The subject on human rights is often shrouded with controversies. To make matter worse these controversies has been around for awhile, then faded away into silence and resurrected several times and yet no solutions or agreements on how this issue should be dealt with. Perhaps it is this on going and continuous characteristic of these controversies that prompted the late philosopher Jeremy Bentham to label rights as “nonsense on stilts”. This paper will only discuss on the much debated topic on human rights i.e. should human rights be universal or should it be culturally relative.
The major challenge faced is in understanding the exact definition of “universalism” and that of “cultural relativism”. Not only does the meaning varies from one writer to another, the scope of what amounts to the above notions seem to be expanding from time to time and sometimes merely due to certain claims of human rights by a small class of people in a particular region. Most of the time, these notions are given a new definition because of the self-centered nature of human beings seeking to benefit for their very own interest.
The history of the debate deserves a brief mention here. The clash between universalism and cultural relativism impacts the moral foundation of human rights. This is also largely due to the different views of what amounts to “human dignity” and how human status is perceived in a given society. The peak of the debate began at the United Nations Conference on Human Rights that was held in Vienna in June 1993, where the world saw the confrontation between the universalist, mainly represented by Western countries, and the cultural relativist, represented by Asian and African nations. The clashes between them has its aftermath in the Bangkok Declaration of Asian Government on March 1993 and also in the Tunis Declaration which was held among the African states. From thereon, cultural relativism is seen as a main challenge to the universality of human rights. As observed by Z. Brzezinski:Culture is now going to be the diving line in the debate over the question of freedom and the question of human rights.[1]
This paper will discuss on how this debate between swayed from away from the original idea of human rights and what can and should be done in order to redraw the path of human rights. For convenience, this paper will be divided into 3 parts namely, (1) arguments against universalist, (2) arguments against cultural relativist, and finally as a conclusion (3) the way forward with a conciliatory approach between the two.
1. Arguments against Universalist
As mentioned the scope of universality varies. Or in other words, there are different degrees of the universality of human rights, often couched in different terms. “Radical universalism” would hold that culture[2] is irrelevant to the universal validity of moral rights and rules[3]. This is sometimes also known as “hard liberals”, who believe that human rights are postulate by pure reason necessarily being accepted by all rational beings and that belief are not only true but are certain and definitely not in doubt[4]. Then, there are what is known as “strong universalism”, a term used to denote those who considers culture a secondary source of the validity of a right or rule. Here, it presumed universality but the relativity of human nature, communities, and rules checks potential excesses of universalism[5]. For the purpose of this discussion and for comparison with cultural relativism, “radical universalism” or “hard liberals” will be used as they heeded by and represents the governments in the Western region that insist that human rights applies in the same way in every nation regardless of their state of development and the differences in the culture. The universalist claims that human rights has its roots in natural law. The theory of natural law was propounded since the ancient Greeks and Stoics and followed by philosophers and thinkers of the European in the Medieval and Enlightenment period. According to this theory, rights can be deduced by pure reasons and morality. Rights[6] are thus inborn and inalienable and belong to every individual by virtue of this humanity. Influential thinker during the Enlightenment period, John Locke, who played a significantl role in the American independence and French Revolution and a few others in his time like Rosseau and Hobbes, asserted that fundamental rights are derived from the social contract between the subjects of the state and the rulers. The individuals who act as subjects of the state by their general will allow the rulers to regulate the affairs in the society and in return, the rulers must protect the rights of the individuals. Failure of the rulers to comply with the social contract will justify the individual’s action of overthrowing the ruler.
The individualistic nature of human rights went on to create a series of ideas that the cultural relativist could not agree upon. The first being secularism, where religion or beliefs is placed in a limited area in a person’s life or plays no role in a person’s life in public. Hence, all laws governing human rights are not related to religion or God. The second is that of focusing on human rights rather than rights of the community at large. The last and most controversial is that all human beings have exclusive rights to their personal autonomy or a right to do whatever they wish to their body. This is also termed the right to privacy[7].
Universalist claims that, by the secular discourse human rights are deduced either from empirical facts or from the exercise of reason and shall never be determine by religion. This stand clearly goes against the religion of Islam. In Islam, religion is more than mere beliefs, customs and rituals. It is also a way of life. Men, according to the religion, are created in the image of God and that human rights and freedoms are not attributed to Nature but are the gifts of God in accordance with Islam[8]. It is submitted that this is not entirely true, at least not in accordance with the origins of human rights as claimed by the universalist. Natural lawyers often related themselves to the God or the divine order to measure the validity of law. Even John Locke, the man who influenced the universalist, has often referred to God in this Two Treaties of Government. For instance, in the Second Treaties of Government, he wrote that man cannot be dispose of his life because he is not the owner; God is the author and giver of life[9]. Another example is that, in the view of Locke, the origin of the property right is the right of a man to use any of the inferior creatures for his subsistence and the comforts of life. According to Franciszek Przetacznik, this indicates that God established the dominion of the whole species of mankind, over the inferior species of creatures[10]. This clearly indicates that, human rights as it first began before the post World War II period, does in fact looked towards to the divine order or religion as a basis to formulate human rights. Another interesting point highlighted by Prof Shad Saleem Faruqi is that the secular theories of human rights ought not to be treated as antagonistic to religious views but the two can complement and reinforce each other[11]. He said:Religion’s support for the dignity of man and its insistence on moral limits on governmental powers provide powerful tools for combating oppression and injustice.
The learned professor then went on to draw a few instances in the past where religion was used as a tool to defend the right of mankind. During the 1960s in the United States, the Christian Church rallied behind the Rev. Martin Luther King in his quest to lead the Negroes from the “dark and desolate valley of segregation to the sunlit path of racial justice”[12].
Hence, it is submitted that religion plays a big role in advocating human rights. One of the biggest mistakes made by the Western countries is the failure to understand the nature and teachings in a particular religion before criticizing it as anti-human rights. One fine example will be how the Western nations jumped to the conclusion that Islam permits female genital mutilation. It is best, as suggested by Prof Faruqi above that, that the discourse of human rights should seek support from religious doctrine.
Secondly, the universalist tends to focus more on human rights rather than community rights. This conception is also related to the individualistic nature of rights and coupled with the fact in the early days rights are often perceived as a shield that restraints the state from interfering certain the individual’s liberties. In this view, the individual is an autonomous and atomistic entity possessed of inalienable rights above and prior to the community[13]. Therefore, the single objective theory if human rights law has always been “to protect weak individuals from the oppression of powerful groups, by giving them ‘inalienable right’ which ‘inhere’ in them as individual”[14]. As a result to that, universalist from the Western countries branded the claim that rights of an individual arises out of its status as a member within a society rather than as an independent person as incorrect. They went on to refute the idea of peoples’ rights asserted by the cultural relativist, and in particularly those that are expressly provided for in the African Charter on Human and Peoples’ Rights[15], by saying that these rights are hardly practicable or enforceable in a court of law. On the other hand, the cultural relativist places more emphasis on the community rights rather than individual rights. In this way, the rights of the individual are to be sacrificed for the greater good of the community[16]. In Islam the aim of freedom is not human creativity but freedom is defined as belonging to the community[17]. Similarly according to the Chinese tradition, the ideal of mutual obligation is regarded as fundamental. Instead of claiming right, Chinese ethical teachings emphasized that by the fulfilment of mutual obligation, the infringement of rights of the individual should be prevented so far as the relation between the individual and the State is concerned[18]. One Professor Woo noted that the Chinese ethical theories hold that human life is predominantly social, with the family or community as the basic unit if human relations[19].
It is submitted that, the universalist has once again gone way too far from the original idea of human rights. A brief study on the writings of Aristotle will show that human beings exist first by the community within a family, then within its neighbours in a village and from thereon a society is built with the combination of several villages. The idea the universalist has on the priority of individual rights over community rights is largely churned out of the greediness and selfishness of mankind in a capitalist society. The crux of the doctrine of social contract is about the general will of the people to form a government that they desire and for the benefit of mankind in general. This stands in favour with idea that public interest, to a certain extent, should be given priority over the rights of the individual. A good example can be seen in the case of Natalie Abeysundere v Christopher Abeysundere[20], where the Supreme Court of Sri Lanka held that individual rights has to be balanced to the interest of the civilized society.
The universalist emphasize more on to rights as opposed to the corresponding duties of the individuals. The universalist tends to disfavour the notion of duties since it connotes a moral obligation to another. The scope of duties varies in different culture. In Islam, the duty of an individual is also towards God and the society[21]. However, it is submitted that rights cannot be exercised without duties. Duties set out the scope and the parameters of rights, which without would confine the notions of rights into an abstract idea. Every rights has its limits and every individual has a duty to conform to the rules of the community to which he belongs, insofar as he gives others to expect that he will do so, and insofar as he takes advantage of the reciprocal conformity of other members of the community[22].
Lastly, the right to abortion, right to gay-marriages, right to gender reassignment, and etc. all that is said to come under the right to live with a human dignity and a right to privacy, does not in any way reflects the idea human rights as it first begun. These claims of rights make no sense until medical and scientific evidence which states that such needs and characteristics are inborn and inherent to certain individuals are tendered as conclusive discovery.
2. Arguments against Cultural Relativist
Though it is evidently clear the culture diversity and pluralism exist across borders, and culture does in fact influence the thinking and behaviour of human being, this does not mean cultural relativism withstands scrutiny. Being essentially an anthropological and sociological concept loosely grounded in the theory if moral relativism, this concept is often used to justify departure from human rights standards in international law on cultural grounds[23]. This stance often used[24] to legitimize gross violation of human rights in an autocratic regime. Cultural relativist in rejecting cross border and transcendental application of universal norms on human rights and international scrutiny, found its basis on the core principle of the UN Charter i.e. sovereignty of states. The main contenders of cultural relativist in Asia include Malaysia and Singapore, expounding the concept of “Asian values”.The very first criticism on cultural relativist is of the basic dilemma faced by cultural relativist themselves i.e. reliance on principles found in the UN Charter seeks to promote a universal standard and international scrutiny, and the claims by cultural relativist that their theory is universal in application. The espousers of Asian values contends that societies’ or State’s rights always prevail over that of the individual. To them, civil and political rights are not important in the developing state and are ought to be circumscribed in order to promote the “right to development” which will benefit the society in general. Malaysia seek to achieve its status as a developed state by placing the country in what it seems to be a permanent emergency period, where fundamental rights can be derogate and the jurisdiction of courts excluded[25]. Singapore, already a developed state for years shows no signs of giving more political rights to its people. Politicians that questions the actions and policies of the government are often silenced using draconian laws in the name of preventive detention for the security of the nation. It is submitted that the meaning given to “right to development” by these Asian leaders is plainly wrong. Development in terms of economy gains should be balanced with the right of the people to participate in the running of the nation, which can only be done where there are sufficient guarantee of civil and political rights.
4. The Way Forward - a Conciliatory Approach
It is my contention that debate between universalism and cultural relativism is in fact a façade to international politics and arguments by both sides seek merely to serve the self interest, making the tension somewhat unnecessary. Where do we go from here? Though there are no perceptual unity and common understanding of human rights, the pursuit of human dignity is universal[26]. It is submitted that one way to reconcile universalism and cultural relativism is to look for the lowest common denominator. This can be done by redefining the concept of “human dignity” under the philosophical doctrine of “minimum universalism”[27]. This doctrine agrees with relativism that moral life can be lived in several different ways, but insists that they can be judged on the basis of a universally valid body of values[28]. These universal values constitute a moral threshold of irreducible minimum, which could not in any way be transgressed. Once such minimal values have been reached, the state is free to organise its way of life according to the diversity of culture.It is submitted that this was in fact what the drafters of the Universal Declaration of Human Rights seeks to achieve. The UDHR sets out the minimal norms of rights, which is to be found in the first 28 articles, and duties and restrictions in art 29 and 30 respectively. It is a document drafted by the Human Rights Commission which was made out of members which contributes significantly on insights from their own culture. Within the 18 member Commission, there were representatives from the then less-developed nations like China, Lebanon, the Philippines, and Chile. Comments on the Commission’s second draft were received from various countries like Brazil, Eygpt, Mexico, India, Pakistan and South Africa. Furthermore, it was never the intention of the Commission that these universal principles must be implemented in the same way everywhere[29]. Philip Alston Wrote that, “The Declaration does not purport to offer a single unified conception of the world as it should be nor does it purport to offer some sort of comprehensive recipe for the attainment of an ideal world. Its purpose is rather the more modest one of proclaiming a set of values which are capable of giving some guidance to modern society in choosing among a wide range of alternative policy options.”[30](emphasis added). However what is lacking in the UDHR is philosophical foundation. It is submitted that without such foundation, there will be difficulties in determining the scale of values that governs the exercise of these rights and the core value of human dignity will lose its significant. Therefore, there is an urgent need for the United Nation to obtain general consensus from the states in defining the “lowest common denominator”.
[1] Quoted by Symonides , Janusz, “Introductory Remarks”, Human Rights : New Dimensions and Challenges, Ed., Janusz Symonides, (Aldershot: Ashgate,1998), 24.
[2] “Culture” in this paper refers to culture in the broader sense which encompasses national and regional particularities and various historical, cultural and religious backgrounds and a way of life.
[3] Jack Donnelly, Universal Human Rights in Theory and Practice, second ed.,(US: Cornell Univ. Press,2002), 90.
[4] Quoted in Nurhalida Mohamed Khalil, “Paragraph 3, Part II of the Vienna Declaration and Programme of Action 1993 : A Reflection of the Approach of the Universalist or the Cultural Relativist?”,(1993) 20 Journal of Malaysian and Comparative Law 184-201.
[5] note 2.
[6] The term used then was “natural rights” which was made famous by philosopher John Finnis in his book Natural Law, Natural Rights. “Rights”, according to Finnis are something that every human being are born with and are self-evident.
[7] It is to be noted that, although these ideas are put in separate categories, they are in fact inter-related. They are related in the way that culture plays no part in the validity of human rights.
[8] note 3.
[9] Franciszek Przetacznik, “Individual Human Rights in John Locke’s Two Treaties of Government” ,(1978) Netherland International Law Review,195-216.
[10] Ibid.
[11] Shad Saleem Faruqi “Human Rights in Legal and Political Philosophy” (1992) XXI INSAF 1-19.
[12] Ibid.
[13] note 3 pg 189
[14] Ibid
[15] These so-called “peoples’ rights” includes right of peoples to existence, to freely dispose of their wealth and natural resources, to their development, to national and international peace and security and the right to a general satisfactory environment favourable to their environment.
[16] Note 3 190.
[17] Ibid.
[18] Youdindra Khushalani, “Human Rights in Asia and Africa”, (1983) Vol.4 no. 4 Human Rights Law Journal 403-442.
[19] Ibid. however, the accuracy of this statement is questionable as a great Chinese philosopher Mencius maintained that a government should work for the people- similar stand taken in the western theory of social contract.
[20] (1998) 1 Sri Lanka Law Report 186.
[21] This is illustrate in the case of Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan [2006] 1 MLJ 685.
[22] Daes, Erica-Irene A., Freedom if the Individual under Law, (New York: United Nations,1990),39.
[23] Shestack, Jerome J., “The Philosophic Foundations of Human Rights” (1998) 20 Human Rights Quarterly 201-234,228.
[24] Or rather misused.
[25] Art. 160 of the Federal Constitution.
[26] Note 3, 196.
[27] Bhikhu Parekh, “Non-ethnocentric Universalism”, Human Rights in Global Politics, ed., Timothy Dunne and Nicholas Wheeler, (Cambridge: Cambridge University Press,1999), 128-159.
[28] Ibid, 130.
[29] Glendon, Mary Ann, “Foundations of human Rights: The Unfinished Business” (1999) The American Journal of Jurisprudence, 1-14, 7.
[30] Ibid.
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