Abstract
In this chapter, it is argued that the recent attempts at re-establishing the significance of the differences between people, rather than reducing humanity to a universality of sameness in the name of, for example, justifying human rights, run into the same problems that plagued a complete disregard for difference. This is the result, it is argued, of continuing to posit difference within a system of meaning fixed by a central organising principle – precisely the way humanity was fixed by the emphasis on sameness. Using Derrida’s critique of the “structurality” of the structure of such fixed systems, it is argued that difference and diversity can only be approached meaningfully if it is allowed to reside within a system of meaning without an organising principle. The theory of complexity provides just such a systems approach. It is argued that in order to retain the tension between identity and difference, we must give up on the notion of a static system of difference and embrace the uncertainty of a dynamic, ever-changing system of difference. This argument is applied to the system of law and particularly its engagement with diversity both in the broader sense of rights analysis and the particular engagement with the difference between formal and substantive equality.
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Notes
- 1.
See for example De Sousa Santos (2006), Harris-Short (2003) and Douzinas (2007). Kofi Annan concluded that “Tolerance and mercy have always and in all cultures been ideals of government rule and human behaviour. Today, we call these values human rights” (Statement on the fiftieth anniversary of the Universal Declaration on Human Rights (UDHR), 10 December 1997).
- 2.
While minority rights were already protected in theory in article 27 of the International Covenant on Civil and Political Rights (ICCPR) approved in 1966 and entering into force in 1976, this right has only recently entered the “mainstream”. See for example the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities GA Resolution 47/135, 18 December 1992; United Nations Human Rights Fact Sheet no. 18 (Rev. 1) Minority Rights (1998).
- 3.
South African Constitution (Act 106 of 1996) and the 1995 Federal Democratic Republic of Ethiopia Constitution.
- 4.
Adopted by the Organisation for African Unity on 27 June 1981 and entered into force on 21 October 1986. It has been ratified by all 53 member states to the African Union.
- 5.
See Distiller and Steyn (2004).
- 6.
- 7.
This approach is said to have underscored the formulation of the UDHR. Kofi Annan, for example, in a statement on the fiftieth anniversary of the UDHR, said “Human rights, properly understood and justly interpreted, are foreign to no culture and native to all nations[…]The principles enshrined in the Universal Declaration of Human Rights are deeply rooted in the history of humankind. They can be found in the teachings of all the world’s great cultural and religious traditions.” In the same vein, Mary Robinson, UN High Commissioner for Human Rights at the time, has said that “the travaux preparatoires [of the UDHR] are there to remind us that the authors sought to reflect in their work the differing cultural traditions in the world. The result is a distillation of many values inherent in the world’s major legal systems and religious beliefs[…]”.
- 8.
See for example Cornell (1992).
- 9.
The Other as a philosophical term is often associated with the work of Emmanuel Levinas. Once the subject lost its central position, the subject-object relation became problematic. The object could no longer be understood in terms of the subject. This led Levinas to call the object the “Other”, to articulate his understanding of this object as being completely other and therefore outside the system. As Gibson explains, “…the other whom I encounter is always radically in excess of what my ego, cognitive powers, consciousness or intuitions would make of her or him. The other always and definitively overflows the frame in which I would seek to enclose the other” (Gibson 1999: 25). Seeking to enclose the other in such a frame is committing violence and thus being unethical.
- 10.
This approach is still prevalent in the debate about the justification for human rights and their enforceability in international law.
- 11.
This difference has been discussed in some depth by the South African Constitutional Court and is an insight that underlies their eqality jurisprudence. See for example, National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC); Minister of Finance v Van Heerden 2004 (6) SA 121 (CC); President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC).
- 12.
See also Article 1 of the UDHR
- 13.
“Terrorist Attacks on London fail to stop G8 climate talks” http://www.ens-newswire.com/ens/jul2005 [accessed 20 January 2008].
- 14.
See also Sen (2006).
- 15.
Minow (1990) also argues for understanding law subjects as relational identities.
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Wicomb, W. (2010). The Complexity of Difference, Ethics and the Law. In: Cilliers, P., Preiser, R. (eds) Complexity, Difference and Identity. Issues in Business Ethics, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9187-1_7
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