How have enlightenment philosophers informed our understanding of contemporary human rights law? Does their contribution inform the contemporary debate in which cultural relativists are pitted against universalisms? Why or why not?
Historical Context of Human Rights
Historically, the concept of human rights was characterized by schism among political thinkers and schools of thought. The first divide is the consideration of human rights in the context of religious and secular beliefs. Religious scholars considered the scriptures and religious writings as the basis of morality while secularists believed that human rights is a concept in itself existing outside of religion. However, among secularists there is also division, with the liberals emphasizing on civil and political rights to define human rights while socialists centered on economic and legal equity as the essence of human rights.[1]
Developments in political theorizing led to the proposition that human rights takes root from both religious and secular perception. Moreover, human rights underwent rigorous classifications. Human rights was redefined as consisting of liberal, civil and political rights. Civil and political rights were considered as first generation rights or rights that may be exercised through judicial enforcement. Economic, social and cultural rights were considered as second generation rights deemed as programmatic rights because of their social nature. While the liberalists continue to stress on the importance of first generation rights the socialists insisted on the salience of second-generation rights. However, the division of first and second-generation rights was rejected due to the consideration that all these rights comprise human rights. During the twentieth century third generation rights were introduced to cover environmental rights, indigenous rights to self-determination and women’s rights. [2]
Apart from the schisms that befell the concept of human rights, contemporary understanding of human rights was also influenced by the different ideas that came out during the enlightenment period where the formation of the nation state became the foundation of human rights. The nation state was seen as the primary tool for the exercise of secular rights. During this state, the religious basis was put to the rear as political thinkers preferred natural law. Thomas Hobbs supported natural law as the basis of human rights and propounded the concept of social covenant, which means that entry into a social covenant ensures peace and security in society. This was the basis of the Habeas Corpus Act 1689 that prosecutes any violations of human liberty by primarily checking on illegal imprisonments. John Locke is another political thinker that proposed that the legitimacy of the government stays as far as it functions to support human rights. This implies that human rights is a bigger concept that serves as the catalyst for governance. Locke’s writings were incorporated in the Declaration of Independence written by Thomas Jefferson. The declaration was also influenced by Thomas Payne who supported natural rights expressed in the equality among all people and rights also accrue to the person due to membership in society. Immanuel Kant is another philosopher that influenced the contemporary understanding of human rights through the abolition of slavery during the feudal stage. In the later stage of the 1700s, Mary Wollstonecraft brought out manifesto that advocates the equality between men and women that influenced the contemporary idea of human rights and the feminist movement.[3]
As the understanding of human rights developed among the liberalists so did the theorizing among the proponents of socialism. Socialism challenged the inability of the emerging capitalist system to ensure the exercise of human rights and rejected the classification of rights into first, second and third generation rights due to the equal importance of the exercise of all these rights. In the late twentieth century, the liberal-socialist debate heightened and expressed in the different aspects of international relations. However, the debate was criticized by non-western states because of the inability of these schools of thought to consider the different situation of other cultures. This spurred ideas on cultural relativism.
Another school of thought that posed a challenge to the liberal-socialist debate is utilitarianism supported by Bentham and Walker. Bentham proposed that political instruments should work to maximize pleasure and minimize pain and that justice is the ultimate goal of political activities. Justice pertains to the equality of rights of every person, lack of discrimination and fairness, which are all part of the contemporary understanding of human rights. Walker provided a solution to the issue of the vagueness of the word rights by suggesting the advocacy of particular liberties such as the freedom of speech.[4]
The concept of human rights that we know today developed only after World War II[5]. The end of World War II led to the international cooperation to establish guidelines respecting the dignity of every individual and respecting the right to self-determination as a response to the Nazi occupation[6]. The result of these efforts is the drafting of the Universal Declaration of Human Rights in 1946. The Universal Declaration of Human Rights (1948)[7] is a written statement of the principles on human rights, which although not legally binding has a moral or political authority. The Universal Declaration of Human Rights draft is a result of the convention of representatives from 18 states who are members of the United Nations and who are mostly western countries.[8] In December 10, 1948 majority of the 58 states comprising the General Assembly of the United Nations adopted the declaration.[9]
The International Covenant on Civil and Political Rights (1966)[10] contains the rights and remedies available to every person in the enjoyment of civil and political rights. The second article recognizes the equality in rights of every person regardless of any physical, cultural and economic differences. The ICCPR focuses more on the inter-state relations and the political aspect of a society. The International Covenant on Economic, Social and Cultural Rights deals with the rights and remedies for the protection of the freedom to pursue personal or group beliefs, values and practices. [11]
Article 16 of the International Convention on Civil and Political Rights (ICCPR) that “Everyone shall have the right to recognition everywhere as a person before the law.” is an absolute or inherent right because this cannot be limited or restricted in whatever way. An individual’s dignity is respected wherever the person will go. Article 12(2) of the ICCPR (1966)[12] which provides that “Everyone shall be free to leave any country, including his own.” is an example of a prima facie right because ingress and egress to and from a country is subject to the state laws of the particular country. A person may be prevented from leaving a country when he has committed an act in violation of the laws of the country or if the person does not have the required papers and formalities for leaving a country.
The provisions covering the issue of this paper are on cultural human rights. These provisions give protection to the right of a person to be freely involved in the cultural life of the society, to share in scientific advancement, to protect his own moral and material interests in scientific, literary and artistic productions, to obtain an education and to maintain his cultural identity, language and customs. This right enables individuals and groups to enjoy beliefs and practices and continue these as a matter of choice. [13]
Article 13 (1) of the International Covenant on Economic, Cultural and Social Rights (1966)[14] that “The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. “, is a provision entitling every person to freely pursue and enjoy beliefs and practices in the community.
The universal determination of what constitutes human rights and its binding effect on signatory countries irrespective of culture gave rise to the ongoing debate on cultural relativism and universality of human rights. On one hand, cultural relativism proposes that human rights covering the concepts of morality should be determined, interpreted and implemented in the context of the different cultures. On the other hand, universality holds that human rights exist regardless of culture, religion, custom or ideology. [15] As a general trend, non-western countries comprise the block espousing relativism. These countries claim that human rights is relative to a given culture based on the inevitable existence of cultural differences in different peoples.
The paper will discuss the contentions of the proponents of universalism and cultural relativism to determine how these have fueled the debate on universalism and relativism that brought about the different issues on human rights facilitating a greater understanding of the existence of human rights amidst cultural diversity. The paper will also consider the point of reconciliation of the universalism and relativist views of human rights in the context of cultural diversity.
DISCUSSION
RELATIVISM
Cultural relativism holds that beliefs, values and practices are far from being universal because of diversity in perspectives. The differences in human values result to the consequent view that human rights which is an idea and a moral belief is relative to particular cultures. The determination and implementation of human rights depend on the people espousing a particular culture.[16] Cultural relativism is a doctrine that purports that there are some aspects of the differences in culture as well as historical experiences that should be made exempt from external standards and criticism. This concept is based on the concepts of “communal autonomy and self-determination”.[17]
Autonomy, whether referring to personal or community autonomy, refers to “the right to be different and to be left alone; to preserve, protect and promote values which are beyond the legitimate reach of the rest of society”[18] or other cultures. Self-determination is a concept that refers to the entitlement of communities to determine their own affairs collectively[19]. John Stuart Mill[20] proposed that states should be viewed as self-determining entities despite the fact that its internal political institutions may not be free. The political philosopher envision a state as exercising self-determination if the citizens seek and fail to establish political institutions, provided that the development of these institutions are not influenced or dictated by external forces. Although, the view only pertains to political communities, self-determination in the context of cultural diversity refers to the ability of cultural communities to decide the pace and direction of the developments and changes relevant to their situation without any external intervention. [21]
Cultural diversity is reflected in several conflicts concluding in cases filed before the courts. The case of People v Ezeonu[22] involves a Nigerian doctor living in New York was convicted of rape for having a second wife even if the marriage is valid in Nigeria. The decision was founded upon polygamy as against public policy[23]. This shows differences in cultural practices on valid marriages. Although human rights respects the right of people to marriage, the assertion of this right in different cultures varies. Both United States and Nigeria respect the right of people to contract marriage. However, US law respects monogamy while Nigerian law respects polygamy. Diversity in moral values is not only existent across cultures but also in sub-cultural groups within a culture. In the United States, a bigamy case[24] was filed against a man who had a second wife consistent with his beliefs as a Mormon. The court rejected polygamy because of its implications if it were to be legitimized as a religious-based practice. Another case involves an Iranian woman who contracted with an Iranian man for a temporary marriage or mutt’s. However, during the separation proceedings the man denied the existence of the marriage defeating the woman’s right to receive a share of property and obtain support. [25]
In the universalism-relativist debate, the relativists have a valid point. The key to understanding the arguments of relativism is to determine the underlying cause of their protests against universalism. The historical trend of oppositions to the imposition of universal human rights in different cultures is not so much against the concept of universalism but on the western roots of universal human rights.[26] The arguments revolve around the concern that universal human rights is a tool for the imposition of the western culture on other cultures that defeats the ability of people to exercise autonomy or self-determination. Since universal human rights is understood and applied in the context of the moral values of the western culture, this creates a rift between universal human rights and the various moral beliefs.
There are different arguments on relativism. There are extreme views that totally protest universal human rights while there are also views that only propose changes to the universal human rights as a response to the previous experience on its implementation. There are two radical views on cultural relativism. One is radical cultural relativism that regards culture as the only basis of validity of moral beliefs and practices. The other is radical universalism that considers culture as an irrelevant basis for the validity of moral rules that are universally valid. [27]
The first argument of the proponents of relativism is the extreme view that the universal treatment of human rights is a threat to self-determination because it generalizes human experiences and downplays the differences in perspectives across cultures. The implication of this stand is that states do not have to comply with international law because the culture of the state identifies and protects rights according to the culture of the state. [28] This is an inward looking view that considers cultural concepts of morality as the only valid basis for determining actions that are acceptable or formidable to the community. The community is in the right in conforming to these commonly accepted moral beliefs and practices.
The conflict between Muslim laws and international law exemplifies this argument of the relativists. The rejection of international law is made on religious grounds since there are certain values, beliefs and practices covering gender-based roles and practices, which international human rights considers as a violation. Other examples given to support the argument is the distinct difference in the beliefs and values across cultures that make it impossible to allow a universal concept of human rights. African cultures have different notions of rights and punishments in the same way that Asian cultures view rights and acceptable behavior in a different way. [29]
The second argument on relativism proposes changes to the Universal Declaration of Human Rights. This implies that they do not contest the legality of international human rights. They just have an objection on the manner of enforcing these rights. The ground for this argument is that the implementation of human rights results to inconsistencies with the beliefs, values and practices in a community or state. This view is termed as crude relativism. [30] This argument goes out of the universalism-relativist view because it does not question the applicability of universal human rights in different cultures. The proponents of this view considered the actual experiences of people with regard to the implementation of universal human rights and evaluated its validity based on its acceptability. This argument is exemplified by the protests that the United States and Britain received form other states when they launched a pre-emptive war on terrorism on Iraq despite the fact that the reasons given for doing so were questionable and unsubstantiated. This resulted to human rights violations from both sides but the family of nations did not condemn the action of the United States and Britain. Apart from the differences in actions constituting violations of universal human rights, the continuation of the pre-emptive war means that powerful western countries can impose their cultural standards on morals that are consistent with universal human rights. In general, the protest against universal human rights is its lack of teeth in binding states to comply, which means that powerful states can use it as a tool for their self-interest.
The third argument comes from the narrative relativists who espouse that universal human rights reflect a single culture, the western perspective, failing to recognize that there are alternative but equally valid definitions and methods of enforcement and protection of rights from the perspective of other cultures. [31] This perspective question the applicability of universal human rights in different cultures based on the western roots of universal human rights. This is because the countries that initially met to discuss and draft the universal declaration of human rights were western countries and countries representing different cultures just ratified the declaration. The argument focus on the intention and purpose of the parties that drafted the declaration in terms of the consideration of cultural diversity and the regard for the views of other states. Since universal human rights is a western concept, its applicability to other cultures is problematic because of the differences in moral beliefs and rules across cultures.
Relativists assert the fact that throughout history different communities have diverse perceptions of rights. The concept of human rights originated in Europe and transferred to the United States through the British connection. Relativists give the argument that human rights is not universal because it is a concept developed by the western culture. [32] Relativists also view the universalism of human rights as a subtle form of coercion to spread the western influence over other cultures. Because of the illegitimacy of conquering regions by military force, the means of perpetrating influence changed into a less obvious means of control. According to the relativists, western culture as a political tool for coercion is imposed on other cultures under the guise of human rights. [33]
The cultural relativistic view on human rights also came about as a response to the fall of communism and the resulting dominance of the democracy espoused by western cultures. The dominance of a single culture and the lack of diversity in cultural influence served as threats to other less dominant cultures. Relativistic arguments were a response to the perceived threat of western cultures over the continuity and survival of the other cultures. The role that the United States assumed as a global guardian and police threatened the cultural sovereignty of other cultures resulting to a guarded stand towards western culture and influences. Human rights viewed as a western influence explains the hesitation in its acceptance. [34]
The fourth argument focus on a distinct Asian values that give priority to law, social order and common security more than the civil and political rights of the individual. Creating an orderly and peaceful social environment for the individual constitutes the protection of the rights of the individual to live and be free. This focus on community welfare and social order is a reflection of Asian values that constitutes the distinct characteristic of the culture. This is also needed if the people espousing the culture want to maintain a stable government and political environment for economic progress. [35]
Half a century after the inception of the Universal Declaration on Human Rights, the issue of cultural diversity and relativism has been pushed out into the open because of the “Asian values” debate that offers an alternative view to the universality of human rights. The proponents of diversity and relativism contend that there is a distinct Asian approach to human rights. The approach is based on Confucianism which highlights community welfare rather than focusing on individual rights. This approach considers the larger picture that an individual is a member of a community and that there are certain values important in developing and maintaining a good relationship with other people. Confucian teachings focus on propriety, righteousness, loyalty and filial piety that apply to social relations as well as in governance. Human rights involve the application of these values in human relations. Human rights is upheld when every person acts with piety or righteousness towards other people. [36]
Despite the range of arguments presented in favor of the relativist view of human rights, there are basic concepts on relativism that are included in these views. The relativist view considers morality as different from culture to culture[37]. This is captured by the statement of Bozeman[38] that “profound differences between Western legal theories and structures and those of Africa, China, India and Islam must preclude attainment of a universalistic legal system of predominantly Western orientation.” There are distinct differences in the moral beliefs of people that exclude the possibility of having a universal moral rule.
Another common concept among relativists is that understanding the aspects of differentiation requires the placement of these variations in the cultural context[39]. This means that having a complete understanding of a culture entails being a product of that particular culture. According to Bozeman[40] “a culture produces its own unique mode of thought that acts as a schematic guide for conceptual thinking…cross-cultural equivalents for certain moral, legal and political concepts may not exist…Even if one culture were to borrow a concept from another culture, that concept’s meaning would be filtered through the first culture’s unique linguistic-conceptual structure.”
Based on the basic concepts of relativism, there is no universal morality because of the differences in historical experiences and the diversity of cultures. This is because all moral claims are embedded in a particular moral context that is also the source of validity of these moral beliefs. Universalism may eventually emerge after the long-term imposition of western culture that overpowers another culture causing a change in the acceptable moral standards of the community. Thus, cultural relativism implies the acquiescence of different patterns of life as equally valid. [41] Moral judgments cannot be made about a specific culture because these types of judgment should be made in the context of the particular culture. Since universal human rights is based upon the western culture that espouses the Judaic or Christian perspective, this cannot be imposed upon non-western cultures. [42]
UNIVERSALISM
It cannot be denied that the human rights tradition is western in origin. The schools of thought of natural law and natural rights that recognize the existence of universal rights developed the tradition. This development was made in the context of the aftermath of the Nazi regime where the paranoia of states led them to create guidelines for the respect of human rights as a security against the repeat of the atrocities felt by many countries and cultural groups. The common experience under the Nazi regime precipitated the call for an international standard of protecting human rights applicable to all people and respected by the signatory states. The reality of human rights violations experienced across cultures led to the practicality of having a covenant on human rights that apply to all states. [43]
The universality of human rights is reflected in the fundamental law of different states that are based on natural law. In the United States, the universality based on natural law can be found in the American Declaration of Independence particularly in the line mentioning the law of nature. In international law, the French Declaration for the Rights of Man is founded upon natural rights. The same is true with the Universal Declaration of Human Rights that covers the natural rights of individuals. The constitution of different states and human rights law embodies the natural rights of individuals that apply to all citizens of the state and to every person respectively.[44]
Universalism is supported by the writings of Kant on categorical imperative. Kant proposes that the underlying principle that is the basis of man’s moral duties is categorical imperative. Man’s moral obligations constitute a moral imperative because it involves a command. Moral obligations command man to exercise his will in a certain manner in performing an action. It is also categorical because it applies to man unconditionally or by virtue of man’s rational characteristic. One of Kant’s formulations of categorical imperative is that man is to “act only in accordance with that maxim through which you can at the same time will that it become a universal law”. [45] The statement is explained in a procedure in deciding on moral reasoning. The first part of the process is the formulation of a maxim that embodies the reasons for a proposed action. The next part is to present anew the maxim as universal rule of nature governing every rational agent. The succeeding step is to determine whether the maxim formulated is conceivable in an environment ruled by the law of nature. The last step is for the person formulating the maxim to determine whether he could will himself to act on the maxim in a world ruled by natural law. In case of an affirmative answer to the last step, then the action is deemed morally permissible. [46] Kant’s proposition implies that if human rights law was created based on the law of nature and in consideration of man’s rational nature, then it is universal and man can will to compliance through reason.
Other theories also reiterated Kant’s categorical imperative. The universality of human rights involves the following stages: 1) the universalism of conception–human rights started out as an idea; 2) the universalism of perception–human rights is met with preconceptions and expectations; and 3) the universalism of control and the reality of the existence of human rights–human rights is actualized, observable through concrete manifestations.[47] The arguments on universalism cover the three stages of the development and implementation of human rights.
The writings of other political thinkers also became the basis of the claims of universalisms. According to Hobbes, man has a universal inclination towards self-preservation. To fulfill this need, every individual has to delegate absolute power to a determined sovereign authority in order to receive protection. Without this delegation, the individual will be faced with relentless war. Locke further clarified this by describing the relationship between the individual and the sovereign authority as a contractual relationship. This means that if the sovereign authority does not provide protection or provides a threat to the security of the individual then the contract is void. The actions of the government are valid only to the extent of respecting the fundamental rights of individuals acquired through natural law. In relation to human rights, it is universal as a mechanism that provides the basic security needs of people. Rousseau forwarded the idea of general will, which implies that society is founded upon universal human rights that cannot be alienated even in the event of war. This is because universal human rights cannot is inherent to human existence and human co-existence.[48]
The first argument deals with universalism as an idea or concept. The proponents of universalism uphold the inherent character of human rights, which are rights accruing to every individual because of their humanity making it a universal occurrence.[49] There are basic and inherent rights common to all people regardless of cultural background and social orientation. [50] Human rights is a universal concept because it coexists with the human experience. Human nature gives rise to human rights because of human needs and because of the natural inclination for well-being and security. [51] This argument depends upon humanity and the basic human inclinations to support the view that human rights is universal because it constitutes the basic need of humans to have standards for action to achieve peace and order necessary to engage in economic and political endeavors.
The second argument considers universal human rights as embodying the preconceptions and expectations that all people have on the minimum requirements for human dignity. A universal expectation is the recognition of the right to basic needs, which include not only tangible things such as food, clothing and shelter but also the non-tangible needs for human dignity and personality. Congruent to the human experience is the fact that people are social beings who cannot independently exist. Human rights are based on the recognition of the human nature of fulfilling needs and being a social being. [52] This argument considers the basic needs and social interest of people as the factors that gives rise to common concepts of morality.
The third argument is that universal human rights involve a common concrete experience among peoples. In the national level, states and citizens attempt to find a system that governs inter-state and inter-cultural relations by finding a common ground. The common ground on which international relations and cooperation is based on human rights, which exist in the socio-cultural aspects of each state. People are equal because rights derived from human nature govern them. Almost all states adhere to universal human rights, which are translated into laws protecting these rights. [53] In Asia alone, there are four countries practicing different cultures that have established human rights commissions in their jurisdiction reflecting a concrete manifestation of universalism. [54]
Human rights under international law is divided into derivable and non-derivable rights. Non-derivable rights are those that cannot be restricted by binding laws while derivable rights are those that may be restricted by state laws. However, derogation is done only under strictly defined circumstances and there are guidelines in the manner of restricting some human rights.[55] War or other similar conditions may justify the temporary restriction of rights but this cannot persist after the war has ended or the situation requiring the restriction has ceased to exist. Nevertheless, the bottom line is that although there are human rights that may be restricted, all rights are absolute and universal.[56]
The fourth argument is derived from the distinction of derivable and non-derivable rights. The basis of this distinction comes from the source of these rights. Non-derivable human rights are inherent rights supported by the law of nature and carried by a person upon birth. Derivable rights are those that apply universally because of the agreement of a majority of nation-states. Human rights is universal because of the law of nature as well as due to the acquiescence of a significant number of states representing different cultures. [57]
The distinct point of universalism is the recognition that amidst cultural differences there are basic rights common to all people as a reflection of their humanity. Universality is reflected by man’s rational nature. Since human rights is a result of reason then it is universal. Among different cultures, there is a basic guideline for human relations to ensure the recognition and a respect for human dignity, which is the essence of being human. Universality of human rights also stems from the agreement of states on a set of standards in human relations that will apply to all.
RECONCILIATION OF UNIVERSALITY AND RELATIVISM
The arguments given by proponents of universality and relativism were valid and unexpectedly are not contradictory. There are similar points presented through opposing views but there are also arguments that do not contradict each other. One similar point of argument between universalisms and relativists is the source of validity of moral rules. The universalisms believe that the validity of moral rules enshrined in human rights law is based on the rational character of man and the law of nature while the relativists believe that the validity of moral precepts is derived from the common cultural beliefs formed and carried on throughout the community’s historical experiences. Through the disagreement on the source of validity of moral beliefs, it can be observed that these arguments highlight the different characteristics of man. Man has a universal characteristic, which is the embodiment of reason and the similarity of basic physical and psychological needs. However, every man has differences resulting from the corresponding differences in rational behavior due to the variety of environments and experiences.
The ideal people envisioned by universalisms is a man living in ceteris paribus. Every man has similar capacity to reason because of a uniform environment and experiences. Peace and order is achieved because every person exercises reason and if human rights law is a product of reason then there is no room for non-compliance. This is not achievable in reality because man is not only a rational being but also an emotional being. Moreover, despite man’s embodiment of reason this is reflected in action differently. Every person has similarities or universal characteristics resulting to rational products such as human rights law that is universal. However, amidst universality there is also diversity reflected in the manner human rights is viewed, accepted and applied as influenced by historical and cultural differences.
The situation envisioned by relativists downplays the similarities of people as a response to universalism. Every culture has different moral beliefs that are the basis of what they respect as human rights. This means that there cannot be a moral rule that applies to every culture because every culture has different moral beliefs and practices. However, this argument fails to recognize that there may be aspects of moral rules in different cultures that commonly occur in different cultures. This is perhaps because relativists are reacting towards the argument of universalism and the goal is to stress the reality of cultural diversity. Relativism is not really against human rights but that it should be read in the context of cultural diversity if it were to be perceived as legitimate and binding across cultures.
From the arguments given, the primary issue that arises is the determination of the point of reconciliation between the universalism and relativist view of human rights to support the validity of human rights in the context of both the similarities and differences of people. In this way, human rights is made to reflect the reality of human experiences. The radical arguments on universalism and relativism have spawned the alternative view of reconciling the two constructs to give effect to human rights. Although there are still theorists who espouse radical views, contemporary political theorists center on the areas common to both arguments. There are different views on the aspects of human rights where universalism and relativist views meet.
The first point of reconciliation is the existence of inherent rights in a culturally diverse world that makes it a universal occurrence. It exists in every cultural community and it pervades all activities in all levels of human interaction. Regardless of cultural belief or social orientation there is a group of basic values which every individual recognize that governs the action and interaction of individuals.[58] These basic values are innate in every human being and it attaches to the individual upon birth. Because of its inherent character, this cannot be granted or given nor can it be taken away or controlled.[59]
These basic values for human interaction reflect the characteristics that make us human. These values include the recognition of the dignity of each individual and the respect for the drive of every human being to live, to be free to think and act and to develop as an individual and as a member of various levels of social groups. These inherent rights are included in the provisions of the Universal Declaration of Human Rights (1948) [60] and the International Bill of Human Rights.
The second point of reconciliation is the fact that there is no conflict between universal human rights and cultural beliefs and practices. Cultural diversity is reflected in universal human rights as the right to self-determination and identity. [61] This means that the concept of universal human rights incorporate and reflect cultural diversity. [62]
However, it can be shown that despite the accommodation made by universal human rights on cultural diversity, some cultures refuse to accept the universality of human rights. The rejection of human rights is explained by the parochial stand of some states or at least its leaders. China is one country that took the stand that universal human rights does not apply to them because they have a distinct culture of rights. [63] This led the government to limit inter-state interaction, a policy that was changed only recently. [64]
The reconciliation of the Chinese tradition of rights should be reconciled with universal human rights through the recognition that China has a distinctive system of rights and that it should accept universality in the same way that the universal human rights respects cultural diversity. This applies to other cultures as well. [65]
The third point of reconciliation is that there is no strong basis for the extreme view that cultures differ, which prevents the application of universal human rights to different cultures. The argument of a distinct Asian culture, which should be the sole determinant of rights, is not tenable. The community-centered culture proposed to be distinctly Asian is shared by other cultures. It can also be observed that Asia is composed of many states with different ethnic groups within the state. This means that even on a national level there is no distinct Asian culture that solely determines rights. [66] It is true that cultural diversity exists but this works hand in hand with universal human rights in the spirit of reconciliation and mutual respect.
The fourth point of reconciliation is the observation that the rejection is not on the universality of human rights but the political and economic concerns of states especially the leaders on the perceived threat of universalism on sovereignty. [67] The view that universal human rights interferes with national sovereignty and jurisdiction persist. [68]
This is a reaction to the inconsistency between universal human rights and the authoritarian system of some states as a reflection of stability. Universal human rights poses a threat to the political status of authoritarian leaders. The rejection is not of universality itself but the criticism of human rights on authoritarian or dictatorial regimes, which limit the human rights of citizens. [69]
The relativist view mostly comes from political leaders whose authority is wielded through force. However, this does not mean that the people agree to the arguments of their leaders. In fact, in the case of Muslims, the people themselves are cooperative in reconciling universal human rights with their culture. [70]
The rejection of universalism also stems from the perceived effect of human rights in inter-state economic relations in the context of globalization. Relativists propose the view that human rights is a disguised tool of control of first world countries on third world countries. However, the argument is not against universalism but the manner in which it is manipulated by some states to gain economic power. [71] In the case of Africa, universalism was used as the justification for colonizing the region for the exploitation of its natural resources in the guise of providing protection to the people that their cultural systems cannot adequately provide such as their system of defining crimes and the respective punishments. According to one author, the “pathologies of suffering, conflict and systematic violations that Africa has suffered” are traceable to the exclusionary colonial patterns of ethnicization. In this light the author suggests that the following should be prioritized in the protection of human rights: 1) state building and citizenship; 2) enhancement of domestic values; 3) general improvement in education and health; and 4) the prevention of cultural displacement.[72] Globalization is another issue altogether but the point remains that the proponents of relativism do not reject universal aspects of human rights.
Globalization is the inevitable context for understanding human rights because of the undeniable direction of international relations towards the overlapping of economic, political and cultural activities. Although globalization is more an economic concept, its implications transcend economics and spread to political and economic issues. Anti-globalization lists forward the idea that economic globalization stagnates the advancement of standards in social, labor and environmental protection laws because of the increasing bargaining power given to enterprises for the exploitation of natural resources especially of developing states in dire need of foreign investments that supersedes the effect of laws and the respect for rights.[73] This may be true in the case of developing states when the economic interests and conditions of large enterprises are favored over the inherent rights of citizens, which constitutes violations of human rights. The inherent inequalities of states in international relations add difficulty to the exercise of human rights of citizens in weaker states. However, it is also human rights law that comprise of the equalizing factors in international relations. Even if globalization reinforces the inequalities among states and their citizens, human rights provides equalization by providing a standard for the respect of inherent rights that apply to every individual.
The theory that staunchly condemns globalization is the socialist concepts of Marx and other proponents of socialism. The basis of the criticism of globalization is that it fuels the class and cultural inequalities adverse to workers around the world. These inequalities resulted to the claim of economic, political and social rights and the move to change the capitalist system through revolutionary means.[74] The rights espoused by socialism and human rights are regarded to have different underlying bases. This is because socialism contends that economic, political and social rights are achieved only after the revolutionary overthrow of capitalism while human rights is deemed as a reformist or one that does not require systematic or institutional change. However, there is a similarity in the rights under socialism and human rights. This is so because socialism derives rights from natural law in the same way that human rights embodies natural rights. The rights under a socialist system are exercise with the goal of checking the class inequalities in the same way that human rights is an equalizing factor.
The fifth point of reconciliation is the complementary role of religion, which is an aspect of culture and universal human rights. Religion is indispensable in human rights and human rights challenge the integrity as well as protect religions. Human rights values require religion to ground them. Religion, with its value system, helps define the tenets of human rights. Religion is a vehicle to facilitate society’s understanding of human rights. Religious principles and practices need universal human rights for protection. Universal human rights also challenge the practices of religion as a test of its stability as an institution of people with similar faith. [75]
Universality is understood through religion. The bible-based belief that Jews and Christians belong to the same human family created by one God is a reflection of the universality of beliefs. This perspective also applies to the universality of human rights on the point of having a common human beginning and end. [76] In value formation, there are two main sources, which are the complementary secular and religious spheres. Human rights reflects the secular basis of value formation while the different religions reflect the religious sphere. The complementary relationship of human rights and religion has been previously discussed leaving the issue of the consistency of different religious beliefs in the context of human rights. Upon the consideration of different religious beliefs, it becomes apparent that these religions embody similar moral values. The act of killing, stealing, sexual improprieties and lying are considered as moral wrongs in different religions. [77] This means that between human rights and religion and among the different religion, there are complementary and common concepts of moral values.
The sixth point of reconciliation is the inevitable constant change in cultures. The formal expression of human rights through the declaration and the acquiescence of different states is one of the changes facing cultures. Since change is inevitable, this process should not be viewed outright as a negative thing. The change brought about by universal human rights should not be viewed as disrespect for culture or governments. Instead, the change should be regarded as a challenge to the stability of a culture or a system of government.[78]
The seventh point of reconciliation is the general necessity of changing the perception on universal human rights in the cultural context. Human rights violations result from the lack of legitimacy of these rights to effect compliance. Legitimacy is achieved by enhancing this concept through facilitating change in perspectives especially misconceptions. Change is executed by building awareness and developing understanding of human rights among cultures. This is necessary because most of the reasons for rejecting universal human rights stem from misconceptions or misunderstandings.[79]
There are also different contemporary views on how to reconcile the two perspectives. According to Huntington, “cultures are relative; morality is absolute”.[80] The author forwards the view that universalism should be rejected, cultural diversity should be accepted and political theorists should work on determining commonalities in the different perspectives. In the quest of finding commonalities universalism will inevitably occur. According to Vincent, human rights may be viewed as the term that blends the moral values of different cultures. Human rights is a product of overlapping cultures especially in contemporary international relations characterized by globalization where there is almost no culture that is not affected or influenced by other cultures[81]. Human rights may also be viewed as a single cosmopolitan culture that covers the difference indigenous culture. [82]
In the case of polygamous marriages, the reconciliation point is the respect for cultural and religious beliefs but not all moral values can be accommodated by law because of the consideration of other people such as the maintenance of the rule of law. Cultures cannot thrive independently because of the overlapping and interrelated beliefs and needs. In the course of inter-cultural interactions, a point of reconciliation between cultures will become imminent. In the case of conflict in rights, it should always be remembered that in the quest for peace and order among the different cultures entails mutual understanding and sacrifices. However, it is important that the interacting cultures view each other as equally important. Otherwise, one or several cultures will dominate over others creating a biased reconciliation of cultural differences.
If human rights were to be realized, this will happen only through the reconciliation of universalism and relativism. On one hand, absolute universalism will defeat the purpose of human rights because the non-consideration of cultural diversity will result to the marginalization and intolerance over different moral beliefs. Extreme universalism isolates and divides people into protagonists and antagonists defeating the application of human rights to every person. On the other hand, cultural relativism results to the competition among different moral beliefs causing the domination of cultures of societies with the mechanisms to dominate other cultures. This situation also results to the defeat of the purpose of human rights to respect the fundamental rights of people and provide a guideline for the interaction of different cultures in international relations.[83]
Conclusion
The views of enlightenment philosophers have significantly contributed to the contemporary understanding of human rights. On one hand, the proponents of universalism contributed to the recognition of the similarities across cultures despite of diversity in historical and cultural experiences. On the other hand, the advocates of relativism have significantly influenced the consideration of cultural diversity in the understanding of human rights. The result is the trend towards the understanding of human rights with consideration of both commonalities and differences to achieve a human rights rule that are acceptable and binding upon different cultures.
Human rights that apply to every person coexist with diversity through the realization that human rights do not impose a single standard of culture that should be followed by people espousing other cultures. Human rights is a legal standard providing minimum protection to ensure human dignity enshrined in the declaration and the bill of rights. These agreements represent the consensus of the participating states on the guidelines to be followed in respecting human dignity and the basic rights that promote respect for dignity. [84] The respect for human dignity is a universal goal[85].
It should also be stressed that relativism and universalism are not substitutes. Tradition is a context for promoting and protecting human rights. Culture, beliefs, values and practices should be utilized to reinforce the application of human rights. Understanding the ways that cultures protect the dignity of humans will pave the way for the common foundation of human dignity. In this way, cultural relevance is asserted in human rights[86].
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