[Recommended]The Philosophic Foundations of Human Rights

The Philosophic Foundations of Human Rights Human Rights Quarterly 20.2 (1998) 201-234 The Philosophic Foundations of Human Rights Jerome J. Shestack I. Introduction Today, through…

The Philosophic Foundations of Human Rights
Human Rights Quarterly 20.2 (1998) 201-234
The Philosophic Foundations of Human Rights
Jerome J. Shestack
I. Introduction
Today, through the United Nations and its half century of enactments, an impressive body
of human rights doctrine is embodied in international law. This is in sharp contrast to the
situation fifty years ago when there was no body of international human rights law.
Having come this far legally, why then should one still be concerned with the philosophic
foundations of such international human rights law? To philosophize, Plato taught, is to
come to know oneself. Others say that the special function of philosophy is to deepen our
understanding of truth. Still others see the philosopher as a judge, assessing the varieties of
human experience and pronouncing on the claim to knowledge. 1 Yet, still more reasons
exist for exploring the philosophic underpinnings of human rights law.
First, one’s own attitudes toward the subject of international human rights law are likely to
remain obscure unless one understands the philosophies that shape them. 2 Piaget’s
statement that “morality is the logic of action” contains a striking insight. [End Page 201]
Second, if one understands the law addressed, one is more amenable to the authority of the
international law of human rights. That trait is particularly valuable for an arena that still
lacks formal enforcement mechanisms. Stated another way, one furthers fidelity to human
rights law by understanding the moral justifications that underlie that law.
Third, understanding the philosophic foundations of the law helps one devise a translation
formula that will permit men and women to speak to each other across the gulfs of creed
and dogma, a necessary exercise for universal recognition of international law principles.
What then is the segment of philosophy examined when delving into human rights? The
answer is that human rights are a set of moral principles and their justification lies in the
province of moral philosophy. This article explores that field. 3
This article will first address the historical sources of human rights justifications, next
survey key modern human rights theories, and then analyze some of the current conflicts in
human rights theory. At best, it can only touch on the teachings in a field that is complex,
vast, and too often obscure. 4
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II. The Nature of Human Rights
One of the initial questions in any philosophic inquiry is what is meant by human rights.
The question is not trivial. Human beings, as Sartre said, are “stalkers of meaning.”
Meaning tells one “why.” Particularly in the international sphere, where diverse cultures are
involved, where positivist underpinnings are shaky, and where implementation mechanisms
are fragile, definition can be crucial. Indeed, some philosophic schools assert that the entire
task of philosophy centers on meaning. How one understands the meaning of human rights
will influence one’s judgment on such issues as which rights are regarded as universal,
which should be given priority, which can be overruled by other interests, which call for
international [End Page 202] pressures, which can demand programs for implementation,
and for which one will fight.
What is meant by human rights? To speak of human rights requires a conception of what
rights one possesses by virtue of being human. That does not mean human rights in the self-
evident sense that those who have them are human, but rather, the rights that human beings
have simply because they are human beings and independent of their varying social
circumstances and degrees of merit.
Some scholars identify human rights as those that are “important,” “moral,” and “universal.”
It is comforting to adorn human rights with those characteristics; but, such attributes
themselves contain ambiguities. For example, when one says a right is “important” enough
to be a human right, one may be speaking of one or more of the following qualities: (1)
intrinsic value; (2) instrumental value; (3) value to a scheme of rights; (4) importance in not
being outweighed by other considerations; or (5) importance as structural support for the
system of the good life. “Universal” and “moral” are perhaps even more complicated words.
What makes certain rights universal, moral, and important, and who decides? 5
Intuitive moral philosophers claim that definitions of human rights are futile because they
involve moral judgments that must be self-evident and that are not further explicable. Other
moral philosophers focus on the consequences of human rights and their purpose. The
prescriptivist school says that one should not be concerned with what is sought to be
achieved by issuing a moral (human rights) utterance but with that which is actually
accomplished.
The definitional process is not easier when examining the term human rights. Certainly
“rights” is a chameleon-like term that can describe a variety of legal relationships. 6
Sometimes “right” is used in its strict sense of the right holder being entitled to something
with a correlative duty in another. Sometimes “right” is used to indicate an immunity from
having a legal status altered. Sometimes it indicates a privilege to do something. Sometimes
it refers to a power to create a legal relationship. Although all of these terms have been
identified as rights, each invokes different protections.
For example, when speaking of an inalienable right, does one mean a right to which no
expectations or limitations are valid? Or does one mean a prima facie right with a special
burden on the proponent of any limitation? Or is it a principle that one must follow unless
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some other moral principle weighty enough to allow abridgment arises? [End Page 203]
If one classifies a right as a claim against a government to refrain from certain acts, such as
not to torture its citizens or deny them freedom of speech, religion, or emigration, then other
complexities arise. If a particular claim stems from a metaphysical concept such as the
nature of humanity, or from a religious concept such as the divine will, or from some other
a priori concept, then the claim may really be an immunity to which normative judgments
should not apply. If, however, the claim is based on certain interests such as the common
good, other problems arise such as the need to determine what constitutes the common
good, or the need to balance other societal interests, that may allow a wide variety of
interpretations not supportive of individual human rights demands.
If speaking of the “rights” in the International Covenant on Economic, Social and Cultural
Rights, 7 such as the right to social security, health, education, fair wages, a decent standard
of living, and even holidays with pay, what does one intend? Are these rights that
individuals can realistically assert, or are they only aspirational goals? Assuming they are
rights as intended, on whom are the correlative duties imposed?
If one speaks of privileges, other concerns arise. If the privileges are granted by the state,
then presumably the state is entitled to condition them. Does the right of a state to derogate
from rights in an international covenant mean that the rights are, in fact, only privileges?
Here too, the answer is connected to the moral strength and inviolability of the “right” or
“privilege” that is involved.
The definitional answers to these questions are obviously complex.
To summarize, even where international law has established a conventional system of
human rights, a philosophic understanding of the nature of rights is not just an academic
exercise. Understanding the nature of the “right” involved can help clarify one’s
consideration of the degree of protection available, the nature of derogations or exceptions,
the priorities to be afforded to various rights, the question of the hierarchical relationships
in a series of rights, the question of whether rights “trump” competing claims based on
cultural rooting, and similar problems. To be sure, the answers to these questions may
evolve over time through legal rulings, interpretations, decisions, and pragmatic
compromises. But how those answers emerge will be influenced, if not driven by, the moral
justifications of the human rights in issue.
A starting point in understanding the moral foundations of human rights law is to examine
the sources of human rights claims. From where does one [End Page 204] derive the moral
justifications that can be urged for or against human rights law? What is their scope or
content, and how compelling are they?
III. Sources of Human Rights
A. Religion
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To be sure, the term “human rights” as such is not found in traditional religions.
Nonetheless, theology presents the basis for a human rights theory stemming from a law
higher than that of the state and whose source is the Supreme Being.
If one accepts the premise of the Old Testament that Adam was created in the “image of
God,” this implies that the divine stamp gives human beings a high value of worth. 8 In a
similar vein the Quran says, “surely we have accorded dignity to the sons of man.” So too,
in the Bhagavad-Gita, “Who sees his Lord/Within every creature/Deathlessly
dwelling/Amidst the mortal: That man sees truly . . . .”
In a religious context every human being is considered sacred. Accepting a universal
common father gives rise to a common humanity, and from this flows a universality of
certain rights. Because rights stem from a divine source, they are inalienable by mortal
authority. This concept is found not only in the Judeo-Christian tradition, but also in Islam
and other religions with a deistic base. 9
Even if one accepts the revealed truth of the fatherhood of God and the brotherhood of all
humans, the problem of which human rights flow therefrom remains. Equality of all human
beings in the eyes of God would seem a necessary development from the common creation
by God, but freedom to live as one prefers is not. Indeed, religions generally impose severe
limitations on individual freedom. For most religions, the emphasis falls on duties rather
than rights. Moreover, revelation is capable of differing interpretations, and some religions
have been quite restrictive toward slaves, women, and nonbelievers, even though all are
God’s creations. Thus, at least as practiced, serious incompatibilities exist between various
[End Page 205] religious practices and the scope of human rights structured by the United
Nations.
However, religious philosophers of all faiths are engaged in the process of interpreting
religious doctrines toward the end of effecting a reconciliation with basic human rights
prescriptions. This process is largely via hermeneutic exercise, namely reinterpretation of a
religion’s sacred texts through both historical explication and a type of prophetic application
to modern conditions.
Thus, religious doctrine offers a promising possibility of constructing a broad intercultural
rationale that supports the various fundamental principles of equality and justice that
underlie international human rights. Indeed, once the leap to belief has been made, religion
may be the most attractive of the theoretical approaches. When human beings are not
visualized in God’s image then their basic rights may well lose their metaphysical raison
d’être. On the other hand, the concept of human beings created in the image of God
certainly endows men and women with a worth and dignity from which the components of
a comprehensive human rights system can flow logically.
B. Natural Law: The Autonomous Individual
Philosophers and jurists did not leave human rights solely to theologians. In their search for
a law that was higher than positive law, they developed the theory of natural law. Although
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natural law theory has underpinnings in Sophocles and Aristotle, it was first elaborated by
the stoics of the Greek Hellenistic period, and later by those of the Roman period. Natural
law, they believed, embodied those elementary principles of justice which were right
reason, i.e., in accordance with nature, unalterable, and eternal. A classic example is that of
Antigone who defied Creon’s command not to bury her slain brother by claiming that she
was obeying immutable laws higher then the ruler’s command.
Medieval Christian philosophers, such as Thomas Aquinas, put great stress on natural law
as conferring certain immutable rights upon individuals as part of the law of God. 10
However, critical limitations in the medieval concepts that recognized slavery and serfdom
excluded central ideas of freedom and equality.
As feudalism declined, modern secular theories of natural law arose, particularly as
enunciated by Grotius and Pufendorf. Their philosophy detached natural law from religion,
laying the groundwork for the secular, [End Page 206] rationalistic version of modern
natural law. According to Grotius, a natural characteristic of human beings is the social
impulse to live peacefully and in harmony with others. Whatever conformed to the nature of
men and women as rational, social beings was right and just; whatever opposed it by
disturbing the social harmony was wrong and unjust. Grotius defined natural law as a
“dictate of right reason.” 11
He claimed that an act, according to whether it is or is not in
conformity with rational nature, has in it a quality of moral necessity or moral baseness.
Grotius was also a father of modern international law. He saw the law of nations as
embodying both laws that have as their source the will of man and laws derived from the
principles of the law of nature. This theory, of course, has immense importance for the
legitimacy of international law.
Natural law theory led to natural rights theory–the theory most closely associated with
modern human rights. The chief exponent of this theory was John Locke, who developed
his philosophy within the framework of seventeenth century humanism and political
activity, known as the Age of Enlightenment. 12
Locke imagined the existence of human
beings in a state of nature. In that state men and women were in a state of freedom, able to
determine their actions, and also in a state of equality in the sense that no one was subjected
to the will or authority of another. However, to end the hazards and inconveniences of the
state of nature, men and women entered into a “social contract” by which they mutually
agreed to form a community and set up a body politic. Still, in setting up that political
authority, individuals retained the natural rights of life, liberty, and property. Government
was obliged to protect the natural rights of its subjects, and if government neglected this
obligation, it forfeited its validity and office. 13
Natural rights theory was the philosophic impetus for the wave of revolt against absolutism
during the late eighteenth century. It is visible in the French Declaration of the Rights of
Man, 14
in the US Declaration of Independence, 15
in the constitutions of numerous states
created upon liberation from colonialism, and in the principal UN human rights documents.
[End Page 207]
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Natural rights theory makes an important contribution to human rights. It affords an appeal
from the realities of naked power to a higher authority that is asserted for the protection of
human rights. It identifies with and provides security for human freedom and equality, from
which other human rights easily flow. It also provides properties of security and support for
a human rights system, both domestically and internationally.
From a philosophical viewpoint, the critical problem that natural rights doctrine faced is
how to determine the norms that are to be considered as part of the law of nature and
therefore inalienable, or at least prima facie inalienable.
Under Locke’s view of human beings in the state of nature, all that was needed was the
opportunity to be self-dependent; life, liberty, and property were the inherent rights that met
this demand. But what about a world unlike the times of Locke, in which ample resources
are not available to satisfy human needs? Does natural law theory have the flexibility to
satisfy new claims based on contemporary conditions and modern human understanding?
Perhaps it does, but that very potential for flexibility has formed the basis for the chief
criticism of natural rights theory. Critics pointed out that most of the norm setting of natural
rights theories contain a priori elements deduced by the norm setter. In short, the principal
problem with natural law is that the rights considered to be natural can differ from theorist
to theorist, depending upon their conceptions of nature.
Because of this and other difficulties, natural rights theory became unpopular with legal
scholars and philosophers. 16
However, in revised form, natural rights philosophy had a
renaissance in the aftermath of World War II, as discussed below.
C. Positivism: The Authority of the State
The assault upon natural law intensified during the nineteenth and twentieth centuries. John
Stuart Mill claimed that rights are founded on utility. Karl von Savigny in Germany, and Sir
Henry Maine in England, claimed that rights are a function of cultural variables. However,
the most serious attack on natural law came from a doctrine called legal positivism. This
philosophy came to dominate legal theory during most of the nineteenth century and
commands considerable allegiance in the twentieth. [End Page 208]
Classical positivist philosophers deny an a priori source of rights and assume that all
authority stems from what the state and officials have prescribed. This approach rejects any
attempt to discern and articulate an idea of law transcending the empirical realities of
existing legal systems. Under positivist theory, the source of human rights is found only in
the enactments of a system of law with sanctions attached to it. Views on what the law
“ought” to be have no place in law and are cognitively worthless. The theme that haunts
positivist exponents is the need to distinguish with maximum clarity law as it is from law as
it ought to be, and they condemned natural law thinkers because they had blurred this vital
distinction. In its essence, positivism negates the moral philosophic basis of human rights. 17
By divorcing a legal system from the ethical and moral foundations of society, positive law
encourages the belief that the law must be obeyed, no matter how immoral it may be, or
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however it disregards the world of the individual. The anti-Semitic edicts of the Nazis,
although abhorrent to moral law, were obeyed as positive law. The same is true of the
immoral apartheid practices that prevailed in South Africa for many years. The fact that
positivist philosophy has been used to justify obedience to iniquitous laws has been a
central focus for much of the modern criticism of that doctrine. Critics of positivism
maintain that unjust laws not only lack a capacity to demand fidelity, but also do not
deserve the name of law because they lack internal morality.
Even granting the validity of the criticism, the positivist contribution can still be significant.
If the state’s processes can be brought to bear in the protection of human rights, it becomes
easier to focus upon the specific implementation that is necessary for the protection of
particular rights. Indeed, positivist thinkers such as Jeremy Bentham and John Austin were
often in the vanguard of those who sought to bring about reform in the law. Always under
human control, a positivist system also offers flexibility to meet changing needs.
The methodology of the positivist jurists in the technical building of legal conceptions is
also pragmatically useful in developing a system of rights in international law. For example,
the UN human rights treaties, being rules developed by the sovereign states themselves and
then made part of a system of international law, reflect a positive set of rights. While many
states may differ on the theoretical basis of these rules, the rules provide a legal grounding
for human rights protection. On the other hand, in theory, positivism tends to undermine an
international basis for human rights [End Page 209] because of the emphasis positivists
place on the supremacy of national sovereignty without accepting the restraining influence
of an inherent right above the state. Under this view, rules of international law are not law
but merely rules of positive morality set or imposed by opinion. Furthermore, by
emphasizing the role of the nation state as the source of law, the positivist approach
produces the view that the individual has no status in international law.
D. Marxism: Man as a Specie Being
Marxist theory, like natural law, is also concerned with the nature of human beings.
However, in Marxism, the view of men and women is not one of autonomous individuals
with rights developed from either a divine or inherent nature, but of men and women as
“specie beings.” 18
While Marxism fell along with the fall of Communism in Eastern Europe, it was a dominant
philosophy in much of the world for many years; in variant forms, Marxism has residual
influence, particularly in assigning values to social and economic rights.
Marx regarded the law of nature approach to human rights as idealistic and ahistorical. He
saw nothing natural or inalienable about human rights. In a society in which capitalists
monopolize the means of production, Marx regarded the notion of individual rights as a
bourgeois illusion. Concepts such as law, justice, morality, democracy, freedom, etc., were
considered historical categories, whose content was determined by the material conditions
and the social circumstances of a people. As the conditions of life change, so the content of
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notions and ideas may change.
Marxism sees a person’s essence as the potential to use one’s abilities to the fullest and to
satisfy one’s needs. 19
In capitalist society, production is controlled by a few. Consequently,
such a society cannot satisfy those individual needs. An actualization of potential is
contingent on the return of men and women to themselves as social beings, which occurs in
a communist society devoid of class conflict. However, until that stage is reached, the state
is a social collectivity and is the vehicle for the transformation of society. Such a
conceptualization of the nature of society precludes the existence of individual rights rooted
in the state of nature that are prior to the state. The only rights are those granted by the state,
and their exercise is contingent on the fulfillment of obligations to society and to the state.
[End Page 210]
The Marxist system of rights has often been referred to as “parental,” with the authoritarian
political body providing the sole guidance in value choice. The creation of such a “specie
being” is a type of paternalism that not only ignores transcendental reason, but negates
individuality. 20
In practice, pursuit of the prior claims of society as reflected in the interests
of the Communist state has resulted in systematic suppression of individual civil and
political rights.
On an international level, Marxist theory proved incompatible with a functioning universal
system of human rights. The prior claims of a Communist society do not recognize
overruling by international norms. While Communist governments admitted a theoretical
recognition of the competence of the international community to establish transnational
norms, the application of those norms was held to be a matter of exclusive domestic
jurisdiction. Communist states repeatedly asserted in international fora that their alleged
abuse of human rights was a matter of exclusive domestic jurisdiction, not just as a matter
of protecting sovereignty or avoiding the embarrassment of international examination, but
the assertions reflected communist theory of the unlimited role of the state to decide what is
good for the specie beings. 21
Be that as it may, Marxism itself now ironically has become a
past historical category.
E. The Sociological Approach: Process and Interests
To many scholars, each of the theories of rights discussed thus far is deficient. Moreover,
the twentieth century is quite a different place from the nineteenth. Natural and social
sciences have developed and begun to increase understanding about people and their
cultures, their conflicts, and their interests. Anthropology, psychology, and other disciplines
lent their insights. These developments inspired what has been called the sociological
school of jurisprudence. “School” is perhaps a misnomer, because what has evolved is a
number of disparate theories that have the common denominator of trying to line up the law
with the facts of human life in society. Sociological jurisprudence tends to move away from
both a priori theories and analytical types of jurisprudence. This approach, insofar as it
relates to human rights, sometimes directs attention to the questions of institutional
development, sometimes focuses on specific problems of public policy that [End Page 211]
have a bearing on human rights, and sometimes aims at classifying behavioral dimensions
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of law and society. In a human rights context, the approach is useful because it identifies the
empirical components of a human rights system in the context of the social process. 22
A primary contribution of the sociological school is its emphasis on obtaining a just
equilibrium of interests among prevailing moral sentiments and the social and economic
conditions of time and place. In many ways this approach can be said to build on William
James’ pragmatic principle that “the essence of good is simply to satisfy demand.” 23
This
approach also was related to the development in twentieth century society of increased
demands for a variety of wants beyond classical civil and political liberties–such matters as
help for the unemployed, the handicapped, the underprivileged, minorities, and other
elements of society.
It is not possible here to outline the particular approaches of the leading sociological
thinkers, but Roscoe Pound’s analysis merits special reference. Pound pointed out that
during the nineteenth century, the history of the law was written largely as a record of an
increasing recognition of individual rights. 24
In the twentieth century, however, this history
should be written in terms of a continually wider recognition of human wants, human
demands, and social interests. Pound catalogued the interests as individual, public, and
social. He did not try to give value preferences to these interests. His guiding principle was
one of “social engineering,” that is, the ordering of human relations through politically
organized society so as to secure all interests insofar as possible with the least sacrifice of
the totality of interests.
The approach of Pound and his progeny usefully enlarges one’s understanding of the scope
of human rights and their correlation with demands. His identification of the interests
involved takes into account the realities of the social process; he shows one how to focus on
rights in terms of what concerns people and what they want. He makes one “result-minded,
cause-minded and process-minded.” 25
However, an approach that merely catalogues human demands is deficient in failing to
focus on how rights are interrelated or what the priorities should be. The sociological school
does not answer the logical question of how a normative conclusion about rights can be
derived empirically from factual premises such as having interests. A descriptive science in
the social human rights field is helpful, “but is not enough” to satisfy the need of goal
identification. 26
The sociological approach thus provides a useful method, but a method in
need of a philosophy. Nonetheless, [End Page 212] by providing a quantitative survey of
the interests that demand satisfaction, this school sharpens perceptions of the values
involved and the policies necessary to achieve them.
F. Rights Based on the Value of Utility
Another theory that has played a commanding role in political and moral philosophy is
utilitarianism.
Utilitarianism is a maximizing and collectivizing principle that requires governments to
maximize the total net sum of the happiness of all their subjects. This principle is in contrast
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to natural rights theory, which is a distributive and individualizing principle that assigns
priority to specific basic interests of each individual subject.
Classic utilitarianism, the most explored branch of this school, is a moral theory that judges
the rightness of actions affecting outcomes in terms of securing the greatest happiness to all
concerned. Utilitarian theory played a commanding role in the philosophy and political
theory of the nineteenth century and continues with some vigor in the twentieth.
Jeremy Bentham, who expounded classical utilitarianism, believed that every human
decision was motivated by some calculation of pleasure and pain. He thought that every
political decision should be made on the same calculation, that is, to maximize the net
produce of pleasure over pain. Hence, both governments and the limits of governments
were to be judged not by reference to abstract individual rights, but in terms of what tends
to promote the greatest happiness of the greatest number. Because all count equally at the
primary level, anyone may have to accept sacrifices if the benefits they yield to others are
large enough to outweigh such sacrifices.
Bentham’s happiness principle enjoyed enormous popularity and influence during the first
half of the nineteenth century when most reformers spoke the language of utilitarianism.
Nonetheless, Bentham’s principle met with no shortage of criticism. His “felicific calculus,”
that is, adding and subtracting the pleasure and pain units of different persons to determine
what would produce the greatest net balance of happiness, has come to be viewed as a
practical, if not a theoretic, impossibility.
Later utilitarian thinkers have restated the doctrine in terms of “revealed preferences.” 27
Here, the utilitarian guide for governmental conduct would [End Page 213] not be pleasure
or happiness, but an economically focused value of general welfare, reflecting the
maximum satisfaction and minimum frustration of wants and preferences. Such
restatements of utilitarian theory have an obvious appeal in the sphere of economic decision
making. Even then, conceptual and practical problems plague utilitarian value theory: the
ambiguities of the welfare concept, the nature of the person who is the subject of welfare,
the uncertain basis of individual preference of one whose satisfaction is at issue, and other
problems inherent in the process of identifying the consequences of an act and in estimating
the value of the consequences.
The approach to the problem of rights through theories of values has an obvious attraction.
Utilitarian theories have a teleological structure, that is, they seek to define notions of right
solely in terms of tendencies to promote certain specified ends. An ontological commitment
may not be necessary here (at least, it is not so evident) because values (equality, happiness,
liberty, dignity, respect, etc.) concern behavior and are not known in a metaphysical sense
but rather are accepted and acted upon.
The essential criticism of utilitarianism is that it fails to recognize individual autonomy; it
fails to take rights seriously. 28
Utilitarianism, however refined, retains the central principle
of maximizing the aggregate desires or general welfare as the ultimate criterion of value.
While utilitarianism treats persons as equals, it does so only in the sense of including them
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in the mathematical equation, but not in the sense of attributing worth to each individual.
Under the utilitarian equation, one individual’s desires or welfare may be sacrificed as long
as aggregate satisfaction or welfare is increased. Utilitarianism thus fails to treat persons as
equals, in that it literally dissolves moral personality into utilitarian aggregates. Moreover,
the mere increase in aggregate happiness or welfare, if abstracted from questions of
distribution and worth of the individual, is not a real value or true moral goal.
Hence, despite the egalitarian pretensions of utilitarian doctrine, it has a sinister side in
which the well-being of the individual may be sacrificed for what are claimed to be
aggregate interests, and justice and right have no secure place. Utilitarian philosophy thus
leaves liberty and rights vulnerable to contingencies, and therefore at risk. 29
In an era
characterized by inhumanity, the dark side of utilitarianism made the philosophy too
suspect [End Page 214] to be accepted as a prevailing philosophy. Indeed, most modern
moral theorists seem to have reached an antiutilitarian consensus, at least in recognizing
certain basic individual rights as constraints on any maximizing aggregative principle. In
Ronald Dworkin’s felicitous phrase, rights must be “trumps” over countervailing utilitarian
calculations.
IV. Modern Human Rights Theories
A. Rights Based on Natural Rights: Core Rights
The aftermath of World War II brought about a revival of natural rights theory. Certainly,
this was due in part to the revulsion against Naziism and the horrors that could emanate
from a positivist system in which the individual counted for nothing. It was not surprising
that a renewed search for immutable principles to protect humanity against such brutality
emerged.
Of course, a large variety of presentations and analyses among scholars exist addressing
theories of moral philosophy. 30
While the new rights philosophers do not wear the same
metaphysical dress as the early expounders of the Rights of Man, most adopt what may be
called a qualified natural law approach in that they try to identify the values that have an
eternal and universal aspect. They agree that only a positive legal system that meets those
values can function as an effective legal system. In a larger sense, the object of much of
revived natural rights thought can be viewed as an attempt to work out the principles that
might reconcile the “is” and the “ought” in law.
The common theme emerging from a huge family of theories is that a minimum absolute or
core postulate of any just and universal system of rights must include some recognition of
the value of individual freedom or autonomy. [End Page 215]
Underlying such foundational or core rights theory is the omnipresence of Immanuel Kant’s
compelling ethic. Kant’s ethic maintains that persons typically have different desires and
ends, so any principle derived from them can only be contingent. However, the moral law
needs a categorical foundation, not a contingent one. The basis for moral law must be prior
to all purposes and ends. The basis is the individual as a transcendental subject capable of
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an autonomous will. Rights then flow from the autonomy of the individual in choosing his
or her ends, consistent with a similar freedom for all.
In short, Kant’s great imperative is that the central focus of morality is personhood, namely
the capacity to take responsibility as a free and rational agent for one’s system of ends. A
natural corollary of this Kantian thesis is that the highest purpose of human life is to will
autonomously. A person must always be treated as an end, and the highest purpose of the
state is to promote conditions favoring the free and harmonious unfolding of individuality.
Kant’s theory is transcendental, a priori, and categorical (all amount to the same thing), and
thus overrides all arbitrary distinctions of race, creed, and custom, and is universal in
nature. 31
In variant forms, modern human rights core theories seem to be settling for concepts of
natural necessity. By necessity one means prescribing a minimum definition of what it
means to be human in any morally tolerable form of society. Put another way, some modes
of treatment of human beings are so fundamental to the existence of anything that one
would be willing to call a society that it makes better sense to treat an acceptance of them as
constitutive of man or woman as a social being, rather than as an artificial convention. This
view does not entail verified propositions as science requires. Rather, it views human life as
encompassing certain freedoms and sensibilities without which the designation “human”
would not make sense. To use a linguistic metaphor, humanity has a grammatical form of
which certain basic human rights are a necessary part. This concept of what one views
human beings to be is a profound one, even if it is deemed self-evident.
To be sure, many of the new individualist theories possess a certain vindication aspect.
They can be viewed as saying that if one adopts certain human rights as norms (e.g.,
freedom of thought, equality), one can produce [End Page 216] a certain kind of society;
and if one finds that kind of society desirable, one should adopt the norms and call them
absolute principles. This reasoning is of course a type of tautology. Then again, tautologies
can be significant if society is willing to accept them.
The renaissance of qualified or modified natural rights or core theories has seminally
influenced conventional international human rights norms. The Universal Declaration of
Human Rights 32
reflects that influence, as seen in the Declaration’s opening statement:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world.” 33
In a similar vein, Article 1 provides: “All human beings are born free and equal in
dignity. They are endowed with reason and conscience and should act toward one another
in a spirit of brotherhood.” 34
The debt that “inherent dignity” and “inalienable rights” owe
to natural law philosophy is obvious. The key human rights treaties also reflect quite
directly the moral universalist foundations discussed above.
The philosophic justification and affirmance of the core principles of human rights as
universal principles are highly significant and reassuring for the vitality of human rights in
rules for the world of nations. Rights that preserve the integrity of the person flow logically
from the fundamental freedom and autonomy of the person. So does the principle of
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nondiscrimination that must attach to any absolute concept of autonomy. However,
affirming such basic or core principles is one thing; working out all the other elements of a
complete system of rights such as international law seeks to provide is something else.
What rights derive from those deemed core rights? How are they developed with generic
consistency? By what theory does one test the legitimacy of an overall system? The next
sections discuss some of the leading rights theories that have wrestled with the
methodology and justification of an overall system of rights.
B. Rights Based on Justice
The monumental thesis of modern philosophy is John Rawls’ A Theory of Justice. 35
“Justice
is the first virtue of social institutions,” says Rawls. 36
[End Page 217] Human rights, of
course, are an end of justice; hence, the role of justice is crucial to understanding human
rights. No theory of human rights for a domestic or international order in modern society
can be advanced today without considering Rawls’ thesis.
Principles of justice, according to Rawls, provide a way of assigning rights and duties in the
basic institutions of society. These principles define the appropriate distribution of the
benefits and burdens of social cooperation. Rawls’ thesis is that
[e]ach person possesses an inviolability founded on justice that even the welfare of society
as a whole cannot override. . . . Therefore in a just society the liberties of equal citizenship
are taken as settled; the rights secured by justice are not subject to political bargaining or to
the calculus of social interests. 37
But what are the rights of justice? Put another way, what are the principles of morality or
the foundation of rules that would be agreed upon by all members of a society? To set the
stage for ascertaining the principles of justice, Rawls imagines a group of men and women
who have come together to form a social contract. Rawls conceives the contractors in an
original position.
The original position is one of equality of the contractor with respect to power and freedom.
It is taken for granted that all know the general principles of human psychology, sociology,
economics, social organization, and the theory of human institutions. However, the
contractors are under a “veil of ignorance” as to the particular circumstances of their own
society or of their individual race, sex, social position, wealth, talents, opinions, aspirations,
and tastes. 38
Therefore, they are prevented from making a self-interested decision that
otherwise would corrupt the fairness of their judgment. In that hypothetical original
position, all of the contractors would consider only their own self-interest, which is to
acquire a sufficiency of primary human goods, namely fundamental liberties, rights, and
opportunities of income and wealth as social bases of self-esteem. Hence, in the original
position, contractors would choose a basic structure for society fairly because they would be
abstracted from knowing the detailed facts about their own condition in the real world.
Rawls then tries to show that if these men and women were rational and acted only in their
self-interest under a “veil of ignorance,” they would choose principles that would be good
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for all of the members, not simply to the advantage of some. The answers given by those in
the original position may then be taken as a blueprint, or as a pattern for the establishment
of laws that are worthy of the universal assent of citizens everywhere. In other [End Page
218] words, their choices would be the basis for the ordering of a just society in any time or
place. Rawls’ system thus allows us to derive universal principles of justice (morality)
acceptable to all rational human beings.
What particular principles would be chosen? Rawls claims that the contractors, who are in
the original position of choosing their own status and prospects, will choose two principles
of justice.
Rawls’ First Principle is that “each person is to have an equal right to the most extensive
total system of equal basic liberties compatible with a similar system of liberty for all.” 39
Rawls’ principles of justice are arranged in a hierarchy. The first priority is that of liberty.
“[L]iberty can be restricted only for the sake of liberty. There are two cases: (a) a less
extensive liberty must strengthen the total system of liberty shared by all; (b) a less than
equal liberty must be acceptable to those [citizens] with the lesser liberty.” 40
The First Principle focuses on the basic liberties. Rawls does not enumerate them precisely,
but indicates, roughly speaking, that they include political liberty, freedom of speech and
assembly, liberty of conscience and thought, freedom of the person (along with the right to
hold personal property), and freedom from arbitrary arrest and seizure. The First Principle
requires that these liberties be equal because citizens of a just society are to have the same
basic rights. Rawls applies a value criteria in determining basic liberties. He believes that a
liberty is more or less significant depending on whether it serves the full, informal, and
effective exercise of the moral powers.
Rawls’ Second Principle deals with distributive justice. It holds that: “Social and economic
inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least
advantaged, consistent with the just savings principle, and (b) attached to offices and
positions open to all under conditions of fair equality of opportunity.” 41
The general
conception of justice behind these two principles reached in the original position, is one of
“fairness.” 42
Rawls’ Second Principle is a strongly egalitarian concept which holds that unless there is a
distribution that makes both groups better off, an equal distribution is preferred. Thus, the
higher expectations of those better situated are just only if they are part of a scheme that
improves the expectations of the least advantaged. In Rawls’ theory, the Difference [End
Page 219] Principle is the most egalitarian principle that would be rational to adopt among
the various available alternatives.
Rawls recognizes that a person may be unable to take advantage of rights and opportunities
as a result of poverty and ignorance and a general lack of means. These factors, however,
are not considered to be constraints on liberty; rather, they are matters that affect the
“worth” or “value” of liberty. Liberty is represented by the complete system of the liberties,
while the worth of liberty to persons and groups is proportional to their capacity to advance
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their ends within the framework that the system defines. The basic liberties must be held
equally. However, the worth of liberty may vary because of inequality in wealth, income, or
authority. Therefore, some have greater means to achieve their aims than others. However,
the lesser worth of liberty is compensated for by the Difference Principle discussed above.
Rawls, in short, builds a two-part structure of liberty that allows a reconciliation of liberty
and equality. 43
This philosophy, of course, is highly abstract and not easily digested. When one tries to
apply Rawls’ principles to the nonmetaphorical world, some difficult empirical questions
arise.
Consider, for example, the basic civil and political liberties identified by Rawls that involve
recognition of individual autonomy. The demands made are of a negative sort; they
principally involve noninterference with the equal sharing of basic liberties by individuals.
Rawls’ overriding principle of justice requires that all citizens share these liberties equally
(as indeed, international law provides: here, the respective positions of modern utilitarian,
egalitarian, and natural rights philosophy seem to be in general agreement). Moreover,
groupings are not empirically difficult. The inclusion of all persons in these liberties does
not negate or reduce the share of any and causes the least chance of a clash with other
values. In constructing a rights system, it is therefore appropriate to impose a heavy burden
on those who would treat persons unequally by denying any of them basic liberties.
However, in the real world, will clashes not occur between liberty and other interests, such
as public order and security, or efficient measures to ensure public health and safety? To
solve this conflict, Rawls suggests a Principle of Reconciliation under which basic liberties
may be restricted only when methods of reasoning acceptable to all make it clear that
unrestricted liberties will lead to consequences generally agreed to be harmful for all. This
Principle of Reconciliation is that of the common interest. A basic liberty may be limited
only in cases where there would be an advantage to the total system of basic liberty.
With respect to Rawls’ Second Principle, the problems are more [End Page 220] complex.
Here, Rawls holds that a condition of distributive justice is fair equality of opportunity.
Opportunity, stated as a principle of nondiscrimination, is easy to put into a legal precept,
and international human rights covenants and many domestic constitutions do prohibit
discrimination by virtue of sex, race, religion, or national origin. However, empirical
knowledge tells one that equality of opportunity is not enough because society creates the
conditions of the pursuit, thereby affecting the outcome.
For example, a person who grows up under conditions of discrimination and deprivation has
less opportunity to get into a college than someone from the mainstream of society with a
good elementary and secondary education. Hence, to provide equality of opportunity one
must compensate for unequal starting points. However, the opportunities of others also
should be protected. The object, therefore, is to give those who have had an unequal start
the necessary handicap points and yet not denigrate the opportunities of others. Whether
one utilizes subsidies, special courses, quotas, or affirmative action programs depends on
how compelling a society views the obligation to provide equality of opportunity. Here, a
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utilitarian and egalitarian approach may differ substantially. In some democratic states, for
example, affirmative action programs for minorities have met a utilitarian backlash. It is not
easy to resolve the differences, but understanding the moral conceptions enables one to
focus on reconciliation of competing views.
With respect to a more equal apportionment of economic benefits derived under Rawls’
Second Principle and the Difference Principle, even more difficult problems arise because
the demands on society are heavier. Economic benefits may range from modest ones such
as free education, aid to the elderly, aid to the handicapped, social security, etc., to major
redistributions of wealth. Obviously such benefits are not achieved merely by a negative
restraint on government; they require tinkering with distribution.
But how much tinkering with the distribution system is suitable, and to what desirable ends?
Reasonable moral persons interested both in the well-being of the individual and the
common good might recognize that certain economic needs of those at the bottom strata of
society present so imperative a claim for relief that they outweigh a larger aggregate of
benefits to those higher on the economic scale. 44
One’s moral theory affects what one is
willing to accept as relevant facts, as well as the degree of sacrifice one is willing to accept
to further egalitarian goals. Rawls’ Difference Principle addresses this issue. However, if
one acknowledges the claims for [End Page 221] more equitable distribution of economic
benefits, one must still decide at what point on the spectrum one draws the line and says
that the claims for equality do not outweigh the competing values of liberty or the utilitarian
aggregate benefits that will be decreased by meeting the claims. It may be that in any
particular social structure the inequalities allowed under the Difference Principle would
produce a minimum distribution of goods and benefits too small to satisfy the reasonable
demands of the least advantaged, or too large to command acceptance by the advantaged.
Rawls’ thesis presents still more difficult moral issues of distributive justice in the
international context. For example, many developing nations are economically
disadvantaged and their disadvantages can only be redressed by substantial transfer to them
of resources, technology, and other benefits from developed countries. The sources of those
inequalities compete for dominance in determining the appropriate moral response.
One basis put forward for the disadvantages suffered by developing nations is that
developed countries caused the disadvantages through colonialism, imperialism, racism,
and other exploitation. If developed states accept that claim, then the moral response should
be that the entity that caused the harm should remedy it or, at least, contribute substantially
to the remedy. If, however, the accusation is rejected (as unfair, too old, inaccurate, etc.) the
moral justification for a response is different. The developed countries may still be willing
to help lessen international economic inequality, but that task may be undertaken not out of
guilt or the need to make reparations, but out of a utilitarian calculus that includes such
values as increasing markets, creating alliances, lessening tension, etc. However, the
utilitarian calculation may not warrant any substantial reallocation. Or the response may be
elicited through the moral obligation to advance a just world order along the Rawlsian
Difference Principle. However, here the Rawlsian concept may impose conditions: for
example, in the latter case, donor states may require the donees to accommodate certain
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civil and political liberties that are part of the donors’ concept of justice, as a reciprocal
element of (or the price for) a more just international system. 45
These issues are obviously quite complicated with numerous considerations of real politik
intersecting, but even this short discussion shows that one cannot divorce the tough issues
of fulfilling economic and social rights on both a domestic and international level from the
moral issues. [End Page 222]
Critics of Rawls’ theory maintain that it was designed to support the institutions of modern
democracy in a domestic state context. But even if that were the case, the criticism does not
refute his moral thesis, nor an international extension of it. 46
Indeed, even if Rawls’ theory was intended as a model for domestic states, its application
can further an international just order. This is because in the real world, state parties only
reach questions of international justice after dealing first with the basic structure of the
state’s institutions, and second with the rights and duties of individual members. If Rawls’
moral principles produce justice for individuals in a domestic state, that achievement takes a
long step toward gaining the domestic state’s endorsement and adherence to international
human rights principles. In this regard, the international world order is no greater than the
sum of its state parts. Hence, if the Rawlsian moral schemata contributes to a realization of
domestic justice by the various state parts, the prescriptions of international human rights
will invariably be served.
Rawls himself has suggested that his model can be applied to a world order if one extends
the concept of the original position and thinks of the parties as representatives of different
states who together must choose the fundamental principles to adjudicate claims among
states. But as Thomas M. Franck has pointed out, once the actors in the original position are
representatives of states, the dynamic changes, and it is not clear that these actors would opt
for moral principles that further human rights unless they themselves are representatives of
just states. 47
It is a fair point that the implications of Rawls’ model on an international level
still need to be worked through. In any event, Rawls’ moral structure–showing how the
values of liberty and equality underlying the nature of the autonomous human can be
realized in open institutional forms–should at least be morally compelling for a world in
which large segments of humanity suffer oppression, poverty, and deprivation of civil,
political, social, and economic rights.
One cannot cover Rawls’ highly complex neo-Kantian theory or deal with the considerable
critical analysis of it in a few pages, 48
but even brief [End Page 223] discussion shows the
importance of his theory for the moral justification of a rights-based system of government
under a participatory structure. Rawls effects a reconciliation of tensions between
egalitarianism and noninterference, as well as between demands for freedom by the
advantaged and demands for equality by the less advantaged. 49
His structure of social
justice maximizes liberty and the worth of liberty to both groups. One may also consider
whether Rawls’ thesis is reflected in the consensus on human rights found in the
international human rights covenants, and whether, in fact, most of the nations have tacitly
agreed to a social contract in this area. Rawls’ theory is obviously comforting for the
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construct of constitutional democracy as well as for the concept of the universality of
human rights.
C. Rights Based on Reaction to Injustice
At least brief mention should be made of Professor Edmund Cahn’s theory of justice. While
Cahn’s theory no longer has the influence it once enjoyed, it has a particular appeal to
human rights activists. Cahn asserts that although there may be universal a priori truths
concerning justice from which one may deduce rights or norms, it is better to approach
justice from its negative rather than its affirmative side. 50
In other words, it is much easier
to identify injustice from experience and observation than it is to identify justice.
Furthermore, says Cahn, where justice is thought of in the customary manner as an ideal
mode or condition (e.g., Rawls), the human response will be contemplative, and
“contemplation bakes no loaves.” 51
But the response to a real or imagined instance of
injustice is alive with movement and warmth, producing outrage and anger. Therefore, he
concludes, “‘[j]ustice’ . . . means the active process of remedying or preventing what would
arouse the sense of injustice.” 52
An examination of the instances that will be considered as
effecting an injustice thereby allows a positive formulation of justice.
This concept of the need to right wrong has the capacity to produce action. The practical
starting point may well be the strongly felt response to words that move one with emotional
force and practical urgency to press for the satisfaction or repair of some need, deprivation,
threat, or insecurity. [End Page 224] Such an approach obviously will find a response in
human rights advocates anxious to focus public attention on the injustice of the wide variety
of egregious human rights abuses that remain prevalent.
However, with the more sophisticated kinds of entitlements arising from considerations of
social justice, there is less agreement on what constitutes injustice, and Cahn’s insight offers
less help. Here one needs an overall structure of the type presented by moral philosophers
such as Rawls, Ackerman, or Gewirth. 53
Still, Cahn’s insight is useful; in the end it may
well be that society will secure only those rights for which its members are aroused to fight.
D. Rights Based on Dignity
A number of human rights theorists have tried to construct a comprehensive system of
human rights norms based on a value-policy oriented approach focused on the protection of
human dignity. 54
Some religious philosophers, holding dignity to be the inherent quality of
the sacredness of human beings, believe that an entire rights system can flow from that
concept. A secular exposition of that theory is best presented by Professors McDougal,
Lasswell, and Chen.
McDougal, Lasswell, and Chen proceed on the premise that demands for human rights are
demands for wide sharing in all the values upon which human rights depend and for
effective participation in all community value processes. The interdependent values, which
can all fall under the rubric of human dignity, are the demands relating to (1) respect, (2)
power, (3) enlightenment, (4) well-being, (5) health, (6) skill, (7) affection, and (8)
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rectitude. McDougal, Lasswell, and Chen assemble a huge catalogue of the demands that
satisfy these eight values, as well as all of the ways in which they are denigrated.
McDougal, Lasswell, and Chen find a great disparity between the rising common demands
of people for values of human dignity and their achievement. This disparity is due to
“environmental factors,” such as “population, resources, and institutional arrangements,” 55
and also to [End Page 225] “predispositional factors,” such as special interests seeking
“short-term payoffs . . . in defiance of the common interests that give expression to human
dignity values.” 56
The ultimate goal, as they see it, is a world community in which a
democratic distribution of values is encouraged and promoted, all available resources are
utilized to the maximum, and the protection of human dignity is regarded as a paramount
objective of social policy. While they call their approach a policy-oriented perspective, their
choice of human dignity as the super value in the shaping and sharing of all other values
has a natural rights ring to it.
Their approach also has been criticized as having a Western orientation, which it does, but
that does not mean it is wrong. A more telling criticism is the difficulty in making use of
their system. Their list of demands is huge; no hierarchical order exists; both trivial and
serious claims are intertwined; and it has a utopian aspect that belies reality. Still,
McDougal, Lasswell, and Chen have shown how a basic value such as dignity–a value on
which most people would agree–can be a springboard for structuring a rights system. Even
if one disagrees with their formulation, they have opened the door for a simpler and more
useful construction to be built on their insights.
E. Rights Based on Equality of Respect and Concern
A striking aspect of modern theorists is their pronounced effort to reconcile different
theories of rights. In this regard, in the discussion of modern theories, one must consider the
work of Ronald Dworkin, who offers a promising reconciliation theory between natural
rights and utilitarian theories. 57
Dworkin proceeds from the postulate of political morality,
i.e., that governments must treat all their citizens with equal concern and respect. No basis
for any valid discourse on rights and claims exists in the absence of such a premise.
Dworkin next endorses the egalitarian character of the utilitarian principle that “everybody
can count for one, nobody for more than one.” 58
Under this principle he believes that the
state may exercise wide interventionist functions in order to advance social welfare.
Dworkin believes that a right to liberty in general is too vague to be [End Page 226]
meaningful. However, certain specific liberties such as freedom of speech, freedom of
worship, rights of association, and of personal and sexual relations, do require special
protection against governmental interference. This is not because these preferred liberties
have some special substantive or inherent value (as most rights philosophers hold), but
because of a kind of procedural impediment that these preferred liberties might face. The
impediment is that if those liberties were left to a utilitarian calculation, that is, an
unrestricted calculation of the general interest, the balance would be tipped in favor of
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restrictions.
Why is there such an impediment? Dworkin says that if a vote were truly utilitarian, then all
voters would desire the liberties for themselves, and the liberties would be protected under a
utilitarian calculation. However, a vote on these liberties would not be truly utilitarian nor
would it afford equal concern about and respect for liberties solely by reflecting personal
wants or satisfactions of individuals and affording equal concerns to others. This is because
external preferences, such as prejudice and discrimination against other individuals deriving
from the failure to generally treat other persons as equals, would enter into the picture.
These external preferences would corrupt utilitarianism by causing the individual to vote
against assigning liberties to others.
Accordingly, the liberties that must be protected against such external preferences must be
given a preferred status. By doing so, society can protect the fundamental right of citizens
to equal concern and respect because it prohibits “decisions that seem, antecedently, likely
to have been reached by virtue of the external components of the preferences democracy
reveals.” 59
The argument is attractive because Dworkin (like Rawls, but in a different way) has
minimized the tension between liberty and equality. Dworkin does so not by conceding a
general right to liberty (which might exacerbate the tension), but by specifying particular
basic liberties that society must protect to prevent corruption of a government’s duty to treat
persons as equals.
Dworkin’s theory seems to retain both the benefits of natural rights theory without the need
for an ontological commitment, and the benefits of utilitarian theory without the need to
sacrifice basic individual rights. Dworkin’s resplendent universe thus seems to
accommodate the two major planets of philosophic thought. Dworkin’s theory is also
valuable in focusing on the relational rather than the conflicting aspects of liberty and
equality. Even if one is not fully convinced at this stage by Dworkin’s analysis, one has the
feeling that his reconciling approach should work within the institutions of a participatory
democracy. [End Page 227]
F. Theory Based on Cultural Relativism (versus Universalism)
The clash between those who evaluate human rights from the perspective of cultural
relativism and those who view human rights from the universalist or individualist
perspective impacts the moral foundations of human rights. This clash immerses one in the
vortex of contemporary human rights politics.
Cultural relativism, as a concept to justify departure from human rights standards in
international law on cultural grounds, has scant claim to moral validity. Still, because
cultural relativism has been given the trappings of philosophic credentials even in UN
circles, it must be addressed.
Cultural relativism is essentially an anthropological and sociological concept loosely
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grounded in the theory of moral relativism. The notion is that cultures manifest so wide and
diverse a range of preferences, morality, motivations, and evaluations that no human rights
principles can be said to be self-evident and recognized in all times and all places. Moral
relativism is not very influential in modern philosophy, but cultural relativism has been
used frequently as an argument against the universality of human rights.
Cultural relativists, 60
in their most aggressive conceptual stance, argue that no human rights
are absolutes, that the principles that one may use for judging behavior are relative to the
society in which one is raised, that there is infinite cultural variability, and that all cultures
are morally equal or valid. 61
Put into a philosophical calculus, the relativist says that “truth
is just for a time or place” identified by the standards of one’s cultural peers. 62
Relativism
thus shifts the touchstones by which to measure the worth of human rights practice. To
suggest that fundamental rights may be overridden or adjusted in light of cultural practices
is to challenge the underlying moral justification of a universal system of human rights,
reflecting the autonomous individual nature of the human being.
What are the sources of cultural relativism? Is it a philosophy at all? How should one
analyze cultural relativism in the context of international human rights? 63
[End Page 228]
Moral relativism, the normative basis of cultural relativism, is said to derive from the
famous aphorism (of dubious meaning) by the Greek philosopher Protagoras that “[m]an is
the measure of all things.” Plato’s Theaetus states the Protagorean thesis in terms of the
community (not the individual) as the measure of all things, and Plato fairly decimates the
concept. The Protagorean view had, at most, a feeble foothold in philosophic thought until
the late eighteenth century when Johan Gottfried von Herder, dissenting from
Enlightenment philosophy, claimed that all nations had a unique way of being; only
regional and contingent principles existed. Condemning universal values, he introduced the
concept of Volksgeist, the spirit of the people. Von Herder’s view influenced German
romanticism and French counterrevolutionary writers who glorified the aggregate of local
customs and prejudices under an umbrella called “culture.”
From time to time during the nineteenth and early twentieth centuries, the claims of
Volksgeist arose mostly in the European political context of ultranationalism versus
universalist principles of Enlightenment philosophy. In time, with the rise of Pan-
Germanism, culture was reduced to the cult of origins. During the Nazi period, the
Volksgeist theme revealed and realized its stark and tragic totalitarian potential. 64
During the nineteenth century colonial period, many anthropologists, imbued with feelings
of Western superiority, viewed other cultures as “native,” “primitive,” or “barbaric,”
relegating those cultures to an inferior status. During the post-World War II period, Western
anthropologists and sociologists confessed error and embraced a concept of cultural
relativism as a counterpoint to colonialization. In combating colonialization with its
implications of superiority over the colonists, the French anthropologist Claude Lévi-
Strauss and others of his school argued for the separate, independent value of all cultures,
stating that the West should stop extending its culture to the rest of the world. The goal of
bringing about independence from colonialism was certainly worthy, but the
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anthropologists and sociologists went further and gave cultural relativism a moral or [End
Page 229] ethical stance. In restoring the dignity stolen from other cultures through
Western imperialism, they argued that all cultures were morally equal and that universalist
values (such as universal human rights) were dead. 65
For the new states, the theme of cultural identity was appealing; it helped them break with
Western imperialism, and it permitted the colonialized to affirm their cultural differences,
and to turn what colonizers had mocked into a subject of pride. It was logical that most new
states wanted to make their own cultural traditions part of national life and to bind
individuals to the integrity and cohesion of the socially-minded spirit. In some states,
however, pursuit of cultural identity had deleterious effects. While such pursuit provided a
means of resistance under colonial rule, afterwards it turned out to have a repressive side by
creating an obligatory homogeneity and diminishing the place of the individuals in the
calculus of identity politics.
With this background, this article examines the tenets of cultural relativism, particularly in
the context of international human rights. What are the objectives of cultural relativism
compared to those of universalism? What are the respective camps defending? A universal
moral philosophy affirms principles that protect universal, individual human rights of
liberty, freedom, equality, and justice everywhere, giving them a nontransient, nonlegal
foundation. The relativists defend a cultural conditioning that supposedly reflects a set of
wants and goods that members of disparate cultural groups share (and that may include
various human rights goods), but are not wants and goods arrived at through individual
choices or preserved for individuals in the community as a matter of right. 66
Posing the contrast this way should deflate the cultural relativist position in any objective
value comparison with universalist principles. But [End Page 230] cultural relativism
cannot be dismissed so readily, if only because in the real world, repressive rulers utilize the
relativist claim as justification for their ruling practices. Many examples illustrate repressive
rulers who seek to rationalize repressive practices by claiming that the culture of their
society accepts those practices over universalist international human rights prescriptions,
and that to criticize their society’s human rights practices is to impose Western cultural
imperialism over their local culture. Thus, rulers use cultural relativist arguments to justify
limitations on speech, subjugation of women, female genital mutilation, amputation of
limbs and other cruel punishment, arbitrary use of power, and other violations of
international human rights conventions. It is no wonder that the doctrine that human rights
are contingent on cultural practice has been called the “gift of cultural relativists to tyrants.”
Does the cultural relativist thesis withstand scrutiny? The reason it does not has several
levels.
First, John Finnis has cogently shown that those philosophers who have surveyed modern
anthropological literature have found the basic assumption underlying the relativist
approaches unwarranted:
All human societies show a concern for the value of human life; . . . in none is the killing of
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other human beings permitted without some fairly definite justification. . . . [I]n all societies
there is some prohibition of incest, some opposition to boundless promiscuity and to rape,
some favour for stability and permanence in sexual relations. All human societies display a
concern for truth, [and] all societies display a favour for the values of co-operation, of
common over individual good, of obligation between individuals, and of justice within
groups. All know friendship. All have some conception of meum and tuum, title or property,
and of reciprocity. . . . All display a concern for powers or principles which are to be
respected as suprahuman; in one form or another, religion is universal. 67
Here, in short, is a universality of basic moral requirements manifested in value judgments.
One, therefore, should not have to probe deeply to conclude that there is a universal cultural
receptivity to such fundamental rights as freedom from torture, slavery, arbitrary execution,
due process of law, and freedom to travel. Moreover, any observer of state practice can cite
example after example where repression that one authoritarian government excuses as
cultural identity, turns out not to be a cultural tradition at all when a democratic government
replaces the authoritarian one. Further, many examples of peoples of like cultures living
virtually side by side, where one [End Page 231] state condemns human rights abuses and a
counterpart state creates abuses, illustrate this point. Thus, most human rights abuses are not
legitimately identified with the authentic culture of any society, only with authoritarian
rulers of that society. 68
Indeed, even most confirmed relativist scholars are repulsed at practices that are highly
coercive and abusive and accept that at least some human rights values are absolute. This is
no more than a recognition, grudging or not, that suffering and abuse are not culturally
authentic values and cannot be justified in the name of cultural relativism. In short, it is
wrong to say that all cultures are equally valid; some cultures contain evil elements which
have no rational, intuitive, or empirical claim to moral equivalence with nonabusive
cultures.
Second, cultural relativists often incorrectly perceive the attributes of cultural communities.
Cultural relativists tend to look at cultures from a static, romanticized perspective in which
traditional societies are defined as unchanging, holistic entities, unaffected by human
history or the dynamics of cultural change. 69
However, this view fails to take into account
the dynamism of culture that normally offers its members a range of development options,
or is willing to accommodate varying individual responses to its norms, while preserving
legitimate values of authentic tradition. Anthropologists acknowledge that culture is flexible
and holds many possibilities of choice within its framework. To recognize the values held
by a given people at a given time in no wise implies that these values are a constant or static
factor in the lives of current or succeeding generations of the same group.
Third, the dynamics of change have been accelerated in this technological, communicative
age with the result that many closed societies, once exposed to individualist benefits, seek
to incorporate those values and interests into their culture. In fact, individualist values have
a great deal of appeal to all cultures once the values are perceived. Of course, a necessary
element of bringing about such change is free discourse between cultures so that the human
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rights benefits can be known. It is telling that authoritarian [End Page 232] rulers try to
prevent such discourse; that, at the least, reveals a lack of faith in their normative position.
Fourth, another approach still exists that, in part, renders moot the conflict between
universalist and relativist theory. This approach consists of appreciation of what has
transpired in international law. Even as theorists have continued to quarrel with each other,
fundamental human rights principles have become universal by virtue of their entry into
international law as jus cogens, customary law, or by convention. In other words, the
relativist argument has been overtaken by the fact that human rights have become
hegemonic and therefore universal by fiat.
The relativist, of course, may reply that international law is not a decisive foundation for the
relativist any more than an iniquitous positive law is for the universalist. However, one can
counter this argument in relativist terms. Law creates societal pressure for adherence;
adherence creates habit; habit creates custom; custom becomes a cultural attribute. Thus,
the legal standards convert to the very cultural standard that the cultural relativist advocates.
To be sure, the normal process is for theory to turn into law. But conversely, law creates the
cultural attributes of a society. 70
In any event, the broad acceptance by many nations across
the globe of the principal human rights treaties can be taken, at least on the legal level if not
yet in practice, as a triumph of universalism over relativism.
Finally, it is revealing that the implications of the relativist position for human rights has
obviously been troubling to many relativist theorists who, in personal terms, would like to
see human rights values firmly ensconced in world affairs. They search for justifications
other than the universalist theories to affirm human rights, a search which in itself speaks
for the flimsy, if not spurious foundations of cultural relativism.
For example, Joseph Raz grounds rights in interests that are themselves grounded in values. 71
Richard Rorty argues that human rights activists should rely not on reason and theory but
on passion and the courage of their convictions. 72
Other theorists produce other rationales.
Whether at the end of the day individualists and relativists will recommend the same
policies on different moral grounds is still an open question among some theorists. While
such reconciliation may not satisfy the universalist thesis, human rights proponents should
take comfort from the moral compulsion a good person feels to combat evil and to vindicate
human rights. If enough feel that moral compulsion, the universalist goals then will have
been fulfilled. [End Page 233]
V. Conclusion
This brief description of modern theories of rights does not even begin to exhaust the
elaborate and daunting literature and complexities of the subject. Moreover, the
development of rights theory will certainly benefit from flourishing new philosophic and
scientific exploration. Scholars such as Rawls, Ackerman, Coleman, Donagan, Donnelly,
Dworkin, Finnis, Gewirth, Heller, Howard, Michelman, Nagel, Nino, Nozick, Raz,
Richards, Rorty, Sumner, and others in many nations and from diverse backgrounds are still
adding insights to classic moral philosophy and developing or refining their own theories
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both in domestic and international contexts. It is the natural bent of theory analysis to raise
queries and articulate doubts. The field is stirring, and the potential for new insight remains
large.
Long ago, Hume asked what authority any moral reasoning can have that leads into
opinions that are wide of mankind’s general practice. It remains a haunting point as one
views the gap between the international law of human rights and contemporary practice. A
more promising question may be whether moral reasoning can narrow the gap between
moral principle and practice. Hopefully, the discussion here, albeit with all the questions it
raises, will affirm faith in the meaningfulness and rationality of a quest for a humane
society.
Jerome J. Shestack is President of the American Bar Association. He is a past United States
Ambassador to the United Nations Commission on Human Rights.
Notes
1. The term “justification of moral principles” is used here in the sense of “warranted
assertions” containing qualities that go beyond local and transient rightness. I believe that
most of what passes for discussion of “truth” in philosophy is such justific ation. See Hilary
Putnam, Are Legal Values Made or Discovered, 1 Legal Theory 5 (1995) (analyzing truth
and warranted assertions).
2. A familiar anecdote is that of Gertrude Stein, who, on her deathbed, asked of her friends:
“What is the answer? What is the answer?” A philosopher friend leaned over and spoke
gently in her ear. Gertrude Stein closed her eyes and whispered: “Then, what is the
question? What is the question?” Identifying the pertinent questions is a large measure of
the philosophic enterprise.
3. It bears emphasis that while the modern human rights theories discussed below have been
articulated largely by Western philosophers, the moral concepts are not exclusively Western
and find counterparts in non-Western thought as well. Of course, the truth of a
philosophical principle should not depend on its geography but instead on the soundness of
its foundation. Self-determination, for example, is a Western-originated concept.
4. The last fifteen years alone have produced numerous volumes and articles on moral
philosophy, though surprisingly few have dealt directly with human rights. The dense,
specialized lexicon that most theorists use unfortunately means that they fail to reach the
wide audience that they should seek.
5. For a discussion of the difficulties in determining the universality of a proposition, see
Richard Mervyn Hare, Freedom and Reason 10-13, 30 (1963).
6. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in
Judicial Reasoning (Yale Univ. Press, 1923).
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7. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966,
993 U.N.T.S. 3, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc.
A/6316 (1966) (entered into force 3 Jan. 1976).
8. An appealing expression of this comes from the Talmud:
A man may coin several coins with the same matrix and all will be similar, but the King of
Kings, the Almighty, has coined every man with the same matrix of Adam and no one is
similar to the other. Therefore, every man ought to say the whole world has bee n created
for me.
Sanhedrin 38:1 (Adin Steinsaltz ed., Random House 1989).
9. See generally Simon Greenberg, Foundations of a Faith (1967); Leonard Swidler,
Religious Liberty and Human Rights: In Nations and in Religions (1986); Ann
Elizabeth Mayer, Islam and Human Rights (1991).
10. St. Thomas Aquinas, Summa Theologica Lib. II, pt. II (1475).
11. Hugo Grotius, De Jure Belli et Pacis (Book 1, 1689). See also Heinrich Albert
Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (1948).
12. John Locke, The Second Treatise of Government (1952).
13. Nearly a century later, Rousseau refined the concept of a social contract. He saw the
first virtue of the social contract as its capacity to organize in collective defense of liberty
and order. Second, the social contract establishes a community with pote ntial for doing
justice, thereby giving the citizens the morality that had been wanting in the state of nature.
Jean-Jacques Rousseau, On the Social Contract (Judith R. Masters trans., St. Martin’s
Press 1978) (1762).
14. Declaration of the Rights of Man and of Citizens (France 1789).
15. The Declaration of Independence (US 1776).
16. See, e.g., Jeremy Bentham, The Book of Fallacies (1824) (discussing natural rights as
so much “bawling on paper”). Oft-quoted is his colorful attack: “Right is a child of law;
from real laws come real rights, but from imaginary law, from law s of nature, come
imaginary rights. . . . Natural rights is simple nonsense: natural and imprescriptible rights,
rhetorical nonsense,–nonsense upon stilts.” Id.
17. See, e.g., Herbert Lionel Hart, Positivism and the Separation of Law and Morals, 71
Harv. L. Rev. 593 (1955); John Austin, The Province of Jurisprudence Determined
(Wilfrid E. Rumble ed., 1985).
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18. See Sir Isaiah Berlin, Two Concepts of Liberty (1958).
19. Karl Marx, The Economic and Philosophic Manuscripts of 1844 (Martin Milligan
trans., Dirk J. Struik ed., 1969).
20. No attempt is made here to deal with some of the substantial reinterpretation and
modification of Marxist theory utilized by various Third World Socialist countries. See
Julius Nyerere, Ujamaa: Essays on Socialism (1968).
21. See, e.g., Valerii Chalidze, To Defend These Rights: Human Rights and the Soviet
Union (Guy Daniels trans., 1974).
22. See Karl Llewellyn, Jurisprudence: Realism in Theory and Practice (1962).
23. William James, Pragmatism (1975).
24. 1 Roscoe Pound, Jurisprudence § 8 (1959).
25. 3 Roscoe Pound, Jurisprudence (1959).
26. See Karl Llewellyn, Book Review, 28 U. Chi. L. Rev. 174 (1960).
27. See Joseph Raz, The Morality of Freedom 267-87 (1986). “Consequentialism” is a
school of modern moral philosophy that embraces the family of utilitarian theories, some
egoistic in principle, some altruistic, some benevolent, etc. Generally, it may be described
as holding that actions and other objects of moral assessment are justified only if their
consequences have more intrinsic value than alternate actions. The term “consequentialism”
was introduced into technical philosophy in 1958 by G. E.M. Anscombe. Consequentialist
theorists are often at odds with each other.
28. An oft-quoted criticism is Rawls’ observation that “[u]tilitarianism does not take
seriously the distinction between persons.” John Rawls, A Theory of Justice 187 (1971).
29. Some utilitarians, notably John Stuart Mill, allow that in moral and legal practice,
justice and rights may be considerations superior to interests and to the liberty to pursue the
satisfaction of interests. But they insist that justice and rights are der ivative of interests and
desires and are to be given context by determining what is necessary to maximize the
satisfaction of the latter. That, of course, makes justice and rights contingent and does not
satisfy the theories that assign rights superior mo ral standing. In other words, so long as
utility is what Mill said it is, namely, “the ultimate appeal on all ethical questions,”
individual rights can never be secure. John Stuart Mill, On Liberty (Appleton-Century-
Crofts & Co. 1947) (1959).
30. Modern rights theorists display a number of common characteristics. First, they are
eclectic, borrowing from each other’s insights so that it is somewhat imprecise to
characterize their theories as simply utilitarian, naturalist, positivist, or any of the other
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classifications that philosophers use. Second, most rights theorists recognize the need to
identify the justifications that can validate the moral principles of human rights. Third, they
acknowledge the benefits of constructing an entire system of rights that can satisfy all
morally relevant actions and institutions in consistent and confiict-resolving ways.
Unfortunately, many theorists also get caught up in the distinctions and fine tunings of
contractualism, consequentialism, value neutrality, o bjectivity, relativism, pluralism, and
other branches of epistemological, metaphysical, or ethical philosophy without advancing
our understanding of the moral foundations of human rights much beyond the classic
theories. In the discussion that follows, th ere is space to address only the more infiuential
modern theories, and then only in bare bones outline.
31. Even most positivist and utilitarian philosophers now seem to concede that unless the
idea of Kantian’s moral, nonlegal right is admitted, no account of justice as a distinct
segment of morality can be given. Put simply, any society which uses the vocabul ary of
rights presupposes that some justification is required to interfere with a person’s freedom.
Without that minimal right of freedom, an important segment of our moral scheme (but not
all of it) would have to be relinquished, and the various politica l rights and responsibilities
about which we talk could not exist. See H.L.A. Hart, The Concept of Law (1994); see
also Jules L. Coleman, Markets, Morals and the Law (1988) (exemplifying a modern
positivist philosopher’s view).
32. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3rd Sess., (Resolutions, part 1), at 71, U.N. Doc. A/810 (1948), reprinted in
43 Am. J. Int’l L. Supp. 127 (1949).
33. Id.
34. Id. art. 1.
35. John Rawls, Theory of Justice §§ 1-4, 9, 11-17, 20-30, 33-35, 39-40 (1971)
(explaining the essence of Rawls’ theory).
36. Id. § 1 at 3.
37. Id. § 1 at 3-4.
38. Id. § 2 at 12.
39. Id. § 46 at 302.
40. Id. (giving examples of restrictions on the scope of majority rule imposed by a bill of
rights and restrictions on the freedom to speak imposed by a system of rules of order).
41. Id. Rawls’ savings principle is a complex restraint on distribution to any one generation
by allowing for accumulation of savings to improve the standard of life of later generations
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of the least advantaged. Id. § 44.
42. Id. § 11 at 63.
43. Id. at 204.
44. Thus, one would hardly dispute that higher taxation of the upper end of the population is
desirable in order to provide for the needs of those at the lower end.
45. See, e.g., Felix E. Oppenheim, The Place of Morality in Foreign Policy ch. 3 (1991)
(discussing how twenty-four industrial nations decided in Brussels on 4 July 1980 to grant
economic aid to less developed nations on the basis of a series of criteria, including
adherence to the rule of law and “respect for human rights”). Another condition for transfer
of resources from developed to less developed states might be that the receiving states use
the resources to increase distributive justice am ong their own citizens and thereby benefit
the poor in those states (extending the lines of Rawls’ Difference Principle).
46. See John Rawls, Kantian Constructivism in Moral Theory: The Dewey Lectures
(1980) (conceding this point). But Rawls’ later writings do not diminish the force of his
theory of justice.
47. Thomas M. Franck, The Power of Legitimacy Among Nations 213-33, 285 n.8
(1990).
48. The literature dealing with Rawls’ thesis, pro and con, is vast. See, e.g., Thomas M.
Scanlon, Jr., Rawls’ Theory of Justice, 121 U. Pa. L. Rev. 1020 (1973); Robert Wolff,
Understanding Rawls (1977); Reading Rawls (Norma n Daniels ed., 1975); Michael J.
Sandel, Liberalism and the Limits of Justice (1982); Thomas W. Pogge, Realizing
Rawls (1989). The best of these are Chandran Kukathas & Phillip Petit, Rawls: A
Theory of Justice and its Critics (19 90), and the excellent collection of essays in
Communitarianism and Individualism (Shlomo Avineri & Avner de-Shalit eds., 1992).
49. One might contrast Rawls’ fertile moral landscape with theories in Robert Nozick,
Anarchy, State and Utopia 321-22 (1974). Nozick’s system, which he calls “libertarian
capitalism,” is a radical extension of classical laissez-faire theory. See Jerome Shestack, The
Jurisprudence of Human Rights, in International Human Rights (Theodor Meron ed.,
1983).
50. Edmond Cahn, The Sense of Injustice (1949).
51. Id. at 13.
52. Id. at 13-14 (emphasis omitted).
53. Alan Gewirth is another infiuential neo-Kantian philosopher who merits study. Gewirth
holds that in reasoning ethically, an agent abstracts from his or her particular ends and
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thinks in terms of what generic rights for rational autonomy the agent would de mand on the
condition of a like extension to all other agents. These rights are those of freedom and well-
being, that Gewirth calls generic rights. He frames his moral thesis on the Principle of
Generic Consistency: “Act in accord with the generic rights of your recipients as well as
yourself.” From these generic rights fiow an entire structure of civil, political, economic,
and social rights. Alan Gewirth, Reason and Morality (1978).
54. See, e.g., Myres S. McDougal et al., Human Rights and World Public Order (1980).
55. Id. at 38.
56. Id. at 45.
57. Ronald Dworkin, Taking Rights Seriously (1977). See Jules L. Coleman, Truth and
Objectivity in Law, 1 Legal Theory 33, 51 (1995) (finding that Dworkin’s perspective
changed between 1977, when he wrote Taking Rights Seriously , supra, and 1986, when
he wrote Law’s Empire, Ronald Dworkin, Law’s Empire (1986), in order to deal with the
value of community).
58. A practical political application of this principle is participatory democracy.
59. Dworkin, Taking Rights Seriously, supra note 57, at 180.
60. This term, as used here, includes a broad spectrum of relativist theories (cultural, ethnic,
particularist, moral). The various relativist schools vary considerably.
61. See Rhoda E. Howard, Human Rights and the Search for Community (1995); see
also Rhoda E. Howard, Cultural Absolutism and the Nostalgia for Community, 15 Hum.
Rts. Q. 315 (1993); Rhoda E. Howard, Dignity, Community and Human Rights, in Human
Rights in Cross-Cultural Perspectives: A Quest for Consensus (Abdullahi Ahmed An-
Na’im ed., 1995) (pointing out that “cultural relativists” convert to “cultural absolutists”
when they maintain that there is one universal principle, acting in accordance with the
principles of one’s own group).
62. In many ways, the confiict builds on Hegel’s distinction between moralität (abstract or
universal rules of morality) and sittlichkeit (ethical principles specific to a certain
community).
63. It is not within the scope of this article to cover the way in which relativism versus
individualism plays out in domestic politics, except for a brief note. In some Western states,
in particular, a communitarian movement has developed during the past sev eral decades,
largely in opposition to political liberalism. Normatively, communitarians ally themselves
with moral relativism. The liberal individualist response accuses the communitarians of a
conservative political ideology that denigrates individual a utonomy and freedom of choice.
See Communitarianism and Individualism, supra note 48 (exemplifying the debate on
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relativism versus individualism).
64. See Alain Finkielkraut, La Defaite de la Pensee (Judith Friedlander trans., Columbia
Univ. Press 1995) (1987). In France, for example, the defenders of Albert Dreyfus, in the
spirit of the Enlightenment, maintained that “man is not the slave of his race, language or
religion, nor of the course of rivers, or the direction of mountain races.” The Anti-
Dreyfusards found Dreyfus guilty by virtue of his ethnicity, which they regarded as at odds
with the true ethnically pure French character. Fran ce, as it turned out, by rehabilitating
Dreyfus, then opted for a society constituted by a social contract and universal principles
rather than one based on the idea of a collective spirit.
65. Alain Finkielkraut’s satirical but insightful account of how cultural relativism has played
out is summarized in a recent review of Finkielkraut by Paul Berman:
In our eagerness to repudiate anything smacking of old-fashioned imperialism, we seize on
the principles of modern anthropologists, who insist on regarding the culture of one society
as fully equivalent to the culture of another. We applaud ourselves for discovering that our
own culture is merely one among many, and is not to be seen as anything superior. But,
having set out in the morning along that admirably egalitarian path, we find by about noon
that we are obliged to describe the democratic notions o f human rights and freedom as
merely anthropological traits peculiar to our own culture, and, not wishing to impose our
local customs on anyone else, we are obliged by nightfall to conclude that human rights and
democracy are fine for us and other customs are fine for other people. Freedom for us,
oppression for others (for such is their culture, and we must respect it).
Paul Berman, In Defense of Reason, New Yorker Mag., 4 Sept. 1995, at 94 (reviewing
Finkielkraut, supra note 64).
66. One should mention a basic classic dilemma that relativists face. Relativism holds that
all cultures are valid and none absolute or false. Universalism holds that its principles are
absolute. If that universalist thesis is false then relativism is refuted. If that thesis is true,
then relativism is refuted. A theory that justifies its own rejection is not a strong contender
for acceptance.
67. John Finnis, Natural Law and Natural Rights 83-84 (1980). See generally Alison D.
Renteln, International Human Rights: Universalism Versus Relativism (1990).
68. Related to whether cultural attributes are real or pretextual is the fact that cultural norms
are often subject to different interpretations and to manipulation by individuals or groups.
For example, male chauvinism of the early nineteenth century made th e concept of
women’s place being in the home a cultural attribute of that time in Victorian England. See
Carlos Santiago Nino, The Ethics of Human Rights (1991) (discussing the moral
foundations of human rights).
69. See Howard, Cultural Absolutism and the Nostalgia for Community, supra note 61, at
326-28. Rhoda Howard points out the tendency of many cultural relativists to present
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traditional societies in mystical or aggregative terms that ignore or belittle individual
preferences. Yet, as communitarian societies have changed, they approach the individualist
model in culture as well as politics and economics. Id. at 329-32.
70. For example, in the United States in the South, opponents of civil rights laws argued
that these laws were against the Southern “way of life.” But the enactment of the civil rights
laws brought about a change in the way of life and the cultural pattern of Southern society
in a fairly short period of time.
71. Raz, supra note 27.
72. Richard Rorty, Philosophy and the Mirror of Nature (1979).
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