Concepts of Justice in Legal Research

Concepts of Justice in Legal Research - Int.
Retfærd Conference, 16-17 September 2010
Justice Reconsidered: The Need for an “Epistemological Break”
Mikael Rask Madsen∗
Questions of justice are intrinsic to any legal, socio-legal, philosophical or historical account of law.
While some 20th century legal scholars sought to scientificise law by discarding notions of justice as
mere folk concepts (in Denmark, most famously Ross, 1953), the quest for a pure legalistic account
seems constantly to be stained by the return of questions of rule of law, fairness and simply legal
politics. In this paper, I am however not interested in this recurring problem of modern legal science
in its (self-described) legal positivist variant. My subject is the problem of studying justice in the
sociology of law. Given the broad nature of the notion of justice, I will limit myself to what in many
ways has become a core sub-discipline in justice studies, namely human rights. And like justice, the
question of human rights is hardly a settled one (for example, Lochak, 2002: 120). In fact,
distinguishing the prescriptions and idealism of human rights from its actual empirical properties in
terms of a social scientific object of study remains a real challenge not only in law but also, and
perhaps even more so, in the social sciences. There is little doubt that the relative ambiguity of
human rights is indeed one of human rights’ major strengths ideationally, politically and sometimes
even legally. Being also part of the research object of human rights, this calls for reflexivity in the
scientific encounter with human rights in terms of striking a very fine balance between taking
human rights seriously as both a universal cause and an objectivised research object. In the practical
reality of human rights in society, the cries for freedom against tyranny and arbitrary uses of power
are intrinsic to the interests and mobilisations around human rights. Although institutions have been
developed and international and national legal codes drafted, human rights remain an unfinished
dream for many and probably most: victims of violations, activists, Statesmen, and others involved
in the promotion of a better society or in fighting against what they see as gross injustice. Beyond
any doubt, these normative stakes in the question of human rights are not only important in
themselves but fundamentally part of the research object of any sociology of human rights.
Human rights, indisputably, is both a normative idea and a social practice, as well as a
precept alluding to some anthropological fundamentals of human dignity. It is however far from a
settled normative good. Although human rights activists tend to form an epistemic community
∗
Professor of European Law and Integration & Director of the Centre for Studies in Legal Culture, Faculty of Law,
University of Copenhagen. Mail to: mikael.madsen@jur.ku.dk
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Concepts of Justice in Legal Research - Int. Retfærd Conference, 16-17 September 2010
(Haas, 1992), their ‘episteme’ is perpetually challenged by other actors. Current examples include
Western governments seeking tacitly to balance liberty with security or, in the Chinese variation,
limiting liberty by recourse to stability, even societal integration and solidarity, by inferring a
twisted version of Durkheimian sociology. The objective of a sociology of human rights cannot be
to simply further or denounce any of these principled ideas and practices, even if one feels
politically, morally and humanly fully convinced by some positions and appalled by others. This is
of course not a new problem to sociology. Weber’s distinction between ‘value judgment’ and ‘value
reference’ was precisely directed at this problem (Weber, 1980). Following Weber, the objective of
the sociology of human rights would be to study human rights as a specific ‘value’ that had been
reshaped by social conflicts and contests, and which relates to larger social, legal and political
developments. Conversely, it is not this ‘value’ of human rights as the major players conceive of it
that is the object in question; neither is it human rights as the researcher tends to prefer it
materialised. Most social scientists would of course agree on this at a principal level. However,
navigating the many issues related to the different and competing ideas and conceptualisations of
human rights is in practice a highly complicated and sometimes even delicate manoeuvre. And this
is precisely due to the social, political and legal importance attached to human rights in today’s
society. In more contemporary scientific terms, the problem is to objectivise the object of human
rights, that is, to study human rights as a more autonomous scientific object and avoid being swayed
by the many readily available prescriptive discourses related to the subject-area, including
obviously one’s own (cf. Bourdieu, et al., 1991).
Human rights is however also more generally a societal phenomenon (Verschraegen,
2002). Historically, human rights derive from the great philosophical and societal innovations of the
enlightenment, from the thinkers and activists to the evolution of society itself. And they have
found a supreme expression in first the legal-political symbiosis of constitutional democracy
(Thornhill, 2008) and later in the internationalisation of the legitimacy of the State, most notably in
the case of the European human rights regime (Madsen, forthcoming 2011). In functionalist terms,
human rights concern the functional integration of modern society and perhaps even a form of
solidarity necessary for the coherence of late modern society (Thuesen, 2008). In other words,
rights – and particularly human rights – are one of the fundamental pillars of modern society.
Consequently, human rights as a sociological object necessarily also implies addressing the
structural societal transformations prompted by the evolution of human rights. This includes
examining the simultaneous differentiation of human rights law and politics, nationally as well as
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internationally, and the broad impact on society of these forms of differentiation, rationalisation and
integration. These are, however, not macro-societal phenomenon only suitable for grand theorising.
Indeed, irrespective of the level of analysis – historical, philosophical or sociological structure or
agency – one crucial first step is perhaps to accept that the area of human rights is not by definition
different from other social fields or systems. Viewing human rights as part of the general structuring
of society seems to offer a means for understanding human rights on its actual societal level. It
certainly reveals that idealist and prescriptive discourse are not free-standing but produced within
society and influenced by both macro and meso-level social structures, e.g. socio-economic
stratification, social institutions and networks, power, etc.
Viewed in conjunction with the above, this raises the question of how to study the multiple
political, legal, moral and human dimensions of human rights mobilised in society in combination
with a more structural analysis of human rights of society? In the following I shall argue in favour
for a reflexive sociology of human rights which I claim is both more adequately societal and
analytically more revealing of the social scientific object of human rights. This approach, which I
base on an international interpretation of Pierre Bourdieu’s sociology (cf. Dezalay and Madsen,
2006), I further claim is suited for an analysis of the crucial dialectics of agency and structure in the
development of human rights in and of society; how mobilisations and societal structuring
interplays in the formation of human rights. It is against this backdrop, the first part of this chapter
argues for the growing need for an ‘epistemological break’ in human rights research and the
development of a reflexive sociology of human rights. It proposes the need to reconsider both the
realisation and reality of human rights in and of society more carefully and against that background
devise an approach which examines the interdependence between societal structuring and the
political, moral, legal and more broadly social practice of human rights. The goal is, however, not
epistemological exegesis but to develop a reflexive sociological approach to human rights to be
employed in empirical research. Following a brief outline of some of the major concepts of such a
field approach, I further articulate the approach by confronting it with some of the main currents in
human rights scholarship. I first tackle the question of human rights at the level actors, confronting
scholarship on the State and NGOs with the notion of a field of human rights of multiple and
conflicting actors historical level, then on the semantic-theoretical level, comparing the philosophy
of human rights with a sociological account on the construction of human rights in terms of a
symbolic device over time, and then at the level of legal discourse and legitimation. In conclusion, I
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sum up the general elements of a reflexive sociology of human rights by outlining the rise of the
field of human rights in Europe.
Human Rights as Research Object: The Need for an Epistemological Break

Human rights is indisputably one of the great contemporary discourses. From this follows, however,
that any attempt at social scientific analysis of human rights implies – paradoxically perhaps –
entering the sphere of ‘symbolic violence’ of human rights. By the latter I mean the pre-constructed
visions and divisions specific to the social world of human rights (cf. Bourdieu, 1991). While
prescriptive discourses are aplenty, challenging the doxa of human rights with the objective of
better describing and analysing human rights seems a necessary scientific preliminary. It is also the
response found in various contemporary structuralist and constructivist sociologies, ranging from
Pierre Bourdieu to Niklas Luhmann, which both suggest devising an approach which, as a scientific
preliminary, seeks to go beyond the immediate questions and discourses of human rights (Bourdieu,
1986; Luhmann, 1974). In different ways, they suggest examining the deeper relations underpinning
human rights as a societal phenomenon, that is, exploring the changing modes of production of
human rights and society with the objective of respectively understanding the dynamics and
functions of human rights in society. Thus, rather than accepting the many pre-definitions, such an
approach seeks to challenge the self-presentations of the subject by tracking how the subject-area
came about using a constructivist approach but with the goal of establishing the field or system in
more structural terms. The goal is to go beyond the immediate temptation of viewing the object on
the basis of intuitive readings and spontaneous classifications, all readily available aplenty, and
instead seek to construct a scientifically more autonomous research object of human rights
(Bourdieu, et al., 1991). This preliminary operation is, however, not limited to the object itself but
also involves a critical examination of the dominant academic pre-constructions of the specific
subject-area in question, that is, a critical analysis of the research tradition and the application of
that tradition.
What I am here alluding to is what Pierre Bourdieu – via Gaston Bachelard – termed the
scientific preliminary of a ‘double rupture’: a break in respect to both the object and the research(er)
in question, a basic scepticism which is at the very heart of not only Bourdieusian-styled ‘field’
studies but also what has developed into a more general attempt at devising a reflexive sociology.1
1
It should be mentioned that both Luhmann and Bourdieu share a common basis in Bachelard and the fundamental
obstacle of sociology, which is devising society as a scientific object of sociological inquiry beyond mere naturalist or
humanist expressions of society.
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One key component of such a reflexive sociology is the ‘double historicisation’ of both the object
and the academic construction of the object. The booming contemporary practice of human rights,
both as activism and research, only highlights the need for such an operation. Due to the
multiplication of human rights discourses and their normative aspirations in the context of the
proliferation of the number of actors studying human rights, there seems to be only a growing need
to ‘step back’ – or even ‘out’ – and critically examine these pre-constructions before seeking to
approximate the object on more objective grounds. This entails developing a genuine sociological
inquiry guided by sociological systemisation and questions, and not by the political, legal or moral
stakes of the subject in question. Basically, the ‘double break’ serves as a tool for opening the
‘black box’ of human rights and against that backdrop recreating it as a genuine sociological object.
Because of the long and particular history of human rights, as well as its historically many and
different usages, the object of human rights is at all levels marked by a series of wide-ranging
impensés, that is, structures inscribed and concealed in the subject which further – by the means of
the relative ambiguity of human rights – allows for projecting different and often very well-
camouflaged interests in the object (cf. Bourdieu and Wacquant, 1992). Consequently however,
‘objectivising’ the research object of human rights calls for somehow establishing the object of
inquiry beyond these stakes and interests, yet in a way which allows for taking them seriously as
part of the object of inquiry as discussed above.
One way of doing this is by deploying the research tool of the ‘field’ and associated
concepts of Bourdieusian sociology such as ‘capital’ and ‘habitus’ (for conceptual clarification, see
further below). Together these analytical concepts provide a sociological tool kit for understanding
society as social practice and human rights as a differentiated societal practice. Taking such a view
is by no means downplaying human rights but rather seeing human rights at perhaps its most
adequate level of contemporary internationalised society. It differs from a systems theory approach
in the ambition of not only abstracting human rights from its practical political, legal and ideational
practice into a structural functionalist account but also seeking to establish the linkage between the
actual practices of human rights and the structures in which they take place and help form, e.g. the
structures and structuring of the field of human rights. More concretely, while this allows for
analysing human rights as differentiated legal, political or moral phenomena, this is done with the
goal of explaining the interrelationships and interdependencies of these forms of differentiation with
the practice of human rights and, thus, its dynamics. This approach thus differs from systems theory
inquiries into human rights by a different notion of the social. Whereas systems theory tend to
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abstract the societal level to a higher level of only systems and communications (Luhmann, 1997), a
sociology of practice as here propounded is situating the ‘social’ differently and at the level of the
interdependence of agency and structure (Bourdieu, 1980). In the context of human rights studies
this has the heuristic advantage of precisely integrating the various practices of human rights in the
structuring of society and vice versa. It thus emphasises the dynamics of human rights rather than
only its integrative functions.
Such an approach takes as its starting-point that human rights is a symbolic instrument
valorised differently in different social fields, as well as developing within a specific field of human
rights. Drawing on Bourdieu’s famous essay “On Symbolic Power” (Bourdieu, 1991), human rights
is a modus operandi providing symbolic forms for constructing and making sense of the world in
terms of structuring structures. At the same time, human rights is a opus operatum of more
objective forms of meaning, a structured structure in a more structuralist sense. Understanding
human rights’ function in terms of these two very different symbolic devices however require
relating them to power and domination (but without committing to Marxist reductionism), that is, to
see human rights – and human rights practices – as part of a set of power relations which produce
symbolic power, for example divisions of labour (law/politics) and the battle over the legitimate
form of production. These three elements, as I will try to demonstrate below, are not mutually
exclusive, regardless of their obvious different functions and theoretical origins, but provide
precisely the means for an integrative approach to the place of human rights in society which takes
the practice of human rights seriously.
Field Analysis of Human Rights

I the following I further explain the usage of the core Bourdieusian notions in human rights research
against the backdrop of this more abstract and epistemological discussion of the problem of human
rights in the social sciences. As argued elsewhere (for example, Madsen, forthcoming 2011), the
field of human rights is generally characterised by a number of core dynamics and most notably on-
going interplay of ideology, politics, law and power. In terms of agents, the field can also generally
speaking be circumscribed by the interdependent input coming from law (and jurists), civil society
organisations and State practices, and these actors’ different and overlapping engagements in the
politics, ideology and law of human rights. While this delimitation is empirically uncontroversial as
concerns human rights in general (see however, Buchanan, 2009: 123), the fundamental challenge
still remains: to construct an operative model of analysis which can somehow relate these different
actors and stakes in a single structure. I would argue that the concept of ‘field’ developed by Pierre
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Bourdieu provides a tool for precisely doing so (Madsen, 2006). Using this approach, the object of
study becomes the symbolic space which exists as a set of objective relations between positions and
which is being transformed by their constant interplay over the domination and control of the
subject of human rights (Bourdieu, 1986; Bourdieu and Wacquant, 1992: 101).
Such a way of conceptualising the ‘playing field’ through a relative open-ended analytical
notion seems particularly suitable for an analysis which necessarily has to consider both long-term
and short-term processes of the object of study. Human rights in the longue durée is marked by
great social continuities – evident in the significant historical legacy of human rights in Western
democracy – and, in the courte durée, of the continuous emergence of new human rights discourses
and practices as a product of interdependent political and social transformations in which human
rights are increasingly mobilised (on this notion of history, see Braudel, 1980). The field approach
offers a tool for capturing the diversity of the subject in question within a single analytical
framework: from the diverse set of actors to the transnationality of the many and conflicting
normative discourses and their different temporalities. Examining the rise of modern human rights
using this approach is in fact addressing multiple and overlapping social fields – more national and
more international.2 Rather than accepting the existence of an ‘international super field’ of human
rights, Bourdieusian reflexive sociology functions in this regard as a tool for situating the many
international and national practices of human rights in their ‘own right’, that is, beyond the legal
dichotomies of national-international or law-politics which traditionally, and often implicitly, have
greatly shaped analyses of modern human rights. Besides seeking to establish the objective relations
between a set of ‘positions’, the analytical model proposed further centres the analysis on the
circulations of knowledge, concepts and savoir-faire between the more competitive and
complimentary producers (Bourdieu, 2002). In this view, the national, European, international and
transnational levels and their various more specific centres of production form a structure – a ‘field’
– of both semi-autonomous and semi-interdependent positions.
What is suggested here is not a form of ‘network’ approach as, for example, the model of
developed by Manuel Castells for conceptualising international society and global exchanges
(Castells, 2000; Madsen, 2002). Instead the objective is to use Bourdieusian sociology on the levels
of the international and transnational. Drawing, on the one hand, Christophe Charle’s field-inspired
analysis of inter-war Europe, the international level is seen as the product of competitive national
projections and productions (Charle, 2001). On the other hand, the model integrates the findings of
2
In this article I refer to modern human rights as the post-World War II internationalisation and re-launch of human
rights.
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Yves Dezalay and Bryant Garth on the growing interdependence of the producers and receivers in a
globalising internationalised society and the resulting path dependency of changes in the global
North and the South (Dezalay and Garth, 2002). Such ways of examining international interplays
implicitly builds on a conceptualisation of the State as a more disaggregated entity than the more
institutionally framed structure suggested in mainstream political science and law (on the
disaggregated State, see Slaughter, 2002). The national and international politics of and on the State
are obviously central in the specific subject-area of human rights. Therefore, this way of re-
conceptualising the State is a way of facilitating an analysis of the many actors operating in and
around the State, including NGOs, foundations, professional societies and individual entrepreneurs.
That is of course not to claim that the State equals the field but simply to emphasise its role as a key
battlefield and agent in the overall game – and field – of human rights.
This conceptualisation of the notion of field as the ‘playing field’ of both national and
international positions and structurally constrained strategies will be further introduced below. At
this point I will only make a few additional remarks in respect to the linkage between ‘field’ and the
two other core notions of ‘capital’ and ‘habitus’. Conceptually, Bourdieu defines the field as a
social space made up by objective relations between agents’ existing beyond individual
consciousness and will (Bourdieu and Wacquant, 1992: 101). The field is further a place for
struggle between different agents, a sort of marketplace where different positions are held due to the
amount of capital (economic, cultural, social symbolic, etc.) that agents’ possess and which
determine their potential influence on the functioning of the field. This struggle or conflict is what
gives the field its dynamism, but also maintains it as a field. The agents are challenging each other,
but generally not the field as such – a fact attributable to the habitus of the agents and their
trajectory towards the field. Habitus is the shared set of dispositions that orient the agents in a
particular field and in regard to other fields. From schemes of perception, of appreciation and
action, habitus is, in other words, the internalised schemes that guide the players’ behaviour
(Ansart, 1990: 41). This internalisation, in turn, takes place by a dialectical process in the sense that
habitus both produces and is produced by the social world. Habitus is thus neither due to a
mechanical reaction to external constraints nor to a subjective, conscious intention on the part of the
agent. It is a practical sense – a socially founded ‘sense of the game’ – which is constructed
throughout the agent’s particular and individual trajectory (Bourdieu, 1980).
As I argue will further below, this ‘sense of the game’ is structured over time and reflects
different social configurations and, thereby, historically different sets of ‘rules of the game’ or
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nomos which form a common illusio of the agents of a field (Bourdieu, 2000: 96). In that sense, the
analysis of human rights in terms of fields very much seeks to explore how the micro practices are
written into the structural changes of the area and vice versa. The approach, thus, seeks an analysis
of the gradual emergence of a more structured field of human rights on the basis of the practices of
a series of agents and institutions, which during different historical stages have helped define this
social space and its overriding logics. This becomes an analysis of the different nomos and illusio
and eventual doxa of the field and they ways in which this influenced the logic of practice of the
agents. In other words, it becomes an analysis, which by the means of sociology, studies the
Realpolitik of reasoning human rights and how this battle structures the space of action, perhaps
most strikingly in terms of institutions and law.
Reflexive Sociology and the State of the Art of Human Rights Research
Although taking somewhat of a different starting-point than the majority of human rights studies,
the approach I have been devising is not as such in contradiction to mainstream research in the area
of human rights. As any other research tradition, it builds and rebuilds existing work within the
subject-area. Its main difference from some of the major traditions in human rights research is the
objective of introducing an express sociological dimension to the study of human rights, in this case
via Bourdieusian reflexive sociology. To better explain and situate the approach put forward, in
what follows I compare it to a selection of mainstream studies of human rights. Among the ever
growing literature on human rights, there are at least three traditions which are relevant in this
regard: the approach of ‘transnational advocacy networks’ developed in international relations
studies; a political philosophical approach concerned with the ideal of human rights; and, not least,
an institutional and legal doctrinal approach deployed mainly by international legal scholars and
political scientists.
Network and Field

In her pioneer study of the rise, consolidation and transition of the Latin America human rights
network, Kathryn Sikkink has analysed the various stages of the politics of human rights in respect
to Latin American since the late 1960s. She demonstrates how human rights, in the 1970s, was
created as an issue, a shared category of concern between the South and the North, by a number of
pioneering human rights NGOs, including, in particular, Amnesty International. In the second stage,
1981-1990, she argues that an expanding ‘network‘ between these groups increasingly, and more
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effectively, used the symbolic power of human rights in their common struggle. This period was
symbolised by the launch of Americas Watch, which took human rights to a new level by
professionalising and ‘mediatising’ the subject. Influenced by the beginning of the democratisation
of Latin America, as well as more generally post-Cold War diplomatic practices, the third stage,
1990 to present, forced this network to reorganise and aim at a set of new issues related to the
consolidation of democracy and human rights (Sikkink, 1996). Together with Margaret Keck,
Sikkink has more generally theorised this variation of ‘epistemic communities’ (Haas, 1992)in
terms of ‘transnational advocacy networks’ (Keck and Sikkink, 1998). This analysis, which has
gained very considerable attention in international studies, poses a set of key questions regarding
the way in which advocacy networks form essential infrastructures for transnational symbolic
politics such as human rights activism.
Even if the approach propounded here in many ways is indebted to the insights of Sikkink
and Keck, it differs substantially in its basic framework. Both approaches however concur to the
observation that NGOs and other civil society mobilisations has a significant impact on the area, as
well as a human rights movement emerged benefiting from a transnational communicative network.
The basic disagreement concerns whether this development somehow represent the whole area and
idea of modern human rights or rather a set of important yet specific producers of human rights.
More precisely, should these civil society engagements in human rights be seen as an all-
encompassing social movement and as somehow independent from concurrent State strategies or
other competing strategies. Basically, compared to the approach outlined above, the network-model
highlights an important communication structure, yet downplays the internal conflicts and
skirmishes which the notion of ‘field’ takes as a starting-point.
This can be exemplified further by highlighting another central feature of Keck and
Sikkink’s analyses, namely how a set of actors of institutions came to subscribe to a more or less
common ideology and utopia. The critique raised by the field approach is that such accounts do not
sufficiently accentuate the actual competition going on concerning forming this common utopia:
how competitive and conflicting ideals and practices are in fact at the core of the definition and
transformation of the concept. Even within the ‘NGO network’, the competition, for example,
between Amnesty International, Human Rights Watch and La fédération internationale des droits
de l’homme (FIDH), has not only been central to the transformation of the idea of human rights, but
it has also – over time – differentiated the positioning of these (co-)producers of the field. In the
view of the approach advocated here, the latter in fact provides an important dimension for
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understanding the pervasiveness of contemporary human rights activism as not only the product of
the political success of human rights activism in general but also the increased differentiation of this
area of politics in terms of law and institutions.
However, in approaching the rise of modern human rights in terms of a field, the
positioning of the actors vis-à-vis the other main positions of the field (the State, international
institutions, academia, civil society, etc.) is a very central issue. It is the basic claim that the game
of positioning reflects different social histories and ultimately different social and political outlooks.
Besides outlining these parallel and competitive engagements, the model in fact seeks to understand
these different positions of the field from the point of view of the social history of each of these
positions rather than only their attachment to a specific cause. As concerns the positioning of civil
society actors, this does not downplay the impact of various NGOs and social movements but it
underscores their individual specifics and how these are linked to both the on-going competitions in
the field and its more general history. Hence, rather than taking the self-presentations of these
organisations as objects of study, what is interesting in this regard are the actors who formed them
and installed specific conceptions and visions in them. Mapping the field by the input of these more
objectively (as well as subjectively) positioned agents and institutions, the analytical starting-point
becomes the structural dimensions of the progressive and competitive development of the field,
including, obviously, the construction and reconstruction of the idea and ideal of human rights
(Dezalay and Garth, 2006; Guilhot, 2005; Madsen, 2005). To sum up, contrary to a network
approach, the field approach seeks to add a structural dimension to the study of human rights by
positioning the producers of human rights in the broader social context of a structured field.3 The
approach does therefore not necessarily exclude the idea of network analysis. However, it suggests
that such an analysis should be carried out as part of a more structural description of the field, that
is, within the structural matrix of the field of human rights practices.
The Ideological Divides of Human Rights

The basic imperative of the kind of sociological analysis here advocated can be further explained by
situating it in respect to the political philosophical research tradition in the area of human rights.
Modern human rights have generally been hampered by two great disputes, concerning respectively
the battle between the protagonists of, on the one side, social and economic rights and, on the other,
civil and political rights, as well as the more philosophical controversies over the question of
3
A similar critique, using reflexive sociology, could also be raised against other related theories of ‘the power of ideas’
and norm politics, for example (Risse, et al., 1999).
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universalism vs. relativism of human rights – a conflict which has been both political, moral and
academic in scope (Aron, 1965; Wilford, 2003, quoting Bertrand Russell p. 126). Following the line
of analysis suggested above, the field approach argues for viewing these conflicts over the
definition of human rights as part of the research object and as empirical evidence of the – only
relative – structural stability of the area. In other words, the normative definition of human rights
remains an important stake in the overall dynamic of the human rights field. This is not to say that
these skirmishes over principles and definitions do not contain morally, politically and legally
highly pertinent insights, but to underline that these are very much part of the broader object of
study. Maintaining a certain analytical distance to these great normative discourses, moreover, helps
avoid being trapped within a set of boundaries and categories of a subject that, notwithstanding
these important discourses, remains marked by the fact that the battles over its boundaries and
contents have hardly ceased. This is basically viewing conceptual and normative controversy not as
an essentialist question but as a an essential question for understanding the dynamics of human
rights (cf. Bourdieu, 2000)
The question of the universalism of human rights with its heritage in the work of some of
the most prominent philosophies of modernity is unquestionably at the heart of the postwar
internationalisation of human rights. Yet, the opposing view, the relativism of human rights,
became equally central in the postwar transformations of human rights: The fall of the colonial
order opened up for a critique of the imperial tradition of exporting Western universals under the
flag of ‘the universal’ (Donnelly, 1989; Gosepath and Lohmann, 1998; Renteln, 1990; Wilson,
1997). These ideals and theories are obviously far more sophisticated than this blunt description. In
respect to a study of modern human rights, they are for many reasons more interesting, one of them
being that they are central for explaining the legitimation of the different discourses of modern
human rights. In this approach, the research object is therefore not only these philosophical
explorations per se but also how these scientific and political theories and justifications have, to
various extents, been integrated in the production and legitimation of human rights. A similar
approach is deployed in respect to the other great dividing line of human rights, the clash between
the different ‘generations’ of rights, notably social and economic rights vis-à-vis civil and political
rights. Even if the Vienna Summit (1993) and the European Charter of Fundamental Rights (1999)
famously equalised these two sets of rights, from an empirical view it is a questionably assertion to
claim they, de facto or de jure, are fully equalised. On the contrary, a tension, albeit changing,
continuous to exist between these different groups of rights. The latter is currently most strongly
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expressed in the claims put forward by so-called alter-mondialistes. The alter-mondialistes are in
many ways exactly challenging the artificiality of the grand, typically State-sponsored, discourses
on human rights, claiming the equality of rights for the purpose of a number of more or less well
concealed diplomatic interests (cf. Douzinas, 2000).
Generally speaking, a reflexive sociology of human rights suggests integrating these
tensions over the definition of human rights in the research object. The rationale being that the area
of human rights, more than many other policy areas, has sought a justification in political
philosophy and of the highest order and grandest kind: from the perpetual peace to the universality
of mankind. There is therefore a real risk of philosophically depoliticising and de-socialising human
rights. Consequently, this calls for an analysis that restructures and contextualises these discourses
in respect to the host of actors and organisations practicing human rights. Such a structural
constructivist approach therefore seeks the archaeology of the emergence and transformation of
human rights by applying the notion of field in a dynamic fashion: rather than a static representation
of the field, the objective here is to trace the gradual structuring of the subject-area in terms of field.
As a function of the largesse and diversity of the terrain of study, such an approach is by definition
inductive and exploratory and thus should avoid applying – at least to begin with – a very fixed,
delineated definition of human rights. Conversely, this approach ideally seeks to follow the agents
and their involvement in the on-going reconstructions of the subject and use this in the encirclement
of the object.
The research approach evoked in essence seeks to explore the expansion of human rights
and the processes of the structural ‘hardening’ of the human rights discourse, for example the
systematisation, legalisation and other forms of differentiation and structuring of the human rights
field. More precisely, by tracing the emergence of the subject, one can study those practices that
contributed to a set of norms that subsequently were established as human rights by international or
national legal or quasi-legal codification. The approach is by all means historical, but perhaps best
described as historical sociology or sociological history. Following Robert Castel, the objective is
neither to rewrite nor revise history but to re-read history, on the basis of both historical and
sociological sources, with a sociological narrative and lens (Castel, 1995: 17). It is a selective
history, like any history, centred on a set of sociological questions, which ultimately reflects the
analytical objective of tracing the object and how was defined and more generally structured over
time by the competing input of a host of actors. Albeit the initial open-ended nature, the analysis
has in practice an in-built concretisation process which to a large extent reflects the empirical nature
13
of the object in question. In other words, the retrospective view of the forming of a ‘field’ naturally
presupposes that a field eventually emerged, which conversely allows for examining the processes
of emergence and transformation.
Sociology of the Juridification and Legitimation of Human Rights

These processes of structuring and categorisation which I claim are central to a reflexive sociology
of human rights, makes the question of the role and position of law important. Undoubtedly, law –
and jurists – has played a major role in the emergence of modern human rights as a structured field
of practice (cf. the debate: Blau and Moncada, 2007; Hagan and Levi, 2007). Because of the way
human rights inherently concerns the State, law is inevitably at play. In human rights research this is
also evidenced by the long dominant role of legal scholarship. In particular international legal
scholars have since the birth of modern human rights engaged in describing and proscribing the
normative and institutional build-up of the subject (cf. Bourdieu, 1981). Legal and quasi-legal
analysis provides unquestionably an important contribution for understanding the normative and
institutional aspects of human rights (for example, Steiner and Alston, 1996). Despite its many
virtues, this school of research however tends to make light of a series of basic issues related to
power, conflict, legitimacy, etc., e.g. basic sociological forms of inquiry. Put differently, the gradual
emergence and expansion of human rights (law) tend to be presented from an insider view mainly
concerned with the legal effectiveness and expansion of these doctrinal regimes than any form of
sociological analysis of the social processes related to the breakthrough and relative autonomisation
of these legal regimes (an example is Buergenthal, 1997). This often leads to very little emphasis on
the social and historical context of these legal and institutional innovations. As in the case of the
transnational networks, I would argue that the analysis of the legal and institutional aspect of human
rights might equally benefit from an analysis which instead takes a starting-point in the adversarial
nature of this social space: How it was – and continues to be – produced at the crossroads of a set of
different agendas and actors and how human rights law and institutions are gradually formed by
these stakes (an example is Madsen, 2007).
Although taking law and jurists as one point of departure for understanding the emergence
of modern human rights, the analysis remains obviously sociological, not legal. While legal
doctrinal insights and institutional description can be used to elucidate and substantiate the analysis
of certain social and legal shifts, the basic framework for understanding law and jurists in this
regard is a sociological analysis of the interface between the emergent field of human rights and the
14
legal field. Following the general notion of field, the ‘legal field’ is understood as a historical
construction influenced by the way jurists seized a powerful double-position in contemporary
society as both insiders and outsiders to the State (Kantorowitz, 1961; Madsen and Dezalay, 2002).
In Bourdieusian terms, by being ingrained in the social processes related to the emergence of the
modern democratic State, jurists not only gained high social standing but also developed a specific
objectified and codified symbolic capital, ‘juridical capital’, granting them a specific resource of
societal power. The specific social power of jurists is further linked to the rise of the modern law
faculty. As a way of making itself both indispensable and self-sustainable, the modern law faculty
invested heavily in a formalisation of law which helped counter the fact that its main function was
to be the professional (and social) training ground for the State elite. The investment in legal
formalism, often accompanied by a hint of legal universalism, basically allowed jurists to present
themselves as autonomous experts on the functioning of State and society, yet at the same time
maintain a close relationship with the State. The most striking outcome of the construction of
modern law in the shadow of the State was the production of the double role, not to say double
identity, of jurists, enabling them, on the one hand, to be the guardians of tradition and order, and
on the other, advocates of the post-revolutionary liberalism (Halliday and Karpik, 1998; Karady,
1991). And, this eventually allowed them to present themselves in mainstream politics and in
certain instances become a dominant force in international relations (Dezalay and Garth, 2010;
Madsen and Dezalay, 2002).
It is on the basis of this historical understanding of law and jurists that we, in more structural
terms, can understand the power of legal expertise in the area of human rights. Considering the
prominent role played by legal academics in the construction of modern human rights, an important
issue in this regard is the power of legal expert knowledge on human rights. As suggested, modern
legal science first emerged as part of les sciences de l’État, the very production of knowledge on the
State and for the State, and ultimately served to justify and extend State power. Similarly, human
rights, notwithstanding seemingly limiting State power, also contributed to this progression of the
State and its social justification.4 Making the link between the historically acquired social position
of jurists and the relative power of the (quasi-)legal human rights discourse is highly central for a
number of reasons. First of all, legal human rights academics, despite for a long time being
4
The rise of an independent, professionalised bureaucracy was further linked to an overall centralisation process which
was helped by the build up of internal protocols, doctrines and other forms of bureaucratic knowledge and expertise.
This bureaucratisation did not restrain the power of the State, but rather, paradoxically, provided the foundation for the
expansion of its powers by using the science on the State, including human rights (Bourdieu, et al., 2000).
15
marginalised within the hierarchy of law, have more than any other sub-group of human rights
academics marked the debates of modern human rights. Reflecting the only gradual and contested
conquest of human rights as a serious legal matter and scientific discipline, many of these
interventions have in practice been marked by a notable blend of legal analysis with the agents’
visions – de sentia ferenda – on how human rights ‘should be’, that is, the Kelsian Sollen rather
than the Weberian Sein. A whole genre of human rights literature has in practice developed
importing the normative method of writing ‘recommendations’ from human rights consultancy and
activism in combination with straight-forward legal doctrinal and institutional analysis. This very
specific blend of law and more or less discrete legal and political idealism is intrinsic to the field in
question and ultimately a part of the object of this study. In fact, examining these key producers
multi-positioning between academia, NGOs and national and international organisations provides
important empirical evidence of the interfaces of the more social universes involved in reproducing
the field of human rights.
Applying the historical and structural constructivist approach outlined above, the analysis of
these key agents thus concerns both the structural position of the legal human rights experts,
ranging from academics to practitioners, and their professional contributions. In other words, their
practices provide not only central documentation and analysis of the progression of the subject-area,
which many of them have followed closely and occasionally influenced, they also supply specific
and individual trajectories towards the field. When combining the social properties and trajectories
of the actors with their expert contributions it becomes possible to also interpret legal discourse as
part of a broader social history of human rights. Furthermore, when analysed in the context of a
legal field differentiating and autonomising legal knowledge, the practices of human rights experts
using a hybrid formula of interventions is indeed highly illustrative of the way in which the field to
a certain extent has been built using the legitimacy of legal expertise to further the political cause of
human rights. Such a deconstruction of these experts’ role and impact also reveals that these human
rights actors’ interface with the legal field has been far from straightforward. Indeed some of the
major problems related to creating an autonomous human rights area were paradoxically the
resistance this allegedly ‘politicised subject’ initially was met with by the elite of the legal field
(Madsen, 2005). Although law and human rights are closely linked, it is an ambiguous relationship,
which however is revealing of an ever changing interface of law, politics and power. And, it is by
understanding this tension, that it becomes clear why legal actors to a large extent have become the
16
couriers – not to say the brokers – of the national and international law and politics of human rights
(Dezalay, 2004; Dezalay and Garth, 2002).
Conclusion: In Search of Human Rights

This mainly theoretical and epistemological examination of the construction of the research object
of human rights outlined in this paper has as its basic objective to and make intelligible why human
rights have acquired such a central place in contemporary law, society and politics. The textbook
explanation of the contemporary rise of human rights tends to make it more or less the inevitable
product of the transformations of particularly Western European society following WWII. The
atrocities committed by the Nazi-regime in the context of the impotence and insufficiencies of not
only international law and humanitarian ideology but also more generally Western European
civilisation certainly appear as more than the sufficient backdrop for the far-reaching postwar
human rights project. On closer inspection however, the modern history of human rights provides a
considerable more multifaceted narrative, which conversely calls for a much more nuanced
conceptual framework. One the one hand side, the memory of the powerlessness of European
civilisation when confronted with fascism and Nazism had undoubtedly great importance for
instigating the project and to a large extent explains its initial drive. On the other hand, the history
of Europe since WWII is hardly a one-way ‘civilisation process’. It is my claim that understanding
the processes beyond the short utopia of universal human rights at the establishment of the UN,
requires relating the nascent practices of human rights to some of the other dominant issues of the
time.
The political, intellectual and legal polarisations around, for example, the competing
orthodoxies of Cold War, as well as the question of the discontinuation of colonialism, quickly
stalled the international progress of human rights. Tensions, which already existed in European
societies in the battles over fascism of the inter-war period, were in many ways exacerbated after
World War II, making many European States – and particularly France and the UK – key elements
of a larger, highly destructive, geo-political framework during the period (Madsen, forthcoming
2011). Yet, although Europe became a central battleground of both Cold War politics and
decolonisation, the simultaneous but equally radical project of integrating European States in a
common political and legal order escaped these geo-political constraints (Madsen, Forthcoming
2010/11); one might in fact ague that this second process was very much stimulated by the
concurrent geopolitical issues of Cold War and decolonisation. The substantially different initial
17
fates of the Universal Declaration of Human Rights (UDHR) and the European Convention on
Human Rights (ECHR) certainly suggest these divergent international and European developments
of the postwar period.
As argued elsewhere, the making of the ECHR was in many ways a Cold War master plan,
yet it became the backbone for an unprecedented development of a unique European human rights
law (Madsen, 2007). This not only contributed to the construction of the idea of European
integration but, later, also considerably changed national political and legal practices in the area of
human rights. European human rights gained particular momentum when the first Cold War had
been substituted with détente politics and the most violent conflicts of decolonisation were over.
The breakthrough of more autonomous human rights activism inspired by, for example, the British
organisation Amnesty International, as well as the official crowning of the human rights milieu
throughout the 1970s, also provided significant moral support for the ECHR institutions (on
Amnesty, see Buchanan, 2002). The ensuing high profile clashes with first the British legal system
and later the French exemplified the effective rise of a new European human rights doctrine. And,
even the countries that quantitatively could claim to be more in compliance with these new
normative instruments – by having only a low number of cases in Strasbourg – hardly escaped its
effect of normative legal harmonisation in the area of human rights.
Although the legal ‘micro-revolution’ instigated by the institutions in Strasbourg provides
an absolute key narrative in respect to human rights in Europe, an analysis even limited to the rise
of modern human rights in Europe cannot restrict itself to this specific research path. In fact, it is
my claim that understanding even the at first glance limited object of the ECHR necessitates a
broader analysis of the concurrent “stakes” in the manufacturing of the broader subject of modern
human rights in Europe. As suggested above, one obvious supplementary – indeed complimentary –
path to consider in this regard are the many and different civil society investments in the subject-
area: from the rivalling Cold War organisations of the International Commission of Jurists (ICJ) and
the Association internationale des juristes democrates (AIJD) to the emergence of more ‘neutral’
sites of activism such as Amnesty International, and later, the many NGOs forming the
democratisation movement during the 1990s (on the Cold War NGOs, see Tolley, 1994).
Yet another element of central interest in this regard is the changing State practices in the
area of human rights. State interventions in the area are for a number of reasons pivotal for
understanding the progress of the broader subject. As indicated above, this is first of all due to the
very construction of human rights in respect to the State. As both the non-negotiable entitlements of
18
citizens and the legitimation and justification of the modern State, human rights have always
concerned, in one way of the other, the State. Moreover, the claim for the protection of human
rights practically always concerns changing State practices. By being the direct target of NGO
activism, the State has intrinsically been a part of the rise of modern human rights. Moreover, the
State, acting both as a political entity and, through its differentiated departments, in a more
disaggregated fashion, has also been a key player in and by itself. International State strategies –
from formal foreign policies to more subtle State interventions – have had a very considerable
impact on the area. Not only did the State hand over sovereignty – often reluctantly – to these
international bodies and conventions, but it also provided the manpower and legitimacy. On the
internal level, the battle over human rights took the form of a traditional political contest also
engaging NGOs, as well as a battle within the State between institutions and other actors seeking to
adopt and control the changing and increasingly powerful subject of human rights (Simpson, 2004).
These characteristics – the historically constructed position of human rights in the State and human
rights’ standing in the constant struggle over the definition of the State – undoubtedly make the
object of study practically inseparable from an analysis of the transformation of the State.
Yet, as further argued above, any attempt at understanding the interdependency between
State and non-State practices in the area of human rights almost immediately raises the question of
the role and position of law and jurists as respectively the means and the agents of the rise of
modern human rights. By being the officialised experts of the law, as well as political actors
particularly well-situated in respect to the specific forms of politics and ideology inherent to human
rights, jurists have carved out a highly central intermediary position for themselves precisely
between the State and civil society. Further underlining their particular position in this regard,
jurists’ preferred means of action, the law, has made them have a twin-effect on the structuration of
the subject-area: They have long acted as political advocates of human rights, yet at one and the
same time their practices have contributed to a ‘neutralisation’ and autonomisation of this form of
politics and quasi-law by their attachment to the rule of law; in socio-legal terms, jurists have
helped differentiate and transform the political discourses of human rights into legal discourse and
eventually law, as well as they have used their specific legal savoir-faire to continuously enlarge
and promote the political subject of human rights.
What I am alluding to with this outline of an empirical analysis of some of the key
dynamics of the rise of the field of human rights is that the processes generally took place within a
specific social space, which was marked by particular positions and forces of which many pre-
19
existed the modern momentum of human rights. In other words, the history of human rights reveals
the deeply societal embeddedness of the mobilisations in the area and how these structures greatly
influenced the course of the evolution of the field. The objective of the reflexive sociology of
human rights put forward is precisely to provide the analytical framework for rethinking
‘relationally’ the specific social field of human rights in regard to both its internal functioning and
its relations with other fields. Such an analysis establishes the objective relations between the
positions and their properties by drawing up a cartography of the field and then use more extensive
research methods for analysing them in depth, that is an analysis of the field’s general structures
and the particularities of the positions within it. And different from much research in the area, such
an analysis does not prescribe the contents of the field of human rights but merely provides a
reflexive matrix for exploring them empirically. Its only prescription is that the study of human
rights can gain considerably from a dose of sociological imagination and systematisation. That
entails however asking the usual, and for some trivial, question of sociology, including not only
questions on power and legitimacy but also social class, identity and other general social structures.
If human rights is part of society, it will inevitably also be influenced such issues.
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Concepts of Justice in Legal Research - Int.

Retfærd Conference, 16-17 September 2010

Justice Reconsidered: The Need for an “Epistemological Break”

Mikael Rask Madsen∗

Human Rights as Research Object: The Need for an Epistemological Break

Field Analysis of Human Rights

Network and Field

The Ideological Divides of Human Rights

Sociology of the Juridification and Legitimation of Human Rights

Conclusion: In Search of Human Rights

Madsen, M.R. (2002) '‘Legal’Field’ or Legal Network’? A Bourdieusian Critique of Manuel

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