the nature of human rights
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University of London External Programme 45
Chapter 3 The nature of human rights
Contents
Introduction 453.1 The contested nature of human rights 463.2 The nature of rights 473.3 The Vienna Conference 1993 493.4 Universalism v cultural relativism: a confusing label? 523.5 Rights in Islam 573.6 The Bangkok Declaration: Asian human rights 633.7 Rights and social transformation 663.8 Towards a conclusion: relativism, universalism and the
politics of exclusion 693.9 Conclusion: rights, desire and identity 71
IntroductionIn this chapter we will address the disputed nature of human
rights. This should alert you to the essential complexity of the idea
of an international law of human rights. Thus, this chapter should
not be read as an exposition of obscure, dry-as-dust academic
arguments; instead it attempts to show that any articulation of an
international law of human rights has to contend with serious
conflicts over the very meaning of the term human rights. An
education in a Western, liberal tradition must include an
engagement with perspectives that are external to, and often
critical of, its values and suppositions.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
approach international human rights as a potentially problematic field ofdispute rather than an obvious set of legal entitlement claims that should
automatically be pursued
identify the distinctive features of the universalist approach identify the distinctive features of the critique of the universalist approach
(i.e. that it is a mode of imposing cultural, economic and/or social norms on
other jurisdictions)
describe the main features of the alternative human rights traditions discuss the concept that rights are expressions of political and cultural
identity
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understand how the above issues are characterised via the categories ofuniversalism vcultural relativism and be prepared to take a critical stance
on this characterisation and (ultimately) be able to take a critical stance on
this way of understanding the issues.
Essential reading
Steiner and Alston, Chapter 5: Rights, duties and cultural relativism,pp.323-400.
Steiner and Alston, Chapter 6: Conflicting traditions and rights:illustrations, pp.403-436.
Steiner and Alston, Chapter 8: Intergovernmental enforcement of humanrights norms: the United Nations system, pp.538552.
Recommended additional reading
Perspectives on Human Rights, Office of the High Commissioner for HumanRights, United Nations, World Conference on Human Rights, 1425June1993, Vienna, Austria. http://www.unhchr.org
Alston, P. (ed.) The United Nations and human rights: a critical appraisal.(Oxford: Clarendon Press, 1992) second edition [ISBN 0198260016].
Donnelly, J. The Universal Declaration model of human rights: a liberaldefense www.du.edu/gsis/hrhw/working
Evans, T. The politics of human rights: a global perspective. (London: PlutoPress, 2005) second edition [ISBN: 0745323731].
Mayer, A.E. Islam and human rights: tradition and politics. (Boulder CO:Westview Press, 1995) [ISBN: 0813335043].
Nussbaum, M. C. Sex and social justice. (Oxford: Oxford University Press,1999) [ISBN 0195110323] (See also
www.wku.edu/~jan.garrett/ethics/nussbaum.htm where Garrett examines
Nussbaums position in the wider context of liberal political theory.)
Tharoor, S. Are Human Rights Universal?, World Policy Journal, 16(4)(Winter 1999/2000) http://worldpolicy.org/journal/tharoor
3.1 The contested nature of human rightsIn this chapter we will provide an important intellectual and
political context for the debate over the supposedly universal
nature of human rights.
We need to identify, first of all, what it means to claim that human
rights are universal. At one level, human rights are universal
because a specific set of rights, identified as human and declared
to be universal, have been encoded in legal machinery authorised
by an authoritative source. This account of rights concerns itself
with questions such as:
How binding are international conventions? What enforcement mechanisms are required?Although these are valid questions, they are not the only way of
studying human rights; indeed, privileging these questions couldmean that other equally important issues are forgotten. In this
chapter we intend to engage with these sidelined questions.
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In the next section we will lay out the broad framework of the
debate pursued throughout the chapter. We will examine the
concept of universal human rights (i.e. what does it mean to assert
that human rights apply to all people?) and the key assertions and
strengths of this position. In the second section, we shall identify
criticisms of such universalist accounts of human rights. These
critical accounts of rights argue that the concept of rights is far
from being truly universal. Indeed, abstract and general assertions
of human rights are rooted in concrete situations typical of the
West and thus are best understood as political interventions that
explicitly or implicitly impose the cultural, economic and social
specificity of Western traditions. This leads to the question whether
it would be preferable to have more heterogeneous and culturally
variable understandings of human rights this is often labelled the
relativist position. We will examine these claims and look in detail
at Asian, Chinese, Islamic and critical accounts of human rights in
order to assess the degree to which these alternative statements of
rights are compatible with, or diverge from, the Universal
Declaration of Human Rights (UDHR). In the conclusion we willargue that human rights, and the universalist/relativist debate, are
perhaps best understood as a concern with the articulations of
political identity in a globalised world.
3.2 The nature of rights
3.2.1 The meaning of human rights
The term human rights indicates both their nature and their source:
they are the rights that one has simply because one is human. They
are held by all human beings, irrespective of any rights or duties
individuals may (or may not) have as citizens, members of families,
workers or parts of any public or private organisation or association.
They are universal rights.
If all human beings have them simply because they are human,
human rights are held equally by all. And because being human
cannot be renounced, lost or forfeited, human rights are inalienable.
Even the cruellest torturer and the most debased victim are still
human beings. In practice, not all people enjoy1 all their human
rights, let alone enjoy them equally. Nonetheless, all human beings
have the same human rights and hold them equally and inalienably.
(Donnelly, 1998, p.18)
What does this mean? It might suggest, first of all, that the
definition of the human being can be provided by a scientific or
behaviourist statement of the humans basic needs. However, the
requirements of humanity are perhaps difficult to state and to agree
upon, even if they are approached in a strictly empirical manner.
Perhaps there cannot even be a scientific statement of basic human
nature, because human nature depends on qualities that are not
suitable for scientific measurement; faith or morality, for instance.
No doubt, though, the social sciences can provide a definition of
humanity, and hence a grounding for a theory of human rights:
indeed, anthropology sets out to achieve this end. However, there isalso a problem with this approach. Societies have not always been
organised around notions of human dignity. Historical and cross-
cultural examples show that societies have organised themselves
1 Enjoy here means are able to
possess and utilise.
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around a class or grouping of inferiors who are deprived of the
privileges enjoyed by others.
Can we turn from anthropology and the social sciences to other
disciplines to resolve this problem? There are, of course,
philosophical accounts of human rights. These come from a variety
of perspectives, and provide different theoretical foundations for
human rights. Their very diversity would militate against any over-
arching or detailed consensus, but would perhaps stress that the
nature of the human being is related to language, the ability to
reason and rational action. There would, of course, also be
theological or religiously oriented accounts of humanity, which
would consider its fundamental value to be of divine origin. You do
not have to look hard to see that theological accounts also compel
little overall agreement, even within the great faith traditions of the
world.
We could suggest, then, that although a universal definition of the
human is elusive, there is a tendency, in different areas of study, to
continue to try and posit a universal value. To some extent, we can
avoid these difficulties, because at least as far as the law is
concerned the universality of human rights is founded on the
UDHR. This does not resolve the debate, but it does at least allow
us to see that the debate around human rights is of continuing
importance for a culture of human rights.
We will examine the way that this has been linked to arguments
about cultural relativism and universalism, although we will also
suggest that this debate itself is somewhat limited.
3.2.1 The legal nature of human rights
How can we understand the legal nature of human rights? Weneed to think through some difficult issues.
We could ask about the semantics of rights. In the English
language, right has two senses: one is moral and the other is
political or legal. In the moral sense, right refers to what it is right
to do from a moral perspective: for instance, to assert that it is
wrong to steal, is to assert, in part, that it is morally wrong to
deprive people of their property without a compelling reason. The
second sense of the word refers to a relationship between right and
duty or obligation in the context of the law. In this second sense,
the meaning of right is stronger than in the former, in that a right
holder can compel a duty bearer to honour that right by calling onthe court to compel respect for the right. It is possible to speak of
rights in a number of legal contexts. For instance, a right derived
from a contract, in a private law sense, creates an obligation
through an exchange for value. If a party to the contract refuses to
undertake the obligations in the contract, the court may enforce it
through various remedies. Likewise, and again in a private law
sense, a beneficiary has certain rights under a trust that can be
enforced against the trustee. These do not rest in contract, but in
the equitable nature of the trust. Again, the court will enforce these
equitable rights. In other words, the distinction between the two
senses of the word moves from a statement of what is morallydesirable to a statement of an entitlement that can be enforced.
Public law rights are somewhat different, in that they do not
originate in private law agreements. Although this is a complex
point, we could perhaps suggest that public law rights are derived
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either from a constitution, which states the rights of citizens, or
from general principles of lawthat state civil liberties.
The paramount nature of human rights is either recognised by
domestic law or it is not. For example, you cannot speak of legally
enforceable human rights in English law, as Parliament is sovereign
and could legislate against human rights. In constitutions that
entrench human rights, or make it either difficult or impossible tooverride human rights provisions, you can speak of fundamental
human rights.
We could return to our definition of human rights with which we
opened this section. Human rights may be explicable as rights that
we have by virtue of our humanity, but this does not necessarily
make them legally enforceable or fundamental. Unless a positive
legal source states that they are fundamental, human rights fall
short of legal claims and can perhaps be thought of as political
claims about the desirability of a certain state of affairs. In this
sense human rightsprovide a moral standard of national political
legitimacy (Donnelly, 1998, p.20).
Again, we have to make a distinction between the fundamental
legal nature of human rights and the political nature of human
rights in international law. The extent to which a human right is
binding is the extent to which it is internationally recognised and
legally enforceable. Although some rights may indeed be both
recognised and enforceable by a court, others cannot be so enforced
or at least cannot be enforced by a court.
Activity 3.1
Does the legal account of human rights provide an adequate statement of the
nature of human rights?
Feedback: see page 74.
3.3 The Vienna Conference 1993
On the 45th anniversary of the UDHR (1948), the UN held a World
Conference on Human Rights in Vienna1on 1425 June 1993
(known as the Vienna Conference), attended by representatives of
171 states as well as many NGOs (Non-GovernmentalOrganisations). Those who wanted to drive the project forward
were frustrated by the limitations of the legal mechanisms available
to promote and enforce human rights internationally. Twenty-five
years on from the UDHR, it seemed little progress had been made.
However, first the whole issue of universal human rights had to be
re-argued and refined even redefined. A significant wave of
dissent from the universal human rights project had developed and
was strongly articulated at the Conference. There were different
strands to this dissent. These could be analysed as presenting two
main themes. The first theme presented economic, social and
cultural rights as downplayed in favour of the luxuries of civil and
political rights. Here, the universality of human rights was not
contested itself, rather it was the content and priorities of
implementation involved in the project. A key issue was that the
1 For the complete text of the
Vienna Declaration, see
Wallace,International Human
Rights: Texts and Materials,
pp.63768.
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right to development should be recognised as a universal human
right.
A second theme was that human rights were not universal but
historically, socially and politically contextual and contingent. So-
called universal human rights were just modern Western values in
disguise and non-Western values, culture and community should be
respected. Asian values were invoked as one example of
alternative cultural and/or social ordering. It was equally important
to recognise that the so-called Western values of freedom and
liberty often depicted as an ancient Western inheritance, are not
particularly ancient. Many have only become dominant in the West
over the last few centuries nor are they exclusively Western in
their formation. This stance was labelled cultural relativism but
this term is also often used to encompass the first theme as well.
This joint labelling was partly justified in that these dissenting
perspectives were supported by the same nations China,
Singapore, Malaysia, Cuba and the former USSR. There is also a
common scepticism (some would say cynicism) about the universal
human rights project as an exercise in international law-making
and whether it was merely another exercise of power by the West,
always working to its advantage.
To summarise:
In practice, are human rights demanded and enforceduniversally or does the insistence on applying internal
international human rights conventions depend on the
strategic interests of Western powers?
Similarly, which human rights are prioritised? Are they theones that would genuinely be helpful for developing
countries? Why is there such reluctance to recognise a right todevelopment?
Is the whole concept of universal human rights ethnocentric an abstraction from one specific concrete cultural location (the
West) that is inappropriately applied elsewhere? Is the
universal human rights project actually functioning to erode
key cultural values that hold non-Western communities
together?
Alternatively, are non-Western human rights traditions (e.g. inIslam) completely ignored?
We will continue to explore these questions throughout this
chapter.
Self-assessment questions
1 At the time of the Vienna Conference, which international instruments were
already in effect in the world human rights system?
2 What powers went with these instruments?
The dissenting point of view was largely unsuccessful at the
Conference, although it made an important impact on some of the
key formulations. Thus the Vienna Conference reaffirmed the
universality of human rights, characterising such rights as
universal, indivisible and interdependent and interrelated and
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sought to give them a more effective legal reality. At the conclusion
of the Conference, the Vienna Declaration and Programme of
Action (1993) was adopted on 25 June 1993 and was endorsed by
the UN General Assembly on 20 December 1993 in Resolution
48/121. The Declaration that the promotion and protection of all
human rights is a legitimate concern of the international
community represented a significant erosion of the sovereign
power of states to have sole control over their internal affairs. The
way a state treats its people was now declared to be everyones
business.
On the other hand, while emphasising that the universal nature of
these rights and freedoms [set out in international instruments] is
beyond question (Part 1, para 1), the Declaration also states:
The international community must treat human rights globally in a
fair and equal manner, on the same footing, and with the same
emphasis. While the significance of national and regional
particularities and various historical, cultural and religious
backgrounds must be borne in mind, it is the duty of the States,regardless of their political, economic and cultural systems, to
promote and protect all human rights and fundamental freedoms.
(Part 1, para 1)
Para 32, part 1 reiterated the importance of ensuring the
universality, objectivity and non-selectivity of the consideration of
human rights issues.
How could we assess the Vienna Declaration?
Cultural and relativist diversity exists in the Declaration, but does
that mean that minimum standards are to be denied universal
application? Judge Higgins addresses this question and she
highlights that the 1966 International Covenant on Civil and
Political Rights (ICCPR) and International Covenant on Economic,
Social and Cultural Rights (IESCR) benefited from the large
number of states that participated in the preparatory sessions and
whose influence was reflected in the final texts. These states gave
the sessions a truly international composition in terms of
geography, religion and culture. As Judge Higgins pointed out, the
texts were adopted with general approval and states had freedom
to choose whether to become a party to the Covenants. This process
of involving as many states as possible has continued to be the
blueprint for all subsequent international human rights
instruments. Furthermore, provisions of the Covenants that wereregarded as being at odds with a states particular political or
religious adherence could be the subject of a reservation (see
Chapter 8).
In other words, when the final product is based on consensus
among the drafters, it can encompass cultural diversity and may
counter contentions that international human rights instruments
simply give expression to Western capitalists values disguised as
universal rights.
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Activity 3.2
The point of this activity is to see if you can work out for yourself, on the basis of
the quoted segments of the text, where the dissenting point of view made an
impact in the formulations produced by the Vienna Conference and what kind of
impact this was.
(a) What importance is assigned to national and regional particularities and
various historical, cultural and religious backgrounds?
(b) Still considering the same text, do you agree that religion, to take a key
example, is a particularity to be contrasted to universal human rights?
(c) From what you know so far about the international system of human rights,
what might the implications be of the statement that human rights are universal,
indivisible and interdependent and interrelated?
No feedback provided.
At this point in the chapter we want to examine in more detail the
distinction between universalism and relativism. Universalist and
relativist positions are not single blocs, but contain differences of
emphasis and opinion. After identifying these tendencies, we will
argue that although a sophisticated version of the two positions
can help identify certain features of the debate over international
human rights it is necessary to consider the distinction as
somewhat limited; and even potentially confusing.
3.4 Universalism v cultural relativism: a confusinglabel?Since the Vienna Conference the phrase universalism v cultural
relativism has become the standard way of understanding the
clashes over the nature of human rights. The current debate takes
place, most vocally, within the WestIslamic framework and the
NorthSouth/developeddeveloping countries dialogue. How well
are these captured by the label universalism v cultural relativism?
In particular, can the different strands of dissent at the Vienna
Conference all be lined up on the side of cultural relativism?
The UDHR is called the Universal Declaration of Human Rightsand the Vienna Conference re-asserted this universality. Therefore
it seems obvious that these human rights are asserted on behalf of
all human beings simply by virtue of their humanity. However,
merely asserting that rights are universal in scope and are to be
applied in a fair and equal manner is not necessarily the same as
having a developed underlying theory of universal human rights
the universalist perspective seeks this broader account of the nature
of human rights.
What universalist positions have in common is the underlying
presumption that human rights exist objectively, independent of
differences in culture, religion, ideology or value systems. Humanrights are based on human attributes or values that transcend or
run through all such local or concrete systems. Human rights are
also supposed to be inalienable: because they flow from and
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protect human existence, they cannot be taken away without
endangering the value of that existence.
Law gives these rights positive existence, but the rights pre-exist
positive law. Hence you can talk about law recognising human
rights: the assumption is that the rights already exist and positive
law (treaties, conventions, etc.) merely gives them a specific form
and make it easier to ensure that such rights are universallyrespected. From this perspective, international human rights law
thus has a double validity: as positive law it comes from the
appropriate sources of authority yet, at the same time, this positive
law also rests on an independent foundation in humanity itself that
is both descriptive and normative. (Thus universalism in human
rights is often described as modern natural law or natural rights.)
Self-assessment questions
Please read the above paragraph very carefully.
1 Does it imply that human nature exists independently of culture or society,
religion or ideology?
2 Does it see humans as specifically individuals?
3 Does it privilege civil and political rights over economic and social rights?
However, the universalist position is often put in more specific
terms that differ both logically and rhetorically from the above
formulation. Consider this vivid statement by one powerful
exponent, judge and legal academic Rosalind Higgins:
I believe profoundly in the universality of the human spirit.
Individuals everywhere want the same things; to have sufficient food
and shelter; to be able to speak freely, to practise their own religion
or to abstain from religious belief; to know that their person is not
threatened by the state; to know that they will not be tortured, or
detained without charge, and that if charged, they will have a fair
trial.
I believe there is nothing in these aspirations that is dependent on
culture, religion, or stage of development. They are as keenly felt by
the African tribesman as by the European city dweller, by the
inhabitant of a Latin American shanty town as by the resident of a
Manhattan apartment. (Higgins, 1998, p.97).
Indeed, she has already made clear that objections to universalism
are typically voiced:
mostly by states, and by liberal scholars, anxious not to impose the
Western view of things on others. [They are] rarely advanced by the
oppressed, who are only too anxious to benefit from perceived
universal standards. (ibid, p.96)
More western rhetoric? How can Higgins claim to talk for the
oppressed?
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Activity 3.3
These questions are about the rhetoric2of Higgins statement but no special
knowledge is required to consider them.
(a) How would you describe the effect of I believe as a way of prefacing this
statement? And repeated again at the start of the second paragraph? For
example, can it be neatly classified as objective or subjective?
(b) Is there any difference between the universality of the human spirit and
individuals everywhere want the same things? How would you describe the
movement in the argument between these terms? Does the word transcend play
any significant role?
(c) List the items that Higgins holds to be universal. Is there anything interesting
about the sequencing of these items, that is, the movement from one to another?
(d) In the second paragraph, Higgins is addressing the cultural relativist
position. On the basis of what Higgins says here, what would you understand
cultural relativism to mean? Also, what do you think of the contrasts that she
makes?
Feedback: see page 74.
A key question that arises is: are human rights necessarily
individualist? Seen from a cultural relativist perspective,
individualism is strongly associated with the historical changes that
led to the formation of modernity in the West, in which people
became less defined by reference to membership of larger
collectivities of clan or family or land-based identity and more able
to determine their life chances by relying on their own resources. In
this historical sense, individualism is associated with emancipation
from the traditional forms of domination based on assigned
natural hierarchies of birth: rank, age and gender. This break was
strongly expressed in the discourse of rights of man in the
seventeenth and eighteenth centuries and social contract doctrines
which reflected the extent to which contract (voluntarily assumed
obligations rather than recognition of social duties, the belief that
you could frame the world in terms of wants and demands) now
honeycombed peoples lives. As freedom of contract contributed to
a significant increase in material prosperity, Western society could
thus celebrate the values of freedom of speech and belief.
Therefore, so the critique continues, to universalise human rights is
indeed to impose a modern Western social norm.
However, let us take the arguments more slowly. What are the
implications of seeing individualism as culturally specific, a social
product? Most obviously, it undermines any version of universalism
that equates the human with the individual, especially where the
individual is presented as pre-existing society. However, not all
universalist positions argue this. More sophisticated universalist
perspectives argue that human beings develop core social needs
and capabilities wherever societies develop. In other words, human
rights arise from society, not from some supposed pre-social state.
One key exemplar of this second version of universalism is the
political philosopher Martha Nussbaum. Her work belongs in thetradition of liberal political philosophy that goes back to Immanuel
Kant but takes its more immediate inspiration from John Rawls.
Here the emphasis is centrally on human dignity and thus echoes
2 Rhetoric = persuasive talk;
according to Aristotles
formulation, a combination of
ethos, pathos and logos.
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the UDHR which declares that human rights flow from the inherent
dignity of the human person. Nussbaum states:
At the heart of this tradition [of liberal political thought] is a twofold
intuition about human beings: namely, that all, just by being human,
are of equal dignity and worth, no matter where they are situated in
society, and that the primary source of this worth is a power of moral
choice within them, a power that consists in the ability to plan a lifein accordance with one's own evaluation of ends. (Nussbaum, 1999,
p.57)
Where she is most persuasive is in drawing in the capabilities
approach derived from the work of Amartya Sen (discussed later in
this chapter). The central question posed by this approach is not
how satisfied are people? (i.e. do they have what they want? see
the alleged consumerism implicit in Higgins, noted above) nor
even what are the resources that people have at their disposal?
(e.g. money, gross domestic product). Rights cannot be understood
in either of these ways. Rather, the capabilities approach asks what
are people actually able to do and to be? (Capabilities are
substantial freedoms, such as the ability to live to old age, engage
in economic transactions or participate in political activities.)
This dignity/capabilities approach is in fact widely held among
liberal scholars and also human rights activists. Alan Gewirth and
Jack Donnelly are other key exponents. It is true that this version
has also been critically analysed as nothing but a more
sophisticated version of Westernism. However, the key point here
in terms of understanding the actual orientation of disputes is
that it has constituted a key part of the dissenting view. As
mentioned in the previous section, the call for a right to
development was crucially advocated by Amartya Sen, and called
for (unsuccessfully) at the Vienna Conference. In other words, some
of the dissent came from the universalist side! Thus one of the most
confusing aspects of the universalismv cultural relativism label is
the way that it suggests that all dissent is based on cultural
relativism.
Similarly, the understanding of human rights advocated from this
perspective places more emphasis on relations with others as that
which links all societies, including the West. Although some
Western ideology and practice tends to emphasise the individual,
this masks the underlying interpersonal and collective relations of
trust that make even modern capitalism possible.So finally we must ask, what exactly is cultural relativism? Put in
logical abstract terms, it would be the claim that there are no
universal human values or practices or even needs. In addition,
relativism also carries the connotation that anything goes
morally: since there are no fundamentals, there is no basis for
criticism far less intervention of any one individual, culture,
social order or state by another. Is this a position that any dissenter
in international human rights debates has actually held? More
specific oppositions have been developed in the course of the
arguments on the ground.
The opposition between universalism and cultural relativism isoften translated into a contrast between individualism and
collectivism. This remains a moot point. Do rights, by definition,
attach to individuals only? (The legal theorist, Ronald Dworkin, has
argued in a different context, that rights are trump cards held by
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individuals, always more powerful in law than collective
considerations.) Does the human dignity approach allow
recognition of collective rights? Are non-Western societies helpfully
understood as more collective in orientation?
Sometimes, where the Cold War background is obvious,
individualismv collectivism is equated also with democracyv
socialism/communism, thus drawing out the idea that the
individual is absorbed within the political collective.
As we have already noted, competing versions of universalism are
often put together with cultural relativism at the level of identifying
dissenting states everything from the new economies of
Singapore, Malaysia and Hong Kong to rural agronomy in mainland
China to all varieties of Islam as practised worldwide to the whole
of Africa to Latin America can be put together as cultural relativists.
There are some serious problems with cultural relativism. Centrally,
cultures are presented as if they were mutually exclusive, non-
interactive and stagnant. There is no representation of how far
interaction has formed the entire world. Religions, especially, areprone to be presented as enduring and unchanged, whereas you
only have to look at the exchanges between Islam and Hinduism or
the relations between Islam and nationalism in the early twentieth
century to realise that it does not make sense to think of cultures as
homogeneous entities.
We will now turn to examine various alternative accounts of human
rights. We will see that relativist positions in fact conceal elements
of universalism. The point is not so much that there is a tension
between universalism and relativism, but that there are different
versions of universalism. Our concern with Islamic accounts of
human rights is to isolate this theme. Perhaps Islamic accounts ofhuman rights make a claim to universalism that is different from
that of western accounts.
To what extent do catalogues of Islamic rights provide a rival
universalism to those catalogues that come out of Western political
traditions? Perhaps it is possible to find a tension between secular
and divine accounts of rights; in other words, a tension between
secular and religious universalism? This is not to suggest that there
are irreconcilable divisions between the West and Islam. For a start,
this very opposition dissolves the complex and diverse traditions
that such reductive labelling can only summarise crudely. It would
also distort the very real history of the movement of ideas betweenreligious traditions and their influences on each other. At the same
time, though, you must be aware that there are clashes between
Islamic ideas of rights and those contained in the UDHR. It is to
these issues that we now turn.
Activity 3.4
It is acknowledged that there are occasions when there is a conflict between
what universal human rights standards demand and what is expected by local
cultural norms. Such conflicts have to be satisfied in favour of universal standards.
What is your view on this? 3
Feedback: see page 75.
3 This is a matter that you may
like to debate with fellow
students, family or friends.
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3.5 Rights in IslamWe can only touch upon the complex history of rights in Islam in
this section. Our main concern will be to show that there is a
tradition of rights thinking that, in some ways, contrasts with that
which is prevalent in Western discourses. We will approach this
complex subject by looking at two declarations of Islamic Rights:
the Universal Declaration of Human Rights in Islam (1981) and the
1990 Cairo Declaration on Human Rights in Islam. Although
neither of these documents lays down binding rules and principles,
they are useful as a statement of the role that rights play in Islam.
3.5.1 The Universal Islamic Declaration ofHuman Rights
The UIDHR was drawn up by a private organisation, the Islamic
Council of Europe, and is not, therefore, an intergovernmental
document. However, it was granted credible international status
by UNESCO in 1981 (Brems, 2001, p.253).
The foreword to the Universal Declaration of Human Rights in
Islam reads as follows:
This is a declaration for mankind, a guidance and instruction to those
who fear God. (Al Quran, Al-Imran 3:138)
Foreword
Islam gave to mankind an ideal code of human rights fourteen
centuries ago. These rights aim at conferring honour and dignity on
mankind and eliminating exploitation, oppression and injustice.
Human rights in Islam are firmly rooted in the belief that God, and
God alone, is the Law Giver and the Source of all human rights. Dueto their Divine origin, no ruler, government, assembly or authority
can curtail or violate in any way the human rights conferred by God,
nor can they be surrendered.
Human rights in Islam are an integral part of the overall Islamic order
and it is obligatory on all Muslim governments and organs of society
to implement them in letter and in spirit within the framework of that
order.
It is unfortunate that human rights are being trampled upon with
impunity in many countries of the world, including some Muslim
countries. Such violations are a matter of serious concern and are
arousing the conscience of more and more people throughout the
world.
A number of points can be made. Unlike the UDHR, the Universal
Islamic Declaration of Human Rightsisbased on sacred sources:
the Quran and the Sunna. These are the foundation of rights in
Islam. Muslim scholars, jurists and representatives of Islamic
movements and thought compiled the Declaration.
The fact that the Quran and the Sunna are seen as the source of
rights means that, for Islam, an ideal code of human rights existed
fourteen centuries ago. This claim differs from the arguments
made for the roots of Western rights. Although in some senses an
inheritance of Judeo-Christianity and Greek and Roman thought,Western rights are perhaps more properly traced to the
Enlightenment, and to the great statements of the rights of man in
the American and French revolutions.
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That rights in Islam emanate from a divine source means that rights
are binding on both individuals and governments. In this sense,
there is no great difference between rights in Islam and the West;
Islamic rights are aimed at conferring honour and dignity on
mankind and eliminating exploitation, oppression and injustice.
This also means that there is a similar sense in which rights limit
government and lay down normative standards. However, the
essential difference can perhaps be glimpsed in the followingparagraph:
Human rights in Islam are an integral part of the overall Islamic order
and it is obligatory on all Muslim governments and organs of society
to implement them in letter and in spirit within the framework of that
order.
As an international religious order, Islam has its own norms and
principles. Although there may be profound disagreements over the
precise terms of these religious norms, the international community
of Islam has an identity that is separate and distinct from other
faith communities. As such, an Islamic statement of rights must
always make a distinction between Muslims and non-Muslims. Thishas raised some complicated issues. Are Islamic rights universal? To
the extent that they only apply to Muslims, Islamic rights are not
universal. A variation on this argument would also assert that
universal human rights are only possible if the concept of
universalism takes cognisance of Islamic particularism (see below).
A different argument would assert that as non-Muslims can convert
to Islam, Islamic human rights are, at least potentially, capable of
universality.
It is possible to be more precise about the foundation of rights in
Islam:
It is a commonplace that Islamicfiqh or jurisprudence does not
specifically go into the notion of rights. Rather, rights are derived
from the central tenets of faith: Allahs revelation to the Prophet in
the Holy Quran. To create a coherent statement of rights would mean
drawing together the diverse statements found in the usul
(fundamental books) of thefiqh. (Al-Atiyyah, p.89)
A classification that can be imposed from the perspective of the
holder of the right gives a basic distinction between the rights of
Allah and the rights of the human being. This founding distinction
would then allow two subsequent hybrid or mutual rights, or
rights where a right of Allah and a human right are conjoined, to be
distinguished: rights such as the protection of life, health and
liberty, and the protection of wealth are conjoined rights because
they concern both the honouring and protection of the gifts that
Allah has given, and the human concern with these rights. In the
cases where Allahs right is predominant, the subject has no right to
jeopardise this right: thus, one does not have the right to commit
suicide, as life is a gift given by Allah. Those pre-eminent rights of
Allah are calledAllah rights, and it might be argued that all
rights are founded in them. Rights thus begin in those acts of
worship that are obligatory for a Muslim:Al-salat (prayers) andAl-
sawm (fasting) (Al-Atiyyah, p.104); but also social duties that are
undertaken to preserve society and to protect the weak anddisabled. It is possible to work from the individual as a rights
holder to the notion that rights connect with social interests (Al-
Atiyyah, p.106) by arguing that the harm caused by the abuse of an
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individual right is suffered by the social group as a whole
(Al-Atiyyah, p.106).
The sacred source of rights in Islam allows for an interesting
variation on an argument about rights that has already been
encountered in this chapter. It has been suggested that alternative
rights and traditions tend to stress the group over the individual.
For instance, the Singapore School see rights as part of a broadertheory of organic community, where the interests of the individual
are subordinate to those of good government and a stable, ordered
society. Islamic rights, in making a distinction between the rights of
Allah and human rights, entail a similar conclusion. If the rights of
Allah are co-ordinated with the preservation of Islamic faith as a
whole, and with the observance of certain religious and social
duties, then the rights of the individual will be secondary to
measures that are meant to either further Islamic faith or to protect
the state.
We will examine these themes in another important statement of
Islamic rights, the Cairo Declaration.
3.5.2 The Cairo Declaration on Human Rightsin Islam
As pointed out above, Islamic claims to human rights do not
operate in the same way as the UN system or even other regional
systems. There is no international, over-arching body that
supervises or protects Islamic rights. However, as we have seen,
there are declarations of Islamic human rights. In reviewing these
rights, we will return to a number of concerns outlined above. The
distinction between universalism and cultural relativism is only of
some use in understanding non-Western rights arguments. Perhapsof more importance is the affirmation of the political and cultural
differences that underlie these arguments. This is linked to the next
point. Islamic particularism is associated with arguments about the
centrality of Shariah law. Certain provisions of Shariah are in
opposition to rights in the UDHR. This could be understood as both
a clash between different traditions and an assertion of Shariah
law as a symbol of political identity.
We will now look in detail at the Cairo Declaration on Human
Rights in Islam. The Declaration contains 25 articles. Article 1
affirms that all human beings form one family whose members are
united by submission to God and descent from Adam and are thusequal in dignity, and the obligations they owe to others.
Commentators have drawn particular attention to this section of
the Declaration (Tan, 1997, p.112). Islamic human rights are based
not on the being of the individual, but on a foundation of religious
faith: the status of the person as Gods vicegerent in this world.
Rights are acknowledged in Islam as measures that allow the
individual Muslim to better serve Allah. As we have seen in
Jamaluddin Al-Atiyyahs argument, this then allows an argument
that posits a society in which the individual has duties towards
others. Tan then stresses the importance of the Shariah. Thus, it is
possible to appreciate the coherence of this articulation of rightsand the centrality of Shariah law to its realisation. We will return to
this argument below.
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The Declaration goes on to state a right to life (Article 2); various
rights in times of conflict (Article 3); rights which protect good
honour and burial rights after death (Article 4); marriage rights
(Article 5); womens rights (Article 6); childrens rights (Article 7).
The Declaration goes on to state that the human being has a right
to legal capacity (Article 8); a right to education and religious
instruction (Article 9); a right not to be forcibly converted to a
religion through poverty or ignorance (Article 10). Article 11 isinteresting as it reflects the fact that many nations who are
signatories to the Declaration were, earlier in their history,
colonised territories:
Article 11
(a) Human beings are born free, and no one has the right to enslave,
humiliate, oppress or exploit them, and there can be no subjugation
but to God the Most-High.
(b) Colonialism of all types being one of the most evil forms of
enslavement is totally prohibited. Peoples suffering from colonialism
have the full right to freedom and self-determination. It is the duty of
all States and peoples to support the struggle of colonised peoples for
the liquidation of all forms of colonialism and occupation, and all
States and peoples have the right to preserve their independent
identity and exercise control over their wealth and natural resources.
Further rights detailed are: a right to work (Article 13); to
legitimate gains and a prohibition of usury (Article 14); to property
(Article 15); to enjoy the fruits of his scientific, literary, artistic or
technical production and the right to protect the moral and
material interests stemming therefrom (Article 16); the right to a
clean environment and to social and medical care (Article 17); a
right to security and privacy (Article 18); equality before the law
and due process (Arts. 19 and 20); a prohibition on hostage taking
(Article 21) and free expression (Article 22); a right to participate
in public affairs (Article 23). But note:
Article 24
All the rights and freedoms stipulated in this Declaration are subject
to the Islamic Shariah.
Article 25
The Islamic Shariah is the only source of reference for the
explanation or clarification to any of the Articles of this Declaration.
3.5.3 How can we assess the CairoDeclaration?
The following extract gives us a sense of the extent to which the
Cairo Declaration is coherent with the UDHR:
Observing each and every right stipulated in both declarations, it is
found that almost every essential right is shared, even though they
must be seen with their different perspectives respectively.
However, the right to freedom of peaceful assembly and association,
which is in Article 20 of UDHR, is not embodied in the Cairo
Declaration. And conversely, the specific exclusion of usury (riba) in
the Cairo Declaration does not have place in the UDHR.
These arguments relate back to the assertion of Islamic
particularism. Can we link this to the centrality of the Shariah?Shariah is a system of civil and criminal law; but it is also, more
broadly, a code for living. It is founded on the Quran, the Sunna
and the work of Muslim scholars in the first two centuries of Islam.
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Although Shariah law addresses Muslims, its rules can also apply to
non-Muslims.
What are the consequences?
None of the Articles of the CDHRI are in themselves discriminatory
[But] the entire declaration has to be interpreted in the light of the
Shariah, and can be restricted on the basis of the Shariah, there are
no restrictions on the Shariah rules that discriminate against women.(Brems, 2001,p.264)
Certain areas can be highlighted:
Choice of a husband: Most schools of Islamic law do not allow a
woman to marry without the consent of a male guardian, who has
the right to determine the suitability of the husband. In most cases,
the consent of the woman herself is necessary, yet sometimes it is
accepted that the guardian can force a girl into marriage.
Polygamy: Authorised by the Koran, yet limited to four wives. It is
accepted in most Muslim countries.
Authority of the husband: The Shariah establishes the
authority of the husband over his wife. Marriage is a contract with
asymmetric obligations. The husband owes his wife maintenance,
and the wife owes her husband sexual access and obedience. This
includes the right of the husband to chastise his wife if she is
disobedient. The wifes duty of obedience is enforced in most
contemporary Islamic legislation.
Divorce: In Islamic law is it easier for a man to obtain a divorce
than it is for a woman. A man can divorce his wife simply by
pronouncing a formula of repudiation, without having to establish a
particular ground for divorce. A woman can obtain a divorce only
though the intervention of a judge, before whom she must establish
one of a limited number of acceptable bases for divorce. Some
schools of law accept the possibility for a woman to stipulate her
right to divorce in a marriage contract.
Custody: In most interpretations, Shariah gives the right to
custody of small children to the divorced mother, under the
supervision of the divorced father. At a certain age, which varies
according to the school of law, the custody is transferred to the
father. In addition, when the mother remarries to another man, she
loses custody of her children, regardless of age. This arrangement is
the subject of criticism from the perspective of womens rights. Thefact that a woman whose children have reached a certain age is
certain to lose them in case of divorce, makes divorce an extremely
hard option, in those limited cases where the woman has access to
it. Moreover, the custodial consequences of divorce make the
(threat of) unilateral divorce a cruel weapon in the hands of the
husband.
Maintenance: In many interpretations of the Shariah , divorced
women do not enjoy a right to maintenance from their former
husbands beyond a three month period following the divorce.
Inheritance: In almost all cases, Islamic law prescribes that a
mans share of the inheritance is double that of a woman in thesame relation to the deceased. This is the case where children
inherit from their parents. Also, when a widow inherits from her
deceased husband, her share is half that which he would have
inherited had she died first.
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Testimony: Women are precluded from testifying in certain
criminal cases, such as those relating to adultery (which require
four male witnesses). In other cases, such as monetary transactions,
the testimony of two women has the same worth as that of one
man. These rules are applied today mostly in relation to personal
status law.
Womens freedom of movement/hijab:
Islamic scholars generally interpret the Shariah in such a way that
woman should stay at home as much as possible.the Quranic verses
regarding hijab (the veil) impose respect for certain vestimentary
rules. These include the obligation to wear loose clothes, and to cover
the head. Depending on the interpretation, these rules can be more or
less strict.Moreover, Islam does not allow a woman to travel on her
own. She must be accompanied by a man who is either her husband,
or from one of the categories that she cannot get married to, such as
an uncle or brother.Many scholars interpret the Shariah as
containing a prohibition on womens right to workand there is a
similar debate on womens access to public functions, including
positions of leadership. (Brems, 2001, p.254)The absence of a provision on freedom of religion is one of the most
remarkable features of the CDHRI. It puts a huge question mark
over any universal pretensions of the declaration.
In the traditional interpretation of the Shariah, there is freedom of
religion, in the sense that adherents of other monotheist religions
cannot be compelled to adopt Islam. Yet this is a one way freedom
because Muslims are not free to abandon Islam. Apostasy is a crime
for which Islamic law prescribes the death penalty for males and
imprisonment for females.
There are also civil consequences of apostasy:
...the apostate is not allowed to marry, and when a married person
becomes an apostate, the marriage is dissolved. Other rights that are
denied to the apostate are the exercise of custody over his children
and the right to inheritance. Also, the apostates rights to dispose of
his property are in abeyance and the legal effect of his acts are
suspended. (Brems, 2001, p.255)
Shariah criminal law distinguishes between different types of crime.
One of these is the set of crimes known as hadudcrimes. These are
six crimes that the Quran considers particularly serious and for
which a particular kind of punishment is prescribed, either in the
Quran or in another Shariah source, entailing the infliction of pain,
including, for example, theft amputation of a hand; adultery flagellation or stoning. Article 5 of the UDHR forbids punishments
that are cruel, inhuman or degrading, which suggests that there are
incompatibilities between the concept of rights in Islam, and under
the UDHR.
Activity 3.5
What are Islamic human rights?
Feedback: see page 75.
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3.6 The Bangkok Declaration: Asian human rightsThe Bangkok Declaration represents a statement of intellectual,
political and legal autonomy by a block of Asian nations. It is a
catalogue of rights that was presented to the World Conference on
Human Rights in 1993. Commentators were surprised by the
resistance to the idea of universal human rights, and the
affirmation of a set of Asian values. It is worth considering the
document in detail, to ascertain the precise terms of the Asian
disagreement with the concept of universal human rights.
The document begins by stressing that international human rights
remain of profound significance, but the direction that the
Declaration is to take is indicated by the assertion that it is
necessary to have a just and balanced approach to the precise
nature of rights, and by the reference to the inheritances of Asian
nations, which do not share the values of Western nations. The
Declaration stresses the:
...universality, objectivity and non-selectivity of all human rights andthe need to avoid the application of double standards in the
implementation of human rights and its politicisation.
How can we understand this argument? In what ways are there
double standards in the application of human rights? This may
mean that behind the claim to the impartial application of human
rights, there is, in fact, an implicit orientation towards the values of
powerful Western nations. Other statements in the Declaration give
a clearer sense of this objection. The overall position asserts the
importance of social and economic rights within the context of a
right to development, and a right to de-link aid and rights. The
Asian objection, then, can perhaps be seen as an objection to theway in which Western nations use a rhetoric of rights. Indeed, the
Declaration returns repeatedly to a reiteration of the value of
sovereignty:
...all countries, large and small, have the right to determine their
political systems, control and freely utilise their resources, and freely
pursue their economic, social and cultural development.
This is restated somewhat differently later on:
...the right to self-determination is applicable to peoples under alien
or colonial domination and foreign occupation, and should not be
used to undermine the territorial integrity, national sovereignty and
political independence of States.
The background of the Declaration is resistance to colonialism. It
could, in this sense, be related to the African Charter, which we will
examine in Chapter 15. This claim is made contemporary by
referring to the Palestinian situation:
...strongly affirm their support for the legitimate struggle of the
Palestinian people to restore their national and inalienable rights to
self-determination and independence, and demand an immediate end
to the grave violations of human rights in the Palestinian, Syrian
Golan and other occupied Arab territories including Jerusalem.
We risk a misreading of this document if we interpret it narrowlythrough an argument about universalism and cultural relativism.
This is a political claim that operates at a number of levels. Most
specifically, it appears to be a criticism of certain policies towards
the Palestinian situation. But this is not just a claim about
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sovereignty; it is an argument that different traditions have
different understandings of human rights:
...while human rights are universal in nature, they must be considered
in the context of a dynamic and evolving process of international
norm-setting, bearing in mind the significance of national and
regional particularities and various historical, cultural and religious
backgrounds.
To elaborate these claims, we have to take a step outside the
document, and refer to one of the major proponents of the Asian
rights case, the former PM of Singapore, Lee Kuan Yew. By
referring to Lee and the Singapore School that is associated with
his name, we do not suggest that they speak for the entire region;
nevertheless, it is one particularly interesting articulation of the
Asian case. Lee argues that a fundamental difference exists
between Western concepts of society and government and East
Asian concepts (quoted. in Sen, 1997, p. 34). This argument is
based on a privileging of society over the individual in the name of
economic and social development. It is a theme that has been
picked up by the present Prime Minister of Singapore, Goh ChokTong:
For success to continue, correct economic policies alone are not
enough. Equally important are the non-economic factors a sense of
community and nationhood, a disciplined and hardworking people,
strong moral values and family ties. The type of society determines
how we perform. It is not simply materialism and individual rewards
which drive Singapore forward. More important, it is the sense of
idealism and service born out of a feeling of social solidarity and
national identification. (Quoted in Mendes (1996, p.3))
In order to appreciate the diversity of Asian understandings of
human rights, it is necessary to look at Chinas elaboration of itsown understanding of the role that rights play in its history and
culture. Clearly, this is somewhat different from the Singapore
School. In 1991, theBeijing Review published a document that
attempted to elaborate a defence of human rights in China in the
wake of Tiananmen Square. Human Rights in China begins by
affirming a belief in the universality of human rights:
The issue of human rights has become one of great significance and
common concern in the world community. The series of declarations
and conventions adopted by the United Nations have won the support
and respect of many countries. The Chinese government has also
highly appraised the Universal Declaration of Human Rights,considering it the first international human rights document that has
laid the foundation for the practice of human rights in the world
arena. (Beijing Review, 1991).
In this respect Human Rights in China is similar to the Bangkok
Declaration. Once again, it is worth stressing that these alternative
statements of human rights, are not concerned with a complete
revision of the idea of human rights. What is important is a
realisation of context:
However, the evolution of the situation in regard to human rights is
circumscribed by the historical, social, economic and cultural
conditions of various nations, and involves a process of historicaldevelopment. Owing to tremendous differences in historical
background, social system, cultural tradition and economic
development, countries differ in their understanding and practice of
human rights. From their different situations, they have taken
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different attitudes towards the relevant UN conventions. Despite its
international aspect, the issue of human rights falls by and large
within the sovereignty of each country. Therefore, a countrys human
rights situation should not be judged in total disregard of its history
and national conditions, nor can it be evaluated according to a
preconceived model or the conditions of another country or region.
Such is the practical attitude, the attitude of seeking truth from facts.
(ibid.)
This resonates with another theme in the Bangkok Declaration:
sovereignty is linked to the specific development of a culture.
Universal rights claims take second place to the assertion of a
social, economic and cultural specificity. What, then, is unique
about human rights in China?
From their own historical conditions, the realities of their own
country and their long practical experience, the Chinese people have
derived their own viewpoints on the human rights issue and
formulated relevant laws and policies. It is stipulated in the
Constitution of the Peoples Republic of China that all power in the
Peoples Republic of China belongs to the people. Chinese humanrights have three salient characteristics. First, extensiveness. It is not a
minority of the people or part of a class or social stratum but the
entire Chinese citizenry who constitute the subject enjoying human
rights. The human rights enjoyed by the Chinese citizenry encompass
an extensive scope, including not only survival, personal and political
rights, but also economic, cultural and social rights. The state pays
full attention to safeguarding both individual and collective rights.
Second, equality. China has adopted the socialist system after
abolishing the system of exploitation and eliminating the exploiting
classes. The Chinese citizenry enjoys all civic rights equally
irrespective of the money and property status as well as of nationality,
race, sex, occupation, family background, religion, level of education
and duration of residence. Third, authenticity. The state provides
guarantees in terms of system, laws and material means for the
realisation of human rights. The various civic rights prescribed in the
Constitution and other state laws are in accord with what people
enjoy in real life. Chinas human rights legislation and policies are
endorsed and supported by the people of all nationalities and social
strata and by all the political parties, social organisations and all
walks of life (ibid.)
Self-reflection
What are the main themes of this passage?
It reflects Chinas Communist politics, but what sort of values does it represent?
Activity 3.6
To describe Asian articulations of human rights as relativist is only partially
helpful in understanding the tensions in international human rights law; they
have to be seen as political responses to specific situations.
Discuss.
Feedback: see page 75.
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3.7 Rights and social transformation
Marxism and related accounts
Historically the most important critical account of human rights is
that provided by Marxism. The socialist revolutions of the 1900s in
Europe and Asia, and those that took place after 1945 in Africa and
other parts of the developing world, meant that one could refer to
socialist legality as a world legal tradition. This tended to be
hostile to the notion of human rights, seeing it as linked to Western
capitalism. Rights were understood as essential to the operation of
a capitalist mode of production. With the fall of the Berlin Wall in
1989, the collapse of the Soviet Union and the democratic
revolutions of the late 1980s and early 1990s, the Marxist account
of human rights seems to have been overtaken by events and
become obsolete. However, in more recent years, opposition to
capitalism and to globalisation has again sought inspiration from
Marxs work in understanding the workings of the world economy,
and the possibility of alternative social and economic orders.
The radical and transformationalaccounts of rights covered in thissection are not all necessarily Marxist, nor do they even draw their
inspiration from Marxism. They perhaps share a concern with the
centrality of material history in providing the foundations for an
account of human rights but, once again, this is not necessarily
drawn from Marx or the socialist tradition. In contrast to the
accounts discussed above, transformational accounts of rights seek
neither to preserve a faith, to further the hegemony of capitalist
modes of production nor to offer apologia for social orders that
claim to be socialist or communist. They could be linked to the
struggle against colonialism and the need to create a just
international economic order. Accounts of rights that stress thetransformational potential of rights could also be linked to
feminism and ongoing international campaigns for a more just
world order. Radical accounts of rights are thus perhaps linked to
the Utopian promise of human rights and a refusal to settle for
existing social and political orders.
The ideas of Issa Shivji
Issa Shivjis work is dedicated to an ideological and theoretical
break with the dominant discourse of human rights (1989, p.71).
Shivji points out that rights arguments are frequently used to
legitimise regimes of aid and development that also effectively propup undemocratic and unaccountable regimes. What is necessary is a
more thorough probing of the historical and philosophical roots of
the notion of rights, and an awareness of the limitations of the
debate to date. Within the dominant discourse, this tends to be
presented as a conflict between natural law and positivism. This is,
of course, a well-rehearsed debate. The older, natural law tradition
stresses that rights are an essential and immutable aspect of being
human: our humanity is what makes us a bearer of rights.
Positivism sees the source of rights as the law. From the perspective
of Soviet jurists, both positivism and natural law are critiqued as
forms of ideology. Soviet rights theory tends to stress that rights are
no more than those positive entitlements that a socialist state
grants to its citizens. Talk of rights stemming from innate humanity
are thus as nonsensical as expecting a positive catalogue of rights
drawn up by a capitalist state to offer anything more than a
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legitimisation of a class position. What lies within this debate is also
a disagreement over the status of the subject or the holder of rights,
and the role of the state in the protection of rights.
Shivji argues that the debate about the universal or relative nature
of rights needs to be re-assessed by a historical account of the part
played by the discourse of rights in colonialism and
postcolonialism. Thus, a correct approach to human rights in Africa,for example, must begin by acknowledging that the prevailing
accounts of rights abstract from social history (Shivji (1989, p.43))
and produce a version of rights that thus appear eternal in
historical time and universal in social space. From a revolutionary
perspective rights are grasped as part of a struggle for
transformation (Shivji (1989, p.44)) they are not constant
reference points that remain fixed for all time. Rights can both
legitimise social order and act as a mode of resistance or
reinvention of social order. Moreover, if you lose sight of the role
that rights play in the emancipation of oppressed peoples, you fall
into the trap of seeing those people merely as victims of rights
violations, rather than as historical actors (Shivji (1989, p.51)).
Perhaps most importantly, to see rights as ideology is to see within
catalogues of rights not definitive statements, but the potential for
disagreement. For example, although the UNDHR privileges the
right to private property and does not mention a right to self-
determination, it can be used as a tool to make legal arguments
that empower oppressed groups.
Feminist accounts
If Shivjis work can be seen as drawing on the great Marxist
Utopian tradition, then any account of human rights that excluded
feminism would ignore the other key ideology that makes for socialtransformation. Feminist accounts of rights are diverse. To do the
subject justice, we would have to look at non-Western as well as
Western versions of feminism. There is, for instance, a growing
body of work by Islamic feminists. However, limitations of space
mean that we must examine feminist accounts of rights by looking
at some generic themes, and considering the work done within
what could broadly be termed a Western tradition.
Feminists have argued that the great statements of rights were
blind to the issue of gender. Indeed, the era of the Rights of Man
clearly excluded women: in many Western societies women were
excluded from the right to vote and had limited property rightsuntil relatively recently. Even the UN Declaration did not explicitly
acknowledge that certain human rights abuses were directed at
women rather than men. Perhaps the recent history of human
rights is an account of how human rights law adapted itself to
protect women as well as men.
A feminist account of rights has to consider the way in which
women have been marginalised in human rights law. As feminism
is an ideology and a practice aimed at the transformation of the
social world, it must be critical of how human rights law preserves
male privilege and dominance. For example, the UN reports that
the majority of the 1.5 billion people living on $1 a day or less arewomen. Furthermore, the gap between women and men caught in
the cycle of poverty has continued to widen in the past decade, a
phenomenon commonly referred to as the feminisation of poverty.
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Worldwide, women on average earn slightly above 50 per cent of
what men earn. Privatisation tends to lead to reductions in public
expenditure, which can push the costs of welfare onto the family
where, for the most part, women have to make up the deficit with
their own unpaid domestic work. Furthermore, women are often
denied access to resources such as credit, land and inheritance.
Their health care and nutritional needs are not given priority, and
they lack sufficient access to education and support services. Asthere is a cultural tendency to see women as linked to the home
and to the private sphere, their participation in public decision-
making is minimal. Women also suffer disproportionately from
domestic violence and trafficking for the purposes of sex.
Feminist theory has attempted to account for this patterned nature
of the oppression of women in different ways.
Feminism presents the liberal state as based on a pretence of
gender equality. Laws objectivity, its norms and categories, are
male standards that effectively enshrine female sexual oppression
and render it invisible as it does not conform with the male
construction of social reality. At the centre of this web of oppression
the state ensures the rule of law that, despite its claim to neutrality,
both institutionalises the power of men over women and
institutionalises power in its male form (MacKinnon, 1989, p.238).
Feminism thus rejects any legitimisation of the law through either
legal or political theory. However, this form of feminist thought has
been criticised as essentialist and reductive. It seems to suggest that
if the law and the state only ever serve male interests, rights could
never empower women. Indeed, Drucilla Cornells theory of the law
and state is an explicit critique of MacKinnon. It is also an attempt
to move the analysis on from the whole-scale condemnation of law
to legal strategies that make use of rights arguments to combat theoppression of women.
At the core of Cornells case is an affirmation of equivalent rights
which would not assimilate women to mens standards, but
effectively enfranchise female realities. It is here that Cornells work
acknowledges a debt to Luce Irigaray. Irigarays argument is a
demand for a legal statement of female identity. This right would
allow for the right to virginity, a right to motherhood and the
enshrining of the obligations of mothers-children (children to their
mothers) in civil law (Irigaray, 1993, p.86). Also contained in this
statement of rights are various strictures that prevent the
penalisation of celibacy and a call for the equal representation ofmens and womens interests in all forms of cultural exchange and
political and religious representation. These rights would move
away from merely attaching criminal sanctions to crimes against
women, and would resemble the great Enlightenment claims made
for the rights of man.
Obviously there have been advances in the protection of the rights
of women, but a great deal remains to be done. Feminist accounts
of rights thus remain a major inspiration for those who seek to
realise the good society that protects the rights of all its citizens
equally.
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Activity 3.7
What can feminist accounts add to an understanding of human rights?
Feedback: see page 76.
3.8 Towards a conclusion: relativism, universalismand the politics of exclusionIn this chapter we have suggested that the relativismv universalism
debate may be something of a distraction when it comes to
understanding the pressing, contemporary problems of human
rights. The issue, as outlined by the UN, is perhaps more properly
understood as the exclusion of certain types of people from a
definition of rights that is now sensitive to the problems inherent in
the universalism of rights claims.
The contemporary defence of human rights brings together
universalism with a sensitivity to diversity and cultural specificity.
The following passage comes from the Report of the UN
Commissioner for Human Rights issued at the Vienna Conference of
June 1993. As such it represents a principled and sophisticated
defence of the Vienna Declaration and Programme of Action that
re-affirmed the universality of the UDHR. Recognising that the
significance of national and regional particularities, as well as
various historical, cultural and religious backgrounds, must be
borne in mind, the Report stressed that it is the duty of States,
regardless of their political, economic and cultural systems, to
promote and protect all human rights and fundamental freedoms.
From one perspective, the universalism of human rights is
indisputable, as it is based on a positive and universal instrument:
the UDHR. However, that the 1993 Conference could acknowledge
that the universal ratification of all the relevant international
instruments had still not yet been achieved suggests that, despite
the UDHR and the associated documents, it is still not possible to
speak of the universalism of human rights as a political reality. For
instance, in 1993 nearly one-third of countries had not signed up to
the International Covenant on Economic, Social and Cultural
Rights, and the International Covenant on Civil and Political Rights.
Furthermore, over 40 countries had refused to ratify the
International Convention on the Elimination of All Forms of Racial
Discrimination and nearly half of the member states of the United
Nations were not parties to the Convention that prohibits torture.
However, the Vienna Declaration shows that there can be an
account of human rights that is both universal and sensitive to the
arguments made by the so-called relativists. For instance, the claim
to a right to sustainable development, paradigmatic of a right that
privileges the economic conditions of the developing world, can be
incorporated into a broad vision of human rights:
Without sustainable development strategies to provide an adequatestandard of living for all people and without democratic structures in
place through which people can actively participate in the civic life of
their communities, human rights cannot be fully realised. At the same
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time, respect for and observance of human rights is a precondition of
sustainable development and democracy.
Perhaps a debate on human rights that focuses on universalism and
diversity, then, is somewhat outdated. Relativism is not
irreconcilable with a broad account of human rights. It would be
more useful to ask questions about the political motivation of
nations that refuse to sign up to the relevant treaties. This cannot
be entirely accounted for, or defended, at the level of cultural
difference. It may, for instance, have much more to do with
sustaining an existing political culture. This concern could be linked
with an examination of those areas where human rights protection
remains weak, for example, the prohibition of racial discrimination:
Examples of genocide originating in racial and ethnic tensions, waves
of refugees and internally displaced persons following ethnic
cleansing or similar practices have all taken place since the World
Conference on Human Rights. The rise in xenophobic and racially
motivated acts of violence continues to plague people in all parts of
the globe.
Another area where the failure to protect human rights raises
serious issues is in the area of womens rights. Womens rights are
universal rights. The World Conference on Human Rights
recognised the human rights of women and girls as an inalienable,
integral and indivisible part of universal human rights (Vienna
Declaration and Programme of Action, Section I, para. 18 and
Section II, paras. 3644), and called on governments and the
United Nations to recognise their implementation as a priority task.
In 1995, the Fourth World Conference on Women held in Beijing
reaffirmed these recommendations. However:
Despite such examples of progress, women continue to be
disproportionately subjected to violations of human rights. From
domestic violence to brutalisation in war, from harmful traditional
practices to outright female infanticide, the status quo remains
intolerable. Unequal access and discrimination in the allocation of
economic and social resources results in the direct denial of women's
economic, social and cultural rights. Those with specific needs are
subject to further marginalisation due to such barriers as race,
language, ethnicity, culture, religion, disability, class or status.
Women are often deprived of access to paid work, which is crucial to
achieving self-reliance and improving living conditions of their
families. Gender violence and discrimination against women must no
longer be tolerated in silence or go unpunished. To continue this
degrades not only women but also all of humankind.
It is interesting that the failure to protect womens rights is linked
to a similar failure to protect childrens rights. Admittedly, the
Convention on the Rights of the Child had, by 1995, reached quasi-
universal status and prompted legal reforms in many areas of
childrens welfare, including the sexual exploitation of children, the
prohibition of practices that harm the girl child, the status of
children as refugees and the status of children after divorce.
However, despite these changes:
Millions of victims of human rights violations are children. Although
the importance of protecting children is a matter of global consensus,
children continue to be the most vulnerable sect
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