Karen Engle* and Zinaida Miller**
Anyone who has studied or worked with David Kennedy since at least the 1990s has likely heard him say that human rights are “over.” And yet, he has continued to dance with them over the years. While sometimes treating human rights as central to global law and policy and at other times considering them as constituting one vocabulary among many, David’s writing demonstrates that human rights are surprisingly trenchant.
David has been influential in each of our own journeys—even dances—with human rights. Because we first encountered him roughly fifteen years apart, we were each initially influenced by different styles of his dance. Here, we reflect on many of the moves and turns that we learned, separately and together, from him over the years. We each begin with an origin story.
Karen: In 1986, I went to law school largely to study public international law and human rights. I did not meet David, however, until after I had spent my 1L summer in Central America, in part traveling with human rights lawyers to various countries in the region to help with “training sessions” for activists on human rights law.
I learned something about the law of human rights that summer, but I primarily came to understand that the sessions were as much about offering solidarity and a safe place for anti-government activists to meet as they were about legal content. As a gringa, I also learned that one of my greatest contributions was being a bodyguard, and not only for official encounters. In San Salvador, activists asked me to accompany them to a nightclub so that they could dance, something they had been unable to do for many months. That was my first experience of literally dancing with human rights.
I returned to law school in the fall with many questions and reflections. What roles had I played that summer? Whom if anyone had I helped? What solidarities had I built and failed to build? And could I be both a critic and a human rights lawyer?
Sometime during that second year, I met David and read his 1985 article “Spring Break,” a keen and edgy self- and other- critical account of his 1984 trip to Uruguay on a human rights mission. He “performed” the role of lawyer, as he would put it, working alongside a physician and writer. Today, of course, self-critical accounts of human rights are plentiful. But David produced one before anyone else dared.
“Spring Break” was instrumental for my understanding of my Central American experience. While I had been troubled by my uncertainty, David relished his, seeking, as he put it, to “evoke the activist’s sense of not knowing what things mean or where they are going.” He hoped to explore “the ways our inability to know what was intrusive in a situation we had defined as foreign left us confused about our connections and responsibilities.” Despite my critical sensibilities, David said things that I had not been sure I could say. While I had felt strange about taking my swimsuit to El Salvador—tucking it into the corner of my bag just in case—David expressed that, as he was preparing for his trip, he hoped that he might return from his mission suntanned.
I don’t remember exactly when I read “Spring Break,” but I know that it was not assigned in the human rights class that I took that fall from a visiting professor. And when that professor asked for my advice on his course materials toward the end of the year, he rejected my suggestion—I recall, with a face of incredulity—that he assign the article. He might even have said that it was not a human rights piece.
David likely would not have disagreed. After he pulled the piece from the Harvard Law Review rather than make the editors’ changes that would have undermined his ability to express his “uncertainty in the face of suffering,” David published it in the Texas Law Review. In an appendix the editors requested, he did not situate the piece within the then relatively nascent field (at least in the United States) of international human right law but within the Critical Legal Studies (CLS) critique of rights and his own Derridean take on the critique. Ironically, given how controversial CLS was at the time and that David was up for tenure, it still seemed safer to affiliate with CLS than to expose the politics of the human rights movement and the (mere) humanity of those engaged in human rights work. Having already co-authored a human rights report for the medical and scientific organizations that sponsored him and others on the mission, David was arguably engaging in the split between advocacy and critique that would emerge over the years as advocates began to articulate their doubts—not in their advocacy but in “private,” or perhaps in academic writing.
As a law professor, I taught “Spring Break” to my human rights students nearly every year for two decades (1992-2012). For most of those years, the piece provoked intense debate. While some students always found it “daring,” “refreshing,” “important self-criticism,” and “humanizing,” those who found it “narcissistic,” “disrespectful,” or “sexist” were concerned less with whether David should have thought what he wrote than with whether he should have written what he thought.
But as scholars and activists alike began to be more critical of human rights—perhaps emboldened by “Spring Break”—the piece went from being taboo to almost passe. In my own classes it was around 2005 that the debate stopped. Students generally agreed that the piece is both riveting and an accurate reflection of tensions many of them had experienced. Coincidentally, that’s when Zina was in law school and reading David’s next forays into human rights.
Zina: The summer of 2004, after my 1L year, I interned at the International Justice Program of Human Rights Watch (HRW). Much of my work there involved the examination and analysis of jurisprudence emerging from the International Criminal Tribunals for Rwanda and Yugoslavia. I had come to law school with two vested interests that I had not fully understood as conflicting: human rights (particularly during and after conflict) and radical redistribution. After a spring 1L elective in a very doctrinal human rights class followed by a summer working in a program dedicated to international prosecutions, doubt crept in. Yet I had little language to express my frustrations.
I returned from my summer human rights work and walked right into David’s international law class. When I had told colleagues at HRW that I would be studying with David, their reactions ranged from skepticism to anger. Two years earlier, he had published “The International Human Rights Movement: Part of the Problem?”; for many at Human Rights Watch (where he had recently given a talk on the topic), the answer to that question was a resounding “no”.
“Part of the Problem” laid out a laundry list of potential costs of the human rights movement, one that had professionalized and institutionalized in the years since “Spring Break.” David suggested that those both inside and outside human rights were prone “to treat[ing] human rights as an object of devotion rather than calculation” and thus tended to miss or avoid the potential consequences of their actions. Advocates should attend to these unintentional costs, which included excluding other emancipatory vocabularies and tools, reinforcing the state, foregrounding process, and backgrounding economy.
“Part of the Problem?” was explicitly aimed at human rights advocates, whom it imagined as more powerful than those in “Spring Break.” David intimated that, in the process of professionalizing, advocates and activists had been seduced by their own tools and by the promises of rights themselves. They overidentified with the victims they claimed to serve and under-identified as the governors they’d become. Some of these costs, as he identified them, were ones with which human rights advocates just preferred not to grapple; others they struggled with privately and quietly; still others they thought were inappropriate, inaccurate, or ill-advised. The article was pitched in a tone of empathetic, friendly, almost-but-not-quite-insider critique and with a deliberate assertion of how this is just a “possible” list of faults. But it presented a damning picture.
My colleagues from the summer were frustrated by David’s assertions at every level: he was critiquing the entire enterprise of human rights advocacy; he was suggesting those advocates were powerful actors rather than marginalized defenders; and he was doing so from a comfortable perch in the Ivy League. (The fact that HRW’s offices were in the Empire State Building was an amusing irony). Yet I suspect there was also an underlying understanding that the critiques were more trenchant than any of us would have preferred. For me, “Part of the Problem” offered a vocabulary for my ambivalence about the very field in which I was already investing so much energy.
A way of thinking about my experience at HRW now that I could not have articulated then: I was surrounded by power struggles conducted by a series of people who saw power as something against which they were fighting – not something with which they were struggling. As David wrote around this time, “We [humanitarians] have a hard time focusing on costs in part because we do not think of ourselves as rulers. Other people govern, and it is our job to hold them responsible.” The human rights movement was supposed to be about resisting the state, but by 2003, the U.S. government was using human rights to go to war in Iraq and Afghanistan. The early 2000s were an inflection point for the field of human rights, one in which human rights advocates relatively rapidly had to come to terms with their own governance power, a power that David was now exposing before they were comfortable admitting to it—at least in public.
The need to recognize costs, consequences, blind spots, and biases shaped much of my work in the years that followed, particularly in transitional justice. I came to the field with both faith and questions: faith in the power of history, memory, and justice, and questions about how we narrated, prosecuted, and sought truth—and what we didn’t seek truth about in the first place. The centrality of economic maldistribution, for example, or the indelible nature of historical racial hierarchies. From David, I learned to ask how “good people…can go wrong, can entrench, support, the very things they have learned to denounce.” And I came to understand critique as a way to strengthen foundational projects of emancipation or redistribution, rather than as some nihilistic academic blow against humanitarian practice.
Karen and Zina
In 2004, David incorporated both “Spring Break” and “Part of the Problem” into The Dark Sides of Virtue: Reassessing International Humanitarianism, treating human rights alongside advocacy and policymaking in other areas such as refugee protection, development, and the laws of war. He identified in some of those areas of humanitarian governance the pragmatic calculations of costs and benefits that often accompany decision-making. In this sense, some actors were internalizing and even responding to critique.
After 2004, David told many of us that he had said all he needed to say about human rights in Dark Sides—and that human rights were definitely over. Yet, in 2009, he published The Rights of Spring: A Memoir of Innocence Abroad, in which he declared that human rights no longer represent “a common global rhetoric for justice.” But he didn’t exactly dance on the grave of human rights. Rather, he leaned in closer to figure out what might have happened.
Rights of Spring is a short book that intersperses parts of “Spring Break” with David’s musings about what had happened to the human rights movement since he published it. Discussing student reactions to his teaching “Spring Break” over the years, he noted what we had both experienced in our own teaching and advocacy: “[A]s the bloom came off the rose of human rights … our trip seemed to foreshadow what many then were discovering about the dark sides of human rights advocacy.” He described professionals who now not only saw the dark sides but brought them into their practice, engaging in precisely the cost-benefit analysis he suggested was necessary in “Part of the Problem.” At the same time, they had also developed “routine practices” to blunt the effects. That is, they had absorbed the critique, “like a sponge,” as he has put it more recently.1
Reacting to this routinization, David deepened a call for “disenchantment” that he had in fact begun at the end of Dark Sides. In Rights of Spring, he encouraged a revisitation of the “common ambivalence and confusion, excitement, boredom, and occasional vague nausea” that he had experienced and described in 1985, before human rights had become professionalized. He hoped “that in those befuddled moments we might catch a glimpse of the elusive and heady experience of human freedom and of the weight which comes with the responsibility of moments like that,” of having “the mysterious feeling of being free and responsible right now, of making it up for the first time.”
That might really have been the end of human rights for David, particularly given that he was well into a new phase of his career. In 1998, he had announced the end of “New Approaches to International Law,” a loose-knit group of public international law scholars that he had convened since the early 1990s.2 In his teaching and writing, he had moved toward global governance, with an increasing focus on political economy. And in 2009, he created the Harvard Institute for Global Law and Policy (IGLP).
Yet human rights did not disappear from his work. In 2016, he published A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy, an ambitious examination of global governance. World of Struggle argues that the unequal and hierarchical arrangements of the global order emerge as a result of pitched battles among experts who hide the distributional politics of their struggles behind a veil of rational decisionmaking. Human rights professionals are only one among many groups of experts he describes, but his critiques born in human rights are everywhere.
Here, human rights professionals (among other experts) are indeed disenchanted—but sophisticated in their disenchantment. Rather than taking more responsibility or experiencing more freedom, they have become increasingly adept at avoiding both. Ultimately, they believe they are participating in the right project, not reinforcing an unequal, hierarchical system. The move to simultaneous sophistication and disenchantment reveals that critique is contributing to the engine rather than throwing a wrench in the works.
By the time of David’s 2023 book of conversations with Martti Koskenniemi, Of Law and the World, human rights take up even less space. Yet, in one of the conversations, David puts “human rights” as first in a list of “regimes”—followed by “European law, international economic law, comparative law, law of economic development.” Notwithstanding his tedious repetition of the term “law,” he does not attach it to human rights—they constitute the only field that doesn’t modify law.
Indeed, for all the important work that David has done to challenge the human rights movement over the decades, he has paid remarkably little attention to the law that the movement lawyers often rely on: international and regional human rights law and often domestic constitutional law. Even when David’s principal focus was public international law, he did not see human rights as central to the field. His move to global governance both named human rights as a regime of many and left out the public law around which it is largely organized as well as the huge institutional legal capacity that it has built and maintains.
David’s side-stepping of international human rights law, of course, has allowed him to push those in or adjacent to the human rights movement in important ways. Absorption or not, his call in “Part of the Problem?” for movement lawyers to pay attention to the distributive “effects of a wide array of [backgrounded public and private] laws that do not explicitly condone violations but nevertheless affect the incidence of violation in a society” has arguably had an impact on the expansion of human rights advocacy to address broader political economic issues. As Susan Marks demonstrates, human rights advocates now routinely claim to attend to root causes, even if they often fail to do so.
We have also both been engaged in critiques about what human rights advocacy and transitional justice mechanisms miss or background. But we have found it important to see as part of the problem the power that the advocacy wields through public international law doctrine, particularly in its deployment of criminal law. Not only has the human rights movement supported the development of international criminal institutions but it has succeeded, through international and regional human rights law, in the imposition of positive obligations on states to police, prosecute, and increase punishment for what it considers to be serious human rights violations. The turn to criminal law, ironically, is largely in response to the sense of lack of power that David arguably experienced in “Spring Break” and that he sought to have advocates claim in the subsequent work that we have discussed.
We find ourselves returning to human rights law not only to debunk it as a liberatory tool or to demonstrate that it is part of the problem for what it misses or enables, but to engage it for what it does quite directly. We believe that we need to counter human rights law for its negative distributive effects in the same way that we respond to the very laws that it backgrounds. We might want to use it to distribute differently. Or not. We might even want to abolish some parts of it—say, international criminal law or the imposition of positive obligations to police and punish—as part of a larger distributive project.
Would a proposal for penal abolition lie outside the realm of possibility? David reminds us in A World of Struggle that limits continue to exist. As human rights professionals operate strategically between denunciation and pragmatism, they operate against the threat of more forceful critiques of “idolatry, enchanted tools, loss of practical sense” on the denunciation side, and “instrumentalization and loss of ethical moorings” on the pragmatic side. Calls for penal abolition would seem to exceed both.
Where should we aim our critical projects? Should we work within the boundaries, attempt to expand them bit by bit, or lob them at places that we imagine are clearly outside the boundaries? And what do we do if we find in fact that there are fewer boundaries than we imagined? How can we prevent institutions, like human rights, capitalism, and even the carceral state, from absorbing critique? What explains the “strange resilience” of these systems, as David put it in World of Struggle?
For us, part of understanding and responding to that resilience takes the form of teaching. We learned that from David as well. Indeed, he wrote World of Struggle “with those of my students in mind who embrace the possibility that their generation could transform this world through the slow hard work of remaking the terms by which struggles are carried out, gains and losses distributed, and the status of forces consolidated as order.” The responsibility he invokes is not only for activists, advocates, and experts but also for himself as a teacher of teachers who, like us, are trying to foster in future generations the ability to find their own forms of disenchantment, struggle, and transformation.
We started this essay by talking about David’s dance with human rights—one where maybe he started off flirtatiously (a salsa?), then settled in for a sedate waltz, got a little bored with his dance partner and tried to switch it up (sidling up to IGLP or towards political economy and away from virtue fields). And yet human rights never quite go away, wallflowers though they may occasionally be. We’ve given a lot of reasons for that. But here’s one more twist: at the end of the day, we feel secure saying that David’s primary commitment isn’t to one field, one mode of critique, or even one attitude of disenchantment. It’s to his students and their students, past and present. And that dance—those dances—will keep right on going.
*Karen Engle is Minerva House Drysdale Regents Chair in Law and Founder and Co-director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.
**Zinaida Miller is Professor of Law & International Affairs and founding co-Faculty Director of the Center for Global Law & Justice at Northeastern University.
- David’s diagnosis held not just in the human rights world but also in humanitarianism. In Palestine, for instance, where Zina’s work centered, there was a long tradition of both humanitarian and human rights professionals doing their work while doubting its efficacy. By the 2000s, international humanitarian experts were unabashed about articulating the costs of much of their work in ‘subsidizing the occupation’ and yet could not imagine an alternative. Many of them walked into their jobs seeking to do unalloyed good, discovered that their work was propping up a regime of violent and systematic subordination, began to doubt their tools and practices, routinized those doubts in cynical asides and private conversations—and largely retained their belief in the work. They saw the costs and continued the work; in the end, the system remained stable. ↩︎
- David Kennedy, When Renewal Repeats: Thinking against the Box, 32 New York University Journal of International Law and Politics 335, 490 (1999–2000). ↩︎