[Editor’s Note: Over the next several weeks, the ICONnect blog is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]
Ratna Kapur. Gender, Alterity and Human Rights: Freedom in a Fishbowl. Edward Elgar Publishing, 2018 (hardback). Pp. 328. £90.00. ISBN: 9781788112529.
Reviewed by Cara Röhner
International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 647–651, https://doi.org/10.1093/icon/moaa041
In her book Gender, Alterity and Human Rights: Freedom in a Fishbowl, Ratna Kapur offers a powerful critique of human rights and liberal freedom that challenges our certainties of human rights advocacy and critical legal projects. She argues that freedom in human rights is linked to a liberal conception of the subject that understands freedom as something external to the subject and negatively directed against the state. Drawing on numerous examples, she shows that this liberal understanding of the subject, freedom, and human rights has not brought the promised freedom to the subaltern, postcolonial, and/or female subject as the “Other” but instead has produced unfreedom. Therefore, she wants to move beyond the “fishbowl of liberal freedom” and explore non-liberal alternative registers informed mainly by Buddhist and Indian philosophy in order to achieve lasting freedom for the disenfranchised.
Kapur develops her compelling argument in seven chapters. In the first four chapters, she maps out her fundamental critique of human rights in the context of hegemonic normative orders of gender, sexuality, and religion. Kapur critiques liberal freedom because it is based on two constitutive assumptions: first, that freedom is “a progressive, external pursuit, which is owned or possessed”; and second, that freedom is “accessed through the consciously exerted will of a finite, thinking, individual subject” (at 27). These features, according to Kapur, obscure the ways in which human rights—as the transnational expression of liberal freedom—produce unfreedom: they serve as means to advance political and economic agendas and promote the freedom of the neoliberal market and the consumer-subject. They thereby bring about a governance regime that regulates and disciplines the subject in the Foucauldian sense. Discussing some very different accounts of human rights—including those of Judith Shklar, Richard Rorty, Michael Ignatieff, and Martha Fineman—Kapur argues that human rights are not a successful tool for reducing suffering and cruelty but are linked to a specific liberal way of being and being free. That becomes especially evident in encounters with cultural differences in the post-9/11 era. Instead of being truly universal, human rights produce, in the context of power relations, colonial legacies and military interventions, specific exclusions, and a logic of “othering” that advance a hierarchy of subjects: the abject, vulnerable, or failed subject; the successful rights-bearing subject; and the dangerous subject. Human rights differentiate between who counts as human and who does not. With reference to Judith Butler, Kapur examines which harms and injuries are recognized in human rights as deserving repair and remedy, specifically in relation to sexual subaltern lives. Furthermore, Kapur argues that the pursuit of rights requires compliance with hegemonic normative orders, resulting, for example, in rescuing the “other” woman from the native man, reproducing norms of sexuality, womanhood, and gender, and normalizing the LGBTQ subject.
Discussing the issue of violence against women, Kapur also demonstrates how gender as a category is structured in human rights law and how it is aligned with hegemonic projects. Rather than leading to effective measures which act to reduce violence against women, articulations of gendered violence as a violation of women’s rights have been taken up by the security discourse as a justification for criminal law reforms and public surveillance, and by nationalist narratives for advancing a specific national identity or a new kind of gender imperialism. The discourses on freedom from sexualized violence have thus not unsettled and expanded but rather reproduced the hegemonic categories of gender, sex, and sexuality as well as the First/Third World divide—resulting in regulatory governance power, in other words: sexing and heterosexing the subaltern subject, controlling her body and behavior, and negating her agency.
Kapur concludes her critique of human rights by elaborating on the production of gendered alterity or the Muslim “Other” in the European “veil” cases. Human rights as a freedom project, Kapur argues, works alongside the assumption that traditional cultures and non-Christian religions are regressive features of the developing world and central obstacles to the universal right to gender equality. In this sense, veiling is regarded as a cultural practice always subjugating women and erasing their agency. Ignoring the wearer’s worldview and the possibility of experiencing freedom through the veil, freedom is only understood in the liberal sense as freedom from the veil. For the French context, Kapur shows that the legal bans on religious symbols in public schools and burqas in public spaces are postcolonial practices of unveiling Muslim women that advance conformity to the “proper” unveiled French citizen and pressurize “other” women—through stigma, penalties, and fines—to assimilate to the majority culture. Kapur thus reveals the coercive side of the secular state in relation to the “Other,” and points out the bigotry with regard to state support for Christian schools and Christian holidays that are not perceived as threats to the secularism of the French Republic.
Facing the fact that human rights have not brought lasting freedom, Kapur elaborates (in Chapter 5) counter-hegemonic human rights scholarship and its reluctance to let go of the rights project. She discusses the work of Costas Douzinas, Bonaventura de Sousa Santos, and Wendy Brown to illustrate that these scholars try to reform, renew, and reinvest in human rights as an emancipatory freedom project, but stay within the liberal fishbowl and do not explore radical alternatives to the neoliberal register. Kapur argues that, in order to achieve meaningful freedom, we have to pursue an epistemological shift that opens up new spaces beyond the liberal fishbowl. In order to do this, Kapur considers feminist affect theory as a starting point, since this approach emphasizes how freedom is experienced in everyday life. Scholars of affect theory draw attention to the ways in which subjects survive in everyday life, and argue for the granular quality of daily life, of the intimacies and immediacies of ordinary experiences. Eve Sedgwick, for example, developed the idea of a “reparative turn,” which:
identifies the different ways in which less enfranchised and illegible communities empower themselves through building small worlds of nourishment and finding unconventional ways to affirm themselves within a dominant culture that has not always been, or is not, supportive of them (at 167).
Sedgwick offers an inclusive delineation of agency that shows how practices of freedom can be found in everyday life rather than in discourses of critique. Nevertheless, for Kapur this approach contributes to what she calls—with reference to Lauren Berlant—a “cruel optimism,” which means the persistent faith of precarious communities that their suffering may be alleviated through human rights.
In the last two chapters of her book, Kapur develops her conception of non-liberal freedom. As a way out of the (neo)liberal fishbowl, she formulates a highly creative epistemology of non-dualism as a new emancipatory legal project. She wants to outline a new understanding of the subject and freedom “through a self-reflective turn inwards and by centering the relationship between the self and the turn inwards as the fundamental requirement for shaping such freedom” (at 180). In order to elaborate on the non-liberal epistemological dimensions of freedom, Kapur turns to the “minor” work of the Western scholars Eve Sedgwick and Michel Foucault in Chapter 6. Sedgwick critically examines subjectivity and freedom through the non-dualistic rationale of Tibetan (Mahayana) Buddhism, which prioritizes interiority and stresses knowledge in schemas of self-awareness. According to this tradition of Buddhism, the subject is not distinct from consciousness but is rather “a modality of profound and complete interconnectedness, an inextricable aspect of a continuum of awareness that infuses and animates all of existence” (at 187). Consciousness is understood “as the seamless, limitless interrelatedness of all phenomena,” and freedom means “the authentic experience of this absolute interdependence” (at 187, emphasis in original). The duality of body/mind is overcome by a focus on temporality and interdependence, thus by understanding the subject as a continuum.
In the context of the Iranian Revolution, Foucault developed the notion of “political spirituality,” which is also based on a different understanding of subjectivity. According to Foucault, the transformative potential of the Iranian Revolution is rooted in the ideas of Shi’ism, especially in the messianic belief in “justice to come” as articulated by the Iranian thinker Ali Shari’ati. Shari’ati focuses on the practices that enable the transformation of one’s being, living an ethical life on earth and struggling against oppressive power as a way of living differently in preparation for the “justice to come.” Shari’ati’s revolutionary project does not emphasize state or religious institutions, but ethical life practices and a way of living, and thus focuses on new forms of subjectivity. Foucault builds on Shari’ati’s ideas to argue for “political spirituality” as a way to open up a spiritual dimension in politics. Spirituality means a certain way of being and entails “the transformation that the subject must carry out on itself to attain this mode of being” (at 193). Kapur argues that “in this modality, access to freedom is only possible through the transformation of the self” (at 194). As this is a rejection of the sovereign subject of liberalism as well as the public/private divide, this understanding of the self and freedom requires “other ways of thinking and being, which include advancing practices of self-discipline grounded in the modality of evolving self-awareness” (at 194).
In Chapter 7, Kapur explores further aspects of a non-dualist notion of freedom, considering the Indian philosophy of Advaita (“not two”). Building on the work of Adi Sankara, Kapur delineates three fundamentals of the tradition of Advaita: time, the subject, and freedom. While the Western understanding of time is linear and advances the binary opposition between a progressive West and a backward, Eastern “Other,” non-dualism rejects the notion of history as a linear movement and assumes that all dimensions of time require equal attention of the subject through the practice of deep and systematic reflection. To relinquish the linear understanding of time and also the equation of the self with the body enables us to perceive time as disaggregated, so that the self is a witness of time but not itself embedded in time. In non-dualist terms, the self is “the location where all phenomena and their descriptions are simultaneously produced and available for ontological resolution through a process of their true nature being discerned” (at 221). Thus, the subject emancipates from the state of unfreedom “through discernment that is directed at what one is, rather than what one knows” (at 221, emphasis in original). Understanding the self as pure and unlimited consciousness, non-dualism delinks the self from all attributes and labels. For the context of human rights advocacy and freedom, Kapur argues for a shift from doing (good) action to a position of reflecting based on discerning what it means to be. Conscious, self-reflective practices should, according to Kapur, be an “essential ingredient” (at 227) in human rights advocacy and freedom projects, since they have the potential to correct the permanent error of “othering.” In contrast to the liberal understanding, freedom is, in the perspective of non-dualism, not an external project but something that needs self-inquiry:
The goal of freedom in non-dualism is not confined to material embodiment and everything associated with it, in terms of action and doing, or to the normative realm (resistance, disruption and rearrangement of the social). Rather, it is focused on the deeper journey, where committed practices of self-inquiry and self-reflection have the potential to bring about insights and fundamental shifts in awareness (at 229).
During and after undertaking any action, self-inquiry is needed for lasting freedom. Kapur thus argues that in order to achieve freedom, the self has to discern her true intimate state—thereby freeing herself from the notion of the “Other.”
In the epilogue, Kapur offers narratives that exemplify how Indian female poets and transgender persons have used poetry and dance rituals to unsettle and transcend hegemonic norms of gender, sex, and sexuality, and in doing so have pursued another way of being and being free in the world.
The strength of Kapur’s book is her unique attempt to introduce non-Western sources into the search for meaningful freedom. She gives visibility to non-liberal traditions and vocabularies in human rights or critical legal scholarship and broadens the discourse on freedom. From a Western standpoint that is ignorant of Buddhism and Indian philosophy and culture, her inquiry into religious sources of non-dualism is not always easy to follow; however, she convincingly demonstrates that there are alternative registers outside the liberal fishbowl worth exploring. Although Kapur’s understanding of freedom and subjectivity is thought-provoking and highly innovative, it nevertheless leads to the following critical questions:
- Does not the assumption of a discernible, true self rely on essentialism and foundationalism?
- Which normative principles guide the process of self-inquiry?
- How do self-reflective practices of discernment translate into concrete struggles against oppression and unfreedom?
- How can they be translated into collective action?
- Is a turn inward enough for seeking freedom or do we always need to translate self-reflection into concrete actions?
With the narratives at the end of her book, she hints at subversive practices in poetry and dance rituals because they break up existing norms and enact a different way of being. Beyond this idea, one could ask: What will practices of self-inquiry look like, especially concerning legal and political struggles for a better world?
With regard to human rights, Kapur’s strength is that she does not devalue human rights per se or follow a path of cultural relativism. Rather, she states that human rights address only specific forms of subjectivity, vulnerability, agency, and freedom and are therefore not constitutive of lasting freedom. To show what an alternative epistemology of meaningful freedom could look like is Kapur’s fundamental contribution to the critical legal project. Her book is a must-read for every human rights scholar and legal theorist.
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