» by Noah Gottschalk
'Human rights are not a problem per se nor are the human rights corpus irredeemable. But we must realize that the current human rights represent just one tradition, that of Europe…It will remain incomplete and illegitimate in non-European societies unless it is reconstructed to create a truly multi-cultural mosaic'
Since its inception, the international human rights movement has been the subject of a great deal of controversy, particularly as a result of the colonial and Cold War context in which its norms were elaborated. One of its strongest and most persistent challenges to the human rights canon is the doctrine of cultural relativism, which disputes the notion of universality, thereby calling into question the legitimacy of the human rights discourse. As suggested by the above quotation by the academic Makau wa Mutua, however, criticism does not necessarily imply the discrediting and destruction of the movement, but rather, it can serve to challenge its core assumptions in order to reconstruct human rights along more inclusive and egalitarian lines.
This essay responds to Mutua’s call for a critical analysis of human rights discourse, and suggests a practical formula for its reformulation based on an examination of the legal cultures that have developed in a number of non-European and non-Western states. I will address the two major assumption contained in Mutua’s statement: first, that the European origin of human rights does indeed undermine the discourse’s claims to cross-cultural authenticity, and second, that it can and should be reconstructed in order to achieve universal legitimacy. Part I will analyze the first assumption through an examination of the context of the debate over the universality of human rights. It will first offer a brief overview of the origins of the contemporary human rights movement and the response of the cultural relativists to the historical development of international human rights norms. Second, it will evaluate both claims through an analysis of the Western influence on the elaboration of the Universal Declaration of Human Rights (UDHR), concluding that non-Western voices were indeed inadequately represented.
Part II will build upon the second assumption that human rights should be reformed rather than discarded, and will begin the work of seeking appropriate grounds for the reconstruction of the human rights paradigm, arguing that human rights is merely one means to an ultimate end, that of human dignity. In this section, I will examine the debate over the existence of a pre-colonial conception of human rights in Africa in order to establish suitable definitions for, and distinctions between, human dignity and human rights. I will also address a challenge to the language of human dignity in the context of Islamic human rights that will illustrate the inadequacy of this discourse to independently guarantee the protection of human rights.
Part III will introduce the missing link between the “means” of human rights language and the “end” of human dignity: the concept of duties. I will begin by exploring variations on the notion of obligations, particularly focusing on the constitutions of several countries representing various continents, faiths, cultures, and histories. Three regional human rights instruments that address duties to varying degrees will also be examined. In the Conclusion, I will argue that in order for human rights to be reconstructed on a multi-cultural basis, and for the ultimate “end” of human dignity to be realized, the combination of the concepts of human rights and human duties must be institutionalized on the international legal level.
» download full text as pdf
© Noah Gottschalk 2004. To contact the author write to
» noah@lawanddevelopment.org.