The Origin of Human Rights
and the Challenge of Universality
excerpted from the book
9/11 and the Ruin of Human
by William Schulz
Thunder's Mouth Press, 2003,
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
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
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
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
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
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
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.