Universal Legitimacy of Human Rights: Taking Culture Seriously

Universal Legitimacy of Human Rights: Taking Culture Seriously
We are informed that wise rulers of the people hung a bell at their gate and so took
cognizance of the complaints of their subjects... Even the opinion of the grass and
firewood gatherers they inquired personally and used for their guidance the
object being to diffuse principles of Government and to invite remonstrances
Thus the sage Emperor and Illustrious Sovereign of antiquity possessed and did not
lose; they gained and did not destroy.

Nihongi, Book XXV, Early 8
th
Century AD
1

TABLE OF CONTENTS

Introduction - The Foundations of Universal Human Rights............................................................... 3

I. Because Where You Start Does Make a Difference..................................................................... 4
I.I The Parochial Creation Myth.................................................................................................... 4
I.II Defending Human Rights: Where, What, How?................................................................. 4
I.III Historical & Practical Limitations of the Parochial Creation Myth..................................... 5

II. A World Made New: A Universal Creation Myth....................................................................... 6
II.I Rooting Universal Human Rights in the UDHR................................................................... 6
II.II The Need for Internal Legitimacy......................................................................................... 6

III. Surmountable Difficulties: Taking Culture Seriously............................................................ 7

Conclusion - Home Game vs. Away Game.......................................................................................... 9

Footnotes............................................................................................................................................... 9


Laura L. Becking - May 26, 2005 2

Abstract:
This essay seeks to examine the issue of the theoretical roots of universal human rights, as
recognized in the form of the Universal Declaration of Human Rights (UDHR), and the challenge of
establishing their legitimacy in a manner in which they remain locally relevantnamely in cases
that are not well-publicized and in instances of systemic human rights abuses. The essay reviews the
most common explanations of the origins of human rights, called the parochial creation myth. It is
argued that these traditional accounts are too heavily rooted in historical Western European culture
to function as a foundation from which to legitimize universal human rights outside of these locales.
Instead, an alternative creation myth, which allows for cultural diversity is needed. This type of
creation myth allows and arguably requires universal human rights to be legitimized in multiple local
cultures. Although this approach poses challenges, examples of two studies and the work of a
national NGO show that these difficulties are surmountable. The essay concludes that universal
human rights are unlikely to have global impact unless they can be legitimized in the foundational
ideas, writings and language that represent various peoples specific cultures.


Introduction - The Foundations of Universal Human Rights

Today, when there is an extreme, and therefore media-attractive, infringement of human
rights, such as the sentencing of Amina Lawal to death by stoning in Nigeria,
2
the current
concepts of universal human rights can be activated by governments, international NGOs, and
organizations to rally people across the world and create a global moral outrage. These are,
arguably, the easy cases.
3
But what happens when an international campaign is over, or we
are not dealing with a well-publicized case, but with the stoning of men or systemic human
rights infringements, such as violence against women?
4
What do universal human rights
mean then, and how can they be relevant?
5

For the universal human rights, in the form of the Universal Declaration of Human Rights
(UDHR) and the related bodies of declarations and treaties, to be relevant to the day-to-day
lives of people across nations and cultures, their legitimacy, like that of any other body of law,
must be established. At this intra-state level, the legitimacy of universal human rights is
clearly not just a theoretical or academic problem. The onus, therefore, lies on those who
wish to establish the universality of human rights to ensure their legitimacy in a manner that
they remain relevant to people globally.
6
To this end, a foundation for universal human rights
which includes the diverse identities of peoples is necessary for functionality at local-level
implementation.

This essay starts with a brief overview of some of the most prevalent explanations of the
origins of human rightswhat is called the parochial creation myth. These explanations
are reviewed from the local level of human rights implementation and interpretation, as
opposed to the international level.
7
From this perspective, the main problem with the
traditional arguments is their roots in Western Europe and the U.S. of the 16
th
, 17
th
,

and 18
th

centuries. As such, they should be seen as local arguments for the legitimacy of universal
human rights, useful at local levels in Europe and perhaps in the U.S. When used as a
universal argument, however, they potentially threaten the legitimacy and functionality of
universal human rights at the local level outside of Europe and the U.S.

The second part of this essay looks at an alternative creation myth rooted in the UDHR. This
alternative creation myth avoids a parochial inception of human rights and fully allows for,
and arguably demands, a subsequent legitimization of universal human rights in multiple
cultures and times. Moving away from a limited historical view of the origin of human rights
creates the potential for them to fulfill their local role globally.

Finally, the ability of interdisciplinary studies and practice to take on this challenge of
legitimizing universal human rights in multiple cultures is briefly illustrated in the review of
two such studies and the work of one national NGO.


I. Because Where You Start Does Make a Difference

I.I The Parochial Creation Myth

Strong promoters, such as J ack Donnelly, of the universal nature of human rights as set out in
the UDHR, also often position these same human rights as historically particular, rooted in
one political tradition and one legal theoryas such, a continuum of the Western legal
system.
8
This is based on the argument that other cultures have not produced rights-based
legal theories or, to the extent that they have, these rights are not provided solely because one
is human.
9

Liberalism and human rights are seen as an answer to a set of technological and connected
societal changes that initially took place in Europe and resulted in the modern state.
Moreover, they are posited as the only effective mechanism to provide the protection that first
became necessary in such modern state.

From this analysis, the creation of human rights can be qualified as a social and political
choice, and a Rawlsian political conception of justice.
10
In this manner, human rights,
though starting uniquely in the West, are theoretically made accessible and open to many
cultures and people.

In another example of a related parochial creation myth, Thomas Franck provides an approach
that offers a slightly different foundation. He, too, sees human rights as a product of
technological changes occurring first in the West, but roots the development of human rights
in the subsequent empowerment of people brought on by these changes.
11
Francks argument
does not, however, lead as easily to Donnellys next step in the analysis, and leaves us equally
stuck with a geographically and culturally European basis for human rights.

Again, others have placed human rights more directly in the context of natural rights, with
human rights squarely rooted from Thomas of Aquinas, the European enlightenment, and on
through post-World War II Europe and the U.S.
12

The ability of these purely evolutionary representations of universal human rights to function
as a basis that will support the legitimacy of universal human rights is considered in I.III. To
this end, I.II briefly explores the functionality of human rights on the local level.

I.II Defending Human Rights: Where, What, How?

The implementation and interpretation of human rights can be seen as taking place on two
levels: (1) the international level of further development of international human rights
documents and enforcement mechanisms; and (2) the local level of individuals resisting
humanrights abuses, often in the form of abuses of power.
13

The ongoing dialogue and debate about international enforcement of human rights versus the
sovereignty of states and the name-and-shame actions by international NGOs, of course,
remain of import for the local-level implementation of human rights.
14
When the state system
completely fails to protect its citizens or, worse yet, attacks them, the international system
arguably has a duty to step in, and sometimes does so.
15
The different international bodies
that at times undertake varying levels of direct action and the often good work of international

NGOs notwithstanding, individuals will have to rely upon their own ability to implement and
interpret human rights on an ongoing basis within their society.

The local level of interpretation and implementation remains important because it is exactly
where the dialogue between status quo and change takes place. If universal human rights are
to play a constructive role in this ever-ongoing dialogue, a theory that allows their legitimacy
to be established at this diverse, local level is necessary. Like aid in general, international
humanitarian intervention is essential, but not the end all and be all if the ultimate goal is
sustainable empowerment of people across geography and time.

With a focus on this local level, the following section will briefly critique the parochial
creation myths.

I.III Historical & Practical Limitations of the Parochial Creation Myth

Historically, the parochial creation myth is problematic. The idea that the need for human
rights only arose in the modern economic state system, when reciprocal obligations between
people in feudal society came to an end,
16
seems rooted in inaccurate romanticism.
17
More
importantly, in any society where a reciprocal community structure is still strong, this
historical approach runs the risk of playing right into claims of cultural exceptionalism.

The rooting of human rights solely in liberalism can be questioned as historically biased,
where, for example, similar rights and duties appear to have existed in older and non-Western
societies.
18
The fact that such rights and duties were often restricted to certain persons seems
a rather weak objection given the inapplicability of numerous human rights to many people,
even in 1948.
19

Finally, although the foundation theories set out in Chapter I.I. create a certain space for other
cultures and traditions,
20
they remain representations of universal human rights as a
continuum of Western legal thought. This appears to be contrary to the legislative history of
the UDHR and the intent of its drafters.
21

Historical accuracy aside, it is important to keep in mind that this discussion, like most legal
discussionsand certainly those around legitimacyis also one of politics and day-to-day
life. For universal human rights to be effective in the realm of local interpretation and
implementation, the formation of political morality (i.e., the internal legitimacy of universal
human rights) has to take place locally.
22

By virtue of where the parochial creation myth for universal human rights is rooted namely,
Western liberalism it does not allow, or at best limits, the intrinsic legitimization of
universal human rights over culture and time. In this sense, it is not as inclusive as it
presumably aims to be.

A creation myth for universal human rights is needed that allows for the legitimization of
universal human rights in multiple cultures, thereby facilitating their role at the local level.
This type of creation myth avoids the risk of alienating those very people who are the
intended beneficiaries of human rights,
23
while offering intellectual tools of protection or
change that can be relevant and powerful within the contexts in which they are to be utilized.

24


In an attempt to address these historical and practical issues, an argument for placing the
inception of universal human rights in the UDHR itself is set out in Chapter III.

II. A World Made New:
25
A Universal Creation Myth

II.I Rooting Universal Human Rights in the UDHR

To evaluate the UDHR as a legitimate point of inception for human rights, an analysis of the
context in which the UDHR was created, its drafters intent, and the process of its
acceptancein other words, a review of the legislative historyis in order. A full review of
the legislative history of the UDHR would go beyond the scope of this essay. We are limited
here to determining whether there is sufficient basis to take the position that the UDHR was
intended to and can function as a starting point for universal human rights.

The immediate impetus to create the UDHR came primarily in response to a war that ravished
the world far beyond Europe and U.S., and in which inhuman acts were not limited to one
group of people or nation.
26
It was also being drafted at a time when colonialism was slowly
coming to an end and there was, among many (including the drafters), a keen understanding
of the unjust foundations of colonialism and racial segregation.
27

In this drafting process, there were certainly some who promoted the idea of rooting the
UDHR in one particular culture or philosophy, but in the end the drafters chose to be silent on
these matters.
28
The intent was to establish a standard based upon common convictions
rooted in diverse philosophical, political, and economic systems valid for all peoples and all
nations.
29

The legislative history of the UDHR shows a relatively open and deliberative process. In
addition to their own diversity, the members drew from the results of an unprecedented
process in which UNESCO gathered written comments on the concept and content of human
rights from 150 thinkers of various cultural backgrounds. The rights, freedoms, and duties
identified in this process served as a source for the drafters of the UDHR. Once the draft
document was completed, it went through a process of review and approvalfirst at the
Economic and Social Counsel, and then the General Assembly.

Every document is, of course, in some way limited by its drafters, process, and immediate
time and place, but a few documents manage to embody visions that surmount these
limitations and, as such, become living, breathing documents in which many generations of
people over time and space can recognize themselves.
30
Though the times and the people
were imperfect, the ultimate document produced in 1948 largely rose above these
imperfections.
31

Viewed from this perspective, the UDHR is not the static pinnacle of a long evolution from
Western feudalism but rather a living, breathing document at the foot of a world to be made
new many times over. Having drawn from many wells, it will have to make numerous trips
back to even more wells to earn and maintain universal legitimacy.

II.II The Need for Internal Legitimacy


The recognition within the UDHR of a broad diversity invites the continued search for overlapping
consensus, not just politically, but also morally.
32
As set out in the previous chapter, foundational
claims rooted in Western liberalism threaten to disturb the deliberate and necessary silence of the
UDHR.
33
However, this is only the case to the extent that such claims are made as universal
foundational claims, rather than as local foundational claims.

On the contrary, claims for internal legitimization of universal human rights within specific
cultures are a prerequisite to reducing human rights violations on the local level.
34
It is to this
end that an argument for universal human rights must take culture seriously.
35
On the local
level, where implementation and interpretation take place and affect real human beings,
internal legitimization facilitates the realization of UDHRs potential for empowerment. On
the international level, it allows for dialogue and informed and unbiased criticism, potentially
making the international fora more acceptable to, or at least less avoidable for, most states.
36

Human rights argued on the basis of Western liberalism may, therefore, be successful in
empowering disadvantaged people in, for example, Europe, or in motivating a Western
government to take particular positions in their international relations. The argument,
however, is then made in a locale where it is appropriatenamely, one where Western
liberalism is part of the culture at a particular time.
37

If the international human rights system intends to function universally, however, it must live
up to its claims of equality and freedom, and hence empowerment, on the inter-state, as well
as the intra-state, level. Therefore, in the next chapter, the potential for legitimizing universal
human rights in other cultures is reviewed.

III. Surmountable Difficulties: Taking Culture Seriously

As cultures are neither homogenous nor constant, the process of legitimizing human rights set
out in the previous section will have to be repeated many timesa constant reaffirmation of
universal human rights expressed in the UDHR. This raises fears that we will get lost
between and within changing cultures, leaving us with no universal human rights.
38
These
real challenges and risks do not, however, obviate the need to undertake the task, but simply
caution and guide those who must undertake it.
39
Cultures and the formal and informal legal
traditions that flow from them are intrinsically multivalent and, as such, safely allow for the
internal legitimization of universal human rights.
40
A very brief look at three efforts in this
direction might better illustrate the point.

Naim, for example, in his study of Sharia law in the context of the UDHR, shows that
Article 5 of the UDHR can be legitimate within Sharia. Sharia leaves room for
understanding a punishmentamputation, for exampleas cruel and inhuman and, more
importantly, disallowed under certain conditions relating to procedure and evidence.
41
In
several of his works on Confucianism, DeBary in turn establishes philosophical roots for the
freedom of speech and assembly and remonstration against rulers within the extensive history
of Confucian thought.
42
Finally, the NGO Boabab
43
addresses issues of local legitimacy by,
for example, asking their workshop participants to find 10 human rights principles in the
primary sources of their cultures and identify test cases within Nigeria.
44
Boabab has found
that this provides a sense of confirmation and pride that these universal human rights are not

abstractions on a foreign piece of paper, but rather living and effective values in each
womans own culture.

Naturally, the legitimacy of human rights has to be diligently reestablished in all cultures. For
this, one need only look today to the U.S., where currently the international order, including
elements of the universal human rights, is at times portrayed as contrary to U.S. culture and
foreign to the American way of life.
45

We certainly cannot simplify the world cultures into a bland consensus; there will be
diversity.
46
Nor can we pretend any group of people or individual is an island untouched by
outside influence. The process should therefore be an iterative one of public discussion
within and over time and place.
47
The presumption should be that once enabled, people will
successfully engage in this process within their communities and across societal boundaries.


Conclusion - Home Game vs. Away Game

The grounding of universal human rights in Western liberalism and economic development is
a good example of legitimization at the local level.
48
In short, it may be part of a strategy for
the home game, but not for the away game. Rooting universal human rights solely in Western
European history, however, poses a risk of local-level alienation outside of Europe that is not
imagined and should, perhaps today more than ever, be taken seriously.

Ultimately, when it comes to the local level of interpretation and implementation, universal
human rights will more often than not play a supporting role to the lead of local culture and its
associated laws. Universal human rights can, however, only successfully fulfill this role to
the extent their creation myth allows for legitimization in that local culture.

The civil rights movement in the U.S offers a poignant example of this. Though universal
human rights existed, this battle was ultimately fought and won based on the terms of the U.S.
historical writings and U.S. vernacular of freedom.
49
Even today, it is Dr. Martin Luther
King, J r.s I Have a Dream speech, with its many references to U.S. freedom, the
Constitution, and the Declaration of Independence, that every American child is familiar
withnot the UDHR. As much as the UDHR was co-authored by Eleanor Roosevelt whose
name is perhaps more familiar to Americans than that of many a president, the UDHR and the
subsequent treaties are still not legitimately American in the manner that the above
documents are.
50
As in any other country, universal human rights are unlikely to lend great
strength to any struggle in the U.S., unless they are perceived as legitimized in the
foundational writings, ideas, and language that represent the culture.

To respond adequately and effectively to destructive claims of cultural relativism and
exceptionalism,
51
entering the messy area of culture to legitimize universal human rights
cannot be avoided. This work, however, will remain handicapped unless we simultaneously
move away from a parochial creation myth and towards a multivalent inception point for
human rights.

Endnotes


EDUCATION

Degrees and Fellowships:
Leiden University, Asia Studies Department, Leiden September 1997 - J une 1998
Postgraduate fellowship economy, culture and language of J apan.

New York University School of Law, New York J anuary 1997
L.L.M.
Loeff Claeys Verbeke scholarship.

University of Amsterdam School of Law, Amsterdam August 1996
Masters in Law, cum laude
Scholarship: New York University School of Law School. 1994 - 1995

University of Amsterdam School of Law, Amsterdam August 1991
Propedeuse, cum laude.

Non-Degree Programs:
Columbia University, New York
2004 - present
Calculus I; Calculus III.

Harvard Business School, Executive Education, Massachusetts J une 2004
High Potentials Leadership Program .

New York University, New York 2003 - 2004
Macro-Economics.

United Nations University, Tokyo April - J une 2002
Seminar International Human Rights.

Temple University Law School, Tokyo 2001 - 2003
Internet Law; International Human Rights; Employment Discrimination Law.

University of San Diego School of Law, Mexico J une - August 1992
International Business Transactions; Mexican Law.

EXPERIENCE

Donahue & Partners LLP (Ernst & Young allied law firm), New York present
Partner Global Employment and Personal Data Privacy group.
Client partner: Avon, Cargill, Citigroup, Nortel Networks, Prudential, Wyeth.

Ernst & Young LLP, Tokyo 2001 - 2003
Senior Associate expatriated to develop international legal services practice in Asia region.

Ernst & Young LLP, New York 1998 - 2001
Associate expatriated to develop global employment law practice.

Bank of Tokyo-Mitsubishi, Tokyo 1998 -
1998
Secondee Project Finance Group.

Loeff Claeys Verbeke (Allen & Overy), Amsterdam 1997 - 1998
Associate Banking Group.

Dutch Notary Guild, Amsterdam 1994 - 1995
Translator, Dutch Notary Guilds Report for Berlin 1995 Notaries Congress.


ASSOCIATIONS

State Bar of New York admitted
New York State Bar Association, International Law and Privacy Co-Chair
New York Womens Bar Association mentor
International Association of Privacy Professionals New York Co-Chair

PRO-BONO

United Nations Global Compact, New York August 2004 J anuary 2005
Volunteer on governance project.

Foreign Women Lawyers Association, Tokyo 2001 - 2003
Co-Secretary.

Japan Civil Liberties Union, Tokyo 2001 - 2003
Member, assisted in translation of reports on privacy.

Minds Matter, New York 1999 - 2000
Mentor at risk students.

Conflict Panel, San Bernardino, California Summer 1994 & 1995
Intern, counsel criminal defense cases.

Lawyers for Children, New York 1994 - 1995
Volunteer, advising children in foster-care on their rights.

Stichting Rechtswinkel Migranten, Amsterdam 1990 - 1997
Legal advisor counseling immigrants.

LANGUAGES

English, Dutch: native speaker
Spanish, German: intermediate reading skills
J apanese, French: basic language skills



Laura is currently applying to several schools in the US to attend their master programs in public policy and
international affairs. Laura received her Masters in the Laws from both the University of Amsterdam (cum
laude) and New York University School of Law. She is admitted to the New York Bar. Laura is a member of
the International Human Rights Committee of the American Bar Association and the co-chair of the
International Privacy Law Committee of the New York State Bar Association.

Laura has worked as a volunteer for a wide range of human rights NGOs in the Netherlands, J apan and US,
focusing on issues, such as, childrens rights, immigration, privacy, and corporate social responsibility. Laura
is currently employed as a partner with Donahue & Partners LLP, a law firm in New York. She has worked as
an attorney in Europe, Asia the US, and currently heads up Donahue & Partners Global Employment and
Data Privacy practice. Her focus is on comparative legal work. The projects handled in her practice routinely
cover over 60 legal systems for a wide range of clients.

Laura provides continuing legal education seminars in the US on global labor and data privacy issues.

1
NIHONGI, CHRONICLES OF J APAN FROM THE EARLIEST TIMES TO A.D. 697, VOLUME II, 210-211 (W.G. Aston trans.,
Charles E. Tutle Company, J apan, 1998).
2
Ms Lawal was sentenced to death by stoning in March 2002. Her sentence triggered an extensive international human
rights campaign. Her conviction was reversed in September 2003.
3
It is noted that these types of international campaigns are not without detractors, see Note, Saving Amina Lawal:
Human Rights Symbolism and the Dangers of Colonialism, 117 HARV. L. REV. 2365 (2004) and Deborah Weissman,
The Human Rights Dilemma: Rethinking the Humanitarian Project, 35 Colum. Hum. Rts L. Rev. 259 (2004).
4
Telephone Interview with Chibogu Obinwa Senior Program Officer, Boabab, Laos Nigeria (May 7, 2005) identified
unprosecuted domestic abuse as one of the most common human rights challenges faced by women in Nigeria. Copy of
interview is on file with author. Note supra note 3 gives examples of stoning sentences applied to men which did not
trigger broad international human rights campaigns.
5
I recognize that the international media and international NGO activity can play a vital role in protecting human rights.
Even beyond the immediate cases that they highlight, they can at times play a role by encouraging and empowering local
level activists and victims. Still, the ad hoc nature of this type of action means that a lot of stones will be left unturned, as
many human rights infringements will not be subjected to the international NGO and media spotlight.
6
Amartya Sen, Elements of a Theory of Human Rights, 32 n. 4 Philosophy & Public Affairs 317 & 356 (2004) on the
necessary connection between theory and practice in human rights.
7
The universal legitimacy of human rights is, of course, relevant in many different ways at the interstate level,
see Charles R. Beitz, Human Rights as Common Concern, Vol. 95, No.2 American Political Science Review,
276- 278 (2001) on the purposes or roles of human rights. Beitzs focus is on the international or global role of
human rights, though he does acknowledge the potential internal role of human rights in the justification of
reform programs from within.
8
J ACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE, 49 50 (Cornell University Press, Ithaca,
1989) [hereinafter DONNELLY, Universal Human Rights].
9
See id. at 50-59 where human rights, or the lack thereof, in Islam, traditional China, Africa and the Soviet Union are
discussed.
10
See id. at 122 and J ack Donnelly, The Universal Declaration Model of Human Rights: A Liberal Defense,
http:/www.edu/humanrights/workingpapers/papers/12-donnelly-02-01.pdf, 8-9.
11
Thomas M. Franck, Are Human Rights Universal, 85 Foreign Affairs, 200-201 (2001).
12
For example, see Kenneth Minogue and Maurice Cranston, Introduction, The Human Rights Reader (Walter
Laqueu & Barry Rubin eds., Meridian, New York (1979).
13
For the sake of clarity, it is noted that the term local is used instead of national in order to recognize local diversity
within national borders.
14
On the first see, for example, THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS (J ean-Marc Coicaud & Veijo
Heiskanen eds., United Nations University Press, Tokyo 2001; INTERNATIONAL LAW AND ORGANIZATION: CLOSING THE
COMPLIANCE GAP (Edward C. Luck and Michael Doyle eds., Rowman & Littlefield Publisher Inc., London 2004), and
THE GLOBALIZATION OF HUMAN RIGHTS (J ean-Marc Coicaud at al. eds., United Nations University Press, Tokyo 2003)
on the later see, for example, the recent debate in 26 Hum. Rts. Q. Volume 3 & 4 (2004) on the role of international
NGOs in defending economic social and cultural rights between Kenneth Roth and Leonard Rubenstein, with comments
from Mary Robinson.


15
For quick overview of what motivates nation states and international organizations to action or inaction in the worst
cases, see J ean-Marc Coicaud, International Democratic Culture and its Sources of Legitimacy: The Case of Collective
Security and Peacekeeping Operations in the 1990s, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS , supra
note 19.
16
Rhoda E. Howard-Hassmann, The Second Great Transformation: Human Rights Leapfrogging in the Era of
Globalization, 27 Hum. Rts. Q., 5 (2005), but for a more balanced view of this history also see RHODA HOWARD,
HUMAN RIGHTS AND THE SEARCH FOR COMMUNITY, 30-36 (Westview Press, Colorado, 1995).
17
David Whitton, The Society of Northern Europe in the High Middle Ages, in THE OXFORD HISTORY OF MEDIEVAL
EUROPE 112-120 (George Holmes ed., Oxford University Press, Oxford, 1992). FRIEDRICH HEER, THE MEDIEVAL
WORLD EUROPE 1100 1350, 29 (Welcome Rain, New York, 1998). For a more detailed review of the status of peasants
and serfs in the different regions of Europe in the middle ages, see Chapter 2: Aristocracy and Peasantry.
18
Although I leave this area to those better versed in history and religion, I note in AMARTYA SEN, DEVELOPMENT AS
FREEDOM 236-237 (Anchor Books, New York, 1999), the discussion of the works of the Indian thinker Kautilya and the
enforcement of regular penalties if certain peoples freedom was denied; and the overview of duties and rights
recognized in the worlds religions in PAUL GORDON LAUREN, THE EVOLUTION OF HUMAN RIGHTS: VISIONS SEEN 5-10
(University of Pennsylvania Press, Philadelphia, 2
nd
ed. 2003) and finally similar comments in Martha Nussbaum, In
Defense of Universal Values 56-57, Occasional Paper Series, Women and Human Development, The Fifth Annual
Hesburgh Lectures on Ethics and Public Policy, The J oan B. Kroc Institute for International Peace Studies, University of
Notre Dame, February 1999. To quote Lauren at id the moral worth of each person is a belief that no single
civilization, or people, or nation, or geographical area or even century can claim as uniquely its own.
19
After all, even in 1948, woman in many Western states were still not equal citizens in many respects, and a large
portion of people in the USA lived in de jure or de facto apartheid, to name but the most obvious examples.
20
Such as Donnellys concept of weak cultural relativism, see DONNELLY, Universal Human Rights, supra note 8, at
124.
21
That the drafters were conscious of this issue and made a conscious choice comes through clearly in John Humphreys
diaries of the time, ON THE EDGE OF GREATNESS, THE DIARIES OF J OHN HUMPHREY, FIRST DIRECTOR OF THE UNITED
NATIONS DIVISION OF HUMAN RIGHTS, VOLUME I, 1948 1949, 5558 (A.J . Hobbins, ed., McGill University Libraries,
Montreal, 1994). Also see Lauren, supra note 25, at 226-227, Tore Lindhold, The Cases of Liberalism and Marxism, in,
HUMAN RIGHTS IN CROSS CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 397-400 (Abdullahi Ahmed An-Naim
ed., University of Pennsylvania Press, Philadelphia, 1992), Michael Ignatieff, Human Rights as Idolatry in MICHAEL
IGNATIEFF: HUMAN RIGHTS AS POLITICS AND IDOLATRY 64-65 (Amy Gutmann ed. Princeton University Press, Princeton
2001). On the diverse backgrounds of the drafters, not all rooted in Western liberalism or Christianity, and the broad base
of thought that they drew from see LAUREN, supra note 18, at 112 114.
22
J oseph Chan, Task for Asians: To Discover Their Own Political Morality for Human Rights and Amartya Sen,
Thinking About Human Rights and Asian Values, 4 Human Rights Dialogue, (1996).
23
Ignatieff, supra note 21, at 72-73.
24
Abdullahi Ahmed An-Naim, Problems of Universal Cultural Legitimacy, in HUMAN RIGHTS IN AFRICA: CROSS-
CULTURAL PERSPECTIVES 338-339 (Abdullahi Ahmed An-Naim & Francis M. Deng, eds., The Brookings Institution,
Washington D.C. 1990). WM. THEODORE DEBARY, ASIAN VALUES AND HUMAN RIGHTS: A CONFUCIAN
COMMUNITARIAN PERSPECTIVE 158-161 (Harvard University Press, Massachusetts 1998), (158 161). Ignatieff, supra
note 21, at 72-73.
25
From the now famous quote by Eleanor Roosevelts son of her nightly prayer, Save us from ourselves and show us a
vision of a world made new in Elliott Roosevelt & J ames Boraugh, MOTHER R: ELEANOR ROOSEVELTS UNTOLD
STORY 151 (Putnam, New York 1977). This is also the title of MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR
ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (Random House, New York 2001).
26
A moment of geopolitical moral rationality Lindhold, supra note 21, at 397. See also LAUREN, supra note 18, at.
227-228 and 232 regarding the intent of the drafters that the UDHR to reach beyond the restriction of its immediate time
and function as a vision for to be used by people in the street.
27
In response to the criticism that the UDHR is a colonial era document see Ignatieff, supra note 18, at 64-65 regarding
the awareness of the drafters of the impending and initiating colonial emancipation and the provision of the right of
colonial peoples to construe moral universal in a language rooted in their own traditions.
28
See note 21 for references regarding the diversity of the drafters of the UDHR and their intent.
29
GLENDON, supra note 25, at 54-78, in which the UNESCO papers and the work, papers, influences, aims and
achievements of the drafting committee are well chronicled. Quote from Eleanor Roosevelt is cited in Searching Study of
Human Rights Declaration, 5 United Nations Weekly Bulletin 858 (1948).
30
The Constitution of the U.S. is an example of this type of document. Although its drafters had personal limitations, and
it was created in the context of slavery and discrimination of all sorts, they drafted a document that rose above and
beyond their limitations and time.
31
Benjamin Franklin expressed this idea eloquently before the Constitutional Convention of the
U.S.A. in 1787: I doubt, too, whether any other convention we can obtain may be able to make a


better Constitution; for, when you assemble a number of men, to have the advantage of their joint
wisdom, you inevitably assemble with those men their prejudices, their passions, their errors of
opinion, their local interests, and their selfish views. From such an assembly can a perfect production
be expected? It therefore astonishes me, sir, to find this system approaching so near to perfection as it
does and I think it will astonish our enemies... see THE WORLDS GREAT SPEECHES 236 (Lewis
Copeland ed., Garden City Publishing Co., Inc, U.S.A. 1949).
32
Lindhold, supra note 18, at 400.
33
Ignatieff, supra note 18, at 53.
34
Abdullahi Ahmed An-Naim, Toward a Cross-Cultural Approach to Defining International Standards of Human
Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment, in HUMAN RIGHTS IN CROSS
CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS, supra note 24, at 19.
35
See Diane F. Offentlicher, Relativism and Religion, in MICHAEL IGNATIEFF: HUMAN RIGHTS AS POLITICS AND
IDOLATRY, supra note 18, at 148, arguing for justification of human rights in religious terms.
36
To the extent the universal human rights are seen as consistent with and even inherent to the cultures of their citizens,
it will be harder for the leading elite to ignore universal human rights on the international or the local level. Though it is
recognized that this will not hold as strongly in complete dictatorships, even dictators keep an ear to the ground and are
not completely uninfluenced by popular sentiment.
37
DONNELLY, Universal Human Rights, supra note 8, at 114-116, where the basis for the argument for humanitarian
intervention is set out in these terms.
38
HOWARD, supra note 16, at 13.
39
Naim, supra note 24, at 344. See also PHILIP ALLOT, EUNOMIA: NEW WORLD ORDER FOR A NEW WORLD, 13 & 18-19
(Oxford University Press, Oxford 1990), (pp.13, 18-19), on the power of reflective and reflexive human consciousness
in the face of what appears as an overwhelming amount of structures of ideas and which offers an alternative to a
surrender to hopeless uncertainty and confusion and Sen supra note 6, at 322-325, in particular at 323: The
admissibility of a domain of continued dispute is no embarrassment to a theory of human rights.
40
H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 328 (Oxford University Press, Oxford 2000), see also
Amartya Sen, Human Rights and Asian Values, 217 The New Republic, 33 40 (1997) on the need to recognize
diversity in cultures and the presence of important antecedents to political and personal rights in Asian cultures.
41
Naim, supra note 34. It is noted that the UDHR arguably no more mandates that amputation is a priori cruel and
inhuman than it does with respect to capital punishment. This can be contrasted with Donnellys position on amputation
versus capital punishment that: Amputation, no matter how humanely carried out, almost certainly exceeds the
limits.. i.e., the limits within which deviation is permitted under Donnellys concept of weak relativism and Execution
is a matter of intense controversy.. in JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS: DILEMMAS IN WORLD
POLITICS 133 (Westview Press, Colorado 1998) [hereinafter DONNELLY, International Human Rights]. For recent work
with an approach similar to that of Naim with respect to womens rights and Islamic law, see Amira Mashur, Islamic
Law and Gender Equality Could There be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and
Contemporary Legislation in Tunisia and Egypt, 27 Hum. Rts. Q. 562 - 596 (2005)
42
DeBary, supra note 24. See also WM. Theodore DeBary, Neo-Confucianism and Human Rights, in LEROY S. ROUNER,
HUMAN RIGHTS AND THE WORLDS RELIGIONS, (University of Notre Dame Press, Indiana 1988). It is interesting to note
in relation to discussions around the UN Convention on the Rights of the Child and the need to let the childs voice be
heard, DeBarys reference to the need for a child to remonstrate against the parent, as explained in the chapter The
Classic of Filial Piety in DEBARY, supra note 24, at 125.
43
Boabab is based in Lagos, Nigeria, and works with women in Muslim, Traditionalist and Christian communities on
human rights issues, in particular through human rights education. This description of Boababs approach with respect
to universal human rights in human rights education is based on the authors telephone interview with Chibogu Obinwa,
supra note 4 and the Boabab website http://www.baobabwomen.org.
44
For example, women from Muslim communities are asked to look to the Koran, women from Christian communities
are asked to do the same with the bible and women from Traditionalist communities are asked to do the same within the
African traditional systems.
45
Most recently this sentiment has been expressed in Roper v. Simmons 125 S.Ct. 1183 by Supreme Court Justice Scalia
in his dissenting opinion in which he referred to the European Union as a legal, political and cultural system quite
different from our own and strongly rejected references in majoritys opinion to international law as he sees these as
setting aside the centuries old American practice In a similar vein, Representative and House Majority Leader in the
U.S. Congress Tom DeLay, partly in response to the Roper v. Simmons case, indicated that Supreme Court Judges
should perhaps be reviewed and removed, and stated that J ustice Kennedys references in the majority opinion of Roper
v Simmons were just outrageous, see for quotes Carl Hulse, Delay Outlines Strategy Against Federal Judges, New
York Times April 20, 2005. Recently of course we have also seen debates within and around the Bush Administration
regarding human rights, international treaties and norms and political expediency with respect to the treatment of
detainees in the war on terror and the procedures to be followed with respect to enemy combatants. These debates have
touched on such fundamental human rights issues as due process and freedom from torture. For arguments in the


detainee cases and the ultimate reaffirmation of due process rights by the Supreme Court see Hamdi v. Rumsfeld, 542
U.S. 1099, Rumsfels v. Padilla, 541 U.S. 984 and Rasul v. Bush 540 U.S. 1175. On the revision of the definition of
torture see the August 2002 memorandum from the U.S. Department of J ustice, Memorandum for Alberto R. Gonzales,
Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A, Augst 1, 2002.
46
As Paul Gordon Lauren clearly warns against in GORDON, supra note 18, at 12.
47
Sen, supra note 6 at 320-323 on an interactive process of open and informed scrutiny as part of the theory of human
rights.
48
It is recognized hat this history is not completely irrelevant to non-Western cultures as cultures never have been
isolated islands and Western culture and economic development, for better and for worse, is not without influence
beyond its immediate geographic domain.
49
For a detailed history of the use and redefining of the US vernacular of freedom by those excluded from freedom see
ERIC FONER, THE STORY OF AMERICAN FREEDOM, (W.W. Norton & Company, New York 1998), regarding the civil
rights movement in particular, see pp. 275 282.
50
An admittedly not very scientific indication of this if offered by a quick look at the indexes of two books focused on
American history from the perspective of the struggle of different groups for freedom and power, namely, FONER, supra
note 60, and HOWARD ZINN, A PEOPLES HISTORY OF THE UNITED STATES: 1492 PRESENT (Harper Perennial, New York
1995) and two books with collections of writings relating to the African American freedom and civil rights movement,
LET NOBODY TURN US AROUND, VOICES OF RESISTANCE, REFORM, AND RENEWAL, AN AFRICAN AMERICAN
ANTHOLOGY (Manning Marable & Leith Mullings eds., Bowmand & Littlefield Publishers, Inc., Maryland 2000) and A
TESTAMENT OF HOPE, THE ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, J R. (J ames M. Washington
ed., HarperSanFrancisco, San Francisco 1991). This review shows only scant mention of the UN in relation to US
military activities and mention of Mrs. Roosevelt only in relation to US race relations, the UDHR is not to be found in
the index of either of the first two books and only once in the last book in a reference to a 1998 publication from the left
wing Black Radical Congress.
51
See HOWARD, supra note 16, at 98, DONNELLY, Universal Human Rights, supra note 8, at 199 121, DONNELLY,
International Human Rights, supra note 41, at131 132, pointing out cynical claims of cultural relativism from Islamic,
African, Asian countries. As noted, however, exceptionalist claims are also a concern and occur in the West, see note
45.



Universal Legitimacy of Human Rights: Taking Culture Seriously

Enviado por

Dados do documento

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Universal Legitimacy of Human Rights: Taking Culture Seriously

Enviado por

Direitos autorais:

Formatos disponíveis

Universal Legitimacy of Human Rights: Taking Culture Seriously

Você também pode gostar