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 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.

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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).

  1. 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.

  1. 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.

  1. 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.

  1. For a discussion of the difficulties in determining the universality of a proposition, see

Richard Mervyn Hare, Freedom and Reason 10-13, 30 (1963).

  1. See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in

Judicial Reasoning (Yale Univ. Press, 1923).

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  1. 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).

  1. 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).

  1. 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).

  1. St. Thomas Aquinas, Summa Theologica Lib. II, pt. II (1475).
  2. 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).

  1. John Locke, The Second Treatise of Government (1952).
  2. 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).

  1. Declaration of the Rights of Man and of Citizens (France 1789).
  2. The Declaration of Independence (US 1776).
  3. 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.

  1. 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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  1. See Sir Isaiah Berlin, Two Concepts of Liberty (1958).
  2. Karl Marx, The Economic and Philosophic Manuscripts of 1844 (Martin Milligan

trans., Dirk J. Struik ed., 1969).

  1. 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).

  1. See, e.g., Valerii Chalidze, To Defend These Rights: Human Rights and the Soviet

Union (Guy Daniels trans., 1974).

  1. See Karl Llewellyn, Jurisprudence: Realism in Theory and Practice (1962).
  2. William James, Pragmatism (1975).
  3. 1 Roscoe Pound, Jurisprudence § 8 (1959).
  4. 3 Roscoe Pound, Jurisprudence (1959).
  5. See Karl Llewellyn, Book Review, 28 U. Chi. L. Rev. 174 (1960).
  6. 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.

  1. 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).

  1. 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).

  1. 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.

  1. 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).

  1. 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).

  1. Id.
  2. Id. art. 1.
  3. John Rawls, Theory of Justice §§ 1-4, 9, 11-17, 20-30, 33-35, 39-40 (1971)

(explaining the essence of Rawls’ theory).

  1. Id. § 1 at 3.
  2. Id. § 1 at 3-4.
  3. Id. § 2 at 12.
  4. Id. § 46 at 302.
  5. 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).

  1. 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.

  1. Id. § 11 at 63.
  2. Id. at 204.
  3. 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.

  1. 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).

  1. 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.

  1. Thomas M. Franck, The Power of Legitimacy Among Nations 213-33, 285 n.8

(1990).

  1. 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).

  1. 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).

  1. Edmond Cahn, The Sense of Injustice (1949).
  2. Id. at 13.
  3. Id. at 13-14 (emphasis omitted).
  4. 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).

  1. See, e.g., Myres S. McDougal et al., Human Rights and World Public Order (1980).
  2. Id. at 38.
  3. Id. at 45.
  4. 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).

  1. A practical political application of this principle is participatory democracy.
  2. Dworkin, Taking Rights Seriously, supra note 57, at 180.
  3. This term, as used here, includes a broad spectrum of relativist theories (cultural, ethnic,

particularist, moral). The various relativist schools vary considerably.

  1. 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).

  1. 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).

  1. 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).

  1. 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.

  1. 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).

  1. 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.

  1. John Finnis, Natural Law and Natural Rights 83-84 (1980). See generally Alison D.

Renteln, International Human Rights: Universalism Versus Relativism (1990).

  1. 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).

  1. 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.

  1. 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.

  1. Raz, supra note 27.
  2. Richard Rorty, Philosophy and the Mirror of Nature (1979).

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