An Examination of the Cultural Relativity of Human Rights
by Jonathan Patrickpublished in Associate, 36
London: Association for Bahá'í Studies English-Speaking Europe, 2001 Autumn
The discourse between proponents of the universality of human rights and those of their cultural and religious relativity has taken on the fervour of a holy war. As Thomas Frank1 puts it, 'the fight is essentially one between powerful ideas, the kind that shake the pillars of history.' On the one hand are those claiming that the West has monopolised the articulation of 'human rights' and is adopting a neo-imperialism to roll out those rights to cultures and religions who adhere to a very different code of morality and a different system of values. Sharing such arguments, according to Frank are theocracies, kleptocracies, praetocracies and a mixed bag of western intellectuals, uncomfortable bedfellows for sure and who share the argument for such divergent reasons that to summarise them in one statement would do justice to none. On the other hand are those (like Frank) who argue that the values embodied within 'human rights' are inherent and innate and are benign to all liberal cultures and religions.
In this essay I shall state in brief the arguments presented by Frank for the universality of human rights. I shall proceed to unpack them in order to demonstrate that far from being universal, 'human rights' are the contextual2 articulation of a deeper universal morality. Human rights are very much an expression of values rather than the values themselves. For example, the 'human right' to life is an expression of the intrinsic value we place on life and a celebration of that value. The right to freedom of expression reflects the value we place on the free exchange of ideas and of self expression. However, as courts have seen the world over, such 'human rights' are not mutually exclusive nor do they adequately reflect the huge cultural and religious diversity of the world in which we live.
It is very much the thesis here that 'human rights' are the result of contextual discourses. They are not a body of substantive justiciable rules whose application is universal and whose language is determinate. Instead they comprise normative indicators of the collective will of humanity and whose impact on world order is profound and evolving. Such human rights reflect inherent and inalienable human values. However, their articulation and application are contextually bound and as such they should be regarded as reflective of moral values validated and interpreted by the community as a moral or sovereign body.
The Universalised Human Rights Debate
In his promotion of the universalisation of human rights, Frank uses the example of the Taliban in Afghanistan as his bete noire. Anti-democratic, unrepresentative, authoritarian and repressive, the Taliban Islamic fundamentalist regime is repressing the female half the population and imposing their (particularly virulent) version of Islamic Law on the population.3 To give Frank credit he does compare, if not equate, the attitude of the Taliban to that of the US government which continues to execute prisoners in defiance of world opinion and often in ways most would find abhorrent.4 However in responding to his own argument Frank plays the nationalist card stating that 'the US is not Afghanistan. What the Islamic fundamentalist regime is doing there violates well established global law,'5 and leaves one wondering which international law specifically allows states to 'fry' its prisoners.
Briefly acknowledging the 'rights/ responsibilities' discourse Frank however dismisses such arguments by simplifying and parodying the debate. The '… battle lines (are those) between forces of communitarian conformity and the growing network of free thinking autonomy-asserting individualists everywhere.'6 Who could possibly argue the case for 'communitarian conformity' when the alternative is a world of 'free thinking autonomy-asserting individualists'?
Frank outlines what he regards as the three key arguments against cultural relativism.7
First, Frank attempts to explain that human rights are the result of forces of global development (rather than any specific territorial or culturally or religiously bound initiative). If human rights are sourced in global factors (i.e. those which claim no common religious, regional or cultural source) then their articulation must surely be global too. Frank attempts to support his argument by detailing the human rights abuses that occurred in Europe prior to such global developments.
Secondly, in recognising the force of the rights/responsibilities discourse (see later) Frank denies that there is any inherent conflict between individual rights on the one hand and the common good, social responsibility and community on the other. Frank concludes his argument with the following, 'liberated from predetermined definitions of racial, religious and national identities, people still tend to choose to belong to groups'.8 What Frank is saying is that by focusing on the rights of individuals the rights of the community is effectively safeguarded. By attempting to dismiss one of the key arguments of the 'cultural relativists' Frank attempts to undermine their argument.
Thirdly, he argues that those advancing the claim of cultural relativism do not legitimately represent those for whom the claim is being made, but cultural relativism is instead a shield behind which despots and tyrants hide. Citing 'liberal' third world leaders and activists9 Frank dismisses such arguments on what appears to be an attempt at empiricism. If 'Third World Leaders' and activists say it is true then it must be true. This is a seemingly powerful argument and one on which I will briefly dwell and which can be repackaged as the 'torture test'.
The 'Torture Test'
With a number of variations the 'torture test' goes something like this. The contextualisation of human rights argument is simply a tool of authoritarian regimes and despots who use the cultural relativity of human rights argument as a veil to shield their actions from external scrutiny and as validation of their (inhumane) treatment of citizens. If asked (and of course they invariably are not) those citizens would decry such treatment and plead for 'universal' human rights. Since the prohibition against torture is a fundamental human right, the argument that human rights are not universal is to suggest that the prohibition of torture is not universal. Ipso facto human rights are universal and those defending their contextualisation are either despots or naïve western intellectuals.
The story of course does not end there. This argument is certainly an important one (if a little crude and populist) and any argument that proposes to contextualise human rights needs to deal with this argument. To do that it is important to unpack the 'torture test' which does contain several incorrect implicit assumptions. First it assumes that the diversity of human rights can be adequately summarised in one or a few rights. Torture (or whatever human right one chooses) cannot be used as a euphemism for all others. Each one needs to be taken in its own right and in context. Secondly, because of its emotive nature, the use of torture as an example is disingenuous in that it suggests that anyone who argues against 'universalised' human rights is, by implication defending despotic regimes. There is nothing in the contextualisation of human rights argument that precludes that some human rights are universal and as such the whole argument can be dismissed easily in agreeing that the prohibition against torture (or whatever universal human right used as a euphemism for other contextual rights) is universal.
The Contextualisation Debate.
How difficult is it to elaborate an alternative view to that of Frank without losing any cogency or moral legitimacy? I present three examples of these discussions here.
Firstly, the African (Banjul) Charter on Human and People's Rights10 includes both rights of 'peoples'11 and the duties of individuals. African rights (as articulated in the Banjul Charter) are bound up in obligations to family, village, tribe and state and are inseparable from them.12 Similarly Asian and Islamic values bind rights to obligations for the benefit of both the individual and society. Many Asian and Islamic societies share concerns that the individual has not only taken precedence over the needs of society but that the well being of society will be almost completely subsumed by an over emphasis on the individual. The mutual exclusivity of rights (as currently articulated) and the hypothetical and real conflicts between those rights13 further fuels the debate over the validity of 'human rights', certainly as rights justiciable under the law.
While it is unfortunate that frequently those arguing the case most forcefully for the contextualisation and culturalisation of human rights are the same people who can be found systematically and massively violating individual human rights, such findings should not be used to dismiss the cultural relativity of human rights. Despots will always use whatever tools they have to hand to repress their people and to justify that repression in the eyes of the world and the argument for the cultural relativity of human rights is unfortunately one such tool that despots find useful. The other and related argument against the inclusion of duties in any human 'rights' instruments is that collective rights might be used to 'trump' individual rights or that obligations be stressed over rights. Again, despots will use whatever means they have to oppress the populations of the states which they rule and such 'trump card' arguments are just one of many tools available. Indeed the tool despots rely on most frequently is the very notion of 'sovereignty' with its critical corollary of non-intervention. Most positivist proponents of the universality of human rights argument do not advocate the dismantling of state sovereignty in their quest for universal application of human rights.
Secondly the source of human rights is another contested issue in the discourse. Whether sourced in divine14, moral, legal or political origins, human rights will also face the claim that the source is not valid for the context in which rights are to be applied or else will face equally valid counter-claims as to their origins. Many Africans will dispute the notion of a liberal political theory articulation of human rights while Muslims will dispute the notion of their origin in a Western secularism.
And finally the authority of the Universal Declaration of Human Rights (UDHR) as the definitive articulation is a critical element in the discourse. While the UDHR is the most prominent articulation of human rights it is argued that it is certainly not the definitive articulation (if such a definitive articulation is indeed possible or desirable). The UDHR is founded in western theories of liberal politics focusing on the individual as the subject of rights and the object of state obligations. As such it fails to account for the rich history and rationale of the close linkages between rights and obligations. There surely can be no right to a family life if there is no corresponding willingness or ability to take responsibility for that family and the right to liberty is closely linked to the obligation to obey the laws of the state. And as our libertarian15 discovered to his cost there is a duty of respect for fellow humans before any rights of free speech can be exercised. Similarly the very interpretation of those articulated rights is bound by the western liberal tradition of the dichotomy if not outright hostility between the state and the individual. Rights are interpreted in a negative sense: in a laissez faire rather than in an affirming sense. Freedoms are freedoms from not freedoms to and are presumed to exist only in that sense. The freedom of thought, conscience and of religion is of limited use to an individual with limited intellectual, moral or spiritual capacity to exercise those rights. Only through the development of those capacities will he be able to enjoy those rights to the full. And the development of that capacity is not presumed to be a factor of that right nor a right in itself. The right to life is generally interpreted as a freedom from arbitrary execution by the state rather than arbitrary murder on the streets of the capital or a right to good health to enjoy that right to 'life'. Such tensions are shared with the discourse on the regulatory functions of the modern liberal state being central to much political, philosophical and moral debate.
Towards an alternative framework
Almost all discourse on human rights is characterised by seemingly intractable dichotomies: inalienable versus socially constructed; absolute versus contingent; universal versus particular or culturally specific; duties versus obligations; eternal versus historicist; atomistic versus holistic; licensing versus affirming; based on human dignity versus based on utility or power.16 How do we begin to reconcile such exclusive notions of human rights?. What is the model and what are the criteria we apply?
Are human rights so culturally and religiously bound and so poorly articulated (at least in the legal sense) as to render them meaningless as a tool for the development of humankind whether as substantive law or as normative values? The answer lies less in the articulation of those rights and the debate on their origins than in the discourse on the validation of those rights. Perhaps it is necessary to return to the origins of their purpose. Why do we need 'rights'? What utilitarian function do they serve in this utilitarian world society? The search for an answer must take us to look to their value as normative indicators of the consciousness of humanity.
Human rights language is steeped in inferences of self-realisation of the individual and society and in references to the conscience of humankind.17 If no coherent articulation of that philosophy is evident then fault lies in the very discourse not necessarily in the flawed articulation. Every right carries with it a corresponding duty which can be encapsulated in the principle of reciprocity of actions and behaviour. The debate on the relationship between human rights and duties is essentially a debate on whether the individual is seen in the abstract or in context. The future of both the individual and society are so bound up together that it is ultimately impossible to separate them. The continuing debate as to the primacy of the individual or the group is a futile one whose inherent contradictions will continue to be misinterpreted by scholars who claim that the lack of cogency and coherency renders the whole debate subject to either politicisation by the state or utopianism by romantic dreamers.18
A better alternative to this forced universalism which has only led to the sorts of intractable dichotomies examined above is provided by the Bahá'í Faith which believes in universalised human 'values' while allowing the contextualisation of those values into human 'rights.'19 Bahá'ís see the source of human rights as the 'endowment of qualities, virtues and powers … bestowed upon mankind without discrimination of sex, race, creed or nation.'20 Such rights attain a social and legal status only after they have become rights, validated by the community as a moral or sovereign body. Such validation processes might be through the democratic institutional processes (e.g. parliament); custom and common law; principles of distributive justice or the purely hypothetical form of a social contract. The validation process will not only lend moral and sovereign weight to those 'human rights', but only through reasoned, consultative and determinate discourse will such 'rights' acquire a contextually determinate status rendering them justiciable as appropriate. With the purpose of 'human rights' as the realisation of human capacities and potentialities firmly in mind, it is ultimately irrelevant through which validation process human rights travel until they contribute to human self-realisation so long as such a validation process is adhered to, concluded and lays claim to moral legitimacy.
Human rights are not exclusively legal concepts. They are sociological and economic concepts as well as physiological, medical and cultural. Human rights incorporate issues such as race, class, religion, politics, gender, disability, linguistics and others. The debate on the cultural relativity of human rights is in one sense sterile. Human rights incorporate culture. They also incorporate religion, gender and class. They incorporate all the characteristics that make us conscious, rational and spiritual human beings. Culture is but one.
Human rights are bound up with distributive justice, with criminal justice and with poverty. They can not be separated from culture, class, race, gender, religion, politics, ethnicity, language and other characteristics that define us as human beings. They are bound up in the moral philosophy of each of us and how we see our fellow humans. The application of human rights is part and parcel of world polity and world comity in which traditional notions of 'sovereignty' are increasingly being challenged by a collective consciousness and action.
Human rights however are not simply formulae to be ticked off on a sheet of paper against each country. Human rights are the contextual articulation of shared values that resonate within the consciousness of humankind and which derive their ultimate authority from God. They attain social and legal status only after they have become moral values asserted and maintained by members of the community whether local, state or international. They are life affirming and should be regarded as proactive on the part of those obligated to meet those rights. They can not be divorced from the social, spiritual and political context which gives substantive, moral, determinate and legal meaning to those rights.
1. Thomas Frank (2001), 'Are Human Rights Universal?', Foreign Affairs (January-February): 191.
2. Cultural, political, religious and sociological.
3. It must be noted that the vast majority of Muslims distance themselves from the theology and actions of the Taliban movement and consider Islam a much gentler and more accommodating faith.
4. Many were 'fried' through the use of a faulty electric chair. The practice was only discontinued on pressure from federal authorities who protested that the method was, not contrary to human rights law or any other basic norm or decent human behaviour, but rather against the US constitution. Frank supra n 1.
5. Frank, supra n 1: 191.
6. Frank, supra n 1: 195.
7. Frank, supra n 1: 191.
8. Frank, supra, n 1: 201 (emphasis added).
9. Chandrika Kumaratunga and Dato' Param Cumaraswamy the former chair of the Malaysian Bar Council and UN Special Rapporteur both of whom presumable who do indeed legitimately represent those for whom they claim to speak. Frank, supra n 1: 194
10. African Charter on Human and Peoples' Rights, adopted 27 June 1981, entered into force 21 October 1986 http://www.oau-oua.org/oau_info/rights.htm
11. For example Article 20: '(1) All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.'
12. Supra n 10: '(1) Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community. (2) The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.'
13. As even the most ardent of libertarian human rights proponents will discover to his cost when testing his theory of absolute free speech in a crowded cinema with cries of 'Fire'.
14. By its very nature any discussion on the origin of rights is ultimately reduced to matters of faith not objective verifiable reason and there is neither reason in a discourse on matters of faith nor proof in any conclusion.
15. Supra n 12
16. Steiner and Alston 2nd Ed. 2000 International Human Rights in Context. OUP: 1305.
17. See UDHR Preamble: 'Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ...' http://www.un.org/Overview/rights.html
18. Koskenniemi (1989) From apology to utopia: the structure of international legal argument. Helsinki: Finnish Lawyers' Publishing Company: Chapter One.
19. At least as we commonly understand them.
20. Bahá'í Declaration of Human Rights and Obligations. http://www.bahai.org/article-1-8-3-1.html. This statement was presented by the National Spiritual Assembly of the Bahá'ís of the United States and Canada to the first.