Second Critical Studies Conference

"Spheres of Justice"

Name of the Panel: Rights and Justice-Justice as Supplement

<%'------------------------Bookmark Module wise------------------------%>     Daho Djerbal                               The Idea of Justice between Colonial State of Exception and the Post Colonial of Emergency  

    Pieter Boele van Hensbroek           Justice in Contending Views of Democracy

    Priyanca Mathur Velath               Rights of the Displaced – Within or Outside the Spheres of Justice?   

The historical process in which the idea of justice is worked out is closely related to the formation process of not only the States but also of the political society. If we take the evolution of the Western societies, it clearly appears a set of people from where emerge the main notions of the State (the authorities), of the Nation (a group of  adult individuals losing their statute of subject to become political actors) and of the Society which, in its evolution, tries to  reach an unstable compromise between national sovereignty and despotic authority, divine law and aristocratic liberalism or between liberalism and (Caesarism).

From all this evolution, a national political space is born and asserts itself along with  a spreading of the political practices in the mass (politicization of the masses) and a progressive substitution of violence by the ballot paper (the defeated accept the verdict of the polls). Indeed, during all XIXe, as during part of the XXe century, emerged the early beginnings then the ripe fruit of a parliamentary Republic with its republican culture, its public space and its citizens. Thus, gradually is established the strength and (pregnance) of the French State guarantor of the general interest with its republican civil servants, its teachers, its judges and its army. Parallel to that, in the civil society the catholic authority is replaced by the laic authority (Magistère), public meetings arise and  proliferate as well as the plural press  whereas competitive election takes the place of the non competitive one. I will not go into the details of all the developments of such an upsurge of modern politics in a so developed society as was the French one during the two last centuries.

But as soon as one considers the evolution of the ties between the State and its institutions, those of the law and justice in the colonial context, things change thoroughly, in the facts initially.

In Algeria, the process of colonization, in its military stage of conquest as during its time of setting a management system of  matters, consisted,  for a start,  of  a systematic destruction of all the institutions, codes and standard values that enabled the Algerian population to be identified like a State and a Nation. During more than one century, all was done to crush, erase the methods of representation, the traditional hierarchical orders and the systems of thought as well as the native beliefs.

In colonial Algeria, the general interest tightly espouses the interests of the high ranking colonists and of the European minority. The catholic religious authority is under the thumb and protection of the conquering army. The election is corrupted and devoid of its sense by systematic vote- riggings of the French administration. The press is muzzled and expresses only part of the opinion, that of the minority. In General, the majority of the population is deprived from its right to citizenship and remains subjected to a right and a justice which draw on sources from elsewhere than from its own history, culture and Koranic tradition.

Daho Djerbal is Professor in modern history in the Department of History, Faculty of Humanities and Social Sciences at the University of Algiers-Bouzareah. He teaches a wide range of subjects from colonial to postcolonial societies (Algiers, North Africa). He has also taught modern international relations as well as the history of modern ideas in the Western World. After a more than a decade of research on the economic and social history of modern Algeria, his research currently concentrates on the collection of the testimonies of the actors and witnesses of the colonial war in Algeria. He also works on the relationship between History and Memory. As funding member (1991) and director of Naqd, Journal of social criticism (1993-2006) (http://www.revue-naqd.org) since the early 1990s, he has dedicated himself to the publication of studies relating to postcolonial societies and newly independent states. He has himself published studies and commentaries on such topics in many Western publications.

Pieter Boele van Hensbroek          Justice in Contending Views of Democracy    Full Paper

The idea of democracy is generally associated with participation and accountability, two ´vertical´ relations between citizen and political institutions. Another dimension of democracy has to do with rights, minimally those liberties that indicate where political power should have its limits. Much of the discontent with democratic politics may have to do with the fact that, even when participation, accountability and rights are more or less well secured, democratic politics often does not address vital issues of justice (or does not do so sufficiently). For instance, gender equality, cultural recognition, social exclusion or economic marginalisation can be described as such issues of justice – addressing these would create not just democratic politics, but a democratic society.  This continues to be a key challenge to political theory. 
The paper does not start on the side of political theory but takes an empirical turn. How is democracy imagined in different places, in different historical situations and from different social positions? Despite the assumption in much of the literature on democracy that we have by now a quite clear definition of what democracy is, the paper takes the position that doing minimal justice to the political agency of people all over the globe requires that we first investigate how democracy is actually imagined differently in locations and situations. There is no a-priori reason why these imaginations would all synchronise, let alone synchronise with a standard liberal democracy model. We can expect different imaginations and included in these we may expect different concerns of justice expressed. The paper will trace and discuss some of these.

Dr. Pieter Boele van Hensbroek was lecturer at the University of Zambia before working at the University of Groningen as a lecturer in political philosophy, and coordinator of international academic relations. He was co-founder, in 1987, and for more than a decade managing editor of the African journal of Philosophy QUEST, Philosophical Discussions. He was advisor to the Price Claus Fund for Culture and Development. His special interest is in non-western intellectual history. He published: Political Discourses in African Thought: 1860 to the Present (Westport: Praeger, 1999). His current interest includes the notion of ´cultural citizenship´.

Priyanca Mathur Velath          Rights of the Displaced – Within or Outside the Spheres of Justice?     Full Paper

Restoration of the rights of the displaced is essentially a matter of ethics and justice (Penz, 2004). Today space for the Rights of the Displaced needs to be carved out not just within state policies, laws and judgments, and also political theory. Can the rights of the displaced be a claim for group or collective or individual rights? The claim for group rights of displaced is premised on the prior logical exercise of determining and defining what sort of a collectivity displaced persons constitute (Jayal, 1998). Can they be perceived as minority rights? Liberal theory supports the claims of individual rights yet its premises have argued a case for refugee rights and outlined a sphere for them. What about the theoretical base of the rights of development displacees? My paper intends to locate all these debates within the context and paradigm of social justice.
Once a displaced person like a refugee enters a receiving country, a new dilemma  - of the rights he is entitled to and the reciprocal duties of the state towards him – emerges. But before that a wider question needs to be addressed – Do states have a responsibility to admit refugees and asylum seekers for entrance? Is this merely an ethical and moral question? To what extent can state actions be termed just and unjust?  A conventional assumption behind every state’s policy towards its refugees is that the power to admit or exclude aliens is inherent within sovereignty and is essential for any political community; every state has the legal and moral right to exercise that power in pursuit of its own national interest, even if that means denying entry to peaceful and needy foreigners. States may choose to be generous in admitting immigrants but they are under no obligation to do so. The best theoretical defence of this conventional assumption is provided by Michael Walzer in his Sphere’s of Justice (1983).
Walzer’s views (termed ‘Partiality’ by Carens) are more favourable to the host state’s prerogative to close its borders and are a challenge to Carens’ assertion of free migration as an ideal. In Sphere’s of Justice, Walzer make a comprehensive claim for the state’s right to restrict immigration by asserting bonds between citizens as crucial to the instantiation of social justice. He sees the responsibilities to refugees and asylum seekers as limited by the foundational right of citizens to protect their national culture, “their shared sense of what they are about” (1983:50). In his view it is not from behind a (Rawlsian) ‘veil of ignorance’ but from that of a perspective of membership in a political community, in which people share a common culture and a common understanding about justice, that distributive justice should be viewed.
If socio-economic rights are one of the forms that justice propels then how just and valid are the rights claims of the displaced? If social justice is an arena only partly covered by law is it not unjust that till date India has no National Law or policy to for those forcibly displaced? How just is it for the state to deny its own citizens its basic fundamental human rights in the name of ‘Development’ or ‘Public purpose’ or ‘Common Good’? How and where can dialogues and debates on the rights of displaced persons be located within the dialogue of justice? Is it fair to simply say that all displacement whether forced or voluntary, across or within borders is unjust? To what extent can the claims of the displaced be considered as just claims on their host state? On the other hand to what extent can states as displacing agencies be termed as unjust? Thus the essential question to be explored is that within rights issues if we focus our attention on the Rights of the Displaced how can we locate the claims within a framework of justice?

Currently, Ms. Velath is pursuing her doctoral research on the rights of development-induced displaced populations in India at the Centre for the Study of Law and Governance, Jawaharlal Nehru University (JNU), and is also Editor of the Rights and Development Bulletin at the Centre for Development and Human Rights (CDHR), New Delhi. A political scientist by training, Ms. Velath graduated from Jadavpur University, Kolkata and completed her MA and M.Phil at the Centre for Political Studies, JNU. She also won a Commonwealth Scholarship to pursue the M.Sc in Forced Migration at the Refugee Studies Centre, Oxford University. Besides working with NGOs in New Delhi, she has also presented papers at conferences abroad.