When looking at a prejudice or set of prejudices in particular, seeking to determine a set of causes for the existence of a prejudice goes beyond a deontological explanation, since it must cross category boundaries, without bringing in categorical errors.

This work considers the area of the human rights of Lesbian, Gay, Bisexual and Transgender (LGBT) persons as they have been expanded and normalised both within international human rights law and in common law. The common law in particular is explored since it was within the laws of England and Wales that the second apparent codification of the criminalisation of homosexual sexual acts occurred. The first apparent codification by Justinian in Roman Law did not appear in most of the later criminal codes of those European nation states who follow the Roman legal tradition in their codified law; it had minimal effect in legal historic terms. The consolidation by Henry VIII in the Statute for the Elimination of the Vice of Buggery at the time of the Restoration (1533-4) however was inherited in one form or other by every common law jurisdiction derived from the laws of England, whether by legal tradition (USA) or deliberative Reception Statute (the decolonised African and Asian nations in the Commonwealth). This is the reason for selecting both a positive and normative legal method to examine the common law in parallel with international human rights law, to determine at what points the normative assumptions which underpin most legal systems differ between the common law heritage and the developing international human rights system. The approach is best summarised as that which uses positive theory as a constraint upon normative theory to go beyond mere utilitarianism, although some utilitarian theory will also be considered; particularly Bentham and Mill.

An examination of the laws of the United Kingdom and the legal history of the Buggery Act (1533) and developmental law following the various consolidation changes made by the Georgian legislature of 1824 (Offences Against the Person Act), through the Victorian modernisations of 1861 (Offences Against the Person Act) and 1885 (Criminal Law Amendment Act), and the eventual establishment of a whole category of sexual offences in 1956 is the first case study of this work. This study goes further than simply being historic, since it must also examine the “techniques of production” introduced by Leslie Moran (The Homosexual(ity) of Law)  following the partial decriminalisation of homosexuality in 1967 and the eventual influence of normative international human rights law in the shape of decisions of the European Commission and Court of Human Rights in the case of Dudgeon v UK in 1981. The criminalisation of homosexuality in common law is not the only thread relating to the lives of LGBT persons, and for that reason it is also necessary to examine the Strasbourg cases that changed the law in other areas, and the response of government in making changes through the passage of Acts of Parliament. The inclusion of the Human Rights Act (1998) and subsequent interpretation of law using Strasbourg case law as interpretative (but not binding) in certain issues affecting LGBT persons is also included in this section, since it shows the merging together of the regional legal cases and the common law cases within the common law system that originated the criminal offence of buggery. There is a further issue within the criminalisation and “technique of production” relating to the common law interpretation of the word ‘private’ and how the mechanisms of law (police, prosecution service and courts) produced in this area of criminal law a definition of private which became effectively a lex specialis in its own right. This definition leads towards a discussion of the various elements of the debate on the private/public divide which is both a philosophical and political question as well as being a legal question in human rights terms, and a question that concerned Hannah Arendt in particular throughout her work; from her Doctorate thesis on Love and St. Augustine, right through to The Life of the Mind which was published posthumously.

The second case study turns to the United States of America, which although not a commonwealth nation did inherit the common law of England, and in particular the version of it given by Blackstone in his treatise on the laws of England. Although there will be some federal-level interpretations to be made in order to determine what Constitutional weight is given to the formation of a group identity and what difference that makes in Constitutional judicial review the main focus of this work is on the ability to form legal relationships in one particular state; California.

The reason that California has been selected is that their judicial interpretation of the Constitutional position of homosexuals (and lesbians) with regards to marriage rights took place against the broader picture of the Defence of Marriage Act at federal level and found that within the Californian Constitution (in the Re Marriage cases), DOMA did not apply and Californian law included the rights of same-sex couples to register a lawful marriage. Californian law also contains the voter sponsored initiative; which is unique in US law in that it allows the bare majority of voters to sponsor and pass an amendment (proposition) that is capable of striking down a judicial decision at the highest level, effectively rewriting the Constitution. This was done in this case with the passage of Proposition 8, and the subsequent legal cases bought (Perry v Schwarzenegger) et al, are continuing to examine the passage and lawfulness of this proposition asking if the tyranny of the majority is sufficient  to overrule minority rights; given the history of the USA and in particular the civil rights movement following the passage of Amendment XIV of the US Constitution.

The third and final case study turns to Uganda and several “effects” in Ugandan law in terms of direct inheritance and legal and political inclusion of some elements of other common law systems (in particular the early inclusion of the English law criminalising homosexual sexual activity through the still-extant 1950 Criminal Code) and the recent Constitutional changes whereby Uganda followed the example of the DOMA of the United States of America, and modified their Constitution to exclude same-sex marriage by defining it purely as being between a man and a woman. By continuing this examination from a common law perspective into an African Constitutional Republic with a common law heritage we can examine both the legal and political effects (consequences) of adaptive changes made in the area of LGBT rights as civil rights (rather than human rights in international terms) to generate a better understanding of the obstacles to the true legal equality of LGBT persons. Recent rulings of the Ugandan Supreme Court and High Court on the issues of ‘outing’ homosexuals carried out by the Red Pepper and other news media and the Constitutionality of a mandatory death penalty will be examined. Also under consideration is the lack of formal prosecutions for homosexual activity in an African nation described as “the most hybrid” example of a nation state in transition between the older “Big Man” model of governance and true Republican Constitutionalism with an effective rule of law. Recent moves by a member of the Ugandan Parliament to introduce a Bill to outlaw Homosexuality and an evaluation both of the legal situation at present and the consequences both of passage and of a failure to pass this Bill will be examined.

The theoretical analysis of the outcomes given by law in the three case studies and how inter-connected the situation of civil rights for LGBT persons are in a global (international legal) sense will be carried out using the work and theories of Hannah Arendt, qualified by a Queer Legal (Moran et al) perspective and the interpretations of Arendt by Judith Butler. Arendt has been chosen as the main focus because of her almost obsessive examination of the difference between the private and the political, and her absolutism in the production of critiques of the Constitutional settlement of the United States and what that meant in civil rights terms under the XIVth Amendment. Arendt was also a consequentialist, as well as an absolutist and her examination of the banality of evil shown by Eichmann in particular and Judith Butler’s subsequent examination of Arendt’s attempts to ‘reclaim’ Kant from the followers of Nazism gives us a perspective that has not been included in international legal theory (Koskiniemi/From Apology to Utopia) until recently (Sam Moyn/The Last Utopia) and we can follow Moyn’s thoughts on the reality of international human rights as law as opposed to the rather utopian vision of international human rights in a political sense, to extract the reasons why the common law as a corpus has either failed or succeeded in including LGBT rights as human rights within domestic law. We also have Arendt’s own explanations of why utility was not sufficient (for her) and her observation (The Human Condition) that mankind is obviously both singular and plural since no human exists only in isolation and must appear to others in order to live a human life – it is this observation that lies at the heart of Arendt’s refusal to classify herself as a philosopher and her preference for the title political theorist. This observation also allows us to go beyond the absolute trap of severance between the private (social) and political that Arendt set for herself and examine the law on the fact that even if we agree that the law should never have been used to legislate against private behaviour, it was, and it is the consequences of that legislative act that lies directly against the (universal) common law acceptance of a generalised norm of human rights law that the rights of LGBT persons are included in Universal norms.

Arendt also focussed on the idea of the promise in political terms, both in critiques of hiding information (the case of the Pentagon Files) and in terms of a utopian promise that is less than universal in application (the case of Little Rock, Arkansas), and whether mere interpretative developments can be enough over time to change what was actually granted by the promise into what people actually require the promise to have been. This also is a question of interpretation of obligations under international law, and although the work cannot give full discussion of the matter of obligations as a matter of law any evaluation of Arendt must include a recognition of the actual position of law.

The explanation of why in particular the focus of the work is on LGBT rights, as opposed to any other area of human rights law that creates a difference of political opinion in terms of domestic legal obligations to international treaty law lies within the developing case law on a global scale; the first recognition of LGBT rights as human rights was by the Strasbourg court in 1981 and this was an overturning of previous Strasbourg cases on the issue of criminalisation, all of which had been struck out as inadmissible by the Commission. The refusals were given on the grounds that the qualified right to a private life could be qualified by a state for reasons of morality and that homosexual sexual activity was within the margin of appreciation granted to individual states under the principle of subsidiarity laid out in the European Convention on Human Rights and Fundamental Freedoms. Since the Yogyakarta conference passed the Yogyakarta principles in 2007 developments in this area of law have been rapid, with statements, recommendations and general Assembly discussions taking place for the first time on these matters. Recently the Human Rights Committee of the International Covenant for Civil and Political Rights also urgently determined that the issues surrounding violence towards LGBT persons required a special report to be written, and it is against this growing awareness of legal recognition that this work rests.

The purpose of the work is not to criticise the common law or attempt to create a new Utopian ideal for human rights, it is to use the developed awareness of what the common law has ‘produced’ in the three jurisdictions under consideration; to better inform an awareness of how any treaty directly relating to LGBT rights should be drafted, and what consequential flaws can be avoided using methods usually reserved for regional treaty law (ECHR/EU) and the recent developments seen with the Rome Statute of the International Criminal Court. It is contended that although the common law is capable of evolution, and of adapting to social change; the case-by-case methods used by regional arrangements when included without a principle of subsidiarity in international human rights law (as produced discursively as the correct legal position in the Yogyakarta Principles) will leave common law states in a position where they are not applying at a domestic level the developed international norms, and that the UN Charter (Article 2(7)) is inelastic, preventing lawful action to be taken against those states. Any Treaty for LGBT rights therefore, should be a new creation and should follow the principles as expanded in this section and the previous evaluation to determine the best method of creating a treaty that will actually grant full legal equality to LGBT persons in a non-Utopian sense.

It has come to my attention that someone I have followed for a long time has become momentarily famous – and in that moment of fame an analysis of his propensity to share often tasteless, sometimes offensive and (subject dependent) borderline unlawful jokes has come under scrutiny… Something that I would have warned him of, had I known that he was intending to do something that would bring the focus of the commentariat onto his life.

Much comment has been made about his attitude to ‘race’ – and in fact a page of selected jokes from his twitter stream has been created, which – if you didn’t know any better – would appear to support the contention that he is racist.

This misses, of course, the literally hundreds of other offensive jokes he’s passed on in the time I’ve followed him – homophobic, transphobic, misogynist, androgynist, ageist, ableist… well; I trust the point that comes across there is that the jokes are not selected in their offence… Like Henry Higgins from Pygmalion he treats all subjects alike and it would be possible to put together any selection of those jokes to prove a point.

This is not to say that some of the jokes he repeats aren’t intensely uncomfortable for me – certain of the gender-based (as a wider category than merely sexist or homophobic) jokes in particular annoy, irritate or upset me. What I do not do is unfollow, critique or scream blue murder about those jokes – instead I try to analyse why they make me feel the way they do.

Have we really got to the point as a Society that we cannot accept that someone might pass on jokes without actually subscribing to any animosity about the individualised subjects? If it has then we really need to get a sense of humour, and fast – the consequences otherwise are never being able to say anything at all.

Firstly, it is not the EU that stops us having the death penalty – it is, as previously stated, the ECHR Protocol 13.

However, if we leave the ECHR mechanism (by giving up our membership of the CoE) – something we can do, but which would leave a tail-end withdrawal jurisdiction (cases can be bought for three years, the findings are still valid and enforceable) then as a consequence, and certainly following the Interlaken procedures under Protocol 14 we would also be ejected from the EU as a consequence (note: ejection is almost certain; it’s never been done before but that’s no reason that a very serious failure of obligation, tied to our opt-out on Lisbon to apply Protocol 14 directly through EU law would not lead specifically to the most serious method available).

So… It would take three years from leaving the Council of Europe for the Death Penalty to be allowable without review by a trans-national (extra territorial) Court. from this point, even were the process started immediately once Parliament returns from the summer recess it would be late-stage 2014 before the death penalty could be considered as a ‘safe’ issue in domestic legislation – at this point we are not in the CoE or the EU and there’s an election in six months or so…

Chances of any government seeking re-election bringing in a Death Penalty Bill that can pass both the Commons and the Lords within six months, and that will enhance (remember, we’re out of Europe – the coalition is dead as a future prospect) the electoral chances of the Conservative Party?

I’d give that one a zero.

To propose, as has been done, the removal of all treaty obligations which prevent the death penalty forgets the origin of the removal.

The 1951 Homicide Act removed the death penalty*, substituting life imprisonment for those crimes (except High Treason and a couple of other offences) which still had the death penalty. This debate of removal had taken place over more than a century; from J.S.Mill onwards. This was done prior to any Treaty requiring the death penalty to be removed.

Protocol 13 of the ECHR, stopping the death penalty was introduced and ratified by the UK in 2003; we’d already removed the death penalty from any remaining crimes in preparation for this. the ICCPR Optional Protocol 2 also abolishes the death penalty, and we’ve also ratified that, although it does not have any domestic effect – our courts don’t have to follow the ICCPR.

So we removed the death penalty over a century or so, piece by piece before any Treaty required us to. It can be said therefore that the common law states that the death penalty is an anathema to the law – no sitting judge has ever wanted to use it in place of the sentencing options they had available.

It’s also worth considering the counter-effects of sentencing options on findings of guilt. Despite rose-tinted spectacles there were not fewer murders in the past, and although a murder could (if hanged) only kill once (or in a sequence) before being stopped, there were many murders that were not solved, or when taken to court, the accused were found not guilty because… What little evidence there is on Jury behaviour proves that they are reluctant to convict for serious crimes, and the more serious the punishment the higher the unlikelihood of a conviction becomes. So the death penalty would lead to a higher rate of non-conviction than the life sentence already does.

I would also like to add that I find it superbly irrational for a libertarian arguing the State cannot be trusted with taxes or health care to argue that the State can be trusted with the power of life or death over any person. Come back when your argument has fewer holes than the average seine net.

*Amend: the wording seems to suggest this single Act removed the Death Penalty – it was merely part of the Consolidating exercise on defences; but a step that was required in order for the Life tariff sentences to work in practice. A wording short-cut that says more than it ought.

Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation Of The Inequality (Kindle version)

Martin Heidegger, Being and Time (Tr. John Macquarrie & Edward Robinson, Blackwell Publishing 1962) 0-631-19770-2

H Arendt Between Past and Future: Eight Exercises in Political Thought (Penguin Books, 2006 Edition)

In any work the question as to approach or method carries with it the question of the point at which one begins. In terms of LGBT rights, there are several points of origin – Leviticus and Mosaic law; the legal history of Sodomy as a criminal offence (covered in my undergraduate essay); with the creation of the identity itself (Ulrichs, 1864); the jurisprudence of the human rights system that has covered these issues most thoroughly (covered in my Master’s thesis); with the holocaust (the pink triangle) or with the ‘modern’ fascination with liberation (Wittman, Amerika).

The main part of my question is about the method and consequences of the Yogyakarta conference that led to the passage of the Yogyakarta Principles in 2007 – the consequences clearly mean that the main sources of law or political consequences must occur after 2007; the evidence for this work can only be found in the recent past.

LGBT rights as human rights in international law means the origin question moves wider – to the creation of international law on human rights; the Yogyakarta Principles derive from rulings or precedent set from the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights; the settlement reached under the auspices of the United Nations after the second world war.

The origins of those codified human rights moves wider still; and the answer lies within the enlightenment that framed the concepts of the rights of man and the codified Constitutions that included those rights within the law of nations – to Rousseau and the French Constitution and les droits de l’homme et Citizen and the US Constitution and the Bill of Rights, including the well documented disagreements between Burke and Paine and the criminalisation of possession of the pamphlet ‘On the Rights of Man’ in England.

While the Yogyakarta Principles can only be addressed in the time since their declaration, the rights of man in the context of Constitutional law is much wider; yet again we can return to Arendt as having examined those issues and concepts deeply within her work, in particular the Constitutional settlement of the United States in her political theories and the concept of rights within the Origins of Totalitarianism.

The illusion of cultural universals, stemming either from a misunderstanding or misrepresentation of ‘Western’ philosophy (as discussed by Sen) as a category or ‘Eurocentrism’ (as discussed by Kolakowski ) seems to set LGBT rights as human rights in direct conflict with cultural values – those values described in Uganda or Nigeria as ‘African’ in nature or in the middle-east as those values described as ‘Islamic.’

That the category of ‘African’ or ‘Islamic’ in context is as wrong as ‘Western’ or ‘European’ since there is no possible way we can isolate and distinguish between Christianity and Islam (having the same Abrahamic roots) or between versions of Anglican Protestantism of English or Ugandan origin, is not in question. However, since the discourse of cultural relativism has been allowed to develop in the discussion of belief; especially as it relates to homosexuality and the apparent rejection of it through interpretation of Leviticus; in addition to the protection of faith and belief through human rights then the apparent conflict cannot simply be dismissed as irrelevant or rejected as an illusion – the purpose of the creation of a narrative within the collective is to allow or to frame expression in such a way that all perspectives can be given purpose.

It is no more an answer to ‘African identity’ to state that such a thing cannot exist since ‘European identity’ does not than it would be to dismiss ‘African identity’ as being culturally inferior or barbaric as compared to ‘European identity.’ We could argue that neither concept should exist, but that would be utopianism – creating a world with ideal conditions in which to examine the question rather than pragmatically handling the problems we have been given through the formation of identity whether we consider that formation to have been right or wrong.

The pretention to universality is indeed a problem; but it is one inherent in the system of international law and normative treaty law. Any examination of LGBT rights outside the domestic system of each individual state must recognise the problems as they exist and attempt an answer that can assist not just in creating a mechanism for legal protection of LGBT persons, but one that goes beyond fixing category errors of the past (should they be found to exist) in creating a system of rights under law that can lead to greater recognition and protection for individuals than the current system of human rights law created after world war two.

H Arendt Between Past and Future: Eight Exercises in Political Thought (Penguin Books, 2006 Edition)

A Kolnai, Ethics, Value, and Reality: selected papers of Aurel Kolnai (University of London, Athlone Press 1977) 0 485 11169 1 Chapter 2: ‘The Sovereignty of the Object: Notes on Truth and Intellectual Humility.’

B Nyhan and J Reifler, ‘When Corrections Fail: The Persistence of Political Misperceptions’ Political Behaviour <http://www.springerlink.com/content/064786861r21m257/fulltext.html> published online 30 March 2010, accessed 11 June 2010.

A Sen Identity and Violence: The Illusion of Destiny (Penguin Books, 2006) 978-0-141-02780-7

On the Subjective

There is one piece of information missing from Kolnai, and that information was forever missing to him since the study by Nyhan and Reifler lies outside his time on this earth. This is the eternal trap of the present as it appears to humanity; we can know nothing that no-one before us has not known and communicated to us, and any new information comes to us only in the present and never from the future – the entirety of human social and political experience is tied to history. There are many philosophers who saw this fact and tried either to work around it, or to work directly with it – among them Hegel, Kant and Heidegger; but the one who tried to address it in classical terms (going back to Socrates and then forward again), linking it most strongly with the alienation of humanity from itself or the world was Hannah Arendt.

Arendt strongly proposed the concept of natality; the insertion of the new and unique into the old with each human arrival – something that has been linked to birth but is most properly (in Arendtian terms) set alongside political life, not the natural place (or biology) of humankind. Arendt’s particular use of natality in the political sense and her use of the concept of world alienation as a removal (disengagement) from the political realm was my first reason to choose her work to guide my own thoughts.

The Nyhan and Reifler study is necessarily limited – it is a single study of certain aspects of political belief and news reporting; showing the specific ability in certain circumstances of persons with entrenched beliefs to carry on believing those things in the face of all available evidence to the contrary. It is however tangible evidence of the kind of thinking that Arendt examines at several points when looking at the political failures that led directly to the establishment of Totalitarian regimes in the twentieth century – a study that she carried out through the subjective, as a German Jewish intellectual who fled Germany before Krystallnacht, but which was done in such a way that she was also accused of being ashamed of her own Jewish identity – she achieved objectivity in her descriptions against her own subjective involvement. As a gay man studying Lesbian, Gay, Bisexual and Transgender rights I am also subjectively tied to my work – to attempt to achieve the same level of objectivity as Arendt was my second reason to choose her work.

Adorno and Horkheimer also questioned rationality as against the enlightenment principle of an ‘age of reason’ – there are several problems with enlightenment theory as it stands; that the thinkers who proposed it (particularly Rousseau and Kant) assumed that mankind was rational as a base-line; assumed that rationality was achievable by all persons at all times and all together (transcendence – for example the ‘phenomenology’ of Pierre Teilhard de Chardin); and assumed that a rational mind would always find common sense to be objective (assuming that common sense could be objective). Having Heidegger as a teacher and colleague in common with Adorno, Arendt sees many of the same problems with enlightenment thought as the Frankfurt school of philosophy; but in different ways – and although she rejects many of both Rousseau and Kant’s assumptions or conclusions she engages with their work. In particular the issue of a ‘sense that is common to all’ qua common sense within her work on the human condition and human thought was another reason I chose her work.

On Being in Touch with the World

Clearly to be in touch with the world means being in touch with both oneself and society – as Arendt says, thinking is the only singular thing that we can do: It is a withdrawal from the world; but the judgments we form through thought remain with us when we return to the world and communicate those thoughts through action and speech.

There is a problem when identifying any minority as a singular group – both Sen and Arendt point to singular, subjective definitions as carrying danger; Sen in the creation of cultural identities which appear at variance to one another and Arendt in defining a small part (the what) of a person as their identity rather than the entirety (the who) – it is Arendt’s absolute rejection of identity on a subjective basis as rational within the realm of the political which fascinated me the most; her work on Totalitarianism and in particular those political journal articles which she wrote prior to the holocaust on Imperialism, Race and Antisemitism and how those thoughts later influenced her work on the human condition and the self as a creation of various narratives rather than a singular identity set her work apart from the struggle to find an identity that seemed to lie at the heart of the origins of Queer Theory in the particular form of liberation studies.

Of course, it is also necessary as a part of the focus on LGBT rights to consider the work of Queer Theory and the roots of that discourse in academic terms as lying within Foucault and the work of Judith Butler on gender and identity; but rather than looking for the least conditional universal it is the search for the narrative self in the widest possible sense – the kind of extension of self that Antonia Cavarero has taken from Arendt, keeping in mind Butler’s criticisms of that method of descriptive analysis, that is being undertaken here. The description sought is of a narrative self which could be accorded the ‘common sense’ label in terms of being common to all.

On Having Common Sense

The search for any element in a political sense of commonality was a major focus of Arendt’s work; and one that often clearly frustrated her. Although she has emerged as a source of philosophy in the context of legal systems, her main focus was not philosophical – she described herself as a political theorist rather than a philosopher and did not particularly engage with law in the sense that we as lawyers or students of law would address it. Her interest lay not in jurisprudence, but in the distinction of the political realm from all others and the equality of persons as they engaged in political action and speech.

In that sense, her absolutism in some ways also obscured her own thoughts – although she is able to articulate very clearly the reasons she has for thinking of (for example) the US Constitution for having been flawed by Franklin allowing slavery she has problems with her own method in finding a solution to ‘the Little Rock problem’ since the political flaw caused a social problem. For her the solution could not be found in law; it had to come from the political but had been placed in the wrong context by having a social outcome – this contextual problem that she creates for herself is another reason to use Arendt. In some ways it serves as a reminder that absolute separation of political, social or biological is neither possible, nor in the context of forming legal theory, a desirable thing to do: Given the way that law works between individuals and state in both domestic and international legal systems; and that rights have always derived entirely from belonging to a polity (as Arendt recognises when she proposes the ‘Right to have rights’ in the Origins of Totalitarianism) then the definition of self and collective must both recognise that not only is humanity as a whole not rational but that all systems that involve persons have to accept and handle this irrationality – the law has to be both objective and subjective to survive the attempt to apply it.

On Instruction and Information

Clearly the ability to follow the thoughts of others was important to Arendt; she covered philosophy in an entirety – from Socrates and Aristotle through Augustine, Aquinas and Hegel, to Kant and Rousseau, Hobbes, Mill, Marx and Nietzsche – a broad ranging and eclectic mixture of all styles of western thought; western here in the sense of excluding Hindu, Muslim or African political perspectives which might have been available to her. In addition to covering a wide range of perspectives she also narrows the focus of her work at points by concentrating on what others might think of as being trivial in context – she criticises Kant for separating thought and reason; not because he did so, but because in her opinion he failed to follow that up and give a valid explanation of why he separated them and what that actually meant to each of those concepts individually. Likewise, although she clearly takes issue with Nietzsche’s conclusions and antisemitism she points to the Second Essay in On the Genealogy of Morals as containing a profound insight into memory and will in the context of the promise.

It is Arendt’s consideration of the ability to promise, which she draws from numerous sources and applies directly to law (for instance as the intention to be bound in good faith when signing treaties, as expressed in the Vienna Convention on the Law of Treaties) which I saw as the most compelling reason to examine LGBT rights in international law through her reasoning and thought – I could return to her beginnings and conduct the same search through philosophy; or I could accept that her insight was sufficient guide to frame the concepts I would have to address in order to examine the basis of the law that was stated as fact by the Yogyakarta Principles of 2007.

This does not mean that I exclude myself from the return to Nietzsche, Kant or Rousseau – just that I am not forced to return to assure myself that Arendt was correct; I can be humble in accepting her interpretation as being better than the one I might attempt myself. Particularly this acceptance applies in the consideration of time – Arendt took a life-time to apply these questions; I have at this point only the life-span of a PhD and three years is too little time to attempt an answer of that level of complexity.

On the Correction of Errors

Within her own lifetime, Arendt did not consider criticisms of her work to be contentious or something to be ignored – she engaged with critics, to the point of answering a review of the Origins of Totalitarianism with an extension of a question asked by her reviewer in a journal piece. She also returned to the concept of the ‘banality of evil’ with which she described Eichmann at his trial in Israel following criticism of the phrase and expanded what she had meant even though her original intention when using the phrase was merely descriptive rather than categorical.

Of course, Arendt’s absolutism also enters the discussion of error – her rejection of the ability of the US Constitution to recover from the ‘founding crime’ of allowing chattel slavery even through the mechanism of the fourteenth Amendment is an interesting one in the context of the political. It’s an interesting position given that it is fairly clear that her sympathies for the Greek model of polis form the basis of her ideal political system without any recognition of the profound irony that the Greek model of equality in the polis could not have existed without slavery being at the heart of the private realm that allowed the ‘society of equals.’ Not only did certain parts of this slavery approach the same level of ‘chattel’ slavery that she objects to in early US history; but the Greek system also relied heavily on the violent nature of the Athenian state in the way that it conducted itself against those perceived to be ‘enemies.’

Her examination of violence and its effects however did express a total rejection of violence as a valid form of political action – in the same way that Sen sees violence as being based on cultural identities that exist as singular parts of a whole, Arendt rejects the use of force and violence as being valid for any form of liberation. This in particular is a linked issue when considering the early works on liberation professed (for example in Carl Wittman’s Refugees from Amerika) a form of violent or rejective struggle and in the consideration that most forms of oppression in social or political contexts against LGBT persons can be considered as being acts or speech relating to violence against those persons.

In the course of marking these essays, my thoughts have turned (inevitably) to Arendt, Adorno, and of course, Rousseau.

The subjective nature of human rights has never been an issue (problem) for me; but Arendt’s seeming approval of Rousseau’s discovery of the intimate was… I wondered what she saw in it that I couldn’t and why she would approve of isolating a facet of the private sphere as being exclusively private since the logical outcome of that isolation would always be identity politics when you consider the social sphere in modern social constructs.

Then it hit me of course; Arendt doesn’t approve of the hybrid ‘social’ sphere and an isolation of intimate thus serves a purpose for her of removing ‘nature’ from ‘construct’ – cleansing political matters of those factors that create inequality. It’s masterful but inherently flawed: the social is both intimate and collectively political; it is too structural (Foucault, more or less) to modernity to eliminate through shutting down State apparatus in favour of localised solutions… Any solution has to be global to truly work, and that means concentrating on the truly universal; not epistemology.

The problem I have with the intimate is not the creation of identity politics as such (although this is an abuse of identity as a characteristic) but the fact that the creation of the intimate allowed and led directly to the concept of “privacy” as a human right, as opposed to something that is “deprived of a public nature” by virtue of being natural rather than constructed.

The answer lies within the extension of the narrative self given by Cavarero, taken from Arendt and moved into the social as a partial construct of story-telling. It’s a start but it didn’t go far enough – the narrative self also appears in certain Bio-ethical methods as well as psychology, and as such it creates a set of rights about itself as a construct that goes beyond freedom of expression and includes that information about ourselves that we choose to reveal… In other words it creates a singular Right that includes both privacy and publicity – there is no question of balancing Rights against one another; if there’s ever a question of balance it lies within the same Right and hinges on the question of who ‘owns’ the narrative of oneself and who, therefore, has the right to disclose or conceal.

This is an easier question to answer in a way that would appear objective to law (although still subjective to Adorno) – and that is why I now propose the elimination of (rights such as) Article 8 of the European Convention… Privacy is a misnomer, and it allows cultural subjectivity and religious intolerance a method to argue that it is not normative. Cultural and Religious objections far from being illogical or wrong at least approach comprehension of the problem – Privacy is wrong in human rights: it is total freedom of narrative that is required; both to conceal and reveal, and not privacy per se.

Quoting Jack Straw, in the Guardian

Let me be very clear on this point: Although the HRA 1998 was important at the time in order to bring the Convention within the bounds of the jurisdiction of (particularly) the UK House of Lords Judicial Committee and the Courts of Appeal the subsequent case law on sections 3 and 4 shows that in fact this supposed implementation of Article 13 ECHR (domestic remedy) is at best weak, and at worst flawed beyond redemption. Parliament is not covered by the HRA, being supreme, and can deliberatively (although not accidentally) breach Human Rights any time it feels like it.

The Act is itself therefore flawed in creation by the limits placed upon it by our particular Constitutional settlement.

That 9/11 was allowed at any point to interfere in the creation of a new set of domestic norms on human and civil rights, in a country which was not the target of the original attacks, was – as expressed since by the UN and leading international jurists – an anathema. That such an extreme isolated example of an act of violence could limit ordinary Human Rights in any context was appalling at best, and contrived at worst. The Universal Declaration (although not the International Bill of Rights legal mechanisms – the Covenants) does not allow that kind of manipulation of incidents to restrict Human Rights.

The article in the Guardian gets even more laughable when Straw turns to the Constitution – “It has become a central plank of our constitution. When we in the UK finally apply ourselves to producing a single written text for our constitution, the act will have pride of place.”

This is an appalling sentiment, and one that I trust the coalition government will ignore utterly – the very idea that such a flawed piece of legislation, which was notable for the number of times the Labour government ignored, ridiculed (or questioned the case law) based on their over-reaction to 9/11 and 7/7 in the anti-terror legislation they hammered through parliament – could be a part of a modern written constitution actually makes me feel physically ill.

No, Mr Straw. Under no circumstances should the HRA 1998 be allowed anywhere near the UK Constitution in any form – whether that is a written Constitution or the uncodified Constitution we currently manage to ‘struggle by’ on (since the start of legal memory in 1189) this Act is NOT Constitutional. Far from it.

The focus of my thoughts at the moment is on the political consequences of violence, the place of violence within political life (and the social arena) and the limits which can be placed on free expression in order to eliminate the effects of violence.

Sounds easy at first, and there’s volumes of case law (especially in Common law jurisdictions and in the work of the European Court of Human Rights) but none of it is entirely satisfactory, since it misses the point that Arendt made about violence being inherently and explicitly anti-political. Violence itself becomes a means for denying free expression, and given that fact, then violent acts cannot be free expression in and of themselves, since that violence of necessity limits the freedoms of others.

This leads on from my earlier post about those in positions of authority mandating hatred when using their own personal beliefs as a platform for public expression – an expression that will be reported and disseminated to a greater degree than the free expression of others who do not hold public office…

I’m trending towards the regulation of speech only for those holding public office – both a burden on and a function of the position that they sought to hold; the only reason I can find that sits well with principles of total liberty is that you do not have to hold public office and are not forced to do so, so limitations upon your liberty are (provided the limitations are clear and not obfuscated or placed within poorly-drafted ‘Charters’ held by Ombudsmen) justified under the circumstances.

What isn’t clear is where those rights are to be guaranteed – if we think of them in political terms and identify them with the public realm then they are (for example in the UK) only guaranteed in Parliament – as indeed they are expressed in law through the Bill of Rights 1688.

The problem with equality in the public realm is that we’ve never in common-law terms expressed what privacy means – the Tort of Privacy (which has been stated several times as not existing – it derives from human rights actions under the older doctrine of Breach of Confidentiality) adopts and adapts the jurisprudence of the Strasbourg institutions under the ECHR.

The older concept of private/public also suffers a monumental deficit in modern thinking; namely the social realm that grew from the private and is lived with others (being thus thought of as public). What we really have then is a combination or hybrid set of realms (or spheres) – The political; which is what elected representatives do directly within Parliament, the social; which mixes elements of household affairs with non-representative politics, celebrity, daily life, work – basically everything that is not the intimate; which is private in terms of being “behind the front door” – in the home in the strictest sense.

The point of all this? Well, for rights to work then everyone must have them – that’s the point of rights and equality. Obviously to be equal everyone has to be treated the same in political terms. But of course, there’s a catch…

Prejudice is a natural part of human beings – it’s not allowable in properly ‘public’ matters where all must be equal in order to take part, but it cannot be prevented in properly ‘private’ matters where individual judgment must be allowed to give people the opportunity to chose their own company.

So what about the social realm? That’s where confusion has come into equality and in terms of things like free speech, where arbitrary lines have been drawn (or are drawn) on things like hate speech, religious beliefs and offensive speech or behaviour, and the provision of goods and services (think B & Bs in the private home)… The social realm contains both extensions of the intimate, where prejudice cannot be prevented, and extensions of the political, where prejudice cannot be allowed.

Without making extremely complex laws which allow exceptions based on the intention of participants in the social realm, dependent on whether they see what they are doing as being an extension of intimacy or an extension of the political the social realm as a hybrid and containing both private and public must be kept equal too – which means that (in human rights terms) civil rights that were historically presented as absolute (i.e. the First Amendment to the US Constitution) actually have become (i.e. Articles 8-11 of the ECHR) limited where ‘necessary in a democratic society.’

In other words, given that mass society is a plurality in the sense of being many individuals, then only the intimate is protected against interference – which increasingly limits the areas where prejudice should be allowable.

That’s the real discussion that needs to be had – what is the social realm… Not whether some aspects of free speech can be limited, but where that limitation takes place. The right to free speech when it affects no-one is undisputed; yet as we live ever more connected lives with even the intimate becoming social (your internet connection crosses international boundaries, not just your doorstep) where can limitation end?

What is necessary, and where does society end and intimacy begin?