Concepts of Human Rights and its Universality

To develop this even further, one can question the validity of human rights.

Firstly, the interests theory approach, which holds that the principle function of human rights is to protect and promote certain key human interests. John Finnis contends, human rights are justifiable on the grounds of their instrumental value for securing the necessary conditions of human well being.

The Choice or Will theory, on the other hand aims to establish philosophical validity of human rights upon a single human attribute; the capacity for freedom. Proponents of this theory argue that rights are a manifestation of the exercise of personal autonomy, the distinctive feature of human agency which should be the core concern of rights.

Human rights and Universality

In identifying the historical roots of human rights and some basic general conceptual and justificatory approaches’ to the topic, the question whether human rights are "universal" is to ask whether there are good reasons for believing that the norms and prescriptions contained in the international documents symbolising apply to and obligate all human beings equally, regardless of their cultural, social or geographical location.

The argument posed by Rasch is that human rights possess personal character which means in spirit that they cannot intrinsically adhere to the cultural, religious and social differences. This contention will be the basis of the remaining space of this essay.

Rasch holds, that both Rawls, Habermas who were inspired by the Kantian project of discerning the rational ordering of human society is the project of a “universalist ideology” that is homogenous and self justificatory.   In other words he is arguing that the natural laws which initially held basic rights of individuals is “Christianized”. Such is the essence of human rights that truly they cannot be all inclusive and ever embracing. Rasch’s assertion must be examined closely, paying particular attention to the issue about the norms and values inherent in ‘western’ human rights are not the basis for human rights in all corners of the plane

Rawls claimed that human rights “specify limits to a regimes internal autonomy”

and that

“…their fulfillment is sufficient to exclude justified and forceful interventions by diplomatic and economic sanctions or in grave cases of military force”. 

Indeed, it is a generalization to suggest there is a line defined by human rights where national sovereignty ends. The reason being, “fulfillment” of human rights is a very unclear idea, because no country fully satisfies human rights, all countries have human rights problems, some large many “gross” violations.

One of the most significant challenges to contemporary human rights is the presumed objective basis of the doctrine as moral rights. On this view moral principles are inherently subjective in character in that they express individuals’ incomplete preferences

Protagoras claimed that

“…no persons opinions can be said to be more correct than another’s, because each is the sole judge of his or her experiences…”

 In modern times, such arguments have been defended by the likes of Richard Rorty, who argues that human rights are based on sentimental vision of humanity, that human rights are not rationally defensible and fundamentally are emanated by sympathetic identification with others as opposed to reason.

 Kant differentiated between modes of expressions into objective and subjective propositions. He asserted that if an individual’s analysis is not accepted universally then it remains the moral position of the individual, thus a distinction between law and morality. In other words, one cannot assert their moral views and principles on others and expect them to be accepted. Knowledge acquired essentially should be objective in form. But subjective acquisition of knowledge as Kant saw, through individual reasoning or ‘moral law’ of the individual, acceptance of it will raise the individuals knowledge, thus knowledge is a steady cultural effort, In contrast, Michael Foucault argued that acquisition of knowledge should be subjective , he held that “truth” is the instrument of power’ which should be used to strengthen knowledge. 

Cultural Relativism and its Interaction with Religion and Gender

Cultural relativism holds four things, so far as human rights go.  Human rights are related to moral convictions; moral convictions are determined by underlying cultural commitments; underlying commitments differ fundamentally from one culture to another; therefore, the interpretation of human rights must vary fundamentally across cultures. Cultural Relativism is the most fashionable attempts to challenge the universality of human rights. One may suspect that Muslim and Asian critics of human rights suppose that their own views are in fact superior to Western ideas, and that everyone would be better off if their views came to prevail universally. Because cultures differ, and because human rights must vary accordingly, no one culture can go around trying to impose its view of human rights on others.

Islam’s characterization of human rights is based on its followers holding true to the word of the religion. A Muslim sees rights much in the same was as a Hindu, a series of duties to the creator, in order to attain the higher freedom of enlightenment at death. The publication of ‘Satanic Verses’ by Salman Rushdie which offended Muslims worldwide, highlights  how the western concept of human rights, to free speech can be incompatible with Sharia law.

 It is undeniable that the international community derives its values from a liberal consensus that is in essence a secularized Christian ethic. The traditionalist Muslims have not been the only critics of the western standard of human rights, until very recently the Catholic Church has been a strong opposition to what it saw as a conquest over the values of Christian community.

 The hearts of monotheistic religions are in conflict with the basis of human rights.  Human rights doctrine is ‘humancentric’ essentially based on the responsibility and autonomy of the individual, the doctrine takes its premise in the authority of the state i.e. secularism and as its primary aim, to prevent abuse of power by the state over the individual. While monotheistic religions emphasis the will of god through the community. A study of prominent religion and development journals revealed that “religion and spirituality’’ are under represented in “…development literature and in the policies and programmes’ of development organizations…’   

The unique case of Re A (Conjoined Twins: Surgical separation), where doctors wished to separate Siamese twins otherwise both would have died, the parents opposed the operation on religious grounds, though the hospital and courts were choosing the “lesser of two evils” in that if the operation was not carried out the twins would die but if the operation went ahead one would live, the operation was allowed. Such a judgment is clearly confrontational with the religious duty of individuals.

Furthermore, cultural imperialisms impact on human rights; Cultures are compelled to accept apparent universal standards because they are pressured to do so by more powerful cultures. Donnelly, contends that the American human rights regime can be explained by the power that lies within it, He believes that the dominant power of united states, in exercising its supreme power ensures support and creation of its interests. Essentially, human rights’ as an objective project is in reality established on subjective norms. The global institutions developed, in the hope to exercise their view of human rights through creation of instruments in the form of universal declarations or agreements, to which all cultures agree to, comply.

The preamble to the United Nations Charter, demonstrates the clear declaration of universal intention by all member states to agree to a universal set of standards and norms. Who were behind the utopian ideal? The creation of United Nations was a result of recommendations by United Kingdom and the United States, the new ‘cultural imperialists’.

“We the United States recognise and accept our deep involvement in the destiny of men everywhere”

Such was the sentiment expressed by President Eisenhower. During the creation of the UN and even today the membership is still increasingly western with a low presence of Asian, African or Arab membership.  USA evidently believed it was responsible for peace, security and human rights over other cultures, naturally ensuring that their values and norms become universal and dominant.

In addition, the delegation for Saudi Arabia to the committee drafting the Universal Declaration of Human Rights in 1947, expressed that the committee

“…for the most part taken into consideration only standards recognised by western civilisation…”

The delegation contended that the committee was not to

“ proclaim the superiority of one civilization over all others or to establish uniform standards for all the countries in the world”

Rawls argued that human rights are “international and universal” in that they apply to all individuals everywhere, however, such sentimental objections outlined are commonly expressed by not only Middle Eastern states but also Asian countries like China, the reason for this is that “Asian Values” place the good of the community over those of the individual, one can deduct that there isn’t universal consensus on the subject of human rights. Western values inherent in international human rights documents such as the UDHR are in what one can term cultural conflict as there is a clash of difference in values and norms. What can also be deduced from the lack of consensus, is that rights are ‘culture specific’, Human rights appear in the context of particular social, economic, cultural and political conditions. This is unquestionably true, since what circumstances brought about human rights in the west cannot be said to exist elsewhere. China has echoed such attitude in a 1991 white paper

“…owing to tremendous differences in historical background, social system, cultural tradition and economic development, countries differ in their understanding and practice of human rights…"

The dominance of western thought or ideological heritage in eastern or different legal jurisdictions will not necessarily be accepted; rather what should happen is that human rights should

“be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional peculiarities and various historical, cultural, and religious backgrounds…" 

 In line with the last mentioned point, the issue of political sovereignty is worth noting. A state has national sovereignty to determine matters of human rights locally, rather than relying on international agencies to externally determine national affairs. The issue of human rights falls by and large within the sovereignty of each state. In 1995, the Chinese government confirmed its opposition to

"some countries' hegemonic acts of using a double standard for the human rights of other countries . . . and imposing their own pattern on others, or interfering in the internal affairs of other countries by using `human rights' as a pretext."

The West's attempt to apply universal standards of human rights to developing countries is disguised cultural imperialism and an attempt to obstruct their development.

It can be emphasized that human rights are harms which the law commits and heals through human rights. They are concerned with the terrible rather than with achieving the best. Their aim is achieving minimally good lives for all people, or so it is claimed. For instance,

Article 3 Universal Declaration of Human Rights:

‘Everyone has the right to life, liberty and security of person’.

As outlined earlier in the discourse, legal rights are in essence human rights as their basic action is to extend theoretical recognition and respect to all. But, New rights creating new ways of being in common with others else where open the boundaries of community. Karl Marx insisted that political community both upholds and denies universality of rights since rights support and are supported in turn by the inequalities of economy and culture. 

 Economic exploitation of the urban poor through unemployment, low paid wages, poor health of developing countries through unequal trade and rising debt undermines and ultimately destroys the prospect of self determination when daily survival is the order of the day; all aspirations for social improvement or cultural expression are quenched. Thomas Pogge argues that basic human rights ambit of “securing life, liberty and security” has not been fulfilled  

“That world poverty is an ongoing harm we inflict seems completely incredible to

most citizens of the affluent countries. We call it tragic that the basic human rights

of so many remain unfulfilled…”

If it is accepted, that affluent nations such as USA, France and the UK are the beneficiaries of advancing the universality of human rights and the doctrine is inherently favorable to them, then what Pogge argues is the ‘nexus between our global institutional order and the persistence of severe poverty ‘, then the injustice of such an order can also be accepted.

It cannot be denied that the values of the consumer society cannot be applied to societies that have nothing to consume, since talking about universal rights is rather like saying that the rich and the poor both have the same right to fly first class and to sleep under bridges. What is justified in Britain in terms of legal rights cannot totally be the same in Malaysia. Clearly, there is a distinction of what law is and what is morally correct from the view of collective individuals, community and ultimately a nation.

Rights promoting the equality of sexes are a contentious point The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by UN General Assembly in 1979, it codified women’s right to equality in all spheres of life as a global norm. Article 2(f) of the convention imposes positive obligation on member states to modify or abolish “customs and practices” which discriminate against women.

Cultural differences have practical implications. Whether women’s human rights can be universal is at a moot point, since some cultures are seen as patriarchal like Islam and Buddhism.  But a controversial but pertinent example of an approach that seeks to strengthen cultural integrity and individual freedom is India’s Muslim Women (Protection of Rights Upon Divorce) Act. This legislation was enacted after the case of  Shah Banu, the Supreme Court of India upheld the right of a divorced Muslim woman to alimony, prompting outrage from Muslim traditionalists who claimed this violated their religious beliefs that divorced women were only entitled to the return of the bride price paid upon marriage. The Indian parliament then passed a law to override the court's judgment, under which Muslim women married under Muslim law would be obliged to accept the return of the bride price as the only payment of alimony. F. Raday claims that the most widespread inequality women face is the treating of women as housewives or mothers and not being able to integrate fully in the public domain. Equality, despite assertions of Declarations and Constitutions that ‘women are like men’ and that ‘women are different from men’ is a political construct, as Hegel and Marx argued which is expressed through the legal.  The law as Hegel argued is ill equipped to accommodate difference human rights claims therefore involve an inconsistent dialectic between an impossible demand for universal equality that is identifiable with the western man. 

Conclusion

From the above discussion, it has been expounded that human rights cannot be absolutely universal to accommodate societal differences. What is universally different lies in the cultural as well as religious and gender dissimilarities that is the backbone to incomplete consensus on the subject of human rights. Common Western cultural roots are the basis of international treaties establishing so called universal human rights, leading non western cultures to conform to prejudiced norms. The knowledge promulgated in the doctrine is inherently subjective in character embodying the dominant cultural preferences. In reply to William Rasch, human rights cannot totally be justified as they are not completely and entirely impartial so as to accommodate cultural disparity.

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Bibliography

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