Speech by President Michael D. Higgins On acceptance of the Trinity Praeses Elit Award
Dublin University Law Society, TCD, 30th January 2014
A hIniúchóir,
A Mhic Léinn,
Is mian liom buíochas a ghabháil leat, a hIniúchóir Keating, dod’ fhocail cneasta. Is mian liom chomh maith buíochas a ghabháil le do leathchúpla agus Rúnaí an Chumainn seo, Rebecca Keating, don chabhair a thug sí an ócáid seo a eagrú inniu, agus daoibh ar fad as bhur fíorchaoin fáilte.
[Auditor,
Dear students,
May I thank you, Auditor Keating, for your kind words of introduction. I also wish to thank your twin sister and Secretary of this Society, Rebecca Keating, for her help in organising today’s event, and all of you for your warm welcome.]
It is a great honour to be presented with the Trinity Praeses Elit Award. This Award recognises – I quote – those who “have inspired a love of knowledge and desire to contribute to the legal and political spheres.” For that citation, it is not only with humility, but also with some trepidation that I accept it. I take it as an acknowledgment of the importance of intellectual work in the public sphere, and, also, of the value of commitment.
Awards such as this are addressed to all: they are an encouragement to the students gathered in this room to dedicate their skills, energy and efforts to the pressing task, renewed with each generation, of building a more just society; a call that invokes the liberating possibilities of law and the required audacity of those who practice it.
This afternoon I would like to reflect on what has been a central concern of my intellectual and political life as a public representative, namely the need to recognise, and where necessary defend, the emancipatory power of human rights.
The vindication of human rights is best seen, I believe, as a public project with such a participation of citizens as reflects that public significance. Before I explore the implications of this conception of human rights, let me dwell briefly on a set of issues that relate to the broader question of the relations between law and social change.
What is the role of legal practitioners in achieving social transformation? What are the boundaries of the contribution that law might make, and what is to be gained from an engagement with other disciplines – disciplines that range from philosophy, to history and anthropology? Can we conceive of a role for law in furthering desired social transformations that is neither blindly idealist nor radically sceptical?
The debate on law and social change often pits the partisans of conservation against those of progress, scepticism against idealism, formalism against activism. As American writer and feminist scholar Carolyn Heilburn once commented:
“Thinking about profound social change, conservatives always expect disaster, while revolutionaries confidently anticipate utopia. Both are wrong.”[1]
Indeed any discussion of the relations between law and social change soon turns into variations on these two basic positions. Some commentators contend that law always lags behind changes in society and only gradually catches up. In that view, legal transformations – such as the legalisation of divorce, or reproductive rights for women – come as an acknowledgement of actual practices and often result from the prior mobilisation of social movements around the burning issues of the time, be they voting rights, racial equality, or environmental protection.
Other commentators believe that law can occasionally prompt changes in society, but only occasionally, and often unintentionally. They emphasize the unintended consequences of law reform efforts, showing, for example, how the promulgation of no-fault divorce laws, intended as an extension of women’s rights, can, in some cases, make women more economically vulnerable.
This question of the unpredictable consequences of legal reform is one worth dwelling upon for students of law. As they do so, they might find great value in the work of a number of sociologists: Robert Merton, for example, a former Professor of Sociology at Columbia University, did, in an early essay (1936), articulate ‘the problem of the unanticipated consequences of purposive action’; much earlier, the great Max Weber had developed as a heuristic tool an ideal type of bureaucracy as the quintessential example of legal rational authority.
For Weber, bureaucratic authority is hierarchical, bounded by rules, and it is oriented to the achievement of one or more identifiable goals, for example welfare provision, education or justice. But these overarching goals can become displaced from the everyday understanding and conduct of employees, in turn redefining the ways in which the overall goals are implemented, undermining them, or even delivering, in the name of a rationality reduced to calculability and ritual observance, what is irrational in essence. Insofar as organizations established to implement legal change usually assume at least some of the elements of the bureaucratic form, the weberian perspective, with its dire warnings, can productively inform reflections on law and social change.
Moving on to the more sceptical end of the spectrum of the discussion about law and social transformation, we find people who believe that law does not or should not produce social change. Some raise empirical doubts and demonstrate how, despite decades of legal reform, such social evils as racial or sexual prejudice persist.
A number of feminist analysts thus argue that while it might have been appropriate for early feminists to demand legal rights, because women had so few formal rights, the rhetoric of rights has lost its sharp edge. In our liberal democracies, many women are not able to realize their formal rights because of substantive and pervasive gender inequality. For example, what does equality mean in the workplace? This question poses particular difficulties regarding pregnancy and parenting-leave policies. Should all workers be treated the same – is formal equality the goal – or should some be treated differently, in order to achieve substantive equality?
Other commentators raise a different kind of doubt about the relationship between law and social change. They question especially the legitimacy of judicial action to initiate changes in society: is it democratically legitimate for an unrepresentative judiciary – they ask – to overrule, circumvent, or ignore policy choices made by those who represent the majority of the body politic?
Such questioning of the democratic accountability of so-called ‘legal activism’ finds one incarnation in the ongoing debate among legal practitioners about the role of courts, and the mechanisms in place to ensure the accountability of the State in fulfilling social, economic and cultural rights. Should socio-economic rights be justiciable? Is it desirable to create two categories of rights, where civil and political rights are justiciable and socio-economic rights are not? This is an issue I touched upon in the Address I gave in September 2013 to the Irish Law Society, and I will confine myself this afternoon to making one specific reference which is of relevance to my broader argument.
Sandra Fredman, who is Professor of Law at the University of Oxford, is one of many scholars who has written extensively on the subject of socio-economic rights and their justiciability. For what concerns us this afternoon, the most interesting aspect of Professor Fredman’s work lies, perhaps, in the use she makes of German philosopher Jürgen Habermas’s model of deliberative democracy in order to address head-on the traditional charge of judicial unaccountability.
Fredman argues that Parliament is of course the most appropriate forum for making sensitive decisions, but that it is possible – through a deliberative model of judicial review – to craft a role for adjudication which reinforces the democratic process rather than usurps it. Therefore, while she readily agrees that the role to fulfil positive duties should lie with the legislature and executive, Sandra Fredman claims that the judiciary too can play a role in enhancing democratic accountability.
The deliberative account thus acknowledges that judges have neither the legitimacy nor the competence to be the final arbiters on how the authorities should fulfil their obligations, but suggests that they are well-placed to elicit and assess a deliberative explanation against the background of human rights values. Sandra Fredman’s analysis offers a stimulating template of a contemporary form of legal scholarship infused with, and enhanced by, philosophical ideas. This is the kind of scholarship which, I contend, provides the most fertile ground for our reflection on the relations between law and social change.
Indeed the different branches of the social sciences and humanities can productively twist our grasp of the very terms which many legal practitioners take for granted – terms such “the law,” or, “the social.” Such a critical exercise was proposed as a preamble to any investigation of law and social change by Martha Minow, a Professor of Law at Harvard School, in a paper she presented at the “Law and Social Change Lectures” of the University of Missouri-Kansas City in 1993.
In that paper, Professor Minow called for a broadening of our understanding of the notion of “law,” thereby opening up avenues for a cross-fertilisation with other academic disciplines.
According to her, many studies of law and social change treat the courts “as the only legal game in town,” whereas customs and other day-to-day informal social and economic practices should also be seen as norms that matter:
“Law,” she contends, “is not merely the formal official rules adopted by legislatures, courts and executives, nor solely the procedures of those institutions. Law is also the practices of governance and resistance that people develop behind and beyond the public institutions. Those practices may alter formal, public law; they also alter the meaning and shape of law and provide a potentially rich context for social change.”[2]
Drawing on the notion (widely held in the feminist movement) that “the personal is political,” Martha Minow goes on to suggest that our understanding of “the social” should include attitudes held by private individuals. Indeed debates over such topics as reproductive freedom, the right to die, or environmental reform, involve renovations in personal attitudes and intimate behaviour. As Professor Minow puts it:
“Political change is intertwined with personal change. Addressing the settings where private attitudes are forged and reinforced becomes critical in this understanding of the social realm.”[3]
To recognise, as Professor Minow does, that law and legal norms operate within and beyond (or beneath) the legal system, that they pervade our everyday lives, thus lays the ground for a fruitful dialogue with other disciplines – such as sociology or anthropology – which concern themselves with the everyday and normative pluralism.
The importance of recognising the ‘being between’ nature of our existence and its plurivocal, rather than univocal, suggestion is the subject of a recent work of Professor William Desmond of the University of Leuven.
The same interdisciplinary gaze should inform our approach of the notion of “human rights.” I said in introduction that the vindication of human rights is best seen as a public project with a participation that reflects such public significance. It is a project that calls for contributions from various sectors in society, and from many disciplines.
Indeed it has been my view, for a long time, that the human rights discourse, in any of its aspects, is not best-served when restricted within the boundaries of legalism. However one assesses it, the origins of the contemporary human rights discourse result from a specific political background, a complex set of circumstances, that may be interpreted differently.
I would therefore encourage all of you who are interested in human rights to engage with the rich scholarly debate about the sources of these rights. This ongoing discussion of how the Universal Declaration on Human Rights came into existence, of what influences informed the work of the Drafting Committee during the year 1947, were topics I touched upon in my speech to the Irish Law Society. I also mentioned these issues in the Address I gave to Unesco, in February 2013 in Paris, drawing, among others, on the work of Professor Mark Goodale and the writings of Johannes Morsink to which he had referred.
When vindicating human rights, we remain challenged, I contend, in our use of the fundamental concept of “universality.” In grappling with this crucial notion, there is much to be gained from exploring the philosophical and anthropological literature. Anthropologists, in particular, have analysed in very stimulating ways the legacy of colonial legal regimes, which saw the imposition of western European law on indigenous normative systems. Their writings invite us to pay attention to the possibility of plural legal systems that can coexist and even cooperate within a given society.
Another issue that remains with us is that of the relationship between the universality of human rights and the concept of culture. The old divide between what was referred to as rights’ theories grounded in Western sources on the one hand, and Asian or African cultural systems on the other, has evolved into a more complex set of divisions around the challenge of fitting the extension of universal rights through the prism of particular cultures, ethnic and faiths systems, without sinking into a cultural relativism that would yield up what has been achieved. This is not merely an academically abstract issue. It has implications for practice.
Therefore, rather than a radical, and inhibiting, abstention from judgement, I would argue for a critical human rights activism. A critical activism which, without abusing the notion of cultural diversity through any relativism that might serve as a cloak for a violation of human dignity or integrity, would plot its course through the prism of different cultures, themselves not fixed but, rather, in a continuing process of change.
In doing so, we also need to revisit, as Martha Minow invites us to, our perspective on change. Whether the topic is race relations, the treatment of persons with disabilities or domestic violence, the notion that change simply means shifting from one static position to another neglects a deeper notion of change. This is the difference between aiming for results and aiming for a continuing process of change.
This contrast between result-orientation and process-orientation, means that, when vindicating human rights, we should favour initiatives that have the capacity to elicit constituencies that are able to support the process of change in the future. According to Professor Minow, the notion of change should combine Adrienne Rich’s image – “not as a leap/but a succession of brief, amazing movements/each one making possible the next”[4] – with the Hasidic saying “You cannot leap a chasm in two leaps.” The ‘change’ in law and social change needs these kinds of paradoxes, tensions and twists; it needs to connect the past with an unfolding future, results with process, and ideal ends with practical means.
For at the end of the day, the debate about human rights is tested by its ability to deliver emancipatory release from their conditions for those communities on the ground who are suffering the deprivation of such rights – sometimes within the guarantees of citizenship, sometimes without, which creates special problems. As Jürgen Habermas put it, human rights are often the only language in which the opponents and victims of murderous regimes can raise their voices.
These are not, I repeat, abstract moral questions. The fundamental issues that arise in relation to human rights – issues of an epistemological, political and moral kind – cannot be ignored. But they should be combined with an equally demanding engagement with issues of implementation (such as the use indicators, for example.)
I believe that there is a great opportunity for human rights activists within the human rights legal profession to make a real contribution in this area while remaining as full participants in the larger debate. In other words, human rights activists can seriously grapple, and with great benefit, with philosophical issues, while working to deliver a set of practices that will enable the sway of human rights to extend.
To conclude, human rights law and practice raise many critical questions as we consider how we wish to see our world progress and develop in the twenty-first century. Just as the Universal Declaration of Human Rights was grounded in a vision that had recoiled from the moral abyss of the Holocaust, today we need a discourse and practice that continue to evolve to meet the challenges of a changing world.
It seems to me that the terrible tragedy faced by many refugees and asylum seekers around the world should feature high on our agenda. Refugee camps have become a topos of our times: can that be let to last? In a context where the nation-state remains paramount in determining access to citizenship, or creating categories which allow temporary residence without the legal protections and rights accompanying citizenship, such difficult questions as the following arise: “How do the ‘not us’ make social change?”; “What use is the law to them?”
But I do not want to foreclose discussions about what the great moral dilemmas, the fields of public concern, collective mobilisation and personal commitment will be for your generation. I only leave you with my sincere wish that a recognition of our shared humanity will be the basis of your commitment as legal practitioners.
Go raibh míle maith agaibh go léir.
[Thank you for your attention.]
[1] Carolyn Heilbrun, Toward a Recognition of Androgyny (1973). Quoted in Minow M. 1993. “Law and Social Change.” In University of Missouri at Kansas City Law Review. 62, p. 171
[2] Minow, M. 1993. Op.cit.
[3] Ibid.
[4] Rich. A. “From a Survivor.” In Diving into the Wreck: Poems 1971-72, p. 50.