Human Rights: Chimeras in Sheep's Clothing?

Andrew Heard, 1997



Human rights are usually said to be inalienable and universal, and some even believe that they are absolute. Such attributes are necessary in order for human rights to protect all humans at all times. A prime motivation for rights in general is to ensure that no-one is subject to unbridled calculations of utility, so that a minority do not suffer so that a greater number enjoy some benefit. If anything is to stand in the way of governments or societies sacrificing individual or minority interests in favour of the collective, it is the bulwark of human rights. Similarly, human rights are argued to be universal and apply across political, religious, and cultural divides. It is tempting in a liberal society such as Canada's to view human rights as both universal and inalienable. After all, so much of our political debate is built upon these suppositions that we take their reach for granted. However, these qualities of human rights may not stand up under the light of probing scrutiny. Human rights are particularly vulnerable to challenges from both utilitarianism and cultural relativism. These challenges relate to the nature of human rights, the choice of benefits that are said to be a matter of human rights, as well as the delivery of these benefits. Further problems emerge when one moves from the abstract right of an individual, to trying to assess the specific benefits any one individual is entitled to in relation to all others trying to exercise the same particular right, but the situation becomes even more complex when the issue involves balancing competing rights or balancing the good of individuals against the good of their community.

At one level rights are those claims which protect individuals from being subjected to calculations of pure utility. The promotion of the greatest happiness for the greatest number cannot justify some violation of an individual's welfare, if that individual has a right to the benefit in question. The most basic utilitarian critique of human rights lies in the assertion that resources are scarce in any society, and especially limited in some. This scarcity inevitably leads to utilitarian calculations to allocate those resources in a way that will maximize the greatest good. In the end, it is argued, all the benefits listed as human rights, even life itself, are subject to the promotion of the greatest good within a society. As such an individual's benefits claimed as a human right may be compromised, diluted, or even completely denied in specific situations where that right has to be weighed against the claim of another individual or of society as a whole. This critique is not necessarily normative, in the sense that this should be the case, but may also stem from the observation that this is how societies do and will function.

The utilitarian critique raises the question whether human rights are either absolute or inalienable. By inalienable, I mean that individuals cannot surrender control over their right to another's discretionary authority. The ultimate authority to make the most important choices with respect to exercising that right cannot rest with someone else - either the state, another individual, or some entity - but must be able to be reclaimed and exercised by the individual whose right is at stake. By absolute, I mean that the right in question cannot be totally denied. This is best seen in rights that pose dichotomous choices, (such as the right to life's "do you die or live?"), where the benefit is either provided completely or denied completely. (1) It is difficult to argue that a right is absolute if the benefits it imparts can be enjoyed by degree - liberty is a classic example of a right that permits relative increases and decreases in its possession and exercise. Analysis becomes problematic since most rights are arguably entitlements to benefits that are exercised by increments. Thus, it becomes impossible to assert that all human rights are absolute. Nevertheless, one can suggest that at least one right is absolute, or at least should be if human rights are to have any substantive meaning taken collectively. The right to life is one such example, for no other human right can be relevant if life can be taken from an individual; the possession or enjoyment of all other human rights hinge on an individual being alive. Various examples illustrate the utilitarian foundation we eventually land against, but perhaps the most basic right, that to life, raises dilemmas for human rights theory if it cannot be shown to be absolute.

A starting assumption for a right to life that is absolute lies in arguing that innocent lives must be protected if human life has any value to be protected through human rights. Indeed, Alan Gewirth has argued that there must be at least one absolute right: "all innocent persons have an absolute right not to be made the intended victims of a homicidal project". (2) If human rights cannot protect an innocent life from utilitarian calculations then one must question the force of these 'rights'. Gewirth portrays his argument with the example of an innocent mother held hostage by terrorists, who tell her son that they will detonate a nuclear explosion in a city if he does not kill his mother. According to Gewirth, the mother still has her right to life which the son must not violate. The son's duty and moral culpability lies solely in his own direct actions. The principle of intervening action means that the terrorists would be solely responsible for any deaths from their threatened explosion, since the son cannot be completely certain that the terrorists would carry out their threat. For Gewirth, his example of an absolute right stands the test. The son must not weigh the life of his mother against the lives of the city's population, because the other lives are not his responsibility. Gewirth's example, however, does not provide a scenario that fully tests the right of an innocent to life.

Utilitarian calculations on taking or sparing lives seem unavoidable in other situations. There is the classic case of a runaway trolley that can only be steered on two paths, one of which will run over one person and the other will run over five others. In that instance, the trolley driver would aim for the single individual. But this case is a highly unsatisfactory example, since the driver has no choice but to kill someone and would try to spare as many lives as possible. A more germane illustration is found in a SWAT team's arrival on a scene where a gunman is holding an innocent hostage as a shield with one arm while shooting into a crowd with the other. Should the police fire immediately to stop the gunman's killings, even if the hostage would likely be shot at the same time? Or, should the police allow the gunman to continue shooting while they manoeuvre to a vantage point where they can shoot the gunman without harm to the hostage? In this instance, the principle of intervening action invoked by Gewirth would mean that the police are not responsible for the deaths caused by the gunman. Their direct duty is not to kill an innocent person themselves. They have a choice to kill the gunman and the hostage, or to wait and kill just the gunman. The police may even have the choice to simply wait until the gunman runs out of bullets and then tackle him without killing anyone themselves. Because they have the choice, they should not shoot the hostage just to stop the gunman killing others. However, many people simply would not agree with this approach. It may well be tragic, but justified nevertheless, for the police to shoot the hostage and gunman immediately rather than letting even more people be killed by the gunman. In this scenario, a utilitarian calculation to save several lives would outweigh the one innocent life. Thus, not even an innocent person's right to life appears absolute.

Whether there is an inalienable right to life, safe from the utilitarian needs of the state, is tested most sorely in times of war; but it is also as germane in times of peace. Considerable debate rages over the conscription of citizens to defend the state or pursue the state's interests abroad, but the right to life can be just as endangered for those citizens who voluntarily join the state's police, military, fire departments, and coast guard, and who are subject to superiors' orders that might lead to their death. Conscription raises the question whether the state can take control of its citizens lives and send them to their deaths. Voluntary service in the public safety and security services raise the issue whether individuals can contract away control over their lives for the duration of that service. In both instances, the issue is essentially whether the right to life is inalienable and cannot be given up to another's control.

Both Canada and the United States have had conscription during the twentieth century that pose a human rights challenge. Conscription was resorted to in both World Wars in Canada, although Canadian territory never sustained any direct attack beyond a few shells around a West Coast lighthouse. Largely for electoral reasons, the conscripts were mostly kept from the front lines, which were reserved for the volunteer enlistees. Nevertheless, the lives of the conscripts were at the disposal of the state and inevitably some died on duty, if even from traffic accidents. During the Vietnam War, many American men were drafted into a war effort thousands of miles from their homes; many thousands of these men went to their deaths. A ready objection to both the Canadian and American examples of conscription is that the conscripts were sent to fight a foreign war. But, does it matter that these examples of conscripts went off to wage war on a different continent? Would the state's control of these conscripted lives be any more justifiable if there was a direct and significant attack upon these peoples' homeland?

At issue is whether the state can claim command over the lives of its inhabitants and sacrifice them in the interests of the state. It would seem the state cannot, if there is an absolute human right that protects an individual's life. One might say there is a better reason for conscription if a state suffers direct attack, on the grounds of a collective self-defence. The state's right to sacrifice conscripted lives could arise in two ways, either because the state acts to exercise collectively the rights of its citizens to defend themselves, or because the state has rights greater even than its citizens due to its duty to defend those citizens. The first instance depends upon the right of self-defence of individuals. But, few if any would argue that there is a duty on an individual to defend their own persons. They may have the right to do so, in the sense of a privilege or immunity that can exonerate them from criminal responsibility for the harm they inflict in an act of self-defence. But that privilege does not impose a duty to defend oneself, and certainly not to the point of death. In the Hohfeld scheme of 'rights,' the right to self-defence is an immunity and not a claim-right with a correlative duty. Another dimension of self-defence lies in the duty-based moral rule that one should go to the aid of someone in distress. Could the state claim to enforce a duty of its citizens to defend others? But here, philosophers have not been able to agree whether any purported duty to rescue or defend others is a rule of internal morality or a rule of critical morality. In other words, do I have a duty to rescue or defend others only because I believe so, or because others believe I do? Whether it is an internal or external moral duty, there would be real disagreement over whether that duty extends to sacrificing one's life for another. Some religious individuals would believe it does; for example, Christians are told that there is no greater love than to lay down their lives for another. Many others, however, would disagree. In any event, such a purported rule is a duty upon individuals that is not correlative to some right that others can claim. Thus, it does not appear that the state can claim control of conscripted lives based on some analogy of the state as a corporeal aggregation of the rights of the individuals in that state. The state cannot claim with this logic rights that an individual does not possess.

Another justification for the state's ability to conscript citizens and sacrifice their lives might come from an argument that the state has some special rights that even individuals do not possess. And one of these is the right to command others to put their lives on the line in defence of the state - some might even extend that beyond the defence of the state to the pursuit of the state's interests. Particularly in the case of the defence of the state's very existence, one can argue that all the citizens will benefit if some are subject to conscription in a war that will preserve everyone's prosperity, way of life, or perhaps their lives. However, this line of reasoning is a complete negation of the prime justification for human rights - to protect individuals from being sacrificed for the benefit of the collective community (let alone the interests of their political leaders). There would be no human rights as they are generally viewed, if the state can claim special rights that are apart from and supersede the human rights of individuals. This justification for conscription is utilitarian to the core - the greatest good is served by requiring some individuals to submit to the state's control and sacrifice their lives.

It seems the only way to defend state conscription is if human rights are not viewed as inalienable. Thus, individuals can in certain circumstances either give up or lose their rights. They might give up their rights through a deliberate, voluntary gesture. Or, they may lose their rights because human rights might be alternatively viewed as part of a social contract that includes the possibility of losing rights - either through misbehaviour or through some greater power acceded to the their in the interests of protecting society as a whole. These different possibilities reflect different bases for human rights - either they inhere in humankind, or they are part of a contractarian foundation for civil society. If contractarian, human rights might be alienable or not, as the social contract of a society may or may not require.

There may be firmer ground for state control over citizens lives if human rights are really part of the social contract of citizens with their society. Human rights are best viewed as part of a social contract if they seen as logically required in any stable society - otherwise, they become civil rights not human rights. It may be argued that any civil (human-rights respecting) state might call on citizens to lay down their lives if the defence of civil society is at stake; human rights could logically be sacrificed in order for a society that human respects human rights to survive. Citizens owe a duty to defend the state because the state normally exists to defend and promote the rights and welfare of its citizens. Support for this position is found in Rousseau's view of the social contract, where individuals relinquish their rights to a state so that they can live under greater peace through the state's protection. But that peace can only come if the state is defended:

Their very lives, which they have pledged to the state, are always protected by it; and even when they risk their lives to defend the state, what more are they doing but giving back what they received from the state? ...The purpose of the social treaty is the preservation of the contracting parties. ...Whoever wishes to preserve his own life at the expense of others must give his life for them when it is necessary. Now as no man is judge any longer of the danger to which the law requires him to expose himself, and when the prince says to him: 'It is expedient for the state that you should die', then he should die, because it is only on such terms as he has lived in security as long as he has and also because his life is no longer the bounty of nature but a gift he has received from the state. (3)

With this contractarian a view of society, the state can call up its citizens and put their lives in jeopardy. The position that refuses to accept state conscription might spell the end of human rights, since it implies that human rights are so important that they must be respected right up until an authoritarian invader conquers the state and ends all human rights. 

However, so much depends on the nature of the social contract. For example, a justification for conscription based on Rousseau's view of the social contract can be contrasted with Locke's, who held that the whole point of the social contract was to preserve the citizens and their property. If the state acted in a way to destroy their lives or property, then the citizens were justified in rebellion. Locke also believed that the powers of the state under the social contract could be no more than the powers of the individuals who joined together to form the state. As such, there are inherent limitations upon the power of the state:

First, it is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of the people; for it being but the joint power of every member of the society given up to that person or assembly that is legislator, it can be no more than those persons had in the state of nature before they entered into society and gave up to the community; for nobody can transfer to another more power than he has in himself, and nobody has absolute arbitrary power over himself or any other, to destroy his own life or to take away the life or property of another. (4)

Social contract foundations for society unfortunately prove to be fertile grounds for disagreement. One can choose between two sides, either Locke's view of the a social contract and argue that extend the powers of the state may not extend to conscripting citizens and endangering their lives or Rousseau's view that the state can command its citizens to dies in its defence. Hobbes falls somewhere between Locke and Rousseau with a context-specific approach to what the state could demand of its citizens. He argued that the contract which founded the state could not generally endanger the lives of its citizens: "No man is bound by the words themselves, either to kill himself, or any other man." (5) In some circumstances a man could be excused from responding to the state's call to arms, either by sending someone in his place or because of his 'timorous nature'. However, no-one can refuse a call to defend the very existence of the state: "When therefore our refusall to obey frustrates the End for which the Soveraignty was ordained; then there is no Liberty to refuse. ...And when the Defence of the Common-wealth, requireth at once the help of all that are able to bear Arms, every one is obliged." (6) Thus in the divergence of views among Hobbes, Locke, and Rousseau we see very different approaches to the reach of the social contract in obliging citizens to submit to conscription.

Furthermore, not only are the terms of a purported social contract in doubt, but the manner in which an individual comes to be bound by the social contract is open to profoundly different theories. For Rousseau, only those individuals present at the state's formation get the opportunity to agree explicitly to the social contract: "After the state is instituted, residence implies consent: to inhabit the territory is to submit to the sovereign." (7) Locke, on the other hand, believed that the social contract must be entered into specifically by each individual. Neither those born in a state's territory nor foreigners living in the society are automatically citizens. "But submitting to the laws of any country, living quietly and enjoying the privileges and protection under them, makes not a man a member of that society... Nothing can make a man so but his actually entering into it by positive engagement and express promise and contract." (8) Not even a person born into a society would be a subject of the social contract until he or she reaches maturity and covenants for themselves.

However, another view of contractarian rights could hold that the individual's autonomy is so great that any individual may decide to do as they will with their rights. They may contract with the state in ways that threatens or extinguishes their rights, and even their lives. But can they contract to expose themselves to dangers or situations they never envisioned at the time of the contract? This is particularly relevant to the teenagers who enlist in the infantry with little idea of the twists that world or domestic politics will take during their 20 years of service. If teenagers can contract away their rights, is the sanctity of the contract so great that they cannot revoke it when faced with losing their lives in horrors they never imagined? 

One can argue that when people volunteer for military service, even in peace time, that they voluntarily give up their right to life; they realize they agree that they can be ordered into situations that may will cost them their lives. This is an important consideration for countries who send their troops abroad to serve in international peace-keeping missions. Members of the military knew when they enlisted that they could be ordered into perilous circumstances that do not involve the direct protection of their own state. However, this justification depends upon the assumption that human rights are alienable. Some rights may be, but there may well be rights that mainly make sense only if they are inalienable, because their forfeiture can mean that they can never be exercised again. We may voluntarily set aside our rights for a temporary period, but not to give them up completely. The best example of this is our right to liberty. We frequently set this right aside for short periods; for example our right to express ourselves freely, or even to move about is sacrificed by most of us for the duration of a movie we see in a theatre. Quiet whispering is acceptable and so is getting up to go the washroom or buy more popcorn. But we usually give up the right to talk loudly or to get up and dance around. Indeed, the proprietor is usually in possession of these rights and may eject us if we try to exercise them. But such temporary surrendering of our rights is quite different from completely transferring them to someone else. The best example is found in surrendering our liberty and becoming slaves. Most people view voluntary servitude as being just as unacceptable as forced slavery. We cannot agree to become slaves, because our liberty is inalienable. For this reason debt bondage is equated with classic slavery and battled against by human rights activists. The same logic preventing us from voluntarily giving up our liberty to become slaves applies to our voluntarily giving up the right to our lives. If we are ordered into war zones by the state, there is a good chance that we will not live to exercise once again our independent control over our lives. The relinquishment of our right to life could become final and, for that reason, is unacceptable under a human rights regime that views human rights as inherent in our humanness. This problem of inalienability even pervades civil states at a time of peace. Police officers, fire fighters, and coast guard personnel are examples of groups of citizens whom the state expects to put their lives in danger for the greater good; military personnel assigned to international peace-keeping duties are another.

These different layers of discussion reveal that the justifiability of the state's control over its citizens depends a great deal upon one's view of the nature of human rights. Are they inherent and inalienable? Or is human society contractarian at best and individuals may either be required to give their lives for the state, or at least offer them up voluntarily? On the other hand, there may be a consequentialist concern with limits on the state's ability to defend the community. If the state cannot ultimately order its citizens to defend it, the values and benefits enshrined in human rights may be lost for generations. The consequence is that human rights may be a fragile ideal, easily lost to the next Hitler. In this view, the state has to have control over the lives of its citizens or many would face greater perils. A consequentialist view of contractarian revocation of rights would defend the state's ability to order its military to face dangers they had not bargained on in joining the forces. An inability to enforce discipline and the ability of soldiers to pick and choose which orders to follow would result in an almost indefensible state. Thus, the greater good requires that the state can order its military about as it sees fit. On the other hand, a different consequentialist concern may be that the state slides into authoritarianism in the fight to defend itself or that citizens are bound to respect even an authoritarian regime if rights are simply part of a social contract that gives a state the right to defend itself. These different alternatives underline the importance of the choices that must be made about human rights, and many of these dilemmas are difficult to resolve without concern for the greater good.

There is the very strong possibility that in fact the choices are ultimately settled by utilitarian calculations that balance up the needs of a stable society with individual autonomy. Certainly there cannot be a complex society without some individuals who put their lives in danger for others, be they police or firefighters. Many would also say that one cannot survive without some means to defend the state from invasion or authoritarian revolution, and one needs a military force that can be ordered into life-threatening situations. Just how many people are put into what dangers, and what ability they have to refuse the dangers may end up as pure utilitarian calculations. The greater good may be served by the state being able to issue orders that endanger and kill some of its citizens, in order to save the lives or freedoms of the rest of the population.

Human Rights and Utilitarianism

Utilitarian challenges to the enjoyment of human rights need not occur only in such extraordinary circumstances. Imprisonment may be justified because there is thought to be a greater good for society that an individual be completely denied their freedom of movement and locked away. Utilitarian calculations may also resolve disputes that arise with conflicts between different rights or the enjoyment of the same right by different individuals. The decision faced by any government to balance the needs of health care, education, welfare payments, and the justice system leads to tough choices about the relative proportion of the state's budget that should be dedicated to each social program. The distribution of state resources among these services will in the end depend on the government's perception of the greatest good provided for that society. Also, even within one area of spending the government will have to decide on distributing the benefits in a particular way. For instance, there may be a need to balance expensive hospital equipment, such as CAT scanners, against paying for nurses and hospital beds for patients undergoing general surgery. In the education system, governments need to balance the amount spent on primary, secondary, vocational, and higher learning. Different societies distribute their resources according their vision of the greatest good arising from the particular needs of that society. 

One can respond in various ways to these challenges that utilitarianism pose to human rights. A simple way would be just to assert human rights provide a guide to how societies must try and re-order their priorities. Human rights are needed precisely because utilitarian calculations are widely made, often at the expense of some minority interest. 

This response is motivated as much by an aversion to the perceived consequences of utilitarianism as by a commitment to human rights. Indeed, one's commitment to human rights may be motivated by a fear for a world where utility guides public policy. As R.G. Frey wrote, with classical utilitarianism "...there is no person who in principle is beyond the scope of utilitarian sacrifice". (9) If utilitarian decisions are dedicated to promoting the greatest happiness for the greatest number, then it is conceivable that individuals or minority groups may pay a heavy price for the happiness of others in their community. Indeed, a time-worn objection to utilitarianism is that slavery could be justified in a society, if it produced sufficient good for the master class. Another objection is based on the view that individuals are not important and only have value in their contribution to the aggregate happiness of all members of the society taken together. However, these criticisms are based on an unbridled form of utilitarianism that has rarely been advocated since Bentham first posed the theory. (10) Indeed, Mill's later development of utilitarianism contained inherent constraints; for example, he argued that such rights as freedom of expression were essential to determining utility. (11)

Much of the objections aimed at utilitarianism are fostered by an obliviousness to different types of utilitarianism. While each author who writes on the subject seems to develop his or her own variety, two basic strands may be identified. The classic model is a kind of act utilitarianism that focuses on the utility produced by each separate action. Whatever act produces the greatest happiness is the alternative that should be followed. The other approach is rule utilitarianism, which essentially accepts that the greatest good is promoted in the long run by observing certain rules of behaviour even if a particular observance of a rule does not directly result in happiness. For example, it may be agreed that society is generally much better if people are honest and open about their mistakes and that they admit them to those who may have been harmed. In a given situation, I may have knowingly said unkind things about some friends that later led to their losing a business contract. If I confess to them that I was responsible, they would likely be very hurt and even end our friendship, but without regaining their lost contract. So, a confession in these circumstances leads to harm rather than happiness. While act utilitarianism would lead to a decision not to tell, rule utilitarianism would require me to confess despite the harm because society in general is better off if wrongs are admitted.

Some theorists have pursued rule utilitarianism as a way to reconcile human rights and utilitarianism. (12) In this light, human rights become values that society believes must be consistently respected. Overall happiness is advanced for any given society if human rights are accepted as rules that structure policy-making and behaviour. Michael Freeden has argued that a constrained utilitarianism is perfectly compatible with human rights. (13) Another avenue opened by Richard Brandt involves adapting the notion of `rights' to utilitarian calculations. Brandt appears especially skeptical of the absolute nature of rights. He suggests that the nature of the obligation flowing from claim-rights is not absolute, but rather "not over-rideable by marginal or even substantial but only by extreme demands of welfare". (14) With this view, human rights would normally be respected but may be set aside if other extremely important demands arise. For instance, a real threat of invasion would justify restricting political rights and diverting resources from social programs to national defence. 

There are substantive difficulties, however, with these attempts to accommodate human rights and utilitarianism. James Fishkin has objected that a fundamental obstacle arises with the identification of the benefits to be protected as human rights. (15) He argues that utility may underlie any attempt to select one set of human rights values over another. Furthermore, there can be little guarantee to safeguard against one of utilitarianism's perceived weaknesses: the benefits protected by rights may be distributed unevenly among the population in order to maximize society's collective gain. 

Perhaps the most telling critique of attempts to reconcile utilitarianism with human rights is that the solutions proposed may end up leading not to universal human rights but to cultural relativism. Whether one refers to constrained utilitarianism or rule utilitarianism, the basic premise is that certain fundamental norms are said to frame utilitarian calculations, and these norms may be human rights. Utilitarianism is, in my view, a society-centred notion of policy choices - in another words the calculations for Canadians can only be made by Canadians, or for Fijians by Fijians. In order to accommodate universal human rights, one has to assert that each society must logically deduce that human rights benefits are as essential to their own. Thus, universalism might only be ascribed to human rights if each society recognizes their inherent value, or if they are necessary to the functioning of a complex human society. John Stuart Mill laid the groundwork for such a possibility, in his arguments that certain basic rights or liberties are essential for utilitarianism to function; freedom of expression and representative government, for example, are necessary for a society to debate and determine what the greatest happiness for the greatest number entails. However, this position is debatable, and one could argue that a benign sovereign may determine the greatest happiness without the trappings of representative democracy; traditional societies and even Marxist societies in the transitional socialist phase might be viewed in this light. 

Moreover, there still remains the nagging question of what norms each society will end up adopting as the rules that must be considered. The very real possibility exists that societies will differ on just what benefits their citizens should enjoy in order to enhance the greatest happiness. Notions of equality will be expressed in very different benefits and circumstances for citizens of a non-theistic, liberal society than they will be in a traditional Islamic or Hindu society. In the end, rule or constrained utilitarianism may simply lead one down the path to cultural relativism, where each society determines for itself what basic norms must be protected and what sort of benefits may or may not be traded off in determining the greatest good for that society.

The Challenge of Cultural Relativism

Human rights face a serious challenge to their universality from cultural relativism. Since morality is inextricably linked to the general cultural values of a society, it is very difficult to argue that the moral standards arising from one society can be imposed on another. In its most extreme form, cultural relativism leads to the conclusion that each culture is equally valid and the ethical norms of any society are just as legitimate as those found in another society. Cultural relativism, therefore, poses a serious hurdle to global human rights standards: with the variety of political, religious, economic, and cultural values across the world, how can one set of 'human rights' bind all societies? The challenge raised by cultural relativism undermines the two dimensions of universalism: that all humans possess human rights, and that all humans enjoy roughly the same benefits from those rights.

There are several aspects of the cultural relativist challenges to all humans holding human rights. One fundamental question is whether all societies would agree on who is meant by 'humans' to which rights apply. However, different societies will draw different conclusions about who is 'human', and thus entitled to the protection of human rights. A number of cultures and religions have at times in their past viewed certain, or even all, outside groups as essentially sub-human barbarians who could never enjoy the status or rights of a member of that culture. Several societies have held that a member could lose whatever rights they held by some act of heresy or communication with the undesirables. But the issues of who is human or who can hold rights re-emerges in modern contexts in debates over the right to life of a foetus, deformed newborn, unwanted female baby, a murderer, comatose patient, and - in some societies - even those who renounce their religion.

An important cultural difference emerges over the notion of claim-rights, which seems so central to most western conceptions of human rights. Some analysts have argued that this conception does not suit duty-based moral systems. Islam and Christianity are two of many religions whose morality is based upon duties imposed on the believers, without reference to the rights of others to be treated morally. The duty to treat others properly is owed to God and, it is argued, one cannot make a claim against the duty another owes to God. Islamic rulers are subject to dictates in the Koran about the treatment of their subjects, but these duties do not create any rights for the governed. In traditional Confucian philosophy, there are also duties placed on the rulers without rights being created. (16) Without a claim-rights basis for human rights, there is little justification for any institution to adjudicate someone's claim that they have been denied a benefit that someone else was bound to respect.

Another challenge to conceiving benefits as claim rights has come from Marxist theorists, some of whom have held that rights are a bourgeois creation needed as protection against the exploitative nature of the capitalist state, that should have no place in communist society. (17) Other Marxist theorists would allow for rights during the socialist transition to communism; however, in this view one cannot isolate the 'right' claimed by an individual from the inherent duty that also is held by that person. In this view, rights are not simply claims by one person against another's duty. The claimant also possesses a duty with respect to the benefit claimed; for example, one has not only a right to work, but a duty to do so as well. To pit an individual against the state in a rights claim is to divorce that citizen from their own duty, and - more importantly - to validate the individuals' antagonistic assertion that they have a better idea of their needs than the community leaders who are leading them towards a classless society. Depending on one's notion of the importance of a vanguard of the proletariat or of the value of any individual worker's judgment, one can either reconcile or deny that an individual's rights claim is compatible with Marxism or not.

The notion that human rights are needed to protect individuals from their society is not a concern felt in some cultures. A central challenge to human rights emerges from the perceived relationship of individuals to their society. Critics have argued that human rights are based on the liberal view that individuals remain distinct and severable from their society; indeed, the autonomy of the individual is one of the distinguishing characteristics of liberalism. But a number of other perspectives regard individuals as inseparable elements of their collective community. For example, traditional African cultures have been portrayed as placing more importance on the community than individuals, whose value stems from their contribution to the community as a whole. (18) Even in Western cultures, there are many who do not share liberalism's emphasis on the worth of each individual. Classical conservatism, for example, stressed the manner in which individuals belong to an hierarchical, organic society in which each individual assumes importance in the way in which they can contribute to the collective society's welfare. The greater needs of the whole society may require a stratified society with quite different roles, duties, and benefits that would seem incompatible without many ideas of liberal equality; the conservative notion of equality may stress equality in the value of individuals rather than any equality of opportunity let alone condition.

An objection common to all these positions lies in the significance other perspectives place on the relationships of individuals to their society. Human rights have a completely different focus, with their emphasis on the benefits which individuals are entitled to claim against their community. But many cultures, religions, and political philosophies are not immediately embracing or even compatible with such importance being attached to the primacy of the benefits to be accorded by human rights to any one ordinary individual within their society.

Even if one can move beyond these fundamental disputes, cultural relativism persists as a thorny obstacle when it comes to deciding what particular benefits should be protected within the human rights rubric. For example, some of the most persistent problems that human rights advocates see is the lack of equality in societies around the world. Unfortunately, there are profoundly different ways in which "equality" may be conceptualized. Even with an agreement upon a particular form of equality, there still remains a failure of many cultures to accept liberalism's insistence that equality is essential. Indeed, many beliefs centre on individuals occupying different stations in life and that involve particular responsibilities and privileges. Confucianism involves a hierarchically structured society. Islam distinguishes between believers and two classifications of non-believers. Hinduism has held that people are born to different castes because of their spiritual progress in their past lives. And, the Roman Catholic church and some Protestant churches insist on male supremacy within their institutions and liturgy. There are many across the world who will ardently resist any imposition of full equality in all aspects of their society. With this in mind, there will be profound disagreements about whether there is a right to equality inherent in either human existence or dignity. There may be even more grounds for disagreement over which particular conceptualization of equality to pursue - equality of condition, situation, or opportunity and so on.

Even where there is agreement on a principle that should be embodied in a right, there can be widely differing views of the substantive benefits that must be provided in order to respect the principle. For instance, if there is a right to education, does this right involve compulsory, free education? If so, up to what level? And, who has control over what subjects are taught and by whom? Are adults entitled to continue an interrupted education whenever they want, and at whose expense? Since a number of religious groups believe that education should take place within a completely spiritual framework, must the state allow, or even fund, separate school systems? These questions will be answered quite differently depending on whether the society is, for example, industrialized or agrarian, Shiite or largely atheistic, harmoniously plural or rigidly homogeneous.

Thus, cultural relativism challenges human rights in their conception as well as their operation. If human rights are to pose some global standard, then there must be some response to relativism. Jack Donnelly has drawn up a typology of a spectrum of relativism that usefully shows the range of the challenge to universal moral precepts such as human rights. (19) With the extreme form, radical cultural relativism, each society's culture is the unique foundation for its morality. Human rights are seen to be just western liberal mores that some seek to impose on other cultures. Pollis and Schwab have argued this point to declare that human rights cannot have universal legitimacy. (20) However, most writers reject the notion that each culture has absolute authority. Rhoda Howard argues that this perspective romanticizes the value of various cultures in a way that permits terrible abuses: "Cultural absolutism forgives cruelty on the grounds that acting in accordance with the customs of one's own group is a universal moral principle". (21) With radical cultural relativism, other societies could not legitimately censor the domestic policies of Nazi Germany, apartheid in South Africa, or ethnic cleansing in the former Yugoslavia.

At the other end of the spectrum, radical universalism asserts that there are indeed universal moral rules that cannot be legitimately overridden by the cultural values of particular societies. From this perspective, human rights would be global standards from which no society could depart; all cultures would have to protect and provide the same benefits that human rights safeguard. Unfortunately, some human rights advocates stray, sometimes inadvertently, into this position; as Donnelly and Howard once wrote:

Internationally recognized human rights require a liberal regime. Other types of regimes, and the conceptions of human dignity on which they rest, may be defensible on other moral and political grounds, but they will not stand up to scrutiny under the standards of human rights. (22)

While Donnelly and Howard may not wish to be characterized as universalists, this quotation illustrates a serious problem with global human rights standards. So much of the values enshrined in contemporary human rights documents are liberal in origin that they require a liberal regime to be realized fully. As some critics charge, human rights really may be an attempt to universalize liberalism as the ultimate standard to which all societies should conform. It is one thing to argue that liberalism is a preferred form of society, but it quite another to argue, even implicitly, by appeals to human rights that every human is inherently entitled to the benefits of a liberal society simply by being human.

Many commentators would probably prefer the middle ground between radical cultural relativism and universalism, but even this range has its problems. Donnelly identifies two intermediate categories, strong cultural relativism and weak cultural relativism. In the former, each society's culture provides the principal basis for its moral standards, while in the latter each culture is just an important source of its morals. (23) In these categories, external mores play some role in the formation and criticism of any particular society's values. In strong cultural relativism, each culture forms the base of its mores and human rights would be "a check on potential excesses of relativism". (24) With weak cultural relativism, however, external mores such as human rights would provide the main ethical framework, which local cultural values modify slightly.

While there are good arguments to reject both radical cultural relativism and universalism, it is rather difficult to construct a watertight argument that either strong or weak cultural relativism must be rejected in favour of the other. Donnelly tries to settle the issue by framing the discussion around the nature of the effect that culture would have. He says that cultural values could shape the substance, interpretation, and form of human rights. But Donnelly concludes that universal human rights should vary only in the form in which each culture would deliver the benefits at issue.

Unfortunately, this resolution depends on one's acceptance of the premise that there should be universal human rights in the first place, and that the benefits should be roughly similar across the world. Some human rights advocates, such as Donnelly, simply dismiss the strongest challenges of cultural relativism - to the existence of human rights in general or of particular rights - as being irrelevant; they argue that human rights evidently do exist and certain benefits must be provided to everyone. 

A number of other writers have approached the challenge of cultural relativism from another perspective, by searching for common ground among the world's cultures. Alison Renteln has also asserted that human rights can be accommodated within a variety of cultures if a wider view is taken of the nature of human rights. (25) There are arguments that human rights norms can be quite reconcilable with Marxism, Islam, or traditional African, Chinese, and native American cultures. (26)In some respects this avenue of inquiry becomes an empirical anthropological search for moral commonalities. If one can find moral goods or benefits that are common, then these may form the basis for universal human rights. But there is a logical flaw in this approach, since a survey of moral practices is just as likely to turn up many values upheld in societies that would horrify human rights activists - infanticide, banishment, and capital punishment are but three examples. Rhoda Howard has validly noted that there have been so many cultures that have inflicted cruelty on their members or strangers that human rights cannot be simply established by saying that every culture has respected the essence of human rights in their own way. (27)A substantial challenge to a search for moral universals through anthropological empiricism lies the argument long made by feminists- that some of the most enduring traits of organized human society have been patriarchy and the oppression of women. While there are many examples of matriarchal societies, they are few in comparison to patriarchies. If so many societies over the millennia have believed that men should rule and women follow, what view of equality would we be led to adopt from the anthropological evidence? I doubt it would be one that would bring comfort to most liberal human rights activists.

There is a more revealing side to this debate, in the weight to be given to cultural commonalities. If one were to search for common moral values that could ground human rights, it is doubtful that absolutely universal practices or values would emerge. The most one is likely to say is that the overwhelming majority of societies have held such-and-such a view. If a universal moral value is to built upon a preponderant, rather than universal, support, then moral rules risk simply becoming the domain of the majority to which minority cultural practices must conform. But if such a moral majoritarianism is to be admitted, then patriarchy must be adopted as the determinant ingredient of gender equality because of the shear weight of its practice.

Moreover, the end of such a debate over moral commonalities is more likely to lead to a list of shared moral goods or benefits that are valued in societies, rather than a complete rights paradigm. For example, traditional Christian and Islamic societies share many notions of benefits that individuals should be given, but they founded such benefits upon God-given duties and not upon the inherent entitlements of the person who would enjoy the benefit. The claim-rights conception of human rights would be difficult to ground in common moral or cultural practice. In large measure, attempts to reconcile contemporary human rights with different value systems may depend on accepting that the benefits involved need not necessarily be protected only as claim-rights; duty based moralities can provide similar substantive enjoyment of benefits as a rights-based approach. However, it is sometimes necessary to admit that certain benefits would not fit within a particular culture's list of human rights benefits; equality and freedom of religion can be especially problematic to reconcile in the same way in different societies. 

Human rights face significant hurdles when one tries to apply them universally across cultural, religious and political divides. The full force of the problem emerges clearly when a particular cultural or religious group is said to flagrantly infringe a right embodied in widely-supported human rights documents, such as the Universal Declaration of Human Rights. The members of that culture claim that their practice is a revered moral value within their society and that the outside world has no moral authority to require a change to conform to the external norms. The problem is especially compounded when the infringement involves some issue that defines that culture or religion. For example, one of the most egregious sins for a Muslim is to renounce Islam and take up another religion; many Christians would also say that a Christian risks eternal damnation by turning his or her back on Christ. And yet the Universal Declaration of Human Rights specifically states in Article 18 that the right to freedom of religion includes the freedom to change one's religion or belief. So, does any religious community infringe human rights if it punishes or condemns apostasy? Those who believe there is only one, true religion cannot be easily persuaded that an adherent has the right to renounce that religion and adopt another faith; the apostate may lead others to renounce their one path to salvation. An yet, the UNDHR would suggest that as a matter of human dignity, every individual has the human right to change religions. As such they ought to be encouraged in their change of beliefs as an exercise of their fundamental rights - not condemned, punished, or prevented from converting others.

A fundamental dilemma for both universalists and cultural relativists lies in the tension between external and internal morality. On the dimension of interaction between different cultural groups, the relativist would argue that the external morality is of no concern to the members of any particular group; only the internal morality of that group is legitimate. The universalist would have to argue that internal morality of any one group is subordinate to the external morality of the whole collection of groups. In the human rights context, this means that a relativist would argue that international human rights codes cannot be imposed upon any particular society, since only that society's own moral value system has legitimate authority there. In contrast, the advocates of universal human rights would say that the practices of any particular society must be changed to conform to the moral standards of international human rights.

However, the interplay between internal and external morality can change dramatically when one moves the analysis from the dimension of global society versus an individual society to the dimension of any particular society versus an individual in that society. Whereas relativists have to uphold the primacy of internal morality in the global v. individual society dimension, they may have to accept the primacy of external morality when looking at conflict between a society and an individual member. If relativists argue that only each society may legitimately establish the moral rules for that society, then they cannot object to the legitimacy of a groups' cultural rule that demands conformity from the members of that society - such as a prohibition against apostasy on pain of death. On the other hand, universalists must champion the cause of external morality at the global level, but the nature of human rights means that they must allow the primacy of internal morality in many instances where an individual's internal morality clashes with the mores of her or his society.


With all these challenges to the existence and application of human rights, it is little wonder that human rights still remain controversial. Perhaps, the real wonder is that human rights are not more contentious. In many ways, popular political debate simply assumes that human rights exist and they protect all the benefits described in the various international and domestic documents. However, this assumption is one which ignores fundamental problems that must be addressed. The moral force often attributed to human rights cannot simply be asserted without resolving questions about the genesis of human rights, who may hold them, and what particular benefits are protected. 


1. Here it must be conceded that life and death are not always dichotomous, since humans may exist in comatose or paralytic conditions that may appear to be neither properly life nor death.

2. Alan Gewirth, "Are There Any Absolute Rights?", in Jeremy Waldron (ed.) Theories of Rights, Oxford: Oxford University Press, 1984, p.108.

3. J.J. Rousseau, The Social Contract, Maurice Cranston (trans.), New York: Penguin Books, 1968, pp.77-79; Book II, chapters 4 & 5.

4. John Locke, The Second Treatise of Government, Indianapolis: Bobbs-Merrill, 1975, p.76; 135.

5. Thomas Hobbes, Leviathan, C.B. MacPherson (ed.), Baltimore: Pelican Books, 1976, p.269; Part II, Chapter 21.

6. Ibid., pp.269-270.

7. Rousseau, op.cit., p. 153; Book IV, Chapter 2.

8. Locke, op.cit., pp.69-70; 122.

9. R.G. Frey, Utility and Rights, p.9. 

10. A good rebuttal of the slavery issue is found in R.M. Hare, "What is Wrong with Slavery?", (1978-79) 8 Philosophy and Public Affairs, 103-140.

11. The importance of distinguishing the variety of utilitarianism before examining its compatibility with moral rights is evident in a paper by David Lyons: "Utility and Rights", in Jeremy Waldron (ed.) Theories of Rights, Oxford: Oxford University Press, 1984, pp.110-136.

12. See Allan Gibbard, "Utilitarianism and Human Rights", in Ellen Frankel Paul, Fred D. Miller Jr., and Jeffrey Paul (eds.), Human Rights, Oxford: Basil Blackwell, 1984, pp.92-102. 

13. Michael Freeden, Rights, Minneapolis: University of Minnesota Press, 1991, pp.83-100.

14. Richard B. Brandt, Morality, Utilitarianism, and Rights, New York: Cambridge University Press, 1992, p.197.

15. James Fishkin, "Utilitarianism Versus Human Rights", in Paul et al., op.cit., pp.103-107.

16. Donnelly, Universal Human Rights in Theory and Practice, pp.50-55.

17. For a discussion of various socialist approaches to rights, see: Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist Rights, London: Routledge & Kegan Paul, 1983.

18. For discussions of African values and human rights, see: Abdullahi Ahmed An-Na`im (ed.), Human Rights in Africa: Cross-Cultural Perspectives, Washington: The Brookings Inste., 1990; Josiah A.M. Cobbah, "African Values and the Human Rights Debate", (1987) 9 Human Rights Quarterly, 309-331; Chris C. Mojekwu, "International Human Rights: The African Perspective", in Jack L. Nelson and Vera M. Green (eds.), International Human Rights: Contemporary Issues, Stanfordville, N.Y.: Human Rights Publishing Group, 1980.

19. Donnelly, Universal Human rights in theory and Practice, pp.109-110.

20. Adamantia Pollis and Peter Schwab, "Human Rights: A Western Construct with Limited Applicability", in Adamantia Pollis and Peter Schwab (eds.), Human Rights: Cultural and Ideological Perspectives, pp.1-18.

21. Rhoda E. Howard, "Cultural Absolutism and the Nostalgia for Community", (1993) 15 Human Rights Quarterly, 315-338, p.337.

22. Rhonda E. Howard and Jack Donnelly, "Human Dignity, Human Rights, and Political Regimes", in Jack Donnelly, Universal Human Rights in Theory and Practice, p.67.

23. Donnelly, pp.109-110.

24. Donnelly, p.109.

25. Alison Dundes Renteln, "The Unanswered Challenge of Cultural Relativism and the Consequences for Human Rights", (1985) 7 Human Rights Quarterly, 514-540; and her book, International Human Rights: Universalism Versus Relativism, Newbury Park, CA: Sage, 1990.

26. For a variety of discussion of these topics see: Abdullahi Ahmed An-Na`im (ed.), Human Rights in Africa; Abdullahi Ahmed An-Na`im (ed.), Human Rights in Cross-Cultural Perspectives; Tom Campbell, The Left and Rights; Jack Donnelly, Universal Human Rights in Theory and Practice, pp.49-65.

27. Rhoda E. Howard, "Dignity, Community, and Human Rights", in Abdullahi Ahmed An-Na'im (ed.), Human Rights in Cross-Cultural Perspectives, pp.81-102.

Copyright 1997 Andrew Heard