Outrelativizing relativism: a liberal defense of the universality of international human rights.

• Author: Sloane, Robert D.

ABSTRACT

This Article seeks to provide a new framework, rooted in classical liberalism, for understanding and defending the universality of international human rights. After reviewing the philosophical and historical development of the idea of universality, Part II argues that none of the traditional justifications for conceiving of international human rights as universal succeed. Cultural pluralism therefore must be accepted as a descriptive truth. But to acknowledge the cultural contingency of values as a descriptive claim does not, by itself, undermine the normative claim that human rights are, or should be, universal. Instead, it points to the need to justify universality within a framework that acknowledges the descriptive truth of cultural pluralism.

Part III distinguishes two plausible normative claims that a cultural relativist could advance on the basis of the descriptive vindication of cultural pluralism provided in Part II: "narrative relativism" and "crude relativism." Narrative relativism questions whether it is appropriate and desirable to apply the Western liberal conception of rights to cultures whose traditional narrative frameworks--deeply rooted norms, perceptions, and values--may not be able to accommodate them without upsetting societal institutions in potentially dangerous ways. This raises an issue that undoubtedly merits consideration when applying human rights law internationally. But this Article argues that it does not "refute" the universality of international human rights law any more than acknowledging value pluralism within a nation refutes the uniform application of domestic law to a state's diverse citizenry. This Article then argues that crude relativism--the broader normative claim that it is wrong to impose human rights on cultures that claim to reject them--suffers from several deep logical and empirical flaws that undermine its philosophical coherence as an argument and also call into question the sincerity of its proponents' views.

In Part IV, this Article argues that a distinctively liberal conception of autonomy both underlies and, upon analysis, undermines the central normative assertions of cultural relativism. This is because the liberal imperative to respect the value of autonomy originates in a unique conception of the "self," which finds expression, among other places, in Isaiah Berlin`s classic essay on "Two Concepts of Liberty." Part IV argue that cultural relativists in fact invoke--and, absent some presently unarticulated alternative, must invoke--the liberal conception of autonomy in any argument that aims to repudiate the universality of international human rights. But because the liberal conception of autonomy is rooted in a distinctive conception of the "self as agent," a state elite cannot, for example, appeal to the liberal values of autonomy to challenge human rights law as "imperialistic"--for failing to extend adequate tolerance to cultural pluralism--but then conveniently reject these very same values when individuals within their polity invoke them in the form of human rights claims.

This Article further argues that any assertion that cultural groups or political entities also merit tolerance and respect for their autonomy is necessarily derivative, not independent, of the rationale for respecting individual autonomy. A cultural elite remains free to repudiate this value. It cannot, however, then demand respect for "cultural autonomy" as a rhetorical device to deflect criticism of its human rights practices. By contrast, to embrace this conception of autonomy is necessarily to acknowledge the normative claim to universality that this Article argues international human rights law enjoys. Despite the descriptive truth of cultural pluralism, this Article concludes that there is a compelling philosophical rationale--beyond the political, historical, and legal approaches conventionally invoked in defense of international human rights--for choosing "rights" as the appropriate and universal functional concept to promote human dignity internationally.

It is related that at one of the meetings of a UNESCO National Commission where human rights were being discussed, someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. `Yes,' they said, `we agree about the rights but on condition that no one asks us why.' That `why' is where the argument begins.

--Jacques Maritain(1)

1. INTRODUCTION

   In 1993 at the Second World Conference on Human Rights, national delegates from around the globe adopted the Vienna Declaration: "all human rights are universal, indivisible and interdependent and interrelated...."(2) Like most rhetoric--in particular, rhetoric that surrounds human rights discourse--the Declaration's compelling language veils acute problems that emerge the moment one strives to bring its abstract claims to bear upon real world affairs and normative claims.(3) But precisely this aspiration makes the human rights movement worthwhile. Should the discourse of human rights remain in theoretical limbo, solely the subject of armchair philosophy, then the very concept of human rights law becomes quixotic. Only insofar as human rights discourse enacts, or maintains the potential to enact, concrete changes in the behavior of international actors does the human rights movement retain its value. Only insofar as one can articulate what claims this discourse supports can the movement begin to realize the lofty ideals that permeate its rhetoric.

   Many conceptual and practical difficulties confront universal human rights: Who has rights? Do individuals alone have rights or can groups--ethnic, religious, racial, or cultural--assert valid human rights claims, and can the claims of each be reconciled?(4) Should civil and political rights remain primary, or do social, economic, and cultural rights warrant equivalent status?(5) How should human rights be enforced? Which domestic and international arenas constitute the appropriate fora in which to press human rights claims?(6)

   This Article brackets these debates--except insofar as they are implicated tangentially--and proposes a new answer to--or, at least, a new way to think about--what arguably remains the most serious challenge to universal human rights: cultural relativism. Simply stated, cultural relativism insists that human rights cannot be universal because, as a matter of social fact, cultures maintain highly divergent mores and conceptualize human rights differently, or not at all, and these mores conflict in intractable ways that belie pretensions to "universality."

   Cultural relativism, then, poses both theoretical and practical challenges. Theoretically, universal human rights imply, at a minimum, some set of "morally weighty" social norms that preempt, under all but the most exigent circumstances, other cultural value priorities.(7) "Rights," as Jack Donnelly argues, "are `interests' that have been specially entrenched in a system of justifications and thereby substantially transformed, giving them priority, in ordinary circumstances, over, for example, utilitarian calculations, mere interests, or considerations of social policy ... which otherwise would be not only appropriate, but decisive, reasons for public or private action."(8) But how can one set of values--international human rights--warrant universal acknowledgment as peremptory norms when, as a matter of social fact, highly divergent practices, morals, goals, and value hierarchies deeply divide the world's multiple and diverse civilizations?(9) Practically, universal human rights must provide guidance about when and under what conditions international actors may intervene justifiably in the affairs of sovereign states to deter, terminate, or redress human rights violations. If, however, certain cultural traditions permit--perhaps even encourage--practices deemed morally abhorrent by other societies,(10) by what criteria do we decide whether they violate "universal" standards that warrant international intervention?

   For public international law, this question presents a serious difficulty. Traditional state sovereignty--the idea that what occurs exclusively within the territory of a state remains solely within its domestic competence--no longer constitutes the paramount principle of international law; it has been weakened, in fact, precisely by the post-World War II international human rights movement.(11) But by no means has the primacy of state sovereignty been abandoned. The UN Charter affirms that "[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state."(12) Furthermore, nations continue to object vociferously to international interference with, or even judgment of, their domestic affairs on the basis of alleged "universal" human rights standards.(13)

   Those affairs, however, no longer remain wholly exempt from international scrutiny. Most nations acknowledge, at least in theory, that certain categories of state action are not "matters which are essentially within the domestic jurisdiction of any state"--international human rights violations. What counts as a human rights violation, then, assumes tremendous significance. For to concede that some state practice violates universal human rights standards implies that the international community may justifiably interfere in the internal affairs of that state to deter, terminate, or redress the practice. States, therefore, maintain a significant stake in delimiting the scope of international human rights and, in particular, in ensuring that social, cultural, and political practices embedded in the fabric of the society or societies within their territory remain outside the class of universal norms that vindicate international interference.

   This article pursues two related objectives. First, it seeks to defend a...