The Origin of Human Rights
and the Challenge of Universality

excerpted from the book

Tainted Legacy

9/11 and the Ruin of Human Rights

by William Schulz

Thunder's Mouth Press, 2003, paper


Whether it be a religion, a nation, or the world at large, the norms that govern at any one point in history reflect the views of those who are at the moment holding the prevailing mantle of power.

Upon what authority are human rights based? There are really only three possibilities: God, natural law, or philosophical pragmatism, which is sometimes referred to as political consensualism or constructivism.

If individual people of faith wish to believe that God is the source of human rights, they are welcome to do so, but, absent demonstrable proof, their faith is unlikely to be sufficient to convince everyone else.

The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to demonstrate that all human beings share certain characteristics. But finding those that constitute the "essence" of being human and are of sufficient import to serve as a rationale for rights is a bit harder.

The history of natural law theory would suggest that conceptions of human nature have varied wildly throughout the ages, that they will continue to vary far into the future, and that the ones that have predominated at any one time have done so far more for political than philosophical or scientific reasons.

The first problem with a natural law theory of rights is that what is "natural" (and hence "right") ends up being so largely in the eye of the beholder. Little wonder that natural law was long the favored justification of the elite classes for the denial of rights to the oppressed.

How does the general trait of utilizing reason help us decide whether people have a right to a fair trial or to claim a nationality or to marry without limitation due to race or gender? Couldn't a reasoning creature decide that it would be best to recognize not a right to a nationality but only a right to claim world citizenship? For these and other reasons, natural law has long been out of favor as a basis for human rights.

Yet despite all these objections, some neoconservatives want to resurrect it. Francis Fukuyama (of "End of History" fame) is one of the most articulate exponents of this view. According to Fukuyama, "Any serious discussion of human rights must ultimately be based on some common understanding of human ends or purposes."

... Fukuyama's notion of human nature leads to precisely the type of society he himself wants: "Human rights that speak to the most deeply felt and universal drives, ambitions, and behaviors will be a more solid foundation for political order than those that do not," he says. "This explains why there are a lot of capitalist liberal democracies around the world at the beginning of the twenty-first century but very few socialist dictatorships [emphasis added]" Here Fukuyama has revealed his hand. Not because there is necessarily anything wrong with the triumph of liberal capitalist societies (that is a different question) but because human nature, vague as his conception of it is ("moral choice, reason, language, sociability, emotions, consciousness, etc.), has been used to justify his political preconceptions. History had "ended," after all, in Fukuyama's famous conception, with the victory of capitalism over socialism.

People of widely disparate political views advocate natural law theory but neoconservatives particularly love it because it is imprecise enough to allow them to pick and choose the rights they like and ,p discard the ones they find inconvenient. How interesting that though the biological needs for food and shelter are probably the common human traits least difficult to establish, neither Fukuyama nor his neoconservative counterparts would ever be caught dead arguing that social and economic rights (as opposed to the right to property and corporate competition) are indisputable imperatives derived from human nature. Nor is it likely that neoconservatives will ever conclude that the death penalty is a violation of Nature's laws or that gay, lesbian, bisexual, and transgender people have the "natural" right to full expression of their sexuality.

What the political consensus approach conceives of as human rights emerges from a cacophony of many voices, power spread wide-from the makers of human rights treaties to the judges of human rights laws to the human rights activists struggling for justice on the ground.

And what is it those voices are trying to agree on? Is it "human ends or purposes"? No. Why should we need to come to consensus on those controversial topics in order to agree that torture is wrong? You and I can both be against torture even if I believe that the purpose of life is to get into Heaven and you believe it is to avoid being bored. Despite our differences, we can both very well agree that we would rather not live in a world in which torture is commonplace. That is because human rights are not dependent upon our sharing the same notion of God, the same religion, philosophy, or conception of human nature; they are dependent upon our sharing a commitment to what makes for a civilized world.

Over the centuries, largely in response to political tyranny and repression, growing numbers of people have found their voices and their power and, as they have, norms of reputable behavior have evolved;it the time of the Aztecs, human sacrifice was acceptable.

Today those norms of civilized behavior, that description of a just society, are codified in the form of human rights. In a funny kind of way human rights constitute a universal set of manners, a worldwide book of etiquette, that the structures of power ought to abide by in their treatment of the people over whom they rule. Human rights are designed to protect the less powerful from the whims and caprices of the mighty. They provide protections that have been judged to work to make societies more equitable, peaceful, stable The fact that the power elites often fail to heed their manners, that abhorrent practices like slavery are still found in the world, does not mean that they are judged tolerable by the world community as a whole any more than the fact that murders still occur means that laws against murder are meaningless.

... when it comes to human rights, we look to the collective experience of humankind, as interpreted by what is called, to the jeers of its critics, the "international community." By this we do not mean of course all humans on earth. We can't poll everybody to determine the rules for a just society and, if we did, some rights we recognize today might not receive a majority. By ''political consensus" we do not mean unanimity. But we do mean a growing circle of people-women, the dispossessed, minority cultures-whose voices are becoming louder and who are claiming a greater share of the power. And we do mean those international and regional institutions, preeminently the United Nations but also such bodies as the European Parliament, that give those voices a hearing and help articulate human rights principles. And we do mean all those international covenants and conventions such as the Geneva Conventions, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the African Charter on Human and Peoples' Rights, and dozens of others, as ratified by the nations of the world, that codify those principles in law. We do mean those international and regional courts, beginning with the Nuremberg court but including today the European Court of Human Rights, the Inter-American Court of Human Rights, and several others that interpret those international human rights laws. And we do mean those international nongovernmental organizations like Amnesty International and Human Rights Watch that help monitor l violations of those laws and encourage the enforcement of them.

... a community is a community because in some more or less formal way it self-identifies as a community and adopts ... a set of common goals, directions, traditions, norms, and values, that at least the leadership and large numbers of the citizenry of the community profess to share.

... the international community has, over the past fifty or sixty years, begun to self-identify as a community. This doesn't mean that every country, much less every citizen, shares the same goals, directions, traditions, norms, or values, but it does mean that gradually a shared sense of identity and values is emerging that much of the world's leadership and many of its inhabitants profess to share. Which of those values do the United States and China have in common? At least in their legal statutes, an aversion to torture and, more and more, a recognition of the right to private property. Denmark and Indonesia? Among others, an unwillingness to execute the mentally retarded. Japan and Angola? Along with all but two other countries in the world, ratification of the Convention on the Rights of the Child. The construct of an "international community" and the values that flow out of it are still evolving, far from complete. In some ways, the notion of an international community may be no more than a term of convenience, but terms of convenience can still point to real phenomena ...

Those who wish to see the United States dominate the globe are naturally resistant to recognizing an extra-American authority, a broader court, whether it be of opinion, policy, or justice, before which the United States might actually be called to account. Far more convenient to understand the grounds of human rights as embedded in natural law-a law that Americans can define as they see fit; that, arguably, provides our favored political system, liberal capitalist democracy, with the imprimatur not just of history's blessing but of human nature itself, and that implies only the vaguest of prescriptions for what rights will be recognized. It makes sense, too, that those who wish to premise human rights on the worthiness of those who would claim them will tilt toward natural law. Because if human nature is the basis for human rights, then those whose humanity we can question-those who are part of the "world of evil," in the president's words, or, more graphically, "barbarians," in the vice president's-have forfeited their rights by forfeiting their humanity. It is no coincidence, then, that natural law (or a combination of religious and natural law arguments) constitutes the authority for human rights that those who favor a Messianic role for the United States in world affairs most prefer.

This does not mean, of course, that the approach to human rights I have called political consensus is without its own challenges. Rights derived from such consensus, are not fixed and determined for all time. But then neither are notions of God or Nature's law. Human;7 rights at the international level rely upon much the same principle the a Supreme Court invoked when it determined that "evolving community standards," concerning what constitutes pornography or whether it is acceptable to execute the mentally retarded, influence the interpretation of justice. This means that theoretically, at least, the arc of the universe may not always bend toward justice, may not become progressively more enlightened, and human rights standards might conceivably regress. The best we can say is that past experience seems to show that the more people who are involved in the standard setting (that is, the more widely the power to set standards is shared), the less likely the backsliding.

The greatest challenge to political consensus as the basis for human rights, however, comes from those who charge that our current conceptions of human rights are not in fact universal but reflect a distinctive Western bias. If the human rights community cannot respond to the critics who champion various forms of cultural relativity, the whole human rights enterprise is in serious jeopardy.

Perhaps no practice has more dramatically focused the debate o~ the vaunted universality of human rights than that of female genital circumcision (FGC), the removal of parts or all of the clitoris and/or portions of the labia, an operation found widely throughout Africa as well as in parts of Asia and some immigrant communities in the West. Even the name for the ritual is controversial, those who condemn it insisting that it be dubbed "female genital mutilation." Strict cultural relativists have argued that FGC should be tolerated out of respect for the cultural traditions it reflects. The American Anthropological Association articulated the principle underlying this view in 1947 as the UDHR was being contemplated. "Standards and values are relative to the culture from which they derive," the association warned, "so that any attempt to formulate postulates that grow out of . . . one culture must . . . detract from the applicability of any Declaration of Human Rights to mankind as a whole."

The strict view of cultural relativism is fairly simple to refute. It rests upon the assumption that tolerance of alternative customs is a positive value. But that assumption is itself culturally based. Millions of fundamentalist Christians, Hindus, Muslims, and Marxists, who believe that their views ought to be imposed on others, would be scandalized by the presupposition of the cultural relativists that diversity is good in and of itself. If the cultural relativist is to be intellectually consistent, she must admit that the "standards and values [of cultural relativism] are [themselves] relative to the culture from which they derive."

Of far greater import to the human rights enterprise than this flawed intellectual criticism is the notion that conceptions of universal human rights, derived as they are largely from the Western Enlightenment tradition, are at odds with understandings of human rights inherent in other religious and cultural traditions and hence have no applicability to people living under the influence of those other traditions. Saudi Arabia abstained on the vote on the Universal Declaration of Human Rights in 1948, to take but one example, largely because it found the declaration's views of women and the family and on the right of the individual to change his or her religious beliefs to be at odds with its perspectives. Some Asian leaders have argued vociferously that Asian culture puts greater emphasis upon the needs of the community than the rights of the individual and that hence the civil and political rights of individuals should be subsumed to the social and economic development of the larger society. Radical Islamists contend that shari'a law ought to govern social and political relations in Muslim societies and that governments should be held accountable for its enforcement, even when its strictures (about the severity of punishments or the role of women, for instance) are at odds with universal human rights.

This dilemma underscores the importance of the argument for human rights from a political consensus or constructivist point of view. There is no question of course that many of the rights understood today to be universal are products of the Enlightenment and consistent with the Western liberal tradition. But it is important to remember in the first place that the articulation of those rights in the form of the UDHR was by no means a Western undertaking alone. The eight-nation drafting committee included among its most prominent members Dr. Peng-chun Chang of China. The Human Rights Commission that was charged with producing the declaration was composed of Egypt, India' Iran, and Lebanon, among others. The declaration itself incorporated a whole series of social and economic rights such as the right to food, housing, medical care, and employment not traditionally associated with the Western conception of rights and which still remain controversial in some Western contexts.

Moreover, the U.N. that adopted the declaration consisted of thirty-seven member nations that stood in the Judeo-Christian tradition, eleven in the Islamic, six in the Marxist and four in the ~, Buddhist. Only eight nations abstained on the vote. Six of them were the Marxist nations, which objected to the recognition of any individual rights that could be asserted over against the State; one was South Africa, which was wary of the declaration's being used to invalidate its apartheid policies (as, indeed, eventually it was); and only one was Muslim-Saudi Arabia. Despite the cultural diversity of the assembled states, not a single one voted against the UDHR.

Since 1948, growing numbers of states, from every religious and cultural tradition, have ratified additional human rights treaties, covenants, and convenhons. Just as important, human rights principles as articulated in the UDHR and its offspring have been incorporated into dozens of national constitutions. As a result, in many cases human rights abuses don't just violate universal standards; they violate the laws of the very countries in which those abuses are found.

... human rights ... are designed to give voice to the voiceless, to set boundaries beyond which the structures of power may not go in their treatment of the less powerful. If this is the case, then the question we must always ask when confronted by a religious or cultural practice that contradicts universal human rights is, "How many people had a say in the shaping of it?" And specifically, "Did the victims of the oppressive act approve it?"

Those non-Westerners who object to the Western bias of universal human rights are almost always the non-Westerners wielding the greatest power in their societies and rarely the non-Westerners on the I receiving end of it.

... one of the most promising developments in the human rights movement over the last fifteen or twenty years is an explosion in the number of indigenous human rights groups, even in the most repressive countries, and these groups are helping redefine and modernize exactly what their traditions stand for.. When the American legal scholar Ronald Dworkin visited China in 2002 and asked a group of Chinese teachers and students if they disagreed with the presuppositions upon which human rights rest in Western democracies: namely, equality between persons and autonomy of the individual, virtually all of them insisted that there was no important difference between Western conceptions of human rights and their own.

... human rights are guides to civilized conduct that have been drawn up and recognized by people from all over the world, that they are incorporated into the laws and policies of vast numbers of the world's nations; and that they are codified by international law and interpreted by international courts. We say that, while great respect must be paid to individual traditions, human rights ultimately trump all parochial interests, for they are a means by which all people "everywhere in the world," the weak as well as the strong, may give legitimacy to their needs and aspirations.

Fukuyama and other proponents of natural law contend that an approach grounded in political consensus has no grounds for condemning "abhorrent practices like suttee or slavery or female circumcision" because it provides "no transcendent standards for determining right and wrong beyond what any particular culture declares to be a right." But, on the contrary, consensualism reflects not what a ''particular culture" regards as right but what the international community has declared to be just. In the face of suttee (a Hindu widow cremating herself on her husband's funeral pyre), slavery, and female circumcision, we have a far better answer than the highly contestable notions that "God dislikes them" or "They contradict natural law." We have an answer that is demonstrable to everybody: "Your practice violates the closest thing we have to agreement among the world's people as to what constitutes cruelty and, because of that, the international community rebukes you."

The way to avoid cultural imperialism is to ground our human rights values not in sectarian notions of the Divine and not in ephemeral definitions of human nature but in the evolving standards of a worldwide civilization. Those standards include social and economic rights (reflecting the interests of the community), as well as civil and political (reflecting the interests of the individual).

Some will inevitably resent criticisms of their customs and practices, no matter who it comes from. No one should be naive about the extent to which recognition of the rights of women, much less of sexual minorities, will cause friction in many parts of the world. Nor should we pretend that respect for social and economic rights will come easily in the United States. But the more that others see this country promoting human rights in a global context, as values shared worldwide and not just derived from the Judeo-Christian' American, or even Enlightenment traditions' the less danger there will be of a backlash against the United States for "telling others how to live their lives."

Such a multilateral approach is possible no matter what one's theory of the basis for human rights, but a consensualist theory demands it. If you believe that human rights are grounded in political consensus rather than God's judgment or Nature's law, it is untenable not to recognize as well that the imperatives derived from rights apply equally to everyone. That is why how we think about human rights philosophically has profound implications for U.S. human rights policy, for if we adopt a consensualist view, we must, if we are to be consistent, subject ourselves to the same standards to which we hold others and allow others to hold us to them as well. By reinforcing the true universality of human rights, such an approach undercuts resistance to rights by terrorists or anybody else and ultimately makes us all safer. But it also requires us to rethink our understanding of a very touchy question-the question of whether there are limits to the reaches of sovereignty.

Tainted Legacy

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