societies and pure fundamentalist societies.62

From different points of views, different scholars have discussedthe idea of universal human rights, showing that it is part of a westernliberal tradition, therefore lacking the universality their supportersproclaim and denying other ways of defending people’s rights with-out denying their cultural traits.63 Eliza Lee, for instance, shows thelimits of the universal conception of human rights writing, ‘‘thegeneral limitation of the Universalist and relativist mode of thinkingis the way they treat political order as unchanging. Universalists as-sume that political values must be pre-cultural, pre-political givens ifthey are to have universal validity, thus overlooking the fact that any

61 Richard Rorty. Contingency, Irony, and Solidarity (Cambridge: CambridgeUniversity Press, 1989) and Richard Rorty. ‘‘Derechos Humanos, Racionalidad ySentimentalismo’’, in Tesis Filosofo, ed. Juan Carlos Gonzalez (Bogota: UniversidadNacional de Colombia, 1994); Will Kymlicka, Multicultural Citizenship. A Liberal

Theory of Minority Rights (Oxford: Clarendon Press, 1995) and Will Kymlicka,Contemporary Political Philosophy. An Introduction (Oxford: Clarendon Press, 1990);Charles Taylor, Multiculturalism and the Politics of Recognition (Princeton, NJ:

Princenton University Press, 1992).62 Rorty does not take into account the existence of global cities, in which the first

and the third world coexist. See Saskia Sassen, Globalization and its discontents.(essays on the new mobility of people and money) (New York: New Press, 1998).63 Virginia Leary, ‘‘The Effect of Western Perspectives of International Human

Rights’’, in Human Rights in Africa. Cross Cultural Perspectives, eds. AhmedAn-Na’Im, Abdullahi and Deng, Francis (Washington: The Brookings Institutions,1990).

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political community is historically and culturally constituted. Cul-tural relativists, ironically, while arguing against universalism end upadopting a similar logic – taking the existing order as valid and asstatic and unchanging. Cross-cultural universalism still fails to pro-vide a framework for understanding cultural communities as dis-course communities’’.64 Despite the criticism about the concept ofuniversal Human Rights, the Bangkok Declaration of 1993 clearlyexpressed that human rights are universal, objectives andnon-selective and that it should be avoided any attempt of imple-menting double standards of human rights. However, the Declarationpoints out, those rights have to be interpreted in its context, thereforethe significance of national and regional particularities must be takeninto account. When we analyze the Colombian case we will see howstates recognize those particularities and how the core of humanrights are used to impose a western world-view.

The universal conception of human rights has been enforced fromdifferent instruments in today’s world. The process by which humanrights are universalized is twofold: on the one hand, through the useof the institutions of governance, like the United Nations, states areconstantly monitored in order to make sure that they are complyingwith all the requirements of the Universal Declaration of HumanRights. Even though those institutions have been useful to convey theidea of justice, as in the case of Ireland and Argentina, they have alsoimposed universal ideas about human rights that imply the denial ofthe indigenous idea of those rights. The other strategy in the processof universalization of human rights has been the constitutionalizationof those rights, that is, their drafting in the national constitutions asfundamental rights with the possibility of being enforced by nationaltribunals.

Nikhil Azis argues that there is a hegemonic discourse in humanrights and that there is a need to provide alternatives to that discoursefrom the Third World.65 Azis uses Falks’ concepts of globalization

64 Eliza Lee, ‘‘Human Rights and Non Western Values’’, in Human Rights and

Chinese Values. Legal, Philosophical and Political Perspectives, ed. Michael C. Davis(Hong Kong, Oxford University Press, 1995) at 76. On this topic the literature is huge,but it can be seen RichardWilson,Human Rights, culture and context. Anthropological

perspectives (London: Pluto Press, 1997); Alison Dunden Renteln, International Hu-man Rights. Universalism v Relativism (London: Sage, 1990); Rhoda Howard,HumanRights and theSearch forCommunity (Boulder:WestviewPress, 1995);RhodaHoward,Human Rights in Commonwealth Africa (Totowa, NJ: Rowman and Littlefield, 1986).65 Nikhil Aziz, ‘‘TheHumanRightsDebate in an era ofGlobalization. Hegemony of

Discourse’’, inDebatingHumanRights, ed. Peter vanNess (London:Routledge, 1997).

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from below and globalization from above to show that the latterunderstands globalization as the result of western experiences;therefore global culture means solely the globalization of westernculture. As part of this process of globalization from above we findthe hegemonic discourse of human rights. According to Azis, ‘‘hu-man rights have become another weapon in the arsenal of westerncountries in their efforts to bring recalcitrant Third World nations toheel in ‘‘their’’ ‘‘New’’ World Order. Western nations are increasinglyusing their very narrow interpretation of human rights as a yardstickwith which to judge Third World governments, and in conductingpolitical and economic relations with the latter’’.66 One of the mainarguments against the local conceptions of human rights is the factthat they are not secular, that is, that they convey ideas of good thatare substantial and that lack the empty form of the law. As a responseto this secular conception of rights, Pakistani scholar Ziauddin Sardar,quoted by Azis, shows that secularism is ‘‘intrinsically dominating,and that it can be just as fundamentalist and fanatical as the religiousworldviews it opposes’’.67 Through secularization and universalismthere is a hegemonic imposition of western views about rights.

The hegemonic conception of human rights is conveyed throughthe global institutions of governance, particularly institutions like theUnited Nations and the regional human rights tribunals. Theseinstitutions are in charge of interpreting human rights from a uni-versal point of view. In judicial cases, which are binding for thecountries in the cases of the human rights Courts, those institutionscreate official doctrine and determine what is the adequate interpre-tation to be applied in those cases. Through constitutionalism, thoseinterpretations are incorporated in the national judicial system andtherefore the hegemonic power of human rights is conveyed in anenforcing level.68

This process of constitutionalization is the result of the influenceof the German model, with the idea of the Constitutional Court, andthe American model, with the idea of judicial review and the pro-tection of rights through the decisions of the Supreme Court.Heinz Klug has analyzed this process with regard to the South

66 Azis (1997), Supra n. 65, at 39.67 Azis (1997), Supra n. 65, at 43.68 Most of the new Constitutions, based on the German and Italian model, have a

provision in which it is expressed that the rights recognized in the Constitution do

not affect the validity of other human rights recognized by international instruments.This means the direct incorporation of human rights in the Constitution without theact of the national sovereign.

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African transition to democracy. To Klug, the creation of constitu-tional courts ‘‘heralded the expansion of judicial power or- as somecharacterized it- the legalization of political disputes…the experienceof the South African Constitutional Court demonstrates how con-stitutional courts in particular may play a highly political role pro-viding a space in which often irreconcilable conflicts may betemporarily if not permanently mediated, allowing the politicalcontestants to embrace democratic procedures and outcomes whilecontinuing to imagine their own particular, even if conflicting, visionsof the future’’.69

However, the central feature of the constitutionalizing process isthe legalization of rights, that is to say, the imposition of a con-ception of rights in the text of the constitution. This process can beseen as a positive result from a western point of view, since the lawis considered the tool for the solution of disputes amongst partic-ular citizens. This incorporation implies also the assumption of theuniversality of the law and the universal character of those rights.Nevertheless, to Klug the globalization of human rights and ofconstitutionalism is seen not in terms of imperialism or wishfulharmonization but rather as a process of hybridization, that is tosay, indigenous communities have adopted the discourse of humanrights without denying their own traditions.70 In the South Africancase, the globalization of human rights allowed the global institu-tions of governance to deal with apartheid and exercised pressure toeliminate this crime against humanity. While the South African caseis a successful case of the transition to democracy thanks to theimposition of pressures from the international community to elim-inate apartheid and to apply democratic principles in that society,the true is that the process has not been extremely successful andthat many of the perpetrators of crimes in that country were notpunished due to the necessity of a peaceful transition to democracyimposed from abroad.

6. Hegemony and Constitutionalism: The Colombian Case

In 1991, as the result of several political processes, Colombia approveda new constitution in which there were several institutions that were

69 Klug (2000), Supra n. 15, at 14.70 Klug (2000), Supra n. 15, at. 49.

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going to radically transform the country.As a result of the negotiationsbetween different guerrilla groups and the government, there wasvaried participation in the process of drafting the new constitution.Amongst themembers of theAssemblywas amemberof the indigenouscommunities, who represented the worldviews of the different indige-nous groups in the country and the Afro-Colombian communitiesliving in the Pacific.

The new Constitution recognized the fact that indigenous com-munities had a system of justice with which they solve the conflictsamongst the members of the community. Article 246 of the Colom-bian Constitution gives indigenous communities the right to havetheir own jurisdiction under the condition of exercising those rightswithin the framework given by the Colombian Constitution andColombian law. This norm is the result of the incorporation ofCovenant 169 of the International Labor Organization, wherein it isestablished the rights of indigenous peoples. One of the mostimportant results of the Colombian Constitution is the incorporationof human rights in the text of the Constitution, giving them a hier-archy above the normal law. But the Constitution also introduced aprovision whereby every human right and the norms included ininternational humanitarian law had to be considered part of theConstitution, therefore they were above the law.71

In the same Constitution the National Assembly created theColombian Constitutional Court. This institution is in charge ofdefending the constitution, and by doing so it can declare unconsti-tutional any law that violates the constitution. One of the roles of theCourt is the defense of fundamental rights through the so-calledaccion de tutela, a judicial action by which citizens can ask the pro-tection of their rights and obtain that protection in no more than tendays. Those rights are protected not only from state’s violations butalso from private persons’ violations.

71 This declaration is just the same as the declaration given during the colonial

regime in the Americas, when indigenous peoples were allowed to have their ownculture and their only limit was the principles of Christianity. See Enrique Dussel,‘‘Europe, Modernity and Eurocentrism’’, Nepantla: View from the South 1/3 (2000);Silvio Zavala, La filosofia politica en la conquista de America (Mexico: Fondo de

Cultura Economica, 1947); Lewis Hanke. La lucha por la justicia en la conquista deAmerica. (Madrid: Ediciones Istmo, 1988); Eulalia Maria Lahmeyer Lobo,‘‘Bartolome de las Casas e a lenda negra’’, in Ronaldo Vainfas (org). America em

tempo de conquista. (Rio de Janeiro: Jorge Zahar Editores, 1992); and AntonioGarcia, Legislacion Indigenista de Colombia (Mexico: Instituto Indigenista Inter-americano, 1952).

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In exercising its main role the Court analyzed the incorporation inthe national juridical system of the II Protocol additional to the 1949Geneva Conventions. In the decision that found those normsaccording to the Constitution, the Court created the doctrine of theBloc of Constitutionality. By using this concept, taken from theFrench tradition, the Court decided that all human rights andhumanitarian law needed not be incorporated to the legal systembecause they already were part of it, due to the bloc they formed withthe Constitution. Since human rights and international humanitarianlaw were considered jus cogens, according to the ConstitutionalCourt, those rights were binding for the Colombian state even if thenational assembly did not expressly introduce them. Since they werebinding, every individual living under Colombian laws had to bebound by those norms of jus cogens, that is to say, every individualhad to respect human rights as defined by the global institutions ofgovernance. In this way, the hegemonic power of universal humanrights was imposed through the power of Colombian ConstitutionalCourt, in other words, those rights were redefined in terms of fun-damental rights, but taking into account the universal discoursecreated in the institutions of global governance.

In 1995 the Colombian Constitutional Court had to decide aboutthe constitutionality of the Covenant for the Development of theIndian Peoples. According to this covenant, Indigenous Peoples arethose peoples who were living in the country before the Spanishconquest, who keep all their own social, political and culturalinstitutions or part of them, and who have a conscience of beingpart of an Indian community.72 This Covenant had the purpose ofincorporating ideas of development in the country and giving theindigenous communities funds to support their self-development.However, the Covenant also substantialized the communities bymaking indigenous only those members of Indian communities whoconsidered themselves Indians but also who kept traditions un-changed. As we saw earlier, this is the western idea about tradition,that is to say, an idea that conceives tradition as unchanged andmodernity as perpetual change. If Indian communities want moneyfor development they have to present themselves as traditional inopposition to modern, that is, they have to forget 500 years ofhistorical change and adopt a frozen identity of the past. TheConstitutional Court through the use of the accion de tutela has

72 Convenio Constitutivo del Fondo para el Desarrollo de los Pueblos Indıgenas deAmerica Latina y el Caribe. Madrid, 24 de julio de 1992.

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sanctioned this conception. In decision T188/1993 the Court estab-lished that the Colombian state was a pluralistic and multiethnicstate and in this state Indian communities were considered onlythose who have ties with the original communities and kept theoriginal traits of their culture.

Through the creation of a static identity and through thedichotomy traditional/modern, the Court was opening the path forthe creation of a discourse of human rights that expressed theethical superiority of the western liberal conception of humanrights. In a case tried by the Court in 1994, Ananias Narvaez wasexpelled from his community in El Tambo-Tolima, because heallegedly committed a crime of robbery. Narvaez claimed that theConstitutional Court violated his due process of law and thereforehe could not be expelled from the community but after a process inwhich his responsibility had to be proven. The claimant held thathis fundamental rights were violated by the decision of the tradi-tional authority.

The strategy followed by petitioner was treating the communitarianauthority as a public authority. However, the Court decided to treat itas an association ruled by private law. The Court, in order to deal withthe case, constructs the community as a subject of the law, that is,despite being a community with their own conception of rights andjustice, the Court constitutes the Indian communities as subject of thelaw, that is, as being subject to the abstract and general form of the law.This strategy allows the intervention of the western liberal conceptionof human rights in the community. Using the door opened in its earlierdecisions, the Court appeals again to the dichotomy tradition-moder-nity and labeled the Indian communities as a community in the senseused by Ferdinand Tonnies, that is to say, as a community in a stage ofdevelopment that has not reached the superior level of a liberal com-munity in modernity. According to the Court, urbanism makes com-munity evolve into societies; therefore, the Indian communities are notevolved and are not part of society.73

In this way the Indians are placed outside society and therefore areidentified as in need of control and assistance from society. Since theCourt represents the view of human rights in society, those com-munities had to accept the definition of their identity given by theCourt. To do so, the Court appeals to the discourse of the nation, byclaiming that the Constitution recognize plurality but also imposesunity. To recognize diversity, the Court again appeals to the frozen

73 Colombian Constitutional Court. Decision T254–1994.

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identity and recognizes autonomy only to those peoples that keeptheir original traditions. However, the Court points out that theoriginal values of the community are limited by the universal con-ception of human rights, that is to say, the local conception of humanrights is considered of inferior value and contingent, whereas thewestern liberal conception of human rights is considered superior tothe rights of the community.

Based on that discussion the Court considered that the decision ofthe community has to be analyzed from the point of view of theuniversal conception of human rights and especially from the con-struction given by the International Labor Organization. In thedecision the Court explicitly declares that Human Rights are part of auniversal code of humanity adopted by the community of nations,that is, by the United Nations. Given this definition, the Court foundthat the decision taken by the community of El Tambo violated theuniversal conception of the due process of law and therefore they hadto give a new trial to Narvaez, but now applying human rights asrecognized by the Universal Declaration of Human Rights and theregional instruments.

The Constitutional Court introduced a frozen identity of Indiancommunities in order to impose to Indian communities the idea ofhuman rights as universal rights. In other decisions, the Court pointedout the plural character of Colombian state but at the same time clearlystated that the Cosmovision of those peoples was accepted as long as itdoes no violate the western liberal conception of rights. In doing so, theCourt was imposing the global conception of rights created and en-forced through the global institutions of governance. In theColombiancase, human rights and constitutionalism have been tools to create theidentity of individuals qua individuals – that is in the Court’s words associety- and to deny the local conceptions of rights. Hybridization hasbeen accepted to certain limits and those limits are definedby the core ofuniversal rights.

7. Conclusion

The law has been defined in abstract and universal terms. Its emptyform has been useful to impose a western conception of law andlegality. Modernity has been characterized by the creation of emptyforms like subject, law, and science. These artifacts have been usefulfor the governance of communities and by the creation of the promiseof a community of equals. However, the role of the law was not only

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the domination of workers and peasants in European countries. Thelaw has been also useful in the creation of the identity of colonizedcountries and, therefore, of the colonizing ones. By establishing thelack of European institutions the colonized was defined as inferiorand in need of domination, control and education. The imperialisticcharacter of the law was useful in the creation of subordinatedidentities.

The discourse of Human Rights has been a tool used to createnew identities: the individual and the western subject. In that waythe empty form of the law allows better ways of governance.Through the creation of official doctrine and the imposition of thatdoctrine all around the world, with Covenants and Courts, theUnited Nations system has managed to homogenize communities inthe world and make all of them part of the same discourse.Members of opposition in China, women in Africa, indigenouscommunities in Colombia, are part of the same identity that hascreated them as part of the past, they belong to tradition, they arethe local, they are ones who need to be changed. The discourse ofhuman rights is part of this strategy of homogenization and globalcontrol. This does not mean that human rights have not been usedfor the benefit of communities; it is only a reminder that from goodwe can create many wrongs. Before Nazi Germany, scholars dis-cussed about the need to open the law and to give room for thevalues of the Volk. After WW II, many people thought that legalpositivism was the only way to defend the individual from thepower of the state. Again in Argentina the imposition of positivismallowed repression without changing the legal system74. HumanRights have been used to defend oppressed peoples, but it has alsobeen used to deny local identities.

The nation-state has lost many of their functions, but through thediscourse of human rights it has assumed a new task, which is there-nationalization of the law. Human rights represent the newdialectic in the law: after a process of denationalization, the law isre-nationalized to impose the commands of the new sovereign. In thisprocess local identities are and have to be redefined, because in thatway global governance will be realized in a better way. Globalizationand the law mean the creation of new identities and the elimination ofold ones.

74 Roberto Bergalli, ‘‘La estructura Judicial en America Latina’’, in Pena yEstructura Social, eds. Georg Rusche and Otto Kirchheimer (Bogota: EditorialTemis, 1984).

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Acknowledgements

Thanks are due to Professor John Brigham, Professor Agustin Lao-Montes, Professor Dragan Milovanovic for their comments on thedraft of this paper. I also would like to thank Erika Marquez for hercomments to the final draft and the participants in the conference onGlobalization, Empire and Resistance, held at Brandeis University inApril 23–25, 2004 for their valuable comments. The responsibility forthe final result is solely mine.

Department of Political ScienceDepartment of Legal StudiesUniversity of Massachusetts, AmherstUSAE-mail: fbenavid@legal.umass.edu

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