for prof maurice only

The Unanswered Challenge of Relativism and the Consequences for Human Rights Author(s): Alison Dundes Renteln Source: Human Rights Quarterly, Vol. 7, No. 4 (Nov., 1985), pp. 514-540 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762152 Accessed: 22/09/2010 17:27

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HUMAN RIGHTS QUARTERLY

The Unanswered Challenge of Relativism and the Consequences for Human Rights

Alison Dundes Renteln

in recent years there has been a resurgence of interest in the concept of human rights. While some discuss what the appropriate length of the human rights list should be, others charge that the concept is a Western one. Funda- mentally these debates reflect the underlying conflict between international human rights and cultural and ethical relativism. Since relativism forbids value judgments, the relativist cannot disapprove of specific cultural prac- tices. This is because the practices regarded as reprehensible are judged ac- cording to an ethnocentric standard. Many fear the consequences of rela- tivism: (1) that a relativist position condones or even approves of customs such as head hunting, polygyny, female genital operations, subordination of women and minority groups, arbitrary killings, torture and so forth, and (2) that recognizing the legitimacy of relativism will undermine the entire human rights movement. If the validity of human rights is no longer taken to be self evident, the justification for them will have to come from somewhere.

This article explores the tension between cultural relativism and interna- tional human rights and tries to come to grips with some means to resolve this challenging problem. In the context of this essay it will not be possible to offer an exhaustive review of the literature relevant to the subject.' The basic

1. Some other works on this topic include: Philip Alston, "The Universal Declaration at 35: Western and Passe or Alive and Universal," International Commission of Jurists Review 31 (December 1983): 60-70; S. C. Brown, ed., Objectivity and Cultural Divergence (Cambridge, England: Cambridge University Press, 1984); Vincent M. Cooke, "Justice in a World of Conceptual Relativism," in The Value of Justice: Essays on the Theory and Practice of Social Virtues, ed. Charles A. Kelbley (New York: Fordham University Press, 1979) 29-38; Martin Hollis and Steven Lukes, eds., Rationality and Relativism (Cam- bridge, Mass.: M.I.T. Press, 1982); Herbert C. Kelman, "Conditions, Criteria and Dialec- tics of Human Dignity," International Studies Quarterly 21 (1977) 529-552; John Kleinig, "Cultural Relativism and Human Rights," in Teaching Human Rights, ed. Alice Erh-Soon Tay (Canberra: Australian Government Publication, 1981) 111-118; John Ladd, ed., Ethical Relativism (Belmont, California: Wadsworth Publishing Co., 1973); Jack Meiland

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argument is that the way in which the issue has been framed had led to con- fusion and dead ends. An explanation of how the standard presentation of the issue suffers from ethnocentrism should afford greater insight into the problem. By pointing out the assumptions, value judgments, and weaknesses in arguments, the hope is that future analysis of human rights may avoid these same pitfalls. In general the tendency among writers to assume the moral validity of human rights will be highlighted. To gain insight into the types of argumentation employed in order to save human rights, it is worth taking up a few examples. The following works will be scrutinized: Culture and Morality: The Relativity of Values in Anthropology by Elvin Hatch, Moral Relativity by David Wong, "Cultural Relativism and Universal Human Rights" and "Human Rights and Human Dignity: An Analytic Cri- tique of Non-Western Conceptions of Human Rights" by Jack Donnelly, and "Evaluating Human Rights in Africa: Some Problems of Implicit Com- parisons," "The Full Belly Thesis: Should Economic Rights Take Priority Over Civil and Political Rights? Evidence from Sub-Saharan Africa," and "Women's Rights in English-speaking Sub-Saharan Africa" by Rhoda Howard.2

As with many philosophical issues, this discussion requires a consider- ation of terminology. Much of what has been written revolves around con- ceptual analysis of rights, human rights, and relativism. For the most part, there is even a lack of agreement on the meaning of a right. In a discussion, for example, of the relationship between a right and a claim, Feinberg offers a pessimistic view of rights analysis:

As we shall see, the right is a kind of claim, and a claim is 'an assertion of right,' so that a formal definition of either notion in terms of the other will not get us very far. Thus if a 'formal definition' of the usual philosophical sort is what we are after, the game is over before it has begun, and we can say that the concept of a right is

and Michael Krausz, eds., Relativism: Cognitive and Moral (Notre Dame: University of Notre Dame Press, 1982); Michael Moore, "Moral Reality," Wisconsin Law Review (1982): 1061-1156; S. S. Rama Rao Pappu, "Human Rights and Human Obligations: An East-West Perspective," Philosophy and Social Action 8 (1982): 15-28; Helmut Schoeck and James W. Wiggins, eds., Relativism and the Study of Man (Princeton, N.J.: D. Von Nostrand Co. Inc., 1961); Carl Wellman, "The Ethical Implications of Cultural Relativity," journal of Philosophy 60 (March 1963) 169-184.

2. Elvin Hatch, Culture and Morality: The Relativity of Values in Anthropology (New York: Columbia University Press, 1983); David B. Wong, Moral Relativity (Berkeley: University of California Press, 1984); Jack Donnelly, "Cultural Relativism and Universal Human Rights," Human Rights Quarterly 6 (November 1984): 400-419, and "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights," American Political Science Review 76 (June 1982): 303-316; and Rhoda Howard, "The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil and Political Rights? Evidence from Sub-Saharan Africa," Human Rights Quarterly 4 (November 1983): 467-490, "Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons," Human Rights Quarterly 6 (May 1984): 160-179, "Women's Rights in English-speaking Sub-Saharan Africa," in Human Rights and Development in Africa, ed. Claude E. Welch, Jr., Ronald I. Meltzer (Albany: State University of New York Press, 1984) 46-74.

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a 'simple, undefinable, unanalyzable primitive.' Here as elsewhere in philosophy this will have the effect of making the commonplace seem unnecessarily mysterious. We would be better advised, I think, not to attempt a formal defini- tion of either 'right' or 'claim,' but rather to use the idea of a claim in informal elucidation of the idea of a right.3

Often the analytic treatment of right begins with the correlative duty. Hart challenges the alleged connection between right and duty by pointing to rights not attached to duties and to moral duties in particular.4 Our "duty" not to ill-treat animals and babies corresponds to no right held by them. If Hart is right, then there is no necessary connection between right and duty.

Hart plays with the distinction between legal and moral rights. He says that though there is "no simple identification" between the two, there is "an intimate connection" between them.s Further elucidation of this matter comes with the main argument he advances which is that "if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free."6 Hart explains that he seeks to establish that "to have a right entails having a moral justification for limiting the freedom of another person and for determining how he should act."7 Implicit in this argument is the view that freedom is of paramount importance. This may well reflect a cultural assumption on Hart's part.

Closely intertwined with the notion of rights is the idea of justice. Unfor- tunately, it is not clear what justice is and few writers specify its necessary characteristics. Many philosophers, for example Kant, assert that there are universal moral categories linked to justice which require no proof as the justification exists a priori.8 Rawls' theory of justice also assumes universality.9 There is little cross-cultural work on justice except, for exam- ple, that of Nader.1o If is not possible, therefore, to say whether there is any shared concept of justice. If it turns out that justice is itself a variable con- cept, then in all likelihood there is no single concept of rights.

There appear to be unavoidable value judgments when rights are under discussion. It is hard to conceive of a right without content. The sorts of

3. Joel Feinberg, "The Nature and Value of Rights," in Rights, ed. David Lyons (Belmont, California: Wadsworth Publishing Co., 1979) 85.

4. H.L.A. Hart, "Are There Any Natural Rights?," in Rights, note 3 above, 17. 5. Ibid., 16. 6. Ibid., 14. 7. Ibid., 19. 8. Immanuel Kant, Foundations of the Metaphysics of Morals, (Indianapolis: Bobbs-Merrill

Educational Publishing, 1981). 9. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).

10. Laura Nader, "Forums for Justice: A Cross-Cultural Perspective," Journal of Social Issues 31, 3 (1975): 151-170; Laura Nader and Andree Sursock "Anthropology and justice," to appear in Justice: Views from the Social Sciences, ed. Ronald L. Cohen (New York: Plenum Publishing Co., forthcoming).

Relativism and Human Rights 517

things one perceives as rights shape the abstract definition of rights. So, as soon as the content of rights is specified, disagreement arises.

Another reason why one wonders about the conceptual basis of rights comes from its connection with equality. It is commonly held that if there exists a right to something, then all within the community, global or domestic, hold that right. Egalitarianism is not a universal phenomenon, and so rights would also not seem to be world-wide.

The Marxist view of individual rights is that they are a bourgeois illusion. In the presence of vast inequality, professing a commitment to human rights ends up meaning little more than saying that an individual can decide under which bridge to sleep. Presumably this applies largely to political rights because the Marxist would favor economic rights at least until basic equality is achieved and the state withers away.1

The basic problem is that the discourse on rights comes from the Western political tradition. A perusal of The Human Rights Reader, for exam- ple, reveals the dominance of Western theory on rights.12 This does not mean, however, that other societies lack the ideas expressed in the Western rights framework. It may simply be the case that they articulate the values and needs in another rhetorical form. After all, it is not intuitively obvious why claims should be presented as rights unless it renders the demands more powerful. If rights do not exist in term or concept in other societies, then it makes little sense to expect them to make more compelling demands in terms of rights. That other societies do not utilize a rights framework does not mean prima facie lack of respect for what Westerners express as rights. In an article entitled "Human Rights: A Non-Western Viewpoint," Sinha argues that the current formulation of human rights contains three elements which reflect Western values:

One, the fundamental unit of society is the individual, not the family. Two, the primary basis for securing human existence in society is through rights, not duties. Three, the primary method of securing rights is through legalism where- under rights are claims and adjudicated upon, not reconciliation, repentance, or education.13

Sinha's proposed solution is to separate the concept of human rights from any particular catalogue of rights in order to focus on universal

11. For a discussion of the Marxist view see Cornelius F. Murphy, Jr., "Objections to Western Conceptions of Human Rights," Hofstra Law Review 9 (1981): 433-447; Alice Erh-Soon Tay, "Marxism, Socialism and Human Rights" in Human Rights, eds. E. Kamenka and A. Tay (London: Edward Arnold, 1978): 105-112; Leszek Kolakowski, "Marxism and Human Rights," Daedalus 112 (1983) 81-92.

12. Walter Laqueur and Barry Rubin, eds., The Human Rights Reader (New York: New American Library, 1979).

13. S. Prakash Sinha, "Human Rights: A Non-Western Viewpoint," Archiv fOr Rechts-und Sozialphilosophie 67 (1981): 77.

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characteristics. What characteristics he has in mind are not revealed. In the end he offers no principle or mechanism by which to universalize human rights. Another scholar, Bozeman, is so skeptical about the possibility of find- ing unifying concepts, that she concludes that the idea that the United Na- tions has any role to play in international affairs is a "figment of the American imagination."14

Without a well defined concept of a right, it is hard to proceed to analyze the concept of human rights. For the most part, human rights have been used in Anglo-American settings to refer to civil and political rights. Americans, for example, have trouble conceiving of economic, social, and cultural rights as human rights. Part of the explanation might be that they are relatively more affluent than the rest of the world and that their constitu- tional system does not provide these rights. 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. For both groups there is a serious problem of determining how long the human rights list should be.- A typical attack on human rights consists of questioning the validity of the right to paid vacation.16 A related issue is the legitimacy of a right which cannot be guaranteed. The question is whether or not it makes sense to put forward a human right in a society not yet able to provide that right, e.g., the right to education or the right to work. If, as some rights theorists insist, a right hinges mainly on enforcement, then the assertion of a right that cannot be enforced is a meaningless gesture. It is hard to defend the characteriza- tion of rights merely as goals or aspirations. Since, however, there is seldom, if ever, an absolute guarantee of a right, it is not clear how serious this objec- tion is.

The content of the concept may depend on the basis of moral authority from which it derives legitimacy. There tend to be four bases for human rights to which philosophers refer: (1) divine authority, (2) natural law, (3) in- tuition (that it is self evident that certain actions are wrong because they violate inalienable rights), and (4) ratification of international instruments. None of the four provide a wholly satisfying justification for the existence

14. Adda B. Bozeman, "Human Rights and National Security," Yale Journal of World Public Order 90 (1982): 53-54.

15. Several writers who discuss the list are: Maurice Cranston, "Are There Any Human Rights?," Daedalus 112 (1983): 1-17; Jack Donnelly, The Concept of Human Rights (New York: St. Martins Press, 1985); Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978); Ernst B. Haas, Global Evangelism Rides Again: How To Protect Human Rights Without Really Trying (Berkeley: University of California, Institute of International Studies, policy paper #5, 1978); D. D. Raphael, ed. Political Theory and the Rights of Man (Bloomington: Indiana University Press, 1967): 54-67; Jerome J. Shestack, "The Jurisprudence of Human Rights," Human Rights in International Law: Legal and Police Issues 1:69-107, ed. T. Meron (Oxford: Clarendon Press, 1984, 2 vols.).

16. Maurice Cranston, "Human Rights, Real and Supposed" in Political Theory and the Rights of Man, ed. D. D. Raphael (Bloomington: Indiana University Press, 1967): 43.

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and defense of particular human rights. 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 by the relative support of the two Covenants on human rights. 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."17 If natural law is interpreted to justify all human rights, inflated beyond recognition," then it may lose all credibility.

Resorting to ratification as a basis of authority is also not free from prob- lems. First of all, those who ratify are the elites whose views may not corre- spond to those of the rest of the citizenry in a given state. Secondly, ratifica- tion may simply serve political and not humanitarian interests. Thirdly, to claim that by ratification a nation-state demonstrates its commitment to and belief in a particular concept of human rights depends on a legalistic under- standing of ratification. Until it is feasible to undertake a comparative study of the concept of human rights, this is perhaps the only viable solution. 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. Still, it is not true that ratification proves that there is a universal concept of human rights.

It is easy to understand why there is so great a desire to use a rights ap- proach. For many it confers tremendous moral authority. And if the right has universal support, then it surely has even greater strength as a claim. Never- theless, it remains an open question whether human rights are universal or the concept is a Western one. This is a highly charged topic which has gen- erated a number of provocative articles.'9 Laqueur and Rubin in the intro-

17. Jack Donnelly, "Human Rights as Natural Rights," Human Rights Quarterly 4 (August 1982): 398.

18. Thomas C. Pocklington "Against Inflating Human Rights," Windsor Yearbook of Access to justice 2 (1982): 77-86.

19. Four articles which deserve some attention are: Jack Donnelly, "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights," American Political Science Review 76 (1982): 303-316; Cornelius F. Murphy, Jr., "Objec- tions to Western Conceptions of Human Rights," Hofstra Law Review 9 (1981): 433-447; Raimundo Panikkar, "Is the Notion of Human Rights a Western Concept?," Diogenes 120 (Winter 1982): 75-102; Yogesh K. Tyagi, "Third World Response to Human Rights," Indian Journal of International Law 21 (1981): 119-140.

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duction to The Human Rights Reader deny that the concept of human rights is a Western concept:

Nor is it true that the idea of human rights is an invention alien to most non- Western cultures and that it has been foisted on a more or less unwilling world. Even if there were no explicit covenants to that effect in traditional societies in Asia, Africa, and Latin America, the idea of freedom was hardly alien to those civilizations.20

This view is actually quite a concession of major continents of the world. Furthermore, the texts included in the reader are virtually all American and European. That they take their own view to be correct and self evident is clear. Though they say they recognize the need to understand the status of human rights in each specific context, some practices, to them, are obvi- ously intolerable:

And however backward a country, there is no convincing argument in favor of torture, of arbitrary execution, of keeping sections of a population or a whole people in a state of slavery. Seen in this light, the case for human rights is unassailable.21

There is no problem here if criticizing other societies is permissible. The ten- sion begins to build when a society is considered to have some right to determine its own domestic affairs. National sovereignty and the right to self determination often carry with them this sense. It is the challenge from cultural and ethical relativism which makes it difficult to accept assertions about practices. If it is self evident that a practice is ethically wrong, then its repugnant nature should give rise to an argument. What is self evident should be easily argued. The failure to advance an argument when there is a countervailing principle calling for respect for sovereignty is a serious one.

The challenge from relativism is increasing. Despite the absolutist language in which the Charter is framed, the need to quell relativism re- mains. Relativism is not a new theory. Two seminal works are William Graham Sumner's Folkways (1906) and Edward Westermarck's Ethical Relativity (1932).22 According to Ruth Benedict cultural relativism holds that as there is infinite cultural variability, there are no absolutes.23 As Hatch puts it: "for the principles that we may use for judging behavior or anything else are relative to the culture in which we are raised." 24 Benedict cites the act of killing as an example of the differences in moral standards across cultures. In

20. Laqueur and Rubin eds., note 12 above, 1. 21. Ibid., 2. 22. William Graham Sumner, Folkways (Boston: Athenaeum Press, 1960); Edward Wester-

marck, Ethical Relativity (New York: Harcourt, Brace and Company, 1932). 23. Ruth Benedict, Patterns of Culture (Boston: Houghton Mifflin Co., 1934): 45-46. 24. Melville, J. Herskovits, Cultural Relativism: Perspectives in Cultural Pluralism (New York:

Vintage Books, 1973): 14.

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some societies infanticide, patricide, and other types of homicide are ac- ceptable practices. Another leading anthropologist, Melville Herskovits, im- bued with relativist ideas, explains: "Evaluations are relative to the cultural background out of which they arise."25 Hatch purports to distinguish be- tween cultural and ethical relativism beginning with:

the distinction between the relativity of ethics and the relativity of knowledge. The former is perhaps what first comes to mind when someone uses the term 'cultural relativism' without specifying which meaning is intended, and it refers to the notion that the standards that can be applied in judging good and bad or right and wrong are relative to the cultural background of the person making the judgment. On the other hand, the relativity of knowledge has it that the existen- tial ideas we have about the world - the categories by which we classify and order it, the theories we have about the way it works and the like-are condi- tioned by culture, hence a person's interpretation of events is relative to his or her cultural background.

This book is about ethical relativism and not about the relativity of knowledge. Yet the two are so closely related that the latter will continually reappear as the discussion proceeds.26

It seems that cultural relativism is broader than ethical relativism, but the terms can be used interchangeably. Although Hatch's clarification is not ex- tremely helpful, it does highlight the importance of standards. If conduct in a given culture is judged by its own standards and if some of the conduct violates human rights standards, then there is a problem.

Hatch begins by noting that ethical relativism stands in diametric oppo- sition to absolutism. It is Hatch's intent to salvage ethical relativism to permit tolerance of cultural differences and at the same time to condemn atrocious practices that involve the use of coercion. The chief difficulty in his analysis is that he cannot define the limits of coercion except to say that he would know it was too much when he saw it.

Interpreting ethical relativism by looking to the historical context out of which it emerged, Hatch underlines the role of tolerance of cultural differ- ences: "Western civilization imagines itself better than other cultures, the argument went, only because it uses its own cultural values as the standard in judging." 27 Cultural relativism was an important development insofar as it encouraged cross-cultural understanding and tolerance of differences: "It contains a more or less implicit value judgment in its call for tolerance: it asserts that we ought to respect other ways of life."28 By emphasizing tolerance, Hatch hopes to circumvent the relativist dilemma, namely that tolerance requires approval of all cultural practices no matter how repulsive.

25. Hatch, note 1 above, 5. 26. Ibid., 5. 27. Ibid., 2. 28. Ibid., 64.

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Tolerance, in Hatch's mind, is connected to human freedom. He is loathe to let tolerance undermine human freedom, and so he struggles to find some way around the plight of relativism as a conservative theory justifying repressive practices.29 He likens the relativist anthropologist to an unrespon- sive bystander unable to act because to do so would be cultural imperialism. In the absence of guidelines for judging across cultural boundaries, Hatch advocates tolerance until a society uses coercion. Comparing the case of polygyny, where coercion is perceived because of projection on the part of the Western observer, to Yanomamo warfare where ". . . the evidence of il- legitimate coercion is overwhelming," 30 he tries to show that it is possible to utilize a principle of coercion. Even the declaration that the werfare consti- tutes "illegitimate coercion" could be called into question in this particular case. But the more crucial point is that in general it is hard to determine when people ought to be free from illegitimate coercion largely because it will require a determination of when conduct is illegitimate coercion.

Hatch wants to free anthropologists from the dilemma of recognizing that others are free to engage in coercion, but of feeling that they themselves should not do so. Further, he suggests that many leading anthropologists have, in fact, made value judgments. He traces the historical forces that led to the decline of relativist thinking such as World War II, race riots, and development. Relativism came to be manipulated by elites who wished to justify their disrespect for individual liberties and avoid massive expendi- tures.31 The relativist policy of promoting primitivism and maintaining tribal heterogeneity meant, for example, that there would be little funding avail- able for schools.

Fully aware of the abuses of relativism and also of the attitudinal barriers to universal standards, Hatch still tries to show that human well-being is not a culture-bound idea. He cannot elaborate by giving the parameters. The failure to demonstrate the sorts of human rights that should appear on the list is acknowledged:

In saying that the following principles are not given full philosophical justification I do not mean that they have no justification at all, as will be evident as the dis- cussion proceeds. These principles rest on a solid footing in that a prima fade case can be made for them. Yet when a set of normative principles are accepted on prima facie grounds, deeper philosophical issues are left unresolved,32

In the end Hatch can give no more than an intuitive argument about the nature of human well-being. He admits, further, that much work remains to be done: "It may be that any rigorous attempt to work out the content of

29. Ibid., 94. 30. Ibid., 97. 31. Ibid., 121. 32. Ibid., 134.

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morality will have to include an analysis of such notions as human wants, needs, interests, and happiness." 33The so-called humanistic principle leads in no direction because what treating people well means and what doing them harm means depend on culture-bound judgments. Without using the words "self evident" Hatch expresses the spirit of it:

We can judge that human sacrifice, torture, and political repression are wrong whether they occur in our society or some other. Similarly it is wrong for a per- son, whatever society he or she may belong to, to be indifferent toward the suf- fering of others.34

Why it is wrong is not explained. That Western readers will tend to agree is not surprising in view of their common background and value system. But even Westerners may be puzzled by the idea that altruism is or should be universal.

If Hatch is mainly engaged in an elaboration of his own value system, he does identify the issue and discuss it with reference to interesting examples. Most intriguing is his analysis of judgments of value and factual beliefs.3s He indicates that patricide may be acceptable in some societies only because of a deeply rooted belief in the afterlife. If patricide is permissible regardless of afterlife, then the problem is truly one for those advocating universal moral codes. Even if it happens that value judgments always turn on factual beliefs, the implication is that world-wide education and a monolithic value system would have to be set in place in order to guarantee international human rights standards.

Hatch tries to defend relativism up to coercion at which point he aban- dons it. Surely this is a value judgment. Human freedom and specifically freedom from violence are not universally agreed upon standards. And if they are not but should be, then Hatch's book is too short.

Although Hatch points out that ethical relativism has largely fallen to the anthropological domain, the most cogent defense of relativism recently is Moral Relativity by David Wong, a philosopher.36 Wong discusses the horror of philosophers not at the scholarly study of ethical relativism, but at the argument for tolerance which follows from it. Bernard Williams, though gen- erally sympathetic to certain aspects of relativism, called the relativist argu- ment for tolerance "the anthropologists' heresy, possibly the most absurd view to have been advanced even in moral philosophy."37 Wong contrasts

33. Ibid., 135. 34. Ibid. Hatch also says that people ought to enjoy a "reasonable" level of material exis-

tence. He thinks we can judge that poverty, malnutrition, material discomfort, human suffering, and the like are "bad."

35. lbid., 67. 36. Wong, note 1 above. 37. Bernard Williams, Morality: An Introduction to Ethics (New York: Harper & Row,

1972): 20.

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virtue-centered morality with rights-centered morality and claims to find moral relativity when looking within each type of morality and when com- paring both types. His thesis is that "a certain kind of relativist theory pro- vides maximal reconciliation of the features of experience suggesting objec- tivity with the features suggesting subjectivity."38

Wong suggests that even if the existence of moral relativism is "depressing," it must be acknowledged. His view is that the consequence of moral relativism is not paralysis. It is a new perspective on moral reform and revolution. He maintains that the rules must be changed to "come closer to the truth." 39 In trying to grapple with the conflicting demands of subjectivism and objectivism, Wong claims to rescue objective moral judgments. Wong says that his version of moral relativism is compatible with Williams' claim that morality encompasses all persons, not just those within the society in which it originates:

A moral principle can have universal scope; that is, it can apply to all moral agents in the sense of directing them to perform certain actions; and it may be true of all agents given a certain set of truth conditions that a group or society assigns to the principle; but since there may be more than one set of truth condi- tions for the principle it may not be universally justifiable to all agents.40

If the truth conditions of a society reflect its own values, then the propo- sition that a moral principle originating in one society has "universal scope," that is, applies to all people, is simply a form of cultural imperialism. One society may have the "right" moral principles according to its own truth con- ditions even when it is unable to convince members of other societies of their justifiability. How does one determine when the moral principles are "true" other than by "truth conditions," the values of one society? If Wong's argument hinges on a belief in objective truth, then he is hardly a relativist. He cannot claim both that all moral systems have their own valid truth con- ditions and ethical standards and that the truth conditions of one society are superior to others.

Wong begins by stating that: "The new philosophy of language forms part of the foundation for my argument for a new analysis of moral language and for the thesis that there is no single true morality,"41 which would seem to indicate that he is a moral relativist. But later on he discloses his real posi- tion, namely that a moral principle which arises in the context of one society may be applicable to all others even if they do not perceive this, and even if there is a moral principle in their societies which conflicts directly with it.42

38. Wong, note 1 above, 5. 39. Ibid., 175-176. 40. Ibid., 189. 41. Wong, note 1 above, xi. 42. Ibid., 22 and 189.

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A further complication that emerges for Wong is that the moral princi- ple, e.g., tolerance, makes demands on members of the society. Would tolerance dictate that those in a community committed to it denounce or even intervene in another society which displays significant intolerant behavior? Or would it require tolerance of the practice of intolerance? It re- mains unclear whether Wong thinks that there would be a duty to promote tolerance since interference might constitute a greater evil than intolerance:

The relativist argument from the justification principle concludes with a principle that is nonrelative with respect to the content of truth conditions, not necessarily with respect to justifiability. It is consistent, therefore, with that argument to con- demn the intolerant behavior of those in another society even though tolerance may not be justifiable to them. A nice question to raise at this point is whether the argument allows us to try to prevent their intolerant behavior. The argument does seem to imply a prima facie duty not to interfere with them, but if we are com- mitted to promoting tolerance, then we must ask whether our interference is a lesser evil than letting them impose their will on others. We would have to weigh conflicting prima facie duties, both derived from the value of tolerance. It would not be a contradiction to conclude that our commitment to that value weighed in favor of interference.43

Ultimately Wong admits that his belief in objective truth, of which certain moral principles are manifestations, permits interference in other cultures. This view depends on assumptions about prima facie duties and demon- strates Wong's preference for universalism over relativism. It is explained that the moral principle is verified in terms of the truth conditions. It is never explained by what method or procedure the truth conditions are validated. There will have to be a content to the moral principles and truth conditions which will mirror cultural values. Wong's argument appears to depend on the philosopher's underlying belief in and commitment to universal moral principles, whatever they might be. In the end the book is not a defense of moral relativism but a description of a certain form of intuitionism cloaked in the terminology of truth conditions.

One of the more provocative treatments of the concept of human rights is by Jack Donnelly, a political scientist, in "Human Rights and Human Dig- nity: An Analytic Critique of Non-Western Conceptions of Human Rights." Here he argues that "most non-Western cultural and political traditions lack not only the practice of human rights but the very concept. As a matter of historical fact, the concept of human rights is an artifact of modern western civilization."44 In this article Donnelly offers what he calls a functional

43. Ibid., 189-190. 44. Jack Donnelly, "Human Rights and Human Dignity: An Analytic Critique of Non-

Western Human Rights Conceptions,"American Political Science Review 76 (June 1982): 303.

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defense of human rights "based on a limited, largely Western, historical ex- perience." 45

Donnelly tries to show that several cultures lack the concept of human rights despite protestations to the contrary. At the outset he explains that he will not be concerned with particular human rights, what list of human rights makes the most sense, or which set of human rights takes precedence over the other. Since he neglects this issue, one wonders how he can demon- strate that a particular society lacks a concept of human rights. This may be because he regards the enumeration of human rights as a relatively simple matter:

With respect to human rights, we can say that at the level of the concept, human rights are rights one has because one is a human being (person); or as the Covenants put it, rights that 'derive from the inherent dignity of the human per- son.' The crucial ideas that need to be explicated at the level of conceptions are rights, persons, and (inherent) human dignity; once this is done, it is relatively easy, even if still controversial, to develop a list.46

If there is some question about the universality of a human rights concept, then Donnelly's failure to consider the list means that he has not considered the concept.47

The definition of human rights put forward by Donnelly is narrow: "Human rights are conceived as naturally inhering in the human person. They are neither granted by the state nor are they the result of one's actions."48 In a footnote he mentions that it is unclear, at least in non-theistic theories, how nature creates or confers the rights. Although human rights is a particular term derived from the Western tradition of natural rights, the substantive meaning of the rights one holds by virtue of being human would seem to be unlimited. Donnelly, nevertheless, insists upon a particular meaning taken from historical context.

Donnelly claims that non-Western societies handle rights issues such as life, speech, religion, work, health, and education not as rights but as duties. Furthermore, the duties are "neither derivative from nor correlative to rights, or at least not human rights." 49 He says that human rights are "quite foreign" to the approaches taken to human dignity by other countries. It is hard to tell if Donnelly is simply too demanding, because he practically requires a literal equivalent of human rights. For example, his objection to the claim of Islamic writers that human rights are associated with the privilege of Allah (God) and his remark that human rights are granted in Islamic society only to

45. Idid., 313. 46. Ibid., 304 (emphasis added). 47. Ibid. In the Concept of Human Rights Donnelly devotes Chapter 6, "Postscript: The Prob-

lem of Lists," to the question. He does not, however, enumerate specific human rights here which he believes should be on the human rights list.

48. Ibid., 305. 49. Ibid., 306.

Relativism and Human Rights 527

persons of full legal status are troublesome. These are odd criticisms since human rights are often perceived as deriving moral authority from religious sources 50 and have been denied to various groups in the history of the Western world as well. In short, Donnelly's objections appear to stem from his peculiarly narrow concept of human rights, one which reflects his cultural biases.

When he directs his attention to human rights in the African context, he comments that human rights have been confused with limited government. But civil and political human rights, in large part, exist to protect citizens from excesses of governmental action. That is implicit, for instance, in the notion of freedom of speech. In the section on Africa, Donnelly distinguishes between the concepts of distributive justice and of human rights:

Although giving to each his own (distributive justice) will involve giving a person that to which he is entitled (his rights), unless the definition of one's own takes place in terms of that to which one is entitled simply as a human being, the rights in question will not be human rights. in African societies, rights were assigned on the basis of communal membership, family, status, or achievement.5'

This seems an unnecessarily rigid view because it is not clear that the con- cepts are mutually exclusive. That is, the distribution might go on the basis of human rights. Donnelly cites Plato, Burke, and Bentham as examples of theorists who had theories of distributive justice but did not explicitly advo- cate human rights. It might still be that the concept of distributive justice is linked to human rights as an intrinsic matter, whether or not the theorists were conscious of it. The main point is that some overlap is possible here.

When speaking of the Chinese, Donnelly simply wonders ". .. how the Chinese managed to claim rights without the language to make such claims."52 He plays with terminology arguing that if human rights were en- joyed, then the Chinese do not have rights. To enjoy a benefit does not mean having a right unless, of course, Donnelly is mistaken, and the Chinese expectation that a benefit will be enjoyed transforms the benefit to a right. Basically, Donnelly continues to impose his concept of human rights, never delineated in specific terms, on various societies. When he discovers that the concept is not identical to his, that of Western political theory, he con- cludes that the culture lacks a concept of human rights.

In reference to India, Donnelly makes the same error as with Islamic society. The fact that certain groups, the lower castes, for example, the un- touchables, are denied human rights in no way proves that the society lacks a concept of human rights. In this section Donnelly relies on a single source

50. See Arlene Swidler, ed., Human Rights in Religious Traditions (New York: The Pilgrim Press, 1982).

51. Donnelly, note 44 above, 308. 52. Ibid.

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for drawing conclusions which severely weakens them. Before jumping to the conclusion that a society has no human rights concept, it is necessary to consult a wider range of sources.

What bothers Donnelly about the Soviet view of human rights is not their emphasis of economic rights, but the fusion of rights and duties: "How, though, can rights and duties be conceptualized as coincident?"s3 If A has a right to X, then B has a duty to provide X. This is the usual method of charac- terizing the relationship between rights and duties. Since the Soviet concep- tualization does not fit this schema, Donnelly is uncomfortable with it. Claiming that the Soviet theory of rights does not accommodate human rights because the rights provided are not unconditional he states that "human rights would be entirely absent, for human rights are not grants, either conditional or unconditional, of state or society, but are inherent to man."54 It is not clear that human rights must be unconditional in any case.

Donnelly indicates his preference for a traditional, narrow view of human rights. One key difference between modern Western and non- Western approaches to human rights is that the former is highly individual- istic in orientation. Donnelly clearly favors this emphasis and sees risks in adopting Third World group or peoples' rights: "Therefore, incorporating Third World views would be likely to have major costs for human rights."ss55 Not only suspicious of group rights, he does not even see them as human rights, calling them the rights of society: "Such costs may or may not be justified. A society which regularly balanced human rights against the rights of society may or may not be preferable to one based on a Western concept of human rights."s56 Donnelly's preference is clear.

Confident that the concept of human rights is a Western one, Donnelly remains puzzled about its applicability elsewhere. He says that human rights are likely to appear "foreign" to the "average person" in developing coun- tries, and they may have "the greatest difficulty comprehending what is meant by human rights."57 Nonetheless, he does not think this proves human rights are meaningless in other contexts. In fact, after going to con- siderable trouble to show that human rights are historically unique, Donnelly concludes that human rights are the most effective strategy for pro- tecting human dignity: "I would suggest that for most of the goals of the developing countries, as defined by these countries themselves, human rights are as effective or more effective than either traditional approaches or modern non-human rights strategies." 58 Without clarification it is hard to say

53. Ibid., 309. 54. Ibid., 310. 55. Ibid., 312. 56. Ibid. 57. Ibid., 313. 58. Ibid., 314.

Relativism and Human Rights 529

how efficacy was judged. There is no discussion of either the alleged goals or of the concept of human dignity. And if the concept of human dignity is best served by a human rights strategy, the distinction between the two becomes even more elusive. The principal weakness is that Donnelly does not explain how he has come to the conclusion that a human rights approach is the best.

In this article then, Donnelly has tried to prove that the concept of human rights is a Western concept and also that other nations should adopt the concept. The latter contention, however, is hardly proven. Donnelly seems to be aware of the conflict between respect for cultural differences and universal human rights. It is not until his recent article of November 1984, "Cultural Relativism and Universal Human Rights" that he makes a real attempt to extricate human rights from this theoretical quagmire.59 Here he tries to reconcile the conflicting theories of relativism and universalism. In this reconsideration of the universality of human rights, Donnelly wants to preserve the tension between the competing claims and their insights as well. To clarify the nature of the conflict, he employs two extreme forms, what he calls radical cultural relativism and radical universalism. The former holds that "culture is the sole source of the validity of a moral right or rule." The latter holds that "culture is irrelevant to the validity of moral rights and rules, which are universally valid."60

Having posed the conflict sharply, Donnelly shifts his attention from the ideal types to what he calls a doctrine of weak cultural relativism. Culture may be an important source of moral validity, but relativity is seen as check- ing the "potential excesses of universalism." He presumably offers his own view when he explains weak cultural relativism which "would recognize a comprehensive set of prima facie universal human rights and allow only rela- tively rare and strictly limited local variations and exceptions."61 Donnelly suggests that there are three levels of relativity: (1) in the substance of the human rights list, (2) in the interpretation of individual rights, and (3) in the forms or mechanisms by which particular human rights are implemented. Donnelly wants ultimately to defend a weak cultural relativist position that permits limited deviations from human rights standards, mostly with respect to form and interpretation.

There are several flaws in Donnelly's argument. First of all, he defends relativism on the ground that human nature "is itself in some measure cultur- ally relative."62 By so doing, he concedes possibly the strongest defense of universal human rights, namely that human beings all deserve humane treat- ment and dignity. The fact that there is an "undeniable social side" to human

59. Jack Donnelly, "Cultural Relativism and Universal Human Rights," Human Rights Quar- terly 6 (November, 1984): 400-419.

60. Ibid., 400. 61. Ibid., 401. 62. Ibid., 403.

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nature is not germane to the debate about ethical relativism. Nonetheless, he, oddly enough, wants to claim that the cultural variability of human nature "not only permits but requires significant allowance for crosscultural variations in human rights."63 That cultural conditioning leads to different social types does not prove that human nature, if there is such a thing, is vari- able, and that derogations from human rights standards should be allowed.

The most damaging aspect of the middle position Donnelly wants to take is that he cannot characterize the appropriate range of allowance. When will he don the relativist cap, when the universalist cap? Yet Donnelly says that there is universal agreement in theory, if not in practice that:

certain things simply cannot legitimately be done to human beings- regardless of the difficulties in specifying those things. Failure to act or even speak out against the grossest affronts to human dignity overseas on the grounds of cultural relativism would be widely- and I believe correctly- perceived as cowardice.64

It is worth examining this quotation because it is illustrative of the kind of flawed arguments advanced to rescue international human rights from ethical relativism. First of all, Donnelly proclaims that there is universal agreement that certain conduct should be prohibited but then admits in a footnote that international agreement "of course, tends to reflect primarily the views of those who are politically active in the modern sector."65 Sec- ondly, he offers his intuition or belief that failure to condemn gross violations of human rights is morally reprehensible though he cannot offer any expla- nation. This is particularly disturbing since he purports to have some regard for relativism. Finally, he asserts that "certain things simply cannot legiti- mately be done to human beings"66 but cannot suggest any way to deter- mine what things they are. He does mention chattel slavery and caste system. It is possible that even Western understanding of caste reflects cultural bias.67 In addition he says that prohibition of torture and require- ments of procedural due process in imposing and executing legal punish- ments "seem to be accepted as binding by virtually all cultures."68 There is no substantiation for this claim. All he says is that there are great differences in specifying the practice and substantive meanings of the notions. His underlying assumption appears to be that it is self evident that some prac- tices are unacceptable. Even if this is so, which Donnelly has not demon- strated, his discussion furnishes no principle for determining in less clear-cut cases when things are legitimate and when they are not.

63. Ibid. 64. Ibid., 404. 65. Ibid. 66. Ibid. 67. Louis Dumont, Homo Hierarchicus: The Caste System and its Implications (Chicago and

London: University of Chicago Press, 1980). 68. Donnelly, see note 58 above, 404-405.

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Donnelly's main insight is the point concerning internal and external evaluations. Where conduct violates internal standards, external criticism is less problematic. As Donnelly notes, however:

Clearly the most important controversies are likely to arise over practices that are defensible according to internal standards but unacceptable by external stan- dards; these are the practices we are most concerned with in the discussion of cultural relativism and universal human rights.69

Examples include child betrothal, female genital operations, and widow in- heritance. Donnelly says that even if human rights are essentially a recent creation, that does not matter because they represent basic values like life, social order, protection from arbitrary rule, prohibition of inhuman and de- grading treatment, the guarantee of a place in the life of the community, and access to an equitable share of the means of subsistence. On behalf of all peoples, Donnelly speaks of these as "central moral aspirations in nearly all cultures."o70 Never formulating clearly a theoretical principle or device to jus- tify human rights, Donnelly leaves the reader with an ambiguous conclu- sion: "Basic human rights are, to use an appropriately paradoxical phrase, relatively universal."71

To find out if human rights are truly universal, it would be necessary to evaluate diverse cultures to see if a concept of human rights exists there. If it does, the next question is whether or not the concept resembles that ex- pressed in international human rights documents. It would be advantageous for the purposes of this investigation to undertake a comparative study of the concept of human rights. The study should focus particularly on those soci- eties in which human rights are generally thought not to exist, for example, in African and Islamic societies. Some have argued that the concept of human rights is not found in such societies and that the desire to perceive them there is simply projection which reflects ethnocentric bias. Neverthe- less, it might be that there are comparable notions for the ideas associated with human rights. Commitment to the basic principle may not be articu- lated in a rights framework in many cultures. It may not be expressed, though it underlies traditional beliefs and practices.

Problems with assessing the concept of human rights in Africa are manifold. As is often the case with the debate about the degree to which the concept is shared, there are divergent views. Rhoda Howard who has writ- ten numerous articles about African human rights will be the focus of discus- sion because her work reflects the patterns of biases that have been dis- cerned previously. It should become clear that methodologically it is difficult to study the concept when the sources drawn on are not reliable.

69. Ibid., 406. 70. Ibid., 414-415. 71. Ibid., 419.

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Africans sometimes object to any inquiry into the status of human rights in their countries. They deny the applicability of human rights standards to them because they contend that human rights violations have been perpe- trated mostly by the West through the slave trade, colonialism, and apart- heid. Another problem is that the United Nations human rights norms em- phasize individual rights whereas African society stresses group rights. The title of the 1981 African Charter on Human and People's Rights is indicative of this orientation.72

Howard says that the Africans had reasons for framing their charter so that individual rights would be de-emphasized. It reinforces the claims of African nation-states vis-a-vis the Western dominated world economy and promotes the rights of sub-national cultural African groups.73 It has been argued that the Charter may permit considerable human rights abuses. So, there is a question whether African or universal human rights documents should supersede the other. In the end, this discussion is superfluous because it begs the question whether human rights are culturally specific or universal.

Unwilling to commit herself, Howard tries to avoid making value judg- ments: "The differences in the human rights philosophies of the Third World and the Western World reflect not only differences in ideologies, but also differences in historical experiences and in present forms of social organiza- tion."74 Howard concludes that various comparisons between African states and Western democracies, for instance, are inappropriate, misguided, and unfair." Implicit in her approach is a notion that African nations simply need time to catch up. Moreover, the struggle is all the more difficult because co- lonial powers introduced repressive measures that became institutionalized such as preventive detention, lack of political participation, and absence of an independent judiciary. Colonial powers also neglected economic rights and assumed no obligation for development or even for basic social welfare provisions. By making what might be viewed as excuses for African states, Howard conveys her own judgment which is that international human rights are desirable. This view comes across even more strongly in some of her other articles, specifically in an article on women's rights in Sub-Saharan Africa.

A number of writers are content to discuss the concept of human rights in Africa and hold that there is a uniquely African one.76 If they are not mis- taken, then the concept of human rights is culture-specific and not universal.

72. Rhoda Howard, "Evaluating Human Rights in Africa: Some Problems of Implicit Com- parisons," Human Rights Quarterly 6 (May 1984): 164.

73. Ibid., 165. 74. Ibid., 166. 75. Ibid. 76. Ibid., 173, footnote 47.

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Howard tries to refute their contention. The writers have in mind a model based on a communitarian ideal. African social organization allegedly differs from that of the West in three ways: (1) there is no self image as individual because group rights supersede individual rights, (2) political decisions are made through group consensus, and (3) there is an economic pattern of automatic redistribution of wealth that is accumulated. Overall, the commu- nal structures safeguarded economic rights through group ownership of land and the sharing of resources. In addition, political rights such as freedom of speech were supposedly guaranteed as well as fair judicial procedures.

Howard believes that reference to pre-colonial African society is moti- vated by political considerations: "Constant references to communal society can be, and are, used to mask systematic violations of human rights in the in- terests of ruling elites.""7 Not only is it inaccurate and misleading to characterize all of pre-colonial Africa as fitting the communitarian model, but the concept evolves as society feels the impact of new developments, technological, economic, and political: "To base human rights policy on this model of rural Africa, however, is to ignore the changes which have oc- curred and are occurred and are occurring in the way Africans live, in par- ticular how their lives are affected by all those institutions that the state con- trols."78 Thus, Howard maintains that even if there were human rights in existence, they are no longer secure in the face of the growth of nation- states. Whatever concept of human rights was traditional, there is now a need to reformulate the concept. Otherwise the result is likely to be a manipulation of traditional notions by elites.

Relying on Howard makes it difficult to determine what concept of human rights is found in Africa. Her desire to demonstrate that universal human rights are or should be found in Africa is clear and may interfere with the objectivity of her observations. She makes it seem that if one concludes that some human rights are not part of the African concept of human rights, then one is casting aspersions upon Africans. She states "[t]here is no reason to think that ordinary Africans have less capacity for moral speculation than members of the African or Western elite, although they may have less capacity to articulate or act on their beliefs." 79 The tone conveys her convic- tion that Africans deserve human rights, and that they must have political rights even if they do not demand them. The absence of demand does not signify absence of desire. Her argument is that freedom of speech and of the press are crucial for economic development. Whether or not they are found there, are traditionally believed important, or are currently favored is not

77. Ibid., 175. 78. Ibid., 177. 79. Rhoda Howard, "The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil

and Political Rights? Evidence from Sub-Saharan Africa," Human Rights Quarterly 5 (November, 1983): 490.

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mentioned.80 Howard presents her own belief in universal standards as an hypothesis:

Without indulging in idealism, one can hypothesize that there is a universal belief in fairness and justice which permeates all societies. The content of what is fair may differ, but all societies have a rule of law and a system of legitimating author- ity.81

Here it seems that only the belief in justice is universal, but when Howard takes up women's rights, it is obvious that she has a universal standard in mind. It is not only the form but also the substance which she believes is universal. Her need to prove this intuition is most evident in the article on women's rights.

In "Women's Rights in English-speaking Sub-Saharan Africa,"82 Howard attempts to explain gender inequality. What emerges as the central issue is whether or not the extended family customary in Africa affords protection to women. Howard shows that Westernizing forces in some cases have con- tributed to the deterioration of the condition of women. For example, she cites the case of the Luo women of Kenya who lost their customary land rights when the British introduced a formal land registration system and registered land in men's names only.83 Her point is that women's rights in some respects were more protected in traditional society. Underlying the entire discussion is the belief that women are entitled to equal status as citizens. This view is not universally accepted in African, Islamic, or Western societies.

Howard is certainly aware of the tension between relativism and univer- salism.84 In connection with this theoretical difficulty she mentions several African customs which contravene United Nations human rights provisions: bridewealth, arranged marriages, child betrothal, and inheritance of a relative's widow. In defense of the practices, she notes that the marriages are contracted in good faith and with the welfare of the individuals concerned and the lineages allied borne in mind. With such good intentions, the culture should not be challenged:

In this connection any advocacy of immediate implementation in sub-Saharan Africa of laws which conform to United Nations provisions for women's rights in the sphere of marriage and the family could be interpreted as an imposition of a secularized, individualistic view of human relations upon Africa.85

80. Ibid., 476. 81. Ibid., 487. 82. Rhoda Howard, "Women's Rights in English-speaking Sub-Saharan Africa," Chapter 3 in

Human Rights and Development in Africa, eds. Claude E. Welch, Jr., Ronald I. Meltzer (Albany: State University of New York Press, 1984): 46-74.

83. Ibid., 53. 84. Ibid., 59. Here she mentions cultural relativity. 85. Ibid., 58.

Relativism and Human Rights 535

Howard's intuition, however, takes her in the other direction: "On the other hand, there is almost universal evidence that marriage customs are based on the subordination of women as a group to men as a group."86 The need is not for universal evidence of discrimination, but for unversal support for gender equality.

Howard takes for granted and fails to acknowledge this major assump- tion that women deserve equal protection of the laws. The failure to pro- duce any sort of argument or even statement justifying her deeply held belief leaves her open to devastating criticism. How can Howard respond to claims that a culture accepts wholeheartedly the particular practice in ques- tion? This problem arises in the sections dealing with polygyny and female genital operations.

Western criticism of polygyny is that it is demeaning for a man to own several wives, that it undermines the Western ideal of marriage based on love, trust, and mutual respect, and that it creates tensions, rivalries, and hierarchy among wives. The case for it is that it allows the husband to accrue economic resources from multiple females and ensures a large number of children. The advantages for the woman are that it permits economic ven- tures such as marketing, provides companionship, and enables her to space her children. Polygyny, even if it does violate United Nations norms, is ac- ceptable in many traditional African societies. These socieites have a dif- ferent concept of marriage:

Certainly to those who believe in the individual's right to choose her spouse, the ideas of child betrothal, arranged marriage in return for a monetary considera- tion, or the 'inheritance' of a widow by her deceased husband's relative, are abhorrent. Yet these practices are far from abhorrent in a society which regards marriage as an alliance between lineages, which believes that young people are incapable of making reasoned decisions regarding their future spouses, and which wishes to protect widows by providing them with a new male guardian on the death of their spouses.87

Howard points out the advantages to the practices, but concludes that freedom of choice is of supreme importance. Advocating a principle that "[n]o one should be forced against her or his will to enter a marriage,"88 Howard indicates that universalism should supersede relativism. By offering an opt out provision, Howard, from the relativist's perspective, challenges the integrity of the cultural standards and judgments. Howard sees the opt out clause as a compromise which, instead of abolishing practices altogether, provides a mechanism by which women can circumvent tradi- tions.

86. Ibid. 87. Ibid., 61. 88. Ibid.

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Either no one would avail herself of the clause in which case Howard's ethnocentric feminist views are obvious or all would opt out in which case it would seem strange that the clause had not existed before. Most likely, some would use it and some would not. This would probably coincide with edu- cational background. More educated women tend to select their mates whereas rural women tend to follow traditional practices. The problem, therefore, might admit of educational rather than legislative solution.

Howard frequently presents her view as if it were self evident. In the discussion of women's rights to control their reproductive systems, she charged that "[t]o ignore these concerns under the pretense that they are in- dications of Western bias is to show disregard of the true nature of relation- ships between men and women in Africa."89 She never elaborates on the precise meaning of "nature." Rather, she goes on to show that women do an inordinate amount of work. That this is morally wrong is never proved.

Defenders of female genital operations claim as justification that it con- trols promiscuity in young girls. Defenders view the operation as "so cultur- ally central that to abolish it would be to destroy the very fabric of society."90 Howard's response is that cultures change, and people can find new threads to hold the fabric together. This answer is wholly unsatisfactory. If Howard believes that specific customs violate human rights, then it is her duty to make a compelling argument to that effect. Nowhere does she seem to realize that it is incumbent upon her to justify interference in a culture to whose practices she so vehemently objects. Donnelly notes that it is pre- cisely in these cases where the practice is consistent with internal ethical standards, but contrary to external and especially United Nations standards, that the problem is most glaring. Howard, like the others discussed, offers no guidance in efforts to find a solution to the problem of universality. Her argu- ment is the easiest to attack of all of them because the widespread existence of the practices proves that certain United Nations norms are not universal and that the status of women varies considerably throughout the world.

Contrary to Donnelly's theory that human rights exist only in those societies which express ethical standards in terms of rights, is the theory that human rights exist everywhere even if not expressed as such. In "Traditional Conceptions of Human Rights in Africa,"9' Marasinghe writes that human rights "exist in all civilized systems and most certainly in the Soviet Union, in Islamic and Hindu Law, and in the traditional societies in Asia and Africa."92 Marasinghe says that in his opinion freedom of speech exists in traditional society even though the right is internalized as are the limits to its expression.

89. Ibid., 64. 90. Ibid., 67. 91. Lakshman Marasinghe, "Traditional Conceptions of Human Rights in Africa," Chapter 2

in Welch and Meltzer, eds. see note 82 above, 32-45. 92. Ibid., 43.

Relativism and Human Rights 537

In his view, not only do all societies have concepts of human rights, but there is an even greater possibility of success in enforcing violations in tradi- tional societies than in nontraditional societies. His conclusion is that as our conceptions are guaranteed externally through tightly drafted constitutional documents whereas theirs are institutionalized in social organization, their conceptions of rights are "less vulnerable" than ours. All the general statements and conclusions put forward are his opinions. As they are com- pletely unsubstantiated, it is hard to know how seriously to take them. Whether one evaluates Howard's assertions or Marasinghe's, there is a problem of lack of proof.

As for the likelihood that there is a concept of human rights in Islam, there is also conflicting evidence. Scholars and diplomats claim that the con- cept has been embodied in Islamic law since its inception.93 Other academics take the opposite view and hold that at least civil liberties are not part of Islamic law:

And that the doctrine of siyisa [government, administration] and the notion of in- dividual liberty are indeed mutually exclusive will become apparent from a brief analysis of the scope and nature of the discretionary powers which the ruler is held to enjoy in regard to the administration of justice.94

Coulson suggests that the traditional interpretation of Islamic legal doctrine permits preventive detention, the death penalty, a judiciary subordinate to the sovereign ruler, and the lack of a mechanism for appeals (since Islamic jurisprudence ideally rejects the possibility of conflict between the executive and the law).

Only by secularizing the legal system as Turkey did can a system of guaranteed individual liberties be established, says Coulson. It might be possible to render a new and more liberal interpretation of the law. But, if in- dividual liberties are to be protected within a constitutional framework, then according to Coulson, this will involve "a radical reformulation, to say the least, of traditional Islamic principles."9s

Coulson makes no judgments and offers no moral advice. His purpose is hardly to advocate great changes in Islamic legal reasoning. His point is that if a concept of human rights is to fit in Islamic society, much work remains to be done. Despite Coulson's pessimism, it is not clear that human rights could not find a place in Islamic law. What Coulson has described is the for- mal, ideal legal framework. There is always a considerable gap between the ideal and the actual. So, just as the American constitutional system fails in ac-

93. Donnelly, note 51 above, 306. 94. N. J. Coulson, "The State and the Individual in Islamic Law," International and Com-

parative Law Quarterly 6 (January, 1957): 52. 95. Ibid., 60.

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tuality to protect freedom of speech in all cases,96 the Islamic system may ac- tually afford greater human rights protections than is ordinarily thought.

To decide whether there is a concept of human rights in African and Islamic societies will obviously require extensive research drawing on not only legal but also cultural materials. It will be necessary to draw on a wide array of sources in order to avoid such biases as were found in the illustrative cases. Perhaps one way to approach the subject would be to analyze tradi- tional categories. It is ethnocentric to assume that ethical systems center on rights and duties. From an understanding of cross-cultural moral categories may come the capacity to build universal support for principles, principles concerning the humane treatment of individuals. But it is extremely impor- tant that any analysis of and conclusions about human rights identify the assumptions made. Otherwise if each notion is taken to be self evident, there will be little progress toward justification. This is possible only if there are carefully developed arguments which demonstrate the need for the prin- ciple.

One insidious feature of the debate turns on the perception of Western- ization. Panikkar explores this by asking to what extent the concept of human rights is a Western concept.97 He says: "We should approach this topic with great fear and respect."98 Noting that it is not merely an "academic" issue, he suggests that perhaps human rights are not currently observed because "they do not represent a universal symbol powerful enough to elicit understanding and agreement."99 Panikkar astutely points out that there may be equivalent notions, not mere analogues, but what he calls the homeomorphic equivalent. Other cultures may express needs in a different fashion which reflects concern for the same issues. He utilizes a pretty window metaphor:

Human Rights are one window through which one particular culture envisages a just human order for its individuals. But those who live in that culture do not see the window. For this they need the help of another culture which sees through another window. Now I assume that the human landscape as seen through the one window is both similar to and different from the vision of the other. If this is the case, should we smash the windows and make of the many portals a single gaping aperture-with the consequent danger of structural collapse-or should we enlarge the viewpoints as much as possible and, most of all, make people aware that there are-and have to be-a plurality of windows? 100

96. See Thomas I. Emerson, "Freedom of Speech in Wartime," University of Pennsylvania Law Review 116 (1968): 975-1011; Paul L. Murphy, The Constitution in crisis times (New York: Harper and Row, 1972) and WWI and the Origin of Civil Liberties (New York: W.W. Norton Co., 1979).

97. Panikkar, note 19 above, 75-102. 98. Ibid., 75. 99. Ibid.

100. Ibid., 78-79.

Relativism and Human Rights 539

Although the human rights concept is Western, Panikkar does not think that the world should renounce declaring or enforcing human rights.101

It may be worthwhile to change the orientation of the whole enterprise. It is not advisable to attempt to prove or disprove that a narrow concept of human rights is found in traditional societies. Instead, the focus should be on the possibility of universalizing human rights. Panikkar thinks that this is a delicate matter, but if alternate formulations of moral views, corresponding to and opposing Western rights, are considered, then there may be hope. So, the fact that rights as a particular construct bear a Western imprint in no way jeopardizes the moral content they embody. But if moral arguments are to carry weight, they must be advanced and not taken for granted. As Panikkar makes clear, there is no single conceptual approach to moral expe- rience. It will be possible to unify the diverse worldviews around the globe under a particular rubric once the existence of human pluralism has been recognized and understood and once cogent justification for the moral values designated as most significant has been put forward.

The tendency to assume that human rights are valid has been noticed by several writers. In an analysis entitled "Objections to Western Conceptions," Murphy takes up the challenge from Marxism which leads to a conflict be- tween two specific visions of human rights as is reflected in the two Covenants on human rights.'02 Urging intellectuals to reconsider the philosophical premises of Western liberal theory, he says: "Human rights are not self-explanatory." 03 Murphy, along with his colleague Watson, laments the tendency of human rights scholarship to pass over interpretive dif- ficulties. Academics work for the implementation of human rights "as they understand them."104 Murphy says specifically that academics working in the field of human rights tend to reify their own conceptions. In the end, even Murphy admits he prefers Western democracies.

Pocklington echoes the point about reification in "Against Inflating Human Rights."s05 He refers to a volume of essays entitled The Practice of Freedom - Canadian Essays on Human Rights and Fundamental Freedoms:

Every one of the 24 contributors to this collection either assumes that there are human rights or ignores the question altogether and concentrates on the enact- ment, interpretation, administration, or enforcement of 'human rights' legislation. Not one of them seriously addresses the question whether or not there are any human rights.r06

Even Pocklington falls prey to the instinct to believe in rights. Assuming that rights exist, he writes:

101. Ibid., 100-101. 102. Murphy, note 19 above. 103. Ibid., 445. 104. Ibid., 435. 105. Pocklington, note 18 above. 106. Ibid., 78.

540 RENTELN

For everyone recognizes that, whatever the correct philosophical analysis of the concept of rights might be, there certainly are some rights. Even the most skep- tical acknowledge that there are legal rights, some of which (like the right not to be physically assaulted) are possessed by all citizens of civilized countries, and some of which (like the right to vote) are possessed by only some citizens.107

He is on relatively safe ground because he speaks of legal rights and not of human rights which he classifies as moral rights. Particularly interested in the difficulty of establishing a specific list of human or natural rights, Pocklington would discourage activists from proclaiming numerous rights because assert- ing too many weakens the moral power of human rights.

Advocacy of human rights has resurrected natural law and rights. This is a dangerous development because natural law is a nebulous source and cannot justify a particular set of human rights. Arguments based on ratifica- tion are equally treacherous as a means of legitimizing human rights. The ratification argument is unconvincing not just because elites often act for political reasons or because the citizens may be unaware of the substance or of the existence of the agreement, but because it avoids the central issue of justification.'08

If human rights are not self evident, that does not mean that they do not exist. Without an automatic source of moral authority such as God, natural law, or international instruments, it will be more difficult, though not im- possible, one hopes to prove that human rights exist. Unfortunately, the failure to build arguments, attributable possibly to fear that acknowledging relativism would undermine the entire human rights movement, has wasted valuable time. Moral theorists, instead of debating long ago states of nature, might have contributed to the development of human rights standards that could be agreed upon on a universal basis.

There is an urgent need to adopt a broader view of human rights which incorporates diverse concepts. Whether Donnelly is correct in saying that the concept of human rigths is an exclusively Western one or whether Tyagi is right in arguing that human rights originated in ancient Hindu and Islamic civilizations,109 the triumph of human rights and the homeomorphic equivalents will depend on the ability of those concerned to bring together divergent perspectives. The hope is that greater cross-cultural understanding will shed light on a common core of acceptable rights. Whether expressed as rights or as something else, the requirement of relativism that diversity be recognized in no way destroys the possibility of an international moral community.

107. Ibid., 79. 108. Howard, note 72 above, 164. 109. Tyagi, note 19 above, 119-148.