Universality doesn’t equal uniformity. If we insist on uniformity, then we will probably not achieve universality. We will convince more people of the desirability of human rights if we take local circumstances into consideration than if we simply copy things coming from the outside. And that’s not just a tactical surrender: we don’t need uniformity.
Regional differences are possible both at the level of the laws that protect human rights, and at the level of the ways in which these laws are applied, and all this without impairing the universality of human rights. We can frame laws in a flexible way and we can apply them in a flexible way.
Laws are necessary (although not sufficient) for the effective protection of human rights. However, it’s obviously impossible and undesirable to have the same laws in all countries, even the same basic laws. We have to translate the general, morality based language of treaties and declarations into specific and operable legal wordings, and those can differ from country to country, as well as from period to period. Effective laws and rights can’t be formulated in a globally uniform way or in a way that does not take the concrete circumstances in which they have to function into consideration. As these circumstances differ from country to country, the laws have to be different as well. Laws have to correspond to specific needs. A certain social or political context can make it necessary to focus attention on one particular right, on one particular group of rights or on one particular aspect of a right.
A “Bill of Rights” is always a “Bill of Wrongs”. Rights begin with the experience of an injustice. According to the nature of the injustices or “wrongs” in a particular society, some rights have to be especially accentuated or elaborated. Sometimes, elements of rights have to be specified in one country but not another because the problem in question is present only in one country. For example, we can imagine that in post-Soviet Russia, for example, there is a need for a right establishing the freedom to criticize the works of Marx and Engels, or a need for a particular emphasis on the right to private property of the means of economic production. In the constitutions of other countries there may be no need for such an emphasis because the things one wants to protect are never threatened.
Of course, this doesn’t mean that circumstances or “cultures” should be given priority over rights. It only means that the need for certain rights or for certain emphases can be different in different cultures or countries. Human rights have to be integrated in concrete legal systems and concrete societies, each with their own history and their own problems, but this contextuality does not imply ethical relativism or “anything goes”.
Insisting on global uniformity also means disregarding the fact that rights evolve. The body of rights as it exists now is not fixed for all times. New rights or new and wider definitions of existing rights can be established when new wrongs are identified, for example as a consequence of technological or scientific developments (think of the internet, which may require a new right to internet access). It can also happen that we need new rights because we have only now become aware of certain wrongs that have existed for ages, but have been neglected. This was the case for women’s rights, although some of those rights – such as universal suffrage – are a different emphasis rather than an innovation.
Similarly, we may one day have to eliminate rights that become superfluous. Maybe food shortages can become a thing of the past, given the right technology and political will. If so, then the right to food will sound as strange as the right to air does today (although the same future may remove the strangeness of the latter).
Not only the legal formulation of rights should allow flexibility; the same is true for the ways in which given formulations are applied by judges. In order to take into account certain specific needs, laws can be applied in a flexible or different way according to the context. Most human rights are not absolute. They can be limited when limits are required in order to protect other rights or the rights of others. Someone’s right to property, for example, can be limited if this is necessary to realize the economic rights of other people. We have a right to property but not at the expense of the rights of people who do not have enough property to survive. Rights can contradict each other or can be used or misused to harm people, and when this happens, priority has to be given to one right or another, or to the rights of one person or another. The protection of one right may require limits on other rights.
This does not contradict the claim that rights are interdependent. In many cases, rights are dependent on other rights. In other cases, rights require limits on other rights.
How do judges decide which right has priority? Normally this is the right that in the given circumstances best protects the different goals and values of rights. Take for example the conflict between the right to freedom of expression of a journalist and the right to privacy of a public figure. What value is served by the publication of the sexual habits of a politician? None, I believe, except, of course, when these habits influence his or her public role. Normally, the right to privacy should prevail in such a case. A publication describing the sexual habits of someone does not contribute to any of the values that rights are supposed to serve, such as prosperity, peace etc. On the other hand, the right to privacy of the politician obviously does contribute.
The flexibility of human rights is expressed in the way in which these rights are limited. A country with a serious problem of violence, crime or terrorism needs a strong police force. Certain rights will then have to give way to the so-called integrity rights (life, physical integrity, security etc.) and will have to give way to a larger extent than in other states. States that face a persistent and widespread problem of racism can be forced to impose more severe limits on the freedom rights of some, in order to protect the equality of others. Maybe Germany does have to be less forgiving towards neo-Nazis and their right to speech and to associate – maybe it even needs a law against them.
It’s true that circumstances can be used as an excuse to violate rights. But that’s not an argument in favor of uniformity.
More posts in this series are here.