by Jeremy Waldron
Pace International Law Review
11 Pace Int'l L. Rev. 129
Pace International Law Review
11 Pace Int'l L. Rev. 129
WHAT IS A HUMAN RIGHT? UNIVERSALS AND THE CHALLENGE OF CULTURAL RELATIVISM
Columbia Law School
In the controversy about universal human rights versus relativism, there are three strategies that the defenders of human rights resort to. Two of those strategies involve the use of examples. And, just so that you can keep count, I am going to talk about three strategies, two with examples, and then I will follow them with two points. So there are going to be five things altogether and then I will stop.
In the first, when we are defending universal human rights, what we try to do is identify a form of oppression which horrifies everyone, or which we have reason to expect would horrify any body from any social or cultural background.
Torture, particularly in its most extreme forms, is a fine ex ample. The example of torture works well for this purpose be cause, although we are aware that torture remains common practice in many societies and many cultures, we also know that it terrorizes those who suffer it or hear about it even in the cultures where it is common. That is the way it is intended by its perpetrators, as a form of terror.
It is not hard, therefore, to argue from the standard and predictable abhorrence of torture in every culture to its condem nation as a universal moral evil. Everyone fears torture. Every authorizer of torture expects and hopes to be feared by victims and potential victims in a society. So no one is going to accuse opponents of torture of applying their own peculiar or parochial sentiments to societies in which those sentiments are not widely shared.
Moreover, although moral and political arguments, or phil osophical arguments, are imaginable in which torture might be justified, for example, the hypothetical terrorist who planted the nuclear device in Paris, the pragmatic reasoning that is used in those examples is familiar in all societies, and the de fects in that reasoning and the arguments for resisting that rea soning - arguments set out best, I think, by Henry Shue in an article on philosophy and public affairs in 1978 - are also well- [*130] known and intelligible to lawyers, politicians, activists, and or dinary citizens of every creed and culture and every ethical and political tradition. That is a first sort of example.
The second sort of example is intended to be equally horri fying but addresses a slightly different problem. Here I will use the same example as some of my other panelists have used, the example of female genital mutilation.
Unlike torture, female genital mutilation is not usually cited as a practice that is universally abhorred, but rather as a practice that is part of the cultural tradition of certain societies, but which is nevertheless abhorred - and, according to the ar gument, rightly abhorred - by people viewing those societies or cultures from the outside. It may also be abhorred by some in side, but that is a separately important point.
Unlike the case of torture, the example of female genital mutilation is supposed to address the relativists on their own ground. It accepts the relativist anthropological point that moral ideas and conceptions of decent treatment vary from soci ety to society, but this particular cultural practice so offends us in civility that the example invites us to condemn the practice, notwithstanding its establishment in a culture.
The example, therefore, is supposed to help stiffen the con fidence of people like us in our ability to criticize "funny" foreign practices abroad, and stiffen our confidence in the legitimacy of human rights ideals even in the face of relativist objections. It invites us to trust our intuitions that certain practices are vile, even though we know that there are people, or whole societies, that regard those practices as morally acceptable, or even right. Most of us, therefore, as Professor Rosenfeld said, have an easy time saying, "Yes, this is a practice that ought to be stopped, even though we know that it is a practice."
The third strategy is more philosophical than the other two. It is more than the simple production of an example together with an appeal to the audience's intuitions. The third strategy involves a philosophical argument about the abstract possibility of culturally transcendent and genuinely universal moral standards.
The third strategy seeks to, as it were, cut off at the philo sophical pass any general relativist attempt to discredit the in tuitions conjured up by examples of the kind I have just [*131] mentioned. Because, after all, it is not enough certainly to pro duce the intuitions; you have to kind of make them philosoph ically respectable, or at least defeat any philosophical case that is mounted against them.
So, you have a relativist who might say something like the following: "Look, of course the psychological intensity of your particular parochial abhorrence of things like torture or clito ridectomy will lead you to project those sentiments even beyond the bounds of the culture that nurtured them." "But you've got to understand," the relativist goes on, " that that is a mistake. Social, moral, or ethical standards are not just culturally rooted; they are culture bound, and any attempt to apply them beyond the culture of their provenance is simply incoherent." That is what the relativist will say.
The universalist's third strategy is to discredit that as phi losophy. The universalist will respond: "There is nothing about the way in which moral judgments are formed or generated or nurtured which necessarily restricts the range of their applica tion. Just as penicillin kills bacteria in Asia, even though it was discovered in Scotland, so the categorical imperative might ex plain why it is wrong for one African to tell lies to another Afri can, even though the categorical imperative was first theorized in Prussia."
Of course, the philosopher will concede that various moral arguments - indeed, various judgments and other objective wrongs as well - may have presuppositions that are not satis fied in every social or cultural setting. For example, in econom ics, the claim that a lowering of unemployment tends to raise the rate of inflation may be known to hold only in societies where there is something like a labor market; it may not hold in cases where the level of productive employment depends on, say, traditional responses to cycles of drought and fertility.
Similarly, the political or legal claim that people have a right to trial by jury may make sense only in a society which has a certain sort of organized system of criminal procedure.
Also - and these are just trivial examples - in a slightly different way, statements like "adultery is wrong" or "theft is wrong" may make implicit reference to the particular property and matrimonial arrangements of a particular society, and you [*132] cannot know what counts as theft until you have become ac quainted with the local rules. That can all be conceded.
But that sort of relativity, which is respectable relativity, of norms to social presuppositions, or of norms to institutional set tlements, has to be established case by case; that is, norm by norm. It cannot form the foundation for a general relativism of norms to societies or cultures. It certainly cannot be used to discredit our practice of morally evaluating the very institu tional settlements and the very social presuppositions which are themselves referred to in this more respectable form of relativism.
So, anyway, in the third strategy there are various argu ments along these lines, distinguishing between "reputable" forms of relativism and "disreputable" forms of relativism, and showing that any relativism that affects human right is reputa ble but that human rights is not affected by that.
Bernard Williams, for example, talks helpfully, in Ethics and the Limits of Philosophy, about something he calls "the rel ativism of distance." n1 He gives us a useful reminder that not all cultures or ways of life present themselves to us as members of a single choice set among which a trans-cultural evaluation could usefully guide us.
For example, the life of a samurai warrior is simply not available to me as a law professor in the United States at the end of the twentieth century, so that any ethical comparison of these two ways of life by me is purely notional. If I say, "Look, the way of life of an American law professor is morally superior to that of a samurai warrior," I come close to incoherence be cause the prescriptive implications of my statement are quite unclear, given that one of the things being compared is simply not an option to the person making the comparison. So that is respectable relativism, relativism of distance.
At the same time, Williams also argues, equally cogently, that knee-jerk cultural relativism of the sort that used to be es poused by philosophy students who had also taken courses in anthropology is, to use Williams's own words, 'possibly the most absurd view to have been advanced even in moral philosophy." n2
[*133] If actual pursuance to moral judgment is possible, if differ ent cultures and societies interact with and are in a position to learn from each other - and the overwhelming majority of soci eties are in this position, and always have been throughout his tory eager to study, evaluate, and if possible, appropriate the views of cultures of their neighbors or their enemies or their trading partners - if those conditions are satisfied, then there is nothing but absurdity in the claim that each society's stan dards are right by their own rights but cannot be extended be yond their boundary. That would be like the relativist trying, in a sort of strange way, to discredit human curiosity.
What the defender of human rights needs to do, then, is to show that the kinds of judgments that are made in the human rights industry do not fall under any of the respectable forms of relativism, and that any relativist critiques of human rights doctrine are of the second (disreputable) sort.
Now, it may be thought that of all the moral claims that we make - i.e., abortion is permissible - human rights claims sometimes come pretty close to the relativism of distance, to use Williams's phrase.
Consider again the example I used earlier, the example of female genital mutilation. It is probably unthinkable for a fem inist law professor or a political science professor in the United States to imagine herself adopting the life and culture of a Mus lim girl living in conditions of peasant subsistence in a sub- Saharan village. And so, there is something fatuous about the simple claim that the situation of the former is morally superior to that of the latter. The American professor simply does not face the choices that an evaluation of that kind appears to pre scriptively address.
And similarly, for the same reason, we simply do not bother to use human rights doctrine to condemn cannibalism or human sacrifice because we know that the ways of life of, say, Maori cannibal warriors or Mezo-American sacrifice cults are so dis tant from us in time and history that they are beyond the reach of the choices that any current evaluation of prescription could possibly hope to guide.
But, I guess, what I want to say about the female genital mutilation case is that it is not quite beyond the realm of cur rent choice in this way. On the one hand, there are things that [*134] we can do to influence what takes place in a country like Somalia, for example. Although there may not be a lot we can do, as this country learned to its cost some years ago. But there are choices that we have to make - or the people we know, like aide workers, have to make - that do involve a meaningful evaluation of the acceptability of the practice of female genital mutilation. Not least among these choices are our responses to asylum pleas from girls and young women seeking to escape this practice.
And, on the other hand - and this is a point that I think is important for what follows, and one should never forget this; and here I think I differ slightly from Professor Higgins and Professor Rosenfeld - as I understand it, female genital muti lation is not just intended by those who practice it as a sort of tribal mark or tattoo, like male circumcision in the Jewish world. The doctrine behind it, to the extent that there is a doc trine, is put forward as an implicit reproach to some of our views about women and about sexuality. It may not be a valid or a convincing reproach, it may be a reproach that we would like to take serious issue with, but there is certainly disagree ment, or competition, between the views about women and sex uality that these practices represent and the views about women and sexuality that are presupposed when we make our criticism of these practices - the point that Yael Tamir made in her article on clitoridectomy in the Boston Review of Books in November 1996. n3
And so, even if no one is proposing to extend the practice of female genital mutilation to the West, these opposing views simply cannot be treated relativistically. They have to be seen as confronting one another, each on the other's turf, and they cannot both be right, although they possibly may both be wrong. I want to return to this point in a minute.
Let me just reinforce, though, the anti-relativist position. Overall, I suspect that culture boundedness is the exception, not the rule, in ordinary human moral discourse. Most of the time when people state moral positions, they do so without ref erence, either implicit or explicit, to the boundaries of their cul ture. When we say, for example, "all humans are created equal" [*135] or "slavery is wrong," we do not intend at all to qualify or limit that with a cultural reference, "this is just what we happen to think around here." We intend the categorical and universal character of these utterances to be taken at face value and to be evaluated as such.
Well, the same applies to most of the moral or ethical views, including the disconcerting moral or ethical views we hear coming out of societies other than our own. They too are phrased categorically and universally, and they too intend that phrasing to be taken at face value, even when they know that their claims conflict with ours.
So when a Taliban activist or an Iranian cleric says some thing like, "Pornography is inherently degrading and any soci ety which tolerates it as a matter of principle is irredeemably corrupt," he intends that to apply to us every bit as much as we intend our high-minded structures about civil freedom to apply to him.
True, our first response may be to say that religiously based views like that have no place in public discourse, but that is something that he is likely to disagree with in the wake of this deprivitization of religion that Professor Rosenfeld mentioned. And, once his disagreement is expressed, we can no longer re gard our own tortured settlement of the boundaries between church and state as something which is privileged or self-evi dent. That settlement too is now under pressure and we must respond to that pressure intellectually the best way we can.
So this brings us to the final two points that I want to make, two points which I intend as the burden or moral of my remarks this afternoon.
The first is this: If we take the human rights norm and try to apply it to another cultural society and we find it resisted on the grounds of a contrary evaluation which is, let's suppose, typ ical of that other culture or society, then that contrary evalua tion should not be regarded simply as an objection to the universality of our claim. It will usually amount to an objection to the content of our claim, even on its home ground, even to the extent that we apply it comfortably among ourselves. That is, if we give up relativism, we've got to really give up relativism and accept that other cultures are offering implicit critiques of us as we are offering implicit critiques of them.
[*136] So, the pornography case I mentioned a moment ago is a clear example. Suppose we object to some interference with or dinary people's access to the Internet in Iran, and we do so on the grounds of the human right to free speech and freedom of communication. We say, "This censorship, this interference, is a violation of human rights." The Iranian authorities reply and justify their interference on the grounds that it is necessary to suppress the influence of pornography, which they have reason to believe, from our example, will be the most common use that people would make of the Internet if it were available.
We then say, in our swaggering arrogance as human rights theorists in the United States, that pornography is and ought to be protected under the principle of free speech which human rights documents enshrine.
Now, to this the Iranian clerics may make either of two re plies. If they are stupid, they will make a silly, relativist reply, saying, "Well, we organize our society differently from the way you organize your society." But they may make the following reasonable, although undoubtedly contestable, response and say what I imagined them saying a moment ago, "Pornography is inherently degrading and any society, including yours, which tolerates it as a matter of principle, let alone as a matter of human rights, is irredeemably corrupt."
Now, that is a response that addresses the content of our human rights claim, and we have to be able to answer it. The human rights claim now no longer stands privileged. We are back to debating about what its content should be. This is not a relativist objection to human rights universalism; this is a di rect objection to the corruption and decadence allegedly embod ied in our standard. And, if we cannot answer it, and answer it adequately, then we are not entitled to regard our toleration of pornography as valid even for us, let alone as a right standard to be inflicted on others.
My point, then, is that often the relativism thing works both ways. I do not think we are entitled to sanitize or fence off the Muslim response, say, to our toleration of pornography as nothing but relativist resistance to the universalization of our standard. It is much more important than that. Precisely be cause relativism is, for the most part, silly and misconceived as a philosophical position, any plausible resistance to the univer [*137] salization of our human rights doctrine can only be taken as a direct challenge as the substantive adoption, and it has to be addressed as substance.
My second, and final, point follows quite quickly. If we are going to strut around the world announcing human rights claims in universal terms, the only thing that can possibly enti tle us to do that is that we have carefully considered everything that might be relevant to the moral and ethical and political assessment of such claims.
It is not enough that we have considered what Kant said to Fichte or that we have considered what John Rawls said to Will Kymlicka. The price of universalist moral posturing is that we have to make a good-faith attempt to address whatever reserva tions and doubts and objections there are about our positions out there in the world, no matter what society or culture or reli gious tradition they come from.
In other words, if we are going to be universalists, we have to develop practices of moral and philosophical argument on the genuinely cosmopolitan scale. Apart from that enterprise and that discipline, we have no more right to be confident in the uni versal validity of our intuitions than we think our opponents ought to be in theirs.
Of course, that is a very, very, very difficult assignment, because such doubts and reservations and objections would often challenge, not just the content of our conclusions, but our whole frame of looking at the issues that we are addressing.
Let me finish. I am not a relativist, I am a cosmopolitan. I believe some human rights standards can be arrived at and ought to be upheld and enforced everywhere in the world; but, just because relativism holds in general, we are not entitled to assume the right to enforce whatever tentative conclusions hap pen to have emerged from our particular inbred set of debates about politics or welfare or free speech or autonomy. Until those debates are enriched in the cosmopolitan way, with an awareness of what is to be said about them and around them and against them from the variety of cultural, religious, and ethical perspectives that there are in the world, they remain pa rochial; and we stand accused of the stupidest, most arrogant form of moral imperialism if we wander around trying to impose [*138] our way of life without sensitively confronting the basis of other people's and other cultures' resistance to it.
Certainly, if we try to dismiss all such resistance as relativ ism, we will, I think, end up consigning human rights discourse to a rather unpleasant and morally impervious relativism of its own.
n1. See Bernard Arthur Williams, Ethics and the Limits of Philosophy 163 (1985).
n3. See Yael Tamir, Hands Off Clitoridectomy, Boston Review, Oct./Nov. 1996, at 21.
Prepared: February 2, 2001 - 5:02:29 PM
Edited and Updated, February 3, 2001
HOW TO ARGUE
FOR A UNIVERSAL CLAIM
by Jeremy Waldron
by Catherine Powell
by Tracy Higgens
by Linda Meyer