What Are Human Rights? (55): Universal, Not Uniform

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.

1.

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).

2.

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.

Advertisements

What Are Human Rights? (49): Universal Rights

Human rights are universal rights, rights that all human beings have for no other reason than being human. That’s almost a tautological statement, and one which has been repeated millions of times. Universality is implicit in the name. This sets human rights apart from other types of rights, such as legal rights which only matter to those subject to the particular jurisdiction in which these legal rights apply, or contract rights which apply only to the people bound by a particular contract.

Despite this definition of human rights, their universality is often contested. Does a person with Down Syndrome have the right to work? Does a newborn baby have the right to free speech? Does a criminal have a right to freedom of movement? Do all potential immigrants have a right to unemployment benefits? Does a terrorist who can order his colleagues to stop torturing three other people have the right not to be tortured? Questions like these are often rhetorical: the unstated but understood answer is “of course not”. People who ask these questions perhaps do so because they want to deny the universality of human rights, and this denial in turn may come in handy when they try to justify violating the rights of some.

There’s in fact an easy answer to this apparent paradox. The universality of human rights is, like human rights themselves not a fact but an aspiration. We have to work to make it a fact, all the time knowing that we’ll probably never get there. We have to work to improve people’s capacities so that they can more fully enjoy their rights. In the case of the disabled, we should recognize that disability, rather than an inborn or acquired lack of capacity, is in fact – in part at least – a capacity that is reduced as a result of the way in which we have chosen to organize society. In the case of criminals, we tend to assume rather too quickly that criminal punishment necessarily involves restrictions of people freedom of movement. And so on. None of the rhetorical questions cited above strikes a fatal blow to the ideal of universality.

More on universality is here. More posts in this series are here.

Religion and Human Rights (34): What Happens When You Want to Make Politics and the World More Religious?

You’ve probably guessed from the title where this post is heading, so in order to avoid the obvious misunderstandings I’ll reiterate my basic position on the role of religion in contemporary society: I’m an agnostic, but I fully understand the importance of religion for religious people; I believe that part of the function of human rights is to protect those people, and that another part of that function is to protect the rest of us against them; yet I don’t believe some of the overblown but unfortunately very fashionable statements about the extent of the religious threat to society; and neither do I believe that principles such as the separation of church and state imply religion should have no voice at all in democratic politics.

So, now that this is out of the way, let me try to answer the question in the title. The answer will be predictable, but perhaps also somewhat illuminating in the details.

In modern-day democracies, rulers no longer claim a divine right to rule and most of them admit that they don’t have the authority to further the cause of God on earth by violent and coercive means. They can speak and persuade, but wars against against foreign sinners and oppression of domestic heretics is not done. However, the word “most” does a lot of work here. Many democratic politicians, backed by their religious supporters, still try to shape politics and the law according to religion and try to use those earthly powers as means to make the world more religious. That’s fully consistent with the universalist claims inherent in their religious beliefs: their God isn’t just their God but the God of all humanity, and all of humanity has a duty to obey the word of God. If this obedience can be promoted through the use of politics and the law, then religious citizens have a religious duty to try. Their attempts typically follow a number of steps:

1. Demand religious freedom

They start of from the very reasonable claim that they themselves have a right to live their own lives according to their religious faith, unmolested by the state or by other citizens. The first of their religious duties is to obey the word of God themselves, and they should be allowed by the state and the law to do so. That is indeed their human right and they are entirely justified in using politics and the law to protect that right.

2. Demand religious exemptions

However, some religious people interpret this right to religious freedom in a rather loose way. For example, they see this right not merely as a means to fend off anti-religious and hostile legislation or other forms of state action intentionally interfering with their religion (or hostile private action for that matter). They see their right to religious liberty also as a right to disrespect general and non-religiously motivated legislation which they believe violates the word of God.

For example, a law imposing a military draft may be seen as illegitimate by the adherents of a pacifist religion, and a law requiring the use of crash helmets should not be forced upon the followers of a religion that demands the wearing of turbans. Hence, religious people often demand that they should be exempted from the application of certain laws – or at least their right to conscientious objection should be respected – when they view those laws as being against the word of God.

I’ve argued elsewhere that such exemptions – which take us one step further than simple religious liberty – can be justified in some cases, but that we should be careful not to undermine the rule of law.

3. Demand religious laws

Some want to go even further than that. From the point of view of a religious person, the two previous demands on politics and the law were strictly self-regarding: religious people should be allowed to live their own lives according to their own beliefs. However, as I stated above, religion is hardly ever purely self-regarding. Most religious people feel a strong urge to work for the salvation of their fellow human beings. Hence, instead of demanding personal exemptions from laws that inadvertently violate the requirements of their religion, some religious people want to abolish the laws in question and replace them with laws that better promote those requirements.

If we take the same example as above, they may want to abolish the law imposing a military draft, rather than just asking for a personal exemption. Their religion requires not just that they personally refrain from violence, but that humanity does so as well. Hence they would like to end the military altogether rather than just their personal participation in it.

Or take the more salient example of laws permitting same-sex marriages. Many religious citizens claim a right to abolish such laws. Their religion doesn’t permit what these laws permit. And even if they have received a personal exemption so that the laws don’t force them to act against their religion (same-sex marriage laws don’t force people into a same-sex marriage, nor do they force people to validate and recognize the same-sex marriages of others), laws such as these do make it possible for other people to act against the word of God. Hence, some religious people want the abolition of such laws, thereby saving people in the eyes of God. However, the implication is that people’s rights are violated by the religiously inspired removal of laws that guaranteed people’s rights. Maybe religious people want to claim that this is the price to pay for the preservation of their right to religious liberty, but I fail to see how people’s religious liberty is violated by the self-regarding actions of others. (More on the relationship between religious liberty and same-sex marriage is here).

4. Demand religious laws that violate human rights

Now, it’s perfectly OK for religious people to try to move the law in a certain direction, just as it is OK for other people to try to move the law in their preferred direction. I don’t buy the theory that says that in a diverse and tolerant modern democracy religious people should refrain from using religious reasons for legislation or the reform of legislation (sometimes called the Doctrine of Religious Restraint). Religious people are allowed to work against what they see as anti-religious laws and also to promote religiously inspired laws, on the condition that the laws we end up with have managed to convince a majority and do not violate the rights of others (see here for a detailed version of this argument).

For example, a law abolishing the draft or the military could be a religiously inspired law (although it can simultaneously be inspired by secular reasons), but it could also be acceptable when it’s clear that it doesn’t violate anyone’s human rights, e.g. assuming there is no military or terrorist threat. When there is such a threat the law could lead to rights violations and hence should be resisted. Things are clearer in the case of a religiously inspired law outlawing same-sex-marriage. Such a law should always be resisted since people have a human right to get married. The same is true for blasphemy laws and a whole range of other religiously inspired laws.

The efforts by religious people to make politics, the law and the world more religious go too far when those efforts include legislation

  1. that makes non-religious people or people adhering to another religion live according to the precepts of the legislator’s religion, and
  2. that violates the human rights of some.

Those efforts are understandable from the point of view of the religious legislators, since their religion requires them to work for the salvation of everyone, but they are not acceptable.

5. The ultimate step

So there’s an increasing intensity in the demands to make politics, the law and the world more religious: the law should not intervene with religion; then the law should be more considerate of religion and provide exemptions; then it should promote religion; and then it should promote religion even if that means violating the human rights of some. If, however, there is something blocking this increasingly intensive intervention and the law and politics do not cooperate sufficiently, some religious people will take matters into their own hands. After all, one can’t accept that the word of God is trumped by an anti-religious democratic majority or by a religious law that isn’t sufficiently respected. Direct action to make the world more religious is then required. You may then see someone attacking a Danish cartoonist for being blasphemous. Or someone else killing abortion doctors. Fortunately, very few religious people go all the way, which is the reason for the optimism I expressed at the beginning of this post.

Should we conclude from this that it’s best to keep religion as far away as possible from politics and the law? I don’t think so. As long as religious people respect human rights they can do as they please. Given the importance of religion to many of us, it’s illusory in the best case and counterproductive in the worst case to try to artificially ban religion from politics and the law.

Other posts in this series are here.

Religion and Human Rights (33): Christianity and Human Rights

Nowadays, when religion is viewed through the lens of human rights, the subject of discussion is most often Islam and the rights violations it is supposed to produce. Other religions seem almost unproblematic in comparison. Some even claim that human rights are the heritage of the Christian West. That’s not entirely fair to Islam, and neither is it a correct description of Christianity or of the history of human rights. Both Islam and Christianity can be criticized from the perspective of human rights. It’s about time that Christianity receives some of the same scrutiny that is heaped on Islam on a daily basis.

First, though, let’s list some arguments for the defense. Many aspects of Christianity are beneficial to human rights. For example, there’s a long tradition of pacifism in Christianity (in some Christian churches more than others, and in theory more than in practice). That’s based on the quote from the sermon on the mount about showing the other cheek. Poverty and charity as well are prominent in Christian teaching (for example in the parable of the good Samaritan). Also important from the perspective of human rights is the teaching of the equality of all human beings: we are all created in the image of God, we’re all sons and daughters of Adam and Eve. Hence differences between races, genders, nationalities etc. are contingent and morally irrelevant. And there’s of course the sacredness of human life. Finally, belief in hell – to the extent that this is still a part of present-day Christian faith – is associated with lower crime rates (I assume the fear of punishment in the afterlife limits deviance in this life).

However, it’s just as easy to cite arguments for the prosecution. First, the noble principles just cited were rarely respected. And secondly, there are a lot of other principles that are incompatible with human rights. Like all monotheistic religions, Christianity has universalist pretensions: the Christian God is the God of all, and non-believers are mistaken, even sinfully mistaken. They need to be brought within the right faith. Hence missionary work, colonialism, religious wars and other forms of aggressive proselytizing. All such activities can and often do violate human rights.

As a result of this universalism, freedom of religion is only grudgingly accepted if at all, as is the separation between church and state. Its universalist pretensions often justify coercive means, including the state, as a means to impose Christian teachings (the issue of gay marriage is only one example). It also seems that, theoretically at least, Christians can’t accept democratic decisions that go against the will of God, and are morally obliged to revolt against such decisions. Politics is the handmaiden of religion, and political rights are only contingently secure, i.e. they are secure as long as their results conform to the will of God and as long as Christians don’t believe that its practical and feasible to impose this will when rights deviate from it. Anti-abortion terrorism comes to mind.

Publicity and appearance are important parts of human rights. Different human rights protect the public appearance of a diversity of opinions, beliefs and identities, and their discursive interaction. That’s the idea of the marketplace of ideas. Christianity, however, doesn’t like publicity, for a variety of reasons. First, the relationship to God is more important than relationships between people, and the afterlife is more important than earthly life in community. There’s a strong sense of detachment from the affairs of this world, although this sense was more common in early Christianity. The hidden and the mysterious are valued more than the discursive, ostentatious life of public debate.

Appearance is not only of secondary importance, but also morally dubious. Christianity rejects seeing and being seen. To be good is the supreme value, but goodness must hide itself. When good works become public, they loose some of their goodness because they are no longer done simply for their goodness but for honor, appreciation etc. (as Arendt reminded us). In this respect, there are some similarities between the saint and the criminal.

To the extent that public debate is valued, it isn’t because of the importance of the marketplace of ideas, a major justification of human rights. Free speech doesn’t serve the exchange of arguments, public reasoning or the improvement of the quality of thinking. It only serves to proselytize, to distribute the truth, and this truth is given before public discourse even takes place. Belief is revealed and contemplated individually and in solitude, and is not the product of discussion or debate. Contemplation of God does not even require company, let alone debate. In the words of Tertullian : “nec ulla magis res aliena quam publica” (“nothing is more strange to us than public matters”).

This rejection of the public space in favor of the mysterious, of individual contemplation and of the afterlife, can result in political acquiescence. The powers-that-be are accepted, even if they are cruel and oppressive, since true salvation comes only after death. (That’s Marx’ famous criticism).

And there are other points of criticism: notwithstanding the equality of all human beings as children of God, women are responsible for the original sin, and the Jews for the murder of Christ. And even if everyone is an equal son or daughter of God, that means that everyone is fit for salvation. Which in turn means that you have to go to the far ends of the world to convert the heathens, for their own good.

A mixed record, to say the least.

Other posts in this series are here.

What Are Human Rights? (40): Properties & Characteristics of Human Rights

I imagine readers are faced with a “haystack” problem when searching this blog for an overview of properties of human rights. I did write about this many times before, but usually one property at a time, and the respective posts are probably buried underneath a load of other posts (there are literally thousands here). So I thought to myself, why not give a summary, and link to some of those older posts. Here goes.

Human rights are moral claims (and hence part of morality, but only part of), that

  • have a very high if not an absolute priority compared to other moral or non-moral claims (such as claims based on honordisgust, utility etc.)
  • require mandatory (as opposed to discretionary) compliance (more here)
  • are therefore more than mere aspirations (more here)
  • are necessary for the protection and realization of certain fundamental, basic and universal human values and interests (more here)
  • are therefore instrumental principles in the sense that we don’t want them for their own sake; in other words, they are means and not goals (more here and here)
  • are universal: all human beings have certain rights, for no other reason than their humanity and the values attached to humanity; this means that human rights precede and trump considerations of national sovereignty and that national sovereignty therefore does not provide a means to escape human rights obligations (more here)
  • are pre-political: they are a moral order that has a legitimacy and existence preceding contingent social, legal, political, cultural and historical conditions and that can be used to assess and question those conditions (more here)
  • are independent from legal/social/cultural/religious recognition: human beings have human rights even if the laws and customs of their country/group do not recognize or perhaps even violate these rights – although people’s rights are obviously much more secure when they are translated into law and custom (more here and here)
  • are unconditional: people have rights without conditions; respect for rights is not conditional upon fulfillment of duties, status, legal recognition of rights or persons etc. (more here)
  • are inalienable: since rights are owned by human beings because of their humanity, these rights aren’t given and hence can’t be taken away; people still have rights when those rights are violated (more here)
  • are not forfeitable: people can’t give their rights away for the same reason that these rights can’t be taken away; however, people can decide that they don’t want their rights enforced (more here)
  • are equal rights: rights are equal in two meanings of the word; they are equal between people (because all people are equally human) and they are equal to other human rights (there are no “basic” and “less urgent/important” human rights) (more here)
  • are interdependent: different rights need each other, violations of one right most likely lead to violations of other rights (which is one reason why there can’t be a core of “basic” rights) (more here)
  • are limited: rights have to be balanced against each other because respect for one right can imply a violation of another right; balancing means imposing limitations on some rights for the benefit of other rights (or of the rights of others); the fact that there are no basic rights makes this balancing a lot more difficult but not impossible – conflicting rights then have to be balanced taking into account the way in which the two conflicting rights realize the values they are supposed to realize
  • are not politically neutral: not all forms of government can equally respect human rights; there’s a close link between human rights and democracy (more here)
  • are multidimensional: human rights aren’t just a matter between citizens and the state; they are addressed at everyone and impose duties on everyone (which means that they are also transnational and transgenerational) (more here)
  • are simultaneously positive and negative: they always and everywhere require both forbearance and active intervention (although in different degrees according to the circumstances) (more here and here).

And I’ll put in an “etc.”, just to be sure. Related posts are here, here and here.

The Ethics of Human Rights (51): Human Rights and Universal Moral Grammar

It seems that human morality is to some extent ingrained in the human mind and that humans possess an innate moral faculty which we can call Universal Moral Grammar (UMG). “Innate” here refers to

cognitive systems whose essential properties are largely pre-determined by the inherent structure of the mind, but whose ontogenetic development must be triggered and shaped by appropriate experience and can be impeded by unusually hostile learning environments. (source)

Perhaps it’s evolution that has wired moral grammar into our neural circuits. Social living requires constraints on behavior and those constraints can be favored by natural selection because of their survival value.

This theory is similar to the linguistic claims made by Chomsky about universal grammar and about the fact that even very young children seem to have the ability to apply grammar rules that they obviously haven’t been taught. Analogously, we know moral rules without having learned them, and this knowledge is universal across cultures.

For example, 3–4-year-old children use intent or purpose to distinguish two acts that have the same result. They also distinguish ‘genuine’ moral violations (e.g. battery or theft) from violations of social conventions (e.g. wearing pajamas to school). 4–5-year-olds use a proportionality principle to determine the correct level of punishment for principals and accessories. 5–6-year-olds use false factual beliefs but not false moral beliefs to exculpate*. (source)

Indeed, even animals have feelings of empathy and expectations of reciprocity.

The UMG can help to explain some universal and cross-cultural intuitive judgments in moral thought experiments such as the Trolley Problem (almost universal acceptance) or Fat Man and forced organ transplant (almost universal rejection). These universal judgments are best explained by the existence of stable and innate intuitions and tacit knowledge of rules and concepts because the judgments are quick, unreflective, difficult to justify and identical across demographic groups (including children).

Many people cannot articulate the foreseen/intended distinction [between these moral dilemmas] …, a sign that it is being made at inaccessible levels of the mind. This inability challenges the general belief that moral behavior is learned. For if people cannot articulate the foreseen/intended distinction, how can they teach it? (source)

None of this excludes the possibility that a lot of what we think we know about morality comes from teaching, nurturing, our own reasoning or even our self-interest. Furthermore, innate dispositions, if they exist, can be developed or blocked. Hence, the UMG theory is not necessarily deterministic or self-sufficient, and can accommodate other types of moral cognition as well as the less than universal factual morality of mankind (if UMG were all that mattered and if it were as deterministic as it often sounds, then there wouldn’t be immoral acts).

What does all this have to do with human rights? Those rights are outside of the UMG, partly because they are too specific. UMG is more about very abstract and general rules, such as intent, proportionality, people as ends instead of instruments etc. However, some human rights may be a part of UMG: do not kill, rape or steal are universal moral rules and are part of the UMG that even children know, and they are also translated into human rights.

More importantly, however, the existence of a UMG belies cultural relativism and can support the construction of a detailed universal morality. And finally, elements of UMG, such as the notions of intent and proportionality in moral condemnation and of moral exculpation based on false factual beliefs, have important ramifications for criminal justice and hence for human rights. Human rights restrictions on criminal punishment can be independently supported by UMG.

More posts in this series are here.

* For example killing someone because you mistake the person for a deer, as opposed to killing someone because you believe killing is OK.

What Are Human Rights? (26): The “Human” Part of Human Rights

Why do we need the qualifier “human” when we talk about human rights? Why is the word “rights” not enough? The obvious reason is that we want to broaden the class of protected persons to cover the whole of humanity. Traditionally, rights were accorded only to specific groups of persons, e.g. the nobility, guilds, citizens etc. The essence of human rights is their universality, which means that they are rights that belong to human beings whatever group they are part of and wherever they happen to live. People have certain rights for the simple reason that they are human; there’s no need for any other reason such as group affiliation, nationality, form of government, legal system etc.

Human rights can thus be seen as the end state of a long expansionary evolution during which ever broader groups of people acquired certain rights. However, the inclusiveness of human rights has often been countered by exclusionary movements. If some want to include a maximum number of people under the protection of rights, others have an interest in the continuation of rights violations. The latter have two options: challenge human rights directly (e.g. by claiming that they are western rights, godless rights etc.), or take the more indirect route: maintain the notion of human rights but at the same time exclude some categories of people from humanity.

Many rights violations are explicitly or implicitly justified by reference to an absence of humanity on the part of the targets of those violations. The terror inflicted by Al-Qaida, the televised beheadings of innocent hostages etc. proves that these people are less than human. They are “animals” and can’t therefore claim that their “human” rights are respected when they are executed extra-judicially, eliminated by way of targeted killing, tortured, or arrested indefinitely in Guantanamo. Perhaps people don’t mean it literally when they say that terrorists are animals. Perhaps they do accept that they are human – they look human after all – but at least they are lesser humans, and hence not deserving the same rights as the rest of humanity. Perhaps they are merely barbarians, a separate and inferior class of humans.

The same attitude is evident in certain non-consequentialist justifications of capital punishment: the people who are executed are “the worst of the worst”, “animals” that have proven their inhumanity by way of their crimes. Also the native populations of colonized territories were considered to be non-human or at least lesser humans. There was a time when westerners weren’t sure that these people had a “soul”, a classic if currently somewhat outmoded distinguishing mark of humans. For those who believed they didn’t have a soul, their enslavement and murder was as acceptable as keeping and slaughtering animals. It took a Papal Bull to attempt to reign in the more extreme colonizers, without much success by the way.

This raises the fundamental question: what is “human”, what does it mean to be human, what is humanity? Respect for human rights depends on the type of answer we can agree on. Ideally, we would like to have a broad definition that makes it difficult if not impossible to exclude large portions of homo sapiens from the category of humanity and to violate their rights as a result of this exclusion. Claiming that someone is human because of his or her “good behavior”, e.g. non-terrorist and non-murderous behavior, is not the right way forward. “Good behavior” is a moralistic notion that can be defined in lots of different ways. Hence we potentially exclude the large majority if not the totality of people from humanity if we go along that road.

On the other hand, a non-moralistic definition, for instance a naturalistic or biological one, isn’t necessarily better. Given the way in which we treat animals, it’s probably best to avoid a definition of humanity as a distinct animal species (in Plato’s phrase, the “featherless biped“). An animal species, however distinct from other species, still consists of animals that are in some sense like other animals belonging to other species. We don’t have moral rules that tell us to treat cats differently from dogs, so a definition of humanity as a distinct animal species is unlikely to yield moral rules that tell us to treat humans differently from cats or dogs.

However, biology can be a useful element in the definition of humanity since it’s biology that justifies some human rights. Some of the biological vulnerabilities that are distinctive of us featherless bipeds, and perhaps even some of the vulnerabilities we share with some non-human species (e.g. the ability to suffer) can be seen as reasons to respect certain human rights. (Although in the latter case the price to pay would be to grant the same rights to non-human species that have the same vulnerabilities; those human rights would then no longer be strictly “human” rights. But perhaps that’s a price we should be willing to pay).

However, for the reasons given above biology is hardly sufficient for the definition of humanity. I guess we also don’t want to use the concept of “soul” to define humanity, given its association with religion. Ideally, we want to be persuasive to the non-religious violators of human rights as well, and those won’t be swayed by soul talk (perhaps they won’t be swayed at all but at least we can try). “Human nature” is a discredited concept, dignity is excessively vague, and moral agency seems to be less typical of humanity than we once believed.

So what can we use? I’ve argued elsewhere that some values that are typical of and in certain cases exclusive to human beings – or homo sapiens – can be seen as adequate justifications of human rights, since these rights serve the realization of those values (examples of those values are the importance of thinking, of social and cultural life, of religion, of prosperity, peace etc.). Excluding certain specimen of homo sapiens from the category of humanity or “real humanity” is then an attack on values that are shared by all specimens; rights violators then unwillingly attack their own values.

However, one problem remains. People’s rights aren’t necessarily safe, not even if we can settle the question of humanity and define the concept in such a way that it becomes difficult to exclude people from humanity. Humanity itself can be the problem. If human rights can be violated when a person’s humanity is denied, it’s also the case that a person who’s merely human runs the same risk. Hannah Arendt has often cited the plight of stateless persons before and after WWII, people whose nationality had been taken away from them by their racist, fascist or xenophobic governments, and who therefore only had their “humanity” left. In the best of cases, they were refugees in foreign countries where their rights were far from safe given that many countries only protected the rights of their own citizens.

The notion of humanity inherent in human rights is also incompatible with widespread feelings of partiality: most of us care more for our family and friends than for the rest of humanity, and some of us also care more for fellow-citizens. Somehow that’s inevitable: not only is it psychologically impossible to care for all the misery in the world – there’s simply too much of it – but it also seems morally right to care more for those who are closer.

In all those examples, we see that human rights have to come back to partiality. Inherent in human rights is universal inclusiveness, but at the same time we see that human rights can only be adequately protected when they are at the same time rights of very specific subgroups of humans: citizens, soldiers, family etc.

More on dehumanization and universality.

The Ethics of Human Rights (35): The Global Origins and Foundations of Human Rights

As Jacques Maritain put it when discussing the work on the Universal Declaration of Human Rights:

the nations should and could reach practical agreement on basic principles of human rights without achieving a consensus on their foundations. (source)

In other words, different countries and cultures in the world can – and could in 1948 – agree on the list of human rights as long as nobody asks them why, because they all will have different reasons. Even if we take the charitable view and assume that no one accepts the UDHR and human rights in general for opportunistic reasons (because it reduces international pressure and confers legitimacy for example), we still have to say which substantial reasons different nations, cultures or religions tend to use in order to justify the importance and acceptance of human rights. These reason will emanate from their own culture, religious texts, traditions and history.

To some extent, different cultures can and do find their own foundations of human rights. In this sense, human rights aren’t simply western rights which are imposed on or adopted by the rest of the world. Of course, some of these foundations will be universal because some values are universal in the sense that they belong to all cultures in the world. Homicide, for example, is universally considered to be immoral. In other cases, however, different cultures will find different reasons to justify human rights. For example, the right to free speech in the West will be viewed as justified by the necessity of counterbalancing government power, whereas in other cultures it may be viewed as something to promote prosperity or religious tolerance.

There’s a nice German term for this: human rights are said to be Begründungsoffen, their justification or foundation is open in the sense that they can be justified by different religious, cultural or intellectual traditions. That’s a big advantage. One can legitimately object to making universal claims grounded on such particularized foundations as Christianity, dignity, likeness of God etc. Muslims probably won’t accept human rights if they can only be justified by the teachings of Jesus. They can be justified in this way, and that’s a powerful justification for Christians, but they can also be justified in other ways. There isn’t one ultimate justification for human rights. All different justifications have a particular plausibility for a certain group of human beings, whether this group is a culture, a nation or a religion.

These different cultural paths to human rights, based on different cultural and historical resources, should, however, not discourage dialogue. If you’re convinced that different cultures can find their own way to human rights, you may conclude that intercultural dialogue isn’t necessary. It is necessary, because it’s utopian to believe that each culture will find its way to an identical set of human rights or an identical understanding of human rights. The moralities of all or most cultures or groups will condemn homicide, torture and slavery, but will perhaps provide different exceptions. And other values, such as free speech or freedom of religion may not find an equally strong justification in all cultures. It’s unlikely that the entire set of human rights as present in the Universal Declaration will find a strong and broad justification in all cultures. There’s still a lot of disagreement between cultures on the foundation, importance and extent of things such as discrimination, religious freedom etc.

That is why human rights treaties and declarations don’t just codify a universal moral consensus but also try to steer different moralities into a certain common direction. They want to change norms rather than just describe them. In other words, they formulate a justified morality rather than an existing morality. They want to create a consensus, not describe one. Creating a consensus is impossible if all cultures limit themselves to independently and solipsistically justifying human rights using only their own resources. Intercultural dialogue is necessary, and this dialogue will not just be the exchange of descriptions of different moralities but will try to go beyond existing moralities and formulate a consensus that is wider that the sum of existing norms. It will contain a set of norms that are based not solely on existing moralities but also on justified reasons. Not just on the sum of different moral codes but on the agreements of people discussing about good reasons for human rights, reasons that go beyond “my God/prophet/history/tradition says …”. This dialogue will result in a wider global agreement on the importance of human rights, an agreement that can ultimately result in greater respect for human rights.

For the benefit of those who don’t even believe in the first step – finding the sources of human rights in different cultures – here’s a sample of those sources:

  • Christianity, and more generally the Abrahamic religions – so that includes Judaism and Islam – postulate the equality before God. All human beings are equal creatures of God, and created in the image of God. That notion bestows a sacredness to life that is not a function of national origin, status or affiliation. This is also apparent in the Judaic maxim that he who destroys one person has dealt a blow at the entire universe and he who saves one person has sustained the whole world.
  • Protestantism has developed the freedom of conscience, the right and responsibility of every man to worship as his conscience dictates, to make his own judgments, uninhibited by a religious hierarchy.
  • The Indian emperor Ashoka (third century BC) is famous for the Edicts of Ashoka, a collection of 33 inscriptions on the Pillars of Ashoka, as well as on boulders and cave walls found throughout India. These are social and moral precepts in favor of tolerance and individual freedom, the doing of good deeds, respect for others, generosity, fairness in the exercise of justice, caution and tolerance in the application of sentences, and kindness to prisoners. His was the first welfare state, providing free education and hospitals.
  • Akbar, the great Mughal emperor in sixteenth century India, was famous for his religious tolerance.
  • The Qur’an claims that there can be no compulsion in religion. Islam also knows the principle of equality and generosity: “Not one of you (truly) believes until he wishes for his brother what he wishes for himself” (An-Nawawī’s Forty Hadith). Caliph Omar, in the 7th century: “Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them”.
  • Mencius, arguably the most famous Confucian after Confucius himself, has said: “Try your best to treat others as you would wish to be treated yourself, and you will find that this is the shortest way to benevolence”.
  • Lao Tzu, a central figure in Taoism, has said: “Regard your neighbor’s gain as your own gain and your neighbor’s loss as your own loss”.
  • In the Mahabharata, one of the major Sanskrit and Hindu epics, it says: “This is the sum of duty: Do naught unto others which would cause you pain if done to you”.
  • Siddhartha (the birth name of the founder of Buddhism, Gautama Buddha) has said: “What is displeasing and disagreeable to me is displeasing and disagreeable to others too. How can I inflict upon another what is displeasing and disagreeable to me?” In Buddhism, the human perfection that is sometimes called “enlightenment” consists, in part, in discerning the transcendent truth that the Other is infinitely precious and in acting toward the Other in accord with that discernment, namely, with compassion (in the words of Thich Nhat Hanh).
  • Baha’i, a monotheistic religion founded in nineteenth-century Persia, claims: “Lay not on any soul a load which ye would not wish to be laid upon you, and desire not for any one the things ye would not desire for yourselves. This is My best counsel unto you, did ye but observe it”.
  • Jainism is an ancient religion of India that prescribes a path of non-violence towards all living beings: “One should treat all creatures in the world as one would like to be treated”.

Granted, not all of these moral precepts can be immediately translated into recognizable human rights, and many precepts underlying human rights are difficult to find here. Yet, we can claim that all these cultural sources can be used, to some extent, to justify human rights.

The Ethics of Human Rights (34): Human Rights, Moral Universals, and Cultural Relativism

The universality of human rights is arguably their most important attribute. I won’t repeat my arguments in favor of this claim. “Universality” here obviously means something like “universal value”, “universal importance”, “universal moral claims” or “universal desirability”, not factual universality. Human rights aren’t universally protected. If they were, we would hardly need them. I also won’t repeat what I’ve said before on the means to go from merely moral or legal universality to actual universality.

Now, I’ve gone so far as to claim that human rights not only should be universal values (for reasons specified elsewhere), but in fact are universal values. The fact that they are regularly violated doesn’t change the equally salient fact that they are universally recognized as important moral goals.

However, claims of the existence of so-called moral universals, and especially claims that some moral values should be universals, immediately provoke the counter-claim of cultural imperialism. Supposedly, different cultures have developed their own moral codes, adapted to their own identity, circumstances and history, and moral diversity is a more important goal than moral universals. This counter-claim is often categorized under the heading of cultural relativism.

Personally, I believe that moral diversity and cultural identity are indeed important values, but also that moral diversity and relativism can be and often are used as a justification for rights violations that are contingently rather than culturally motivated (see here and here for my criticism of cultural relativism). And anyway: the existence or the promotion of moral universals in some areas of life doesn’t have to exclude moral diversity in other areas. It’s not because some values are or should be moral universals that all other values, cultures or identities are in danger of disappearing altogether. We can have both: moral universals and moral diversity. And both can reinforce each other if we manage to argue convincingly that some moral universals aren’t just export products, or the result of colonialism or of the omnipresence of the western type of state. Indeed, I believe that globalization, assimilation, colonialism, trade and universality of the modern nation state all contributed to the existence of moral universals, but also that some universals are the product of a global convergence of genuinely local moral rules. (I’ll try in a future post to give an overview of the origins of human rights in different cultures of the world). If we can show that all or most cultures in the world have independently arrived at the same or similar moral rules, then we have moral universals that are build on respect for moral diversity and not just on the export and imposition of one morality on the rest of the world.

However, that’s extremely difficult to prove. It’s relatively easy to show that some moral values are in fact moral universals, but it’s much harder to show why they are moral universals: are they because they have been imposed through colonization, promoted through trade etc. or because they have grown “organically” from within the different cultures that have converging rules? Still, what we can argue is that when there are universals, the burden of proof is on those wanting to argue that they are not genuine but the result of external imposition. The existence of universals is a prima facie argument for their “genuineness”. Also, what’s genuine? Even values that have been imposed or imported a long time ago can have become the genuine morality of the people concerned.

Some evidence of the actual existence of moral universals comes from a paper about a comparative law investigation into the universality of the prohibition of homicide. Such a prohibition is an indication of the moral value of the right to life. The paper shows that this prohibition is in fact universal. Of course, the paper focuses on the law, and the law is at best an imperfect witness of morality (Marx would argue that it is rather an instrument of immorality). But the law is easier to find than morality. And – again – the burden of proof is on the opposing side: if the law indicates universality – as it does in this case and in many others – then it’s up to those claiming non-universality to give counter-evidence.

Human Rights and International Law (20): Ratifying the Convention Against Torture With the Express Purpose of Torturing Anyway

There’s an interesting paper here arguing

that torturing regimes may deliberately sign the Convention Against Torture intending to violate it, in order to signal to domestic opponents that they are so determined to hold on to power they will torture them in spite of the cost they incur for treaty violations. … “Messrs Hollyer and Rosendorff believe the intent [of signing the treaty] is to show how dedicated the regime is to maintaining power, how much it will sacrifice. But there is another possible signal: the regime shows its opponents that it knows international pressure cannot disturb its grip on power in the slightest”. (source)

[A] regime that tortures its opponents and refuses to sign the Convention Against Torture shows that it fears international opprobrium. A regime that tortures its opponents and blithely signs the Convention Against Torture anyway shows that it fears nothing. (source)

This is the proper occasion to link back to an older post of mine on the difference between normative universality and real universality.

What is Democracy? (49): An Export Product?

I strongly believe that democracy is a universal value and the best possible form of government for any country in the world (which doesn’t mean that democracy should necessarily take the same form everywhere). This is based on another belief, namely that democracy promotes favorable outcomes (such as prosperity, economic growth, quality of governance, respect for human rights etc.) and is also a good in itself.

However, democracy promotion poses some logical, moral and practical problems. I want to focus on the logical and moral ones here.

Shortly after the French Revolution in 1789, Napoleon Bonaparte propelled his armies across Europe on behalf of the universal principles of liberty, equality and fraternity, somewhat in the style of the U.S. forces now deployed in Iraq and Afghanistan. Napoleon’s armies occupied Europe because they wanted to export French principles and French civilization. Everybody had to follow the French lead and had to enact a “French” Revolution, assisted by France if necessary. France was the advance guard of the struggle of humanity for freedom and against old-style authoritarianism.

A military type of democratic imperialism in the style of Napoleon is of course only one of many ways to promote democracy abroad and certainly not the best one. Attacking, conquering and occupying other countries, even with the purpose of liberating these countries from oppression and archaic authoritarian forms of government, seems to be highly illogical and self-contradictory. It’s incompatible with the very principles of democracy (democracy is self-determination). This is shown by the fact that, in most cases, the democratic crusade of the French failed to produce democracy in the “backward” countries of destination. On the contrary, it created resentment. The occupied countries, quite understandably, rejected France, and hence rejected its principles as well, perhaps for no other reason than the fact that it were principles of a hostile and conquering country. Traditional and often non-democratic political practices were reinvigorated by feelings of national pride that came with the struggle against France. Grave consequences followed, especially in 20th century Germany. Perhaps something similar can be said of current attempts at military-backed “nation-building”.

Other, non-military means to promote democracy around the world are not without problems either. If you want to liberate the world, then you will tend to see yourself as a model, superior to the rest and more “civilized” than the rest. This kind of megalomania will cause a reaction: people will stress their difference. It will, in other words, create the opposite of what is intended.

If people want to have democracy, then it is of course possible and acceptable, maybe even necessary to assist them and to help them in their struggle against their government. But can we promote democracy if the people of a country do not want to have a democracy? Is it not undemocratic to force someone to be democratic? On the one hand, democracy implies respect for the will, the choice and the consent of the people. But, on the other hand, if we want to create democracy with undemocratic means, we have the analogy that peace is not always restored with peaceful means either.

If, as this analogy suggests, you are allowed to impose democracy from the outside and without the agreement of the people, then you obviously give the appearance of incoherence. You don’t act in a democratic way because you’re not interested in the will of the people (the will of the state is of no importance here, although in most cases it is this will rather than the will of the people which hinders democratization). The question is: are we allowed to impose or enforce democracy in an authoritarian way? Or do the people have a right to reject democracy? Does democracy not imply the right of the people to decide against democracy and to choose something else?

There are several problems with this kind of question.

  • First, it forces a system to be self-destructive (it forces democracy to respect the will of the people in all cases, even when this means respecting the choice of the people against democracy), which is clearly an unreasonable requirement.
  • The second problem is that the question reduces democracy to a system of popular choice and obscures all other functions of democracy.
  • Thirdly, those castigating democracy promotion because it doesn’t respect the anti-democratic will of a people suffer from a paradox of their own: choosing something other than democracy is choosing a system in which you cannot choose. It is difficult to call this a choice. The decision not to decide cannot be called a decision either. A people who choose against democracy contradict themselves and are at odds with their own opinions, in the same way as the democrat forcing democracy down the throat of the same unwilling people.
  • Finally, a people can only choose for or against a democracy when they already live in a democracy. In a non-democratic regime, their choice is of no importance; it is not taken into account and often even impossible to determine.

In spite of all this, however, it’s possible that there is a tentative understanding that a certain people living in a certain dictatorship do in fact make the illogical choice of not being able to choose. So the question remains: are we allowed to impose democracy against the choice of those concerned? Or, in other words, are we allowed to promote democracy with undemocratic means? If we say that peace is not always promoted with peaceful means either, then Stalin could reply that he tried to liberate the Russians from barbarism by using barbaric means. There is not much difference between Stalin’s statement and the statement that we can liberate nations from undemocratic regimes by using undemocratic means. So we must be careful with this kind of reasoning.

The important thing here is the difference between the imposition of democracy on an unwilling (or seemingly unwilling) people, and simple democracy promotion. There’s no contradiction in trying to convince people to choose for democracy.

[I]t is difficult to see on what principles but those of tyranny [a people] can … be prevented from living … under what laws they please, provided they commit no aggression on other nations and allow perfect freedom of departure to those who are dissatisfied with their ways …

So long as the sufferers by the bad law do not invoke assistance from other communities, I cannot admit that persons entirely unconnected with them ought to step in and require that a condition of things with which all who are directly interested appear to be satisfied should be put an end to because it is a scandal to persons some thousands of miles distant who have no part or concern in it. Let them send missionaries, if they please, to preach against it; and let them, by any fair means (of which silencing the teachers is not one), oppose the progress of similar doctrines among their own people. John Stuart Mill in On Liberty

There is, however, an error is this argument, pointed out by the same author. The reason why we do not meddle with the free choice of someone else, is precisely his or her freedom. By choosing to submit to a tyrant, this person alienates his or her freedom. One free choice makes all other free choices impossible.

He therefore defeats … the very purpose which is the justification of allowing him to dispose of himself … The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. John Stuart Mill in On Liberty.

The Ethics of Human Rights (23): Cultural Relativism, Challenging the Universality of Human Rights

There is no universal agreement on the universal applicability, validity and desirability of human rights. This post focuses on what I believe is a particularly strong attack on the universality of human rights, namely cultural relativism (henceforth CR). I’ll describe it, and then I’ll try to poke a few holes in it.

It’s a strong attack because it’s a moral one. It’s not just about things like national sovereignty, non-intervention or the supposed economic necessity of authoritarian government. Why is it moral? Because it’s about the importance of culture for people and for people’s identity, and because it’s about safeguarding cultural diversity. These are obviously important concerns, but not – as defenders of CR assume – the only or most important concerns (see here). It’s not obvious that concerns about culture, identity and diversity have – automatically and in all cases – priority over other moral concerns, e.g. those inherent in human rights. Yet that is the claim of CR.

CR is therefore a one-dimensional moral theory, or one that fails to take into account different values and different moral concerns. It is also a conservative moral theory: it wants to protect cultures and cultural or national identities against externally imposed change. It’s true that the universality of human rights, and human rights promotion that is based on this notion of universality, sometimes require the modification or abandonment of certain cultural practices. Think for example of FGM. We can limit the possible impact of CR on human rights by stating that this is the exception and that human rights in general targets distinctly non-cultural practices (e.g. corruption, state violence, disappearances, torture, arbitrary arrest, terrorism etc.).

However, let’s assume – for the moment and for the sake of argument – that CR has a residual impact, namely with regard to those cases in which human rights promotion requires modifications in cultural practices. CR draws an analogy between those cases and the experience of western colonialism. Human rights promotion is, according to CR, neo-colonialism. Like colonialism, it destroys cultural identities and cultural diversity. When cultural practices that violate human rights are eliminated following outside pressure, the ultimate result is that all cultures become like the culture of the West. Human rights promotion is the export of western culture, exactly the same thing that happened during colonialism. (I should say that this view defines only one type of CR. Other types argue that human rights promotion harms cultures but not necessarily imposes the culture of the West). The reason for this is that human rights aren’t just legal or moral rules; they are an expression of the individualism and antagonism that is typical of the West and incompatible with the collectivism, harmony and respect for authority that can be found in many other cultures.

I have at least 3 objections to CR.

  • Human rights don’t, by nature, promote individualism or antagonism. Many rights are designed to protect communities, bind them together, and allow them to co-exist with other communities (religious freedom, assembly, tolerance etc.). So if we accept that the West is individualistic and antagonistic, compared to other cultures (which I don’t accept), human rights promotion cannot be the imposition of the culture of the West. On the contrary, under this hypothesis, human rights are rather more typical of other, more communitarian cultures. And indeed we see that some of the values inherent in human rights can be found in different cultures. Also, the fact that human rights are regularly violated in the West (as elsewhere) is an indication that these rights are probably not central elements of the culture of the West (if there is such a thing as “a culture of the West”). The struggle for human rights is more a struggle between different parts of a culture than a struggle between cultures.
  • Another problem is the understanding of change. The cultural change required by human rights doesn’t imply the destruction of culture. It’s just a certain limited number of cultural practices that have to be modified, not the culture as a whole. Most elements of most cultures are not incompatible with human rights, and can even profit from them.
  • And finally, why should the protection of culture be the supreme value? Why should culture always have priority over everything, even human rights? Culture is important to people, but their rights are as well. Accepting rights violations for the sake of culture means that this culture is considered to be more important than the people that are a part of it. Let’s not forget that culture is there for people, not the other way around.

What Are Human Rights? (21): Dimensions of Human Rights

It’s common to believe that human rights are rights that protect us against the state. Nothing wrong there, except that it’s a gross simplification. Human rights aren’t one-dimensional. For example, there’s a difference between the vertical and horizontal dimensions of human rights: the former one describing the way rights regulate our relationship with our state/government, and the latter one pointing to the fact that it isn’t necessarily the state that violates our rights: our fellow-citizens can do the same, as can citizens of other countries. If rights had only a vertical dimension, it would be difficult, for example, to explain the mayhem caused by so-called failed states in terms of human rights violations.

With a bit of imagination, we can add a diagonal dimension: rights claims aren’t addressed only at the state and fellow human beings; corporations, cultures, associations and other groups can also violate our rights (think of corporate social responsibility, apostasy etc.). Since these entities are somewhere on a level between the levels of persons and the state, we can call this dimension diagonal.

To make things complete, we have to add a final dimension. Human rights are not bilateral, such as the rights created by a marriage contract or a commercial contract. They are omni-lateral, meaning that they are claims directed at all entities within the previous dimensions: every other human being, every state and every intermediary entity can violate our rights. That is what we mean when we say that rights are rights erga omnes.

If we put these dimensions together, we can present it graphically: every human being is situated in the center of a sphere, and the radius, wherever on the surface of the sphere it points, indicates a human rights claim.

What Are Human Rights? (20): Universal Rights

Legally and morally, human rights are universal norms and rules. Almost all countries in the world have accepted international treaties that translate human rights into law, or have accepted membership of international institutions which proclaim to respect human rights or work towards the realization of human rights (such as the UN). Moreover, most if not all national constitutions proclaim human rights to be part of the country’s highest law. Even North-Korea recently changed its constitution in this sense.

The example of North-Korea makes it obvious that legal universality isn’t the same thing as universality tout court. There are in fact three types of universality – legal, moral and factual universality: universal acceptance of legal rules, universal acceptance of moral rules, and universal respect for legal/moral rules. Ultimately, it’s the last one that counts, of course. These three types don’t require each other, but the last one obviously benefits from the presence of the first two:

  • Legal universality. Legal consensus doesn’t require moral or factual universality. Countries can adopt legal rules for other reasons than moral conviction, and legal rules are – by definition I would say, otherwise we wouldn’t need any legal rules – regularly violated.
  • Moral universality: there’s moral universality when human rights are part of the “morality of the world” (or Weltethos), or – in other words – are accepted as peremptory moral rules by all of the world’s cultures, nations, subcultures, religions etc. This doesn’t require legal universality. You can have moral consensus and still have a rogue dictator somewhere who has refused to sign a treaty. Nor does it require factual universality, again because you don’t need a rule – legal or moral – for something that is a fact.
  • Factual universality: human rights are not just norms but facts; there are no human rights violations. Again, this doesn’t require legal or moral universality, since actual respect for human rights may have other causes than legal or moral pressure. However, it’s fair to say that without legal and  – especially – moral universality, factual universality is highly unlikely (although many would say that it’s utopian in any case).

Notwithstanding the prominence of human rights talk in almost all domains of life and all corners of the world, there is no moral universality. There are certain ideologies and schools of thought (yes, there’s a difference) that argue against the universal value of human rights. Either they argue against human rights in general, or – more commonly – they argue against certain elements of the system of human rights: for instance, they may reject certain types of human rights (e.g. economic rights), or they may reject the “absoluteness” of human rights and accept that certain human rights can be bracketed in certain circumstances when higher values are in danger (e.g. the use of torture in emergencies). Examples of arguments against the universality of the entire system of human rights can be found in the theory called “cultural relativism“, or in the view that economic development has priority over human rights.

The Ethics of Human Rights (19): The Universality of Human Rights vs. the Importance of Culture

Is it appropriate, desirable and coherent to impose human rights law and norms on cultures when these cultures have adopted norms and practices that violate human rights? Such an imposition would clearly upset and perhaps even destroy cultural arrangements and traditions, something which would in turn have numerous adverse consequences for people’s well-being and sense of identity (not to mention the consequences for human diversity, humanity’s heritage etc.). Add to that the likelihood that “imposition” usually means “violence”, and you can rest your case.

Or can you? Is it really a no-brainer that culture should by definition have priority and preferential treatment compared to the universality of human rights? I’m very receptive to the requirements of culture and I accept that cultural imperialism and neocolonialism are real problems. But I also believe that the culture-universality problem is contaminated by a long list of mistakes and misunderstandings, making the choice between culture and universality a lot less obvious. Here’s a short list:

  • Cultures need human rights. Especially in today’s multicultural world, cultures need freedom of religion, tolerance, freedom of association and assembly etc. in order to survive. Sacrificing human rights on the altar of culture ultimately means sacrificing culture as well. So cultures at least have a strategic reason to adopt human rights, even if this means giving up certain of their more cruel and barbaric practices and norms.
  • Cultures change. With or without the prodding of human rights activists, governments or international institutions. So why not promote change in the good direction, meaning in the direction of human rights? Cultures are not, and should not be, untouchable. Changing parts of them – i.e. certain norms and practices – doesn’t necessarily mean destroying them.
  • “Culture” is often a tool in the hands of oppressors. They are all too willing to dress up their tyranny in the clothes of culture, giving themselves an aura of respectability and inevitability. Many of the rights violations that are supposedly “cultural” are nothing of the sort.
  • Cultures aren’t monolithic. They are complicated and self-contradictory. While some elements of a culture generate rights violations, other elements of the same culture prohibit those violations. In fact, most if not all cultures have elements that can back up human rights protection, although often this is implicit rather than explicit. Giving priority to elements of a culture that violate human rights is just one specific interpretation of a culture, and possibly a self-interested one if it’s done by those in power. When human rights and culture contradict each other, often the problem can be solved, not by ditching human rights but by favoring another interpretation of the culture. In the words of Charles Taylor, different cultures will travel different routes to the same goal of universality of rights, each culture finding within itself the resources to justify and ground human rights.
  • Linked to this: who can decide what is a truly cultural practice or norm? Ideally it’s the people making up the culture, not some self-interested spokesperson. The people, however, rarely if ever get to decide this. One can assume that, if they would be able to decide, they wouldn’t favor an interpretation that harms their rights. Also, and importantly, if they would be allowed to decide, they would need human rights to do so.
  • An assumption of those granting automatic priority to culture is that imposing something on a culture, or coercing a culture to evolve in a certain direction, is by definition wrong. They assume that this is a dogma of post-colonialism. However, nobody worries about coercion of domestic practices that violate the law, not even if these practices can justifiably be labeled as “cultural”. We don’t allow “mafia culture” to flourish, or certain violent forms of macho culture or whatever. States pride themselves on the uniform application of domestic law, no matter how diverse their citizenry. And international human rights law is law as well, and also merits uniform application. Why is coercion in one case allowed but not in the other? By the way: many authoritarian countries that claim the right to violate human rights as a means to protect “their” culture (or what they claim is their culture) impose a dominant culture domestically at the expense of minority cultures.
  • The charge of cultural imperialism and the analogy with colonialism imply that human rights advocacy equals the attempt to impose western culture on the rest of the world. That human rights promotion is cultural export, a crusade or a holy war. However, human rights aren’t western rights, not by a long shot. The West violates human rights just as much as anyone else. And other cultures can find human rights within their traditions. Unlike the crusades, human rights promotion doesn’t attempt to impose a worldview, a morality or a religion. If it imposes something, it imposes diversity and plurality.
  • Finally, their is the relativity of relativism. If all values are based on culture and there are no universal values that can take precedence, than that’s true as well of cultural relativism. Why would the rule that all culture can decide for themselves be the only universal and non-cultural rule?

What Are Human Rights? (19): Universal Rights

What is meant by the expression “universality of human rights“? Just simply that these rights belong to all members of humanity, all members of the human family, without any distinctions. They are equal rights, not just the rights of a particular class, race, gender, nation or religion. Human beings have these rights, not because they belong to a certain group, or because they have certain beliefs of convictions, or because they fulfil certain conditions or whatever. They have them for no other reason than because they are human. This is, of course, obvious from the word “human” in “human rights”.

Why is it important to mention this? Because it’s contested. Some say that gays shouldn’t have the right to marry, even though this right is included in the Universal Declaration, a Declaration which explicitly states that

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.

People of color, members of other ethnic groups or members of other religions are regularly treated as inferiors (or worse). Women often have less legal rights than men. And the list can go on and on.

If you oppose this, and believe that all people should be treated equally and should be able to enjoy the same rights as everyone else, then you in fact espouse the ideal of the universality of human rights. (Equality, in the sense of equal rights, is a concept that is closely related if not identical to the concept of universality of rights).

However, how would you defend this position against those who want to discriminate and treat certain people unequally? There are many possible defenses. For example, you could say that all human beings are created in God’s image, and are therefore equal. Treating them unequally would then be an offense against God. Or you could invoke a concept such as human dignity. My preferred defense is based on certain very specific human values, values which are shared by all human beings and which require human rights in order to be protected. Physical security, bodily integrity, self-government, peace, prosperity, belonging, property, identity etc. are some of these values. The problem here is not to convince opponents of human rights – or better of the universality of human rights – of the importance of these values. It will be very difficult to find anyone who needs to be persuaded of this and who is not self-destructive. The problem is how to give an adequate and convincing explanation of the way in which these values require human rights.

These values are shared by human beings in the same way as they share some biological features, like their organs, limbs, and skin. This analogy with biology can be taken quite literally, in the sense that human life can cease when these values are negated. Hearts may not stop beating and brains may not stop working (although they can in extreme cases) but people at the very least will stop living like human beings when they are unable to realize these values. Human rights are therefore indispensible for humanity: all human beings needs them, and we all need them for our humanity. I said a moment ago that all human beings have human rights because they are human beings and for no other reason than their humanity. If asked what is humanity, I would say that it is respect for these universally shared human values.

The Ethics of Human Rights (14): Is Morality Linked to Culture and Culturally Relative?

Is morality linked to culture? Or, in other words, is morality culturally relative? Does every culture have its own moral rules? This is relevant from a human rights perspective because human rights can be seen as moral rules for humanity. However, if morality is culturally relative, then this is a problem. Universality of moral rules then seems to be impossible and without universal moral rules it is difficult if not impossible to judge the practices of another culture. These practices may seem morally wrong from the viewpoint of the culture of the West for example, but the rules of the West, i.e. human rights, only apply within the morality of the West. Other cultures have their own rules and can only be judged by their own rules. One cannot apply the rules of American football to European soccer or vice versa.

As is often the case, the truth is probably somewhere in the middle. Whereas some moral rules are obviously very specific to particular cultures, other rules are globally accepted (which doesn’t mean respected). It follows that both extremes, imperialism and isolationism, are wrong. Human rights promoters should not go about and destroy cultural diversity, but cultural diversity is not the ultimate goal either. Cultures should not be isolated from human rights criticism. Individual rights matter just as much, if not more, than the rights of cultures. After all, if culture is important, it’s because it’s important for individuals.

The Cognitive Evolution Laboratory of Harvard University has started a project aimed at showing that morality is in essence universal. It has created a moral sense test which everyone can fill in (it’s available here, and takes less than 10 minutes to fill in; you’ll help these people by doing it).

Human Rights and International Law (10): Why Do Human Rights Need International Law?

Human rights law has globalized during the last decades. And it has done so in two ways:

  • human rights have become part of most national constitutions
  • and have been enshrined in widely accepted international treaties.

In this post, I will look at the relative usefulness of these two movements. The conclusion will be that ideally human rights protection should be a national matter, but in an imperfect world, with failing national protection, international human rights protection is a necessary alternative for human rights protection.

Originally an invention of the French and American revolutions in the eighteenth century, human rights have now become part of a global legal consensus. Although there are many violations of human rights and some philosophical, ideological, cultural, or religious objections to some human rights, the fact is that these rights are part of internationally recognized legal documents (mostly treaties) accepted by the overwhelming majorities of countries. At the same time, they are included in nearly all municipal legal systems (mostly in constitutions). Human rights are the law of mankind, even though they are widely violated. They have been enshrined in the law because they need the law to be adequately protected.

Why do human rights need international law? Isn’t national law enough? These questions may seem strange and perhaps even somewhat useless. Is not the immense effort that has been invested in international human rights law during the last fifty or sixty years proof enough of its utility? I’m not convinced because there is a strong argument in favor of the assertion that the protection of human rights should be first and foremost a matter of national law and national judiciaries.

International law is far removed from ordinary citizens, and if they want to complain about human rights violations they will most likely want to use their national law and their national judiciary. Their own judiciary is closer and hence more accessible and more able to understand and punish. The first responsibility of the international community, therefore, is not regulation or the administration of justice, but assisting countries to reform their national laws and judiciaries in order to make them more compatible with human rights.

However, what if this fails? National law and national judiciaries do not always effectively protect human rights, either because of the absence of adequate national laws or because of the ineffective protection and enforcement of national laws by judiciaries and/or executive powers. And outside assistance and pressure do not always succeed in solving this kind of problem. So, if there is international law protecting human rights, this law can step in when national law fails. Local judges can invoke international law at the expense of inadequate national law. And if not the national law but the national judges are inadequate, international human rights law also provides global mechanisms and institutions allowing citizens to complain about their state’s conduct.

Imagine that such institutions would not exist. That would mean that citizens could only complain to a national organ, an organ of their own state, an organ which may be ineffective, corrupt, incompetent, or perhaps even implicated in the rights violation. And even if these national organs are effective, they are quite useless if there are no international rules for them to apply in place of inadequate national ones. So there is a strong case in favor of international human rights law combined with international monitoring of national human rights situations, and with international complaints institutions to which citizens of a country can turn in order to denounce rights violations by their country.

Ideally, international human rights law and monitoring are unnecessary, and even undesirable, because human rights protection is best carried out on a national level by a state that can correct itself. But this implies the existence of an ideal state with a well-functioning national division of powers, a national “trias politica” in which one power can control and correct the mistakes (e.g., rights violations) of another. As long as not all states are ideal states some national judiciaries need the assistance of international law when their national human rights laws are insufficient or nonexistent, and some citizens need the assistance of international monitoring and enforcement institutions when their national division of powers is insufficient or nonexistent.

As long as we are some distance from Utopia, international law and international monitoring and enforcement institutions are necessary for the universal protection of human rights and should complement national rules and institutions. Countries should be encouraged or, if necessary, pressured to accept international human rights treaties so that citizens can invoke international laws in the absence of national ones. International human rights law traditionally includes the right to monitor and to complain about human rights violations internationally, and this means, in theory at least, that individuals or groups do not have to trust their own state to correct itself and to punish its own crimes. They can involve international monitoring and complaints institutions to further their cause when their national judges are incompetent, unwilling, or unable to implement national rules. Countries should therefore also be encouraged to accept the authority of such treaty institutions wherever this acceptance is voluntary.

Furthermore, the existence of international law makes it easier to reform national law. An international system of law makes it impossible for states to take the law into their own hands and to decide autonomously what is and what is not part of their law. International law is traditionally superior to national law and it can force national law to be compatible with it. It is therefore an additional means to ensure that human rights are part of the law everywhere. By improving national law, international law makes national protection mechanisms more effective. And when it is not the national law but the national protection mechanism and institutions which are defective, international law replaces these mechanisms with global ones, or at least tries to do so (the best global complaints and enforcement procedures are still less effective than the best national judiciaries).

The individual right to denounce violations before an international judicial or quasi-judicial institution gradually took root after World War II. Today, the treatment of citizens by their state is no longer the exclusive competence of the state in question. The days are gone when states could treat their citizens as they liked. Individuals now have a right to speak in the international community and they are no longer confined to national law. They have international law to help them and international stages to voice their protest. International organizations in turn have a right to poke their nose into national affairs and in some cases even to enforce respect for human rights.

This means that citizens are no longer at the mercy of their states and that they can look for outside help if their state does not respect their rights, does not control and correct itself, does not provide mechanisms to enforce their rights (such as laws and the division of powers), or does not make sure that these mechanisms function adequately in all cases.

Most violations of human rights are the consequence of state actions or of actions by representatives of the state. Unless there is a highly effective division of powers, it is unlikely that a state will prosecute itself or its representatives, and it is necessary to have international protection. But national protection within a highly effective system of division of powers must be the first choice. Ideally, national protection is close to the people, easily accessible, legitimate, acceptable, and knowledgeable of local circumstances. It is also close to the perpetrators, which is why effective punishment is more likely than in the case of protection by another country or by an international institution, which may even fail to see the perpetrators, let alone punish them.

National protection is the best option, but also the most difficult one. The perpetrator is often the state or its representatives, which is why national protection can only function within a highly effective system of division of powers. Unfortunately, but not accidentally, most of the more serious violations of rights take place in those states that do not have such a system. National protection can only protect us against relatively minor violations because it can only function in a country with a tradition of separated powers, rule of law, etc.; in a country, in other words, that is unlikely to suffer serious violations of human rights. But still, it is a model that should be used as a universal ideal, even or especially in those countries where it is as yet far from reality. In the meantime, international jurisdiction takes the place of the ineffective national jurisdiction.

The Ethics of Human Rights (10): Universality of Rights Through Dialogue

It’s true that most if not all human rights can be found, implicitly or explicitly, in all cultures and religions of the world. However, there’s also cruelty everywhere and universal respect for human rights requires more than simply looking for similarities and making the sum. Unity, consensus and universality will only be the result of hard-fought influence and difficult and prolingued processes of persuasion, not of the simple detection and addition of things that are equal and that exist, as such, independently of each other.

Persuasion, however, implies dialogue, intercultural dialogue for example. One culture or religion can discuss with others and try to convince others that something which is considers to be important is in fact important.This dialogue doesn’t have to be unconditional (dixit Obama) but too many conditions make it impossible. And progress can only be achieved through dialogue.

This kind of intercultural dialogue can engender universality or can at least bring universality somewhat closer, but then it has to be a dialogue between equals. Nobody is persuaded when one of the parties to the dialogue believes himself to be superior, speaks without listening, and considers the other to be “evil” (e.g. part of an “axis of evil” dixit Bush) and a legitimate target of a bombing campaign (dixit McCain).

It also has to be a dialogue where there is at least a possibility that one convinces the other – in both directions. A “dialogue de sourds” – a dialogue of the deaf – cannot create consensus. We must be open to the possibility that those whom we abhor may have something interesting to tell us. And anyway, we have to listen if we want to understand them, and to see why they act the way they act. Only then can we have a chance of changing them.

This means that extreme cultural relativism is not an option. Cultures have to be allowed to influence each other, to open themselves and to mix with each other. Sealing off cultures and keeping them out of each other’s way because of the protection of identities, makes a dialogue impossible. Being persuaded means changing certain elements of one’s identity.

The need to convince one another implies that no one should believe themselves to be in possession of the truth, and of the only correct and just system. It implies self-criticism, and also a certain degree of tolerance, freedom of expression etc. It seems as though the conclusion is implicit in the premises. The attempt to universalize human rights through intercultural dialogue already requires human rights. You cannot hold a dialogue with someone who is intolerant or who is not allowed to speak his or her mind.

A dialogue in this case is not a negotiation. There can be no negotiation on human rights. It is “take it or leave it”, even if one can accept a partial adoption of human rights for strategic reasons (the theory of basic human rights or rights minimalism). Something is not as good as everything, but it is better than nothing.

And an inter-cultural dialogue is even less a conversation, in which one culture needs to convince other cultures, as if some cultures need more convincing than other cultures. Persuasion is a two-way street and at least, as much an intra-cultural affair as an inter-cultural one.

Human Rights and International Law (8): Real and Normative Universality of Human Rights

No doubt the commitment of many countries to human rights is less than authentic and whole-hearted. Yet, the fact of the commitment, that it is enshrined in a constitution, and that it is confirmed in an international instrument are not to be dismissed lightly. Even hypocrisy may sometimes deserve one cheer for it confirms the value of the idea, and limits the scope and blatancy of violations. Louis Henkin

Even though human rights are violated virtually everywhere, the principle that they should be defended is asserted virtually everywhere. Virtually no one actually rejects the principle of defending human rights. Susan Mendus

The Vienna Declaration of 1993, accepted by almost all states of the world (more than 170), affirms that the universal nature of human rights is “beyond question” and that these rights are “the birthright of all human beings”. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights – the two major treaties for the protection of human rights – have been signed by more than 140 countries (one of them is China). All of these countries have undertaken the legal obligation to respect human rights (including political and economic rights). The universality of human rights is a fact in positive law.

However, all we have is normative universality. Everybody or almost everybody agrees on the norm, but there is as yet, no actual universal application of the norm. Theory is one thing, but reality often struggles behind. Promises are not kept, declarations of good intent are outright lies and treaties are violated. Furthermore, it is very difficult to enforce treaties. There is no global police force or executive power and there is the principle of national sovereignty and non-interference in internal affairs.

However, theoretical or normative consensus is not useless. It means that evil is not almighty. Evil has to lie and cheat. Hypocrisy is always a compliment to virtue. There can be no hypocrisy, if virtue does not have at least some influence. Even though a declaration or a commitment often does not change reality immediately and substantially, it can be referred to when yet another dissident is put behind bars. If a state violates a treaty, it will have some difficulty explaining why it has done so, why its actions contradict its words, why the situation supposedly warrants exceptional measures deviating from a self-imposed rule, and why these “exceptional” measures are a part of everyday life for many citizens.

Religion and Human Rights (7): What is Religious Liberty?

Religious liberty or the freedom of religion and belief is a human right. It is the right to be protected against coercion in matters of religion, to be free to practice and profess a religion of your choice, in private as well as in public, to change your religion, or to practice no religion at all.

Legal rules on religious freedom

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

This right is closely linked to the right to free expression and the right to free association.

The First Amendment of the U.S. Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It protects the freedom of religion in the US. It’s made up of two parts. The Establishment Clause prohibits the government from passing laws that will establish an official religion or preferring one religion over another. The courts have interpreted the establishment clause to accomplish the separation of church and state and have held that the clause extends to the executive and judicial branches as well.

The Free Exercise Clause prohibits the government from interfering with a person’s practice of his or her religion.

Importance of religious freedom

Religious liberty is an important value because it protects religious diversity and plurality and hence counteracts religious persecution and coercion. It makes a monopoly of one religion impossible – except when culture and demography are such that there is a de facto monopoly which is not contested – and it guarantees the coexistence of different and publicly competing beliefs. In this way, it also guarantees publicity, debate and diversity in general. If there is publicity, debate and diversity on the level of religion, then why not on other levels? On top of that, religious liberty guarantees tolerance: if people can be tolerant – or are forced to be tolerant – in the field of religion, then they will probably be tolerant in other fields as well.

This shows that religious liberty can be of interest to non-religious persons, not only because it protects them from the imposition of a religious belief, but also because it allows them to live in a world of tolerance, publicity ad diversity. Religious liberty is therefore an integral part of a democratic society and a system of human rights.

Problems with religious freedom

However, there is a downside to the concept of religious liberty. Anyone can call their personal insanity a religion in order to try to get government protection. There is no easy answer to the question of what is or is not a religion in the proper sense of the word, but it is obvious that any belief or practice which is part of a religion or claimed to be part of a religion, and which provokes violations of human rights, should not be protected under the right to freedom of religion. Every human right is limited and has to be balanced with other rights.

Freedom of religion is no exception. In particular, the right to absence of discrimination, although closely connected to religious liberty (one should not be treated badly as a consequence of one’s religion), can be a problem if everything can be labeled a religion and if every imaginable theological ideology can enjoy an absolute level of protection granted by the freedom of religion. The equal rights of women should be balanced with the right to practice a religion which provokes discrimination of women. Limiting one right for the sake of another is a normal practice in the field of human rights. This is even more evident in the case of terrorism based on religion.

Separation of state and religion

Religious liberty implies that the state (but not only the state) should not interfere with the religion of its citizens, should not favor or discriminate a particular religion or religions, and should not attach benefits or penalties to any religious affiliation or lack thereof. Religious liberty therefore limits the power of the state and creates a difference between state and society by granting some measure of religious independence to society.

However, religious liberty not only means that the state should avoid interfering in religious matters. It also means that the state should be absolutely neutral as regards religion. There has to be a separation between state and religion (but not necessarily between politics and religion) in the sense that there can be no official state religion. The state should not link itself to a particular religion but should stand above the plurality of different religions. One and the same person cannot be both head of state and head of a church (or an important functionary of a church).

Without this kind of neutrality, certain religions as well as atheists and agnostics will be worse off compared to the adherents of the official religion, if they are allowed to exist at all. Religious liberty means religious equality and the equal treatment of all religions. This equal treatment is impossible if there is some kind of link between the state and a particular religion. If adherence to one religion brings more advantages than adherence to another – and this can be the case when the former is an official state religion or is in any way favored by the state – then there is no real religious liberty. The choice for one religion rather than another will not be a free choice. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when there is no separation between the state and religion because they have less means to influence the public as the official state religion. They are not as free as the official religion.

Another reason why religious liberty implies the separation between state and religion is the need for an impartial judge to mediate between different religions. If different religions are allowed to exist together, we need a non-religious law which regulates their coexistence. It is very unlikely that people adhering to one religion will accept laws which are inspired by another religion. The fact that a religiously neutral state with its religiously neutral laws allows many different religions to exist and to coexist, makes it acceptable to many people. A state which only allows one religion or favors one religion, will only be accepted by the adherents of that particular religion.

The historical fact that religious communities tend to become more and more intertwined within the borders of states, will enhance the attractiveness of this kind of state. A democracy is by definition such a neutral state, because a democracy respects human rights. Once you respect human rights, you also respect religious liberty, and religious liberty leads to religious neutrality on the part of the state.

Just as the state is kept out of religion, religion is kept out of the state. The claims of religion are restricted. A particular religion cannot claim to be the religion of the country in order to take possession of the state or the law and thereby achieve more power than other religions and impose itself on individuals. The state, for its part, is not allowed to prohibit, persecute, discriminate or impose a religion, and it should also avoid using a religion as a means to enhance its authority, as a kind of transcendent confirmation. If you stand close to something glorious, you may hope that something of the glory shines on you as well. You may even hope to become godly, which, historically, has been an enormous advantage to states in pre-modern times. The representative of God on earth is godly as well, and he who is godly is eternal and escapes contestation, which is of course anti-democratic. It is equally unacceptable for a state to use certain religious texts to justify or enforce authoritarian measures.

Separating state and religion may cause some problems. It will for example make it more difficult to universalize human rights. Many cultures, for example Muslim cultures, see this separation not as an advantage but as a problem because religion – unified religion, not the freedom of religion – is still very important in their societies and is considered to be the foundation of politics.

However, state neutrality in religious matters does not imply that democratic politics is necessarily a-religious or atheistic. A democracy executes the will of the people and not the will of God, but if the people believe that their will equals the will of God, then this does not pose a problem as long as the religious rights of the minority are respected and as long as the religion of the majority does not acquire unjustified privileges and does not become the official state religion.

Separation of politics and religion?

This already indicates that the separation of state and religion is not identical to the separation of politics and religion. Religion does not have to remain silent when it comes to politics. It can be a source of inspiration for politicians and it can enhance ethical consciousness and behavior. Therefore, it should not be excluded from politics. It is important to make the distinction between politics and the state. The fact that freedom of religion and the separation of state and religion do not imply the separation of religion and politics can make it easier to impose religious liberty and state neutrality. Religious people obviously and justifiably fear the separation of religion and politics.

The religious neutrality of the state does not necessarily lead to a religious neutrality of politics. A religion is not allowed to infiltrate the institutions of the state, otherwise it would acquire more power than other religions and therefore destroy religious liberty (a choice for a religion is not free if one religion has more power of persuasion than another). But a religion is allowed to try to convince a majority, at least as long as it respects human rights and the liberty of other religions.

What Are Human Rights? (15): Constitutionally Universal

The theme of this post is the often difficult relationship between citizenship and human rights. This relationship is difficult because human rights, which are explicitly rights for all people everywhere, without distinctions of any kind, seem to require citizenship, and hence a distinction between groups of somehow differentiated people, for their protection. Without citizenship, it is argued, human rights remain a wish rather than a reality, potential rather than effective. Indeed, we often see that non-citizens such as refugees, asylum-seekers or stateless people suffer more rights violations than the citizens of the countries in which they happen to find themselves, even if these countries are comparatively well functioning democracies.

I want to argue that there are no legal reasons to consider citizenship as some kind of necessary condition for the protection of the rights of people within the territory of a state. Or, to put it negatively, that there are no legal reasons to treat the rights of non-citizens with less respect than the rights of citizens, or to accept violations of the rights of non-citizens with more ease than violations of the rights of citizens. There has to be, in other words, equality of protection between citizens and non-citizens. Citizenship therefore should be irrelevant for the protection of the human rights of the people within a given state territory. The state should be blind in this respect and treat non-citizens as if they were citizens. Non-citizens should have the same legal, judicial and other means to stand up for their rights.

The legal argument is based on Article 2, paragraph 1 of The International Covenant on Civil and Political Rights, which states the following:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The widely held but mistaken belief that the rights of non-citizens residing in a state are, perhaps inevitably, more precarious than the rights of the citizens living beside them, goes back to the historically important role of citizenship in the practice of protecting human rights. Theoretically, citizenship is irrelevant to human rights. These rights are the equal rights of all human beings, equally and unconditionally. It is not justified to say that one should be white, male, citizen or whatever to be able to enjoy the protection of these rights. Universality, equality and unconditionality are perhaps the main characteristics of human rights. That is where they got their name. They would not be called human rights if this were not the case.

Although theoretically these rights come with no conditions attached, in reality and in practice there are many necessary conditions for their effective protection: a well functioning judiciary, a separation of powers, a certain mentality, certain economic conditions etc. Too many to name them all, unfortunately. But the one we should name and explain is citizenship. Historically, it was because people were citizens of a state that they could use and improve the institutions and judicial instruments of the state, including the executive powers, to enforce their rights. It is this historical contingency, the fact that people have always found their citizenship very useful for their human rights, which has led many to believe that there is some kind of special link between citizenship and human rights which makes it possible and acceptable to treat the rights of non-citizens with less respect. That rights are only accessible to citizens. That the rights of man have often been the “rights of an Englishman” in the words of Burke.

“The survivors of the extermination camps, the inmates of concentration and internment camps, and even the comparatively happy stateless people could see … that the abstract nakedness of being nothing but human was their greatest danger” (Hannah Arendt, The Origins of Totalitarianism).

The state, although it does not grant rights, has to recognize them and make them real, but not only for citizens. The constitution, the main instrument for recognizing human rights, should and nowadays often does explicitly guarantee rights for humans, and not merely rights for citizens. Everybody within the territory of the state, not only the citizens of the state, can then enjoy the human rights protected by the constitution. Citizens as well as non-citizens can then go to court and challenge unjust laws or acts of state. Both categories of people have legal personality. This is often called the constitutional universality of rights.

The protection of the economic rights of non-citizens is an even more contentious matter. Should non-citizens have the same healthcare protection, social security, education etc.? In principle yes, but some countries may have such a large number of non-citizens in their territory that the economic viability of their social security system comes under threat. The tax payers ability to fund the system is limited, and non-citizens normally don’t pay taxes.

Marx and Human Rights

According to Marx, human rights are the “rights of the egoistic man, separated from his fellow men and from the community”. They are the rights of man as an isolated, inward looking, self-centered creature

  • who regards his free opinion as his intellectual private property instead of a part of communication
  • who uses his right to private property not in order to create a beach-head for his public and cultural life but to accumulate unnecessary wealth and to protect unequal property relationships
  • who uses the right to privacy as a wall keeping out the poor snoopers watching the rich people
  • who considers fellow men as the only legitimate restraint on his own freedom, and therefore as a limit instead of the source of his own thinking, identity and humanity (this is the way in which Marx read art. 6 of the French constitution of 1793: “Liberty is the power which man has to do everything which does not harm the rights of others”)
  • who considers freedom to be no more than the ability to pursue selfish interests and to enjoy property, unhindered by the need to help other people, “without regard for other men and independently of society”
  • and who considers equality to be the equal right to this kind of freedom (everybody can emancipate himself by becoming a bourgeois).

Human rights, in this view, serve only to protect egoism and the unequal distribution of property, and to oppress the poor who question this and who try to redistribute property. On top of that, human rights obscure this fact because they are formulated in such a way that it seems that everybody profits from them. Contrary to what is implicit in their name, “human” rights are not general or universal rights. They are the rights of those who have property and who want to keep it. A specific situation of a specific group of people is generalized in human rights.

Of course, this criticism can be correct. No one will deny that human rights can serve to protect and justify egoism, oppression of the poor and indifference. They can help to shield people behind private interest and to transform society into a collection of loose, self-centered, self-sufficient, withdrawn, independent, sovereign and isolated individuals. Because the rich have more means to use, for example, their freedom of expression, this freedom can be an instrument of the rich to monopolize political propaganda and political power and to use this power to maintain their privileged situation. Economic relationships can be maintained by legal means.

However, in order to judge and possibly reject a phenomenon, one should also look at its intended and ideal functions, not only at the ways in which it can be abused. Human rights not only protect man against the attacks and claims of other people (for example the attacks and claims on his property); they also create the possibility of forcing people to help each other. They do not allow you to do something to other people (taking their property, determining their opinions etc.), but at the same time they invite you to do something with other people. In other words, they are not only negative. They not only limit the way we relate to other people, they also stimulate and protect the way we relate to other people.

Cultural Rights (4): Cultural Relativism

Are human rights universal? Or is the worldwide application of human rights the imposition of the culture and norms of the West on other cultures? Universal human rights are said to imply the immoral destruction of other cultures, which in turn diminishes the well-being of the people of those cultures. Identity, especially cultural identity, and a feeling of belonging, are important for everyone’s well-being.

The underlying hypothesis of this theory, which is often called “cultural relativism“, is that human rights are part of the culture of the West, typical of this culture, and compatible only with this culture. They are therefore Western rights rather than universal norms. Under this hypothesis, the worldwide promotion of what we call human rights can be seen as the imposition of the culture of the West. Human rights in this view belong to the cultural identity of the West with its emphasis on individualism and individual freedom. Other cultures have other identities, values and norms. They may cherish harmony and collective goals more than individualism, discipline more than freedom, respect for authority more than democracy, tranquility more than adversarial politics, the afterlife more than free consumption and maximum gratification in the present life, etc. Hence, they will have norms that are different from the norms of the West and different from the application of human rights for every individual. Their norms may even be opposed to human rights.

Respect for the cultural identity and the well-being of other people means that they should be allowed to adhere to these norms and to violate human rights when these rights come into conflict with their own norms. Insistence on human rights, then, could mean disrespect, erosion of cultural identity, and hence also erosion of individual well-being.

According to cultural relativism and its many overt and covert adherents, human rights have a claim to existence in the West, where they are part of the culture and are in accordance with cultural norms and values (such as individualism, conflict, etc.), but not in parts of the world where they are at best inappropriate and at worst damaging to cultural identities and therefore also to people who depend on culture for their personal identity and feeling of belonging.

Is there really a perfect analogy between colonialism and human rights policy, and does the acceptance of human rights necessarily mean the loss of identity and belonging? It is true that respect for human rights must lead to the abandonment of some cultural practices (although in most cases it must lead to the abandonment of distinctly non-cultural practices), but certainly not of all cultural practices and probably not the most important ones. Culture or identity is above all something that is in the mind. What is in the mind cannot cause harm and should never be abandoned. To the extent that culture is part of the mind, it enjoys complete protection by human rights. The extension of human rights will never harm culture in this sense. The freedom of thought is perhaps the most fundamental human right and is an example of the way in which rights protect rather than harm culture. Freedom of religion, tolerance and other values embedded in human rights also protect culture.

What Are Human Rights? (10): Dependent on Prerequisites

People often oppose the universal application of democracy and human rights because they believe that in some places, some of the prerequisites are absent. Their point of view is not that democracy and human rights are in themselves objectionable or undesirable, but that some countries are not mature enough yet (as in the case of economic prerequisites for example) or will perhaps never be mature enough (as in the case of cultural prerequisites for example). Instead of being undesirable, democracy and human rights are (as yet) impossible.

One has to deal with this line of argument, for two reasons. Firstly, because we will dispose of a reason to universalize democracy and human rights if we can show that the argument is incorrect. Secondly, because we will know what to do or change in order to universalize democracy and human rights if it is established that the argument is correct.

In some cases it is correct. Democracy and human rights are indeed conditional. They depend on certain prerequisites for their existence, survival and development. However, this is not a reason for fatalism or for the rejection of universality. It does not mean that democracy or human rights are forever impossible. The necessary conditions can invariably be created, with more or less effort. An example of this is the absence of media monopolies. It is impossible to introduce democracy if the pre-democratic and authoritarian monopoly ownership of the media is maintained. If this monopoly is not abolished with the introduction of democracy, then the old rulers will use their monopoly of the media in order to maintain or to return to power. The absence of this kind of monopoly is a prerequisite for democracy but it is a prerequisite that can be created. The same is true for most if not all the other prerequisites.

What is most interesting is that democracy and human rights do a lot themselves to create or promote the conditions necessary for their survival and development. Instead of “fit for democracy”, we should say “fit through democracy”, in the words of Amartya Sen. You can only become fit for democracy when you already have a democracy. Once democracy and human rights begin to win ground, they improve the chances of their own survival and future development. Here’s a post on peace, which is obviously a precondition for but is also promoted by democracy and rights.

However, it remains a fact that, without important efforts, democracy and human rights are not universally possible yet, even if they are universally necessary or desirable. Fortunately, there are many different kinds of prerequisites and the absence of one can be compensated for by the presence of others. Furthermore, many so-called prerequisites are in fact no more than excuses for rights violations and authoritarian government. If some people claim that a particular country is not yet mature enough for democracy and human rights, then it is very likely that these people have an interest in rights violations and authoritarian government. Those who suffer never claim that they are not mature enough for rights. We should not rush to conclusions. It is very tempting to call something a prerequisite, especially for opponents of democracy and rights.

Among the prerequisites that are not really prerequisites, culture is probably the most important one. Democracy and human rights develop somewhere and have their origins in the life of a community, but this does not mean that their development in this community was necessary or that their development in other, very different communities, is impossible. Democracy and rights can develop in communities with very different cultures, even in communities that do not have a democratic tradition (take the case of post-war Germany for instance). They are connected, not to a culture, but to mankind and to the values of mankind. Of course, there can be elements in some cultures which promote the development of democracy and rights and elements in other cultures which hinder this development (perhaps Protestantism and Catholicism respectively). However, the main causes and prerequisites, namely the values which need democracy and human rights, are present everywhere.

The argument for cultural prerequisites implies that certain cultures are destined for democracy and that other cultures can never be democracies. At an even deeper level, it implies that cultures cannot and should not change. The different cultural identities must be protected against more powerful and hostile cultures engaging in cultural imperialism. A culture which is supposed to be incompatible with democracy must remain undemocratic for its own sake. However, this obscures the fact that cultures and traditions do change and often even want to change. On top of that, many traditions are not as old as they seem. They are often recent creations (anti-democratic traditions are in most cases inventions of authoritarian rulers). So why not create a democratic tradition?

What Are Human Rights? (7): Universal Rights

I believe we should try to move away from the vocabulary and attitudes which shape the stereotyping of developed and developing country approaches to human rights issues. We are collective custodians of universal human rights standards, and any sense that we fall into camps of accuser and accused is absolutely corrosive of our joint purposes. The reality is that no group of countries has any grounds for complacency about its own human rights performance and no group of countries does itself justice by automatically slipping into the victim mode. Mary Robinson

The claim that the acceptance of human rights means the introduction of the culture of the West, can only be true if human rights are part of the essence of western culture and totally alien to other cultures. But this is obviously wrong. All cultures have values and principles that reflect the values embedded in human rights. And the West probably suffers just as many rights violations as any other culture. It has, for some centuries now, been struggling against certain of its own cultural practices which, from a rights point of view, are or were unacceptable.

If human rights policy is not the introduction of the culture of the West, then it cannot be criticised for being an expression of a belief in cultural supremacy and universality, at least not in principle. Some westerners may believe that human rights promotion is part of the promotion of western culture, the development of the underdeveloped, and the replacement of barbaric cultures with a superior one. But they are wrong. Only individual violators or certain kinds of practices may be barbaric, inferior or underdeveloped, and these violators and practices can be found everywhere, in every culture. A culture as such is never inferior and the equality between culture is something which human rights promoters must and do accept, first of all because violations occur in more or less equal measure in all cultures, and secondly because rights require equal tolerance and respect for diversity.

What Are Human Rights? (6): Universal Rights

All human beings, whatever their cultural or historical background, suffer when they are intimidated, imprisoned or tortured . . . We must, therefore, insist on a global consensus, not only on the need to respect human rights worldwide, but also on the definition of these rights . . . for it is the inherent nature of all human beings to yearn for freedom, equality and dignity, and they have an equal right to achieve that. Dalai Lama

Some people do not believe in the universal validity of human rights and democracy. They say that human rights and democracy are not meant for them, or are not meant for somebody else. They forget, however, that one cannot question, challenge or refute human rights and democracy for the simple reason that the act of questioning, challenging or refuting implies respect for human rights and democracy. Something that is unquestionable and irrefutable is by definition universal. Defending human rights and democracy is not the same thing as expressing an opinion, a western opinion, for example, which other cultures, states or groups can call into question. Human rights and democracy are necessary conditions for the appearance of different opinions and for debate between opinions. Hence they cannot be reduced to opinions that are not different from other opinions, or to an element in a struggle that they help to institute. They are above the level of opinion and questioning.

Nobody can question human rights or democracy without at least implicitly accepting them.

The Causes of Human Rights Violations (4): Expulsion From Humanity

The expulsion from humanity is part of many rights violations because these violations can only be justified when the other is labelled as something less than human. Human rights can only be violated when the victim is not really human. Only a non-human does not have human rights.

If a person has rights because of his or her humanity, then it is important to recognize the right to belong to humanity. This right is indirectly expressed in art. 6 of the UDHR:

“Everyone has the right to recognition everywhere as a person before the law”.

Every culture has, at some moment in time, excluded certain classes of humans from humanity. Some cultures still do. Some of the major religions have considered or still consider non-believers to be an inferior species, outside of humanity, not real humans and therefore not entitled to the same rights.

What Are Human Rights? (3): Universal Rights

Universality means that human rights are valid everywhere. This characteristic is of course inherent in the expression itself – human rights are rights of all humans – but is not universally accepted.

Many people, in particular those who benefit from violations of other people’s rights, reject the claim that human rights are universal, primarily because non-universality would allow the continuation of rights violations and hence the continuation of the benefits which almost inevitably result from violations.

Somebody always benefits from the harm inflicted on others, otherwise there would be no harm inflicted.

These benefits are, however, rarely given in justification of non-universality because a justification is usually a moral undertaking, one which therefore cannot start from the premise that benefits for someone justify harm inflicted on someone else. A more common justification can be found in the theory of cultural relativism or in some variation of it.

Why Do We Need Human Rights? (2)

Is it still necessary these days to promote the virtues of human rights and democracy (democracy being just one of many human rights)? Is it not kicking in an open door?

It seems that the end of the Cold War has settled the intellectual dispute. Democracy and human rights no longer have any rivals. There are no alternatives.

I’m not so sure. Democracy and human rights, to the extent that they are measurable, do not seem to flourish beyond expectations after the end of the Cold War, unless we limit democracy to a system of elections and human rights to the absence of extreme cruelty. And even then. 
There is progress, but not enough. There are also still theoretical challenges to the foundations of human rights and democracy (I’m thinking of radical nationalism, all sorts of religious fundamentalism, economic theories advocating limits on human rights etc.). Moreover, people in established Western democracies seem to exhibit a growing unease about the nature of their victorious political systems.

So a theoretical defense of the universal value of rights and democracy and of the reasons why they are so important, and universally important, is not useless or out-of-date. History, in other words, has not ended.

Why does the world need human rights and democracy? A lot depends on the definition of these words. I would favor a “heavy” definition: democracy is more than elections and representation. Human rights are more than freedom rights or the absence of genocide.

Of course, I can see practical problems: not all the necessary (never mind sufficient) preconditions for a heavy system of rights and democracy are everywhere available. So lighter versions are obviously acceptable, temporarily, and often a great leap forward compared to current political and legal systems. And much needs to be done to promote the conditions for going further. A reasonably well-functioning democracy without a solid protection system for human rights is much better than a dictatorship, but it’s not enough. Purely representative democracy as well is not enough, but is great progress in many places. Shortcomings in imperfect democracies and imperfect systems for rights protection should not lead to us reject democracy and rights altogether, but should convince us to make them better.

I’m convinced that democracy and human rights promote certain universal human values, and hence are universally desirable themselves. Universal human values are things which humans invariably deem important for their lives. Some examples: control over your own life, economic wellbeing, peace, physical security, property, belonging, identity etc.