International Human Rights: Universalism Versus Relativism

INTERNATIONAL

HUMAN RIGHTS

Universalism Versus Relativism

ALISON DUNDES RENTELN

Quid Pro Books

New Orleans, Louisiana

Copyright © 1990, 2013 by Alison Dundes Renteln. All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, copying its digital form, recording, or by any information storage and retrieval system, without permission in writing from the current publisher.

Published in 2013 by Quid Pro Books, at Smashwords.

Previously published in 1990 by Sage Publications, Inc., Newbury Park, California and London, UK, as volume six of Frontiers of Anthropology; and copyright © 1990 by Sage Publications, Inc.

ISBN 978-1-61027-159-2 (eBook)

ISBN 978-1-61027-160-8 (pbk.)

QUID PRO, LLC

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Publisher’s Cataloging-in-Publication

Renteln, Alison Dundes.

International human rights: universalism versus relativism / by Alison Dundes Renteln.

p. cm. — (Classics of the social sciences)

Includes bibliographical references and index.

1. Human rights—Cross-cultural studies. 2. Human rights—Sociology. I. Title. II. Series.

JC 571.R47 2013

323’.07–dc20

2013624491

The United Nations System Chart, reproduced as Appendix B, is copyright © 2011 by the United Nations and is used with the permission of the UN Department of Public Information. Special thanks to Akiko Ito, Kashif Qadir, Maxine Smith, and Janet Teperino.

The author’s photograph on About the Author page is copyright © Brian Morri and is used with permission.

For Paul and David

CONTENTS

Foreword, 2013

Preface, 2013

Acknowledgments

Introduction

1. The Development of International Human-Rights Standards

2. The Concept of Human Rights

3. Relativism Revisited

4. A Cross-Cultural Approach to Validating International Human Rights: The Case of Retribution Tied to Proportionality

5. Conclusion

Appendix A: UN Structure

Appendix B: UN Structure, 2011

Appendix C: Universal Declaration of Human Rights

References

Index

About the Author

[Publisher’s Note: Numbers in brackets, throughout the book, reference the pagination of the original 1990 edition; these numbers are found herein embedded into the text. This allows continuity with the original edition, as well as the new print edition from Quid Pro Books. It also facilitates referencing to and assignment of the ebook edition, consistent with all print editions.]

FOREWORD • 2013

Although 1948 was a crucial year in the development of human rights, because of the adoption of the Universal Declaration of Human Rights, sadly it was also the year of missed opportunities. In 1947, the Commission on Human Rights had invited comments on the draft Universal Declaration. The American Anthropologists Association replied with a statement, drafted by Melville Herskovits, in which it warned that the Universal Declaration was likely to become an ethnocentric document. According to the AAA, it was impossible to maintain that the Declaration would apply to all human beings, while at the same time only incorporating values which are prevalent in the West. In order to be truly universal the AAA held that the Declaration should embrace and recognize the validity of many different ways of life.

According to Mark Goodale, the drafting committee of the Commission on Human Rights, which mainly consisted of lawyers, did not consider the AAA’s statement, let alone take the lessons to be learned from it. Consequently, the opportunity to incorporate anthropological insights into the drafting process with the aim to bring in important cultural and social lenses to the field of human rights was lost. In 1948 the anthropologists left the scene; in doing so they gave a free reign to the lawyers, who virtually monopolized the field.

This monopolization has had two major consequences, which made human rights more vulnerable as an academic discipline. First, because of the dominant involvement of lawyers, the area of human rights turned into a normative rather than an empirical field. Consequently, human rights ran the risk of becoming what Raimundo Panikkar described as Trojan horses, i.e. vehicles for the promotion of Western values and modernity. Second, human rights mainly became a legal discipline, which lacked the benefits of multidisciplinary scholarship.

Fortunately, in 1990, after an absence of more than 40 years, the first anthropologist returned to the field of human rights. In her book, International Human Rights: Universalism Versus Relativism, Alison Renteln redefines the concept of cultural relativism and adopts it as her starting point. She deals with the question, whether or not there can be any such thing as universal human rights. In her view, the central question is whether cultures other than those in the West have a concept of human rights, and if they do, whether or not it resembles that of the Universal Declaration of Human Rights or any other human-rights instruments.

As she notes on page 1, Universalists merely presume the validity of human rights, which abnegates the need for justification. Instead of assuming that human rights are universal, she argues that the question needs to be answered empirically. If empirical research can lead to the discovery of values shared by all cultures, then the process of building human-rights standards which have genuine support across the globe can begin. In order to avoid the charge of cultural imperialism, cross-cultural support for international human-rights standards needs to be sought.

Renteln makes clear that there is no guarantee that cross-cultural universals will be found to support the international human-rights standards which are most important to either Westerners or non-Westerners. For example, there may be no worldwide support for women’s rights. Renteln’s study suggests a method for identifying universals that would carry moral weight in the international arena, yet cannot guarantee social change. Even if a cross-cultural universal is shown to exist—as was the case with universal condemnation of apartheid—that did not in itself bring about reforms in South Africa.

The book caused quite a splash when it was first published, because its author asked many important questions which had not been raised before. She challenged some of the normativist assumptions which characterized the field. Through this book and a number of publications in leading journals which followed it, Renteln succeeded in bringing back academic rigor and methodological sophistication to the field. Over time anthropologists like Sally Engle Merry, Marie Dembour, Richard Wilson, and Mark Goodale, and other social scientists, also entered the field, where they started to develop and explore new and more effective approaches towards human rights.

All those involved in human rights research and practice owe a debt of gratitude to Alison Renteln for writing this pioneering book. This is particularly true for the researchers involved in the so-called Receptor Approach to Human Rights Project conducted jointly by the Netherlands School of Human Rights Research, the International Law Institute of the Chinese Academy of Social Sciences, and the Centre for Human Rights of Shandong University School of Law.

Renteln has taught the members of our team that to solve a human rights problem one has to properly understand it. Thus, she demonstrates that child labor is not only an economic issue, as everyone will probably expect, but also has a cultural dimension related to filial piety. She also makes the point that even if Southern and Eastern societies do not express moral concerns in a framework of human rights, they may nonetheless address them in some other conceptual framework which serves as an equivalent. She therefore insists that we should look not simply for rights cast in the Western mold, but for the structural equivalents for human rights in other societies. Renteln also makes clear that moral systems which are duty based can accommodate human rights. If, for example, the members of a given society have a duty to take care of the elderly, then the elderly could be said to have a right to proper care.

Fortunately, this wonderful book, through its re-issue, will remain a very important reference text for decades to come, to be enjoyed by the next generations of students of human rights.

TOM ZWART

Professor of Human Rights, Utrecht University

Director, Receptor Approach to Human Rights Project

PREFACE • 2013

The debate about the relationship between cultural relativism and universal human rights remains as relevant in the twenty-first century as it was decades ago when this book first appeared. Whether the question is conflicts over Islamic religious garb in Europe, methods of punishment like stoning in Nigeria, or coercive interrogation in the United States, the cultural context is critical for the interpretation of the issue. How cultural relativism ought to influence the interpretation of human rights continues to be debated, and sometimes there is no obvious answer to the question of how a particular right ought to be construed. Relativism is still a source of disagreement in many circles, among activists, philosophers, policymakers, and jurists.

The argument I advanced in this monograph sparked debate partly because of the methodological approach. The book was considered novel for suggesting that scholars undertake cross-cultural empirical research to identify cross-cultural universals to bolster human rights standards. I proposed that by identifying shared principles it would be possible to provide a stronger foundation for particular rights. While not everyone agreed with this approach, prominent scholars such as An-Abdullahi An-Na’im, Sally Merry, and Tom Zwart have advanced in their own work the cross-cultural interpretation of human rights norms.

I would like to express my gratitude to Alan Childress of Quid Pro Books for his interest in my scholarship. By reissuing this monograph in the Classics of the Social Sciences series, he makes my ideas available to new generations of scholars, advocates, and students who are interested in international human rights. The aim of this project was to build the legitimacy of international human rights standards and to encourage others to develop innovative approaches to the analysis and enforcement of human rights. A culturally sensitive and nuanced approach to international human rights offers the greatest hope of establishing the legitimacy of these vitally important standards, and this global jurisprudence is of crucial importance for solving world problems. Insofar as we can identify shared values that provide foundations for particular human rights, we avoid claims that human rights advocates are ethnocentric and foisting alien values on other societies. It is my hope that this book will inspire others in their quest to promote international human rights for all peoples around the world.

ALISON DUNDES RENTELN

Los Angeles, California

2013

Acknowledgments

{page 7 in original}

For many years I wondered how one could simultaneously respect the integrity of other cultures and retain a firm commitment to one’s own moral code. In the early 1980s my father, Alan Dundes, brought to my attention a thought-provoking article by Raimundo Panikkar entitled Is the Notion of Human Rights a Western Concept? (1982). I am grateful to both of them for encouraging me to pursue the tension between relativism and universalism.

Many individuals have contributed to the genesis of this work. I wish to thank Frank C. Newman for sparking my interest in many areas of international human rights and Philip Alston for helping me focus on some of the more controversial theoretical issues. Laura Nader was generous in sharing her inspiring work on cross-cultural notions of justice. Conversations with Elvin Hatch and Robert LeVine were especially memorable and important to the development of this book. I am extremely grateful to Martin Shapiro for a close reading of the manuscript. I owe a great deal to H. Russell Bernard for his invaluable criticisms and editorial suggestions. I also thank the following individuals for their help: Stanley Anderson, Katherine Auspitz, Gayle Binion, Donald Brown, Seyom Brown, David L. Cingranelli, Stanley Hoffman, Herbert Kelman, Alouette Kluge, Everett Mendelsohn, Sheldon Messinger, Sara Monoson, Sally Falk Moore, Michael Rogin, Davida Weinberg, and David Wong.

The opportunity to work with Laurie Wiseberg and Jennifer Schirmer on two Human Rights Internet bibliographies on anthropology and human rights, one for UNESCO and the other for Cultural Survival, was a valuable one. I am also grateful to Russell Sizemore for providing me with sections of the prepublication copy of the Harvard-Berkeley Comparative Religious Ethics Bibliographical project.

I greatly appreciate the efforts of the entire staff in the Interlibrary Loan Department at the University of California, Santa Barbara: Kitty Uthe, Susan Mahaffey, Lou Smitheram, and Diane Stowell. Reference librarians Gary Peete and Carol Gibbens were particularly kind as well.

The Soroptimists Founder Region, the Mark De Wolfe Howe Fund of Harvard University, and Dean W.J. Hill at Boalt Hall, University of California, Berkeley, provided generous financial assistance during the course of this work. {page 8 follows}

I would like to acknowledge Dr. Jennifer Montague of the Warburg Institute at the University of London who helped me choose the photograph used for the cover of this book and Dr. Christian Theuerkauff of the Staatliche Museen in Berlin who granted permission to use it. Some of the material in this book appeared previously in a different form in The Concept of Human Rights, Anthropos, 83: 343-364 (1988), by permission; A Cross Cultural Approach to Validating International Human Rights: The Case of Retribution Tied to Proportionality, in D. L. Cingranelli (Ed.), Human Rights: Theory and Measurement (pp. 7–40), 1988, Macmillan and St. Martin’s Press, with permission; and reproduced by permission of the American Anthropological Association from American Anthropologist, 90: 1, March 1988, not for further reproduction.

I am especially grateful to my husband, Paul Renteln, whose interest in my research and willingness to discuss ideas were an important source of inspiration.

A. D. R.

Los Angeles, California

1990

INTERNATIONAL

HUMAN RIGHTS

Universalism Versus Relativism

Introduction

{page 9}

IN THIS study I address the question of whether or not there can be any such thing as universal human rights. Their existence is asserted by human rights advocates and denied by cultural relativists. Universalists merely presume the validity of human rights, which abnegates the need for justification. Relativists reject the possibility that there can be universal moral standards because no justification can avoid being culturally based and thus limited in scope. This work attempts to reconcile the conflict between cultural/ethical relativism and universal human rights by showing that they are not diametrically opposed. Since I take the view that universal human rights are possible, the heart of the issue is where to locate their source of justification.

The content of the concept of human rights depends on the basis of moral authority from which it derives legitimacy. There tend to be four bases for human rights to which theorists refer: (1) divine authority, (2) natural law, (3) intuition (that is, certain actions are obviously wrong because they violate inalienable rights), and (4) ratification of international instruments. None of the four provides a wholly satisfying justification for the existence and defense of particular human rights. Divine authority cannot lend much assistance as there are many variations of religious ethics, none of which is subject to proof. Moreover, the tenets of one theology may conflict with those of another. Intuition is problematic for exactly the same reasons.

The most misleading source has been natural law because there is an assumption that natural rights, which have become associated with human rights, are self-evident. The rights are held by all individuals simply by virtue of their status as human beings. Of course, the underlying assumptions are a common view of human nature and an agreed-upon ranking of priorities with respect to basic human needs. It is by no means clear that there is universal assent to the ordering of human needs as is evidenced, for example, by the relative support of the two Covenants on human rights (see Chapter 1). This poses no problem for proponents of natural law since they share a worldview centered around civil and political rights. Turning to natural law nowadays for moral authority may not be advisable because it may not be inclusive enough: The real issue [however] is whether a natural rights theory can adequately comprehend a right like the right to work (Donnelly, 1982b, p. 398). If natural law is interpreted to justify {10} all human rights, inflated beyond recognition (Pocklington, 1982, pp. 77-86), then it may lose all credibility.

Resorting to ratification as a basis of authority is also not free from problems. First, those who ratify are the elites whose views may not correspond to those of the rest of the citizenry in a given state. Second, ratification may simply serve political and not humanitarian interests. Third, the claim that by ratification a nation-state demonstrates its commitment to and belief in a particular concept of human rights depends on a legalistic understanding of ratification (see, e.g., Sieghart, 1985, pp. xii, 40). It may be necessary to operate under the assumption that ratification of human-rights instruments conveys agreement with the concept as outlined and confers legitimacy upon it (see Alston in Anonymous, 1987a). Still, it is not true that ratification proves that there is a universal concept of human rights.

There is, indeed, reason to be concerned about the extent to which the concept of human rights is embraced worldwide. There is considerable difference of opinion as to what true human rights are. Some commentators assert that the concept is a Western one, while others insist that it is truly universal (for more on this debate, see Alston, 1983b; Bedau, 1982; Berger, 1977; Berman, 1979; Donnelly, 1982b, 1985; Ferguson, 1979; Henkin, 1979b; Kleinig, 1981; Manglapus, 1978; Masahiko, 1985; Murphy, 1981; Nickel, 1982; Novak, 1986; Panikkar, 1982; Pappu, 1982; Pollis & Schwab, 1979b; Raphael, 1966; Schifter, 1988a; Sinha, 1981, 1982; Tomuschat, 1981; and Tyagi, 1981). There tends to be a division into two camps: those who advocate civil and political rights and those who champion economic, social, and cultural rights. When one considers how voluminous the literature on human rights is and how much divergence there is on the question of human rights, it is startling that relatively little has been written on the subject of its conceptual basis (but see the insightful analyses of Alston, 1984; Bilder, 1969; Ramcharan, 1983; and Sinha, 1978b, 1981, 1982).

It is possible to find analyses of the concept of human rights from various national, ideological, and religious perspectives. But many of these studies are unreliable because their authors are determined to show that their cultures have human rights and thus they may be apologists for their own traditions. Others dismiss outright the possibility that there may be any notion of human rights in certain societies (see, e.g., Howard & Donnelly, 1986). There is certainly no comparative treatment of the concept of human rights across cultures (except for a few two-country comparisons: Berman, 1979; Kadarkay, 1982) and that is precisely what is needed. Some writers focus on a single right which they assert is the only valid right, e.g., Hart and the right to liberty (1979), Nickel and the right to freedom from torture (1982), {11} and Stackhouse and the right to participate (1984). Much of the literature reflects an ethnocentric bias which I have discussed elsewhere (Renteln, 1985). Based on the conflicting statements by scholars, it seems difficult to decide one way or the other if the concept of human rights is universal. Instead of assuming that the concept is universal, it would be better to investigate the question empirically.

A CROSS-CULTURAL APPROACH FOR

VALIDATING HUMAN RIGHTS

Since I do not believe that any existing approaches can effectively validate international human rights, I propose a new method for doing so. Only through cross-cultural empirical research can one discover values shared by all cultures. This book contains a case study which demonstrates the kind of approach which could confer legitimacy on specific human-rights standards.

The central question is whether other cultures have a concept of human rights, and if they do, whether or not it resembles that of the Universal Declaration of Human Rights or any other human-rights instruments. It is not clear if other societies’ moral systems center on rights. Much of the debate has tended to revolve around such linguistic questions. Many peoples do not, of course, speak English and have no tradition of Enlightenment ideas, which means that looking for the literal existence of human rights will not be fruitful. Even if non-Western societies do not express moral concerns in a framework of human rights, they may nonetheless address them in some other conceptual framework. It becomes necessary to reformulate the basic question: are there any homeomorphic equivalents for human rights in other cultures? I maintain that we should look not simply for rights cast in the Western mold but for the structural equivalents for human rights in other societies. Other scholars have also advocated the approach of identifying notions comparable to human rights in other cultural systems (Panikkar, 1982; Chiba, 1987).

THE CONTEXT OF HUMAN-RIGHTS DEBATES

It is important to have some insight into the nature of the debates concerning international human rights. For those unacquainted with international {12} and regional human-rights machinery, Chapter 1 provides a succinct overview with references to more in-depth treatments in the literature. This overview of United Nations (UN) organs and instruments suggests that the failure to resolve value conflicts, both acknowledged and underlying ones, ensured future confrontations. Although there was a pretense made of recognizing the significance of cultural diversity, little effort was made to deal with culture conflicts in the international realm. The drafters of the UN documents laid the groundwork for subsequent disputes.

THE CONCEPT OF HUMAN RIGHTS AND

THE PRESUMPTION OF UNIVERSALITY

Chapter 2 reveals the fallacy common to many writings on human rights, namely the presumption of universality. What typifies this way of thinking is the belief that human rights exist independent of culture, ideology, and value systems. This absolutistic perspective is found particularly among philosophers and legal theorists. Even when scholars acknowledge that human-rights norms appear to be Western, they nevertheless assert their universality. This is a peculiar form of ethnocentrism insofar as Western ideas are presumed to be ubiquitous. My approach differs sharply from this. I contend that human rights cannot be derived philosophically, but can only be established by empirical demonstration.

Chapter 2 begins by exploring the traditional notions of human rights. After clarifying the idea of a right, I discuss some of the conceptual problems associated with human rights. In particular, I challenge the claim made by some human-rights scholars that moral systems which are duty-based cannot accommodate human rights. If, for example, the members of a given society have a duty to take care of the elderly, then the elderly could be said to have a right to proper care. The point is that just because the rubric of some peoples is not that of rights does not mean that human rights cannot be universal.

But even if all social systems contain rights, this guarantees neither that they share the same rights, nor that they ascribe comparable importance to them. Nevertheless, virtually all human-rights advocates presume that human rights are universally valid. A consideration of various international human-rights instruments reveals that some of them do not embody universal values. The practices of child labor and female circumcision give some indication of how divergent moral perspectives can be. Examples of this kind {13} show that it is futile and perhaps even counterproductive merely to assert the existence of universal human rights in the face of cultural diversity.

Whether non-Western societies have human rights remains to be seen. The literature is not helpful here since many writers simply assert the presence or absence of human rights in their traditions, but provide little documentation to support their claims. Moreover, as many have been educated in Europe or the United States, these scholars tend to cite Enlightenment sources. Eventually, there may be more data on Third World views on international human rights and international law generally (Snyder, 1987; Marasinghe & Conklin, 1984).

RELATIVISM REVISITED

Chapter 3 attempts to elucidate the theory of relativism. Unfortunately, the early cultural relativists formulated the theory in such a way