Human Rights: Chimeras in Sheep's Clothing?
Human rights are usually said to be inalienable and universal, and some
even believe that they should 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 in order that
a great 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
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, miliary, 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.
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
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
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.
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
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 sceptical 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 debateable, 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 exploitive 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
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 homogenous.
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.
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
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
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.
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.
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.
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.
Copyright 1997 Andrew Heard