FARID SAMIR BENAVIDES VANEGAS

HERMENEUTICAL VIOLENCE: HUMAN RIGHTS, LAW,

AND THE CONSTITUTION OF A GLOBAL IDENTITYw

ABSTRACT. In this paper I want to analyze the process of denationalization of the

law, to show how the globalization of the law can be considered as a new form of
imperial control, but this time, labeled as acting for the welfare of its victims. In the
first part I will analyze the national character of the law and show how it was used as
an imperialistic instrument for the benefit of the imperial powers. In the second part I
will show how the discourse of human rights and its universality has been the base to
deny indigenous communities their right to define their own identity and how this
discourse was used to destroy the old conception of sovereignty. The globalization of
human rights implies the imposition of a western conception of rights, regardless of
the contextual conception of the indigenous people. The discourse of human rights is
part of a hermeneutical violence.

1. Introduction

Human Rights have always been the symbol of equality and human
redemption. When people think about them, what they see is the way
to improve humanity and resist the power of states. In the liberal
tradition, human rights are considered a victory against the state.
From this perspective, human rights are universal and they symbolize
what identify humanity as such. However, human rights can also be
part of a discourse of violence, that is, a discourse of hermeneutical
violence in which the interpretation of the world of a particular group
is imposed as the interpretation as such. That means that the symbol
of equality can at the same time be a symbol of oppression. Western
modernity is based on the constitution of a liberal identity through
the use of symbols. The work of Jean Baudrillard has shown us that
the consumer society is the extension of the constitution of the sub-
w
This paper is part of a broader project. In that project I analyze the emancipatory
character of human rights in Colombia and how NGOs have used it to resist the
power of the state and to introduce a more emancipatory agenda. I also analyze the
commodification of indigenous lands and the role of human rights on that process.
In this paper I want to focus on the constitutive character of the discourse of human
rights without taking into account the other aspects I touch in the broader project.
International Journal for the Semiotics of Law
Revue Internationale de Se´miotique Juridique 17: 391–418, 2004.

2004 Kluwer Academic Publishers. Printed in the Netherlands.
392 FARID SAMIR BENAVIDES VANEGAS

jects in the capitalist world. In the same way that there was a process
of constitution of labor in the 18th and 19th centuries, in the 20th
century the process was accompanied by a constitution of the subject
as a consumer. Human rights have been part of this process of
constitution of a liberal identity: to be a citizen means to be a con-
sumer.1 In this way, ‘‘consumption is not the free activity of an
autonomous subject; rather, it is constrained by the order of pro-
duction, which gives rise and manages a system of needs, and by the
order of signification, which determines the relative social prestige
and value of the system of goods’’.2 In the same way that Baudrillard
proposes to understand the sign value of commodities, in this paper I
want to show the sign value of human rights. They are more than a
victory against power, they have a constitutive character and they can
be part of a hermeneutical violence.3 What he says about consumer
society and the world of commodities can be easily applied to a
western conception of human rights:
‘‘Far from the individual expressing his needs in the economic system, it is the
economic system that induces the individual function and the parallel functionality
of objects and needs. The individual is an ideological structure, a historical form
correlative with the commodity form (exchange value) and the object form (use
value). The individual is nothing but the subject thought in economic terms,
rethought, simplified and abstracted by the economy. The entire history of con-
sciousness and ethics (all the categories of occidental psychometaphysics) is only the
history of the political economy of the subject’’.4

The so-called superiority of the United States is their freedoms.

The rhetoric after 9/11 showed that the average American believed
that the attacks were the result of envy for American liberties and
civilization. This discourse of a clash of civilization is based on this
idea of human rights a properly western and the civilizing mission as
the task of the western white man who need to civilize the world by
bringing development and human rights. In this way human rights

1
Jean Baudrillard, The Consumer Society: Myths and Structures (London: Sage,
1998); Nestor Garcia Canclini, Hybrid Cultures: Strategies for Entering and Leaving
Modernity (Minneapolis: University of Minnesota Press, 1995).
2
Douglas Kellner, Jean Baudrillard. From Marxism to Postmodernism and Beyond
(Stanford: Stanford University Press, 1989) at 17. See also Mark Gottdiener, ‘‘The
System of Objects and the Commodification of Everyday Life: The Early Baudril-
lard,’’ in Baudrilard: A Critical Reader, ed. Douglas Kellner (Oxford: Blackwell,
1994).
3
Jean Baudrillard, For a Critique of a Political Economy of Sign (St Louis: Telos,
1981).
4
Baudrillard as in Kellner (1989), Supra n. 2, at 24.
 HERMENEUTICAL VIOLENCE 393

are part of this process of westernization of the world. We witness

this process of the imposition of a liberal identity on a global scale as
part of a process of ‘‘humanization’’ of the world. We see that wars
are launched for the defense of human rights; humanitarian wars are
part of the order of the day.
Nietzsche analyzes the origin of morality but also the value of
morality. In his analysis, he demonstrates that morality is the result
of the separation between the person and his actions. But this also
means that the person is not the one to be judged but his actions.
According to Nietzsche this morality is the consequence that the
weak had nothing that allows them to be called good. Since they were
slave and lack all the qualities of the masters, they converted all their
characteristics as slaves in virtues. ‘‘It is only with the decline of
aristocratic values-judgments that this whole antithesis between
‘egoistic’ and ‘unegoistic’ forces itself more and more on man’s
conscience – it is, to use my language, the herd instinct which, with
that, finally gets its word in (and makes words)’’.5 It is the demise of
the aristocracy that made possible the creation of modern morality.
Ancient morality was based on the idea of status, and not on the idea
of deeds. In modernity the separation between the status and the
actions allowed the existence of the concept of rights. Rights are the
triumph of the weak against the powerful. But the weak is not
the man without property, it is the bourgeois, as it is in Marx.
Nietzsche’s definition of morality shows that those with the power
to define the rules of morality can exercise violence too. According to
Nietzsche, the social contract is fraud by violence. From his point of
view, there is hermeneutical violence in the imposition of contingent
signifying regimes. That is to say, there is violence when we present as
universal and permanent what is only contextual and contingent. The
universal conception of human rights is a way to present as universal
what it is only contextual. Scholars like Peter Fitzpatrick have de-
nounced this hermeneutical violence when they show that the law, with
its abstract character, it is just the imperialistic imposition of local
meaning as if it were universal. I want to analyze the role of the law in
the constitution of hermeneutical violence and how that violence is
used as a constitutional (legal) alternative to the constitution of reality.
In this paper I want to analyze the process of denationalization of
the law, to show how the globalization of the law can be considered as

5
Friedrick Nietzsche, On the Genealogy of Morality (Cambridge: Cambridge
University Press, 1994) and Hanssen, Beatrice, Critique of Violence. Between Post
Structuralism and Critical Theory (Rutledge: London, 2000).
394 FARID SAMIR BENAVIDES VANEGAS

a new form of imperial control, but this time, labeled as acting for the
welfare of its victims. In the first part I will analyze the national
character of the law and show how it was used as an imperialistic
instrument for the benefit of the imperial powers. In the second part I
will show how the discourse of human rights and its universality has
been the base to deny indigenous communities their right to define
their own identity and how this discourse was used to destroy the old
conception of sovereignty. Using Fitzpatrick ideas, I will argue that
the law has been a tool to transform the identities of subjugated
peoples and to impose a white and western conception of justice. I will
show that the discourse of human rights are the new tool that has been
used to impose this conception through the analysis of recent decisions
of the Colombian Constitutional Court. The globalization of human
rights implies the imposition of a western conception of rights,
regardless of the contextual conception of the indigenous people. At
the end I will show that the process of globalization of the law is
nothing different but a process of a western conception of human
rights, therefore, it is the globalization of a local conception of rights,
in opposition of the indigenous conception of rights these communi-
ties have. In this case, I will say that the discourse of human rights is
part of the second imposition of modernity, one in which human
rights are globalized and denying any alternative to modernity or even
any alternative modernity.6

2. Human Rights as Global Justice

One of the products of this globalized justice is the International

Criminal Court. On April 11th 2002, several European countries
ratified the Rome Statute, completing in that way the sixty ratifica-
tions required in order to coming into force. This will be the first truly
international permanent criminal tribunal, representing a great
transformation in international law.7 To some scholars, like Cherif

6
Arturo Escobar, ‘‘Anthropology and the Development Encounter: The Making
and Marketing of Development Anthropology’’, American Ethnologist 18/4 (1991),
658–682; Enrique Dussel, 1492. El encubrimiento del otro. El origen del mito de la
modernidad (Bogota, Anthropos, 1992); Enrique Dussel, Etica de la Liberacion en la
edad de la globalizacion y de la exclusion (Madrid: Trotta, 1998); Enrique Dussel, The
Underside of Modernity. Apel, Ricoeur Rorty, Taylor and the Philosophy of Liberation
(New Jersey: Humanities Press, 1996); and Anibal Quijano, ‘‘Coloniality of Power,
Eurocentrism, and Latin America’’, Nepantla. Views from the South 1/3 (2000).
7
Rwanda and Yugoslavia were ad-hoc tribunals and with a limited scope in time.
 HERMENEUTICAL VIOLENCE 395

Bassiouni, this is an important step in the globalization of law and

justice, because those countries that are unwilling or unable to pro-
viding justice for this sort of crimes will have to surrender their
jurisdiction in favor of an international tribunal that will bring before
justice the culprits of the commission of the gravest kind of crimes, as
it has been the case with the trial of former Yugoslavian president,
Slobodan Milosevic.8 To others, like American Senator Jesse Helms,
the international Court will affect United States’ sovereignty and its
condition as world’s Hegemon.9
Despite all the criticism, the International Criminal Court is just
the result of a twofold process: on the one hand, at the international
level, the world has witnessed the creation of different regional
institutions with the task of protecting human rights from the attacks
of states. The Inter-American Court of Human Rights and the
European Court of Human Rights are part of that process of dena-
tionalization of justice, with the purpose of guaranteeing individuals
those rights recognized in the Universal Declaration of Human
Rights and other regional instruments. On the other hand, while
regional institutions were being developed, at the national level the
structure of the legal system was being changed. As part of
the movement Law and Development, United States promoted the
transformation of the legal system of the Third World. Despite the
failure of that process, allowing the justification of authoritarian rule
in countries like Brazil, nowadays United States, through the Agency
for International Development AID, is promoting the adoption of
the adversarial system in developing countries and the homogeniza-
tion of criminal Law, under the flag of struggle against drugs,
terrorism and illegal immigration.10
8
Cherif M. Bassiouni, ‘‘Policy Perspective Favoring the Establishment of the
International Criminal Court’’, Journal of International Affairs 52/2 (1999).
9
Jesse Helms, Personal View Jesse Helms: We must slay this monster Voting against
the International Criminal Court is not enough. The US should try to bring it down. in
http://www.derechos.org/nizkor/impu/tpi/helms.html, last visited January 10, 2004.
10
James Gardner, Legal Imperialism. American Lawyers and Foreign Aid in Latin
America (Madison: The University of Wisconsin Press, 1980); Boaventura de Sousa
Santos, ‘‘The Gatt of Law and Democracy: (Mis) Trusting the Global Reform of
Courts’’, in Globalization of Legal Cultures, ed. Johaness Feest (Oñati: Instituto
Internacional de Sociologia del Derecho, 1987); Roberto Bergalli, ‘‘Globalizacion y
Control de la Ciudad. Fordismo y Disciplina – Post Fordismo y Control Punitivo’’,
in www.ub.es; Sergio Moccia, La perenne Emergenza. Tendenze Autoritarie nel Sis-
tema Penale. 2a. ed. (Napoli: Edizione Scientifiche Italiane, 1997) and Jesus Maria
Silva Sánchez, La Expansión del Derecho Penal. Aspectos de la Polı´tica Criminal En
las Sociedades Post-Industriales (Madrid: Cuadernos Civitas, 1999).
396 FARID SAMIR BENAVIDES VANEGAS

The process of globalization of criminal law means that the na-

tion-state has lost its centrality in the definition of crimes and in the
solution of them.11 That is, the power of naming has left the national
arena to go to the international arena, where western powers and
western symbols shape the problems of the world. New types of
criminality, like pornography on the Internet, international terrorism,
drug traffic, traffic of immigrants, crimes against humanity, crimes of
war, and genocide, have been defined outside the nation state. The
measures that have been taken to solve those social problems do not
take into account the national borders; rather those borders are seen
as an obstacle to control this new kind of criminality. In the new
world legal order the nation state has become just a mediator in the
task of enforcing the [inter] national law.12
The sovereignty of the nation state to produce the law has been
affected by the process by which the ‘‘power to define’’ has been
passed from the national arena to international institutions.13 This
process of internationalization will end, with institutions like the
International Criminal Court, in a process of globalization of the law,
understood in the terms of a law produced from global institutions of
governance without the requirements of approval from the nation
states. The construction of a universal conception of human rights
and the coupling concept of jus cogens are steps in this direction.14
However, this process is not only the result of a globalizing pro-
cess. It is true that the globalization of the economy and the existence
of the institutions of governance have made it possible. But without
the special nature of the law and its universalizing character it could
not have taken place or at least not in the same manner. In modern
11
See for instance the extradition via fax in Europe or the European police space
that allows the persecution against terrorism in Europe regardless any boundary.
12
This is what has been called governance without government. See Antonio Negri
and Michael Hardt, Empire (Cambridge: Harvard University Press, 2001) and
Danilo Zolo, Cosmopolis (Polity Press, 1997).
13
This is the power of naming, that is, the power of symbolically constituting
reality. Pierre Bourdieu, ‘‘The Force of Law: Towards a Sociology of the Juridical
Field’’, Hastings Law Journal 38/5 (1987).
14
According to this doctrine, once a human right or an international instrument is
labeled as jus cogens, it has to be enforced regardless the will of the state in which
that instrument has to be enforced. The concept of jus cogens and its history is
analyzed by Bassiouni in his analysis of the Barcelona Traction Case, and by the
Colombian Constitutional Court and its concept of ‘‘block of constitutionality’’ in
the decision that incorporated II Protocol of 1977 additional to the 1949 Geneva
Convention. This concept will prove to be useful in the imposition of the white
discourse of human rights to indigenous communities in Colombia.
 HERMENEUTICAL VIOLENCE 397

times the law was understood as the product of the national state, it
was identified with it. But its structure made possible its extension to
other places and it allowed the domination of non-European coun-
tries.
Law is a central part of modernity. As modern science, modern
law can be defined in terms of rationality, calculability, predictability
and control. But the law also has been placed in a determined terri-
tory. Modern law shares with modern subjects its placement in the
boundaries of the nation state, and therefore the law has been asso-
ciated to a modern sovereign,15 that is, that one who has the power
over a territory and to define right and wrong in that territory.16 In
this context international law is just the law that nation states have
accepted to apply in its relations to each other, that is, it is just the
compact of multiple sovereigns.
With the appearance of institutions of governance and the dis-
course of universality, the law lost its national character and the
nation-state its ability to enforce it. This process represented the
imposition of a global identity from above, because local communi-
ties were defined in abstract terms and their identity was interpreted
in the terms of the global discourse. The law and its abstract char-
acter was a tool that proved to be useful in the universalization of
identities and the conflation of local differences. First this process had
the face of imperialism, and then it had the face of Empire, to use
Negri’s words.17
The deterritorialization of the law implied the loss of place of the
sovereign. Crimes were not defined in national parliaments, but in
meetings of the United Nations in Vienna, New York or Rome.18
15
On the concept of sovereignty, see Carl Schmitt, The Nomos of the Earth in the
International Law of the Jus Publicum Europaeum (New York: Telos Press, 2003);
Carl Schmitt, Political Theology. Four Chapters on the Concept of Sovereignty
(Cambridge: MIT, 1985); Carl Schmitt, The Concept of the Political (New Bruns-
wick/New Jersey: Rutger University Press, 1975); and Heinz Klug, Constituting
Democracy: Law, Globalization and South African Political Reconstruction (Cam-
bridge: Cambridge University Press, 2000).
16
‘‘The Classic Definition Given by Austrian jurist Hans Kelsen is that the law is
Command Plus Coercion,’’ in Pure Theory of Law, ed. Hans Kelsen (Berkeley:
University of California Press, 1967) and Wolfgang Schild, Las Teorı´as Puras del
Derecho (Bogotá: Temis, 1983).
17
Saskia Sassen showed in a lecture at the University of Massachusetts, May 2nd
2002, that women’s identity is transformed by international law. They become illegal
migrants and therefore criminals subject to justice.
18
Convention against Transnational Crimes. Vienna 1999–2000; Rome Statute of
the ICC, june 18th 1998, 1988 Vienna Convention, etc.
398 FARID SAMIR BENAVIDES VANEGAS

Schmitt has written that he who is the sovereign defines the exception
and the norm,19 and if we applied this concept to the current situation
we have to conclude that the nation-state is no longer the sovereign
because it defines neither the exception nor the norm,20 which comes
defined from those institutions of global governance like the Security
Council of the UN and the United Nations Secretary. Summarizing,
the lost of territoriality of the law has meant the lost of sovereignty of
the nation-state. Sovereignty has become placeless but even more
effective.21
One important feature in this process of denationalization of the
law and the establishment of a new sovereign has been the discourse
of human rights, because they have come to shape a new conception
of the law that can be applied regardless national sovereignty. The
protection of human rights has transformed state relations as they
were after the Westfalia peace and WWII.22 Through the use of a
language of protection of human rights, the core states have been
eager to intervene in the internal affairs of many countries but, on the
opposite side, the discourse of sovereignty has been used to allow
genocides, as in Rwanda. Human Rights and Humanitarian wars are
part of the new panorama of a legal global culture. According to
Negri and Hardt, ‘‘what stands behind this intervention is not just a
permanent state of emergency and exception, but a permanent state
19
Schmitt (1975) and Schmitt (1985), Supra n. 15.
20
To Carl Schmitt sovereign is he who decides on the exception. This is a pure
decision that is not derived from any norm. Moreover, the sovereign decides the
extension of the exception and therefore the existence of the norm. He puts himself in
a position outside the law to define what the law is. ‘‘Although he stands outside the
normally valid legal system, he nevertheless belongs to it, for it is he who must decide
whether the constitution needs to be suspended in its entirety’’, Schmitt (1985), Supra
n. 15, at 5.
21
The recent war in Iraq could be interpreted as the increasing of power of the
United State as the new Empire of the world. However, I think that the war shows
that the United States is not the Hegemon anymore and it has to appeal to military
force to keep its power. The role of Europe and the United Nations show how
hegemonic and constitutive the discourse of human rights is. Europe has been willing
to go to the war when human rights are at stake, and in the United States many
people supported the war not based on defensive reasons but on humanitarian ones.
For the role of the US as the hegemon of the world, see Giovanni Arrighi, The Long
Twentieth Century (London: Verso, 1994).
22
About the characteristics of the Westfalia model and the United Nations model
see Zolo (1997). Supra n. 8 at 94–97. Once the League of Nations was created the
Westfalia order changed into an international order. According to Negri/Hardt this
order is now in crisis, giving room to a new imperial order. Negri/Hardt (2001).
Supra n. 12 at 4.
 HERMENEUTICAL VIOLENCE 399

of emergency and exception justified by the appeal to essential values

of justice. In other words, the right of the police is legitimated by
universal values’’.23
However, the law has never been applied only nationally and, of
course, it has not been applied without contestation. Since the law
was tied to the nation state, the role of the law was precisely to define
and constitute the identity of the nation that is taking part in that
state.24As Fitzpatrick has demonstrated, the law has been used as an
instrument of the domination not only of a class over another, as in
the Marxist tradition, but mainly as a tool for the imperial coloni-
zation of different countries.25According to Fitzpatrick the law has
been the tool for the denial of the national traditions and also of the
destruction of the national identity through the imposition of a new
identity through the law.26 The English nation state, for example,
exported its law and its Englishness and extended this perception as
the epitome of the British Empire, even though those features were
part of only a nation that was not precisely homogeneous.27 Human
rights, through the nation-state, have created a global identity, that
is, a liberal identity that denies the particularities of local commu-
nities in order to make them citizens or individuals.
Globalization is then not only about the extension of capitalism
all around the world or the imposition of a neo-liberal conception of
the economy to all the countries in the world. The process of
globalization can also be analyzed through the role the law plays in
the construction of global identities,28 that is to say, the way people
is defined and shaped through the law.29 Through the universal
conception of human rights the internal constitution of the states
23
Negri/Hardt (2001), Supra n. 12, at 18.
24
Dario Melossi, The State of Social Control : A Sociological Study of Concepts of
State and Social Control in the Making of Democracy (New York: St. Martin’s Press,
1990).
25
Peter Fitzpatrick, The Mythology of the Modern Law (London: Routledge,
1992).
26
On this topic it can be seen the case of Hawaii in Sally Merry, Colonizing Hawaii
(Princenton, NJ: Princeton University Press, 2000).
27
Peter Fitzpatrick, ‘‘Introduction’’, in Nationalism, Racism and the Rule of Law,
ed. Peter Fitzpatrick (Aldershot: Dartomouth, 1995). at 17.
28
Eve Darian Smith, Bridging Divides: The Channel Tunnel and English Legal
Identity in New Europe, (Berkeley: University of California Press, 1999).
29
Efren Rivera Ramos, The Legal Construction of Identity (Washington: American
Psychological Association, 2001); and Maria Teresa Sierra, ‘‘Indian Rights and
Customary Law in Mexico: A Study of the Nahuas in the Sierra de Puebla’’, Law and
Society Review 29 (2000).
400 FARID SAMIR BENAVIDES VANEGAS

can be changed, as it was the case in South Africa, but also it can
deny and discredit national and indigenous tradition, becoming a
new way of imperial imposition of the law.30 In the language of
governmentality, we can say that the juridical that was present in the
imperialistic character of the law, with institutions like the prison
and the school, has been replaced by global control. Human rights
are part of a governmental power that not only disciplines but also
constitutes.31

3. The Nation-state and the Law

The law can be analyzed from the standpoint that highlights its
racial character and the imposition of the values of a group of
people. A general conception about the law is that it is abstract and
general, and that is the only way to be applied in order to be equal
and respectful of the rights of people. According to those concep-
tions about the law, the only way of respecting the differences is by
denying them under the pure form of law. However, this conception
of the law proved being a tool to impose the conceptions and power
of a class over another. Through its universal character the law
could be imposed without showing its class nature.32 But the law is
part also of another myth. What I want to analyze here is the
character of the law as a national law, in order to show what is at
stake under globalization. My purpose is to show that under the
myth of the law, imperial states imposed their ideas about subjects,
that is, they construed the subordinated subject through the law and
made him/her accept that condition. In other words, the universal

30
Klug, Heinz (2000), Supra n. 15, Boaventura De Sousa Santos, Globalización del
Derecho (Bogotá: Universidad Nacional de Colombia/ILSA, 1999). I want to use
Negri’s distinction between imperialism and Empire, because the former is the
imposition of national law, like the British case, whereas the latter is the imposition
of global law through institutions of global governance.
31
Colin Gordon, Graham Burchell, and Peter Miller eds. The Foucault Effect.
Studies on Governmentality (Chicago: University of Chicago Press, 1991); Alan Hunt,
Explorations in Law and Society. Towards a Constitutive Theory of Law (New York:
Routledge, 1993), and Victor Tadross, ‘‘Between Governance and Discipline. The
Law and Michel Foucault’’, Oxford Journal of Legal Studies 18 (1998).
32
The law can be analyzed using the concept of ideology as false conscience. But a
more fruitful way of analysis is the concept of ideology and hegemony as Gramsci
expresses it. This concept will help to understand why people could be constituted
through discourses without contesting the defining power of the law.
 HERMENEUTICAL VIOLENCE 401

character of the law constituted their identity as subordinated

subjects.
Modern law is characterized by its formal character and by the
fact that it is understood that there is a sole center where law is
produced, either the Parliament or the judges.33 Given this cen-
trality, the law became tied to the nation-state, that is, there is a
law produced by the state to control a national community. It is
this centralization of the law and the creation of institutions in
charge of administering it that determined the transition from a
feudal society, characterized by a plurality of jurisdictions and
administrations, to a modern society, characterized by a central
state and a central focus that delivers justice.34 The process of
rationalization of the lived-world was made also through the law.
By denying the interference from systems different from the legal
system, the law allowed the creation of its own discourse and its
own structures.35 Modern law has come from being autonomous
law, that is to say, a law characterized by its formality, to be
responsive or reflexive law, that is, a law that incorporates material
elements in its regulation of society but that it includes the
reflexivity to allow each system to govern itself as well. In other
words, the modern law after the crisis of the welfare state had to
face the existence of non-formal elements in its structure and the
33
The multicultural understanding of law is something new. The fact that
anthropology saw the law produced in ‘‘primitive’’ communities cannot mislead us
because that law was understood as a primitive ‘‘law’’ and not as a modern one. That
is, they were considered laws only as a way of speaking. About the different western
conceptions of the law, see Rupert Cross, Precedent in English Law (London:
Clarendon Law Series, 1979); J.A.G. Grifith, The Politics of Judiciary. 3a ed (Lon-
don: Clarendon Paperbacks, 1985); Victoria Iturralde de Sesma, El Precedente en el
Common Law (Madrid: Civitas, 1995); Gwynett Pitt, ‘‘La aplicación de la Ley dentro
de la tradición del Common Law’’, in En La Crisis del Derecho y sus Alternativas
(Madrid: Consejo General del Poder Judicial, 1995); Stephen Toulmin, ‘‘El futuro
del Derecho. Distintas Perspectivas del Estado Nación’’, in La Crisis del Derecho y
sus Alternativas (Madrid: Consejo General del Poder Judicial, 1995); Peter Wesley
Smith, ‘‘Theories of Adjudication and the Status of Stare Decisis’’, in Precedent in
Law, ed. Laurence Goldstein (New York: Clarendon Paperbacks, Oxford University
Press, 1991).
34
Ignacio Aymerich Ojea, ‘‘Contractualismo y Pluralismo Jurı́dico’’, in Derecho y
Sociedad coord. Roberto Bergalli (Valencia: Tirant lo Blanc Libros, 1998).
35
Gunther Teubner, ‘‘Substantive and Reflective Elements in Modern law’’, Law
and Society Review 17/2 (1983). Pierre Bourdieu shows that this process is the result
of the division of labor in society in which the lawyers monopolize their field by using
a special language and becoming the experts in that field. Cfr. Pierre Bourdieu
(1987). Supra n 13.
402 FARID SAMIR BENAVIDES VANEGAS

fact that many legal decisions were taken outside the normal
channels of formal law.
The unity that characterized the law after the French Revolution
was found in the modern state, that is, a state that was conceived as a
nation-state in which the nation was controlled under a central
administration. The state became the center that gave unity to the
plurality that came from the ancien regime. This centralization was
the product of the activity of the State but also of the discourses
about the law and the nation.36 The state as a central idea of the
continental tradition of law is conceived as a mechanism of unity in a
divided and uneven society.37Melossi in his analysis of the European
state shows how the latter found unity under Hobbes ideas about
Leviathan, that is to say, the only way the state could stop civil war
in Europe was through centralization and the constitution of a
sovereign artificial subject.
The central feature of Hobbes’ Leviathan was its monopoly of
fear. As Schmitt has put it, people surrender themselves in the
hands of the state because of fear to death. Hobbes Leviathan was
based on this fear, for without a central definition of the enemy
there is only civil war. It is the state the one who decides about the
friend and the enemy, it has the sole authority to determine that
space of the political. This definition is made through the law, and
therefore the European state became a machine of producing laws,
that is, the unity of the principle is concealed behind the unity of
the state,38 through which the sovereign decides about friend and
the enemy.
Once this Leviathan was created, it monopolized not only the
production of the law, but also the production of force and sym-
bolic violence, in a way that became the only institution with the
power to impose coercion and definitions of the world.39 Besides the
discourse of a state equals a nation, there was a discourse of a state
equals a central law, that is, the only law recognized by the state

36
The construction of the American state from the central authority can be seen in
Stephen Skowronek. Building a New American State (Cambridge: Cambridge Uni-
versity Press, 1982).
37
Dario Melossi (1990), Supra n. 24, at 15.
38
John MacCormick, ‘‘Fear, Technology, and the State: Carl Schmitt, Leo Strauss
and the Revival of Hobbes in Weimar and National Socialist Germany’’, in Political
Theory 22/4 (1994), 619–652.
39
Walter Benjamı́n, ‘‘Para una Crı́tica de la Violencia’’, In Para una Crı´tica de la
Violencia y Otros Ensayos (Madrid: Taurus Ediciones, 1991).
 HERMENEUTICAL VIOLENCE 403

was the law the state itself produced. This conception of the law
pointed to the conception of the law as the product of the
sovereign, that is, the central power able to protect and therefore to
oblige.40
The creation of the state is based on the determination of the
boundaries through the determination of friends and enemies.
According to Carl Schmitt, one of the key concepts to define the content
of the political is his distinction between friend and enemy, as the key
criteria to unite state and sovereignty with the political. Schmitt criti-
cizes the pluralism of institutions because it destroyed the monopoly of
the state as the sole entity able to determine the grouping in terms of
friendship and enmity. The only way to save the state was through the
definition of its friend and its enemies, and the right to competition in
the state and in the Parliament is allowed to those parties that show
fidelity to the state.41 The extreme case of the political is the state of war,
that is why to Schmitt sovereign is he who can declare the war. War is
declared against those who are different from us, who do not belong to
our group: our enemies. In Schmitt’s words, ‘‘for Clausewitz war is the
ultima ratio of the friend enemy grouping. War has its own grammar,
but politics remains its brain. Its logic can be derived from the friend
and enemy concept. Only in real combat is revealed the most extreme
consequence of the political grouping of friend and enemy. From this
most extreme possibility human life derives its specifically political
tension’’.42
The law is then the production of the sovereign, that is, the central
authority that governs the members of the nation. The nation, as
Fitzpatrick has shown, is presented as the will of the people and by
being understood as a whole it gives to the law the abstract generality
that is its main feature.43 The centralization of the state is produced
through the protection of people from attacks coming from abroad.
The European state was then constructed through the idea of sover-
eignty of the nation, and in this creation the law played an important

40
Hobbes conception of the sovereign is protego ergo obligo. In his analysis about
sovereignty Carl Schmitt shows that the central feature of sovereignty is the ability to
command and to determine the normal through the power of determining the
exception. Cfr. Carl Schmitt (1985), Supra n. 15.
41
It is ironic how Bonn Constitution replies Schmitt’s thesis through the establish-
ment of the concept of the enemy of the constitution. This relationship friend-enemy
allowed the German state to develop a jurisprudence of exception to fight groups like
the Baader-Meinhoff in the seventies.
42
Schmitt (1975), Supra n. 15, at 32.
43
Peter Fitzpatrick (1995), Supra n. 27, at 17.
404 FARID SAMIR BENAVIDES VANEGAS

role, because through it the sovereign made all the determinations

regarding friend and enemies and especially regarding the norm and the
exception.44

4. The Imperialistic Character of National Law

The law has been tied to the nation state as the central authority and as
the sovereign who determines the norm and the exception and in doing
so protecting people from attacks from outside the boundaries of the
state. According to Fitzpatrick the law belongs to the mythology of
modernity and this mythology is sustained in the experience of impe-
rialism. This mythology is the mythology of the white western, and is
part of the white mythology.45 Law is read as taking the attributes of
western society, that is, this law is the modern law and the other are only
primitive law, primitive and unreasonable ways of solving social con-
flicts.46
But law is not just the tool to dominate one group. The central
question, posed by Gramsci is the discussion about why people obey the
law, why they do not rebel against the law. One approach to this
understanding of the law is given by his conception of hegemony.
According to this conception, people from a social class see the law as
an appealing product of the ruling class; therefore they want to be
dominated because in that way they could be part of the ruling class.
The consent given by the dominated class is given because of the
prestige of the ruling class and its position in the world of production of
meaning.47 However, this position has to explain why people develop a
44
To Schmitt the core of authority of the sovereign is his power to determine the
exception and the normal, because he is who decides the restoration of normality
through the determination of the end of the exception. The exception shows where the
political power resides. Cfr. Carl Schmit (1985). Supra n. 15. For an analysis from
Agamben’s philosophy see Peter Fitzpatrick (2001). Bare sovereignty: Homo Sacer and
the instance of law. Lecture delivered at Amherst College in December 2001; Giorgio
Agamben. Homo Sacer. Il potere sovrano e la nuda vita (Torino: Einaudi, 1995); and
Giorgio Agamben, Lo stato di eccezione (Firenze: Bollati Borenghieri, 2003); Hardt
and Negri show that in the new World Order the exception determines the appearance
of Empire, that is to say, in this new World Order, who decides the exception become
the true sovereign. The relative and effective coincidence between the domestic and the
international is given by the fact they operate in the terrain of exceptionality. Domestic
and international law are defined by exceptionality. Negri/Hardt, Supra n. 12, at 16.
45
Fitzpatrick (1992), Supra n. 25, at X.
46
Fitzpatrick (1992), Supra n. 25, at 7.
47
Rivera-Ramos (2001), Supra n. 29, and Laura Gómez, ‘‘Race Colonialism and
Criminal Law’’, Law and Society Review (2000).
 HERMENEUTICAL VIOLENCE 405

new identity through the law. The question is not only why people do
not contest the law, but also how people have become constituted
through the law in a way that avoids contestation and guarantee respect
of the law even from the oppressed.
Another approach to this question takes into account the discur-
sive production of reality. That is to say, people are not only con-
trolled but they are also produced by the discourses of those with the
power of production of meaning. This approach shows that the law
not only acts in society but it constitutes it.48 As Fitzpatrick has
pointed out, ‘‘people are subjected to law through their own con-
struction of belief in a myth of law’s authority’’.49 The constitutive
character of the law can be used to analyze how the law was used to
convey an imperial idea of the nation-state and the superiority of the
national group wherein that law was created. Several authors,
amongst them, Fitzpatrick, Sally Merry, Maria Teresa Sierra and
Efren Rivera Ramos, have analyzed this fact.
Peter Fitzpatrick, from a post-colonialist point of view, shows
that the law of the western societies was exported to the colonies in
order to educate those subjects through the law, but also in order to
facilitate their domination through the use of the instruments that
made possible the domination of the poor classes in the colonizing
countries. The universal character of the law was used to legitimize
the use of the law in the colonized countries. The law not only
allowed control but also construed the colonized as inferior and in
need of control by the ruling country. ‘‘This law was a prime jus-
tification and instrument of imperialism, one which, in the assess-
ments of the great practitioner-theorist of imperialism, would ‘raise
the mass of the people of Africa to a higher plane of civilization’, a
gift which should ‘deserve the gratitude of the silent and ignorant
millions’…’’.50
The use of the law presented the colonized subject as needed of
assistance and protection, but also as needing correction. The colo-
nized subject did not have the status of a person and thereby he did
not have any right of self-determination. The purpose of the law had
then to be the denial of the culture of the colonized subject. Fitzpa-
trick has shown in his study of British colonial law that the law served
the purpose of eliminating the other from the picture. Through the

48
John Brigham, The Constitution of Interests (Princeton: Princeton University
Press, 1998). Chap. 1.
49
Fitzpatrick (1992), Supra n. 25, at 11.
50
Fitzpatrick (1992), Supra n. 25 at 107.
406 FARID SAMIR BENAVIDES VANEGAS

use of the repugnancy clause, the British judiciary understood that the
natives of the colonies did not have a distinct project and therefore
their culture could be denied in order to allow the British government
to implement its project for the colonies. The only way the natives
could be redeemed from the darkness of their primitive state was
through the European intervention, and this meant the European
domination.
Maria Teresa Sierra and Efren Rivera Ramos analyzed this kind
of intervention and constitution through the law in their analysis of
the American intervention in the former Spanish colonies.51 Sierra
analyzes how there is a process of negotiation and hybridization
between the national state and the indigenous communities but she
also shows that the national state shapes the conflicts in terms that
are foreign to the communities and therefore that has to be seen as
necessarily colonizing. On the other hand, Rivera Ramos shows that
the Puerto Rican identity has been shaped through the use of the
insular cases, in which the United States Supreme Court created new
subjects under the dominion of the United States government. The
special status of Puerto Rico, for example, allowed the government to
avoid recognition of the rights of Puerto Ricans to a jury and to
welfare. This special status made them subjects with a reduced citi-
zenship in a way that they appear to be immigrants with American
passport.
Sally Engle Merry in her analysis of Hawaii showed that western
law was used in different senses.52 On the one hand, it was used as an
expression of western customs and therefore of civilization. To do so,
Hawaiians rulers travel to Europe to show that their constitution was
an European-like constitution whereby European states lacked
legitimacy to intervene in a European-like country. Hawaiians
understood very well that the colonizing process was made for the
domination of non-European countries. However, United States did
not think alike, and took advantage of the fact that American lawyers
controlled the advocacy and the judiciary. Through this advantage
and through the devaluation of the Hawaiian culture, United States
took control of the island and several years later incorporated it as
part of the country.
Through this analysis we can see how the law has been related to the
nation state but also to the constitution of colonial identities. As

51
Maria Teresa Sierra (1995), Supra n. 29; Rivera Ramos (2001), Supra n. 29.
52
Sally Engle Merry, Colonizing Hawaii. The Cultural Power of Law (Princeton,
NJ: Princeton University Press, 2000).
 HERMENEUTICAL VIOLENCE 407

Fitzpatrick has pointed out, ‘‘the story of modern law is integral to

that of the nation. In its identification with nation, law acquires an
origin and a history compatible with its own self-presentation – its
claims to encompass and combine the general and the particular,
sovereign authority and the popular, assured order and change.
Through the connection with the nation the law is presented as general,
divorced from the contamination of any particular interest’’.53
What these studies show is that under the guise of the universal and
the abstract, the law presented itself as the civilizing feature of the
process of colonization of the ‘‘primitive peoples’’: their law and their
culture were denied by the colonizer. The cultural features of those
peoples were presented as primitives, as lacking of the rationalizing
process. Even in contemporary descriptions of the law, European au-
thors present European and American law as the modern law facing a
crisis of materialization and reflexivity, whereas the law of the indige-
nous communities is presented as primitive law or as no-law at all.54 In
the next section we will see how the discourse of human rights and
humanitarian law are presented as features of law in modernity and are
shaped through a modern language of rights, where there is a subject
contesting the state. Rights are understood as a victory against the
state, but they will also be understood as part of the process of mate-
rialization of modern law.

5. The Discourse of Human Rights as Universal

Conceptions of Humanity

After the French Revolution the bourgeoisie used an idea of natural

rights to oppose the power of the state. The liberal discourse of
modernity was characterized by the introduction of the idea of limits
to the action of the state, that is to say, by the idea of sovereignty of
individuals, and by the promise of a community of equals, which
meant the destruction of every communitarian tie.55 Modernity
presented the individual qua individual. In epistemology this discourse
53
Fitzpatrick (1995), Supra n. 27, at XV.
54
See Teubner (1983), Supra n. 35, and Carlos Morales de Setién Ravina. ‘‘Intro-
duction. In Gunther Teubner/Pierre Bourdieu. La fuerza del derecho (Bogota: Edici-
ones Uniandes/Instituto Pensar/Siglo del Hombre Editores, 2000).
55
Jurgen Habermas, The Philosophical Discourse of Modernity: Twelve Lectures
(Cambridge: MIT, 1987). A critique of the destruction of community under the
pretext of the community of equals, see Pietro Barcellona, Posmodernidad y
comunidad. El regreso de la vinculación social (Madrid: Trotta, 1992).
408 FARID SAMIR BENAVIDES VANEGAS

implied the appearance of a subject without any attribute, that is, a

rational subject who supposedly was representing every individual
with the ability of being rational. Kant in his Critique of the Pure
Reason took this discourse, and the subject became not only the
center for every epistemological discourse but also the center for the
ethical discourse.56 Human rights, the rights of every human being,
were the rights of the rational individual, that is to say, the rights of
those beings that have the ability to think rationally.
The empty form of the law, as it has been defined in Teubner, col-
onized the discourse of human rights.57 This discourse is understood in
reflexive terms, insofar as it is conceived as a set of procedural norms
that regulate processes, organizations and the distribution of rights and
competences.58 This conception of human rights from the standpoint of
modern law can be analyzed as an effect of universalization or nor-
malization, that is, the process of social authority exercised by the
dominating culture to give efficacy to the juridical coercion.59
Despite the fact that human rights cannot be considered universal
rights, they have been deemed universal, and this is due to its abstract
form and the fact that they are enforced from the global institutions
of governance. Rhonda Howard has pointed out the lack of univer-
sality of this rights writing that the conception of human rights is ‘‘a
particular conception of human dignity and social justice. They are
not synonymous of human dignity, despite its appearance together in
the Universal Declaration of Human Rights. Every society and every
political philosophy have conceptions of human dignity. Some of
them, especially those that have their roots in the vision that the
nation, the people, the community, or the family have precedence
over the individual- are radically in opposition to the idea of human
rights’’.60
In European and American philosophy there has been a discussion
of the need of having a substantialization of rights. That is to say,
from the perspective of authors like Richard Rorty, Will Kymlicka,
and Charles Taylor, the liberal conception of rights has many flaws,

56
Immanuel Kant, Crı´tique of Pure Reason (London: William Pickering, 1838).
57
Teubner (1983), Supra n. 35.
58
Teubner (1983), Supra n. 35.
59
Bourdieu (1987), Supra n. 13 and Zolo (1997). Supra n. 12, at 118.
60
Rhonda Howard, ‘‘Dignity, Community and Human Rights’’, in Human Rights
in Cross Cultural Perspectives. A Quest for Consensus, ed. Abdulla Ahmed An-Na’im
(Philadelphia: University of Pennsylvania Press, 1992).
 HERMENEUTICAL VIOLENCE 409

especially in its pretension of universality.61 These authors consider

that rights are related to the community; that is to say, they are not
universal but contextual. However, that interpretation assumes the
idea of the clear division of the world and the possibility of making
clear distinctions between liberal societies and the other societies,
especially fundamentalist societies. In the case of Taylor and
Kymlicka, they are thinking in the Canadian case and how to fit the
liberal conception of rights with the idea of sharing the same territory
with the French population of Quebec and the indigenous commu-
nities. Since this discussion is more about how the nation state deals
with different groups that are not part of the nation, it is of little help
in understanding the role human rights have served in this time.
Richard Rorty, on the other hand, takes the liberal society as
homogenous and with the possibility of being distinguished from the
fundamentalist society. However, he does not take into account the
existence of the third world in the first world, that is, the contami-
nation of all cultures and the impossibility of making clear distinctions
between pure liberal societies and pure fundamentalist societies.62
From different points of views, different scholars have discussed
the idea of universal human rights, showing that it is part of a western
liberal tradition, therefore lacking the universality their supporters
proclaim and denying other ways of defending people’s rights with-
out denying their cultural traits.63 Eliza Lee, for instance, shows the
limits of the universal conception of human rights writing, ‘‘the
general limitation of the Universalist and relativist mode of thinking
is the way they treat political order as unchanging. Universalists as-
sume that political values must be pre-cultural, pre-political givens if
they are to have universal validity, thus overlooking the fact that any
61
Richard Rorty. Contingency, Irony, and Solidarity (Cambridge: Cambridge
University Press, 1989) and Richard Rorty. ‘‘Derechos Humanos, Racionalidad y
Sentimentalismo’’, in Tesis Filósofo, ed. Juan Carlos González (Bogota: Universidad
Nacional de Colombia, 1994); Will Kymlicka, Multicultural Citizenship. A Liberal
Theory of Minority Rights (Oxford: Clarendon Press, 1995) and Will Kymlicka,
Contemporary Political Philosophy. An Introduction (Oxford: Clarendon Press, 1990);
Charles Taylor, Multiculturalism and the Politics of Recognition (Princeton, NJ:
Princenton University Press, 1992).
62
Rorty does not take into account the existence of global cities, in which the first
and the third world coexist. See Saskia Sassen, Globalization and its discontents.
(essays on the new mobility of people and money) (New York: New Press, 1998).
63
Virginia Leary, ‘‘The Effect of Western Perspectives of International Human
Rights’’, in Human Rights in Africa. Cross Cultural Perspectives, eds. Ahmed
An-Na’Im, Abdullahi and Deng, Francis (Washington: The Brookings Institutions,
1990).
410 FARID SAMIR BENAVIDES VANEGAS

political community is historically and culturally constituted. Cul-

tural relativists, ironically, while arguing against universalism end up
adopting a similar logic – taking the existing order as valid and as
static and unchanging. Cross-cultural universalism still fails to pro-
vide a framework for understanding cultural communities as dis-
course communities’’.64 Despite the criticism about the concept of
universal Human Rights, the Bangkok Declaration of 1993 clearly
expressed that human rights are universal, objectives and
non-selective and that it should be avoided any attempt of imple-
menting double standards of human rights. However, the Declaration
points out, those rights have to be interpreted in its context, therefore
the significance of national and regional particularities must be taken
into account. When we analyze the Colombian case we will see how
states recognize those particularities and how the core of human
rights are used to impose a western world-view.
The universal conception of human rights has been enforced from
different instruments in today’s world. The process by which human
rights are universalized is twofold: on the one hand, through the use
of the institutions of governance, like the United Nations, states are
constantly monitored in order to make sure that they are complying
with all the requirements of the Universal Declaration of Human
Rights. Even though those institutions have been useful to convey the
idea of justice, as in the case of Ireland and Argentina, they have also
imposed universal ideas about human rights that imply the denial of
the indigenous idea of those rights. The other strategy in the process
of universalization of human rights has been the constitutionalization
of those rights, that is, their drafting in the national constitutions as
fundamental rights with the possibility of being enforced by national
tribunals.
Nikhil Azis argues that there is a hegemonic discourse in human
rights and that there is a need to provide alternatives to that discourse
from the Third World.65 Azis uses Falks’ concepts of globalization

64
Eliza Lee, ‘‘Human Rights and Non Western Values’’, in Human Rights and
Chinese Values. Legal, Philosophical and Political Perspectives, ed. Michael C. Davis
(Hong Kong, Oxford University Press, 1995) at 76. On this topic the literature is huge,
but it can be seen Richard Wilson, Human Rights, culture and context. Anthropological
perspectives (London: Pluto Press, 1997); Alison Dunden Renteln, International Hu-
man Rights. Universalism v Relativism (London: Sage, 1990); Rhoda Howard, Human
Rights and the Search for Community (Boulder: Westview Press, 1995); Rhoda Howard,
Human Rights in Commonwealth Africa (Totowa, NJ: Rowman and Littlefield, 1986).
65
Nikhil Aziz, ‘‘The Human Rights Debate in an era of Globalization. Hegemony of
Discourse’’, in Debating Human Rights, ed. Peter van Ness (London: Routledge, 1997).
 HERMENEUTICAL VIOLENCE 411

from below and globalization from above to show that the latter
understands globalization as the result of western experiences;
therefore global culture means solely the globalization of western
culture. As part of this process of globalization from above we find
the hegemonic discourse of human rights. According to Azis, ‘‘hu-
man rights have become another weapon in the arsenal of western
countries in their efforts to bring recalcitrant Third World nations to
heel in ‘‘their’’ ‘‘New’’ World Order. Western nations are increasingly
using their very narrow interpretation of human rights as a yardstick
with which to judge Third World governments, and in conducting
political and economic relations with the latter’’.66 One of the main
arguments against the local conceptions of human rights is the fact
that they are not secular, that is, that they convey ideas of good that
are substantial and that lack the empty form of the law. As a response
to this secular conception of rights, Pakistani scholar Ziauddin Sardar,
quoted by Azis, shows that secularism is ‘‘intrinsically dominating,
and that it can be just as fundamentalist and fanatical as the religious
worldviews it opposes’’.67 Through secularization and universalism
there is a hegemonic imposition of western views about rights.
The hegemonic conception of human rights is conveyed through
the global institutions of governance, particularly institutions like the
United Nations and the regional human rights tribunals. These
institutions are in charge of interpreting human rights from a uni-
versal point of view. In judicial cases, which are binding for the
countries in the cases of the human rights Courts, those institutions
create official doctrine and determine what is the adequate interpre-
tation to be applied in those cases. Through constitutionalism, those
interpretations are incorporated in the national judicial system and
therefore the hegemonic power of human rights is conveyed in an
enforcing level.68
This process of constitutionalization is the result of the influence
of the German model, with the idea of the Constitutional Court, and
the American model, with the idea of judicial review and the pro-
tection of rights through the decisions of the Supreme Court.
Heinz Klug has analyzed this process with regard to the South
66
Azis (1997), Supra n. 65, at 39.
67
Azis (1997), Supra n. 65, at 43.
68
Most of the new Constitutions, based on the German and Italian model, have a
provision in which it is expressed that the rights recognized in the Constitution do
not affect the validity of other human rights recognized by international instruments.
This means the direct incorporation of human rights in the Constitution without the
act of the national sovereign.
412 FARID SAMIR BENAVIDES VANEGAS

African transition to democracy. To Klug, the creation of constitu-

tional courts ‘‘heralded the expansion of judicial power or- as some
characterized it- the legalization of political disputes…the experience
of the South African Constitutional Court demonstrates how con-
stitutional courts in particular may play a highly political role pro-
viding a space in which often irreconcilable conflicts may be
temporarily if not permanently mediated, allowing the political
contestants to embrace democratic procedures and outcomes while
continuing to imagine their own particular, even if conflicting, visions
of the future’’.69
However, the central feature of the constitutionalizing process is
the legalization of rights, that is to say, the imposition of a con-
ception of rights in the text of the constitution. This process can be
seen as a positive result from a western point of view, since the law
is considered the tool for the solution of disputes amongst partic-
ular citizens. This incorporation implies also the assumption of the
universality of the law and the universal character of those rights.
Nevertheless, to Klug the globalization of human rights and of
constitutionalism is seen not in terms of imperialism or wishful
harmonization but rather as a process of hybridization, that is to
say, indigenous communities have adopted the discourse of human
rights without denying their own traditions.70 In the South African
case, the globalization of human rights allowed the global institu-
tions of governance to deal with apartheid and exercised pressure to
eliminate this crime against humanity. While the South African case
is a successful case of the transition to democracy thanks to the
imposition of pressures from the international community to elim-
inate apartheid and to apply democratic principles in that society,
the true is that the process has not been extremely successful and
that many of the perpetrators of crimes in that country were not
punished due to the necessity of a peaceful transition to democracy
imposed from abroad.

6. Hegemony and Constitutionalism: The Colombian Case

In 1991, as the result of several political processes, Colombia approved

a new constitution in which there were several institutions that were

69
Klug (2000), Supra n. 15, at 14.
70
Klug (2000), Supra n. 15, at. 49.
 HERMENEUTICAL VIOLENCE 413

going to radically transform the country. As a result of the negotiations

between different guerrilla groups and the government, there was
varied participation in the process of drafting the new constitution.
Amongst the members of the Assembly was a member of the indigenous
communities, who represented the worldviews of the different indige-
nous groups in the country and the Afro-Colombian communities
living in the Pacific.
The new Constitution recognized the fact that indigenous com-
munities had a system of justice with which they solve the conflicts
amongst the members of the community. Article 246 of the Colom-
bian Constitution gives indigenous communities the right to have
their own jurisdiction under the condition of exercising those rights
within the framework given by the Colombian Constitution and
Colombian law. This norm is the result of the incorporation of
Covenant 169 of the International Labor Organization, wherein it is
established the rights of indigenous peoples. One of the most
important results of the Colombian Constitution is the incorporation
of human rights in the text of the Constitution, giving them a hier-
archy above the normal law. But the Constitution also introduced a
provision whereby every human right and the norms included in
international humanitarian law had to be considered part of the
Constitution, therefore they were above the law.71
In the same Constitution the National Assembly created the
Colombian Constitutional Court. This institution is in charge of
defending the constitution, and by doing so it can declare unconsti-
tutional any law that violates the constitution. One of the roles of the
Court is the defense of fundamental rights through the so-called
acción de tutela, a judicial action by which citizens can ask the pro-
tection of their rights and obtain that protection in no more than ten
days. Those rights are protected not only from state’s violations but
also from private persons’ violations.

71
This declaration is just the same as the declaration given during the colonial
regime in the Americas, when indigenous peoples were allowed to have their own
culture and their only limit was the principles of Christianity. See Enrique Dussel,
‘‘Europe, Modernity and Eurocentrism’’, Nepantla: View from the South 1/3 (2000);
Silvio Zavala, La filosofia politica en la conquista de America (Mexico: Fondo de
Cultura Economica, 1947); Lewis Hanke. La lucha por la justicia en la conquista de
America. (Madrid: Ediciones Istmo, 1988); Eulalia Maria Lahmeyer Lobo,
‘‘Bartolome de las Casas e a lenda negra’’, in Ronaldo Vainfas (org). América em
tempo de conquista. (Rio de Janeiro: Jorge Zahar Editores, 1992); and Antonio
Garcia, Legislacion Indigenista de Colombia (Mexico: Instituto Indigenista Inter-
americano, 1952).
414 FARID SAMIR BENAVIDES VANEGAS

In exercising its main role the Court analyzed the incorporation in

the national juridical system of the II Protocol additional to the 1949
Geneva Conventions. In the decision that found those norms
according to the Constitution, the Court created the doctrine of the
Bloc of Constitutionality. By using this concept, taken from the
French tradition, the Court decided that all human rights and
humanitarian law needed not be incorporated to the legal system
because they already were part of it, due to the bloc they formed with
the Constitution. Since human rights and international humanitarian
law were considered jus cogens, according to the Constitutional
Court, those rights were binding for the Colombian state even if the
national assembly did not expressly introduce them. Since they were
binding, every individual living under Colombian laws had to be
bound by those norms of jus cogens, that is to say, every individual
had to respect human rights as defined by the global institutions of
governance. In this way, the hegemonic power of universal human
rights was imposed through the power of Colombian Constitutional
Court, in other words, those rights were redefined in terms of fun-
damental rights, but taking into account the universal discourse
created in the institutions of global governance.
In 1995 the Colombian Constitutional Court had to decide about
the constitutionality of the Covenant for the Development of the
Indian Peoples. According to this covenant, Indigenous Peoples are
those peoples who were living in the country before the Spanish
conquest, who keep all their own social, political and cultural
institutions or part of them, and who have a conscience of being
part of an Indian community.72 This Covenant had the purpose of
incorporating ideas of development in the country and giving the
indigenous communities funds to support their self-development.
However, the Covenant also substantialized the communities by
making indigenous only those members of Indian communities who
considered themselves Indians but also who kept traditions un-
changed. As we saw earlier, this is the western idea about tradition,
that is to say, an idea that conceives tradition as unchanged and
modernity as perpetual change. If Indian communities want money
for development they have to present themselves as traditional in
opposition to modern, that is, they have to forget 500 years of
historical change and adopt a frozen identity of the past. The
Constitutional Court through the use of the acción de tutela has

72
Convenio Constitutivo del Fondo para el Desarrollo de los Pueblos Indı́genas de
América Latina y el Caribe. Madrid, 24 de julio de 1992.
 HERMENEUTICAL VIOLENCE 415

sanctioned this conception. In decision T188/1993 the Court estab-

lished that the Colombian state was a pluralistic and multiethnic
state and in this state Indian communities were considered only
those who have ties with the original communities and kept the
original traits of their culture.
Through the creation of a static identity and through the
dichotomy traditional/modern, the Court was opening the path for
the creation of a discourse of human rights that expressed the
ethical superiority of the western liberal conception of human
rights. In a case tried by the Court in 1994, Ananias Narvaez was
expelled from his community in El Tambo-Tolima, because he
allegedly committed a crime of robbery. Narvaez claimed that the
Constitutional Court violated his due process of law and therefore
he could not be expelled from the community but after a process in
which his responsibility had to be proven. The claimant held that
his fundamental rights were violated by the decision of the tradi-
tional authority.
The strategy followed by petitioner was treating the communitarian
authority as a public authority. However, the Court decided to treat it
as an association ruled by private law. The Court, in order to deal with
the case, constructs the community as a subject of the law, that is,
despite being a community with their own conception of rights and
justice, the Court constitutes the Indian communities as subject of the
law, that is, as being subject to the abstract and general form of the law.
This strategy allows the intervention of the western liberal conception
of human rights in the community. Using the door opened in its earlier
decisions, the Court appeals again to the dichotomy tradition-moder-
nity and labeled the Indian communities as a community in the sense
used by Ferdinand Tonnies, that is to say, as a community in a stage of
development that has not reached the superior level of a liberal com-
munity in modernity. According to the Court, urbanism makes com-
munity evolve into societies; therefore, the Indian communities are not
evolved and are not part of society.73
In this way the Indians are placed outside society and therefore are
identified as in need of control and assistance from society. Since the
Court represents the view of human rights in society, those com-
munities had to accept the definition of their identity given by the
Court. To do so, the Court appeals to the discourse of the nation, by
claiming that the Constitution recognize plurality but also imposes
unity. To recognize diversity, the Court again appeals to the frozen
73
Colombian Constitutional Court. Decision T254–1994.
416 FARID SAMIR BENAVIDES VANEGAS

identity and recognizes autonomy only to those peoples that keep

their original traditions. However, the Court points out that the
original values of the community are limited by the universal con-
ception of human rights, that is to say, the local conception of human
rights is considered of inferior value and contingent, whereas the
western liberal conception of human rights is considered superior to
the rights of the community.
Based on that discussion the Court considered that the decision of
the community has to be analyzed from the point of view of the
universal conception of human rights and especially from the con-
struction given by the International Labor Organization. In the
decision the Court explicitly declares that Human Rights are part of a
universal code of humanity adopted by the community of nations,
that is, by the United Nations. Given this definition, the Court found
that the decision taken by the community of El Tambo violated the
universal conception of the due process of law and therefore they had
to give a new trial to Narváez, but now applying human rights as
recognized by the Universal Declaration of Human Rights and the
regional instruments.
The Constitutional Court introduced a frozen identity of Indian
communities in order to impose to Indian communities the idea of
human rights as universal rights. In other decisions, the Court pointed
out the plural character of Colombian state but at the same time clearly
stated that the Cosmovision of those peoples was accepted as long as it
does no violate the western liberal conception of rights. In doing so, the
Court was imposing the global conception of rights created and en-
forced through the global institutions of governance. In the Colombian
case, human rights and constitutionalism have been tools to create the
identity of individuals qua individuals – that is in the Court’s words as
society- and to deny the local conceptions of rights. Hybridization has
been accepted to certain limits and those limits are defined by the core of
universal rights.

7. Conclusion

The law has been defined in abstract and universal terms. Its empty
form has been useful to impose a western conception of law and
legality. Modernity has been characterized by the creation of empty
forms like subject, law, and science. These artifacts have been useful
for the governance of communities and by the creation of the promise
of a community of equals. However, the role of the law was not only
 HERMENEUTICAL VIOLENCE 417

the domination of workers and peasants in European countries. The

law has been also useful in the creation of the identity of colonized
countries and, therefore, of the colonizing ones. By establishing the
lack of European institutions the colonized was defined as inferior
and in need of domination, control and education. The imperialistic
character of the law was useful in the creation of subordinated
identities.
The discourse of Human Rights has been a tool used to create
new identities: the individual and the western subject. In that way
the empty form of the law allows better ways of governance.
Through the creation of official doctrine and the imposition of that
doctrine all around the world, with Covenants and Courts, the
United Nations system has managed to homogenize communities in
the world and make all of them part of the same discourse.
Members of opposition in China, women in Africa, indigenous
communities in Colombia, are part of the same identity that has
created them as part of the past, they belong to tradition, they are
the local, they are ones who need to be changed. The discourse of
human rights is part of this strategy of homogenization and global
control. This does not mean that human rights have not been used
for the benefit of communities; it is only a reminder that from good
we can create many wrongs. Before Nazi Germany, scholars dis-
cussed about the need to open the law and to give room for the
values of the Volk. After WW II, many people thought that legal
positivism was the only way to defend the individual from the
power of the state. Again in Argentina the imposition of positivism
allowed repression without changing the legal system74. Human
Rights have been used to defend oppressed peoples, but it has also
been used to deny local identities.
The nation-state has lost many of their functions, but through the
discourse of human rights it has assumed a new task, which is the
re-nationalization of the law. Human rights represent the new
dialectic in the law: after a process of denationalization, the law is
re-nationalized to impose the commands of the new sovereign. In this
process local identities are and have to be redefined, because in that
way global governance will be realized in a better way. Globalization
and the law mean the creation of new identities and the elimination of
old ones.

74
Roberto Bergalli, ‘‘La estructura Judicial en América Latina’’, in Pena y
Estructura Social, eds. Georg Rusche and Otto Kirchheimer (Bogota: Editorial
Temis, 1984).
418 FARID SAMIR BENAVIDES VANEGAS

Acknowledgements

Thanks are due to Professor John Brigham, Professor Agustin Lao-

Montes, Professor Dragan Milovanovic for their comments on the
draft of this paper. I also would like to thank Erika Marquez for her
comments to the final draft and the participants in the conference on
Globalization, Empire and Resistance, held at Brandeis University in
April 23–25, 2004 for their valuable comments. The responsibility for
the final result is solely mine.

Department of Political Science

Department of Legal Studies
University of Massachusetts, Amherst
USA
E-mail: fbenavid@legal.umass.edu