Hegemonic systems, including legal systems, cauterize the Other; that is, they brand some individuals as “so far inferior that they ha[ve] no rights which the [white] man [is] bound to respect” (Scott v. Sandford 1857). Once branded as inferior, they become aneu logou (without a voice) and sans part (without a part) in the polis. To reverse this cauterization process, the previous chapter argued it is imperative that the Other reclaim a voice; that human rights law must learn to learn from the voice of the Other. Once the Other has a voice, the deconstruction of cauterization must continue by overturning the branding or categorization of the Other. The Other is categorized, or placed into an essentialized synecdoche where he or she is labeled as a permanent part of a group. In the example from the last chapter, the Indian Supreme Court portrayed the adivasis as anti-dam and anti-development whereas pro-adivasi NGOs represented them as “ecologically noble primitives.” In Chapter 2, we saw that young French Muslim women were branded as victims of patriarchy or as uneducated immigrant girls that were excluded from l’affaire du foulard. A human rights of the Marginalized Other must call for the continuous deconstruction of the identities that are imposed on marginalized Others. Again, the branding will not be overturned by scholars, attorneys, or judges, but by self-ascription by the Other.
Some political theorists of group rights have also recently called for an important role for self-ascription (Benhabib, Gutman, and Valadez). Yet, many tensions inherent to self-ascription remain unexplored, and these theories too often have relied on the Cartesian view of the individualized autonomous subject free to initiate action. Rarely have such calls for self-ascription begun from a more nuanced view of the self. Self-ascribed identity is often multifaceted and fluid, and rarely is it completely voluntary, being constrained by societal norms and various power structures. For instance, Upendra Baxi argues for a new discourse of group rights that would account for the fact that “being human is itself a process of continual redefinition” (2002, 79), what [Naomi] Mezey (2001) has nicely called “the dance of mutual constructedness.” However, this redefinition is constrained, sometimes severely, by existing power structures. Baxi poignantly asks: “Are all identities fluid, multiple, and contingent? If however, you can place yourself in the non-Rawlsian original position of a person belonging to an untouchable community would you find it possible to agree that caste and patriarchical identity has become fluid, multiple, contingent? As an untouchable, no matter how you perceive your identity…you are still to be raped.” (Baxi 2002, 83–84). Any theory of self-ascription must consider “the dance of mutual constructedness” of individual identities and the hegemonic power structures that cauterize the Other and provide a central place for the voice of the Other so that human rights law is based on a learning to learn from below.