This paper explores – briefly – four ideas: the concept of the ‘turn to emotions’, the notion of a cannibal theory, legal surrealism and the subaltern perspective on human rights.

How we are to think and feel human rights today? This question is situated in a specific historical context, that of our times, which is defined here as the age of Neo-colonialism – the intensification of the process of globalisation initiated by the Conquest of America and the formation of the world market. Such a process does not only convene the military and economic domination of most of the world by modern empires. To a greater or lesser extent, the colonisation of languages, cultures and ways of thinking has also been accomplished.[i]

Colonisation and the expansion throughout the world of modern rationality are two phenomena inextricable linked. They have made real one of the features of what Max Weber calls the rationalisation of the world[ii]: the imperial expansion of a particular way of thinking – that of the modern European rationality. No less crucial for this paper, the question concerning human rights today reclaims our attention in an unusual fashion: It asks for a blip, a shift or a short-circuit in the brain, in the skin, in the body  – and in the intellectual mood of our epoch, in the spirit of the times. It requests sensibilisation. It invites us not only to think human rights, but also to feel human rights.

For month after month, life in Yenan centred on interrogations and terrifying mass rallies, at which some young volunteers were forced to confess to being spies and to name others in front of large crowds who have been whipped into a frenzy. People who were named were then hoisted onto the platform and pressed to admit their guilt… amidst hysterical slogan-screaming. The fear generated by these rallies was unbearable. A close colleague of M remarked at the time that the rallies were ‘an extremely grave war on nerves. To some people, they are more devastating than any kind of torture.[iii]

The Turn to Emotions

Speaking of the ‘turn to emotions’ is usually related to a tendency to make evident the neglect  in which emotions have remained in the different disciplines of knowledge, and to make the case for retrieving emotions for theory. Put in this way, we are in front of a scholarly phenomenon that transverses the whole field of the arts, the humanities, the social sciences, and even that of technology and the natural sciences. Not only disciplines like philosophy, sociology, history and law have started, over the last two decades, to show symptoms of this maladie. Sciences like neurology take issue with the Cartesian severance of feelings from mind and thinking, as in the case of the work of Antonio Damasio, who works on the interaction of reason and emotions in the brain.[iv] Even those well advanced in the production of robots are engaged in making them ‘more human’ by incorporating sentiments in their hard disc.

I was like being a prisoner on death row who survives month after month and becomes accustomed to the life, while he registers with an objective eye the horror of the new arrivals: registers it with the same numbness that he brings to the murders and deaths themselves. All survivor literature talks about this numbness, in which life’s functions are reduced to a minimum, behaviour becomes completely selfish and indifferent to others, and gassing and burning are everyday occurrences.[v]

This pervasive trait in contemporary theory is itself a symptom of something else happening in history. Modernity produced over the last five centuries a new and specific culture of emotions. Elaborating on Weber’s analysis of the ethics of capitalism, Adorno finds the core of modern ethics in the Kantian call for a morality based on duty, and strange to sentiments like sympathy.[vi] Moral stoicism and the coldness of European culture are pointed by Adorno as crucial characteristics of modern civilisation.[vii] The Kantian interpretation of the Enlightenment as the epoch in which it is possible to think without tutors, makes autonomy dependent upon the exercise of reason. Sapere aude is the motto of modernity. The turn to emotions entails a process of a similar nature, but of the opposite sign. Our epoch, defined as Postmodernity or as the times of the  Decolonisation of culture[viii], would not be that of rationalisation, but one of sensibilisation. These are the times of moral global warming – of the melting of the cold modern culture. ‘Dare to feel’ is the motto of our age.

Thus ended the battle of Omdurman –the most signal triumph ever gained by the arms of science over barbarians. Within the space of five hours, the strongest and best armed savage army yet arrayed against a modern European Power had been destroyed.

The possibility of the warming of the global modern culture – the turn to emotions – conveys a new definition of the human, as well as different paths for the construction of communities and the global society. Richard Rorty’s reflection on emotions and the human rights culture is very relevant, as he advances the project of the actualisation of an ethics of moral emotions, including sympathy, in contemporary societies. For Rorty the most visible characteristic of human beings is their plasticity – their capacity to be transformed by history and culture. Human beings and societies would also have an ability to recreate themselves.[ix]

I was soon put down under the decks, and there I received such a salutation in my nostrils as I have never experienced in my life: so that, with the loathsomeness of the stench and with my crying together, I became so sick and low that I was not able to eat; but soon, to my grief, two of the white men offered me eatables; and, on my refusing to eat, one of them held me fast by the hands, while the other flogged me severely.[x]

Rorty believes moral enquiry needs to be placed within the overriding context of the need for the education of societies as a way to respond to the challenges posed by history. This process would entail a Gadamerian bildung, a practice of cultivation of the capacities and talents of human beings in which both reason and emotion participate.[xi] This process of fostering the self is linked to a tendency to take distance from the self and its particular aims, and to further the openness to the other.[xii] It is in this sense that MacIntyre maintains that ‘to act virtuously is not, as Kant was later to think, to act against inclination; it is to act from inclination formed by the cultivation of the virtues. Moral education is an “education sentimentale”.’[xiii] This is a veritable paideia to be developed by the sentimental education of the epoch, a project aimed at modifying the way the individual feels – a truthful attempt to recreate humans as emotional beings. But, as emotions exist not only at individual level but are also a collective phenomenon, this task conveys the shaping of the feelings of societies, the global community and of the era.

And this Diego de Landa says that he saw a tree from whose branches a captain hanged many Indian women, and from their feet he also hanged the infant children.[xiv]

A Cannibal Thinking – and Feeling

The trope of the cannibal was one of the main justifications for conquest and colonisation: the cannibal peoples were in need of being civilised, and their depravity vindicated any means to advance this enterprise, including mass murder.[xv] In an anti-colonial gesture and inspired by European vanguards – including Surrealism – in his 1928 ‘Anthropofagite Manifesto’, the Brasilian intellectual Osvald de Andrade embraced cannibalism, and framed it as a cultural strategy for dealing with the European heritage. Devouring Western civilisation combines an aggressive and a constructive attitude. It is a rebellion against the imposition of imperial intellectual models. This mastication, swallowing and digestion of Western culture entail a critical attitude: ‘The cannibal devours the coloniser selectively and critically, producing a dialogical upsetting’.[xvi] On the productive side, the critical consumption of the European heritage results in its re-elaboration in the terms, and from the perspective, of the Third World. Such a process results in a non-dualist process of cultural and philosophical syncretism. ‘Anthropophagy” is a ‘transcultural’ project of emancipation that thinks the colonised world in ‘its dialogical relationship with the universal’.[xvii]

The Christians captured alive a hundred natives and killed thirty. They cut the arms off some that they captured, and the noses from others, and the breasts from the women.[xviii]

‘Four centuries of beef! How disgusting’: Anthropophagy does not stop at making a mockery of beef eaters. In a twist not devoid of Nietzschean connotations, it also invites us to think with the guts, as Anthropophagy has no guiding ideas but ‘only stomach’.[xix] Beyond critique and dialogue, and beyond commonalities with dialectics and deconstruction, what kind of thinking is being jokingly announced?

However, the moment of suffering came. I tried to count the lashes and think they were about sixty, apart from the kicks to his head and back. The captain smiled with satisfaction when he saw the boy’s thin garb soaked with blood. The boy lay there on the deck in his torment, wriggling like a worm, and every time the captain or one of the trading agents passed him by, he was given a kick or several… I had to witness all of this in silence.[xx]

In his ‘Anthropophagite Manifesto’ Andrade embraces as his own ‘the primitive mentality’ and scolds those who, like the French anthropologist Lucien Lévy-Bruhl, labelled non-European or non-modern ways of thinking as inferior: ‘Against all importers of canned consciousness. The palpable existence of life.’[xxi] Lévy-Bruhl had published in 1910 ‘Les Fonctions mentales dans les societés inférieures’ and in 1922 ‘La Mentalité primitive’, in which he studied the so-called pre-logical mentality of the ‘primitives’ and described it as a way of thinking distant to the principle of non-contradiction. Positing an opposition between ‘primitive’ and ‘civilised’ thought, Lévy-Bruhl could envisage only one possible outcome from their collision: the necessity for the primitive to evolve towards the civilised and logical thinking. The opposite is the truth for Andrade’s critique of rationalism, which rebuffs rationalism and the colonisation of the primitive thinking.

Legal Surrealism

Legal Surrealism substantially coincides with the cannibal’s account. Luis Alberto Warat points out in his 1988 ‘Manifesto of Legal Surrealism’ that modern reason became hegemonic in world culture, despotically putting aside those ways of thinking in which reason is not in command. Western rationality is accompanied by a peculiar attitude of hostility towards difference, in particular towards emotions. Reason, ‘logocentrism’ or ‘phalogocentrism’ carry an ‘absolute power’ [xxii] that tyrannically takes possession of every sphere of culture, driving out emotion and heart, and condemning feelings to exile.

First they applied the torture of the screws, then they poured hot candle grease on his belly, then they put his feet in irons through which a stick was thrust that could betwisted, and they set fire at his feet.[xxiii]

For Warat, modern rationality can be described as a Manichean apparatus that ‘ignores the passionate subject’ and as a world ‘where one loses also the right to passions’.[xxiv] It is also a hierarchical machine that cuts apart human beings into two, and locates reason in the higher level of the ‘truly human’, while displaces passions, to the lower rank of the unworthy.[xxv] Ultimately, modern rationality is a feature of capitalist culture, and can be described as a ‘market rationality that brings about the domination of the logic of sentiments’.[xxvi]

A small boy of about nine is ordered by the soldier to cut off the dead man’s hand, which, with some other hands taken previously in a similar way, are then the following day handed over to the commissioner as signs of the victory of civilization.[xxvii]

For Legal Surrealism there is a need for ‘decolonising imagination’, for challenging ‘the monopoly of reason’ and for ‘subverting’ ‘Western rationality’.[xxviii] This translates into an exercise of ‘resistance to alienation’, and as a way of achieving emancipation.[xxix] Legal surrealism invites us to ‘embrace a primitive gaze’ and a ‘primitive thinking’.[xxx] The primitive mentality of Warat’s ‘late surrealism’ entails a ‘revolution out of sentiment’ that endeavours to apprehend the world ‘much more by means of emotions than by means of thought’, and while asserting that it is our passions which make us human, it looks for some rebalancing that brings emotion and reason into a fruitful cooperative relation.[xxxi]

Some Christians encountered an Indian woman, who was carrying in her arms a child at suck; and since the dog they had with them was hungry, they tore the child from the mother’s arms and flung it still living to the dog, which proceeded to devour him before the mother’s eyes.[xxxii]

Subaltern Theory of Human Rights

Upendra Baxi’s introduction of ‘the language of the violated’[xxxiii] transforms the human rights discourse. Speaking from the perspective of the victim creates a human rights discourse that is displayed in terms of suffering. One is obliged to confront nakedly the fact of suffering. For the victims, violence has material consequences in body and mind, and is cause of physical or psychological pain. A human rights theory can be constructed as a response to human and social suffering because ‘the authentically subaltern utterance has no other language that would enable the violated to express this violence’.[xxxiv]

They summoned a great number of Indians, more than two hundred… The Spaniards cut their faces from the nose and lips down to the chin and sent them in this lamentable condition, streaming with blood.[xxxv]

Baxi’s characterises the Third World as ‘the suffering humanity’[xxxvi]. In this notion the Third World is defined in terms of the pain endured over centuries as a consequence of imperialism. Suffering becomes a crucial aspect of the history of the Third World, of millions of individual lives turned to misery or destroyed. This is the unbearable pain of a child torn to pieces and devoured by dogs; the infinite pain of his mother, from whose breast he was pulled away.

And all over the place. Oh man! You hear suffering and pain.[xxxvii]

This is a suffering that permeates and taints the entire history of continents and our era. It is a pain that gets confounded with the spirit of the times. Speaking about how the 20^th century history of the European Jews can be summarised in the word Auschwitz, Lyotard has said that ‘there is a sort of grief in the Zeitgeist’.[xxxviii] The agony evoked by the words ‘a suffering humanity’ is of this quality. It is an affliction that evokes and convenes the torment of so many for so long.

Left Equator at eleven o’clock this morning after taking on a cargo of one hundred small slaves, principally seven – or eight  – year-old boys, with a few girls among the batch, all stolen from the natives… Of the liberes, brought down the river, many die. They are badly cared for: no clothes to wear in the rainy season, sleep where there is no shelter, and no attention when sick. Their offence is that their fathers and brothers fought for a little independence.[xxxix]

In speaking about sensibility as a competence for feeling emotions, Baxi is not only referring to an ability residing in individuals but also to a ‘moral collective sentiment’[xl]. In the framework of a meditation on human rights located in the horizon of the world-system, the collective nature of the capability for feelings extends well beyond the borders of society. In the times of globalisation, such a faculty has worldwide contours. Baxi postulates the existence of a ‘global affectivity’, or a ‘global moral sentiment’, which would be part of our contemporary global culture.[xli]

I’M GOOD HAMLET GI’ME A CAUSE FOR GRIEF

AH THE WHOLE GLOBE FOR A REAL SORROW[xlii]

Re-thinking human rights from the point of view of the subaltern does not only lead to the introduction of the language of the suffering of the victims of the Third World in the discourse of human rights, but also to the description of human rights culture as a web of emotions and to the adoption of global sensibility as a reservoir and a source for the struggle for human rights. The presence of a layer or a sphere of emotions in contemporary culture has not only cultural connotations but also moral ramifications. This re-interpretation of human rights also has to do with a re-thinking of the ethics of rights. The morality elaborated under the modern premises of reason needs to be complemented by a dialogue with an ethics that finds its content in this pool of emotions that is part of the global culture. For Baxi, this new ethics of human rights is an ‘emerging global ethics… of movements of human solidarity’.[xliii] Not surprisingly, Baxi agrees with Rorty’s adoption of literature – or telling stories – as the more attuned tool to advance the sensibilisation of the modern cold culture, and to make it more responsive to human and social suffering.[xliv]

We wish to inform you that tomorrow we will be killed with our families.[xlv]

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This paper was presented at the Critical Legal Conference 2010, held at the School of Law, University of Utrecht. A paper for two voices – female and male, European and Non-European – it was read by Becca Franssen and the author.

[i] W. Mignolo, The Darker Side of the Renaissance. Literacy, Territoriality & Colonization (Ann Arbor: University of Michigan Press, 2003).

[ii] M. Weber, The Protestant Ethic and the Spirit of Capitalism (London: Unwin University Books, 1971), 119.

[iii] J. Chang and J. Halliday, Mao. The Unkown Story (London: Vintage, 2007), 299.

[iv] A. Damasio, Descartes’ Error: Emotion, Reason, and the Human Brain (London: Vintage, 1995). See also A. Damasio,  The Feeling of what Happens: Body and Emotion in the Making of Consciousness (London: Vintage, 2000), and A. Damasio, Looking for Spinoza: Joy, Sorrow and the Human Brain (London: Heinemann, 2003).

[v] B. Schlink, The Reader (London: Phoenix, 1998), 100-101.

[vi] ‘The principle of apathy, that is, that the prudent man at no time be in a state of emotion, not even in that of sympathy with the woes of his best friend, is an entirely correct and sublime moral precept’. I. Kant, Anthropology from a Pragmatic point of View (Carbondale: Southern Illinois University Press, 1978), 158.

[vii]T. Adorno, Negative Dialectics (London: Routledge, 1973), 363.

[viii] On the Decolonial Turn see W. Mignolo “DELINKING: The Rhetoric of modernity, the logic of coloniality and the grammar of de-coloniality,” Cultural Studies 21 (2007): 449-514.

[ix] R. Rorty, ‘Human Rights, Rationality and Sentimentality’, in S. Shute and S. Hurley, eds., On Human Rights: The Oxford Amnesty Lectures 1993 (New York: Basic Books, 1994).

[x] O. Equiano, The Interesting Narrative, (London: Penguin, 2003), 186.

[xi] R. Rorty, Philosophy and the Mirror of Nature, (Princenton: PUP, 1979), 359 & 363.

[xii] H-G. Gadamer, Truth and Method (London: Shed and Ward, 1998), 11 & 17.

[xiii] A. MacIntyre, After Virtue. A Study in Moral Theory (London: Duckworth, 1981), 140.

[xiv] B. de las Casas, Short Account of the Destruction of the Indies (London: Penguin, 1992).

[xv] P. Hulme, ‘The Cannibal Scene’, in F. Barker et. al. eds., Cannibalism and the Colonial World (Cambridge: CUP, 1998), 14-15.

[xvi] C. Perrone, Seven Faces. Brazilian Poetry since Modernism (Durham: Duke University Press, 1996), 52.

[xvii] Quoted in Prado-Bellei, ‘Brazilian anthropology revisited’, in F. Barker et.al. eds., Cannibalism and the Colonial World (Cambridge: CUP, 1998), 101.

[xviii]Juan de Turuegano, quoted by B. de las Casas, supra n. 14.

[xix] Supra 17, at 91& 93.

[xx] E.W. Sjoblom, quoted by S. Lindqvist, Exterminate all the Brutes (London: Granta, 1998), 20.

[xxi] O. de Andrade, Anthropophagite Manifesto, https://www.criticallegalthinking.com/?p=570#more-570

[xxii] L.A. Warat, Manifesto of Legal Surrealism, https://www.criticallegalthinking.com/?p=602

[xxiii] Supra n. 14.

[xxiv] Supra n. 22.

[xxv] Ibid.

[xxvi] Ibid.

[xxvii] E.W. Sjoblom, quoted by S. Lindqvist, supra 20, at 23-24

[xxviii] Supra n. 22.

[xxix] Ibid.

[xxx] Ibid.

[xxxi] Ibid.

[xxxii] Supra n. 14.

[xxxiii] U. Baxi, The Future of Human Rights (Delhi and Oxford: OUP, 2002), 4 and 126.

[xxxiv] U. Baxi, ‘Global Justice and the Failure of Deliberative Democracy’, in O. Enwezor, et.al., eds., Democracy Unrealised. Documenta 11–Platform 1(Ostfildern Ruit: Hatje Cantz Publishers, 2002) 126.

[xxxv] Supra n. 14.

[xxxvi] Supra n. 34, at 113-114.

[xxxvii] R. Mosquera –a member of a community of black peasants victims of the Colombian armed conflict.

[xxxviii] J-F. Lyotard, The Postmodern Explained: Correspondence, 1982-1985 (Minneapolis: The University of Minnesota Press, 1997), 78.

[xxxix] E.J. Glave, quoted by S. Lindqvist, supra n. 20, at 22-23

[xl] Supra 33, at 41 .

[xli] Supra n. 34, at 116.

[xlii] H. Mueller, The Hamletmachine

[xliii] Supra 34, at 116.

[xliv] Supra n. 33, at 113.

[xlv] P. Gourevitch, We wish to inform you that tomorrow we will be killed with our families: Stories from Rwanda (New York, Picador, 1998).