Sociology

http://soc.sagepub.com/ Asia, Enforceable Benevolence and the Future of Human Rights

Anthony Woodiwiss Sociology 2012 46: 966 DOI: 10.1177/0038038512451531 The online version of this article can be found at: http://soc.sagepub.com/content/46/5/966

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SOC46510.1177/0038038512451531WoodiwissSociology

Article

Asia, Enforceable Benevolence and the Future of Human Rights

Anthony Woodiwiss

Sociology 46(5) 966981 The Author(s) 2012 Reprints and permission: sagepub. co.uk/journalsPermissions.nav DOI: 10.1177/0038038512451531 soc.sagepub.com

Seoul National University, Republic of Korea

Abstract
What happens to human rights discourse in Asia will be of critical importance to the future of the whole human rights project. There are at least three possible scenarios: acceptance, rejection and transformation. Majority western opinion hopes for the first but expects the second. This article argues for the third, transformation. Central to the argument is the construction of an ideal type enforceable benevolence of a distinctively Asian human rights regime. Although this ideal type has been constructed on the basis of a consideration of Asian thought and practice, it has yet to be fully realized anywhere. In the meantime it represents a sociologically appropriate standard against which to judge the progress or not of Asian societies towards the realization of what I argue is their own vision of human dignity.

Keywords
Asia, enforceable benevolence, human rights, sociology of human rights

In order to connect human rights with more familiar sociological concerns, I begin by making four statements that summarize my understanding of the basic precepts of the sociology of human rights. First, for sociologists, human rights are not to be understood as sacred statements of humankinds highest ethical aspirations but as a set of means to an end and a melancholy end at that: the protection of human beings from abuses of power (cf. Badiou, 2001). Thus, like rights more generally, human rights are simply a collection of discursive entities that, to quote Paul Hirst (1979: 104), serve certain socially determined policy objectives and interests. Minimally, therefore, taking a sociological approach requires that one historicizes and provincializes human rights in the sense that one should never forget the local conditions determining the policy objectives and interests involved, whether
Corresponding author: Anthony Woodiwiss, Seoul National University, Gwanuk-gu, Seoul, 151746, Republic of Korea. Email: tonyw@snu.ac.kr

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one is concerned with the countries where human rights originated or with those to which they have been exported. Second, as can be learned by reflecting on the classical sociological texts on law produced by Karl Marx (Cain and Hunt, 1979), Karl Renner (1949), Evgeny Pashukanis (1980), Max Weber (1980) and Emile Durkheim (1957), human rights again, like rights more generally, represent the tip of a social iceberg; that is, contrary to what is argued by the natural law tradition, rights are neither a gift from god nor for any other reason immanent within humanity. They are therefore also neither self-generating nor self-enforcing, but are instead humanly produced assemblies of discursive elements whose effectiveness is largely determined by the goodness of fit between these assemblies and the wider sets of social relations within which they are located. Third, thanks more particularly to the developments of the aforementioned classical writings represented by Antonio Gramscis concept of hegemony and Michel Foucaults discourse theory, rights regimes, whether national or international, may be read genealogically as indices representing the disposition of power in the pertinent jurisdictions. Consequently, the coverage, content, inclusions, and exclusions of rights texts tell us not only who is protected against what, but also what sort of people and which aspects of social relations are (or are not) especially valued by the governmental body responsible for constructing, approving and enforcing the regime. Fourth and in sum, for sociologists human rights are nothing special but simply a subset of the much larger set of social relations that produce and enforce behavioural expectations, a subset distinguished by their legal form and their focus on the limitation of abuses of power. The result is that, just as there is far more in rights than law alone, so for rights to work far more than law alone is required. In other words, like the law in general, human rights do not and cannot carry the whole or even much of the weight, so to speak, of ensuring that the desired social expectations are met. Thus where they are effective they simply reinforce other means of preventing and punishing abuse by making the provision of certain specific civil, political, economic, social and cultural entitlements and protections legally enforceable. What makes the sociological study of human rights exciting is that as a study of policy it necessarily has a normative dimension, since in studying human rights one is unavoidably studying their effectiveness as instruments for alleviating human misery. What may make the sociology of human rights important is the fact that it may be able to contribute to the further alleviation of this misery. For once human rights are understood sociologically as assemblies of elements that have been put together in a particular way because of the conditions under which they were created, it becomes possible to think that these elements could be assembled differently and as a result could be made even more effective in reducing human misery at other times and in other places.1

Provincializing Human Rights

Considered sociologically, then, human rights are a set of minimum, indeed minimal, standards of good behaviour drawn up by states to protect their citizens from abuse by the same states and certain other powerful parties. In the countries of the West, where our present conception and specification of human rights originated, several of the key

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entitlements or protections that we now term human rights first gained legal form as part of the process whereby capitalism established itself during the 17th and 18th centuries.2 Notable amongst them in the English case were those entitlements/protections that are constitutive of liberty such as habeas corpus, freedom of movement, and freedom of thought. Critical to the success of this legal recognition of what was then a new set of social relationships was the more or less simultaneous philosophical and jurisprudential propounding of the grand fiction that what appeared to be a new set of civil and political entitlements/protections were in fact the rediscovered ancient and inherent natural rights of all individual human beings. Dictated by god and/or reason, this new set therefore took precedence over all others, or so it was, and often still is, argued. What is important in the present context is not so much the sleight of hand involved, although this is certainly not without significance, but rather the eventually hegemonic character of what was achieved. That is, to use Ernesto Laclaus vocabulary (Laclau and Mouffe, 1985), the triumph of the grand fiction was achieved by the pan-discursive establishment of an identity or equivalence between the signifiers liberty or freedom on the one hand and private property on the other (the locus classicus was Blackstones Commentaries, 1765). Consequently, signifiers like commons and labour were subordinated to private property and therefore under certain circumstances became freedoms antagonists for example, criminal conspiracies in the case of collective labour organizations (Woodiwiss, 1990b: ch. 1). But, and this is seldom fully appreciated, hegemony cuts both ways in that hegemonic discourses constrain rulers as well as the ruled since by their constant repetition in everyday life as well as in official discourse they create a popular presumption that rulers too should abide by what after all are their own values and laws the hymning of the freedom of some can quickly turn into a desire for freedom for all:
I will not cease from Mental Fight, Nor shall my Sword sleep in my hand: Till we have built Jerusalem, In Englands green and pleasant Land (William Blake, 1808: Jerusalem)

Historically, there may have been a considerable time lag before this presumption gained the legislative form of an administrative law statute but in the meantime there was nevertheless considerable pressure on rulers to abide by it and this pressure eventually proved impossible to resist for reasons of political calculation if for no other. Once any entitlement/protection has been declared god-given or required by reason, and especially once the mass media are present, such an entitlement/protection cannot be easily gainsaid by anyone no matter how high their office theft is theft, whether committed by a house or a state servant, and if freedom of association is good for property owners, it is good for labourers too. Thus the specifically social fact of the hegemony of capitalist law with its defining commitment to the methodological principle of consistency (Woodiwiss, 1990a: ch. 5) and not simply the laws content contributed significantly to

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the establishment of that semblance of justice in the relations between states and their members that we now know as the rule of law (Woodiwiss, 2005a: 604). It is my contention that the structural constraint on the actions of the state so achieved is what ultimately protects citizens rather than any behavioural effects directly attributable to particular rights. Where, for example, the right to freedom of expression is respected it is not so much because it has been specified as a right in a constitution or statute but rather because freedom of expression is respected as a condition of that societys ordinary functioning. Given this starting point, taking a sociological approach immediately enables one to see that non-European states are at a considerable disadvantage as regards respecting human rights since especially the individualistic values that are embodied in the current array of human rights are not intrinsic to the ordinary functioning of such societies. Thus it is not surprising that as yet there is no Asian equivalent to the European Convention on Human Rights let alone to the court that enforces it. But does this mean that Asian states face an insuperable difficulty when it comes to accepting that human rights can limit their behaviour towards their citizens? If it does, this is bad news not just for Asians but for the future of human rights more generally since the worlds centre of social gravity seems to be shifting inexorably towards Asia. And shifting to an Asia that, contrary to much contemporary opinion, is most unlikely ever to become a social simulacrum of the West no matter how much its middle classes might grow. Consequently, it seems prudent to some commentators to follow Samuel Huntington (1997) in believing that Asia will ultimately reject human rights. Although I agree that Asia will never become a social simulacrum of the West (Woodiwiss, 2005b: ch.9), I take a more optimistic view than Huntington of the fate of human rights in an Asia-led world for three interlinked reasons. First, in general terms, rights discourse has been here before; that is, when it had to respond to the socialist challenge. And the outcome was positive, namely the granting of natural or core status to certain economic, social and cultural rights despite their accompanying limitations on established liberties, notably those of the owners of private property in the means of production. The result was a broadening of the range of states that would eventually consider human rights to be compatible with their values and consequently were prepared to curb the use of their power. Second, again as in the case of the socialist tradition but in a rather different way, individual personhood is understood in Asia as a matter of relationships rather than of the monadic singularities known to liberalism. Third, Asia is heir to a vibrant set of multi-stranded traditions that is every bit as concerned with the protection of the dignity of the person as that articulated by the western advocates of individual autonomy and/or socialism (Kelly and Reid, 1998). Consequently, as recent events across the Middle East attest, the desire for the protections represented by human rights can be every bit as keen in Asia as elsewhere. All that said, anyone interested in the possibility of constructing protections for human dignity out of Asian social and cultural resources has to overcome the enormous obstacle represented by the positive view of hierarchy that affects all these resources (the nature of this obstacle is especially well described by Howard and Donnelly, 1986). Moreover, this is a task that cannot be shirked or avoided by simply repeating western rights discourses since the latter have little or no social resonance in Asian societies

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except amongst an heroic but eccentric minority. Historically, the repetition of fragments of such discourses in post-colonial constitutions and the like did not secure the desired protections (for the failure of transplanted labour rights to reproduce anything like the same levels of unionization in Asia as in the West, see Woodiwiss, 1998), so there is no reason to think that it would do so today or will do in the future. In the late 18th century Jeremy Bentham (1970[1782]) made his subsequently much-derided prediction that the idea of natural rights nonsense on stilts would usher in a period of anarchy and mayhem. He was correct in that capitalism spawned recurrent economic crises and many new and often violent industrial conflicts. Now something similar but more often politically rather than economically inspired is happening in Asia because of the idea of human rights. And the discourse of human rights will continue to have this effect until it is appropriately transformed. The challenge, then, is to find a way not simply to transform human rights discourse so that it fits Asian conditions better but also so that, at the same moment, it transforms a set of social and cultural resources that have historically produced tyranny and corruption in such a way that they become instead the guarantors of individual entitlements and protections. In what follows I elaborate on this last point with a view to answering a question that is too seldom asked even within Asian discourses of rule themselves, namely Under what conditions and how exactly can Asian discourses and resources be made to be protective of human dignity? To this end I set out an ideal type of a distinctively Asian human rights regime enforceable benevolence that while it has been constructed on the basis of a consideration of Asian thought and practice has yet to be fully realized anywhere in that huge and very diverse region (for an argument that Singapore is the closest approximation, see Woodiwiss, 1998). My hope is that the construction of this ideal type will increase the chances that it will be more fully realized in the future. In the meantime I hope that it may serve as a culturally or, better, sociologically appropriate standard against which to judge the progress of Asian societies towards the realization of their own vision of human dignity.

Discovering Enforceable Benevolence

The sociological story of human rights, then, does not begin in the romantic way beloved of liberal historians and western commonsense, namely with John Lockes supposedly disinterested rediscovery of a god-given freedom that had been in danger of being totally lost. Instead, it begins with an historically unparalleled assertion of state power on behalf of a particular subordinate group for whom Locke spoke, namely the owners of private property in the means of production (Burchell and Gordon, 1991; Woodiwiss, 2005b). Power, then, was the progenitor of freedom rather than its antithesis. Scandalous though this idea will sound to many in the West, it will sound obvious to anyone schooled in one or other of the Asian ethics of the way and according to which freedom is to be found in doing what the gods, prophets, or nature requires. Confucians, especially, are unburdened or should be by such metaphysical ideas as god, original sin, conscience, freedom, and the individualism that these ideas ultimately made possible. Consequently, they have always understood two sociologically significant things about the sphere of governance: first, everything in this sphere is a profane and concrete matter of power and its

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disposition, whether one is talking about ideas or the institutions and actions of the state; and, second, the individual is always part of a group and therefore could and should be ruled through the group. Consequently, until recently, and despite a fear of bad governance on the part of the people that has always been just as keen in East Asia as it has been in the West, liberal governmentalities that seek to prevent the abuse of power by dispersing it and so making it difficult to monopolize have seldom been deployed or even demanded in East Asia. Indeed the preferred method of offering protection from the abuse of power has traditionally been, and remains, the concentration of power in specific and readily identifiable social locations. Ideally, these locations should be occupied by people who have been rigorously trained in a way of wisdom and virtue rooted in trusting the people, and who consequently rule with a light touch and who can ultimately if not easily be held to account through the petitioning of higher authorities. The classic example of such a group was the mandarinate of Imperial China. So deeply entrenched does the preference for this mode of social protection remain in much of Asia that, for example, neither the Communist Party of Chinas substitution of itself for the mandarinate nor the United States post-war, forced democratization of Japan did much to undermine it. Regardless of whether it is actually a matter of choice or simply a matter of necessity, most people in both countries would still much prefer to have a trusted higher authority sort out their problems in a way that does not disturb their ongoing social relations rather than assert their rights in a socially disruptive way by initiating any sort of public or even legal action (Haley, 1978, 1982; Henderson, 1978; Tanaka, 1982: chs. 3 and 4; Xia, 1992). Nevertheless, and as was demonstrated by the Japanese peoples enthusiastic embracing of democracy after the Second World War as well as by the very determined and eventually successful campaigns for democracy in Taiwan and South Korea during the 1980s, respect for authority figures and their actions in Asia generally has become much more conditional than it used to be and advisedly so for reasons that I now outline. In my view the place to begin trying to understand the claim that a mode of governance like that to which I have just been alluding might qualify as a mode of securing respect for human dignity is Webers ideal type of the elementary form of legitimate traditional rule, namely patriarchalism. Weber, who as it happens constructed this ideal type in the course of his studies of the worlds (that is, Asias) great religions, defined it as follows:
[It] is the situation where, within a group (household) which is usually organized on both an economic and kinship basis, a particular individual governs who is designated by a definite rule of inheritance. The decisive characteristic is the belief of the members that domination, even though it is an inherent traditional right of the master, must definitely be exercised as a joint right in the interests of all members and is thus not freely appropriated by the incumbent. In order that this shall be maintained, it is crucial that in both cases there is a complete absence of a personal (patrimonial) staff. Hence the master is still largely dependent upon the willingness of the members to comply with his orders since he has no machinery to enforce them. Therefore the members are not yet really subjects. (1968: 231, emphasis added)

For Weber, then, patriarchalism or familialism as I shall call it from now on is a strictly hierarchical discourse of rule wherein the head of the house is prevented from abusing

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subordinate family members by his lack of administrative capacity and his economic dependence on these same family members.3 Clearly, contemporary state and economic forms and capabilities mean that todays Asian rulers neither lack administrative capacity nor depend on their kin for economic support. Consequently, familialism has become paternalism insofar as benevolence has ceased to be a duty and become instead a discretionary instrument of power. This, then, is why respect for todays rulers is rightly much more circumspect and conditional than it used to be. For familialism to be legitimate today, surrogate constraints for the traditional ones have to be in place if domination [is to be in fact] exercised as a joint right. As the Arab Street knew throughout the long and bitter political winter that in my view was caused by studied western neglect rather than anything going wrong in the Arab lands (Lewis, 2002), the best available surrogates are those invented, tried and tested in Western Europe in the course of the same displacements of kinship by the rise of the state and capitalism as are currently occurring across Asia at such an extraordinary pace. These surrogates are the rule of law, which prevents power being freely appropriated by the incumbent, and representative democracy, which ensures that the compliance of the ruled is more or less freely given. Were the discourse of rule to remain familialist and were these surrogates to be in place, the result would be a mode of governance that I call enforceable benevolence (Woodiwiss, 1998, 2003) wherein, whilst social relations would remain distinctly hierarchical, the content of benevolence would be democratically decided and its delivery legally enforced. But can one speak of rights where there would be few or very limited freedoms and where indeed there might often be little desire for them? In my view the early 20thcentury American jurist, Wesley Hohfeld (1919), long ago provided us with the means necessary to give a positive answer to this question. Specifically, it is his disaggregation of the rights concept that makes it possible to see that the duties and obligations central to familialist discourse may be construed in such a way as to be seen as the equivalents of liberties and freedoms in their social consequences. This disaggregation, then, is the idea that creates the possibility of the articulation of social difference within human rights discourse through the special kind of translation that it allows; that is, intra- as well as inter-textual translation. What makes this mode of translation special is that it is not only a matter of the possibility of exchanging one right for another (inter-textual translation), such as a civil liberty for a social or economic right, but also of the possibility of rewriting both kinds of rights in each others terms (intratextual translation). What this means practically is that not just economic and social rights but civil and political rights too could be rewritten as responsibilities or duties laid on the state and the powerful more generally. In saying this, I am in fact simply rediscovering and making explicit a possibility that is implicit in the original legal meaning of duties and responsibilities (Hohfeld, 1919) in the realm of rights (cf. Kuper, 2005). It perhaps tells us a lot about the intellectual quality of contemporary political debate that this meaning is pretty much the opposite to that typically given by those in Britain and elsewhere who today say they would like to see rights balanced by duties and responsibilities. Legally, any freedom granted to an individual imposes a duty or responsibility on the state to ensure that the individual can actually exercise that freedom. By contrast, those, often claiming jurisprudential backing, who speak today of

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the importance of duties balancing rights see giving new emphasis to the duties of individuals as a means of reducing the duties of the state. According to Hohfeld, and I have changed his nomenclature slightly to make it compatible with contemporary usage, rights may be understood as discursively defined clusters of: liberties to perform certain actions; claims or expectations vis-a-vis others; powers allowing participation in decision-making; and immunities against prosecution and/or civil suit when pursuing ends that are otherwise defined as illegal.

What this suggests to me is that, provided democracy and the rule of law are present, human rights may be effective policy instruments despite, or indeed because of, their uneven development along one or more of these dimensions. That is, given that the different elements of rights both imply one another and result in similarly protective outcomes, the more there is of any one of them, the less need there is for the others. To elaborate with respect to liberties and claims: if liberties are clearly and broadly defined, there is less need for their implications in terms of claims or powers to be spelt out, since the existence of the latter are juridically and socially implied, albeit as a last resort in order to enable people to exercise their liberties. Thus even the ultra liberal USA has some sort of social safety net, shockingly inadequate though it may be for such a rich country. By contrast, if claims are clearly and broadly defined, there is less need for their implications in terms of liberties or immunities to be spelt out, since acceptance of the existence of claims against another juridically and socially implies acceptance of ones liberty to require their satisfaction, albeit again as a last resort as is the case throughout East Asia, despite the disturbing lack of lawyers. Neither the institutions through which claims are delivered nor the social behaviours directly protected as claims are the same as those that deliver, and are protected as, liberties but a similar protective effect is achieved for example, in the case of the Japanese as opposed to the American industrial relations system, enterprise rather than craft or industrial unions represent employees and conflicts are more often resolved by mediation or conciliation than by strikes or lockouts. But why should one think that the translation of liberties into claims is likely to be effective as part of a strategy for empowering the weak and the meek? Elsewhere (Woodiwiss, 1998, 2003), I have argued at length that substantial evidence for the effectiveness of such translations may be derived from the historical experience of the West. Put briefly and for example, only the USA has a labour rights system whose critical premise is a liberty, whilst there are in other western countries not only wholly justiciable but also, in their contexts, far more effective systems that have been democratically approved and rest on liberties translated into immunities (Britain) and powers (Australia and France), claims (Sweden), or both (Germany). Thus, despite their often constitutionally guaranteed freedom of association, unions in the West have often felt able to accept qualifications to their independence and autonomy. These qualifications include the virtually universal requirement that they should register with a state agency which is

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typically able both to require that union constitutions contain certain basic elements and to exercise an oversight over their internal affairs and so ensure that the constitution is observed. Also there are many laws that restrict the organizational, tactical and even strategic and political options available to unions. What allowed trade unions to accept these qualifications to their autonomy and indeed freedom of association was not only the confidence imparted by participation in a wider set of democratic institutions but also the fact that these qualifications have had a positive side in the form of some bargained compensation for this acceptance. Typically this compensation has taken the politically mediated, intra-textual translated form of legally enforceable powers or claims as exemplified by participation in decision-making and a wide array of statutory contractual entitlements such as paid holidays or overtime payments, plus welfare entitlements of many and various kinds. It is, then, the primacy of the legislature amongst the apparatuses of the state that is the critical prerequisite if intraand inter-textual translation are to be possible in a particular jurisdiction. This prerequisite is in fact in place in virtually all the worlds democracies save one the USA, where the judiciary has the last word. Partha Chatterjee (1998) has deepened our understanding of why such translations can work. Chatterjees key discovery is that, as in fact was the case in the West too, neither colonial states nor their post-colonial successors ruled in the way that liberal political theory suggested that they do or should do that is, by recognizing individuals as sovereign powers and therefore the creators of a civil society which in the end controls the state and with which the state has to deal as the ultimate source of sovereignty. Instead Chatterjee, in his reworking of the insights summarized in Gramscis concept of hegemony and Michel Foucaults reflections on liberal governance (Burchell and Gordon, 1991), argues that wherever they have been located states have actually ruled on the basis of their own presumed sovereignty (vide, the western doctrine of the divine right of kings). And in India it did so not by constituting individuals as autonomous subjects but by constituting them as members of what are often termed communities such as castes, tribes or ethnic groups. This was done for the states own governmental purposes, whether they were matters of economics, public order, health, education or whatever (cf. the relationship between western monarchs and the estates and indeed parliaments they created, also for their own purposes.) Chatterjees point is not so much that state discourse about communities is phoney, although it often is, but that, phoney or not, it is how the state actually relates to its citizens and therefore represents, wholly unintentionally, the provision of a means through which the population may in time be able to transform itself into some form of sovereign citizenry. Even the most authoritarian regimes organize their populations into groups and institutions, so the general point to be taken from Chatterjee is that the way to democratize the state and civilize capital in familialist societies is not so much through painstakingly trying to create a civil society independent of the state that might anyway be an illusion but, instead, for individuals and groups to return the interest and attention of the state regardless of where, when or how the state takes an interest. This is a thought that clearly has wide and counter-intuitive implications for the contemporary West too in that (contra much western communitarian theory for example Putnam, 2000) it suggests that the alleged contemporary decline in the vibrancy of civil

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society is more likely to be caused by the social retreat of the state than by the states activism. I will return to these implications in my conclusion. The more immediate point to be taken from all this is that where, as in much of Asia and the global South more generally, governmentalities produce civil societies rather than vice versa, not only are states, almost by definition, better able to cede claims and powers than respect liberties and immunities, but also when pressured they have actually delivered in circumstances where individuals or even collectivities such as trade unions have found it almost impossible, as the post-war histories of Japan, Hong Kong and Singapore all attest (Woodiwiss, 1992, 1998).

Exploring Enforceable Benevolence

In sum, my suggestion is that locally valued aspects of Asian difference and indeed communitarian approaches more generally may be preserved within the sphere of human rights through allowing the translation of liberties and/or immunities into powers and/or claims. The principal advantages of embracing the general idea of intra and inter-textual translatability and the more specific idea of enforceable benevolence are threefold. First, intra- and inter-textual translation provide internationally legitimate means with which to recognize and reconcile social and cultural differences. Second, the regional re-modeling of human rights as enforceable benevolence would make human rights discourse more effective in Asia since it would enhance the discourses capacity to enjoy the hegemony effect by drawing osmotically, so to speak, on already deeply embedded local understandings of moral economy or economic justice (Scott, 1978; Thompson, 1976), as well as on the more diffuse structures of feeling (Williams, 1976) that at the deepest level shape peoples emotional senses of what is proper and improper conduct and ultimately of what is right and wrong. And third, the acceptance of enforceable benevolence as a legitimate human rights regime would reduce the perception of human rights as an alien idea in Asia since it enables one to see that many more people in many more countries and perhaps particularly in East Asia are living or have been able to live a dignified life than has hitherto been thought. This is because many programmes and practices that one might not have considered to be rights-protective in fact turn out to be so vide the legally enforced economic and social claims enjoyed by many people in Japan and Singapore, or the politically enforced power to participate in decision-making concerned with the organization of work and the making of social provision enterprise rights enjoyed under the Chinese danwei system. More generally, it should also be noted that wages in East Asia typically include elements such as family allowances, and contributions to the payment of hospital fees, meal and travel expenses, all of which are paid on the basis of need rather than market value. Finally, in the economic sphere at least it should also be said that there is actually rather more liberty in Asia than is commonly appreciated. The sine qua non for the delivery of any set of rights is the states possession of the power to tax personal and corporate incomes. Where such taxes are high state support levels are also high. However, where tax rates are low, as they are throughout East Asia (Japan, Taiwan, Hong Kong, South Korea, China), this should be regarded not simply as a explanation for the parsimony of the state but also as indicative of a high degree of economic liberty, since people have

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greater freedom to make their own arrangements with respect to providing for those needs that are met by the state in high tax countries. Of course this may well be regarded as an unwanted enhancement of liberty and certainly it puts enormous strains on families (Chang, 2010) and therefore enhances the liberty of those who earn high incomes far more effectively than it enhances the liberty of those who earn low incomes. However, it is a liberty nonetheless. Moreover, there is another source of state revenue which is perhaps unique to Asia and which can be, and certainly in some cases is, used to compensate for the unequal consequences of low tax rates. This is the states retention of title with respect to the ownership of land. Thus, reflecting the absence of any notion of private property as in any sense an absolute or ancient liberty, in Hong Kong, Singapore and indeed China, private entities, whether they are individuals or corporations, cannot own land outright but may only temporarily possess it on a leasehold basis. The state therefore has access to a very substantial income stream that is created by its ability to create leases and both sell and resell them.

A Matter of Form not Substance

All that said, it is very important that I make it clear that the elements of Asian difference that I am seeking to reconcile with human rights are of a generic and structural kind rather than matters of substantive ethics. That is, my aim has been to explain how human rights in Asia could gain what could be called the hegemony effect that they enjoy in the West, namely the reinforcement represented by the presumption that the state should abide by its own values and laws. Thus what is being suggested is not the adoption of some kind of neo-patriarchalist morality, whether Confucian, Islamic or whatever, but rather the acknowledgement of the possible existence of what might be termed a rights friendly, familialist-like structural carapace or shell whose substantive content (that is, the precise nature of the responsibilities laid on the state and the more powerful) would be the product of contemporary democratic and/or judicial debate and decision. Thus, as is also the case under liberal and social-democratic rights regimes, the substantive ethical content of any regime of enforceable benevolence would be, for example, as positive or negative with respect to womens rights as democratic and/or judicial debate and decision wished or allowed it to be. Counter-intuitively, it might even be that once familialism was articulated with democracy and the rule of law it might turn out to be more receptive to the idea of gender equality than liberalism and social democracy have so far proved to be. I say this because, as Carol Gould (2004) has pointed out, the feminist notion of an ethics and politics of care (Robinson, 1999) has its roots in the originally patriarchalist values of benevolence and reciprocity. Looking to the future, Gould herself derives from these values a non-gendered ethic of receptivity which refers to responsiveness to others in terms of their individual differences and needs (2004: 101) that is to me richly suggestive as regards how familialist and feminist values might be reconciled with one another. The most immediate and obvious consequence of any movement in the direction of enforceable benevolence in Asia or elsewhere would be a difference as compared to the other two regimes in the identities of the actors and institutions on whom or on which the burden of enforcement would fall. Under the other two regimes this burden falls on

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actors individuals and collectivities such as trades unions, NGOs, political parties who may generally be relied upon to summon up the necessary will to enforcement because of their own vested interests. By contrast, under enforceable benevolence this burden would today fall on a much more differentiated and diffuse group of superordinates than the mandarins of Imperial China. Indeed, so differentiated and diffuse is this group that it encompasses virtually the whole population, albeit to greatly varying degrees in different countries. This is because in East Asia, especially, almost everyone is involved in the multiple dyadic hierarchies (sempai [senior] / kohai [junior] in Japanese) which comprise the informal infrastructure of almost all institutions (Nakane, 1970). Consequently, most people are complicit with the norms and practices of hierarchy since everyone plays the roles of junior and senior simultaneously as well as serially and so experiences hierarchys pleasures as well as its pains. In addition, the entire institutional structure is suffused with the emotion that is generated within the dyads. The net result, however, is not simply that such institutions are, as the Japanese like to say, warmer than their western equivalents but also that they are sometimes oppressively so. As has also been discovered in the course of efforts to combat racism and sexism in the West, the interests of those who, like sempai, exert such subtler pressures are seldom directly at stake until they become liable to be held to account by a supervisory body such as an activist and independent Human Rights Commission. The role of such a commission should be and most often is not so much to punish individual abusers as to instruct the whole population in new or different ways of virtue. In the West human rights enforcement tends to be retroactive and a matter of punishment because we persist in thinking that the individual is ontologically prior to the social. In East Asia especially and by contrast, human rights enforcement is much more preventative and educative in nature since it is believed that the social is father to the individual. Thus the role of Asian human rights commissions where they are already established, notably in South Korea and Japan (Neary, 2002), in combating abuse is already much more significant than in the West and it is likely to become evermore so. Nevertheless, none of what has just been said should be read as meaning that such institutions should or could displace either individual or collective efforts (for example by trade unions and other NGOs) to gain redress. This is because, although there are some very broad general differences between the West and Asia, there are many varyingly significant similarities that evoke, allow, and/or require similar modes of response. One of these similarities is that in both cases the state is expected to police itself albeit under the structural pressure for compliance generated by the fact that all it is being expected to do is to abide by its own values and laws. And in both cases the only way to be sure that this is indeed what is happening is for each state to accept not only rigorous internal oversight by a fully independent human rights commission but also rigorous external oversight in other words, Asia would still need its own human rights convention and court even if enforceable benevolence became established in each individual state.

Learning from Enforceable Benevolence

Just as western modes of preventing abuse and seeking redress continue to have their uses in Asia, so in the future Asian modes of prevention and redress may well come to be

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equally desirable in the West. After all, what we now call the social rights to health, education, housing and income support were initially understood in Europe not as rights but as benefices or gifts of the state a fact obscured by the use of what in the liberal view must be the misnomer citizenship rights to describe them. Indeed, in the UK for example and until quite recently officials as well as citizens used the language of benevolence as in unemployment benefit, the benefits office and claimants. But in the UK, as well as in many other western countries, the move away from anything that looks at all like state familialism or what neoliberals excoriate as the benefits culture has been so extreme that even policing and prosecutorial practices are now governed by risk calculations with the result that governments are largely able to excuse themselves from many of their more onerous responsibilities. More specifically still, this in turn means, as is currently the case in Britain, that the police and the Crown Prosecution Service are resistant to acting in any case where there is less than a 75 per cent chance of a successful prosecution.4 Under such circumstances it is very difficult to believe that the terms rule of law and justice, let alone human rights, have much meaning, since even when they are reported the vast majority of crimes and human rights abuses go unpunished, with the result that impunity is a privilege enjoyed by far more people than the heads of states who are commonly thought of as its beneficiaries. Today, then, it seems to me that what I have taken to calling the indifferent state is a rights-destructive social condition that ought to be recognized as potentially just as important a threat to human dignity as the oppressive state that we conventionally fear. A few more catastrophic failures of self-regulation such as those that have recently afflicted the banking and media industries in the UK, for example, and soon it might not seem too fanciful to imagine a scenario wherein the idea of an enforceable benevolence provided by a caring state might once again become pretty appealing in the West too. Notes
1 As its title indicates, the present article revisits an issue I have discussed at length elsewhere (see Woodiwiss, 1998, 2003, 2005b) and consequently reproduces segments of those earlier texts. However, this is a new synthesis and development of my position and one that has benefitted greatly from observations made in the course of a three-year sojourn in South Korea and conversations I had with colleagues at Seoul National University (SNU), notably Professors Chang Kyung Sup, Han Sang Jin and Park Kyung Sook. The article has also benefitted greatly from discussions with colleagues at the University of Tokyo in the course of the UT-SNU Sociology Joint Forum which was held in Tokyo in November 2008. This version of the article was initially prepared for the workshop entitled The Future of Human Rights in Asia held at National Dong Hwa University in Taiwan on 3 June 2011. I am very grateful to the workshops convener, Professor William Li, for encouraging me to write the article. I use the general, shorthand terms West and Asia throughout this article. Thus, as in ordinary conversation, I use the terms to refer to two sets of states either side of an imprecise line that bisects the Eurasian land mass roughly along the line of longitude upon which Istanbul stands (for the shifting boundary between Europe and Asia in academic discourses, see Holton, 1998). However, sociologically, it is important to say that this does not mean that I regard all of the individual states referred to by either of these terms

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as the same and completely unlike the states referred to by the other. But, equally, I do not regard each of the individual states as entirely unique. Rather, I use this terminology because what is undertaken here is an instance of what Max Weber called ideal type analysis wherein similarities and differences are accentuated to create models of social relations that can be used for explanatory purposes. Thus, following Weber, one may suggest that western discourses of rule tend to be what he called legal-rational whereas the equivalent Asian discourses tend to be what he termed patriarchalist (for my general understanding of the nature of ideal-type analysis, see Woodiwiss, 2001: 407, 2005b, ch. 4; see also Radkau, 2011). Much of what I have to say about Asia is the product of work I have done on East and South East Asia. However, I do not think that it is restricted to these regions in its applicability. The extent and location of its applicability depends on the presence of the social phenomena to which it refers namely what I term patriarchalist discourses of rule. It does not depend on where one bisects the Eurasian landmass. Finally, it is important to say that despite their similarities in general terms and just as there are also very significant differences between western discourses of rule (between those of the liberal USA and the Christian or social democracies of Western Europe, for example), so there are equally significant differences between Asian societies. Thus in earlier work I have distinguished between the authoritarian patriarchalism of Malaysia, the patriarchalist individualism of Hong Kong, the mendicant patriarchalism of the Philippines, and the active patriarchalism of Singapore (Woodiwiss, 1998). I prefer to use the term familialism rather than patriarchalism to refer to contemporary formations because one cannot imagine, outside of such outlier situations as those represented by North Korea and Afghanistan under the Taliban, that any such formation would include the formal requirement that the head of the house in any national, corporate or other institutional family should be a man. Many such families in the region have had, now have or could in the future have, female heads. Moreover, todays discourses of rule are themed around loyalty to ones family rather than to a father figure. Private correspondence with a recently retired senior police officer who wishes to remain anonymous.

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Anthony Woodiwiss has degrees from the Universities of Leeds, London and Essex. He taught at Essex for 24 years before becoming Head of the Department of Sociology and Dean of Social Sciences at City University, London. In 2008 he was appointed

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Distinguished Professor of Sociology at Seoul National University. Apart from numerous articles, he has published nine books, all in the areas of social theory and the sociology of human rights. His most recently published books are Human Rights and Scoping the Social: An Introduction to the Practice of Social Theory. An earlier book, The Visual in Social Theory was translated into Chinese and published by Peking University Press in 2009. In 2011 he edited a special issue of the journal Development and Society entitled Human Rights and the Social: The Making of a New Knowledge.
Date submitted July 2011 Date accepted May 2012

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