NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Yearbook of New Zealand Jurisprudence

You are here:  NZLII >> Databases >> New Zealand Yearbook of New Zealand Jurisprudence >> 1998 >> [1998] NZYbkNZJur 4

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Havemann, Paul --- "New times? Sites of power and types of rights for social citizenship" [1998] NZYbkNZJur 4; (1998) 2 Yearbook of New Zealand Jurisprudence 45

Last Updated: 11 April 2015

Paul Havemann*


This essay is a practical exercise in utopian realist musing about how rights and citizenship can form part of a process for making a more inclusive world for everyone. In the new times in which we live global `bads' vastly outweigh the 'goods'. Human rights discourse has not proved to be the shield for the powerless that idealists might have hoped. Rather than discard or 'trash' rights though it seems to me necessary to re appraise existing rights in terms of the sites of power in which citizenship is denied and enjoyed and suggest new types of rights and modes of enforcement which are required to enhance everyone's life as citizens of a local and global polity. This essay is a preliminary step in the process of conceptualizing types of rights in the context of key sites of power emergent in our new times.
My paper is based on these assumptions:

Paul Havemann has been Professor of Law, University of Waikato, New Zealand since 1990, he has worked at the Univeristy of East London, University of Warwick in the UK, The University of Regina, Canada, La Trobe University, Australia, and has been a visiting fellow at the Social Justice Project, Australian National Univerisity, Canberra and will be a visiting fellow at the Institute of Commonwealth Studies, University of London, UK for two months in 1999.

This article represents work-in-progress offered in staff seminars at the Centre for New Zealand Jurisprudence (CNZJ) at the University of Waikato (1998 and 1999) and the Department of Legal Philosophy at the University of Utrecht, The Netherlands (April 1998). It draws most heavily on the paper presented to the Re Visioning Citizenship colloquium hosted by the CNZJ in November 1998. A significant opportunity to explore the phenomena of the Third Way, social exclusion, globalisation, and the limits of contemporary jurisprudential technology was provided by the School of Law at the University of Warwick, UK, where I worked for the first half of 1998. I am deeply indebted to these institutions and my colleagues in each one of them, for the support they have provided me thus far!

There is substantial agreement that the present age is one revealing great paradigm shifts in the ways in which we understand 'natural', social, and political phenomena. The scale and dimensions of these changes in our understanding are such that some theorists speculate that we are witnessing an epochal shift. For example, the term 'postmodern' used by Bonaventura De Sousa Santos' suggests a transition

  1. Cosmopolitan g/localism / globalism [see Albrow, M The Global Age (1996)] informs a politics in which the local and the global are seen in a dialectical relationship in which the aspirations of the local are contextualised within a global frame of reference, in which North and South cannot be dichotomised. Cosmopolitanism is reflected by the actions of 'Rainbow' coalitions promoting radical democratic politics to transform dominant structures such as ethno-nationalism, patriarchy and capitalist and ecocidal productivism which structure powerlessness. Cosmopolitanism rejects martial, essentialist and nationalist cultural singularity and partriarchal and other imposed traditions as a basis for politics. Reflexivity recognises and promotes the capacity to change, to re invent oneself, to shed tradition. The present age is essentially one of reflexive modernisation. Post-materialist social movements such as the Greens, human rights, peace, labour and women's movements represent the vanguard of reflexive cosmopolitan g/local politics and are already practising the craft of citizenship on a platform in which the local is always linked to the global.
  2. De Sousa Santos, B Towards a new common sense: law, science and politics in paradigmatic transition (1995).

Beck, U The Risk Society: towards a new modernity (1995); Castells, M The Information Age: Economy, Society and Culture, volumes I, II and 111(1997); Giddens, A Beyond Left and Right: the future of radical politics (1995), Giddens, A The Third Way: the renewal of social democracy (1998); Held, D Democracy and the Global order: From modern state to cosmopolitan governance (1995); and see Heelas, P, Lash, S, and Morris, P Detraditionalisation: critical reflections on authority and identity (1996).

at least as dramatic as that from feudalism to the Enlightenment. [While I think that the post-modern label is a little premature, ideas such as the Network society, reflexive modernisation, and the Risk society describe phenomena that are not just continuations of simple modernity.4 I prefer therefore to adopt the description of this age as late or advanced modernity, a time representing the 'zenith' and 'nadir' for particular dimensions of the continuing process of modernisation. Modernisation is not a term I use with any sense of 'western triumphalism'; indeed, the dystopian 'bads' of late modernity seem vastly to outnumber the utopian 'goods' .1

The terms 'informational age' and 'Network society' used by Manuel Castells5 signify the information technology (IT) revolution as the major discontinuity in the material basis of economy, society and culture between simple modernity and late modernity. The IT revolution thus represents an historical event at least as major as the eighteenth-century Industrial Revolution. The Industrial Revolution harnessed new sources of energy such as the steam engine, electricity, fossil, solar and nuclear fuels to new productive technologies in the interests of industrial capitalism. The IT revolution now fuels informational capitalism. The attributes of this new revolution are its pervasiveness and the depth of impression the new technology is making globally and locally in all spheres of human activity. The IT revolution has radically altered our modes of information processing and communication. It does not merely provide new tools for production but amplifies and extends the activities of the human mind.

In spite of the excitement generated by this change in the North, late or advanced modernity6 is characterised by 'negative signs' in the form of a plethora of inter-related global 'bads', each with its own local pathologies, and a few 'goods'. Gross asymmetries of power, grossly unequal life chances, the fatal neglect of basic human needs,' and radically unequal political opportunities remain the fundamental dimensions of late modernity, just as they have been of other ages.

5 Castells, M The Rise of the Network Society, volume 1 (1997) 30-31.

6 Giddens (1995) supra note 4 at 100-102.

7 See Doyal, L and Gough, I A Theory of Human Need (1991).

Among the salient dimensions of later modern times we number:

David Held's term `nautonomy' well describes the constellation of conditions of powerlessness embedded in this dystopian global and revolutionary scenario.8 Such powerlessness derives from socially, politically and economically conditioned patterns of asymmetrical life chances. At the heart of the condition of nautonomy lies social exclusion: denial of the capacity to have any participatory agency in structuring one's destiny. Nautonomy is most obvious on the axes of region, race/ethnicity, gender, class, age, and nationality, as experienced within key sites of power such as the 'free' market economy, authoritarian government, and kinship systems.


Among the few 'goods' is the glimmer of hope evident in the way an `ethic of humanity'9 has permeated contemporary global political discourse (albeit in a decidedly American liberal idiom) for promoting empowerment and social inclusion by employing as a benchmark the so-called international Bill of Rights. This so-called 'Bill of Rights' is typically anchored by the Universal Declaration of Human Rights (UDHR) and two International Covenants, on Civil and Political Rights and Economic, Social and Cultural Rights (ICCPR and ICESCR) and a mass of other international instruments defining specific categories of rights. These rights began to be developed prior to World War II, notably under the auspices of the International Labor Organization (ILO), and have been evolving since 1948 under the UN and its agencies. These international law 'charters of rights' and their domestic equivalents now define and codify a minimum list of civil, political and social rights which ought to be everyone's birthright as a citizen. At present enjoyment of these rights is, of course, subject to limits imposed by the sovereign state and material reality! The international Bill of Rights—UDHR, ICCPR and ICESCR and other instruments notably in the European Union (EU)—now sets the precedent in terms of aspirational standards for the gamut of rights required by everyone to realise his or her life chances.

8 Held (1995) supra note 3 at 171 and 191-212.

  1. Heelas, Paul "On things not being worse and the ethic of humanity" in Heelas, P, Lash, S, and Morris, P (eds) Detraditionalisation (1996) 200-222 and also Robertson, R "Mapping the Global condition: globalisation as the central concept" in Featherstone, Mike (ed.) Global Culture: nationalism, globalization and modernity (1990) 15-30.

Rights discourse is not unproblematic in any context. Ideological conflict exists, for instance, over whether the idea of individual human rights is not cultural imperialism and in collision with Asian values, and about whether social and economic rights ought to be regarded as justiciable human rights at all. Until the end of the Cold War, legal, civil and political rights enjoyed a central place in American-dominated international human rights talk, while social and economic rights were seen as the preoccupation of communist regimes. The idea that social and economic rights deserve parity of esteem with other types of rights is now gaining some ground, however: for instance, there has been an enormously high level of 'symbolic' formal ratification by states of the international human rights instruments making up the international Bill of Rights.

The human rights embodied in the international 'Bill of Rights' and associated instruments have been s ummarised'° as follows:
Life, Liberty and security of the person
Protection against slavery
Protection against torture and cruel and
inhuman punishment
Recognition as a person before the law
Equal protection of the law
Access to legal remedies for rights
Protection against arbitrary arrest and
Hearing before an independent and
impartial judiciary
Presumption of innocence
Protection against ex post facto laws
Protection of privacy, family and home
Freedom of movement and residence
Asylum from persecution
Marry and found a family
Own property
Freedom of thought, conscience and

Freedom of assembly and association
Political participation
Social security
Work, under favourable conditions
Free trade unions
Rest and leisure
Food, clothing and housing
Health care and social services
Special protection of children
Participation in cultural life
Protection of minority culture
Self determination
Humane treatment when detained or
Protection against debtor's prison
Protection against arbitrary expulsion of
Protection against advocacy of racial or
religious hatred

10 The Economist 'Human Rights Law' 5/12/98, 9. This draws on the thinking of US

scholar and antagonist of justiciable social rights Jack Donnelly in his International Human Rights (1998). Inevitably Donnelly leaves out the right to development, the dangers of which, in his view, far outweigh its benefits: see Donelly, J 'In search of the Unicorn: the jurisprudence and the politics of the right to development' 15 California Western Int. L. J (1985) 482. Steiner, H and Alston, P (eds.) International Human Rights in Context (1996) contains no reference to rights to a sustainable environment as a human right, per se.

Notably missing from this list are the right to development and the right to a sustainable environment.

Legal and civil rights and freedoms are frequently framed in negative terms, such as freedom from, protection from. Positive rights-endowing, duty-implying terms like those commonly asserted as social and economic rights need greater emphasis and a change of g/local culture to give them parity with the classical liberal rights (civil, political and legal). The practice of re-visioned citizenship will require that state and supra-state entities actively shoulder positive duties as well as offer protection from the abrogation of rights.

The basic argument presented here is simple enough: citizenship is a political resource for the assertion of a universal yet culturally differentiated status for everyone. Such a status confers an individually and collectively enjoyed bundle of human rights (and obligations). In my view, rights discourse is at its most valuable and least likely to mystify, when rights are conceived as ideological resources in a political process to enhance empowerment. Re-visioning citizenship involves the continuous political process of assembling, augmenting and actualising the bundle of human rights that constitutes citizenship. Such rights represent claims to de-commodified, set rights and obligations for empowering individuals in a myriad of sites of power. Both rights and duties for everyone are essential for autonomous political participation by everyone.

Advocacy of rights-based means of empowerment must also involve careful analysis of obligational discourses inherent in the idea of citizenship. It seems to me that before demanding such symmetry that every right has a correlative duty, duties must in the first instance be conceived as flowing from the powerful to the powerless, not the other way round as in much New Right discourse. For example, the New Zealand Government's recently floated Code of Social Responsibility is to apply, not to the Government's or state's conduct, but to welfare beneficiaries.

Participation is a key dimension of the active politics required by re-visioned citizenship for the purpose of securing optimal life chances for people as citizens and for future generations. As well as continuing

to vigorously preserve and promote basic civil and political rights," we need to conceive of rights even more broadly. Social and ecological rights and knowledge and information rights, for instance, are among the first types of rights I would see requiring urgent substantive definition, assertion as substantive rights in themselves and requiring concrete enforcement in both North and South.

The practice of citizenship involves asserting and enjoying access to the life chances legitimated and codified as human rights; it also involves fulfilling obligations based on the principle 'from each according to his or her ability; to each according to his or her need and sometimes merit'. Citizenship critically involves engagement in participatory political processes that contribute to the actualisation of rights and the performance of the duties constituting the status of citizen.

Combating nautonomy is the purpose for re-visioning citizenship. A special focus of the task must therefore be on the bundle of rights and obligations associated with actualising citizenship. The absence or denial of these rights signals most clearly a state of nautonomy. Eighteenth-century as it sounds, rights are 'a shield and a sword' for the citizen. Recognition of the scope and limits of ideological work done by rights discourse remains integral to all counter-hegemonic politics for re-visioning citizenship into the next millennium. It is an

old struggle against the abuse of power and for empowerment.


The capacity to practise citizenship is conditioned by the distribution of power, on many sites, within the local and global political economy. Confining ourselves to OECD political economies for this purpose, on the immediate horizon we can observe a dialectical process concerning the two dominant experiments in 'ways of managing' the political economy of the post-World War II eras. This process consists of salvaging and dismantling aspects of Keynesian welfare statism

11 See Kenny, T Securing Social Rights Across Europe (1997), an excellent Oxfam

research report which exemplifies this approach very thoroughly, and see especially Hunt, P Reclaiming Social Rights (1997). For a good overview see Steiner and Alston (1996) supra n 10.

while shedding and embellishing upon aspects of New Right market fundamentalism. In western Europe and some of the USA a Third Way is being debated. I will turn to this new set of ideas shortly.

Globalisation because of the information and communication revolution takes on an entirely new form and power, different from that of its predecessor, imperialism. The concept of globalisation alerts us to the actual and potential pervasiveness of this process of change—at local, regional, and worldwide levels. In this context a new societal paradigm is emerging which makes the state increasingly powerless and leads to adaptations such as the contract state to enable the local public sphere to pay its way in the context of a new, New World Economic Order. This new New World Economic Order is borderless for capital and data but not for most people. As review of the social implications of the (thankfully now stalled) Multilateral Agreement on Investment (MAI) illustrated, the New World Economic Order is global in scope, as the GATT has been. A g/local citizenship needs to be envisaged which can form the basis for action through the political media of re-visioned roles for the state, civil society, non-governmental organizations (NGOs) and inter-governmental organisations (IGOs). Otherwise, the 'internationalisation' of the economy and the globalisation of the currently hegemonic ideology of market fundamentalism will exacerbate already nautonomic conditions in both South and North.

In late modern times the state seems potent yet anachronistic as a site of power. Nation-state citizenship—especially with its sovereign, nationalistic, masculinist, productivist, and martial connotations—is increasingly becoming less relevant to re-visioned citizenship. Increasingly it seems that a personal and cultural identity fashioned from ethno-nationalism is being exploited as the identity around which to rally to mount ethnically based populist resistance to globalisation.12 Similarly, the nation state, the state-based order of IGOs, and the select club of Northern-dominated NGOs seem antiquated yet paradoxically essential vehicles for promoting g/local social citizenship which articulates pluralistic and cosmopolitan politics based on empowering rights.

12 Castells, M The Information Society: economy, culture and society, vol. II Power

and Identity (1997) 356.

After decades of experimentation, many lessons about the dysfunctionality of totalitarian statism, Keynesian welfare statism and market fundamentalism are there to be learned and integrated into the re-visioning exercise. A way between crude statism and market fundamentalism urgently needs to be conceptualised to provide a `template' for policy making to combat nautonomy. Institutional redesign of the state and political-legal process to transcend the ruts gouged by the old experiments ought to be high on the agenda. I have recently found in Euro-American ideas about a ThirdWay13 a trajectory of thinking that currently seems to offer some comprehensible guidance about ways to apply some of these lessons. (It seems unavoidable that we New Zealanders should look for ideas to the metropolitan social democratic polities of the North from which our own intellectual and institutional frameworks largely derive.)

According to eminent UK sociologist Tony Giddens, who is emerging as its chief theorist, this Third Way, beyond the old Left and New Right, is grounded in a renewed social democratic politics. I have modified Giddens' 4 comparison of the embryonic Third Way with its immediate predecessors in the diagram below and draw from his ideas in the following analysis:

Paradigm Attributes
Keynesian Welfare Statism (old Left fordism)
New Right (neo-liberal after-fordism)
Third Way (new centre-left...?)
Basis of
Class politics of the Left
Class politics of the Right
Modernising movement of the Centre
Market ethos
Old mixed
New Mixed economy
Governance ethos
Corporatism: state dominates over civil society
Minimal state
New democratic state
Ethos of national identity
Conservative m/populism
Cosmopolitan nation/globalism
Welfare ethos
Cradle to grave welfare state
Residual welfare safety net
investment state

13 Giddens (1998) supra n 3 at 66-85.

14 Giddens, A 'After the left's paralysis' New Statesman 1/05/98,18.

The Third Way idea embodies values such as:


Protection of the Vulnerable,

Freedom as Autonomy,

No rights without responsibilities,

No authority without democracy,

Cosmopolitan pluralism, and

Philosophic Conservatism (I think this

means a conservatory ecological ethic).

The Third Way has attracted much scepticism from USA and UK intellectuals on both the Right and Left.'5 The gist of some critiques is that it may be nothing more than watered-down economic rationalism with a modicum of hitherto omitted humanistic externalities stirred in, branded for marketing purposes as 'renewed' social democracy. Robert Reich, Clinton's former Secretary of Labor, sees little promise, so far, in the Clintonite version of the Third Way. In a recent article in The American Prospect'6 he cites its perilous path, its lack of a natural constituency, and the inescapable and banal dilemma USA Third Wayers (practical idealists) pose for themselves: how to liberate market forces while easing the transition for those who would otherwise fall behind. He concludes that Third Way leaders must broker a new social contract between those who have been winning and those who have been losing in the US prosperity stakes. Reich urges a new 'patriotic' communitarianism. This sounds like re-vivified fordism without the collective memory of World War II to legitimate it, instead of what I see as the necessary paradigm shift to a new reflexive g/local cosmopolitanism; however, in the immediate term, it may be the political glue for uniting a post-fordist America around a politics which challenges some basic nautonomic conditions.

Anthony Barnett, founding director of Charter 88, the UK group promoting the case for a written constitution and Bill of Rights for Britain, is highly critical of the current Blairite version of the Third Way." He critiques the strong centralising, conservative and incrementalist tendencies of some of its leaders (Straw, Mandelson, Irvine). Barnett decries the 'corporate populism' that is providing the

  1. See generally Halpern, D (ed) with Mikosz, D 'The Third Way: summary of the NEXUS on line discussion' at URL 3way.html#Background 27/5/98.
  2. Reich, R 'We are all Third Wayers Now' The American Prospect March/April (1999) 46-51.

17 Barnett, A 'Corporate control' Prospect February (1999) 24-29.

ideological spin to capture New Labour's navigational coordinates as it steers between the consensus politics which led to and sustained the KWS and conviction politics which drove the Thatcherite revolution down the path to market fundamentalism. The risk here is that New Labour has attended to the overwhelming feeling of a need for change while perpetuating dependency on the relatively authoritarian mode of governance and while fetishising the productivism of its predecessors. Barnett describes this phenomenon as the `modernisation of subjecthood'. This type of Third Way is certainly not likely to provide a platform of process hospitable to reflexive g/ local cosmopolitan citizenship, any more than Clinton's does.

It is very early days, though, for a new Third Way oriented social movement to gain hold within the electoral politics of complex polities like the USA, UK and Western Europe. In my view, however, it is only from this context that ideas and action for a g/local polity of empowered citizens based on reflexive cosmopolitanism will come. Third Way ideas therefore deserve serious consideration as a basis for envisaging utopian yet realistic alternatives to statism and market fundamentalism. The Third Way seems to me to offer ideas making up, to quote Andrew Gamble and Gavin Kelly,

new and heterodox ideas...which recognise that there has been a sharp break in political continuity which may render many former political certainties obsolete.'

In contrast with market fundamentalism, Third Way politics implicitly and explicitly rests on a set of state and supra-state derived individual and collective social rights and obligations. These rights form key elements of the common structure of participatory and informed political action necessary to realise the emancipatory goal of individual and communal autonomy. In this schema government has an active role on behalf of citizens to promote the Third Way values cited above, through a programme involving:

Structurally responding to globalisation,

Expanding the public sphere,

Re-asserting the effectiveness of government in the

face of markets,

Democratising democracy, and

Practising active risk management.

18 Halpern, supra n 15, at 5 of 25.


In order to conceptualise the implications for the bundle of rights essential to practice social citizenship in a local and the global polity, I have attempted to link Third Way programmatic principles for governance to the sites of power hence to the types of rights which ought to constitute g/local social citizenship. In this I draw on David Held'9 who has identified a conceptual scheme linking sites of power to types of rights. His scheme is helpful for making more explicit the types of rights required to combat nautonomy which is one of the chief objectives of citizenship. Held's categories can be summarised as follows:

Sites of Power
Types of Rights
Civic associations
Coercive relations/ organsied violence
Political institutions
Legal and regulatory

I see these as amongst the basic strands making up the bundle of rights that need to be assembled for a re-visioned concept of citizenship. However, for the purposes of my re-visioning social citizenship project I enlarge upon Held's sites of power / types of rights framework below ( and see Appendix 1). This enlargement highlights new sites of power associated with late modernity, especially arising in the context of globalisation, the Network and Risk Society.

19 Held (1995) supra, note 3 at 191-2 , table 9.1

Nature: Ecological Rights and Inter-Generational Obligations

The manifestations of ecocide captured in Beck's idea2° of the Risk society make the salience of a conservatory ethic essential to the Third Way political agenda. I have therefore lifted nature (the ecosystem) into a site of power in its own right, related but not subservient to the body and health rights, in order to stress the importance of ecological rights. Such rights are coupled to significant inter-generational, inter-species and bio-regional obligations which ordinary rights jurisprudence is as yet ill-prepared to address. As Appendix 1 shows, there has as yet been very little recognition of ecological rights and inter-generational obligations in the standard international human rights instruments. The right to a safe environment offers a gesture in the direction of ecological rights.

The Self: Knowledge, Access and Informational Rights

Existing human rights to education and participation in cultural life in my view don't adequateley address the needs every citizen will have for active participation in the Network Society. In the informational age or Network society' the self emerges as a further site of power requiring specific and novel types of rights of access to the ICTs and control over the uses to which they are put. Information, access to knowledge, and privacy rights must be understood as public, not private, property rights, or nautonomic conditions will be exacerbated. The informational age makes the capacity to be informed, to be socially reflexive, to reinvent oneself and to modify ascriptive tradition a major constitutive element of actualising life chances. Such life chances seem to me to be protected and advanced by Third Way values such as:

Equality as inclusion,

Protection of the vulnerable, and

Freedom as autonomy.

There is virtually no explicit recognition of access to knowledge and information as a human right unless it can be extrapolated from the

20 Beck (1995) supra, n 4.

  1. See generally Castells, M The Information Age: Economy. Society and Culture, volumes I, II and III (1997).

right to education. On a positive note, when Harvard Law School's Berkman Centre for the Internet and Society hosted a conference on the theme: 'Will the Net inevitably drive a deeper wedge between Rich and Poor?', speakers drew the analogy between the internet and the Commons and stressed the importance of the inclusion of everyone in the benefits of the informational age.22

Intimacy: Relational Obligations and Individual Rights

Closely linked to the self are intimate trust based relationships such as those constituted by 'the' family. Human rights protecting 'the' family, though, are problematic. Traditionally the family has been conceived as a community of descent, based on kin and economic obligations and offering the virtues of stability and control. The relationships that constitute such families are frequently based on coerced loyalty across generations. Detraditionalised,23 assent- and trust-based, relationships between intimates are increasingly a dimension of intimacy in late modern times. Recognition of relational obligations and individual rights for those in kin-based family systems and in the burgeoning alternative forms of intimate trust-based relations is necessary. A Third Way programme should give parity of esteem to the rights and obligations of those in both models of intimate relationship to enable them to fulfil their interpersonal and intergenerational obligations. These are tangentially expressed in terms of equality and non-discrimination rights.

Giddens suggests that the building blocks for 'a democratic family', presumably obtaining between partners in the broad spectrum of trust-based intimate relationships, are:

Formal equality,

Individual rights,

Freedom from violence, and

Negotiated authority.24

22 See the URL for the online proceedings.

23 See Heelas, Lash and Morris (1996) supra, note 3

24 Giddens (1998) supra, n 4 at 93-94.

Market: Economic and Developmental Rights and Obligations

Globalisation and the information and communication technology revolution accentuate the age-old disempowerment of citizens manifested in the asymmetrical control over the means of production inherent in capitalism. In 1986 the UN General Assembly adopted the Declaration on the Right to Development. While it is often assumed to be targeted at peoples in the economic South, its application offers a charter for all peoples in their challenge to nautonomic conditions. The Declaration embraces an holistic recognition of traditional human rights such as geo-political pacific and security rights, self determination rights, and civil, political-economic, and cultural rights. Upendra Baxi25 identifies as an essential element of the right to development the principle that the human person ought to be the central subject of the development process and the main participant and beneficiary of development, including economic development. The right to development, necessarily, further requires the power to exercise currently embryonic social citizenship rights of the sort we are advocating, notably knowledge access and informational rights, ecological rights and inter-generational obligations, and the whole array of economic rights and obligations.

Governance: Legal, Political and Civil Rights and Obligations

Governance processes need to subsume and enlarge upon state political legal processes as major sites of power. Civic associations and (governmental) political-legal regulatory institutions at the nation-state level are no longer sites of power which alone can honour the social contract between citizen and state. Globalisation, contractualism and the hollowing-out of the state have radically challenged traditional modes of governance. Today the state and, notably, supra-state entities, new social movements, and NGOs make up de-centred and diffuse vehicles for regulation and intervention. The advance and defence of citizenship requires enhanced levels of public democratic participation to actualise people's legal, civil and political rights in these new arenas,

25 Baxi, U ' The Development of the Right to Development' unpublished ms, School

of Law, University of Warwick (1997) 2.

as citizens and as consumers and investors (in the North) with g/local and cosmopolitan horizons.

A Third Way programme built on a framework consisting of (among other things):

A New Democratic State,
Active Civil Society,

A Social Investment State, and
Cosmopolitan Democracy

can make a start towards the reconstruction of a system of governance most likely to mitigate, and even eradicate, nautonomic conditions through state and supra-state intervention.

The participatory power of citizens has to be exerted upwards beyond the state to regional and global levels of norm formulation as well as downwards to the local level. The concept of a 'social investment state' captures the idea of economic participation through state spending to promote work and to create the infrastructure required for economic activity. This is a break from the minimalist residual welfare state of the New Right and from the Fordist, so-called 'nanny-state', welfare state, which often paternalistically provided benefits in cash and kind tied to state-sponsored remedial personal social services. New and authentic ways to redefine work and reward contributions to the community outside the market, to build the capacity of civil society, and to devolve power to enable greater grass roots participation are needed.

Coercion and Violence: Pacific Rights and Restorative Obligations

Managing coercive relations and responding to organised and unorganised violence are the least well developed dimensions of a Third Way programme, as far as I can see. Crime and violence have not featured much in utopian realist musing. This neglect may explain the attraction to authoritarian populist law and order reactions demonstrated by some communities. The ambiguity of the role of the state presents many difficulties to those considering pacific rights and the management of coercive power. In many societies coercive force is experienced within state borders as violence against the powerless. Add to this problem that of the globalisation of organised crime and

the growth of global narcotic and other illicit economies, and the increasing powerlessness of the state itself to do good or prevent harm. Appropriate and effective techniques for controlling crimes of the powerful are most elusive at supra-national and national, let alone local, levels. Ideas about pacific rights are well developed, in theory, at inter-state levels, but poorly understood and operationalised at the intra- and inter-community and interpersonal levels.

The eradication of criminogenic conditions leading to crimes of the relatively powerless is part of the larger assault on nautonomy. Controlling crime, and promoting accountability for it, present as immediate and vexing problems. The problem of interpersonal (male) violence is on the rise. The polarisation of rich and poor people's life chances and material conditions exacerbates crimes against property and personal security. What types of rights and duties are needed for challenging the illicit use of power based on violence? Neither authoritarian statism nor market fundamentalism offers many useful answers to this question.

I suggest that within the total re-visioned scheme of sites of power and types of rights /duties necessary for the exercise of citizenship, pacific rights and restorative duties need building up to construct an inclusive obligational discourse which empowers victims, local communities and the state. Such a discourse must transcend the state/ perpetrator dichotomy focussed on upholding the authority of the state. This dichotomy tends to neglect victim and community, and omits other entities (including the state) from the dragnet of obligation.

A new obligational discourse could be based on the personal dominion26 of the individual citizen set in the context of a multi-layered complex of obligations linking victim, immediate community, perpetrator, state and non-state entities. As the state and community increasingly lose power at the local level because of the imperviousness of global actors to local accountability, the problem of harms caused by feral TNCs, operating without global or local constraints and facilitated by the ICTs and air transport, needs urgent consideration. New paradigms for allocating responsibility need to be designed that are harm-based, not fault-based, and that employ mechanisms of

26 See Braithwaite, J and Pettitt, P Not Just Deserts: a Republican Theory of Justice


enforcement that transcend the limits of local power and yet are at the same time less reliant upon the state.


I propose that as a starting point we need to envisage the content of a charter of citizen's rights and obligations in terms of sites of power and types of rights.

Sites of Power
Types of Rights and Obligations
Knowledge, Access and Informational
Relational and Individual
Ecological and Intergenerational
Civil, Legal and Political
Economic and Developmental
Pacific and Restorative

Some of these sites, rights and obligations were not considered when rights talk and citizenship were first deployed as the linchpins of eighteenth-century Euro-American liberalism. Liberalism, despite its powerful nationalistic, formalistic, masculinist, and individualistic connotations, served as the revolutionary credo of its time to combat the nautonomy constituted by feudalism. Ecologism" and other forms of green political thought likewise challenge capitalist productivism as a site of power because of its trajectory of ecocidal risk.

In Appendix 1 I offer a very tentative conceptual scheme for identifying sources of nautonomy, the nature and form of contemporary jurisprudential technology, and the range of currently recognised

27 See Dobson, A Green Political Thought (1990).

human rights. These are juxtaposed with some of the basic rights and obligations that seem intrinsic to re-visioned social citizenship. It seems to me at this time that a contemporary Third Way political agenda for striving to actualise citizenship based on such a bundle of rights and obligations deserves serious discussion, both globally and especially in New Zealand, if only as a catalyst for further analysis and action. Perhaps debate about a new written constitution will allow a broader concept of citizenship to be entrenched into New Zealand's political-legal institutions, processes and political culture?

Ideally rights enforcement for citizenship as envisaged in the foregoing will increasingly stress the proactive fulfilment of obligations to enforce rights for citizens not merely the reactive posture of respecting or protecting such rights. Likewise the balance must favour human rights not duties to the state, the justiciable rather than merely aspirational character of rights, prosecuting current violations not merely setting standards for 'progressive realisation' and the active enforcement of substantive rights rather than merely setting up to ensure procedural distributional fairness.

Ideas about rights, obligations and citizenship remain to be radically re-conceptualised everywhere. Even in terms of a Third Way agenda, the particular forms and functions of contemporary jurisprudential technology need a paradigm shift to make them congruent with the sort of regulatory normative schemes and processes required to challenge nautonomy. A globalised 'ethic of humanity' informed by cosmopolitan pluralism must be asserted against simplistic nostalgia for welfare statism and even more strongly against the currently hegemonic (American) formula for prosperity (for the few): 'turbo' capitalism: privatisation + deregulation + globalisation = turbo-capitalism = prosperity."

28 Luttwak, E Turbo-Capitalism: Winners and Losers in the Global Economy (1999).

Ideas about rights, obligations and citizenship persist in forming core political-legal concepts which are, in theoretical terms at least, universally available for challenging nautonomy, even if the role, responsibilities and form of the state are in flux. How can rights and citizenship be re-crafted to increase the symmetry of life chances and to realise the emancipatory promises of late modernity? What is to be done about working towards a just, post-modern, and post-materialist future when humankind will peacefully cohabit with itself and other species on a healthy planet? The framework outlined above is not prescriptive and represents work in progress building on the author's previous investigations into late modernity, commodification, the contract state and the web.29

29 Havemann, P 'Modernity, Commodification and Social Citizenship' (1997)1 YB


'Re-commodification, the Contract State and Social Citizenship' in Christodoulidis, E (ed.) Communitarianism and Citizenship (1998); 'Indigenous Peoples, the State and the challenge of Differentiated Citizenship: a formative conclusion' in Havemann, P (ed.) Indigenous Peoples' Rights in Australia, Canada and New Zealand (1999) and 'Enmeshed in the Web: Indigenous Peoples' Rights in the Network Society' in Cohen, R and Rai, S (eds.) Global Social Movements [forthcoming 1999].


I Body

Sources of nautonomy



Fiscal crisis of the state

Commodification of social relations

II Self

Sources of nautonomy

Monopolies of networks, knowledge bases and means of information production and use Commodification of knowledge Privatisation of education and information

Jurisprudential technology

Contract. Fault based Liability Legal personality

International Human Rights
Health care and social services
Life, Liberty and security of the person

Jurisprudential technology

Contract and consumer law Intellectual property rights Personality, Liability (criminal) Civil, political and social rights

International Human Rights Recognition as a person before the law Special protection of children Education
Protection against advocacy of racial or religious hatred

Social Citizenship: Health Rights

Right to participation in defining scope and limits for the pursuit of bodily needs and pleasures
Enforcement of right to physical and emotional well being, right to clean and sustainable environment
Right to control over fertility

Social Citizenship: Knowledge, Access and Informational Rights

Right to participation in knowledge
production, distribution and use
Right of access to education and
Right to privacy
Freedom from vilification
Right to literacy
Obligation to provide access to knowledge
and information
Obligation to provide access to the ICTs

III Nature
Sources of nautonomy

Ecocide and the risk society
Manufactured scarcity and bio-regional conflicts, Waste and Resource depletion Absence of supra-national governance and respect for normative regimes based on the precautionary principle and sustainable development

IV Welfare

Sources of nautonomy

Traditional status based maldistribution of life chances patterned by, eg. age, ethnicity, dis/ability, gender, region
Re-commodification of social welfare provision Absence of empowerment / self determination Excess of productivism

Jurisprudential technology

Property, Contract,
Sovereignty, Administrative law Fault based Liability, Personality, National environmental regulation International and regional environmental voluntary normative regulation

International Human Rights
Right to development
Right to a safe environment

Jurisprudential technology

Status based social security administrative law Property rights, Contracts

International Human Rights
Freedom of movement and residence Social security
Food, clothing and housing

Social Citizenship: Ecological Rights and Intergenerational Obligations

Rights to participation in sustainable development Rights to use and conserve the Commons Obligation to recognise inter-generational needs based on precautionary principle
Right to recognise bio-regional needs

Social Citizenship: Social Rights & Obligations

Right to Participation in Decommodified life chance promoting activities
Right to work and other means for self reliance, Right to opportunities for the optimal development of abilities and talents of individuals, familial groupings and communities,
Right to individual self-determination
Obligation to serve and participate in processes of economic or social production

V Culture
Sources of nautonomy

Fundamentalisms, Ethno-nationalism, Ethnocide / Genocide
Globalisation of assimilationism Coerced detraditionalisation
Absence recognition differentiated citizenship and equality rights...?

VI Intimacy

Sources of nautonomy

Coerced dependencies
Privatised violence
Hegemonic patriarchalism and compulsory
Gendered and racialised international /
local divisions of labour

Jurisprudential technology

Sovereignty , Private property International, regional, national human rights convention and charters

International Human Rights Nationality
Participation in cultural life Protection of minority culture Self determination

Jurisprudential technology

Status and contract based 'family' law Private property rights, Liability

International Human Rights Protection of privacy, family and home Marry and found a family Equality and non-discrimination

Social Citizenship: Cultural Rights & Obligations

Right of Participation in the maintenance of symbolic orders and modes of customary discourse of one' s communities of descent Right to live in a climate of positive tolerance Right to cultural survival and political self determination
Freedoms of belief and expression
Right to self-determination as well polyethnic and way of life rights
Obligation to acknowledge and co operate in spheres of affinity

Social Citizenship :Individual Rights and Relational Obligations

Right to participation in conjugal life
Obligation of inter generational & inter personal mutuality
Right to respect for the status of intimate trust based relationships
Decommodified social relations based on generalised reciprocity and active trust

VII Market
Sources of nautonomy

The commodification of labour Worklessness and under-employment De-regulated labour market
Under regulated national capital and TNCs production, trading and foreign practices
Absence of the welfare state safety net and respect for labour standards

VIII Governance
Sources of nautonomy

Oligarchic opaque, unaccountable modes of state governance
Unrepresentative institutions
Contract (ing / hollowed) out state
Globalization and the demise of democratic sovereignty (eg. MAI)

Jurisprudential technology

Contract of Employment law, Private property rights
Competition law, Corporate Personality, Sovereignty
'Voluntary' supra-national standards eg ILO, World Bank
Market friendly' multilateral regulatory regimes

International Human Rights
Work, under favourable conditions
Free trade unions
Rest and leisure

Jurisprudential technology

Civil and Political rights
Property rights, Contract?

International human rights
Recognition as a person before the law
Equal protection of the law
Access to legal remedies for rights
Protection against arbitrary arrest and detention
Hearing before an independent and
impartial judiciary
Presumption of innocence
Protection against ex post facto laws
Freedom of thought, conscience and religion
Freedom of assembly and association
Political participation

Social Citizenship: Economic Rights & Obligations

Right of Participation in meaningful work Right to information about TNC activities and participation in their regulation
Right to work place health and safety based on International Standards
Right to organise and associate
Right to information and consultation about employer ' s activities
Obligation to conduct commerce in accordance with rights of citizens in local and global terms

Social Citizenship: Legal, Political and Civil Rights & Obligations

Right of Citizenship - human rights
Democratic constitutionalism
Right to participation in democratic political processes
Adjudication and administration under the Rule of Law and Natural justice
Justiciable, substantive and procedural social citizenship rights
Obligation to promote and sustain civil society Obligation of citizens to participate

IX Coercion
Sources of nautonomy

Systematic and unimpeded gendered and racialised use of physical and psychological violence
Untrammelled pursuit of economic growth by unaccountable entities
Unaccountability of the powerful to the powerless
State legitimised ideology patriarchal violence

Jurisprudential technology

Liability (fault based criminal) Sovereignty, Private Property Rights Market ' friendly' multilateral regulatory regimes

International Human Rights
Protection against torture and
cruel and inhuman punishment
Protection against slavery
Protection against torture and
cruel and inhuman punishment
Human treatment when detained or imprisoned
Protection against debtor's prison
Protection against arbitrary expulsion of aliens

Social Citizenship:Pacific Rights & Restorative Obligations

Right to dominion over body and self
Right to dominion over property and the means of life
State obligation to use near monopoly of lawful coercive power in accordance with the Rule of Law
Freedom from state and interpersonal violence Obligation to restore and rehabilitate

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback