Abstract
We are certainly beginning to feel and perhaps even understand that humankind is indeed interrelated in the global world. Isolation is no longer possible. Consistent protection of human rights seems to be one of only a handful of tools promising sustainable global coexistence. However, the unity of humankind under the current terms, to the extent that unity is at all on offer, is unconvincing to those who feel that this coexistence comes at their expense. During the initial learning period of coexistence, problems that come up time and again include lack of validity, bias, or even complete irrelevance of universal legal solutions to fundamental human problems.
Earlier versions of the papers collected in this volume were presented in Budapest in 2002 at the 10th “The Individual v the State” Conference. The conference was hosted by Central European University, Legal Studies Department. The Open Society Institute, Budapest provided generous funding for the conference.
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References
“In order to reconcile democracy and human rights, Western policy will have to put more emphasis not on democracy alone but on constitutionalism, the entrenchment of a balance of powers, judicial review...” See Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton and Oxford: Princeton University Press (2001) 30.
Amartya Sen, Development as Freedom: Human Capability and Global Need, New York: Alfred A. Knopf (1999). Sen’s well-known example is India’s never having had famine because of her free press, while in Mao’s China millions perished in famine because there was no free press to mobilize the public against the suicidal policies of the government. It is interesting how successful this simplistic argument became (Sen’s book itself is naturally more sophisticated on the whole). But those who rely on this simple wisdom overlook the one-sided-ness of the example. Currently there is no famine, and hunger is diminishing in China, despite the fact that freedom of speech is still lacking. Further, Singapore that had a rule of law system but was deliberately restricting freedom of speech and religion clearly outperformed both China and India. The “feasibility” argument comes up also in John Rawls, “The Law of Peoples” in Stephen Shute and Susan Hurley (eds.), On Human Rights, New York: Basic Books (1993). Rawls finds that decent but hierarchical societies satisfy “law of peoples” principles. Sadurski’s chapter discusses the logical inconsistency of the “feasibility” proviso. The Rawlsian shift from the assumptions of A Theory of Justice is perhaps one of the most troubling signs of the loss of Western liberal self-confidence which comes from a mistaken self-perception of being intolerant and ethnocentric.
Charles Taylor, Multiculturalism and the “Politics of Recognition”: an essay, with commentary by Amy Gutmann, Princeton, N.J.: Princeton University Press (1992) 44.
Joseph Raz, “Multiculturalism,” 11 Ratio Juris (1998) 193, 194.
See Raimundo Panikkar, “La notion des droits de l’homme est-elle un concept occidental?”, 120 Diogène (1982) 87–115.
Ignatieff, op. cit., note 1.
Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity Press (2001) 134.
Ibid.
Yash Ghai, “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims,” 21 Cardozo Law Review (2000) 1099.
Michael Walzer, Thick and Thin—Moral Argument at Home and Abroad, Notre Dame: University of Notre Dame Press (1994) 7.
Ibid.
Sandra D. Lane and Robert A. Rubinstein, “Judging the Other: Responding to Traditional Female Genital Surgeries,” 26 Hastings Center Report (1996) 31–40.
Cf. Ignatieff, op. cit., note 1.
Ibid. Osiatynski’s chapter points to the pragmatic ambitions of the Universal Declaration.
Some of the provisions of the Universal Declaration consider the rights holder as if she were an object of a protective prohibition. This is the case with the prohibition of slavery and torture. Because these are not presented as a right (of action), rather as a freedom from something, the limits of Article 20 regarding the exercise of rights and freedoms seem not to apply. In contrast, could it be a valid argument that freedom from torture is limited to the extent torture is required to maintain public order in a democracy? The answer seems to be no, and this is also the position of the 1987 Convention against Torture. Yet this answer is not so self-evident to many since September 11, 2001.
Christine M. Korsgaard, Self-Constitution: Action, Identity, and Integrity. Lecture Five: The Constitutional Model and Bad Action. The John Locke Lectures, Oxford. www.people.fas.harvard.edu/~korsgaar/Korsgaard.LL5.
Quoted in Dominique Memmi, “Public-Private Opposition and Biopolitics: A Response to Judit Sandor,” 69, 1 Social Research (2002) 143.
Jack Donnelly, “Cultural Relativism and Universal Human Rights,” 6 Human Rights Quarterly (1984) 401.
Stuart Hampshire, “Justice is Strife,” Presidential Address delivered before the Sixty-fifth Annual Pacific Division Meeting of the American Philosophical Association in San Francisco, California, March 29, 1991.
Anne Itto, “An Insider’s View of Humanitarian Assistance,” Fletcher Forum of World Affairs (Spring 2000) 26.
Intellectually, I find it problematic that “Islam” is singled out without mentioning the history of Catholicism, or the fate of Michel Servet in Geneva, or contemporary Hindutva, or “majority church” intolerance irrespective of the religions location and context.
Consider the following letter that appeared in the Pakistani daily Dawn (4 October 2002): “Blasphemy Law Essential There have been many incidents where people punished the blasphemy accused by themselves. This should never have happened. However, such a situation arises when authorities don’t take a serious view of the most sensitive issue of sacrilege by someone publicly. Muslims are extremely sensitive about the honour of the Holy Prophet (PBUH) and care for it more than their own lives because it is the basis of their faith. Even the Quaid-i-Azam, who was also a great constitutional lawyer, had defended an accused who had killed a blasphemer. However, there are some NGOs which claim to represent human rights, but factually they maintain no contacts with the common people. Their spokespersons have neither been raised nor educated in local conditions. ... The law of the land should be invoked as per the historic perspective, tradition, culture and aspirations of the people. The blasphemy law is very much in accordance with these conditions. We need peace and harmony in our beloved country and for this purpose the law of blasphemy is essential. Dr Abdur Razzaq Sikendar Chancellor, Jamia Islamia, Binnori Town, Karachi”
Professor An-Na’im and others argue in the context of African proselytization that vulnerable religious and other cultures should be granted special protection against the unfair competition of resource-rich Western religions.
Abdullahi Ahmed An-Na’im and Francis M. Deng, (eds.), Human Rights in Africa: Cross-Cultural Perspectives, Washington, D.C.: Brookings Institution (1990) 9.
Amy Gutmann, introduction to Ignatieff, op. cit., note 1, XX. She argues that a universal regime of human rights should be compatible with moral pluralism, although not necessarily with any given moral system.
Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law,” 12 Cardozo Law Review (1991) 1157.
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Sajó, A. (2004). Introduction. In: Sajó, A. (eds) Human Rights with Modesty: The Problem of Universalism. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6172-7_1
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