Ethics, Human Rights and Culture: Their Compatibility and Inter-Dependence

Ethics, Human Rights and Culture Beyond Relativism and Universalism

Xiaorong Li

Ethics, Human Rights and Culture

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Ethics, Human Rights and Culture Beyond Relativism and Universalism

Xiaorong Li

© Xiaorong Li 2006 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published in 2006 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–1–4039–8548–4 hardback ISBN-10: 1–4039–8548–0 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Li, Xiaorong, 1958– Ethics, human rights, and culture : beyond relativism and universalism / Xiaorong Li. p. cm. Includes bibliographical references and index. ISBN 1–4039–8548–0 (cloth) 1. Human rights. 2. Social ethics. 3. Pluralism (Social sciences). I. Title. JC571.L52828 2005 323—dc22 10 9 8 7 6 5 4 3 2 1 15 14 13 12 11 10 09 08 07 06 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

2005049198

In the memory of my mother, Wang Jianrong, and my father, Li Shen

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Contents List of Figures

ix

Acknowledgements

x

Introduction

Part I

xiii

Living with Cultural Paradoxes

1

1 Paradoxes of Culture Why ‘culture?’ A consensus view Three paradoxes Cultural ‘community’ and ‘tradition’

3 3 9 14 19

2 The Ethical Significance of Culture Qualifying ethical significance The ethical significance of tradition Of character traits Of cultivated sentiments Of community

25 25 29 33 38 47

3 A Cultural Critique of Cultural Relativism Case closed? Discontents with philosophers’ critiques The cultural critique Case against irrational cultural relativism

54 54 57 64 69

Part II Transcending Dichotomies

73

4 Destructive of Cultural Community? The collapse of ‘individual vs. collective’ Human rights to culture: an oxymoron? Prerequisites for viable communities

75 76 85 92

5 Intolerant of Cultural Pluralism? Pluralism with moral purpose The intolerance of toleration

vii

102 104 111

viii Contents

Part III

Validating Rights: The View from Anywhere

119

6 Cross-Cultural Via the Inter-Subjective The return to the ordinary Between objectivity and subjectivity Identifying effective equivalents Uncovering core functions Ruling out corrupt judgments

121 121 127 131 135 140

7 From Human Values to Inherent Rights Ask us why we all agree The leap of conscience Constructing rights

143 143 155 159

8 From Practical Reasons to Extrinsic Rights Rights as instruments Integrity and trade-off Contingent universality

166 166 172 182

9 An Unfair Utopia? ‘Unrealistic,’ ‘Unfair,’ and other criticisms ‘Centrifugal circles’ of duties Fairness, impartiality, and institutions

185 185 190 199

Postscript

211

Notes

218

Bibliography

252

Index

264

List of Figures 2.1 A breakdown of culture’s ethical significance 8.1 The structure of rights 8.2 Example of a micro-structure of rights 9.1 Centrifugal circles of duties toward the standard rights-bearer 9.2 Centrifugal circles of duties of the standard duties-bearer’s

ix

27 177 178 197 197

Acknowledgements

For publicly expressing some of the beliefs I try to validate in this book, I am banished by Chinese authorities from returning to China. I was unable to visit my ailing parents and subsequently to attend their funerals. I hope to honor their memory by articulating the reasons for the convictions that are feared by such a government. There are many other motives for this venture, of course. My years of involvement in NGOs monitoring rights, particularly my experiences shared with many, Chinese and non-Chinese of creating and nurturing the group Human Rights in China, taught me the complexity of the human rights struggle. My primary inspiration continues to be the many courageous and thoughtful individuals in China or in exile who denounce abuses and defend democratic and human rights values at the risk of imprisonment or banishment from their homeland. Colleagues at the Institute for Philosophy and Public Policy, University of Maryland, made this book possible in every way imaginable. Judith Lichtenberg and David Wasserman read various chapters and suggested significant revisions. Arthur Evenchick and Verna Gehring, former and current editors of Philosophy & Public Policy Quarterly (formerly Report from the Institute for Philosophy & Public Policy) meticulously edited large chunks of the book. Arthur also extensively commented on Chapter 2. Director Bill Galston provided constant encouragement and advice. Mark Sagoff, David Crocker, Robert Wachbroit, Peter Levine, Jerome Segal, David Luban, and Bob Fullinwider commented on various papers that evolved into this book. Mark gave valuable advice at the final stage. Carroll Linkins’ unflappable wit was just as helpful as her assistance in producing the manuscript. I also profited from my teaching at the university, perhaps more than the students, particularly of the Proseminars in Philosophy, Politics and Public Policy (with Judith Lichtenberg, Mark Graber, Christopher Morris, and Karol Soltan). My interest in the subject matter emanated from writing my dissertation on John Rawls’ theory of justice, in the Philosophy Department at Stanford University. My advisors, Debra Satz and the late Susan M. Okin,

x

Acknowledgements xi

and Martha Nussbaum who served as the outside reader, challenged me to explore alternative approaches to international justice. Their own critical work in related areas of philosophy has helped shaping my views. The year I spent at the Institute for Advanced Studies in Princeton, New Jersey, provided the oasis I needed to conceptualize the main arguments in the book. I must thank IAS faculty, particularly Michael Walzer and Joan Scott, for making this possible. My fellow members from the same class, Anat Biletzki, Thomas Pogge, Danilyn Rutherford, Eve Troutt-Powell, Claire Jean Kim, Mary Lou Roberts, Ruth Abbey, Joan Fujimura, Liang Zhiping, Moshe Shokeid, Alastair Davidson and others all provided helpful insights and criticism. Thomas Pogge, David Little, and Perry Link kindly read different parts of earlier drafts, and helped me to shape the current arguments and structure of the book. My husband Eric Goldstein was by default the first to be subjected to these ideas in their hazardous raw forms. As someone who makes a living by visiting prisons, reporting on torture, and listening to victims criticizing their abusers in mostly Muslim countries, he served as my sounding board and reality check without destroying harmony on the home front. His no-nonsense editing has spared readers not a few clichés, pedantic passages, and philosophic nitpickings. My in-laws, Inge and Martin Goldstein and Aviva Goldstein, edited parts of the manuscript in a valiant effort to defend the English language from butchery on the keyboard by this non-native speaker. A scientist by training, Martin also brought needed rigor to my handling of ‘culture’ in Chapter 1. Much gratitude also goes to Nancy Farley, of the Center for Contemporary Arab Studies, Georgetown University, who edited an earlier version of the manuscript in its entirety. A grant from the National Endowment for the Humanities in the mid-1990s, in which my colleague David Crocker was the principal investigator, allowed me to undertake some of the initial research. This unexpectedly protracted pursuit was then sustained with the help of grants from the John D. and Catherine T. MacArthur Foundation, the US Institute of Peace, and the Institute for Advanced Studies at Princeton. Throughout, the University of Maryland, my employer, provided a rich and supportive environment in which I could bring this work to fruition. Finally, for the past year, thanks to Marie Holzman, JeanPhilippe Béja, and the Centre d’Etudes et de Recherches Internationales for hosting me in Paris while I finalized the text.

xii Acknowledgements

It has been a pleasure and an education to work with Daniel Bunyard and Ann Marangos, my editors at Palgrave MacMillan. I must also thank the anonymous readers whose comments helped improve the final version. It took many villages, ‘East’ and ‘West,’ to make this little book. No doubt, the views will find support and objection in each of them. X. R. Li Paris, 23 April 2005

Introduction In everyday moral decision-making, particularly in grappling with ethical dilemmas, we routinely encounter seemingly incongruent perspectives and competing values. These may or may not have much to do with cultural differences. The challenges of such diversities, to the soundness, objectivity, fairness or implementation of our judgments, however, have become increasingly more acute and complex as globalization rapidly redefines our lives. For instance, should we take seriously any suggestion that the culture in the Arab world or the Muslim religion have something to do with the latest spate of terrorist attacks? Should we buy cheap textile products made in sweatshops where the locals seem eager to get work? Should we grant asylum to young women seeking shelter from female circumcision practiced as part of the way of life in their own societies? Should we stop certain religiously sanctioned or customary legal punishments such as amputating thieves or stoning adulteresses to death since we see these as cruel, inhumane and degrading? In this book, I join many others in the effort to address these types of questions. I approach them by scrutinizing many of our taken-for-granted presumptions and experimenting with some alternatives. We have learnt our lesson that it will not do to deny the culture factor of human life, which remains omnipresent, irrepressible, and assertive in our moral discourse and policy debates. Thus when a government bans the teaching of a language, such a ban may infringe upon the cultural rights of the relevant linguistic community. In promulgating legal restrictions, whether a ban on stem-cell research or on Internet posting of opinions critical of government policies, authorities often defend them by citing cultural traditions or religious faiths. Women’s rights advocates have urged outlawing customary practices such as honor killing or widow burning because of the arbitrary taking of lives, but also the cultural symbolism with respect to women’s subjugation or discrimination. Their critics, of course, have appealed for cultural sensitivity and tolerance of cultural differences. Members of ethnic, religious, or indigenous groups have demanded cultural privileges and exceptions to legal or political norms in liberal states. Prominent intellectual and religious leaders comfortably lend their prestige or blessings to policies and social norms by speaking eloquently on behalf of cultures. xiii

xiv Introduction

To take the culture factor seriously, however, we may not have particularly good reason to perpetuate an under-appreciation and a chronic overlook of convergence and mutual influence among people with heterogeneous backgrounds. After all, people in many societies, from diverse social, political, economic, and cultural contexts, seem quite forthright and certainly capable of expressing revulsion and outrage at acts of genocide, ethnic cleansing, slavery or torture. Those who see cultural differences as the proof that there is no such thing as universal ethical standards cannot appear credible if they fail to provide an account of convergence and commonality. There may not be particularly strong reason either for discounting internal differences in moral views within a given community. When we urge sensitivity to differences between whole cultures, we owe others and ourselves an account of differences inside such a culture, which is likely to be hybrid or creolized. What sense shall we make of the fact that, for instance, the traditional custom of female circumcision has run into resistance and opposition from young girls, women’s organizations, and religious scholars in the very communities where it is practiced?1 Indeed, many of our mental habits and our received presuppositions about these matters are questionable or have become increasingly so given the rapidly changing circumstances of human life and the latest inventive understandings of cultures. For instance, how influential or determinant is the culture factor in shaping moral judgments, given the impact of other factors in life, for example, political pressures, perceived necessity of survival, or class domination? Thus, for instance, as the Chinese government eases its enforcement of the family planning policies adopted in the late 1970s, as more couples now are able to pay stiff fines for breaching the policies, and as rural women become salary-earners in the manufacturing industry, the abandonment of female infants – a presumably ‘cultural’ practice prevalent in rural China in the past two decades – seems to have subsided. Is it possible, however, to isolate the culture factor from other factors in order to assess its influence on such changes in moral practice? What shall we make of controversial anthropological findings of internal heterogeneity, overlapping similarity, and changes in the cultural practices of various communities? What implications do these findings have for our increasingly ossified habits of assuming cultures as homogeneous, incommensurable, and static, and of designating national, geopolitical, ethnic, or socioeconomic entities as whole ‘cultural’ communities?

Introduction xv

How plausible are the habitual references to the culture factor as either the explanation or the justification for moral judgments and practices? Moreover, we have often conflated the two functions, explaining and validating, when we attribute them to cultures. When Herodotus questioned whether there was any right ritual for disposing the bodies of deceased fathers, since the Callatians approved of eating their flesh but were appalled by the burial ritual the Greeks practiced, he was puzzling over a fact of life of his time. (Herodotus, 1999, Book 3, Chapter 38) He was not necessarily prescribing or validating cultural relativism as an ethical norm. Also, when Michel de Montaigne observed that what his compatriots considered the most horrible of things, death, was for others the only haven from the torments of this life and the common and prompt remedy for all evils,2 he was likewise describing a phenomenon, not granting cultural relativism a normative status. Of course, since Montaigne, the drastic increase in person-to-person encounters across entrenched borders and the growing needs for collaboration in the human community have done little to dissipate moral disagreements. The recognition that confluence and tensions of competing faiths and loyalties contributed to deadly conflicts of past centuries and of our own time, however, has roused a great deal of curiosity about the role of cultures in judgment making and evaluation of policies, and about the baffling relationships between claims to universal standards and cultural diversity. In this book, I begin addressing some of these issues and trying to take the ongoing discussions further by scrutinizing commonly used concepts and presuppositions. These issues, however, deserve much more focused and sustained attention than they have received in ethics and will receive in this book. Perhaps, they deserve to be studied as a special subject of ethics, under a sub-discipline of their own: ethics of culture. There, among other things, we could systematically scrutinize presumptions about culture, explore how cultural differences and similarities bear upon moral decision-making, tease out the implications of the conceptual scrutiny and empirical studies of culture for evaluating competing moral views, and so on. In particular, as I try to do in this book, by engaging in these exercises, we inform our responses to cultural challenges to human rights, the proposed (and internationally implemented) ethical principles for governing human behaviors everywhere: our treatment of fellow human beings and our actions or choices with perhaps unintended consequences on their lives.3 While any further discussion of these topics must move beyond the talk of ‘Asian values’ that dominated nearly all debates about human

xvi Introduction

rights and culture during the 1980s and 1990s,4 I shall note certain limitations and gains as results of those debates. The ‘Asian values’ melodrama was played in the backdrop of rapid economic development, accompanied by growing demands for social justice and political participation in Southeast Asia, and of the efforts in the international community to hold some governments in the region accountable for human rights abuses. Adversaries in philosophy and political theory argued whether the Confucian cultural heritage was an asset or a liability for protecting human rights and developing democratic governance. Proponents of Asian’s unique and exclusive values claimed that local practices could not be measured against any internationally adopted universalist standards. They warned that the cultural values of the West and the East might be incommensurable, or the East might have better answers to moral problems of our time. (Pye, 1992, and Rosemont, 1991) Some went so far as diagnosing a culturally destined Asian chronicle in failed or ill-practiced democracies. (Huntington, 1996) Critics of ‘Asian values,’ meanwhile, focused on demonstrating such claims’ fraudulence and incoherence. They drew attention to the internal heterogeneity of East Asian cultures and their inter-penetration with other cultures.5 They cited evidence that people in the region were capable of successful democratic transformation. Some have thus proposed to banish ‘culture talks’ altogether from the human rights debate,6 or at least to ‘take culture less seriously.’ (Bell, 2000, ‘Introduction.’) Some of these critics, however, implicitly share their opponents’ presuppositions about ‘culture,’ ‘tradition,’ or ‘community’ – that these are monolithic and static entities. They differ from their opponents in their assessment of whether certain cultural characteristics are present or absent in Asia or whether they are compatible to ideas of human rights and democracy.7 Having cast sufficient doubt as to the authenticity of the ‘Asian culture vs. universal human rights’ confrontation, hence shed some light on how cultures and universal value claims might relate to each other, however, the ‘Asian values’ debate did not go far enough due to some of its underlying presuppositions. Further inquiries must engage in conceptual scrutiny of ‘culture,’ ‘tradition,’ or ‘community,’ just as what such inquiries have with regard to such notions as ‘humanity,’ ‘personhood,’ and ‘right.’ While interest in the ‘Asian values’ debate recedes, inquiries of the broader issues can no longer proceed with implicit and often question-begging presumptions about ‘culture’ or ‘cultural’ values.8 A critical analysis of ‘culture’ is a necessary conceptual exercise for the more specific purposes in Part I, ‘Living with Cultural Paradoxes,’ of clarifying culture’s significance to ethics, of assessing culture’s role in

Introduction xvii

explaining and validating moral judgments, and of examining the proclaimed relativity of morality to culture. This conceptual exercise also paves the way for addressing, in the rest of the book, questions such as, whether and how persons’ intricate connections in cultural tradition or community may bear upon matters of personal autonomy in moral decision-making; how to make sense of ‘the right to culture’; how tolerance of cultural pluralism is ethically plausible; and how the idea of universal, trans-cultural, basic human rights can be justified with a sensitivity to culture. I respond to several ‘cultural’ criticisms of human rights in Part II, ‘Transcending Dichotomies.’ I question some of the often implicitly accepted assumptions about the opposition of cultural differences to universal human rights. I also question its supporting dichotomies of ‘collective’ cultural communities vs. ‘individual’ rights, tolerance of cultural diversity vs. intolerant human rights standards, and cultural pluralism vs. universal human rights monism. I intend to demonstrate the plausibility of transcending these dichotomies, which grossly simplify the complexity of the problems and confine our quests for solutions. Taking stock of these clarifications and responses to criticisms, I then outline an account of the possibility to validate universal human rights and the duties they demand in Part III, ‘Validating Rights: The View from Anywhere.’ Thus, in the brief yet critical review, in Chapter 1, of the contentious evolution of the notion of ‘culture’ in empirical studies, readers will quickly find that the anthropologists and sociologists are just as divided about what ‘culture’ is and what functions it has as philosophers are about what ‘human nature’ is and what ‘rights’ or ‘duties’ human beings have. I will identify what I see as a plausible, or the least controversial and reasonably coherent, understanding of ‘culture.’ This understanding will define a working concept of culture for this inquiry. One of its main appeals is that it informs us with inventive, fresh thinking from culture studies. It highlights the paradoxical features of the social phenomenon that ‘culture’ is meant to characterize. Three such ‘paradoxes’ or tensions are of particular importance: tensions between a culture’s uniqueness and similarity, uniformity and internal heterogeneity, and continuity and transformation. It is because of these paradoxical features from cultures is inevitably conflicted, fragmented within, as well as ‘creolized’ and culture are interpenetrable, giving rise to ‘overlapping consensus’ in values and judgments. Accelerating globalization today has only accentuated the paradoxical tendencies of cultures by highlighting their discordance but also facilitating convergence.

xviii Introduction

Consequently, it is plausible that standards of moral rightness or wrongness found in any given culture are likely to be locally contested while attracting cross-cultural allegiance. In Chapter 2, I attend to questions concerning whether and how seriously we should take cultures into consideration in ethics. If someone claims that the urge to ban female circumcision was an imposition of Western cultural values, such a person is taking the culture factor seriously in evaluating policies. If someone rebuts such a claim, citing the revulsion expressed by non-Westerners, particularly those in societies where this custom is practiced, and their support for a ban, this person, too, tacitly acknowledges the normative significance of the culture factor for policy debate. One way to tackle this question is to examine the assumption that culture has normative ethical significance because of its capacity to explain or justify the views and behaviors of moral agents. I pay special attention to what is known as the ‘irrational cultural relativist’ claim that moral sentiments, presumably products of cultural upbringing, defy and end any rational ethical evaluation. I also scrutinize the communitarian claim that persons are ‘embedded’ in cultural community in such a manner that their capability for autonomous and innovative judgment-making is in jeopardy. These inquiries, at this stage, require us to revisit cultural relativism, though one purpose of this book is to broaden the ethical interest in culture by thinking outside the box of ‘cultural relativism vs. universal human rights.’ Readers may have reasons to find cultural relativism a tiresome topic. For many philosophers and political theorists, the verdict on relativism is sealed. Bernard Williams once called cultural relativism ‘the anthropologists heresy, possibly the most absurd view to have been advanced even in moral philosophy.’ (B. Williams, 1972, p. 20) Advocates of relativism drawing upon empirical studies of culture, however, rarely have been bothered to rebut philosophical arguments against cultural relativism.9 They find philosophers ignorant about culture. For them, ‘culture’ is by nature relativistic, no matter what the philosophical arguments against cultural relativism. This may be why relativism has found a cozy refuge in cultural studies. To dislodge relativism from this shelter, however, philosophers and political theorists must scrutinize their own and their opponents’ presumptions about ‘culture,’ which is crucial for weakening, as I do in Chapter 3, the case for morality’s relativity to culture. I confine the discussion about cultural relativism to its normative variety because it is this variety of relativism that upholds culture’s ethical significance in validating moral judgments. Once we have

Introduction xix

established culture’s paradoxical nature, I argue, we have decidedly undermined normative cultural relativism. I refer to this line of argument as the cultural critique of cultural relativism. This critique is meant to supplement the philosophical arguments refuting relativism, which will also be examined in a new light. The thrust is this: if culture is a social phenomenon with paradoxical features, the rightness of moral judgments, such as those about honor killings or amputating arms of accused thieves, cannot plausibly have any relativity to cultures. Next, in Part II, I undermine the ‘culture vs. human rights’ dichotomy by responding to several ‘cultural’ objections to human rights. To some extent, these objections rely on several dichotomies – ‘collective vs. individual rights,’ ‘intolerant rights standards vs. cultural tolerance,’ and ‘monolithic universal rights vs. cultural pluralism.’ These objections include (1) the ‘communitarian’ objection that human rights are inherently insensitive to and destructive of diverse traditional cultural communities, which are governed by special relationships, loyalties, and personal commitments, not by impartial individualistic rights, and (2) the ‘cultural–pluralist’ objection that human rights are monist and inherently intolerant of pluralist cultural values and ways of life. I respond by further explicating the implications of the arguments developed in Part I concerning the paradoxical nature and attributes of culture. My response to the communitarian objection, in Chapter 4, is based on undercutting the ‘collective vs. individual rights’ dichotomy. This dichotomy rests on the claim that human rights are individualistic, while claims to communal or cultural rights are collectivist. I examine several possible uses of ‘collective rights’ and argue that most of them could not sufficiently differentiate civil – political rights, as ‘individualistic,’ from social, economic, and cultural rights, as ‘collectivist.’ I then argue for ‘the right to culture’ as a human right, but a ‘collective’ one – in the sense of being attached to ‘special membership.’ Granting privileges and immunities to members in order to strengthen their cultural communities, I contend, can be defended by the rationale of ensuring protection of members’ basic human rights. Meanwhile, from the perspective of members of cultural communities, it is reasonable to see certain rights as necessary and instrumental for safeguarding them from insecurity and deprivation, as well as for the survival and flourishing of their communities. In developing the case against the ‘cultural pluralist objection’ in Chapter 5, I challenge its presuppositions about the status of tolerance and pluralism as two stringent ethical norms. These include the presuppositions that pluralism is generously permissive of moral diversity and

xx Introduction

that tolerance requires indiscriminate acceptance of moral practices. I argue that the monist moral vision of human rights and a regime of human rights’ intolerance of violations of its principles do not necessarily breach the principles of tolerance and pluralism. The fact that a human rights regime is intolerant of, say, slavery, genocide, or torture, is not necessarily a negation of its commitment to pluralism and tolerance. I begin Part III by responding, in Chapter 6, to moral skeptics who doubt any possibility of knowing and validating any ethical standards for assessing substantive moral claims cross-culturally. According to such skeptics, any claims to common standards are inevitably biased or influenced by interventions of cultures. I try to respond to such cultural subjectivism, so to speak, without embracing metaphysical realism. Instead, I argue with ‘internal skeptics’ or ‘internal realists’ to identify methods for verifying the inter-subjective, hence cross-cultural, validity of value claims. This exercise is not intended to provide moral certainty. Rather it is to demonstrate that an uncertainty about any mindindependent objectivity of value claims does not entail that any such claims are nothing but the subjective, arbitrary, or irrational preferences or tastes cultivated in various cultures. I illustrate how certain simple tests can be performed in a preliminary inter-subjective evaluation of moral judgments or value claims, which are presumably subjective or culturally biased and cannot be subjected to cross-cultural evaluation. These include ‘identifying effective equivalent,’ ‘establishing core function,’ and ‘ruling out corrupt judgment.’ In Chapter 7, I demonstrate how these methods can be applied to verifying the underlying value claims of human rights. I follow the suit of a constructivist approach to validating several fundamental human rights on the basis of such value claims. I refer to the small set of human rights thus grounded as inherent rights. This approach aims to demonstrate the possibility of human rights’ justifiability to people from diverse cultural traditions. Once the suppositions that cultures are highly uniformed and morality is relative to cultures are shaken, as I demonstrate in the first part of the book, it follows that certain proposed ethical norms, like human rights, can no longer be plausibly seen as valid in one culture, uniquely and exclusively, but not another. Indeed, the moral skeptics can no longer maintain that, due to cultural differences in moral visions, it is impossible for human rights to become a valid framework of global ethical governance. I proceed in Chapter 8 to validate a host of additional rights – extrinsic rights – on the ground of their instrumentality to safeguarding inherent

Introduction xxi

rights.10 These include such rights as, so I argue, the rights to basic civil and political liberties and to equal social and economic access to resources and opportunities. The necessity to defend extrinsic rights as universal stems from the rapid homogenization of basic human conditions in the contemporary world. Human beings everywhere today are implicated and at least potentially vulnerable to the standard modern threats to basic human security and subsistence, or, to basic freedom from fear and want. We become increasingly interdependent and interconnected, voluntarily or involuntarily, in our daily struggles against such threats. Others bear the harmful and sometimes devastating consequences, directly or indirectly, of our actions and our choices. To safeguard the inherent rights of everyone, everywhere, to make the safeguards sustainable, we must implement extrinsic rights universally. Critics are bound to point out that human rights thus justified envision an unrealistic and unfair Utopia: human rights are unable to motivate compliance to the duties and obligations they demand. To respond to this challenge is perhaps especially important for implementing human rights in a culturally complex world, where such notions as ‘duty’ and ‘obligation’ may have different understandings or have obtained different status as moral norms. Specifically, I address three anticipated critiques in Chapter 9: ‘the impartiality critique,’ ‘the “onerousness” critique,’ and ‘the “statist” critique.’ These critiques raise some legitimate concerns such as, whose duty it is to guarantee that children in Africa are protected from enslavement or military conscription, from malnourishment or death from preventable diseases, what duties should be imposed in order to protect vulnerable populations from genocide or ethnic cleansing, or, who has the duties to secure the American ‘homeland’ and whether such duties should override other human rights duties such as the duty not to torture (particularly if those tortured may not pose any direct threat to the homeland). A person may claim many rights but will enjoy none if no specific duties are assigned to and performed by others. A duty can only be broadly motivating and realistically implementable, however, if it appeals to persons, whatever their cultural or other backgrounds, as being fair and feasible. For stimulating further discussions, I outline in this final chapter how a culturally sensitive account of the duties to safeguard human rights would handle some anticipated critiques. This sketch also gives rise to general proposals for institutional reforms. Specifically, I demonstrate how the demands for duties to safeguard human rights can be justifiably met, in a fair and realistic manner, through a division of moral labor. I illustrate how duties to safeguard human rights form ‘centrifugal

xxii Introduction

circles,’ circles of membership duties in communities and collaborative social organizations of various degrees of intimacy. In this manner, it is conceivable that the great many duties and obligations demanded by basic human rights can be realistically fulfilled without doing injustice to duties-bearers. These ideas demand being given more thought than I am able to manage fruitfully at this point – as this book goes to print.

Part I Living with Cultural Paradoxes

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1 Paradoxes of Culture

Culture is ‘historically produced, globally interconnected, internally contested, and marked with ambiguous boundaries of identity and practice.’ Sally E. Merry1

Why ‘culture?’ The troubled and puzzling relationships between culture(s) and universalist ethical principles have always challenged efforts to defend and implement such principles. We may note complaints about religious intolerance and anti-multiculturalism when France adopted legislations to curb religious fundamentalism and ban displaying ostentatious religious symbols at public schools. The latest sensational incarnations of these challenges involve, for example, criticisms of a backlash against Muslims in the anti-terrorism campaign after the terrorist attacks in the US on 11 September 2001. In some ways, the rhetoric used by some opponents to the ‘anti-terror’ wars that ‘one person’s freedom fighter is another’s terrorist’ mirrors the unease relationships. Some in the Arab world saw the smoke of cultural–psychological warfare after the exposé of US soldiers’ use of torture and mistreatment of Iraqi detainees at Abu Ghraib prison. Meanwhile, patterns of abuses and deprivation of legal rights of terrorist suspects in prisons outside US territories outraged many people both inside and outside ‘the Western civilization.’ Such reactions, partly politics for sure, are bound to burden those who dismiss the international ban on torture and ‘cruel, inhumane, and degrading treatment’ as a ‘Western’ cultural obsession.2 The culture factor in the everyday moral discourse and policy-making is undeniable and perhaps no longer avoidable. In ethics and political 3

4

Living with Cultural Paradoxes

philosophy, ‘culture’ has always been a versatile tool. When defending their competing moral positions or proposals for political reform, for instance, theorists cite characteristics or values of culture as the source of legitimacy. They demand privileges and exceptions to established norms for certain groups or persons because of their culture. Alternatively, they try to explain or even justify (or discredit) moral views or the ethical standards on the ground of moral agents’ cultures. For some, the rightness of moral judgments and the validity of ethical standards are relative to moral agents’ cultures, for others, this must have nothing to do with culture. A critical analysis of ‘culture’ may thus have to be integral to the critical assessment of substantive ethical (and political or legislative), proposals. Such an analysis helps determine whether or to what extent culture is relevant or significant to ethics. Specifically, it helps determine whether culture can explain or validate moral judgments and ethical standards, and whether such judgments and standards are or ought to be relative to culture. A critical analysis of ‘culture’ must scrutinize the attributes and nature of culture. It must not ignore the empirical question of what culture is. Only after one has a grasp of the controversial findings about culture in the empirical fields, one can begin to appreciate the delicacy of addressing this host of questions concerning the versatile roles of ‘culture.’ In this chapter, I will consult the latest, inventive, findings in cultural anthropology and sociology, seeking to identify a plausible understanding of the nature and attributes of culture. I then explicate the implications of this understanding for clarifying the ethical significance of culture in Chapter 2. In Chapter 3, I spell out what this inventive understanding of culture entails for assessing the claim that the rightness of moral judgments and standards is and should be relative to culture. These conceptual analyses and clarifications, I hope, pave the way for the second part of the book, where I respond to several so-called ‘cultural’ objections to human rights, and for the third part, where I develop an account of the possibility to validate human rights cross-culturally. In political theory and philosophy, ‘culture’ is generally spared the typically relentless scrutiny such concepts as ‘personhood,’ ‘justice,’ ‘human’ or ‘right’ are routinely subjected to. Inquiries about the validity of universal (trans-cultural) moral claims, or cultural relativism, or cultural exceptionalism, often seem to proceed with the implicit presumption that ‘culture’ is self-evident or at least commonly understood by those disputing these positions. Often, such inquiries rely on ambiguously defined concepts of ‘culture,’ ‘cultural tradition,’ and ‘cultural

Paradoxes of Culture 5

community.’ These are often too ambiguously defined to benefit useful analysis. However, how a political theorist or moral philosopher understands ‘culture’ – what she means by ‘culture’ or assumed about culture, perhaps only implicitly – has implications for the substantive views she puts forth. The understanding of, or assumptions about, ‘culture’ influence one’s substantive ethical position or policy proposal. Let me illustrate with some examples. The political philosopher John Rawls, takes the Overlapping Consensus approach to constructing principles of justice in order for such principles to generate broad public support in a liberal pluralist society. He is concerned that grounding principles of justice in any particular belief systems (religion or philosophy) would undermine these principles’ appeal. However, in constructing the law of peoples,3 Rawls’ equivalent of principles of international justice, he rests such law on a consensus between two types of people in the world, distinct in the style of government, under which they are ruled: people in liberal and ‘decent hierarchical’ states. (Rawls, 1999, p. 16) For Rawls, only a consensus between these two types of peoples is realistically possible. This is because ‘decent hierarchical’ peoples are granted some political consultation status; they are non-aggressive; and their rulers honor and protect the urgent human rights of their citizens.4 Rawls suggests that, these two types of peoples do not form any consensus with the rest of the world composed of ‘disordered peoples’ in ‘outlaw states,’ states ‘burdened by unfavorable conditions,’ or states ruled by benevolent dictators who deny public political participation. But he argues that liberal and ‘decent hierarchical’ peoples have ‘extremely good reasons’ for condemning or intervening against the violation of urgent human rights in these other types of states.5 Clearly, what Rawls refers to is a political consensus among sovereign states. Yet, he seems to draw hardly any distinction between sovereign population and people with shared religious faith or philosophical traditions. By inference, for him, geo-political borders that divide states also seem to divide these kinds of communities. From the reality of a lack of political consensus among sovereign states in the contemporary world, Rawls seems to infer that people ruled under these states must lack consensus in their religion, philosophy, or culture. This implicit assumption fails to recognize possible internal religious, philosophical, or cultural differences within a sovereign state, and it fails to acknowledge possible transnational similarities in faith, moral vision, or cultivated habits. Countries with distinct styles of government, e.g. liberal or non-liberal,

6

Living with Cultural Paradoxes

may have populations that overlap in religion (e.g. Islam as the faith of population groups in Turkey, India, Pakistan, and France) or tradition of moral thought (e.g. Confucianism in Japan, Taiwan, S. Korea, and China). More importantly, the particular style of government (liberal, hierarchical, or totalitarian) may not be representative or reflective of the dominant religious or philosophical traditions of the population ruled by it. Other theorists have employed Rawls’ Overlapping Consensus to elaborate a strategy to justify human rights as crossculturally valid. For instance, Lindholm argues that the Universal Declaration of Human Rights (UDHR) represents such an ‘overlapping consensus’ since the UDHR is ‘a sketch … toward a fully elaborated theory,’ where different cultural traditions could fill in their own substantive justifications for human rights, and such a sketch allows a ‘pluralist, and overlapping, global consensus on universal human rights.’ (Lindholm, 1992, p. 399) Charles Taylor also argues in favor of the plausibility of ‘an unforced consensus on human rights’ among diverse spiritual/cultural traditions such as Christianity and Buddhism.6 Taylor uses Rawls’ Overlapping Consensus to explain why there has actually existed an inter-cultural acceptance of the general idea of human rights in spite of cultural variations in how it is justified. These authors must take note of the statist or political nature of Rawls’ partially international consensus. If they have managed to bridge the difference between political and cultural consensuses, they owe us an explanation as to how a political consensus among sovereign states functions similarly to a cultural consensus. Presumably, there has existed, for more than half a century now, a political consensus among most sovereign states over international human rights. This political consensus, I suppose, does not entail a global cultural consensus. Conversely, if a cultural consensus over human rights is conceptually plausible and perhaps historically realistic, this consensus does not entail a political consensus. For another example, consider critics who challenge Rawls’ metaphysically ‘freestanding’ approach, particularly those from the communitarian (Sandel, 1982) and moral particularist perspectives. Walzer, for instance, questions the realistic possibility of constructing any substantive principles of justice on non-metaphysical grounds. (Walzer, 1994) In fact, Walzer seems to believe that any shared sense of international justice or human rights is inevitably ‘thin’ – abstract or meager in any particular local knowledge. Though Walzer seems to believe that certain rights of individual human beings are important (such that they override rights of political communities and justify

Paradoxes of Culture 7

humanitarian intervention in crisis situations), such rights must be understood as general, minimalist, and abstract norms such that their meanings and demands can vary in local contexts. (Walzer, 1985) Walzer grounds ‘minimal rights’ such as the rights to freedom from repression and freedom to protest against injustice in a ‘thin’ universal conception of justice. (Walzer, 1994, pp. 1–6 and 58–61) As soon as we set out to specify ‘minimal rights’ and ‘thin’ justice for any specific political community, we must immediately consider the thickets of local conditions – history, tradition, and culture, in which local people conceive rights and justice. Walzer illustrates this with the following example. Americans felt a sense of solidarity when the Czech citizens or Chinese students demonstrated against tyranny. These foreigners’ rejection of tyranny and oppression is immediately recognizable to democrats in the US even if these Americans are ignorant of the different ‘thick’ traditions in these countries. This ‘thin’ notion of justice, however, is part and parcel of, not ‘freestanding’ from, the Czech, the Chinese, or the American cultural traditions. (Walzer, 1994, pp. 5–6) Americans can only truly understand the ‘thin’ expressions of democratic demands by the Czechs and the Chinese when they understand the local ‘thick’ belief systems. The ‘thin’ values, in Walzer’s view, though ‘universally accessible,’ are not substantive enough to support any programs of action and reform in any countries. (Walzer, 1994, p. 3) An account of what it means for the Czech or the Chinese to have justice or democracy, all the particular factors considered, is likely to differ from the American ideal of justice or democracy. Walzer concludes that, ‘democracy in China will have to be Chinese’ and ‘Chinese democracy’ should ‘be defined by the Chinese themselves in terms of their own history and culture’; (Walzer, 1994, p. 60) and that a ‘Chinese democracy’ is ‘reiteratively particularistic and locally significant, intimately bound up with the maximal moralities created here and here and here, in specific times and places.’ (Walzer, 1994, p. 7) In order for this to be the case, Walzer seems to assume that the Chinese have their own exclusive culture, within which there are shared ideas about, e.g. democracy. Though I sympathize with Walzer’s concerns about the importance for understanding international justice of particularistic factors in local contexts, I find it extreme to particularize or relativize the normative idea of democracy or the right to equal political participation. Having the right to equal liberty of political representation must not mean whatever people in a society agree what it means, if any such internal agreement can be managed – particularly in a society of pluralist and

8

Living with Cultural Paradoxes

changing cultural traditions, seems to rule out the scenario of internal diversity. For him, it seems, the geo-political or societal boundaries of the People’s Republic of China also draw the boundaries of a unified cultural tradition with its uniformed view on such matters as democracy and human rights. In order for us to recognize democracy in any country, what we are looking at must meet certain requirements. Democracy cannot be defined in so far-fetched a way as to mean dictatorship or one-party rule, nor can it mean meritocracy (such as installing a ruling intelligentsia presiding over a popularly elected legislature – granting more rights and power to the educated elite7), even if the locals may understand democracy in these terms. There is certainly a need for special efforts and innovative methods, due to varying historical or circumstantial conditions in various societies, to achieve self-governance and equal protection of political liberty. The pace of democratic development and democratic procedures (voting rules, e.g.) vary from the US to the UK, from South Korea to India. One can understand the critical importance at this level of particularity. However, we recognize democracy in these countries as a more substantive normative framework than a faint, abstract, general sense of indignation against oppression and tyranny. For instance, we recognize in them constitutions that enshrine equal basic liberties and a rule of law to guarantee equal political liberty and a system of peaceful transition of power through open competition. Walzer seems to believe that local actors, immersed in the local tradition and culture, are more likely to be realistic or well informed about particularistic factors relevant to justice in the local context. However, this is not always the case. Competing local traditions tend to fight over precisely the issue of which of them is realistic or better informed about local conditions. Some of them are likely to be more reasonable or realistic than others. Some contemporary Chinese may consider Confucianism, Taoism, Buddhism, or a more recent import, communism, unrealistic or insensitive to their aspirations and local conditions in today’s China. Indeed, Walzer himself has observed that local cultural traditions reflect moral criticisms by men and women in such traditions, who are themselves each and everyone a socially and historically produced, yet internally divided, critical self. (Walzer, 1994, pp. 85–104) Through critical reflection, very likely, Americans will disagree about what or which of competing historical cultural traditions is authentically American. This makes it very difficult for them to agree on one ‘thick’ notion of justice ‘in terms of their own history and culture.’ Of course, upon critical reflection by men and women in Czechoslovakia or China, the same may be true about the Czechs or the Chinese.

Paradoxes of Culture 9

In these examples, implicit assumptions about ‘culture,’ ‘tradition,’ or ‘community’ contribute to political philosophers’ substantive views on justice. Rawls’ presupposition of peoples as largely geo-politically selfenclosed and internally homogenous in their comprehensive system of religious, moral, or cultural convictions is key to his assessment of the prospect for a partial consensus over the ‘law of peoples.’ Walzer’s assumption of political states as largely self-contained monoliths in culture and tradition is key to his conclusion that democracy is relative to local cultural tradition. (Philosophers are no exception in thinking inconsistently. At the end of this chapter, we will see how the pessimistic moral prospect that Alasdair MacIntyre once mapped out for the contemporary Western world does not exactly follow from his own fascinating reflection on cultural tradition and practice.) An evaluative inquiry of ethical and political proposals for justice – democracy and human rights, e.g. – must not leave any stone (including their assumptions about ‘culture’) unturned.

A consensus view What is culture? This is an empirical question, as much as an analytic question requiring conceptual clarification. Any answer to such a question must be verifiable by referring to anthropological at sociological findings. Consequently, then, we can turn to empirical and historical studies, where data is collected and, generalizations, about culture tested for accuracy, for rudimentary understandings. We must then analyze and clarify competing, often confusing, conceptions. Specifically, in this chapter, I begin with a relatively less controversial textbook definition generally accepted in today’s cultural anthropology and sociology. I first trace how it has emerged from debates among competing schools. I then analyze and elaborate the paradoxical features of culture understood as such. In the last section, I explicate the related, often interchangeably used concepts: cultural ‘tradition’ and ‘community.’ Let me first lay out what I identify as the less controversial textbook definition. A culture is an inherited body of informal knowledge embodied in traditions, transmitted through social learning in a community, and incorporated in practices.8 Accordingly, a moral culture is such a body of morally relevant knowledge. To know a culture is to know the informal codes of conduct. To be its member is to belong to those who know the codes and to be known as somebody who knows the codes. While this concept reflects a broad consensus among contemporary schools of cultural thought, it has evolved from bitter disputes among

10 Living with Cultural Paradoxes

cultural theorists, including cultural anthropologists and sociologists, in the past half century. I elaborate this concept below by way of a brief review of the main contentious points. For the sake of clarity, I will divide these schools roughly into two camps, the classic and contemporary schools. The classic school visions culture as a bounded entity; it is largely homogeneous, holistic, systematically structured, and time-insensitive; and it determines the destiny of the population and the ways in which they think, feel, judge and behave. The contemporary school visions culture as open and influenced from outside; if it has any borders at all, these are porous and fluid; it changes over time, often drastically; it is internally heterogeneous and dynamic; and it is its people, not culture itself, who are the agents capable of action and innovation. The classic school of cultural thought, characteristic of the generation of post-colonial anthropologists like Franz Boas and his students, Ruth Benedict, Melville Herskovits, and Margaret Mead,9 was inspired by the eighteenth-century German intellectual Johann von Herder, who, according to Sahlins, believed that, Each people knows their own kind of happiness: the culture that is the legacy of their ancestral tradition, transmitted in the distinctive concepts of their language, and adapted to their specific life conditions. It is by means of this tradition, endowed also with the morality of the community and the emotions of the family, that experience is organized, since people do not simply discover the world, they are taught it. They come to it not simply as cognitions but as values. (Sahlins, 1995, p. 12) This school views cultures as entities with impermeable borders, as internally cohesive and static. It considers persons in different cultures as incapable of communicating with each other and comparing their views.10 Consequently, as the anthropologist Clifford Geertz put it, the Boasian views lead to the belief that: … The world does not divide into the pious and the superstitious; that there are sculptures in jungles and paintings in deserts; that political order is possible without centralized power and principled justice without codified rules; that the norms of reason were not

Paradoxes of Culture 11

fixed in Greece, the evolution of morality not consummated in England. (Geertz, 1984, p. 275) After the two World Wars, more cultural anthropologists and sociologists began to find that any knowledge they might gain from studying isolated ways of life, in which a diminishing number of people now lived, shed little light on contemporary social life in the rest of the world. In this world, rapid development and globalization have since picked up speed. Some of them began studying dynamic social changes and emerging global and hybrid forms of life in the increasingly complex world.11 Some find that the Boasian demand that ‘culture’ have an intrinsic right to be respected impossible to fulfill since ‘the kind of bounded culture implied in such a formulation simply does not exist.’ (Cowan et al., 2001, p. 27) They cite recent ethnographic work to show that it is misleading to conceive of ‘culture’ as applying to integrated, harmonious, consensual, and bounded ethnic–national groups or territorialized communities – such as the ‘Arab people’ or the indigenous tribes in the Amazon. They challenge the use of ‘culture’ to refer to all human activities, spiritual, economic, social, or political, in a society or country (China) or a region (East Asia). This discrepancy between a ‘culture’ and a population group or society further challenges the view that ‘culture’ determines a population’s destiny, which reifies ‘culture’ as if it were an autonomous agent capable of choosing and dictating courses of social/political actions. According to the contemporary school, ‘culture’ is neither an island nor even an ‘archipelago,’ images depicting ‘a more or less chimerical premodern tribal world.’ Rather, ‘culture’ is ‘historically produced, globally interconnected, internally contested, and marked with ambiguous boundaries of identity and practice’; a ‘culture’ is often a hybrid, a product of ‘creolization’ of views and practices.12 People create and use ‘culture’ when they try to adapt to changing social conditions. (Jackson, 1995, p. 19) Culture is the tool for communication and validation of actions.13 Culture may consist of ancient, local, as well as new and globally portable norms, ideals, perspectives, and views. Culture need not be associated with ‘roots,’ with the past.14 In this view, culture is the product of hybrid, ‘creolization’ of diverse views and practices. ‘Creolization’ is not merely a modern invention. Ancient cities, trade routes, and empires were the oldest social contexts, where traditions and customs mixed, and where people exchanged and

12 Living with Cultural Paradoxes

transmitted goods and ideas. Globalization had started since Alexander the Great, since Damascus when it was a metropolitan trading post, since the Inquisition or the Ottoman Empire, and certainly since the Opium Wars and colonialism. Brutal, greedy, and arrogant as some of the conquerors, adventurers, or missionaries were, the flow of persons, goods, technologies, projects and institutions facilitated the flow of ideas, knowledge, perspectives, sentiments, or ‘values.’ (Appadurai, 1996) Since the mid-nineteenth century, the interpenetration and creolization of cultures picked up speed, particularly in the past few decades, as technology, tourism, trade and capitalism, the formation of de-territorialized communities, and exchange programs and migration have penetrated geopolitical and ethnic borders and redefined boundaries of religion, ideology, and tradition. What is new today is the deepening and expansion of ‘creolization’ worldwide. The ideas we have, the dreams we dream, the languages we speak, the music and art we consume, the way we relate to others, the products we crave, the persons we socialize with, or the customs we learn, have more or less acquired this creolized, hybrid quality. ‘Hybrid’ is now the norm than exception in cultural life. It no longer amazes us to find American folk tunes or Italian opera sung to Chinese words, Taiwanese born American raised in Mexico and schooled at Cambridge, Yiddish Spanish music, Cuban Chinese food, neo-Confucian liberalism, or Tibetan Buddhist advocacy for human rights. According to the contemporary school, culture has the dynamics within itself for such an expansion and transformation. The sociologist Raymond Williams, a founder of cultural studies, developed the ‘ordinary’ conception of culture to account for such dynamics. Williams wrote in 1958 that A culture has two aspects: the known meanings and directions, which its members are trained to; the new observations and meanings, which are offered and tested by individuals, by their irreducibly diversified and concrete experiences.15 Dominant forces in a society or a group always seek to establish and perpetuate certain sets of values, meanings, and standards (such as the Christian or Confucian values promoted through social and political systems). ‘Every human society has its own shape, its own purposes, [and] its own meanings. Every human society expresses these, in institutions, and in arts and learning. The making of a society is the finding of common meanings and directions …’. (R. Williams, 1958, p. 6) This aspect is the work of collective forces in society in a process of

Paradoxes of Culture 13

integration and enforcement. Yet, individual members always seek to apply norms innovatively and modify them while they pursue their own interests, intimately informed by their acculturation and education, but more importantly by their unique experiences. The individualized understandings, interpretations, contestation and innovations grow out of members’ and sub-groups’ diverse experiences. In Williams’ words, ‘The making of a mind is, first, the slow learning of shapes, purposes, and meanings, so that work, observation and communication are possible. Then, second, but equal in importance, is the testing of these in experience, the making of new observations, comparisons, and meanings.’ (R. Williams, ibid.) This aspect of the cultural process inevitably makes the meanings, directives, and norms taught and reinforced by social forces diversify and transform. The contemporary school views the development of culture as the process of ‘an active debate and amendment under the pressures of experience, contact, and discovery …’ ‘The growing society is there, yet it is also made and remade in every individual mind.’ (R. Williams, ibid.) Culture is the debate itself and its product. The hearts and minds of members variously reflect the social meanings and directives. For Williams, there is thus little myth about ‘culture,’ which is simply made and re-made in the daily-renewed ‘ordinary processes of human societies and human minds’ – where these encounter each other and where they discover, learn about, negotiate with, contest, and reshape each other. One observes in these processes the various peculiar reflections of the ‘nature of culture’: ‘always both traditional and creative,’ both constant and changing; and ‘both the most ordinary common meanings and the finest individual meanings,’ both cohesive and diversified. ‘Culture’ is both ‘ordinary’ and extraordinary, and unique but ‘in every society and in every mind.’ Williams’ ‘ordinary’ concept stresses ‘the significance of their conjunction.’ (R. Williams, ibid.) Increasingly, the view of culture’s internal dynamics has gained sympathy among anthropologists in the last few decades. Theodore Schwartz, for instance, views culture as the product of both the social and individual experiences.16 Jack Goody corroborates that the interactive dynamics of social and individual contributions to culture exists not only in complex societies, but also in ‘simpler’ ones.17 Anthropologists have also observed how, when locals claim to have possession of a harmonious and bounded culture, those who make such a claim may be using it as a strategic tool for their negotiation with the outside world, with parties they interact with, which is itself an indication of porous boundaries.18

14 Living with Cultural Paradoxes

The consensus view of culture is able to accommodate some of the seemingly incongruent insights of the classic and contemporary schools. First, it gives ‘culture’ a more definitive and concrete form – a body of informal knowledge, socially transmitted and learned ideas, wisdoms, or experiences – than the contemporary school seems to be willing. It does not consider visions privately intuited, ideas solitarily contemplated, and attitudes not publicly expressed as being ‘cultural,’ as the classic school seems to imply. Second, it further specifies culture as a body of knowledge that is historically inherited over generations, rather than any newly minted ideas, not yet tested across generations, which the contemporary view may admit into ‘culture’ while it stresses fluidity and change. This specification fits better with our intuitions about culture. Thirdly, it further narrows culture to a body of knowledge that is incorporated in practices – embodied in customs, expressed in symbols, implemented by institutions, or codified in rules – and turned into lived experiences. This body of knowledge is not limited to knowledge transmitted and circulated through books or classrooms. Indeed, fourth, people interconnected in a collaborative entity– community – are identified as actors who conduct the learning and creatively develop the knowledge, whereas authorities and elites are not the exclusive interpreters of culture. In this regard, one can differentiate culture from certain hierarchical religions that forbid worshipers to communicate directly with God or have their own interpretations of God’s will.19 This initial concept is thus more balanced. It transcends some of the long disputes among cultural theorists. For instance, it conceives cultures not as merely observable or external social entities or physical objects,20 nor as merely internal, interpretive mental states of affairs.21 One example of identifying culture with interpretive states of affairs is Richard Rorty’s reference to ‘culture’ as acquired tastes or ‘sentimentality,’ (Rorty, 1993) which I discuss in some length in Chapter 2. This concept has another attractive feature. It can accommodate paradoxical attributes of the social phenomena that ‘culture’ is to characterize, as I argue below.

Three paradoxes The contemporary school’s vision is thus too close to dissolving culture altogether for comfort. A body of knowledge that is borderless, changing, and internally contested, would be too undefined to be a ‘body’ at

Paradoxes of Culture 15

all. Those who view culture from the contemporary school’s perspective seem to resist the idea of giving culture any specific dimensions. Seen from such a perspective, it is not a surprise when some anthropologists call for abandoning ‘culture’ altogether and, instead, directly invoking local meanings and concrete practices.22 This hesitation, as one can see, to say whether culture is a thing, a set of mental states or behavioral dispositions, a structure of meanings, a set of relations, or a form of life betrays a fear that, as soon as culture is given a more substantive shape by identifying it with one of these entities, the problems with the classic vision would return to haunt, blinding one to culture’s openness, transformation, and discordance. However, this fear may be unwarranted. One can describe human beings as growing, changing (in physical shape and cognitive capacity), and internally conflicted (in feelings, ideas, or desires), without having to refrain from also identifying human beings as a particular kind of animal – demarcating them from other kinds of animals or lifeless things. A conception of ‘society’ as a specific entity – as having certain dimensions, boundaries, or structure – does not preclude the characterization that it is changing, internally diversified, with historically drawn and redrawn boundaries, such that its members can communicate with those in societies other than their own. Some elements of the classic vision are, after all, worth retaining in a more balanced vision. Such a vision would stress that one must further understand culture, a body of historically inherited, traditionally embodied, incorporated, and socially transmitted knowledge in a community, as a contradictory social phenomenon. For lack of a better phrase, I use ‘paradoxes of culture’ to characterize the contradictions (though what I refer to are not paradoxes in the strictly logical sense of the term as ‘dilemmas,’ ‘contradictions,’ or ‘predicaments’). Three such ‘paradoxes’ are particularly worthy of our attention for the purpose of the ensuing discussions. First, the ‘paradox’ of a culture’s uniqueness and discreteness on the one hand, and its similarity and compatibility with others; Second, the ‘paradox’ of uniformity, unity, and common heritage on the one hand, and internal heterogeneity, diversification, and individualization on the other; Third, the ‘paradox’ of roots, destiny, continuity, and conservation on one hand, and on the other, choice, self-critique, transformation, perhaps a measure of unpredictability, and formation of hybrids. Those who singularly stress preserving historical cultural identities and respecting other people’s cultural identities, in effect, if not in intention, are insisting treating these people the same old way as in their past.23

16 Living with Cultural Paradoxes

These paradoxes have important implications for our thinking about matters that concern ethics of culture. Let me briefly illustrate. Consider the first paradox. It is common to cite uniqueness of culture as an obstacle to conceptualizing and validating cross-cultural moral principles. Denial of or over-emphasis on cultural uniqueness sometimes demarcates human rights universalists from cultural relativists.24 Relativists emphasize uniqueness in order to uphold their assertion about the moral incommensurability between cultures. Their belief seems to be that one cannot judge a culture with unique moral views and standards according to any other culture’s standards; any so-called cross-cultural (objective) standards are fictions, since all standards are inevitably one or another culture’s unique standards. Critics of relativists, while insisting that certain standards are cross-culturally commensurable, are uneasy in accepting uniqueness as if accepting it would undermine the universality of certain moral norms. (Nathan, 1997, pp. 136–51) What does it mean to say uniqueness entails incommensurability? A body of knowledge can be unique if it has no exact copy elsewhere. Nevertheless, overlapping bodies of knowledge are also unique – they may have unique formations of mosaic or unique eclectic patterns. Two overlapping eclectic patterns can be commensurable in spite of their uniqueness. In our world of cultural ‘creolization,’ we do not simply have discrete and parallel cultures as bounded entities, where by ‘looking across boundaries between distinct cultures’ ‘people gain ideas from alternative ways of living.’ (Wright, 1998, p. 13) Rather, our own ways of living are hybrids of interactioning cultures. The relativists’ tenacious hold on uniqueness thus does not help strengthen their incommensurability thesis. Their critics’ hesitation to recognize uniqueness may not strengthen their case against incommensurability. Consider the second paradox. Uniformity in social learning is rarely a reality in any territorially finite community. Yet the sense of unity can surprisingly rise to the occasion, e.g. when members resort to a common cultural heritage for solidarity, when they perceive outside discrimination against them as a group. Any attempt at understanding the role that a religion, ideology, or the myth of shared destiny play in social and political processes must take this external pressure for cultural unity into consideration. One must balance this attentiveness to unity with awareness of the historical fluidity of cultural identity and intra-cultural diversity.25 Fluidity and diversity are constant and ubiquitous while rise of cultural solidarity is occasional and contingent.26 The problem, as the anthropologist Jack Goody observes, is that the politically active tend to over-emphasize unity over internal fissures,

Paradoxes of Culture 17

Actors generally define their culture in terms of the dominant political, linguistic, or religious units to which they owe affiliation, … presuming a bounded unity which is often problematic … . In this sense, the concept of ‘a culture’ tends to have a highly nationalistic flavor about it, certainly highly political. Culture may be visualized as homogeneous, as a way of covering up the cracks in the fabric of society.27 Some anthropologists do not find that intracultural diversity and cultural unity are not mutually exclusive even in a society dominated by one religious or spiritual tradition.28 Alternative interpretations of the dominant tradition compete for influence and authority. Intracultural heterogeneity is often manifest in members’ individualized interest and experiences tied to positions in the social and political hierarchy. It is fallacious to infer that there exists a cultural unity from a lack of visible behaviors in opposition to dominant norms. Consider the routine use of violence in raids to obtain food, land, and women among the Yanomami, known among anthropologists for their fierceness and brutality. One study found a widely expressed preference among the people for, and glorification of, violence. The problem is that one cannot infer from these findings about behaviors and expressions the conclusion that all Yanomami share a common view about how and why to use violence. Even if there was a lack of behavioral or vocal dissent, it may still be the case that, some may not be eager to fight and die a violent death. They may fight out of social pressure to conform. As one anthropologist observed, the women did not want to become victims of abduction, rape, or beating in violent raids. They feared being shot by arrows. They dread forced marriage to members of enemy tribes, which would mean they lose the only protection they had from their brothers. The men did show fear during warfare (and they slept in certain ways to avoid attacks while sleeping).29 They may conceivably have the gut feeling, ‘This is no way to live, it is foolish, but I have to do it!’ Intracultural diversity despite unity opens the possibility for intercultural communication and overlap.30 The constant contestation of the boundaries of culture, from within and outside, also makes any such boundaries porous. Cultural identity has always been historically fluid. As Seyla Benhabib maintains, cultures are themselves torn by disputes over where and how to draw their own boundaries.31 Two minority interpretations in two separate cultures may find more in common between them than with members of their own cultures. They may have

18 Living with Cultural Paradoxes

similar experiences (knowledge) from living as dominated and repressed minorities. Now consider the third paradox. To recognize this paradox is to recognize profound changes in culture and new formation of culture and sub-cultures, local or hybrid (‘creole’), as well as historical continuity. Friedrich Nietzsche, who once said that nothing that had a history could be defined, might seem to declare the project of defining culture, giving its historical dimension, hopeless. Nietzsche may have unintentionally warned against exaggerating fluidity and variation to the extent of denying stability and constancy. Cultural changes are evidential everywhere (such that it is misleading to conceive the West as an icon of rapid development and transformation and the East of stagnation, tradition, or backwardness (Huntington, 1991, pp. 36–40)).32 Yet changes have not made culture only a fleeing moment of illusion, having no durable reality. Changes promise not only diversification, but also openness, mutual penetration, and overlapping similarities. Taking paradoxes of culture seriously has practical implications. For instance, as part of its ‘war on terrorism,’ the Bush Administration launched a cultural offensive to improve America’s image, particularly in Muslim countries. The US State Department’s Office of Public Diplomacy defines its mission as ‘engaging, informing, and influencing key international audiences.’ Its outreach programs are intended to ‘advance U.S. interests and security and to provide the moral basis for U.S. leadership in the world.’33 Such programs have little chance of success, however, if their purpose is merely to facilitate one-way communication. Even if such programs were effective in making American culture and values better understood, there would still be a need to improve Americans’ own understanding of the cultures of people around the globe. The idea of a cultural offensive merits caution for another reason as well. Its effectiveness will be diminished if it assumes that its audiences, be they citizens of a nation-state or the members of a religious or ethnic group, share a single static cultural perspective. We must amend our initial consensus concept of ‘culture’ now with an important clause. A culture is a body of informal knowledge that is historically inherited and transformed, embodied and contested in traditions, incorporated and innovated in practices, and transmitted and altered through social learning in a community of evolving and porous boundaries. In the rest of the book, I will refer to and use this amended concept as the working concept. A moral culture, if we ever need to invoke such a notion for purpose of moral discussion, is accordingly such a body of informal moral knowledge.

Paradoxes of Culture 19

‘Moral knowledge’ refers here to knowledge about how to relate to others and how to live, including the knowledge that human actions have beneficial or harmful consequences on others, and that under certain conditions such actions are or are not permissible. Many have considered informal moral knowledge developed in particular communities of specific historical circumstances, i.e. moral cultural considerations, relevant to explaining and justifying actions and views. Ethics of culture involve efforts to scrutinize such assumptions about cultural explanation and cultural justification, as I attempt to do in Chapters 2 and 3.

Cultural ‘community’ and ‘tradition’ We tend to use ‘culture’ and ‘tradition’ or ‘community’ interchangeably. For the sake of clarity, I want to spell out some of the implications of the working concept of ‘culture’ on these two related concepts. Community as paradoxical social context The working concept of culture, identified in the previous two sections, entails a specific conception of cultural community. A ‘cultural community’ is a paradoxical social context – a socially organized population group, a group of shared identity, or a society, within which a body of inform knowledge is socially transmitted and contested. Being ‘paradoxical,’ this social context has identifiable yet contested and porous boundaries. It is unique yet commensurable with other social contexts. Its members have mixed feelings about their inherited practices and ideas. They relate to their heritage differently. Their heritage means different things, invokes different feelings, in them. We can now differentiate a cultural community from any collection of persons on the one hand, and on the other, from an idealized, bounded, internally harmonious, and timeless group or society. Political theorists sometimes conceive ‘culture’ and ‘cultural community’ in the latter fashion. Walzer, for instance, refers to the Indian caste system as a paradigm of the Indian ‘cultural community,’ as if all Indians had practiced, identified with, or could nonetheless be represented by such a practice. (Walzer, 1983, p. 313) Those who see the Chinese society as once upon a golden time a Confucian cultural community, presenting a better alternative to presumably imported liberal democratic society, also seem to take this approach. (Bell, 2000) Charles Taylor, e. g. has used ‘culture’ to refer to a distinct geo-political entity, which is ‘commingled in each individual society.’ (Taylor, 1992, p. 72)

20 Living with Cultural Paradoxes

Will Kymlicka, one of few political philosophers who have paid more attention to cultural community, conceive ‘culture’ as ‘the existence of a viable community of individuals with a shared heritage, language, history, etc.’ (Kymlicka, 1989, p. 168) Culture may not be possible without community. Yet, to identify ‘culture’ with a community that has not only its own language and history, but also homeland and complete institutions leads to equating ‘culture’ with a ‘nation,’ a ‘people,’ or a ‘society.’ (Kymlicka, 1995, p. 18) Kymlicka thus is able to use ‘culture’ to characterize aboriginal, first-nation, peoples in liberal states, which he defends as worthy of the liberal state’s protection because of their intrinsically valuable cultures. However, such a definition is limited in its application. Kymlicka’s ‘cultural’ community excludes too much. It excludes such communities as immigrant groups as Chinese Americans or Arab Canadians, who share among themselves language, ancestry, or history, but not ‘homeland’ or socio-political ‘institutions.’ Their own members often contest the communities identities. This makes using community identity as the indicator of culture problematic.34 (Kymlicka’s ‘culture’ may be able to accommodate internal diversity in opinions and change over time, according to the adjustment that Kymlicka has made in response to critics.) Meanwhile, such a definition of ‘culture’ as a special type of community may also include more than what Kymlicka may have intended, hence may defeat his purpose. For example, the French society must be considered a cultural community (while its Muslim minority must not); also gated communities of affluent, ethnically or religiously less heterogeneous Americans, or Jewish settlers on the West Bank also fall under this description of ‘culture’ or cultural community. Tradition as reflective discourse The working concept suggests that culture manifests itself in the form of tradition and that tradition gives a shape to culture. The working concept entails that ‘cultural tradition’ is the embodiment of the historically inherited and transformed, socially transmitted, practically incorporated, and contested informal knowledge. The substance of a tradition consists in rules or principles, customs, symbols (language), rituals, habits, and practices. This notion of ‘tradition’ emphasizes that members revise and recreate the embodiment of informal knowledge, though they inherite it with some continuity from the past, as they acquire new experiences under changing conditions of life. Tradition thus contains clashing views and diverse perspectives. General principles may be incompatible with specific rules (for example, consider ‘All are God’s children and

Paradoxes of Culture 21

loved by him’ and ‘Young girls must be subjected to genital cutting – in spite of the pain and health consequences’). Rules of different times may also clash. In addition, interpretations of principles or rules may clash. Members of the same tradition, who are taught the same principles and rules, who lived under similar circumstances, through roughly the same historical events (war, revolution, recession, or prosperity), however, do not always agree about the validity or applicability of these principles and rules. Their judgments are likely to differ about what one ought to do in a given situation. (For example, consider the disputes among Catholics in the US about abortion.) Consequently, it is insufficient to invoke cultural tradition (or identity with such a tradition) to justify enforcing any practice, as in the claim, ‘It is our tradition!’35 Philosophers generally employ two notions of ‘tradition’: one narrow, the other broad. The working concept of ‘culture’ favors the latter, which I will further discuss. The narrow view recognizes only intellectual or spiritual discourses, in which the learnt elite deliberates and disputes norms, rules, or standards. The broad view sees tradition as reflected knowledge that is continuously reinterpreted, recreated, and enacted. In this view, tradition is not merely an intellectual discourse or its products. It is also practice and practiced rules or lived ideas. The narrow view, focusing on religious texts or philosophical theories as the substance of a tradition, is inadequate to capture what has actually become embodied – accepted and motivating – in the form of custom, practice, or convention. A person taught in the Kantian or utilitarian theoretical traditions, or well-versed in Confucian or Christian texts, may not have internalized the ideas and may not be motivated to act accordingly. Conversely, those who have the appropriate beliefs and practice the customs may be unaware of these theories or texts.36 This discrepancy leads us to the broad view of tradition, which recognizes that cultural traditions have something to do with dispositions cultivated through social learning and experiences, and with lived ideas. Social learning, through which informal knowledge is transmitted and contested, thus involves more than understanding and reflection. It involves practicing acquired knowledge and internalizing the teaching through experiences into habits, dispositions, and skills. Virtue ethicists refer to this process applied to social learning of morality as moral cultivation. According to the virtue ethicist, when moral ideas are cultivated into moral habits or virtuous character traits, good judgments and right actions flow from such dispositions. It is thus not surprising that Alasdair MacIntyre has put in serious efforts at conceptualizing the broad view of tradition while he elaborates

22 Living with Cultural Paradoxes

his virtue ethic vision. A brief discussion of MacIntyre’s view, interesting in its own right, helps strengthen the broad view, which I see as the more plausible of the two views from the perspective of our working concept of ‘culture.’ I hope to do this without, as I demonstrate, accepting MacIntyre’s rejection of the idea of liberal rights. MacIntyre laments the decline of the Greek–Aristotelian tradition in Western societies and has a ‘very gloomy estimate of the prospects of a secular culture,’37 i.e. the Enlightenment movement. He wants to counter the Existentialist view that the human life is composed of discrete actions which lead nowhere, which have no order. For this purpose, MacIntyre invokes ‘tradition’ to help understand and assess ‘what someone else is doing’ by placing the action within the traditional practices in a community. In other words, MacIntyre tries to establish a connection between one’s tradition and one’s views and actions. For him, one can only comprehend the latter in the context of the former. For MacIntyre, one can understand others’ actions better by placing them ‘in the context of a set of narrative histories, histories both of the individuals concerned and of the settings in which they act and suffer.’ (MacIntyre, 1981, p. 211) He calls the narrative histories ‘tradition.’ Members of such a ‘tradition’ co-author the master ‘narrative,’ which is thus an open-ended, and continuously reworked manuscript, simultaneously accessible to all members. Central authority or elites, it seems, have no privilege in overriding the co-authors and dominating the editing, rewriting, or interpretations. Members edit (delete, add, or rewrite) their parts as they reenact them in practices in pursuits of the good. (MacIntyre, 1981, pp. 212, 213–16, 222) Tradition, in this broad conception by MacIntyre, involves reflective practices (as opposed to mere contemplation). A tradition is reflective and has room for self-critique for it is ‘sustained and advanced by its own internal arguments and conflicts.’ (MacIntyre, 1984, p. 260) The ‘narratives’ of different traditions might be context-specific, yet not in principle mutually incomprehensible or incomparable. If an actor participates in multiple traditions, one can make his action ‘intelligible,’ it seems, by referring to or placing it within a number of different narrative histories. (MacIntyre, 1981, p. 214) These traditions can thus become commensurable. Tradition does not determine actions. Actors actively participate in creating and redefining tradition. Such participation allows an innovative role for individuals and leaves room for individual autonomy. These views are essentially compatible with the account of culture as paradoxical social phenomenon.

Paradoxes of Culture 23

Despite his account of tradition as reflective practices and reinterpretations, MacIntyre seems to fear that changes taking place within a tradition is threatening the survival of the very tradition. He comes to view the rise of the Enlightenment liberal tradition in historically Christian societies as the end to an entire way of life that once was the foundation of Western civilization. He sees in this change the onset of ‘the coming ages of barbarism and darkness.’ The only hope he can find for preserving morality and civility is to retreat to bunkers – into smaller and insulated ‘local forms of community,’ free of the unlike-minded others, ‘barbarians,’ who have moved from ‘beyond the frontiers.’ Only in the enclaves of like-minded virtuous men and women, ‘civility and the intellectual and moral life can be sustained through the new dark ages.’ (MacIntyre, 1981, p. 263) MacIntyre’s account of tradition, at least as I read it, however, need not take him to such panic reactions to what he perceives as ‘barbarians’ – un-reflective persons of certain cultural or religious background, presumably non-Christian or non-Western. If this account is meant to be a description of the Christian tradition, then, there is no reasons to believe that other traditions are ‘barbarian’ or un-reflective. Traditionembedded persons everywhere engage in social learning from inherited knowledge and from experiences as well. This enables them to question and reinterpret their heritage. There is no reason to believe that any people, of any particular historical traditions, have the privilege to be capable of realizing the ideally reflective interaction with their tradition, MacIntyre urges one to strive for such reflective interaction. Moreover, to realize such an ideal, which seems to be MacIntyre’s prescription for averting ‘the new dark age,’ certain preconditions must be realized in order to achieve the sort of ‘civility and the intellectual and moral life’ that gives substance to this ideal. To engage in the kind of critical reflection and innovative re-writing of one’s own role in such an ideal ‘tradition,’ it is a prerequisite that the reflective person be safeguarded from typical threats (tyranny of power, e.g.) to his liberties of conscience, thought, and expression. To follow through this reading of MacIntyre, one may not find oneself where he has intended for one to end up – an opposition to the cosmopolitan liberal outlook.38 * * * For purpose of assessing proposals for ethical governance in our culturally complex world later in the book, I have engaged in critical analyses of

24 Living with Cultural Paradoxes

‘culture’ and its related concepts, ‘tradition’ and ‘community,’ in this chapter. I have focused on scrutinizing the nature and attributes of culture. Specifically, by engaging competing and contested findings in the empirical fields, I identify a plausibly workable concept of culture, i.e. one that takes seriously the paradoxes of culture. From there, I veer into a brief discussion of moral philosophers and political theorists’ uses or misuses of ‘culture’ or cultural ‘community’ and ‘tradition.’ I hope that these exercises help elucidate whether, or to what extent, culture is relevant or significant to ethics (Chapter 2), and help bring some clarity to common presumptions about the relativity to culture of the rightness of moral judgments and standards (Chapter 3).

2 The Ethical Significance of Culture

The capacity for culture is tantamount to the capacity for humanity. Culture is the precondition for the realization of this capacity by individuals, and in turn depends on the cooperative efforts of individuals for its creation and reproduction. American Anthropological Association1

Qualifying ethical significance Having identified an inventive and reasonably plausible understanding of ‘culture,’ i.e. the working concept, I proceed now to consider a host of questions concerning the ethical significance of culture or its lack thereof. These include: Whether and how culture can provide the explanation and justification of moral actions and judgments, and whether an ‘embeddedness’ of persons in cultural tradition or community entails the impossibility of personal autonomy in moral decision-making. This investigation is important, as we will see, for further inquiries in the rest of the book about such questions as, e.g. whether morality must be relative to culture; how to make sense of ‘the right to culture’; to what extent tolerance of cultural pluralism is plausible; and how the idea of universal, trans-cultural, human rights can be reconciled with a genuine sensitivity to culture. If reports of American soldiers torturing Iraqi prisoners had outraged only those in Western nations, if no genuine indignation beyond political posturing had fueled the condemnations from elsewhere, one might have been able to claim new evidence that the ban on torture was a culturally idiosyncratic obsession of the West. Clearly, though, no such claim was even conceivable, given the universal expression of outrage at the abuses. In other cases, the relevance of the ‘culture factor’ I have 25

26 Living with Cultural Paradoxes

spoken about seems more visibly divisive among those involved in political, legal and ethical debates about practices such as female genital cutting, the abandonment of female infants, and the lapidation of accused adulteresses. In yet other cases involving practices with lessthan-obvious harms to those subjected to them (as in the case of enforcing the custom that females must cover themselves head to toe), their legal and ethical defense invoking cultural traditions raises more delicate questions concerning the moral relevance of culture. One underlying question is whether and how an understanding of different cultural perspectives serves any normative function in justifying or explaining acts deemed right or wrong from such perspectives. How plausible is it to cite the claim ‘In contrast to Western liberal traditions, Chinese culture puts the interest of the community ahead of that of the individual,’ assuming its cultural authenticity for the moment, to defend the Chinese government’s curtailment of individual rights presumably for the sake of social stability and public order? In policy debates, when parties demand exceptions for their practices to the law or policy, saying, for instance, ‘Wearing the headscarf is the heritage of Muslims and hence deserves tolerance by the state,’ they give normative weight to the ‘culture factor.’ Alternatively, when critics accuse efforts to abolish practices such as honor killing as insensitive to cultural differences, they also give weight to the ‘culture factor,’ granting it a decisive role in moral/policy decision. Many of us invoke culture, as in these cases, in part because we assume that culture can explain or justify moral judgments or actions. It is due to this assumption that we consider culture relevant to, or significant for, morality or ethics. In an attempt to re-examine this entrenched notion of culture’s ethical significance, I take a close look at the assumption that a culture has the capacity to explain or justify the moral views and behaviors of those embedded in the culture. There are contentious views about what constitutes an explanation. For the sake of argument, I consider two such views differing in their assumptions about the function of explanation: (i) explanation as identifying a causal relationship between what explains and what is being explained, and (ii) explanation as illuminating, or conferring intelligibility and coherence on, what is yet to be understood. I will refer to (i) as a strong explanation and (ii) as a weak one. If culture is able to perform function (i), I refer to it as having a strong heuristic significance for ethics, and if it is able to perform (ii), it has a weak heuristic significance. Meanwhile, I refer to the presumed role of culture in justifying actions or judgments as morally right or just as granting culture a normative ethical

The Ethical Significance of Culture 27

significance. I will offer a preliminary assessment of culture’s presumed normative significance below, but a substantive discussion will unfold in Chapter 3. In this chapter, I focus on questioning culture’s strong heuristic significance, i.e. its role in providing causal explanations while, however, confirming culture’s weak heuristic significance, i.e. its role in illuminating moral agents’ views or actions. This confirmation accords with the intuition that, to the extent that culture provides a source of informal moral knowledge, it shapes the judgment of moral agents, motivates them to act, and is therefore able to play a weak heuristic role in making sense of their actions or judgments – of how agents find their actions or judgments sensible and how they came to adopt them. Let me illustrate, graphically, these alleged types or gradations of culture’s ethical significance I have tried to differentiate and will, in the remaining pages of this chapter (see Figure 2.1). The working concept of ‘culture’ developed in Chapter 1 already entails some preliminary assessment of culture’s ethical significance. The working concept, to recall, views culture as a body of informal knowledge with paradoxical features. This concept suggests a two-fold assessment of culture’s presumed normative (justifying) and heuristic (explanatory) significance: First, a paradoxical body of informal knowledge can potentially justify different positions concerning a moral problem. This is because this body of knowledge is itself internally conflicted and changes over time. If both x and anti-x can be justified by referring to the same culture, such justifications are uninteresting and hardly worthy of consultation by ethicists. This preliminary assessment means that culture understood as paradoxical informal knowledge has little normative ethical significance. Ethical significance of culture

Normative significance (If culture justifies)

Heuristic significance (If culture explains)

Strong (Causal explanation)

Figure 2.1 A breakdown of culture’s ethical significance

Weak (Illumination)

28 Living with Cultural Paradoxes

Secondly, a paradoxical body of informal knowledge cannot provide a strong or causal explanation of moral decisions by those raised in or identified with the relevant cultural community. This is because a member’s moral outlook tends to have developed from, or associate with, one of several contested moral visions (including those that gained orthodoxy or authoritative status) in the culture or shared with those in other cultures. A Confucian faithful may identify with classical Confucianism, neo-Confucianism, or new-Confucianism, competing visions based on interpretations of classical Confucian texts. A member’s specific relationship with one of the competing moral visions tends to be influenced by her personal experiences (e.g. as the daughter of a privileged family or of poor illiterate peasants). Other situational factors such as those created by circumstance (e.g. an incidental relationship with a custom or school of thought) or basic structural institutions (e.g. a systematic ban on women’s attending school or holding public office) also influence such a relationship. A reference to a person’s culture alone thus is at best only of limited usefulness for determining the cause of her action or judgment in a concrete moral situation. There exists no causal chain whereby one can trace her decisions to her culture or vice versa. In this sense, culture hardly has a strong heuristic significance for ethics. However, this is not to say that an investigation of persons’ cultural upbringing cannot illuminate why and how they made certain moral decisions. Such an investigation can yield some useful background information making a person’s decisions more intelligible. In this sense, culture can provide a weak explanation of actions or judgments, and hence it has a weak heuristic significance. Due to this recognition, a ‘cultural defense,’ as the political scientist Alison Dundes Renteln argues, is admissible in an US court for explaining a Chinese immigrant selling live chickens, hence possibly mitigating any punitive verdict, but not justifying the action as legal (given the law) or ethical.2 (Renteln, 2004) The foregoing provides an analytic assessment of the ethical significance of culture. I infer and make explicit the implications of the working concept of culture on culture’s ethical significance. Next, I continue this analytic approach by disaggregating culture into some of its key components or into some entities, with which ‘culture’ has been used interchangeably. I further explicate the implications of the working concept on any ethical significance of these components or entities. Specifically, I will examine tradition, cultivated character traits and skills, sentiments, and community. This exercise allows greater accuracy in identifying where and how, and which parts or resemblances of culture, might be ethically

The Ethical Significance of Culture 29

relevant in a specific way. In particular, I challenge the irrational cultural relativist claim that cultivated sentiments end any rational evaluation of ethical responses. I also examine the communitarian claim about persons’ ‘embeddedness’ in cultural community and the difficulties this claim faces in making sense of moral agents’ autonomy in decisionmaking.

The ethical significance of tradition If two persons hold different judgments about what is the right action to take in a specific situation (for example, whether to use torture or abandon one’s own baby girl), to what extent can we say with plausibility that their judgments can be explained by their different cultural traditions? To seek a strong explanation, as noted above, one would seek to identify a cultural tradition as the cause of the moral agents’ judgments. In contrast, to seek a weak explanation, one would invoke the moral agents’ upbringings in the respective traditions to provide narratives, historical information, to help make sense of their judgments, thereby eliciting a certain coherence and intelligibility. Does cultural tradition have a strong or merely weak heuristic significance to ethics? Our working concept of culture understands cultural tradition broadly as the embodiment of informal knowledge that is the subject of reflection, reinterpretation, renovation, and contests in a historical discourse. (See ‘Tradition as reflective discourse’, p. 20) Tradition thus understood serves the function of illuminating, or conferring coherence on, what one invokes tradition in order to explain: the views or actions of moral agents affiliated with the tradition. However, it does not competently serve the function of providing the cause of these views or actions. Individual members of the same tradition may have very different experiences, which lead them to different interpretations of classic texts or different degrees of motivation to act in accordance with or in opposition to the interpretation ascended to orthodox or held by authority. As a result, they may disagree in their moral judgments or actions. For example, a contemporary person raised in the Eskimo tradition may disagree with some fellow members about the prevailing belief that it is necessary for collective survival under conditions of severe scarcity to leave the elderly, too frail or sick to work, to die in the wilderness. He may reinterpret this rationale, based on his own experiences, in the following way: Living conditions have changed or can conceivably change

30 Living with Cultural Paradoxes

if certain actions are taken or social arrangements made; and it has become feasible to take such actions or make such arrangements. Thus, he may argue, it is no longer a necessity, if it ever was, for collective survival to send the elderly out to die in the wilderness. In fact, he may contend, there can be enough resources to care for them in the community.3 In this case, referring to the Eskimo tradition (or, more precisely, to one of its customs, which, according to one possible interpretation, is seen as acceptable) alone does not help one determine the cause of this person’s moral judgment about this particular practice. (Likewise, an uncaring or greedy son’s action of sending his old father out to die in the wilderness also cannot be traced to his belief in the necessity for collective survival – though he acts seemingly in compliance with such a belief.) To some readers, this may seem like an easy call. Obviously, since the contemporary Eskimo disagrees with the custom, we will not refer to the tradition alone to explain his views. What about those who continue to adhere to it? On the one hand, the unconventional person may be persuasive and change some people’s perspective. Together, they may gradually gain enough support to abandoning the custom. In the case that an adherent to the custom cites it as the cause of his judgment and action, it is reasonable to ask whether such a custom is still in accordance with the rationale of caring for the survival of the community, which supported the custom in the first place. One might reasonably further question whether other motives or rationales (than the traditional rationale) played a role in a person’s decision to adhere to such a custom. For instance, a person may not want to take the responsibility to care for his sick parents. In any case, an awareness of intra-tradition diversity helps engineer this kind of critical reflection, uncovering more accurate, concrete, causes of specific agents’ actions and judgments. On the other hand, the fact that we must explain actions and judgments of moral agents growing up in a tradition on case-by-case basis says that it is problematic to invoke their tradition automatically and wholesale as the uniform cause of their (different) actions and judgments. In this sense, tradition loses its luster as a reliable cause, on which one can rely in providing a causal explanation of actions and judgments of anyone growing up in a tradition. Consider those Chinese who judge it acceptable or do not question selling live chickens and other live birds in the markets of southern China. For the sake of argument, let us assume that such a practice is a custom. How reliably can one refer to ‘Chinese cultural tradition’ as the cause of such a practice, providing its causal explanation? An awareness of certain internal fracture and changing perspectives erodes any

The Ethical Significance of Culture 31

reliability or causal inevitability that a strong explanation is intended to establish. If we consider the historical China as the definition of the parameters of a ‘traditional Chinese culture,’ we may then note that, e.g. historically, Chinese Buddhism believes in the unity of diverse forms of life and the possibility of this (human) life incarnating in a different form (of another kind of animal). Those who accept this competing belief in the Chinese historical discourse oppose killing or hurting any form of life. This awareness advises us not to invoke ‘Chinese tradition’ as a whole to dispense the cause for the action of selling and killing live chickens and other birds. (The traditional Buddhist belief may gain a measure of popular acceptance, changing the perspectives of many, after the recent scare of deadly viruses transmitted in southern China’s live animal stock markets. Practical considerations of public health would motivate such a possible change.) A practice like selling live animals is not sanctioned by all members in a tradition. Those who choose to stick to it may not have done so because of some shared traditional cultural conviction about its validity. For instance, they may believe that live chickens sell better and are more profitable. They may find following new regulations governing sanitary processing of livestock too expensive and so on. The real motives or causes of their action challenge those who try to explain the action. One thing is sure: they cannot rely on the cultural tradition as the cause of the action. If nothing else, taking this short cut is intellectual laziness at the expense of accuracy. Understanding a tradition, including its internal diversities and clashing views in its historical course and contemporary debates, as among the situational factors in the relevant context, however, does shed some light on why and how variously situated members of a tradition have acted or made judgments in specific fashions. Such an understanding does not adequately answer the question of why some Eskimos find a particular custom acceptable and others do not, or why some Chinese venders resist changing the practice of selling birds killed on the spot, others find it easy to change, and yet others have long opposed it. In the US court case cited in Renteln’s study, such an understanding allows the judge to see why the Chinese immigrant cited for selling live chickens may have done it, and also to see the options even from the perspectives of her cultural tradition. (It does not follow that, however, the judge illuminated by understanding the tradition would necessarily, find the practice justifiable.) Arguing in this fashion, I treat internal diversity in a tradition as the norm rather than exception. There are often very specific codes of

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conduct that have been adopted and enforced by authorities or customary law in a traditional community. However, if we inspect the community and its tradition(s) in question, we can be almost sure to find competing and challenging views from within about these codes. The competitors and challengers may have fallen out of favor with powerful authorities or have had no chance for education and failed to persuade members in the community. The reasonable thing to do, for the outsiders, is to engage these internal debates rather than stopping at whatever codes or customs that have politically prevailed or have been adopted without the benefit of fair open debates with their competitors and challengers. The connections between political interest and cultural/religious/ideological expressions are well-known, but still too important for our understanding of cultural perspectives and traditional practices to be brushed aside. We must not romanticize what we see – what people express and practice – as what these people would, under ideal conditions of empowerment, information, critical reflection, and opportunities for choice, openly endorse and adopt. I will return to this point as I discuss the possibility for community-embedded members to achieve autonomy. One common scenario is that challengers and dissenters to the prevailed codes or customs adhere to fundamental beliefs, which provide rationale to these codes. Yet, those beliefs are now violated or ignored by the practices developed to implement the specific codes, or these codes or customs have become outdated vehicles for actualizing those beliefs due to changing situational factors. For instance, theft is severely punished in some societies (such as Taliban’s Afghan) by cutting off the accused thief’s arms. A fundamental rationale provided in the historical discourse for this punishment may be that social justice must be done – those who took things from others must be punished so that they would not be able to do it again and others would be properly warned. Those who reject this practice can go back to this rationale and point out that justice can be served without cutting off the arms of ‘offenders’ under changed circumstances. Thus, the act of an exploited poor person taking things from an exploitative landlord is arguably doing justice and one should exempt the ‘offender’ from the punishment.4 Similarly, an adulterous woman can be spared stoning to death (a punishment prescribed by the penal codes in the Muslim tradition upheld in parts of the Sudan), as opponents within the tradition have argued, since more general principles upheld in the same tradition (such as God’s equal concern for all of His children, women or men) should also be brought to bear. Such opponents can argue with the judges that if adulterous men are tolerated by the penal code and thus by God, God would also

The Ethical Significance of Culture 33

tolerate the women. Sparing the women thus does not violate God’s mandate. On the other hand, if the women must be punished in some fashion, the men involved must also be punished in a similar fashion. The man who saves a drowning child may be motivated by various beliefs about the purposes and consequences of his action. Citing his cultural tradition as the only or deciding cause is misleading for those who assess the action or make rules or propose institutional reforms, in order to shape (encouraging or discouraging) similar actions. The ‘liberation of women’ under Mao’s communist regime, for example, may have been motivated by ideological conviction about equal respect for women or by a pragmatic policy to boost higher productivity. Those who marched in the streets of Beijing to denounce the US bombing of the Chinese Embassy in Belgrade may have been motivated by the belief that the US deliberately targeted the embassy, or by the belief that American hegemonic power was a general security threat to China, or simply by the sensation of freedom that came to them during a rare moment of government tolerance for public protest and rowdy behaviors in the streets. One problem with linking an agent’s tradition to her action is thus that an action may have multiple causes or sources of impetus – including reasons or motives that do not spring directly or solely from that tradition. Even in the event that a group of people share a practice (say, abandoning their elderly), these people may still engage in this common action for multiple, sometimes incongruent, motives and reasons.

Of character traits I now proceed to consider the ethical significance of such components of culture as character trait, products of social learning and social transmission of informal knowledge. For the sake of clarity, I should note that, as components of culture, character traits (and moral sentiments, to be examined later in this chapter) are not on a par with ‘tradition’ and ‘community.’ They are developed within a tradition or community. There cannot be a culture without tradition and community, but there can be a culture without cultivated character traits or sentiments (also, there cannot be cultivated virtues and moral sentiments without tradition and community.) Thus a body of informal knowledge may be historically inherited, embodied in traditional customs, incorporated in practices, and socially transmitted in community, yet it has not been internalized by persons of the current generations into character traits or sentiments. In this case, we speak of a failing or ineffective culture.

34 Living with Cultural Paradoxes

I have an argumentational motive to consider ‘cultivated characters’ here. Some virtue ethicists argue for the primacy of shaping character, rather than building just institutions. This position has played a role in the debate on culture and human rights. In virtue ethics, a rival of deontological and consequentialist approaches in moral philosophy, it seems generally accepted that a benevolent person – someone who has cultivated the virtuous character trait of benevolence in a moral/cultural tradition – would seem more likely to act benevolently than those who have not cultivated this trait. This view suggests that cultivated dispositions, products of social learning in a cultural tradition, are ethically significant in that they provide a causal explanation for the acts or judgments of the cultivated persons. In endorsing this view, one accepts that there exists a causal relationship between a person’s cultivated dispositions and her actions or judgments. The latter, it is assumed, flows directly from the cultivated character traits. This assumption may be implicit, yet apparently vital, in virtue ethics, especially in the idea that cultivating character traits is of fundamental importance for ensuring that persons act righteously and make good moral judgments.5 Such an assumption about the causal relationship between virtues and moral judgments or actions, hence about a strong heuristic ethical significance of cultivated character traits, must answer some challenging questions. One set of such questions comes from moral psychologists. Gilbert Harman and John Doris, for instance, have seriously doubted such a connection. They reject the claim that virtuous character traits, once cultivated, generally direct persons to act virtuously. (Harman, 1998–99, 1999–2000; Doris, 2002) They cite well-known psychological experiments conducted in the US in the 1970s to show that there is rather a disconnection between cultivated character traits and moral behaviors. The Milgram Experiment – perhaps the most famous of their examples – reportedly showed that most subjects, regardless of moral character or convictions, were willing to inflict pain on others by administering electric shocks when told by the authority in charge of the experiment that such shocks would test the effect of penalties on learning. (Milgram, 1974) In another example, the Stanford Prison Experiment, university students were asked to play the roles of prison guards and prisoners. After only six days, the students came to identify closely with their assigned roles: the ‘guards’ behaved sadistically and the ‘prisoners’ pathologically. The experiment had to be terminated ahead of schedule, out of concern that serious harms would be inflicted. (Haneyet et al., 1973)

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Harmon and Doris also cite the Helping Behavior Experiment, conducted in various countries, in which a person pretended to have collapsed in a hallway where religious seminary students were to go by. The experimenters wanted to identify the factors that would influence students’ decisions to act when they encountered a person apparently in need of assistance. The experimenters reported that the most important variable was time. Those who were hurrying to their next scheduled appointments tended to rush by, without offering help or even stopping to find out whether help was needed. Those who stopped to offer help gave as a main reason the fact that they were not in a rash. The students’ religious commitments or the nature of their next appointment (such as preparing for a sermon on the Good Samaritan) made little difference. (Darley and Batson, 1973) These experiments suggest that situational factors (i.e. the presence of authority figures, the assignment of roles, time pressures, and so on) are the primary determinants of subjects’ willingness to do harm to others or to ignore others’ need for help. Such situational factors seem to exert greater influence on behaviors and decisions to act in specific moral situations than cultivated virtues or faith and commitments do. A virtue ethicist, however, may respond to such challenges by noting the distance between ideally cultivated virtuous character traits and what ordinary people could be realistically expected to achieve through social learning. They may acknowledge the difficulty to shorten this distance. Subjects in these experiments may have not perfected the desired virtues. They may have not succeeded in moral cultivation. Thus, they lacked the necessary resolve, the character strength, the motivation for doing the right thing in the relevant moral situations. Such insufficiently cultivated persons, even if they are inclined to not harm others and to assist those in need, may be unable to judge when and how to assist, or may not be courageous enough to disobey orders or resist peer pressure. The results of these experiments, they may conclude, hence do not disprove the power of cultivated virtues to dictate right action; rather, they only demonstrate the difficulties in achieving the cultivation of virtues. This acknowledgment of the demanding nature of cultivation, however, undermines the prospects for virtue ethics to offer a plausible account of the moral life as it is lived by ordinary people, who count for the vast majority of humankind. The difficulties for most people in perfecting virtues suggest that a causal link between cultivated virtues and right actions is anything but useful in explaining everyday moral actions. In other words, virtuous character traits, as a product of social learning in traditions, can only provide a strong explanation of the few rarely

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cultivated persons’ actions or judgments. As far as it concerns the actions and judgments of ordinary people, cultivated virtuous character traits are largely irrelevant or insignificant. For explaining ordinary people’s moral actions or judgments in a cause–effect fashion, as we have seen, one must take into account situational factors (basic institutions, power structures, and authority and so on), which provide reasons and shape motives for agents to take certain actions or make certain judgments. Some knowledge of agents’ exposure to moral learning or character cultivation in particular traditions, whether with any success or sheer failure, however, does provide background information, illuminating those who try to understand where the agents come from and why they acted or judged the way they did. This means such knowledge does have a weak heuristic significance for ethical inquiry. A related product of social learning – skill, a form of inherited and embodied knowledge – can also be analyzed for ethical significance. The process of learning a skill, and then practicing it, is a form of cultivation. Could skills alone provide a strong heuristic explanation for the skilled agent’s judgments or actions? To address this question, imagine a certain skill involved in administering torture. Let us assume that this skill has been practiced in a society for generations. Now, imagine two persons, x and y, where x is a member of this society and y is not. Now, x and y disagree about the rightness of torture: x, who has learned the particular skill very well, judges that torture is right or permissible, and y judges that it is wrong. The skill of torture, however, seems only incidentally relevant to the formation of their judgments. It is not the skill, directly and alone, that upholds x’s judgment or motivates him to torture; and y’s judgment would likely not be reversed if she were to undergo training and acquiring the skill of torture. In the event that y had changed her judgment about torture, an explanation of the cause(s) of this change would require more than the information that she had now learned the skill. It is plausible that one who chooses to learn the skill of torture is also learning to emulate its practitioners and to identify with an institution (or a society) where torture is accepted. Such a person may also become indifferent to the cruelty of torture, or come to approve of the infliction of pain on those who are judged to deserve it. (Consider the indifference of butchers toward animals. They may have gone into the business for purpose of emulating generations of practitioners in their families or immediate community. They developed the indifference because they have identified with the practice – practitioners’ social status and the economic

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benefits.) Moreover, once a person acquires a skill, he has an investment in its continuing practice: to renounce the practice may be to disavow a significant part of her and her group’s history, social identify, and a practical means of economy.6 However, as soon as we provide this richer narrative about how and why a person now judges torture acceptable, we offer a broader ranger of interconnected motives and rationales, among which, the skill is neither the only, nor the most influential one. A host of heterogeneous social, economic, historical considerations comes into play in motivating her judgment about the practice. Consequently, we are able to conclude that skill alone does not identify the cause of an agent’s action or judgment about the action, in carrying out which the agent applies the skill. Those who are still unconvinced may point to the skill to make sound judgments. Admittedly, such a skill is relevant to, and indeed required for, making good moral judgments. However, if we must call it a ‘skill,’ it is of a substantially different kind from the skill of a butcher or that of a pianist. Strictly speaking, the ‘skill’ to make good moral judgments requires not only training, like the skill to play the piano. It involves, for the most part, a certain instinct and a great deal of moral knowledge. Presumably, one does not gain instincts and moral knowledge simply by undergoing training. One must live through real-life events. (Not all of us are so lucky to live through certain lifetime experiences!) The ‘skill’ to make sound judgment is required, for instance, for arriving at the correct moral decision about whether to lie about a friend’s hiding place when the Nazi soldiers come to look for her. However, the ‘skill’ to make the judgment about the appropriateness of lying in the given situation requires the ability to draw upon many resources – friendship, courage, knowledge of the evil nature of Nazism, and a sense of justice. From the judgment (that it is morally permissible to lie in this situation), one cannot infer that certain trained ‘skill,’ as butcher or playing the piano, has the exclusive authorship – or that it alone caused the agent to make the judgment. This examination of cultivated character traits (and skills) indicates that these things may have a weak heuristic significance for understanding moral decisions and behaviors. They can be invoked to provide some coherence – giving background information and making the moral agents’ decisions intelligible. In the next section, I examine whether and how one specific product of social learning in cultural community – moral sentiments – might have a certain kind of ethical significance. The argumentational consideration behind my decision to proceed in this direction is that sometimes ‘sentiment’ is identified with culture and such a ‘culture’ is granted an ethical significance. Such an equation

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plays no small a role, as we will see, in Rorty’s attempt to defend the ‘culture of human rights’ on the ground of irrationalist cultural relativism.

Of cultivated sentiments In attempting to explain or justify our judgment that torture or genocide is wrong, can anything more be said after we refer to what propel us – our strong sentiments of outrage, indignation, empathy, or shame stirred up by such hideous acts? When persons from another society hold the opposing moral judgment about these acts, what explains or provides the cause of our difference? Is it nothing but differences in certain cultivated sentiments, i.e. or their presence or absence? Socially cultivated sentiments7 no doubt have a role in shaping moral judgments and motivating actions. One’s outrage at torture and empathy with victims often contribute to one’s judgment of torture as a moral wrong and motivate one to take action to stop torture or assist victims. The question is whether and how moral agents’ sentiments cause or have a cause–effect chain connection to their judgments or actions. Richard Rorty, in rejecting rationalist theories ‘in favor of the existence of a universal human nature,’ argues that moral differences are, and can only be, explained (and justified) by cultivated sentiments or tastes through upbringing or education in different cultures, and that such sentiments defy rational analysis. (Rorty, 1993, p. 116) Rorty attributes the Serb soldiers’ acts of torturing and humiliating Muslim prisoners to their lack of fellow feeling with their victims – a lack that the soldiers confessed to.8 Rorty contends that it is our outrage and indignation at atrocities, not a Kantian or other rationalist transcendental moral truth, that motivate us to ban atrocities and to support human rights. He traces the cause of our judgment about the wrongness of torture to ‘our sentiments’ – disgust and revulsion at what the Serb soldiers or the Nazis did, and sympathy for the tortured and sadness about their pain and suffering. Such humane sentiments are culturally shaped: We obtain them as we are told the sad stories about victims.9 The differences between those who have and those who have not acquired these sentiments, Rorty suggests, are indeed differences in culture. ‘Our’ humane sentiments, shared among citizens in liberal democracies, constitute ‘our’ ‘human rights culture.’ (Rorty, 1993, p. 115) This ‘culture’ is no more and no less than our cultivated ‘sentimentality.’ ‘Our’ ‘human rights culture’ is therefore explained and justified by ‘our’ ‘superior’ sentiments: ‘We like what we have and we will do what we can

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to change the sentiments that divide us from others.’ Rorty wants us to be content with our ‘human rights culture’ instead of digging ‘beneath or behind’ for universal rational moral ‘truth’ about human nature and transcendental duties. For Rorty, our having such sentiments is ‘a historically contingent fact,’ a ‘cultural fact,’ about ‘us’ in the West. Human rights appeal to ‘our culturally influenced intuitions about the right thing to do.’ There is nothing more profound than such intuitions, which can be shaped through manipulation of the sentiments through moral education. (Rorty, 1993, pp. 115–17)10 The moral philosopher can only go as far as to ‘summarize’ our sentimentality. One operating assumption here seems to be that there exists a causal relationship between acculturated sentiments and moral judgments/ actions. Rorty is not alone in making this assumption. Others have granted sentiments similar significance, though perhaps not to the exclusion of other (possibly rationalist) causes. Michael Ignatieff, for example, seems to share this assumption when he notes that sentimental reactions to human atrocities, images of which now beam into living rooms around the world, have fuelled efforts to push for international human rights and humanitarian interventions. (Ignatieff, 1998) Such sentimentality, others contend, is present in the ‘shock’ to ‘the moral conscience of mankind,’ (Walzer, 1977, p. 107) the ‘shame’ at heinous and barbaric acts being perpetrated upon innocent victims, the feelings of obligation to act, (Luban, 2002, pp. 79–115) or emotions roused by situations that are ‘beyond the pale.’ (Teson, 2003, p. 98) It is plausible that, at least in unambiguous cases involving serious harm and human suffering, there is some connection between strong sentiments and moral judgments/actions. People who react to torture or genocide with strong sentiments often cannot imagine they could judge or act otherwise – turn a blind eye or remain inactive. The connection between sentiments and moral judgments/actions, however, is not robust enough to establish a causal link between them. Nor are sentiments alone sufficient to justify moral judgments and actions. Without assuming strong causal link, Rorty would not be able to postulate that the only effective way to alter inhumane practices is not to supply rational explanations or normative justifications for human rights but to supply humane sentiments. For Rorty, the problem can be addressed by educating (supplying sentiments to) those outside ‘our’ ‘culture of human rights,’ those who ‘were not so lucky in the circumstances of their upbringings as we were’ and who were sentimentally ‘deprived.’ (Rorty, 1993, p. 128) Education intended to provide humane sentiments ‘sufficiently acquaints people of different kinds with one

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another so that they are less tempted to think of those different from themselves as only quasi-human.’ Moral education consists in ‘manipulation’ of sentiment and aims to expanding the reference of the terms ‘our kind of people’ and ‘people like us’ by telling ‘sad stories’ about strangers. (Rorty, 1993, pp. 122–3, 133. Italics are mine) Telling sad stories may have the desired impact when the listeners are oriented, sometimes with assistance from rational reasoning, to be moved by such stories. ‘Sad stories’ of African slaves did not seem to move white slaveholders who were intimately familiar with the suffering and misery of slaves. The slaughters in the Balkans and in Rwanda took place in most cases among neighbors and fellow villagers. It was certainly not because the slaveholders, murderers, and torturers were unaware that such brutal acts would humiliate their victims, making them suffer and their relatives grieve. Indeed, inflicting emotional pain by way of torturing or threatening loved ones seems a common strategy of campaigners of terror – the Nazis, Stalinists and Maoists, and violent religious fanatics. Perhaps, though, Rorty would reply that, in these cases, the torturers and genocide executioners’ recognition of victims’ suffering was not ‘manipulated’ in such a way so as to foster shame or outrage, or to elicit awareness of common humanity; instead, it was exploited to confirm the subhuman or ‘demonic’ quality of victims. However, the very acknowledgment that the right kind of sentiments (shame or outrage) must be ‘manipulated’ for the sake of eliciting recognition of common humanity betrays an exaggeration in Rorty’s claim that nothing but sentiment motivates and legitimizes human rights and humanitarian actions. What determines which sentiments are the right (or wrong) kind? The choosing and decision-making about ‘the right kind’ of sentiments involves, it seems, more than sentiments. Still, I am willing to assume with Rorty that persons with similar moral sentiments are likely to concur in their judgments about particular moral situations and to act similarly in response. By comparison, common heritage in a tradition or membership in the same traditional community may seem to leave larger margins for individual differences in moral judgments and actions. Sentiments compel us to make certain judgments and motivate us to act in a more powerful and direct fashion. In this sense, I am willing to say that sentimentality may contribute more than tradition to causing (motivating) action, though sentimentality is hardly the only or the ultimate cause. Meanwhile, sentimentality has a weak heuristic significance for moral understanding. It provides some intelligibility and confers certain coherence as we try to explain why people judge or act the way they do.

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However, Rorty wants to go further. He grants a strong heuristic and sometimes a normative ethical significance to sentimentality – even though ‘normative significance’ is incongruent with some of his basic claims. He treats sentimentality as if it were the only cause of our judging torture wrong and our acting to forbid torture. He also sees it the sole legitimating factor of such judgments and actions. He wants us to stop searching for anything ‘beneath or beyond’ sentimentality for rational explanation or justification for these judgments and actions. When we come to sentimentality, he insists, we have come to an end to critical analysis and rational assessment. Trying to reason with torturers – to persuade them of the wrongness of their acts – is gratuitous and pointless; we must be content with the fact that they lack humane sentiments toward their victims. For him, each side in such a moral disagreement has recourse only to their sentiments: ‘It’s something I feel strongly about!’ or ‘It’s a matter of cultivated taste!’. By granting a normative significance to ‘our’ ‘culture of human rights,’ Rorty joins a circle of relativists in asserting, with William Graham Summer, that when we come to culture, or the folkways, ‘we are at the end of our analysis.’ However, Rorty’s recognition of moral sentiments’ key role in moral decision-making need not to have taken him to irrational cultural relativism.11 Berlin, for instance, acknowledged that cultural differences might be differences in ‘tastes.’ Nonetheless, he denounced cultural relativism for erroneously assuming that each culture is ‘enclosed in its own impenetrable bubble’; and, instead, he contended that, ‘[m]embers of one culture can, by the force of imaginative insight, understand … the values, the ideals, the forms of life of another culture or society. Even those remote in time or space.’ (Berlin, 1992, pp. 10–11) Rorty may not think of cultures as ‘enclosed and impenetrable’ for otherwise he would not be able to recognize that our ‘manipulated sentiments’ enables us to recognize the humaneness of members in another culture and that it is possible to supply them with humane sentiments through moral education. Yet his view of moral education as consisting in ‘manipulation of sentiment’ of those in other cultures discloses residues of a belief about cultural incommensurability. The irrational relativist would agree that, while one may switch from one cultural perspective to another (which Rorty believes can be done through manipulation of sentiments), one cannot compare and assess the perspectives. We like ours, they like theirs; but we will do what we can to convert them to ours. In an attempt to undermine irrational cultural relativism without denying differences in cultivated sentimentality, I now draw attention

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to the curious map suggested, if not intended, by Rorty of moral ‘cultures’ in the world and then examine his irrational relativist claim. On this map, we find a binary division between ‘our’ ‘culture of human rights’ and ‘others’ culture of no human rights. Such a map does not have to correspond to the geopolitical map of nations, or to a map of the world’s communities characterized by ethnicity or philosophical and religious traditions. Indeed, many people in societies (or traditional communities) other than ‘ours’ are perfectly capable of feeling outraged at human atrocities and compassion for victims. But some people in our own society are perfectly capable of being indifferent toward human suffering (perhaps because their humane sentiments have been overtaken by bigotry, resentment, and fear). Such a map of (moral) cultures is compatible with the view that cultures are interpenetrating, creolized, and unbounded by geo-political, societal, or philosophical and ideological borders. It transcends the notoriously simplistic political, philosophical, and religious dichotomies between East and West despite Rorty’s claim to the contrary. Its divides cut across geopolitical, religious, racial, and social-economic divisions, recognizing that humane sentiments are not the exclusive possession of any nation, country, or region. Thus interpreted, Rorty’s ‘culture of human rights’ would be a ‘creolized’ patchwork – a description well articulated in contemporary cultural studies. (See ‘A consensus view’, p. 9). Still, Rorty’s view that such a ‘culture’ of human rights consists of mere sentiments – not ideas, and certainly not rationalist arguments – remains problematic. I now proceed to examine his irrational relativist claims. It is conceivable that, contrary to the irrational cultural relativist claim, sentimentality does not end all rational analysis in ethical inquiry. As we have seen, Rorty rejects what he calls the ‘rationalist’ view that the ultimate ‘truth’ about human nature lies ‘beneath and beyond’ the sentiments. In Chapter 6, I will take up the issue of whether abandoning metaphysical realism about objective moral truth must inevitably leave us with moral relativism. For the time being, however, I want to consider Rorty’s claim that nothing ‘beneath and beyond’ the sentiments can be found to illuminate or validate moral judgments or actions. Note how, in staking out this position, Rorty sides with classical moral empiricists such as Hume.12 The empiricists believed that human sentimentality was malleable and could be supplied and shaped by education. (Freud may have vindicated this belief.13) Such an education supplies motives and nurtures the desire to do what is right, making use of rewards and punishments for this purpose. (If undesirable sentiments are acquired

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in early life, moral education must attempt to undo them.) For this school of thought, it is not crucial to establish whether human beings have any original or innate moral instincts or potentials for humane sentimentality. The important thing is that sentimental education can supply such sentiments if human beings are devoid of the potentials. In contrast, the rationalists Rorty argues against belong to the philosophical tradition associated with Rousseau,14 Kant,15 and J. S. Mill.16 A more recent addition might be John Rawls, though Rorty commends Rawls as one of his own brand of irrationalist pragmatists. These philosophers believe that human beings are endowed with certain ‘innate intellectual and emotional capacities,’ which can be cultivated through their ‘free development’ ‘according to their natural bent.’ (Rawls, 1971, pp. 459–62) (The psychological theory of Piaget is credited for vindicating this tradition of thought.17) The rationalists believe that human beings have a natural sympathy with fellow human beings and an innate susceptibility to the pleasures of fellow feeling. These capacities form what Rawls calls ‘the affective basis for moral sentiments,’ which can be developed into a robust sense of justice through education under appropriate social institutions. One cannot create moral sentiments out of nothing or supply sentiments from entirely outside the human being. Rather, moral sentiments are a natural outgrowth of our common humanity – the human potential for realizing our social nature. Based on this common humanity, different sentiments that ground judgments and motivate actions can be understood, compared, and assessed – for example, by considering the possibility or the extent of their divergence from what they could have been if the potentials had been fully developed.18 The dispute between these two traditions will have to be settled with assistance from findings in moral psychology, which may bring us beyond the disagreements between the Freudian and the Piagetian schools. Nonetheless, even if we set aside the question of whether human beings are endowed with certain innate intellectual and emotional potentialities, the irrationalists face a number of hurdles. Sentiments are not the only sort of things we draw upon as our ultimate source of justification as we reflect on our judgments or actions. Prudence tells us that strong passions and sentiments do not always provide the best guidance or justification for action. Meanwhile, we must factors other than sentiments, e.g. information about the situation at hand, in order to make sound judgments and take the right course of action. Our sentiments might be in excess or deficit. They might be so powerful that they overwhelm our judgment, or so listlessly weak that

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they give us unclear direction for judgment and insufficient motivation to act. Perhaps, though, sentimental education takes care of this problem by supplying human beings with the right amount or intensity of emotions. However, the decision about the ‘right intensity’ in order to produce desirable judgments and actions must involve something other than sentiments. We must have already known what sort of judgments and actions are desirable and calculated what level of intensity is just right for producing them. On the other hand, we are rather capable of being motivated by persuasive ideas or rational arguments even when we do not have sufficient sentiments. Sentiments are not the last word on the subject of understanding or validating a moral judgment. It is thus understandable why many, not just a few rationalist philosophers, might find it unsatisfying for moral inquiry to end at a catalogue of sentiments. Rorty insists that we have no choice but to end there because he thinks that we cannot understand or evaluate irrational sentiments. Do we really have no other options? Trying to reconstruct the logical structure of our queasiness at human atrocities, or trying to reason with perpetrators, might be futile. Attempting to uncover and prove to them transcendental moral ‘truth’ might likewise be pointless. Short of these objectives, however, we can subject the judgment, say, of the torturers or of their apologists to evaluative inquiries in order to determine whether it is flawed or corrupt. If it is, it is not worth taking seriously in ethical reflection. Let me explore this option below, while acknowledging that there may be other options as well. The likely factors that corrupt judgment include, as Judith Lichtenberg suggests, cognitive or epistemic errors, vested interests, defective ability to judge, and deficient sentiments.19 Deficient sentiments satisfy one sufficient condition for corruption, but adequate sentiments are insufficient for uncorruption. A judgment uncorrupted by deficient sentiments may still be corrupted by other factors. An evaluative inquiry to rule out the possibility that the judgment in question is corrupt by any of these factors is necessary. It helps us reach a preliminary assessment determining whether, e.g. the torturer’s judgment is indeed a bona fide judgment worthy of being taken seriously – whether it is worth the trouble to subject it to further evaluation. Lichtenberg proposes that we consider uncorrupted judgments as reflective of basic convictions, ‘unshakable, bedrock beliefs,’ (Lichtenberg, 1994, p. 187) which we do not normally question or

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abandon when challenged by opponents. When, for example, we are confronted by persons who disagree with our judgment disapproving torture, we do not immediately question or abandon our conviction, e.g. that ‘Human beings have certain inherent worth and dignity.’ We may wish to assure ourselves that our judgment truly reflects this conviction – that we have not, for example, condemned the practice of torture by an enemy regime mainly for political reasons. However, once we have ruled out, as much as we can, the possibility that our judgment about torture may be corrupt, we still need to subject it to further validation. We go on to reflect any hidden assumptions we may have made or check any inconsistence among our basic beliefs and so on. Beyond ascertaining that our judgment is uncorrupt by deficient sentiments, many tests for validity remain to be conducted. In challenging our opponents’ judgment approving torture, meanwhile, we also want to examine whether this judgment has been corrupted by one or more factors. Even if it passes the test for adequate sentiments, such preliminary evaluation does not end. It is subjected to tests for corruption by other factors. A corrupt judgment, however, is bad enough that we need not proceed further in attempting to validate or refute it. (Imagine, in this context, that someone judged it right to shoot what appeared to be an approaching predatory animal, only to discover that it was actually a person. In this case, we would not regard the judgment as reflective of the person’s moral conviction about not harming a fellow human being. Nor should the person, upon recognizing his error, continue to hold on to the judgment or try to defend it.)20 Thus, when we evaluate the torturers’ judgment, their inventory of sentiments (or ours) is neither the only nor the ultimate place we end our evaluation. We inspect any deficiency or absence of humane sentiments, but also the cognitive soundness of the judgment, the torturer’s capability to make judgments, and any self-serving interest involved. Even if the judgment approving torture is carefully evaluated and shown to be uncorrupted in these respects, we will still proceed to subject it to further assessment for validity. When we discover deficient sentiments in the course of this analysis, we cast aside the judgment as corrupt. We conclude that it is not a serious competitor (with the opposing judgment disapproving torture) for ethical validity. This is perhaps what Rorty meant by saying our rational inquiry came to an end. However, having ruled out that a judgment is not corrupt by deficient sentiments, we do not sufficiently establish it as uncorrupt or justified. The sentiment factor is thus not always the end to ethical inquiry.

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If the judgment approving torture is found corrupt (by any of the corrupting factors), however, we are not in a position to conclude that the difference between this and our judgment reflects opposing fundamental convictions. It is conceivable that those making this judgment may have deep (general, abstract, perhaps unarticulated) convictions that are not reflected in their corrupt judgment and, instead, are distorted by it and violated by the act of torture. Perhaps they lacked the necessary information or were deprived of the conditions under which they could have developed the capacities required for making sound judgments or for acting in accordance with their deep convictions. Consider the torture of Iraqi prisoners by US soldiers at Abu Ghraib prison outside Baghdad. If the judgment made by these soldiers (that it is permissible to torture) is found corrupt, it does not necessarily indicate any deeply held convictions by them opposing human dignity or approving human atrocity. Even if we assume that they could not imagine the humanity – the pain and humiliation – of the Iraqi prisoners (though this is unlikely for they must be able to imagine these effects all too well such that they might be convinced of the instrumentality of torture for extracting valuable military intelligence or deterring insurgents), we may still find it conceivable that, given their education in our schools and their upbringing in our liberal democratic society, where the values affirmed in our constitution are generally taught, they do not completely lack in humanist convictions. Based on their judgments and actions alone, however, we simply cannot draw any conclusion about their convictions. We need to find out more about, for instance, their personal experiences, the instructions or pressures their superiors gave, and other situational factors. Rorty is unconcerned about the possibility that a judgment corrupted by deficient sentiments does not necessarily indicate a total absence of moral conviction shared by those who make the opposing judgment. Upon discovering the difference (between presence and absence, between sufficiency and deficiency) in sentiments, ethical evaluation can still proceed. This further evaluation will not clear those who made corrupt judgments due to deficient sentiments. It helps, however, demonstrate to them and to us why their wrong is not merely a matter of ‘taste.’ They may have distorted or violated their own deep convictions. It is thus not quite the case that, if we identify absent or deficient humane sentiments as the culprit for judging torture acceptable or carrying it out, we can proceed no further in ethical reflection other than declaring our preference and taste. One thing we can proceed to inquire

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and evaluate is whether those who make such a judgment or take such actions may still agree with us about some general moral claim, of which their corrupt judgment is a breach. Perhaps they do not. It is worth finding out. Ethical analysis and evaluation thus goes on. The void of common convictions (values) among persons of different sentiments (cultures) remains unestablished. This inquiry suggests that cultivated sentiments do not have a strong heuristic or a normative ethical significance. Sentiments alone are insufficient for making – and hence do not guarantee that the moral agent will make – the right judgment, even though deficient or absent sentiments alone can result in corrupt judgments. Moreover, sentiments alone do not provide the ultimate source of justification for moral judgments.

Of community I now turn to examine the ethical significance of cultural community. In ‘cultural “community” and “tradition,” ’ (p. 19). I have derived a concept of ‘cultural community’ from the working concept of culture. A cultural community is a social context with paradoxical features, where a body of informal knowledge is transmitted and incorporated into practice. The boundaries of such a community, however, are porous; its members share a certain identity, but they are not monolithic in their moral views or motives. Furthermore, although such a community maintains some historical continuity, it also changes over time. (My discussion here focuses on cultural communities as such, though concerns about community in ethics and political thinking often extend to other types of communities.) This understanding of cultural community has important implications for assessing certain communitarian contentions. Particularly, I have in mind the claims that communally ‘embedded’ persons (a) always act out of, and (b) must act in accordance with the goals and commitments traditionally accepted and practiced in their communities.21 Some communitarians fault liberalism on the ground that its conception of the ‘self’ as autonomously choosing individual portrays a ‘disembodied’ ghost of the real-world person, thus contradicting (a), and liberalism is wrong, because of (b), to promote institutions or policies that shape such individuals. (Sandel, 1982, pp. 15–23) Communitarians accept one or both of these claims. According to those who subscribe to (a), a causal claim, persons’ judgments or actions can always be traced to their community-defined duties, loyalties, and purposes. This implies that their judgments or actions can be explained with a cause-effect certainty: knowing the

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norms accepted in a community, one identifies the cause or impetus of a member’s acts and judgments. Meanwhile, according to those who subscribe to (b), a normative claim, these acts and judgments must be evaluated against such norms. Let us first consider (a). The concept of ‘cultural community’ developed in Chapter 1 entails that the moral judgments and actions of communally ‘embodied’ persons, though influenced by their communitytransmitted norms, cannot always be exclusively traced to any shared norms in their community. In such a community, there are likely to be diverse, conflicting, critically contested, and changing norms. Members’ reflection and debates about competing norms are often influenced by ideas originated in other communities. The communitarian notion of the ‘self’ as acting out of norms accepted in a community, in which they are ‘embedded,’ is thus insensitive to the reality of diversity, the prominence of critical reflection and autonomous choice, and the interpenetration of ideas across community boundaries. If this assessment of (a) is fair, then, we can say the following about (b). Members’ judgments or actions cannot be meaningfully validated by norms found in their own community: they are likely to be considered right against some norms, but wrong against others. Because of interpenetration among communities and diversity within a community, the insistence that members’ moral decisions must be traced to and validated norms accepted or available within the community becomes trivial. Guided by such a prescription, we will not have any direction as to which of the competing and changing norms we must refer to in assessing members’ judgments and actions. These preliminary observations leave us doubtful about the kind of strong heuristic and normative ethical significance that some communitarians attribute to cultural community. Let me illustrate these observations with an imagined scenario. Consider one contemporary society, where female infant abandonment (FIA) is rather common. The communitarian who adheres to (a) and (b) would invoke the cultural community – the commitments and duties it defines – to identify the cause of and to assess the judgments involved. In so doing, he assumes (perhaps implicitly) that there exists a strong connection between what the members of a community do (FIA) and the social context in which they are acculturated – a connection sufficiently strong to provide a causal explanation of why members practice FIA. He also assumes a sort of evenness or parity among individual members of a community – evenness in the depth and durability of their ‘embeddedness’ in community-defined duties, commitments, and purposes, and,

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therefore, evenness in the strength of the causal connection between community norms and each instance of FIA. Any variations among individual members, in their connections to these norms, are for the communitarian unimportant or negligible. Undermining this last assumption about members’ even ‘embeddedness’ in community, I contend, is crucial for undermining the thesis about strong heuristic or normative ethical significance of cultural community. Let’s continue with our imagined scenario. If members of the cultural community had an even or invariable ‘embeddedness’ in their community-defined norms, we would then have trouble explaining why (assuming that FIA is dictated by such norms) presumably not all members of the community, other things being equal, have practiced FIA. To establish such an even ‘embeddedness,’ one must establish that the tradition in favor of FIA, transmitted in the relevant community, is overwhelmingly influential on the social learning of all members, such that they have developed the same moral outlook, hold the same conviction, are similarly motivated, and so on. One must further establish that the community remains highly effective in transmitting the tradition and sustaining the traditional way of life. One must also establish that personal experiences relevant to the making of judgments about FIA, and motives to act accordingly, vary slightly or not at all among members. In addition, one must establish that overarching political or legal institutions play little role in enabling or constricting members’ capacities to reflect upon, adhere to or reject a tradition.22 Consider a parent in our hypothetical society. Let us assume that the family leads a life under economical deprivation and political oppression. Let us also assume that this person is illiterate (though illiteracy does not prevent one from acquiring informal knowledge, which can be transmitted through oral tradition and practice). She and her spouse are heavily burdened with daily struggles for the family’s basic subsistence. They rarely go to the temple to worship, yet they have acquired certain spiritual beliefs from folk tales. The government has, let us suppose, banned any spiritual groups and, indeed, any officially unrecognized ideology or moral tradition of thought. It has recently put into effect a regulation strictly limiting the number of births for each couple to one.23 The couple in our hypothetical case had hoped to have a boy, after having had a girl. Their experiences tell them that the family farm benefits more from male than from female children. (It is the local custom that, for example, when a girl gets married, she moves in to live with her husband’s family.) Instead, the wife gives birth to another girl. The couple faces sanctions (stiff fines and trouble with authorities) for violating the policy. These and other practical

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considerations eventually weigh more heavily on our hypothetical couple than any considerations they might have the opposing FIA. In much sorrow and shame, they leave their newborn baby girl out in the street, in the dark of night, hoping someone will find her and save her life. Like this couple, persons making moral decisions generally balance competing considerations: conflicting goals, commitments to others with legitimate claims to one’s devotion, obligations attached to relationships one has with fellow community members. It is thus conceivable that in the same hypothetic community, some parents may never find compelling considerations favoring FIA, while others may have found weighty considerations supporting a clear judgment of its wrongness. Among those who found the factors favoring FIA weightier, some may be more torn and feel guiltier than others did. Such disparate judgments, decisions, and emotions can hardly be attributed to the fact that they are all affiliated with the same community. In order to explain adequately why some took the action, others did not, and yet others condemned it, one must take into account many factors other than their ties to the community. For the sake of argument, let us suppose, finally, that the state in our hypothetical example now decides to relax enforcement of its birth control policy, reform its economic system (so that hard-working, honest farmers can support their families), and allow rural migrants to work in cities (so that rural women begin earning wages in factories). Such changes in government policies, and subsequently in the social status of women, lead to changing situational factors – and these, in turn, ease the burdens upon poor parents as they attempt to resolve conflicting moral obligations and demands. If the couple in our imagined scenario no longer face the prospect of stiff fines for having more children than officially permitted; if they can afford to raise those children; and if their economic survival no longer depends on having a son, then the conditions that had made FIA seem necessary now undergo changes. A person’s status in society, in the family, in the church, and in the state – her rights and responsibilities, her treatment as an equal or inferior member – have significant impact on the way in which she processes traditional teachings, identifies with authorities and fellow community members, makes choices, or reflects on inherited customs. Such experiences as personal suffering or the victimization of friends and family members are directly relevant to how intense her compassion may be toward certain practices. Personal experiences enable and force persons to learn and think differently. The informal knowledge transmitted in her community also contains clashing, contested, and changing views. For example, the community

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may teach God’s love for all of His children, while allowing the interpretation that women are undeserving and untrustworthy and must therefore be subjected to control. (In some places, this has meant that young girls must undergo genital cutting, despite the excruciating pain and adverse health effects associated with the procedure.) Alternatively, a community may teach appreciation of women, but also decree that by nature they embody the force of Ying – always in the lower position, passive and weak, though perhaps persevering, as contrasted to the force of Yang that men embody – always in higher position, aggressive and strong. In addition, members of a community may aspire to equal freedom and rights for all human beings, but allow such rights being withheld from women or persons of color. Now, these views and practices have always faced challenges from within such communities. The very communities in these examples contain spiritual and moral resources (God’s universal love, appreciation of women, and equal rights) that opponents to these views and practices draw upon to support their alternatives. These scenarios make it difficult to designate the traditional community or membership affiliation as the cause of, or the ultimate moral justification for, members’ judgments approving certain actions. This brief explication of ideas from earlier discussions gives credentials to what seems plain. Even if persons grow up and lead their lives in the same cultural communities, they are able to form judgments with some autonomy – ideas from though they may be forced by life’s necessities and authorities to act against their judgments (and their judgments may distort their deep convictions). Their judgments are not exclusively nor predominantly determined by their ‘embeddedness’ in their communities; they always weigh circumstantial or situational factors as among the competing reasons for action, which may have been created by complex forces, including government policies, basic institutions, and power relationships, as well as by their affiliations in various communities. Membership in a cultural community does not guarantee that all members achieve the same proficiency in social learning and thus acquire the same degree of informal moral knowledge transmitted in the community. Nor does it guarantee the same depth in their acquired convictions or the same intensity in their motives to act accordingly. (There always are, in any given cultural community, the devoted, the half-hearted, the cynic, and the dissident!) Though perhaps no one is ‘disembodied’ or un-embedded in any cultural community (as communitarians have emphasized), no two persons are ‘embedded’ in exactly the same fashion. We may say that

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they achieve higher or lower dosage of acculturation. They relate to, or identify with, the same cultural community differently. Their relationships with fellow members and authoritative agencies in their community differ in strength and durability. These relationships are individualized and individualizable; there is always room for variation. Consequently, a person’s moral judgments and decisions to act are incompletely defined and underdetermined by her membership in traditional cultural community. To invoke a cultural community sensibly in explaining members’ moral judgments or actions, one must recognize and assess the nature of varying relationships members have developed with that community. This account of ‘embeddedness’ in community corroborates the view that moral decisions are shaped in an important way by situational factors created by basic political structures and government policies. It is therefore essential to design and reform institutions to ensure that they contribute to shaping desirable moral judgments and behaviors. In A Theory of Justice, particularly in Part III, Rawls argues that institutions – family, social organizations and the state – if just, shape the sense of justice of individuals who grow up and live in these institutions. It is in the context of this discussion Rawls made the claim found objectionable by communitarians: It is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pursued. For the self is prior to the ends which are affirmed by it; even a dominant end must be chosen from among numerous possibilities. (Rawls, 1971, p. 560) Sandel made Rawls’ claim to the ‘self’s priority’ the main target of his scathing critique of the liberal conception of the person. Sandel finds the implied concept of the ‘self’ unrealistic, for it conceives of the self as ‘disembodied’ from the aims and goals it is given by tradition and community. (Sandel, 1982, pp. 19–23) Sandel’s ‘embedded’ account of persons, however, fails to take into account persons’ relative autonomy from their traditions and communities. This is because it fails to acknowledge the strong influence of basic institutions on situational factors that contribute to the formation and development of aims and goals.

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I have tried to assess various claims (indirectly inferred in some cases) about the ethical significance of culture. I begin with an analysis of the implications of the working concept of ‘culture’ for grasping the ethical significance of culture. I disaggregate culture into its various components or its various manifestations in order to explore, more specifically, any ethical significance of tradition, character traits, cultivated sentiments, and community in explaining and justifying moral judgments and actions. I conclude that while culture may have a weak heuristic significance in illuminating the formation of moral views or motivation of action, it does not have a strong heuristic significance in furnishing the causal explanation of such views and actions. In the next chapter, I examine culture’s normative ethical significance, i.e. its presumed capacity in providing normative justification for moral judgments or actions, as I revisit cultural relativism.

3 A Cultural Critique of Cultural Relativism

The fact of moral diversity no more compels our approval of other ways of life than the existence of cancer compels us to value ill-health. Elvin Hatch (1983, p. 68)

Case closed? Armed with the working concept of culture, identified in Chapter 1, and having tried to reach a qualified, hence more precise understanding of culture’s ethical significance in Chapter 2, I now turn to the problem concerning the normative ethical significance of culture. To recall, I have postulated that a culture has ‘normative ethical significance’ if it can provide justification for the moral judgments or actions of members in the culture. This leads me to revisit normative cultural relativism for this position assumes that culture has normative ethical significance in providing justification in the above-defined fashion. Without this assumption, the relativist would not be able to claim that the rightness of moral views and actions must be relative to (i.e. determined by) the moral agents’ own culture; and that culture must be the exclusive source, the provider of standards, of the rightness of its members’ moral views and practices. I will draw upon the critical analysis of the nature and attributes of culture in previous chapters and spell out its implications for assessing normative cultural relativism. I refer to this exercise as a ‘cultural critique’ of cultural relativism (though such a label may mislead readers to think that I try to critique relativism from the perspective of a particular culture). If the ‘Asian Values’ debate managed to shift the critiques of cultural relativism to a scrutiny of the presumptions cultural relativists make 54

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about ‘culture,’ this scrutiny remains to be carried out and its critical implications elaborated. Pursuing this sifted focus, I develop the ‘cultural critique’ of cultural relativism, as a comparison and supplement to the philosophical critiques (also to be re-examined below). For many philosophers, the verdict on relativism is sealed. Bernard Williams calls cultural relativism ‘the anthropologists’ heresy, possibly the most absurd view to have been advanced even in moral philosophy.’ (B. Williams, 1972, p. 20) Though philosophical arguments against cultural relativism have rarely been rebutted in a serious fashion by those in culture studies, they are largely dismissed because of what these scholars see as philosophers’ ignorance and neglect of culture.1 For more than a few cultural scholars, culture is by its very nature relativistic, no matter what philosophical arguments refuting cultural relativism are out there.2 Cultural relativism has thus found a rather cozy shelter in cultural studies. To drive relativism out of this shelter, philosophers must scrutinize cultural studies and their own presumptions about, and the empirical claims to, ‘culture’ and morality’s relativity to culture. Before I elaborate the ‘cultural critique’ of normative cultural relativism (NCR), let me differentiate NCR from another position, with which NCR may be confused. There are at least two types of ethical relativism: descriptive and normative.3 There are accordingly two types of cultural ethical relativism: Descriptive cultural relativism (DCR) describes morality’s relativity to the moral agents’ culture. It says that different cultures hold different moral views and ethical standards. It supports this description by citing observations that for instance, some Pakistanis hold the view that it is morally permissible to kill a woman who dishonors her family,4 but many Americans hold the view that it is morally wrong to kill anyone for such a cause and that they apply different standards to validate these different judgments. Normative cultural relativism (NCR) requires that moral judgments and standards must be considered valid or invalid only relative to the moral agent’s own culture: his or her moral views or actions ought to be considered right if they are judged right according to the standards in his or her own culture.5 The distinction between DCR and NCR is not always drawn or drawn properly in debates about cultural relativism. Thus when Herodotus heard that the Callatians ate their deceased fathers’ flesh, he marveled how their morals actually differed from those of the Greeks but he did not prescribe that such actions must only be judged according to standards found in each tribe. (Herodotus, The Histories, 1999, Book 3,

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Chapter 38) Nor did Montaigne’s comment constitute a normative prescription when he noted that we considered death the most horrible of horrible things, while others called death the only haven from the torments of this life, the sole support of our freedom, and a prompt remedy for all evils.6 Montaigne described how people actually judged death. He did not prescribe how people ought to judge or what standards they must invoke. The focus of my discussion is NCR. I will, however, briefly state what a ‘cultural critique’ of DCR would look like. A cultural critique of DCR consists in ascertaining whether it is indeed empirically accurate that members of one culture have a different judgment about, for instance, honor killing, and hold a different set of moral standards, from those in another culture; and whether these different judgments and standards are in fact mutually incomparable. For theorists concerned about the normative validity of such judgments about honor killing and the standards used in validating such judgments, DCR is of very limited interest. Simply describing that slavery is considered wrong in one culture, right in another, does not constitute an argument for or against slavery. However, one must not, as the human rights theorist Jack Donnelly has warned us, dismiss DCR too quickly, though many do, especially in political theory and philosophy. DCR, according to Donnelly, is a rather healthy outlook and deserves more attention than it has got from defenders of universal human rights.7 DCR alerts one to problems concerning the feasibility and effectiveness in implementing ethical principles. DCR challenges one to consider the question: Given cultural differences in the world, how will it be feasible and effective to motivate compliance and implement a normative ethical principle such as human rights? (In comparison, NCR poses a different type of question: Since a judgment of right or wrong can only be valid or invalid according to standards in the cultures in which they are found, should one assess such a judgment only according to the local standards?) If DCR were merely a description of cultural difference in morality, we would then not want to dismiss it. But DCR is often a description of morality’s relativity to culture. Cultural relativity is not entailed by cultural difference. If people of various cultural backgrounds differ in moral judgments, this does not mean that such judgments are only right or wrong relative to their own culture(s). What Donnelly and others human rights theorists want us to take seriously are in effect cultural differences, not relativity as they state.8 Both of these theses (about difference and relativity) can be empirically contested. For example, one

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can survey moral views and cultures and find out whether a moral view (say, moral judgment about honor killing) does indeed vary from culture to culture, and whether indeed the rightness of honor killing is relative to culture. Cultural anthropologists are yet to conduct any survey of all cultures in the world to warrant the claims that morality differs from culture to culture and that morality is relative to culture. (MoodyAdams, 1997) Moreover, the differences of moral opinions or practices from culture to culture, so commonly presumed, but not established by empirical studies, may not indicate differences in basic moral values. In order to ‘establish the claim about the radical differences in values among the world’s populations,’ as Hatch points out, cultural anthropologists would have to ‘eliminate these differences in factual belief and compare pure moral values uncontaminated by existential ideas’; yet ‘not only has this never been done, it would be most difficult, perhaps impossible’ to do. (Hatch, 1983, p. 67)

Discontents with philosophers’ critiques Before I turn to the cultural critique of normative cultural relativism (NCR), I must answer the question why I am not content with philosophical critiques of normative (moral) relativism (NR) in general. Not all the analytic arguments philosophers have offered, I contend, effectively refute NCR, at least not as effectively as they are supposed to. To make these arguments more effective, one needs to challenge NCR’s presumptions about ‘culture.’ When philosophers argue against NCR, a special type of NR, some of them fall back on the understanding of ‘culture’ once championed by the classical school of cultural thought. Bernard Williams, for instance, who is a contemporary architect of some of the most important arguments against NCR, uses ‘culture’ to refer to comprehensive ‘forms of life.’ He contends that any two cultures are ‘incommensurable’ in that they have different concepts, references, and notions of what counts as evidence, and that one could not ‘combine accepting’ both or ‘work within both of them.’ He goes on to say that the incommensurability of cultures, however, should not leave room for cultural relativism. This is because when two incommensurable cultures exclude each other, those in one culture can still ‘reject’ ideas in the other. Williams contends that, when one culture conceptualizes ritual killing as deliberate killing of innocents and the other as human sacrifice, a person in the first could still ‘reject’ the practice. He concludes that cross-cultural moral judgment and criticism are possible despite cultural incommensurability.

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For Williams, cultural incommensurability understood as mutual exclusion thus does not entail an impossibility of mutual rejection or approval. (B. Williams, 1985, pp. 157–8) This rebuttal does not seem to address NCR’s concern that, though we can criticize a practice in another culture, as we do all the time, we are likely to misunderstand the practice we criticize because the meaning of this practice to persons in another culture may have completely escaped us. Nevertheless, more relevantly for my purpose here, the implicit classic vision of cultures as ‘incommensurable,’ or systematically different and mutually exclusive, is now discredited in anthropology as a poor reconstruction of what cultures are in the real world. In spite of their distinctiveness and uniqueness, cultures are not self-enclosed, bounded, and internally homogeneous enough to be ‘incommensurable.’ This is not a trivial revelation. It means that the ‘culture’ that Williams’ rejection of cultural relativism concerns may not really exist. What Williams is rejecting – the relativity of morality to such ‘cultures’ – is something with a hypothetical existence. If one raises sufficient doubt about the claim that cultures are incommensurable, one also raises doubts that there is a problem of cultural relativity or cross-cultural evaluation in the first place. Most philosophers have focused on refuting NR, rather then NCR.9 The rationale for this focus seems to be that, if one successfully refutes the general form, then, one also refutes its specific varieties. I highlight three influential arguments refuting the general thesis of NR: the ‘naturalistic fallacy’ argument, the inconsistency argument, and the ‘generality requirement’ argument. My purpose is to show that they may not be as effective in rejecting NR, particularly NCR, as they are believed to be – that is, without also critiquing NCR’s presumptions about ‘culture.’ The ‘naturalistic fallacy’ argument This is the argument that NR involves the error that David Hume named the naturalistic fallacy, i.e. the fallacy of arguing from ‘is’ to ‘ought,’ or from observed or observable states of affairs to normative principles or general laws. This fallacy occurs when the relativists infer from observations about the ‘relativity’ of moral beliefs to society, social groups, or historical context, to the normative propositions of NR: One should judge moral beliefs using the moral agent’s own standards – found in her own society, culture, or group; and it is wrong to use an outsider’s own standards. It is fallacious, according to this argument, if one cites observed different practices, say, arranged marriage in one society and free marriage in another, to support the norm that one should not judge

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marriage practices in other societies by standards in one’s own society about what is the right way to form a union. It is also fallacious, if, from the observation that, in different societies, people make moral judgments according to local standards, one concludes with the meta-ethical proposition that this ought to be how people make ethical judgments – according to their own standards only. This is because the existence of diversity in moral views and practices does not say whether diversity must be good and ought to be preserved; similarly, the existence of diverse moral standards in different contexts does not say that one ought to use diverse local standards only. As one critic points out, ‘[t]he fact of moral diversity no more compels our approval of other ways of life than the existence of cancer compels us to value ill-health.’ (Hatch, 1983, p. 68) The ‘naturalist fallacy’ argument seems unpersuasive when applied to evaluating everyday life moral reasoning. It is easier to understand that, in the sciences, it is a problem if the law of gravity were solely based on observations that each time one throws an apple, the apple falls down. No one would trust such a law and rely on it to build a spacecraft! In everyday life, however, we are more trusting of our observations of repeated patterns. When the streets are wet in the morning, we usually assume it rained overnight, despite the possibility of bursting water pipes. Those who arrive at normative prescriptions from observations may have relied on such a commonsensical trust. They may rationalize that, if it is observed repeatedly that, when an ‘outsider’ tells locals what they should do (according to the outsider’s standards), things have not turned out well, then, one should adopt a rule of thumb to guide behaviors to the effect that one should in general refrain from judging others according to one’s own standard of rightness. This appeal of the inferences used in the ordinary discourse of everyday morality, which strictly speaking involves the naturalistic fallacy, makes ‘naturalistic fallacy’ objection to NR unpersuasive. The ‘naturalist fallacy’ argument, when applied to rejecting NCR, may seem even less persuasive. In a moral culture – a body of informal moral knowledge inherited in history, embodied in tradition, integrated in customs and practices, and transmitted in communities – moral rules and principles are learnt from lived social experiences. Moral learning and ethical reflection in a culture are to this extent historically contingent on persons’ experiences and conditions in the particular communities. We also learn about how to judge moral views and behaviors in different cultures from our experiences in making such judgments. We may judge wearing the headscarf in another culture ‘degrading’ to women, but then

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learning is that some locals find our judgment offensive, and that undergoing breast implant in our own culture may seem to them ‘degrading’. Such experiences tell us to take caution in judging different practices before we understand the circumstances and symbolism enough to make sensitive and precise judgments. We learn that what degrades women may not be what they do – wearing headscarf, undergoing breast implant, etc. – but what limits their choices and forces them to do things harmful to their health or safety. We may learn that, at this deeper level, our own culture may have not progressed as far as we thought or much father than other cultures in the treatment of women. To the extent this process of moral learning through observations and experiences is the case, the argument that the inference underlying NCR involves the naturalistic fallacy seems less effective in refuting NCR than generally believed. If we are to specify any ethical rules governing judgment-making about moral decisions by persons in other cultures, we may only have our experiences as the relatively more reliable sources of guidance. It is from these experiences that we generalize and revise rules. Abandoning this approach, for fear of the naturalist fallacy (and other cognitive errors) it may involve, we deprive ourselves one useful method of learning about how to judge views and practices in other cultures. (Leaning or identifying moral norms seems to proceed from generalizing in ways that involve this fallacy. Consider the simple reasoning a child may make: If each time I hit a playmate, I hurt her (or him), then, I must stop hitting any playmate.) Stopping making inferences involving such a fallacy would leave us impoverished in our tools for moral learning and ethical norm-setting. This line of thinking, which does not deny the charge of naturalist fallacy, rather, demonstrates that its rejection of NCR is not as effective as it is believed to be. To enhance effectiveness, one must question the empirical claim that moral views and standards are ‘relative’ to culture – that they vary from culture to culture and are applicable only to the culture of their origin. The crucial premise of the inference from observations of cultural ‘relativity’ to NCR will be seriously undermined if it is shown that such observations are inaccurate or mistaken – that such observations are contradicted by observations that similar moral judgments are found in different cultures or that the same culture contains conflicting moral judgments. This approach is suggested by what I refer to as ‘the cultural critique’ of NCR. The self-inconsistency argument Philosophers have also found fault with an inconsistency involved in making NR a general rule or demanding general adhering to NR. NR prescribes (1) ‘Never judge someone else’s views according to standards

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of one’s own’ and (2) ‘Judge others’ views according to their own standards only.’ (1) and (2) state the relativist’s own standards. By stating (1) and (2) as general rules and demanding everybody to act according to (1) and (2), the relativist applies standards of her own to judging ‘others.’ This contradicts (1) and (2).10 This inconsistence can be illustrated with the examples of beating a child in order to teach him a lesson about never beating others as a way to settle disputes; or of government censoring expressions of a group for its censorship on its own members’ expressions. NR as a meta-ethical standard is prescribed for everyone who might or is able to judge others, whether or not she belongs to a group that has adopted such a standard. This meta-ethical standard itself does not respect any boundaries between ‘us’ (the relativists) and ‘others’ (non-relativists). When the relativist applies this standard to judging non-relativists, she is making a judgment about ‘others’ according to her own standard. She is also making an exception to the standard that she has accepted as her own. Consider an American postmodern relativist who has accepted, or belongs to a group that has accepted NR. Now, our postmodernist judges according to NR that it is wrong for the liberal cosmopolitans, in fact for any Americans, to judge, according to their own standards, that honor killing in Pakistan or Palestine is wrong. According to this analytic critique of NR, this American postmodernist contradicts herself. Now, suppose the relativist responds by revising her proposition (1) to the effect of (1⬘): ‘Never judge others according to one’s own standards, except when one’s own standard is the one laid out here, in this prescription.’ Accordingly, one revises (2) to (2⬘): ‘Judge others’ views according to their own standards, except in judging the behavior of judging others, where the standard laid out here applies.’ This may help get rid of an apparent self-contradiction. However, as critics point out (Teson, 1985), the relativist needs to give a substantive argument for the provision of exceptions included in (1⬘) and (2⬘) in order to avoid arbitrariness. The relativist may reply to this demand by pointing out that it is not unheard of that general standards include exceptions. Consider, ‘Never restrict freedom of the press except under conditions of war and national security.’ However, the specific exceptions laid out in such a principle are presumably accounted for and given reasons independently of the principle itself – e.g. national security is a good for all citizens, or winning a particular war is important for securing freedom of the press and other freedoms in the long run, or restricting the press can save lives during war and so on. There is yet to be an account, independent of (1⬘) and (2⬘), to defend the exceptions specified by them.

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One way to avoid arbitrary exception is to further restrict (1⬘) to (1⬘⬘): Those in my own group (in which NR is accepted) should never judge morality in other groups (including non-relativists) according to our own standards as laid out here. Now, (1⬘⬘) does not involve the troubling self-inconsistency and it does not make any arbitrary exception to itself. The relativist who judges it wrong for members of her own group to judge non-members according (1⬘⬘) is not contradicting (1⬘⬘). One price she pays, however, is a significant restriction on (1⬘⬘)’s scope of applicability. (1⬘⬘) does not apply to anyone outside the group consisted of relativists. It does not govern anyone else’s judgment making about others (including the relativists). For an effective rejection of (1) and (2) and (1⬘) as well as (1⬘⬘), one must challenge their presumptions about the ‘other,’ particularly the ‘cultural other’. These positions prescribe that those in our own culture (in which certain moral standards are accepted) should never judge morality in other cultures according to our own standards. This statement can be effectively rejected by challenging its presumptions about the solid divides between ‘our’ and ‘others’ ‘cultures,’ and about cultures’ fixed and air-tight boundaries. Such challenges should raise sufficient doubt as to whether these positions have any application in the real world. By requiring members of our own cultural community not to judge outsiders according to our own cultural standards, we must be able to tell apart our members from ‘outsiders.’ We must assume that there are clear borders between our own culture and others’ cultures. We must also assume that a certain standard is uniquely that of one’s own culture, not shared with any other cultures, and that all members in one’s own culture share this standard. These are, as it is obvious to us now, implausible assumptions. The generality requirement argument This argument faults relativists for mistaking ethical propositions for non-ethical propositions – propositions that do not involve judging what is the right thing to do or how one ought to live. Critics point out that ethical propositions are by nature general or universalistic. As Bernard Williams puts it, The fact that people can and must react when they are confronted with another culture, and do so by applying their existing notions – also by reflecting on them – seems to show that the ethical thought of a given culture can always stretch beyond its boundaries. … Each

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outlook may still be making claims it intends to apply to the whole world, not just to that part of it which is its ‘own’ world. (B. Williams, 1985, p. 159) This remark confirms that anyone who makes moral judgments is also always making general (normative) claims intended to apply universally. A claim about what is right is a claim about what is right for anyone, anywhere, in similar moral situations. For instance, the proposition that it is permissible to lie to a killer looking for one’s friend applies to anyone in similar situations that may be found in any societies or cultures. When one makes a moral claim, one is making it universally binding not only on others but also on oneself, not only in one’s own culture or society, but also beyond. (Teson, 1985, pp. 137–8) Consider propositions such as ‘It is not wrong for me to steal from my neighbors but it is wrong for them to steal from me,’ ‘Telling lies is bad except when I do it.’ Such propositions are ruled out as proper moral propositions because they cannot be generalized. They have a private dimension. Their being known publicly by others would make them unrealizable (in the case of stealing) or self-defeating (telling lies). Also consider: ‘I want everybody to act always according to my desires,’ ‘I should have possession of Mr. Gates’ wealth,’ or ‘All persons with green eyes are allowed to walk only on the left side of Manhattan streets.’ These are not moral propositions either. They express personal (partial) preferences, which the persons who make them have no particular reason to expect everybody to accept. Thus, ‘the generalization principle is involved in or presupposed by every genuine moral judgment, for it is an essential part of … [any] distinctively moral terms.’ (M. G. Singer, 1961, p. 34)11 This characterization of moral propositions seems plausible. The Confucian moral teaching that one has a duty to be benevolent is universalistic in that it is about the desirability that everyone love and have compassion for people ‘within the four seas’ – not just one’s own kin or fellow subjects in the kingdom. The Confucian virtue of benevolence (ren, which also means love and care between any two persons) thus has a global outlook. Sometimes a moral claim may specify that it only governs particular persons of certain identity or capacity. For example, the Confucian moral rules tend to state that it is good or right for all who have certain social identities (women or men, laborers and scholars, or kings and subjects) or capacities (teaching, advising the king, or raising children) to behave in such and such ways. But even such claims have a general and universalizable outlook. They apply to those with such identities or capacities in any societies or cultures. When the

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Taliban proclaimed that it was immoral to fly a kite in Afghanistan, they did not mean that it was morally permissible to fly a kite elsewhere: They disapproved of flying kites in neighboring Pakistan or in Mary Popping’s England. They would like to ban it in these places if only their power could reach. Those Muslims who believe it is decadent for women to wear miniskirts believe it is decadent for women everywhere to do so – though they may only have power to enforce a ban on miniskirts in places where they are in control. This criticism is essentially that the relativist is mistaken about the nature of moral judgment when she demands that one should never make universalistic judgment across societal or cultural or historical contexts. James Rachels points out that, due to this mistake, relativists are unable to make moral criticisms of past wrong (slavery in American South) and wrongs in other places (Nazi Germany). (Rachels, 1999) This point may have force in exposing the relativist’s insincerity or hypocrisy – if she had claimed to be able to criticize such wrongs. For Rachels and other critics of relativism, it is important to be able to criticize moral wrongs in other places and at other times. But this importance is not necessarily recognized by relativists. They are likely to reply to this rejection by clarifying that their point is precisely that no one is able to make such criticisms due to incommensurability of moral standards. They may be proud of themselves for following the logic of this impossibility and accepting its bitter consequences – our inability to judge moral wrongs in other places and at other times, or in other cultures. To point out these consequences thus does not seem to effectively reject normative relativism. To enhance this argument’s effectiveness in refuting NCR, one must challenge NCR’s presumptions about, ‘other cultures’, as impenetrable and incommensurable, such that it is impossible to apply any general standards to judging moral behaviors across their boundaries. One must undermine NCR’s insistence on the impossibility to comprehend and evaluate moral views, to formulate general moral propositions, crosscultural boundaries. This is to challenge NCR not on the ground that it does not allow criticisms of past wrongs or wrongs elsewhere, but on the ground that it is mistaken about the nature and attributes of cultural boundaries when it laments the impossibility of making such criticisms.

The cultural critique I now sum up the cultural critique of NCR. (In the section that follows this one I will attend to the cultural critique of a special type of

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NCR – irrationalist NCR.) The cultural critiques state that, according to the working concept of ‘culture’ as a body of informal knowledge with what I refer to as the ‘paradoxical’ features (in Chapter 1), one cannot insist that the rightness of moral judgments (such as those approving of, for example, honor killing or punishing women deemed adulterous by stoning to death), is relative to the local culture. The cultural standards of moral rightness are likely to be locally contested and changing over time. In addition, one cannot plausibly prescribe that the rightness of moral judgments should be decided by standard found in the local culture only. If there cannot be any agreed upon local standard in a culture and a local standard may also be non-local, such a prescription would demand that, it seems, we should do what cannot be done – to employ local standards only. Let me elaborate. First, let me state NCR more precisely. NCR is the prescriptive (normative) proposition that it is wrong to judge moral beliefs and practices in other cultures according to one’s own standards, or on the flip side, one should only use standards from the moral agent’s culture, if possible, to judge his or her moral beliefs and practices. This proposition is sometimes supported by following inference: ‘Ought’ implies ‘can’ (if one prescribes that one ought to do X, one must assume that one can do X; however, if one cannot possibly do X, then, it is fallacious to prescribe that one ought to do X); if there cannot be any trans-cultural standards and nothing can possibly be trans-culturally right or wrong, then one should not use (or search for) such standards; and since there are only local cultural standards, then one ought to judge moral agents’ views or actions only by their local cultural standards only. Laying out this inference allows us to challenge its premises, e.g. its assumptions about the impossibility of trans-cultural standards and the incommensurability of standards found in cultures. If these assumptions are invalid, that is, if there can be trans-cultural moral standards, then the argument for NCR (on the bases of these assumptions) is undercut. (However, the validity of NCR does not depend on the (empirical) validity of DCR. Rather, even if DCR is un-confirmed on empirical grounds, NCR can still be plausible. If Gold Mountains have not been confirmed to exist, one can still make normative propositions prescribing what one ought to do or not do with regard to Gold Mountains. If internally homogenous, unchanging, and self-enclosed, hence incommensurable cultures are not found to exist, one can still prescribe what one ought to do or not to do with regard to such cultures. But such a prescription would apply to an empty set of behaviors unless one can prove that Gold Mountains or cultures as such do exist. Similarly, if no one would

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ever be a complete ‘outsider’ to any given culture, due to the fluidity of cultural boundaries, and if one’s standards or judgments are likely to be shared by some members in another culture, then the rules governing ‘outsiders’ would have no applicable scenario. (Crocker, 1991) Consider the disputes over honor killing in the local cultural community in Pakistan among perpetrators and victims (with supporters on each side). Here, each group is in solidarity with ‘outsiders’ (victims with women’s advocacy groups in Karachi or abroad and the Pakistani government law enforcement, international rights agencies, while perpetrators with sympathizers of honor killing in other places). Each group would not hesitate to use standards to support their positions even if such standards are also found elsewhere. To insist that one should apply only local cultural standards to judge honor killing, as NCR does, is in effect to insist that one either takes sides with one of the opposing local camps – with their judgments and standards, or simultaneously judges honor killing both right and wrong by accepting all local, conflicting, standards. In the event that some of the competing local standards (for example, a standard implicit in the view that women’s lives are less important than family honor) are also found in a non-local ‘outsider’s’ own culture, if one follows what NCR prescribes, the outsider faces a dilemma: If she applies such standards to judging honor killing, she applies her own culture’s standards; if she refrains from applying them, she is selectively not applying certain local standards, but not others. NCR assumes that a culture’s boundaries can always be clearly drawn such that there should not be any ambiguity as to the cultural identity of the moral agent or of the standard used to judge the agent’s position. This assumption is challenged by the working concept of culture, which contends that there are possibly competing or conflicting standards in a culture and a culture is likely interconnected to other cultures. Some members of a culture may have multiple memberships in other cultures. And certain standards may have been developed and socially transmitted in more than one culture. The ambiguity of the cultural identities of moral agents and moral standards makes it difficult to apply NCR to judging the ways in which persons make moral judgments about each other. First, it may be difficult to identify the cultural standard since one may be presented with a host of competing standards in a culture. For example, there are conflicting standards for judging abortion in what one may refer to as American culture. Second, one may not be able to identify one particular culture as a moral agent’s own. A moral agent is likely to have been acculturated in

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or become affiliated with multiple cultures. Consider, in the case of judging abortion, for example, the multiple cultural affiliations of a liberal feminist Catholic doctor. Consequently, an ‘outsider’ may not be able to apply only those standards that are exclusively of the moral agent’s own, since any standards the ‘outsider’ identifies are likely to be found in other cultures as well. Consider, for instance, the standards judging honor killing in the Pakistani villages, where such a custom was recently found to be practiced. Such standards are local, yet ‘foreign,’ since they are also found, for instance, in the West Bank and many other countries.12 When a moral position, X, is judged both right and wrong according to conflicting ‘local’ standards in a culture, the rightness or wrongness of X then is not particularly relative to that culture. To establish that moral judgments and standards are relative to culture, one must establish that whenever moral judgments and standards vary, it must be that the cultures in which they are found have varied; and whenever moral judgments and standards remain the same, it must be that they exist in the same culture. Let’s call this the thesis of cultural relativity. It essentially contends that the variations in judgments and standards correspond to variation in culture. Given that a culture may contain conflicting judgments or standards, their variations do not correspond to any variation in culture. Also, given that two cultures may contain the same standards, and that their members may make similar judgments, the variation in culture in such a case does not correspond to variations in standards and judgments. These cases seriously undermine the thesis of cultural relativity. Such critiques of ‘culture’ as it is presumed in normative cultural relativism effectively dissolve the so-called problems of moral relativity to culture. In other words, at least in the scenarios we have considered, there is no genuine problem of cultural relativity, though there are problems with cultural misunderstanding and insensitivity toward differences between cultures but also within a culture. Now, suppose the normative cultural relativist responds by making certain concession but still trying to hold on to the thesis of relativity. He may, for instance, admit intra-cultural diversity and inter-cultural connectedness and then adjust NCR to the effect of NCR-1: It is wrong to judge moral views or practices in a culture according to any outsider’s standards, and one should only apply standards in the moral agent’s own culture, even if these are internally disputed or externally shared with other cultures.

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NCR-1 departs from NCR by abandoning the position that the only acceptable standard is exclusively found and uniformly shared in the moral agent’s own culture. According to NCR-1, it is permissible to use standards that are disputed in the local culture or shared by some people in other cultures. However, we may respond to NCR-1 by pointing out that the admission of culture’s internal heterogeneity and inter-culture commensurability practically means abandoning morality’s relativity to culture altogether. NCR-1 is no longer a thesis about moral relativity to culture since it no longer insists on a correspondence between a variation in morality and one in culture. Rather, NCR-1 is about local particularity. It prescribes that the particular local standards must be used even though these are shared elsewhere and disputed locally. Alternatively, the relativist may respond to these cultural critiques by insisting that the relativity thesis can still apply to any culture that is bounded and homogenous, no matter how small such a culture may be. Thus, one can conceive those who agree about the rightness of honor killing as members of a bounded and homogenous culture, although the local tribe, village, or the Pakistan society or a region may not have a unified culture due to their internal disagreements about this practice. According to this view, those who do not approve of this practice, whatever their social, religious, or national identities are, simply do not belong to the same ‘culture’ as those who approve of it. She may then contend that morality’s relativity to culture is salvaged since, wherever moral disagreement occurs, different ‘cultures’ or sub-cultures would form. Those in each of the disagreeing camps would become members of separate cultures or sub-cultures. This response grants exit, a kind of cultural secession, to those who do not accept a moral position (approval of honor killing, e.g.) of fellow members of their group. The boundaries around the new group are supposedly unambiguous and the make-up of the group, as far as its position on the particular moral issue (concerning honor killing in this case) is homogenous. This response allows the possibility that a ‘culture’ consists in a very small group of like-minded individuals or even simply one solitary individual, who agrees about a single moral issue. And it allows dividing up any group into ‘cultures’ along the lines of their disagreements over various moral issues. Thus, for example, those who agree in their judgment about honor killing but disagree in their judgment about widow burning would have to be seen as divided, again, into different ‘cultures.’ This response may save these of culture’s internal monolith and differences in morality from culture to culture, hence

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the thesis of morality’s relativity to culture. However, culture is in this way understood as a morally like-minded group or an individual, whose cultural affiliation would re-shift each time they disagree with each other. This is a bizarre way of picturing cultures in the world. Cultural relativism, moreover, seems to collapse into its extreme form – individual relativism or solipsism: Each according to her standards. Still, one may find that this line of cultural critiques does not constitute a rejection of the normative propositions of NCR. Rather, it merely demonstrates NCR’s unrealistic or faulty presumptions about culture – especially its classic vision of culture as an internally homogeneous, self-enclosed, and static entity. One can, of course, go on to prescribe behavioral rules governing how we ought to assess moral views found in such ‘cultures’ even though ‘cultures’ as such may not exist. NCR as a prescriptive norm may indeed survive this critique. However, it may have little application in the real world – just as prescriptive norms governing how we ought to treat ‘gold mountains’ (preserving or depleting them, e.g.) would have little application in a world where gold mountains do not exist. In our world of ‘creolized,’ hybrid, evolving and clashing cultures, it remains the case that it is hardly possible to identify which culture(s) exactly the rightness or wrongness of a moral agent’s judgment is relative to.

Case against irrational cultural relativism As discussed in some length in Chapter 2, ‘irrational’ cultural relativism, as it is advocated by Rorty,13 is the position that what divides human rights believers from non-believers is not their rational ideas, but their ‘cultures,’ which Rorty refers to as sets of incommensurbale sentiments defying rational analysis. Ethical evaluation of moral views or actions comes to the end, Rorty says, when its digging hits the impasse formed by sentiments. Rorty contends that one cannot and should not dig any further for rationalist justifications beneath or below sentiments. This position is one special instance of NCR – the irrationalist version. Rorty’s brand of the irrationalist version, distinctive in its view of ‘culture’ as cultivated sentiments, can be formulated as follows: Moral agents’ views and standards must be considered valid only relative to their culturally inculcated sentimentality. They should be considered right if they correspond to what these agents’ sentiments demand or motivate. It is thus wrong to judge others’ moral beliefs and practices according to one’s sentimentally grounded moral standards, or, on the flip side, one should only use

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others’ own sentimentally grounded standards to judge their moral beliefs and practices. Does the cultural critique work effectively in undermining this irrationalist version of NCR? Such a cultural critique would scrutinize its presumptions about ‘culture.’ Let me then lay bare some of these presumptions. Rorty contends that a culture is reducible to cultivated sentimentality and the ‘human rights culture’ is reducible to historically contingently cultivated humane sentimentality. Such sentimentality refers to sentiments such as revulsion and indignation against human atrocities, compassion for victims, etc. Such sentiments motivate people to adopt human rights and they provide the final justification for human rights. Those who oppose human rights lack such humane sentimentality. The justification for ‘our’ beliefs in human rights, in the final analysis, can only be our strong feelings – not any rationalist recognition of human nature or transcendental law of nature. These assumptions about ‘culture’ or ‘culture of human rights’ in particular can be assessed by examining, first, whether the support that human rights draw from culture(s) is reducible to sentiments, and second, whether culturally developed sentimentality alone suffices in motivating human rights actions and generating support for the belief in human rights. The first question can be reformulated as the follows: Can the motives that people have acquired to act on the idea of human rights and the support that has been generated for this idea be reduced to sentiments? It is very difficult to reduce motives to act in accordance with moral principles to the narrow and indeed single source – sentiments. This is because religious convictions or ideological beliefs, once adopted, can also shape moral motives and generate support for relevant moral principles.14 It is conceivable, that certain humane sentiments may not be necessary for the moral agents to act in accordance with requirements of a moral vision, such as that of human rights. Rorty’s view of moral agents’ sentiments – their adequacy or inadequacy, presence or absence – as the only measure of their culture’s compatibleness with or capacity to support human rights, offers a poor account of these resources that human rights can draw upon and of the complex ways in which moral motives can be shaped. Meanwhile, in what Rorty might refer to as ‘a culture of anti-human rights’ or ‘a culture of absent human rights’ found in places where human atrocities, inhumane, cruel, and degrading treatments of fellow human beings take place, it is conceivable that these conditions are not

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necessarily due to the absence or insufficiency of humane sentiments among the people, or due to the local culture’s inability to cultivate such sentiments. Some of these people may be just as sickened by the atrocities, or just as compassionate for the victims, as those in the ‘culture of human rights.’ But they may have to suppress such sentiments. Some may rationalize, quite against their sentiments, that such atrocities are unavoidable tragic sacrifices for achieving some greater good. As one observer of the Rwanda genocide in 1994, which claimed 800,000 lives, comments, people in Rwanda ‘don’t do these things just because they can’t control their primordial instincts’ – ‘because [the Rwanda genocide] didn’t happen with weapons of mass destruction but with machetes, doesn’t mean it happened without a policy’ or rationale.15 Somehow, an absence of humane sentiments or abundance of inhumane (beastly ‘primordial’) feelings just do not do the job in explaining what happened. The second thing one can do to contest irrational NCR’s assumptions about ‘culture’ is to scrutinize whether culturally developed sentimentality alone suffices in motivating human rights actions and generating support for human rights. Imagine two groups characterized by distinctive sentiments – one with shared revulsion and outrage against human atrocities and compassion for victims, the other with indifference at others’ suffering and a lack of compassion for victims. In the arm-chair fashion of philosophical speculation (in the absence of interviews or surveys or historical research), one can speculate, guided by commonsense, that not all members in the first group would support human rights, nor would everyone in the second oppose it. In the first group, members are likely to have competing ideas about what social–political reforms and institutional arrangements are optimal for eradicating what outrages them or protecting those for whose sufferings they feel compassion. And their options for action are limited by their circumstances, including existing social-political institutions and historical experiences. Those who are outraged by brutal rulers, violence, massacres, and deprivation may find violent rebellion or bloody revenge the justified or more realistic options than the legalist institutional approach of human rights. This is because human rights are one particular kind of reaction to and a calculated approach to ending human atrocities. As a moral regime, it requires highly disciplined, coordinated, and deliberative responses through generally non-violent processes, for example, procedural justice for suspects of perpetrators, to end the cycle of violence and atrocity. This may be why human rights only become a growing social conscience and moral ideal for social reform in the last

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couple of centuries though there had been a long history of human atrocities and passionate social reform to eradicate human sufferings. The differences in sentiments between these two imagined and groups may not always be cultural or socially acquired, historically inherited, and traditionally embodied. Such differences may occur between members of the same culture, who have inherited the same spiritual or intellectual traditions, who even go to the same churches, who are raised in the same process of social learning, and who have suffered from the same economic hardships or injustices. The point is that opposite sentimentalities may characterize two distinctive cultural groups, but they may also characterize intra-cultural sub-groups. Thus, even if it were the case that members of one group had supported human rights, and those of the other had not, this would not entail that sentiments (their presence in one and absence in the other) alone had made the difference. These rather sketchy critiques of the ‘culture’ presumed by irrationalist NCR, its sentimentalist variety particularly, may not amount to a refutation of its normative theses. However, they demonstrate that morality (moral support for human rights in particular) does not vary relative to sentimentality – the adequacy or inadequacy, presence or absence of humane sentiments in particular. These critiques, in need of development and elaboration which I am unable to pursue here, should undermine the conceivability and plausibility of moral relativity to cultivated sentimentality. They should suffice to dissolve the so-called problem of morality’s relativity to sentimentality. In this chapter, to summarize, I have tried to explicate some of the implications of the working concept of culture for evaluating the normative position of ethical cultural relativism. I contend that there is hardly a genuine problem of morality’s relativity to culture. Cultures have porous and shifting boundaries and they are interpenetrable, internally heterogeneous, and changing over time. I explain how this understanding of culture decisively undermines the case for normative cultural relativism.

Part II Transcending Dichotomies

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4 Destructive of Cultural Community?

People and groups have a generic right to realize their capacity for culture … American Anthropological Association1 For a Muslim country, as for all complex state societies, the most pressing human rights issue is not local cultural preferences or religious-cultural authenticity; it is the protection of individuals from a state that violates human rights, regardless of its cultural-ideological façade. Reza Afshari (1994, p. 249) The debate on the universality of human rights – how and why it is plausible in a world immersed in diverse cultures – has joined the ethical concerns (1) about the role and significance of culture in moral judgment making and norm-setting (as addressed in Part I) and (2) about the possibility of validating the universal value claims inherent in human rights (to be addressed in Part III). In this part of the book, I begin explicating the implications of the analyses and clarifications in Part I for this debate. Particularly, I spell out what they entail about the received ‘culture vs. human rights’ dichotomy, which has framed the debate for the most part. I argue that such a frame seriously distorted the complex relationships between diverse cultures and the universalist vision of human rights. I also undercut two of its supporting dichotomies, the ‘individualistic (civil–political) rights vs. collective (cultural–social– economic) rights’ dichotomy (in Chapter 4) and the ‘monist/intolerant human rights vs. tolerant cultural pluralism’ dichotomy (in Chapter 5). In challenging the notion that civil–political rights are individualistic while the other rights are collectivist in this chapter, I underpin an 75

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argument against the communitarian objections that human rights are destructive of cultural communities. I will thus makes the first case demonstrating that ‘culture vs. human rights’ is a false dichotomy. In the first section of this chapter, I examine five conceptions of ‘collective rights’: ‘socially collaborated rights,’ ‘non-excludable rights,’ ‘communally constituted rights,’ ‘associational prerequisite rights,’ and ‘special membership rights.’ I argue that none of these, except the last one, can define ‘collective rights’ as sufficiently distinct from classic civil–political liberty rights. ‘Cultural rights’ understood as ‘collective rights,’ i.e. ‘special membership rights,’ I argue, are compatible with and integral to human rights. Certain exclusive membership privileges may be crucial to the survival and flourishing of communities in which certain mechanisms of safeguards for life and basic human securities are developed and sustained. However, every human being can claim such privileges universally. Moreover, certain civil-political liberty rights are indispensable for the survival and flourishing of cultural communities.

The collapse of ‘individual vs. collective’ In December 1996, after tense negotiations, government and insurgent forces in Guatemala approved a UN-brokered peace agreement ending a thirty-year armed conflict.2 This is an example of rebels fighting in the name of, or with the genuine conviction of defending, the interests of marginalized indigenous population could be persuaded to resort to legalistic strategies seeking political representation and socio-economic participation.3 Women in rural Turkey and in Zinacantan, Mexico, used the legal norms and language of international women’s rights to contest local discrimination.4 The global network of practitioners and supporters of the persecuted Buddhist sect Falun Gong have used US and European courts to seek accountability and punish Chinese officials for the ongoing crackdown and the torture of many followers of the sect.5 The rights of indigenous, ethnic, minority or cultural groups have gained prominent attention since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. In spite of its initially exclusive drafting process, its international human rights framework has seemed of particular appeal to these groups. (Kothari and Sethi, 1989; Muzaffar, 1993, 2002) They have utilized human rights to voice concerns for marginalization, demand justice, and empower themselves. They have taken to employ the emerging international legalistic instruments and sought participation in the norm-setting and implementation

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process. They have formed ‘curious grapevines,’6 networks of local nongovernmental forces that have generated grassroots support for human rights, pushed for effective enforcement, including international legal institution-building, to hold powerful state and multinational parties accountable for abuses. The language and institutions of human rights have made all this possible. Yet these too have evolved since, toward embracing the rights to culture and the rights of indigenous peoples.7 Nevertheless human rights have been denigrated as individualistic. Critics claim that as they ignore the cultural ‘embeddedness’ of persons in traditional communities and undermine indigenous ways of life. This critique has merited differentiated responses. First, if human rights were essentially individualistic, they would have had little appeal to cultural or indigenous groups. Traditional communities would not have appealed to classic civil–political rights for they would find these rights undermining locally crafted safeguards or their legalism is so alien and objectionable from their perspectives. Secondly, if rights to culture and indigenous way of life, granted to groups and communities under the international human rights regime, are an integral part of such a regime, one needs to give an account of these rights as human rights (i.e. rights of human beings).8 To verify these responses, one must re-examine the claim that human rights are individualistic. International recognition of collective human rights, hailed as an important and necessary addition to classic human rights (hence ‘third,’ generation of human rights following classic liberal and then, cultural, social and economic rights9), sharpened the debate over the relation between individual versus collective human rights. If individual rights are rights of human beings taken one by one and collective rights are rights of human beings en masse, there needs to be a coherent account of the identity of the human agency, particularly of how individual and collective agencies relate to each other and how to resolve potential conflicts between them or between the two kinds of human rights. (Wallerstein, 1995) The expansion of human rights to include rights to culture and rights of indigenous peoples, some argue, undermines the principle of protecting the life and dignity of human beings, particularly those whose rights and interests may be overridden by their communities’ exercises of collective rights. In international conventions, most of the so-called ‘third generation rights’ are granted both to each and every human being and sometimes

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to whole peoples.10 This ambiguity hinders efforts clarifying who exactly bear these rights – members of the relevant groups taken one by one, or the groups as whole collectivities – and, if the latter, who can properly represent any such collectivity. It is unclear whether the international framework recognizes individual rights as more important than collective rights where these two sets conflict. Nor has the framework explained how a collective right by membership only, which excludes non-members, can be coherently understood as a universal equal right. Let us scrutinize the dichotomy between individual and collective rights. To clarify ‘individual’ and ‘collective’ rights, we can begin by exclusion. We can first exclude the use of ‘collective right’ to mean state sovereign right. A violation of a sovereign right does not necessarily entail the violation of the rights of its citizens. A state’s sovereign right can be exercised at the expense of its individual citizens’ rights particularly in the case of non-democratic states. For comparison, the violation of other group rights, such as women’s rights, is a violation, at least potentially, of the rights of each woman. It is also difficult to consider state sovereign rights as human rights since they are not possessed or exercised by any human agency, but rather by the state as a territorially bound administrative and political machine, although persons may have the authority to exercise sovereign rights (kings, emperors, or leaders of a state). If ‘collective’ or ‘group’ rights are understood as sovereign rights, then, in the case of non-representative sovereign states, such rights are inherently incompatible with human rights as rights of human agencies. This explains why I proceed without considering sovereign rights ‘collective’ human rights. However, there are at least five common uses of ‘collective rights,’ including ‘socially collaborated rights,’ ‘nonexcludable rights,’ ‘communally constituted rights,’ ‘associational prerequisite rights,’ and ‘special membership rights.’ The purpose of examining these is to ascertain if and how they might give plausible meaning to ‘collective rights’ as human rights, while reasonably differentiating such rights from ‘individual’ human rights. ‘Collective rights’ as ‘socially collaborated rights’ ‘Collective rights’ is often used to refer to rights that can be implemented only through social cooperation and coordinated efforts. I refer to these rights as socially collaborated rights. However, in this conception, not only the third generation rights, but also many of the first and second generations of rights are collective. They all demand social cooperation and coordinated efforts in the relevant society and communities in

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order to achieve their effective protection. If socially uncooperative individuals pursuing their own interest are said to undermine any prospects for peace, a clean and sustainable environment, development, or viable and flourishing cultural or indigenous communities, the same can be said about the prospect of achieving the classic liberal rights: the lack of social cooperation undermines any prospect for protecting, e.g. the rights to conscience or expression or political participation. The political right to self-government and equal participation can only be guaranteed and meaningfully exercised if social and economic arrangements can be supported by citizens as just through their social cooperation, and if civic virtues can be fostered and sustained in social institutions – family, voluntary associations, schools, and churches. The development and consolidation of liberal democratic governance require, in the most part, positive, proactive, and collaborated actions. Un-coordinated individual pursuits of their separate interest can lead to all sorts of collective action problems and undermine a functional democracy.11 That the costly procedural safeguards of individuals from being arbitrarily detained or wrongfully jailed or sentenced to death in the US, for example, demonstrate their demand for social cooperation and public support. More generally, as Jeremy Waldron put it, The right to vote, to hold public officials accountable, to participate in the execution of the public power, even arguably the rights of freedom of speech and association, … are rights which bring people together to act collectively and in concert, rather than rights which drive them back into the narrow preoccupations of their privacy. … In their form, at least, democratic rights, the rights of the citizen, express a vision of political community, not a nightmare of privatized individualism. (Waldron, 1993, pp. 342–3) Extensive social and communal efforts have to be made so that the substance of these classic liberal rights can be actually enjoyed and individuals can be held responsible for exercising these rights and respecting the equal rights of fellow human beings. These rights do not differ from the ‘third generation rights’ in that they simply demand non-action or hands-off on the part of governments and fellow human beings.12 This notion of ‘collective’ rights thus does not support the dichotomy between ‘positive’ (action-demanding, or third and second generations of) and ‘negative’ (hands-off, or first generation of) rights.13 The collapse of the ‘positive’ vs. ‘negative’ rights means that a classic liberal right

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cannot be adequately differentiated from other rights, as ‘individualistic,’ since such a right is also positive and demands social collaboration for its enjoyment. The demand for social cooperation alone does not disqualify the first generation rights from being considered ‘collective’ rights. ‘Collective rights’ as ‘non-excludable rights’ ‘Collective rights’ is also used to refer to rights that are granted to all members of a group, or rights that, when exercised, produces goods enjoyed with all other members in the group. These have been referred to as non-excludable rights, rights that, according to Waldron, if they are ‘to be supplied to any member of the group, [they] cannot be denied to any other member of the group …’ (Waldron, 1993, p. 348) It has been argued that due to the nonexclusive nature of goods such as peace and a clean environment, their importance cannot be expressed in the language of human rights due to that language’s individualistic nature. (MacCormick, 1982, p. 143; Raz, 1986, p. 198; Waldron, 1993, pp. 346–51) If one insists on doing so, i.e. claiming ‘the human right to peace,’ then, it is said, one must be referring to an entirely new category of rights, different in nature from classical (individualistic) rights. Two qualifications are in order. First, it is not accurate to call clean air and peace non-excludable. We know perfectly well that many residents of urban centers and industrial sites do not necessarily though enjoy clean air. Others in their national community do and they can exercise the right to such goods. Peace, once secured for human beings living in one regions of the world, can be denied to other members of the human community. Meanwhile, the rights to clean air or peace, when effectively protected, do not necessarily mean that its goods are equally enjoyed by all in the relevant community. It is likely that those with lung disease or neurotic conditions may be unable to benefit as much from clean air or peace as their fellow members. Secondly, to make sense of this understanding of collectivity of rights, one can limit the scope of the relevant communities. Thus, one can qualify that once clean air is supplied to some residents in the Los Angels area, it cannot be denied to any other local residents though these residents may not be the intended beneficiaries or may not benefit equally. One can also state that once peace is secured in a country, say, Sri Lanka, it cannot be denied of any residents in the country. Given these qualifications, some third generation rights could be considered ‘collective’ in the sense of non-excludable and most of the first generation rights are not. The right to freedom of equal political

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participation, once protected for some members of a political community (male, ruling class, elite, e.g.), other members do not automatically enjoy the goods coming out of those members’ exercising such a right. Waldron seems to argue that some of these rights are non-excludable. He gives as an example that when the European Court of Human Rights addresses a case about the right not to be tortured, it considers it a test case for the similar right of countless individuals who stand to be affected in the same way in the European community. When the Court passes judgment on an individual plaintiff, the judgment is guidance concerning the treatment of anyone involved in similar situations. How about the other civil–political rights? (Waldron, 1993, pp. 351–2). However, this example does not show that the right not to be tortured is non-excludable. All Europeans had already been granted the equal right not to be tortured when the Court addresses the torture case. However, such a right can in theory be granted only to some citizens (whites, or ethnic majorities e.g.) in a country. Others do not automatically stand to benefit as they would in the case of clean air. However, some third generation rights such as the right to culture also cannot be said to be non-excludable. Thus when authorities or a special class of members are granted the right to interpret the tradition or enforce certain customs, others (women, e.g. in the case of the Taliban’s ban on their schooling) do not automatically benefit. Such a right cannot be ‘collective’ in the sense of being non-exclusionary. From these considerations, one can conclude that, as far as a right is considered ‘collective’ because of its ‘non-excludability,’ this criterion does not help distinguish first generation rights from third generation rights. I suspect that it does not help distinguish first from second generation (socio-economic) rights either. When the right to subsistence is secured for the well-to-do, for example, the poor do not automatically benefit. ‘Collective rights’ as ‘communally constituted rights’ In this usage, ‘collective rights’ refers to those rights whose goods or benefits are available only in viable communities. For such a right to be possible, a certain community must exist and flourish. Such a community in this sense is required for excising such a right. It constitutes such a right. The right to culture, i.e. the right to pursue and benefit from cultural activities, such as using a language or practicing certain customs, can be understood as ‘collective’ in this sense. The goods that are made available through exercising this right (such as effective expression or

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communication through using local languages) can exist only if the relevant cultural or linguistic communities exist and function. Cultural communities are constituent of the cultural goods in that such communities are necessary preconditions for them. However, cultural communities are themselves products of the goods insofar as those goods help nourish and sustain the community. Yet, third generation rights are not unique in being communally constituted. Political participatory right, for example, is also communally constituted since the goods, the benefits, of exercising this right – public deliberation, equal participation in decision-making, representation of the governed, legitimacy and trust built into the process, and so on – require the existence and thriving of a cohesive, well-ordered, and cooperative political community. The right to free speech and expression, to be meaningful and effective, also requires a viable community where the freely expressed ideas can be comprehended and contested by members. ‘Collective rights’ as ‘associational prerequisite rights’ A fourth usage of ‘collective’ rights refers to rights that are germane to the development of non-governmental associations, groups, and communities. This understanding is perhaps the most subversive to the differentiation of types of human rights, such as ‘individual vs. collective’ and ‘classical vs. new generational,’ rights. Such classical liberal rights as the rights to free association, expression, assembly, thought and conscience, and the right to form independent workers’ unions, are all vital to protecting associations, groups, and communities against coercive state or societal forces. These rights are ‘collective’ rights in the sense that they enable persons to form and protect their groups and communities, and to pursue their collective interests. I discuss this point further later in this chapter. ‘Collective rights’ as ‘special membership rights’ In this usage, ‘collective rights’ refers to special protections, immunities, or privileges granted to specific people because of their membership in specific groups or communities. Special membership rights are granted to members only or come with membership in groups of various distinctions. Unless it concerns the community (or group) of humanity as a whole, membership in any other smaller groups define rights that are unequally and nonuniversally granted to all human beings, hence are special – partial or exclusive. Such rights can only be claimed by members in groups that

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are smaller than the human community. Cultural and indigenous rights can be understood as ‘collective’ in this sense. How can cultural and indigenous rights as special membership rights then be coherently understood as human rights? The only way is to view such rights as potentially granted to human beings, who have the capacity to claim. They are all human rights in this preliminary sense. They can be potentially granted to, exercised in a cultural community, and enjoyed by human beings. For example, one can coherently say, ‘Fatima has a cultural right to wear a headscarf’ (but not ‘Iran has a cultural right to enforce the headscarf’) or ‘The Tibetan people have a cultural right to speak the Tibetan language.’ It is Fatima or Sungchi and every person with special membership in a cultural community who have the rights to press for certain exemptions or privileges against the state and the larger society in which their communities exist. When the preservation of traditional practices requires state assistance, when the benefits of such practices are not available to non-members, they become exclusive privileges). Moreover, according to this view, Fatima has an equal set of membership rights as any other members in her community. Fatima has an equal say as any other members as to which membership rights, to what extent, in what manner, can be curtailed in the community. (Because of the human agency of cultural rights, some theorists are reluctant to consider it a collective right. (Donnelly, 2003, pp. 204–24)) However, understood in this way, special membership rights remain unequally and non-universally granted to all human beings. Special membership rights have a characteristic that equally granted human rights do not seem to share. Deprivation of a specific special membership right affects all members of the group. If Muslim schoolgirls are prohibited to wear headscarves in public schools in France, they are likely to be singled out for discrimination because of the negative portrayal of their practice – whether or not they personally endorse this custom.14 If taking time off for prayers during a workday is granted, all members of the Muslim religious community and they alone enjoy this particular privilege, though everyone has allowance to worship at other times or on other occasions – Jews, Christians, etc. (In comparison, in the US, ‘personal days’ are nondenominational and non-exclusive.) Yet, apparently, when free expression is prohibited, say, in a country by its government, then, all citizens and even non-citizens are affected, at least potentially (i.e. anyone traveling to that country would be subjected to the prohibition). Such a ban clearly disrespects humanity – in effect, if not intended, no special group of human beings are singled out for discrimination.

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One argument for special membership rights’ compatibility to equal and impartial human rights, I argue, is that unequal and partial rights (privileges and exemptions) for disadvantageously situated, unequally treated, persons can level the playing field so they could equally exercise impartial and universally granted human rights. To promote such an unequal treatment is, seemingly paradoxically, intended and seen as necessary for promoting and ensuring equal exercise of these other human rights by giving a head-start to those who are or can be unequally treated in society due to their cultural or indigenous group affiliations.15 Granting unequal treatment can thus be seen as a means to the end of equal exercise of other human rights. In comparison, women’s rights, which grant special privileges or immunities to women only, are similarly understood as compatible or integral to human rights. The reason that human rights must support such unequally granted, exclusive, rights is historical and specific. Precisely because women have been unequally treated and socially discriminated, they can be empowered and lifted to an equal footing as men in exercising their other human rights.16 In this aspect, cultural membership rights are similar to social group rights such as women’s rights, rights for gays and lesbians, and rights for indigenous peoples. They are claims made by or on behalf of individuals with membership in groups; a denial of such claims disadvantage members, or perpetrate historical mistreatment, such that they are unable to exercise their equal human rights. However, cultural membership rights also differ from these other social group rights. Cultural membership rights include claims to special protections, immunities, or privileges to members, e.g. claims to assistance in preserving certain language or traditional ways of life (though cultural rights also include claims to nondiscrimination and equal freedom, e.g. to display traditional symbols or worship one’s own gods). Women’s rights and gay rights are mainly about nondiscrimination and having equal opportunities, e.g. for work, education, health benefits, or marriage. Cultural membership rights differ from these social group membership rights in another significant aspect. While sex, sexual preferences, ethnicity, or skin color, may not be something that one could choose or alter, culture is (or should be) based on self-identification and voluntary affiliation. However, there are important exceptions: First, one cannot choose the heritage and traditions into which one is born.17 Second, members do not often have the freedom to choose to affiliate with cultures into which they were not born.

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However, one difference between the argument for certain social group rights as human rights and the argument for cultural rights as human rights is that, while some social group rights are granted on grounds of undoing past wrongs, one needs not assume past mistreatment or historical injustice against members of all cultural groups. One need only recognize that discrimination on the grounds of cultural membership undermines people’s ability to exercise their human rights on basis of equality. Not all special membership rights are automatically justified, in this argument, as compatible with or integral to human rights. There need to be specific historical arguments for a demand for special membership rights to be considered compatible or integral to human rights. The key to defending exclusive cultural membership rights as human rights lies in demonstrating that, without granting such rights, persons as members of cultural groups would be disadvantaged in exercising their equal human rights. I will elaborate this defense in the next section. ‘Special membership rights’ stand out, among the five conceptions of ‘collective’ rights described above, in drawing a meaningful and sufficient distinction between first and second/third generations rights. Thus such rights as children’s rights, women’s rights, cultural rights, and rights of indigenous peoples, can be understood in this view as ‘collective’. Equal and impartial rights for all human beings, regardless of their membership in any social and cultural or religious groups, are not ‘collective’ in this sense. Cultural rights can also be seen as ‘collective’ according to some of the other operating usages examined above. Protection of cultural rights requires social collaboration and positive actions; a cultural right, if granted in a society, is non-excludable to members of all cultural groups in the society. Cultural rights are communally constituted in that, without a viable or thriving cultural community, they cannot be meaningfully exercised; and the right to culture is essential or germane to the flourishing of cultural communities. However, these other usages would not sufficiently demarcate cultural rights from other human rights – which, according to these usages, are also ‘collective.’

Human rights to culture: an oxymoron? Sometimes, the reservation about the international recognition of ‘rights to culture’ as human rights stems from a fear. This is the fear that collective interest in cultural communities, once protected, will trump

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members’ civil–political liberty (individual) rights. This fear underpins the commonly held dichotomy of ‘collective (social–economic–cultural) vs. individual (civil–political) rights’. The Chinese government plays up this fear by claiming that securing ‘individual’ liberty rights would bring disorder and instability undermining efforts to secure ‘collective’ interest rights. It also asserts a ‘cultural right’ to maintain its own interpretation of human rights, i.e. human rights with ‘Chinese (Confucian cultural) characteristics,’ featuring emphases on the interest of family, society, or collectivity over that of the individual. This is of course a rather selective representation of the Confucian culture, denying its changes over time and heterogeneity within, where such emphases have undergone transformation and have been disputed by influential Confucian disciples and scholars. It is also rather odd since the communist state itself has claimed to protect dozens of ethnic minorities residing on its territory and has allowed Buddhists, Taoists, Muslims, and Christians to worship within official limits. In the broader debate about whether human rights apply to a culturally unique country like China, those arguing against universal human rights tend to refer to a Confucianized ‘Chinese culture’ as they claim that the Chinese should maintain their own cultural interpretation of or alternative to human rights. The millions who now practice Buddhism, Muslim, or Christianity in China today apparently defy such efforts to ‘Confucianize’ the population. Meanwhile, some Chinese liberal intellectuals and reformers blame the long Confucian dominance for the country’s lack of democratization and freedom. Not surprisingly, as this case demonstrates, parties with vested-interest tend to construct their own and others’ ‘cultural identities’ – the Chinese state is not alone. However, while Chinese liberal intellectuals and reformers find evoking cultural traditions suffocating, while Chinese Christians may find homegrown spirituality less appealing, they are only expressing their own beliefs and aspirations, identifying hence with one or another secular or religious tradition in the mosaic of Chinese culture. They exemplify the diversity and change in ideas and beliefs on the Chinese (political, moral) cultural landscape. To attend to intra-cultural diversity and change, and acknowledge inter-cultural convergence in this case is to take necessary caution to avoid selective, biased, or selfserving representation and manipulation of cultural identity. Relevant here are important ethical questions concerning culture, i.e. whether a government should determine what groups have ‘cultural rights’ or, in the Chinese case, what count as ‘the Chinese culture’ – and

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what are ‘Western pollutants’ or ‘evil cults’ or ‘separatists.’ Using its exclusive control of the power to impose its will on these matter, the Chinese government has jailed Tibetan Buddhists who recognize their own spiritual leader, the Dalai Lama, driven unofficial Christian churches underground, and persecuted practitioners of Falun Gong (a Buddhist sect) when it threatens to surpass the communist party’s popularity. The recent exponential rise of spiritual, artistic, and intellectual groups and activities, which may fill the void left by obsolete and sterile Chinese Communism, has met with heavy policing in religious gatherings, in cyber cafes, as well as crackdowns on the press and tight regulations on non-government organizations. In the broad understanding of culture I pursued in this book, these constricted areas of pursuits of the development and dissemination of informal knowledge also count as ‘cultural.’ According to this understanding, I also consider what historians have documented as the development of ideas (and efforts to incorporate then into practices), such as ‘people’s rights,’ ‘rulers’ responsibilities,’ and ‘personal freedom,’ as cultural developments even though a ‘liberal rights’ tradition may have never become mainstream or dominant. (de Bary (1983, 1998); Angel, 2002; Svensson, 2002) Such ideas and the practices motivated by them have become part of the informal knowledge inherited, embodied, and transmitted in the Chinese society.) However, to be aware of the often politically motivated construction of ‘cultural identity’ is not to deny the existence of cultural communities, no matter how they interpenetrate, change, and are internally heterogeneous. As pointed out in earlier discussions about cultural community a social group such as the Mayans in Guatemala or women in rural Turkey does not necessarily have one distinctive and all-encompassing culture; each may be a social context where hybrid, interpenetrating, competing bodies of moral, ethical, political ‘informal knowledge’ are inherited, embodied in customs, and socially transmitted and contested. It is thus, strictly speaking, problematic to refer to any social group or community, or a country or a historical society (China, e.g.), as a ‘culture.’18 A cultural community must be seen as an association of people, whose views, values, or sentiments are geo-politically or socially unbounded, contested, fluid, and possibly shared by persons from more than one ethnic group, religion, society, or region.19 This conception cautions us that, given our commonly used notions of ‘cultural community’ as a nation, an ethnic group, a religion, or a society, we must be aware that members do not necessarily share homogeneous beliefs (about, e.g. whether women are inferior or girls must not be schooled, disagreement of which normally exist inside cultures even though

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sexism may dominate). We must keep in mind that such beliefs change over time (some members may no longer believe in women’s inferiority and the reasons others gave in its defense may change). We must also allow that similar beliefs and ideas are found in other communities. In short, adopting the working concept of culture does not entail a denial of the existence of distinctive cultures and cultural communities. This recognition leaves open the question concerning cultural rights and their relationship with other (human) rights. International conventions now recognize cultural rights as human rights.20 The rights to culture, according to the international conventions,21 are rights to pursue and develop the culture(s) of a person by birth or by identity and to benefit from the fruits of and the communities associated with such pursuits and development. As we have seen, cultural rights understood as such are ‘collective’ in that they demand ‘social collaboration’ for their enjoyment. They are also ‘collective’ in that they are ‘non-excludable’ from being claimed and enjoyed by all human beings (given that all are somehow raised in, capable of participating in or identifying with, cultural communities). Moreover, they are ‘collective’ in that they are ‘communally constituted.’ However, being ‘collective’ in these manners does not sufficiently distinguish cultural rights from other human rights, particularly classic liberty rights. These other human rights are collective in some of these ways as well. In these cases, cultural rights, while being collective, do not raise any particular challenge to the compatibility and integrity of various human rights. To a refutation of liberty rights on the basis that they create instability and disorder and are thus detrimental to achieving ‘collective’ (cultural, social and economic) rights, such as the one given as the Chinese official line, one can then reply that liberty rights are just as ‘collective’ as these other rights. Violation of liberty rights also undermines social collaboration necessary for safeguarding members’ basic securities since liberty rights are also ‘non-excludable’ and ‘communally constituted.’ Additionally, liberty rights are ‘collective’ in ‘associational prerequisites’ for communities to pursue their conceptions of the good. However, cultural rights are sufficiently distinct from other (particularly civil–political liberty) human rights in that they are exclusively granted membership privileges. This may seem to challenge their compatibility with liberty rights and their integrity. Note briefly again that granting certain exclusive membership privileges may be justified by the reason that they are required for transmitting and practicing bodies of informal knowledge, including ‘know-how’ about safeguarding lives and basic

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securities, and for preserving and developing the community in which the transmission and practices are carried out and sustained, as I argue. Such privileges may include, e.g. taking time off from work to pray, speaking a local language, ways of educating the young or caring for the old, or practicing certain mind-body exercises in open space. I have suggested that we can meet the challenge posed by cultural rights (granted as exclusive membership privileges) to their compatibility with liberty rights in at least two ways. First, we can point out that cultural rights are granted to all human beings, though not everyone chooses to exercise them, given that all human beings often are or at least can be members of (diverse) cultures. They are likely to be raised in some culture, to be members of some cultural communities, and are capable of participating in and identifying with such communities. Cultural rights are thus universal or non-exclusive, even though they are claims to exclusive privileges and to protections of diverse beliefs and practices. Cultural rights allow a Tibetan to have the ‘privilege’ to access resources enabling her to practice Tibetan Buddhism or learn to speak the Tibetan language, but cultural rights allow every human being accesses to resources enabling them to practice their faiths and learn to speak their mother tongues. The contents of the privileges may be different and exclusive, but that all human beings must be granted such privileges is a non-exclusive claim. Secondly, certain classic liberty rights, i.e. rights to freedom to associate, assemble, expression, conscience and religion, are prerequisites, necessary if not sufficient conditions, to effective exercise of the right to culture. Without these liberty rights, one is vulnerable to violation of one’s right to have ‘exclusive’ privileges. Such privileges may be necessary for one to participate in the creativity and development of, and to benefit from, one’s culture. This is the consequentialist argument for the integrity of cultural rights with liberty rights. Thus perhaps learning such a rationale from their experiences, the persecuted Tibetan Buddhists, underground Christian churchgoers, and members of the banned Falun Gong in China have demanded from the Chinese state protection of their civil-political liberties. The government’s persecution and suppression have turned many of them into sympathizers and supporters of the Chinese human rights and pro-democracy movement. Members of the Falun Gong have organized the most effective and sustained campaigns against torture and arbitrary detention seen in PRC history. Pro-democracy activists and liberal intellectuals are among the most outspoken in the majority Han Chinese society to condemn discrimination, repression, and cultural destruction in these regions.

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Let me say something more about why cultural rights should be granted as exclusive membership rights. Certain safeguards from life’s standard threats – to basic human securities or freedom from physical assault and deprivation, for example – are developed and perceived as particularly suited under given conditions. They may have similar effects as what some human rights aim to achieve. Such communitydeveloped, particularly suited safeguards are desirable from the perspective of protecting human rights to life and basic securities.22 They may be more effective than unfamiliar or untested ones under particular conditions. Although certain communities may not have a concept of human rights as safeguards for human life and basic human securities, they may have developed other mechanisms to protect members against life’s typical perils. Where there are some functional mechanisms of safeguards, introducing new mechanisms may indeed be disruptive or redundant. This recognition is not, however, a rejection of the idea of human rights; rather, it is an acknowledgment that, under specific situations, alternative (traditional or community-developed), particularly suited safeguards might be more effective in achieving similar goals as those aimed by human rights. One example is practicing deep-breathing and stretching exercises taught in Falun Gong, the banned quasi-Buddhist sect in China. Some practitioners see the exercise regime as a way to help them strengthen their health and avoid having to pay skyrocketing medical bills. Under the specific circumstances (such as government cut of socialist healthcare, raising medical care costs, and dysfunctional public health system and so on), some practitioners may find no other viable options. Granting members of the Falun Gong ‘privileges’ to practice their exercises in open air in a public space, if such exercises seem beneficial or at least non-harmful, is compatible with the goal of health rights. Non-members may find such exercises to have no benefits, or on the contrary, have harmful effect on health. If cultural rights were protected, non-practitioners would be allowed to persuade the practitioners to change their beliefs, but not to use force to stop them or discriminate against them. The state would not be allowed to use the law (and law enforcement machines) to ban them and penalize them. If denying members certain privileges to pursue their practices, their community will be unable to survive; certain effective or particularly suited safeguards for life and basic securities, then, will not be developed or maintained and members will not be able to benefit from them. In such cases, granting members these ‘privileges’ is compatible with the objectives of protecting basic human rights.23

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In other cases, certain practices, though they may not directly produce safeguards for life and basic securities, are nonetheless instrumental to developing or sustaining such safeguards, or are simply un-harmful or somehow useful in improving the quality of life. Learning the local language (so that members can effectively communicate and participate in community collaborations necessary for safeguarding them from life’s typical threats) might be an example of the former, while wearing the Islamic headscarf (as a faith-based choice, not imposed by force or authority) is one of the latter. This argument for granting cultural rights as membership privileges does not assume that all cultural communities were or still are capable of developing or maintaining particularly suited safeguards. It need not deny that some of them are dysfunctional and some are dominated by self-serving authoritarian leaders or forces indifferent about or harmful to fellow members’ lives and basic human securities. This argument rules out granting privileges to members to pursue activities that violate fellow members’ (or non-members’) life and basic securities. If members of the Falun Gong sect were found to engage in activities violating members (or non-members’) rights to life and basic securities, e.g. physically forcing them not to seek medical care, or forcing them to set themselves on fire as an act of protest, such activities should not fall under the protection of ‘cultural rights.’ Likewise, cultural rights do not grant ‘privileges’ to leaders or powerful members of a Muslim community to force young women to undergo female circumcision. Granting ‘privileges’ to engage in such activities would give permission to some members to violate other members’ life or basic securities. Such ‘privileges’ would also contribute to violence (in this case, against women), animosity and fear, which tend to undermine the community, which may have developed other mechanisms of safeguards (such as education and assistance to the needy, provided in some mosques). Cultural rights, understood as exclusive membership rights to pursue practices that safeguard members’ lives and basic securities, or contribute to the development of such safeguards (or do not harm such safeguards), are two-pronged claims. They are, (1), claims by all members of a cultural community against the larger society or the state, and (2) claims by sub-groups and individuals within such a community against their own leaders and fellow members. Both claims define the substance (content) of the right to culture. Kymlicka has explored the tension between these claims. He refers to them respectively as the outward and inward claims.24 The outward claims against the larger society and the state are claims to privileges or

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exceptions not generally available to non-member citizens of the state. The inward claims against fellow members and community authorities hold them accountable for respecting individual members’ constitutional and human rights to which all citizens are entitled in a liberal democracy. Both types of claims are essential for the survival and flourishing of indigenous minority communities in a liberal society, according to Kymlicka. In my extended application, Muslims in the Sudan should have a justifiable claim against the Sudanese society and the state for protecting them in exercising their beliefs and customs. However, sub-groups in the Muslim community also have a justifiable claim against leaders and fellow members for protecting them in practicing their interpretations, unpopular perhaps, or developing less-known ideas in the Koran, e.g. those that oppose forcing girls to undergo genital cutting. Likewise, practitioners of the Falun Gong should justifiably have claims against the Chinese state for protecting them in practicing beliefs. But homosexuals and women practitioners of Falun Gong also have justifiable as claims against fellow members and leaders for protecting them from discrimination, e.g. on the basis that their interpretation of Falun Dafa, basic principles of the sect, particularly its principle of ‘tolerance,’ opposes sexual and gender discrimination. What this two-pronged view of cultural rights has argued for is that the fear for cultural rights to grant permission for intra-community repression and violation of basic human rights is unfounded. Even when cultural rights are granted as exclusive membership rights, sufficiently distinguishing them from other human rights, they still need grant such a permission – they can still be compatible with and integral to human rights. To further clarifications on such a compatibility and integrity, I now turn.

Prerequisites for viable communities Certain associational prerequisite rights, i.e. rights to freedom of association, expression, assembly, conscience, and religion, are necessary, if not sufficient, preconditions for the exercise and enjoyment of cultural rights. When these liberty rights are unprotected in the larger society and by the state, members of cultural communities (including but not limited to those that offer particularly suited safeguards) would not be able to pursue their cultural beliefs and practices, nor to preserve and develop their communities. In addition to associational prerequisite rights, there is a range of internationally recognized human rights that are beneficial to cultural

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diversity and integrity, including the right to enjoy the arts for the conservation, development and diffusion of culture, the protection of cultural heritage, the right to freedom for creative activity, the right to education and to non-discrimination, as well as the right to cultural participation. However, these additional rights demand for their own protection the protection of the associational prerequisite rights. Without protecting the prerequisite rights, the safeguards of these rights cannot be achieved. A cultural community may lose its vitality and viability, hence any particularly suited safeguards it may have developed, if it lacks the internal space needed for members to express opinions, revise old norms, reinterpret orthodoxies, and incorporate their experiences in all their diversity. Intra-group dynamics and critical self-reflection allow members to creatively interpret their traditions and adjust any time-honored safeguards to changing local and global circumstances.25 Critics cite the international human rights framework’s emphasis on rights of individual human beings as evidence of its cultural Western bias. They assume that traditional communities and indigenous peoples are more concerned about preserving their communities and ways of life, including their presumably non-legalistic traditional approaches to securing responsibilities and entitlements. Some cultural anthropologists also have argued that culture itself is a necessary good for the realization and development of humanity. One interpretation of this view is that persons can only find meaning and security by identifying with a culture and attaching to a cultural community. Any moral ideals, such as human rights, can only become meaningful and appealing if they are meaningful and desirable from the perspective of their culture(s).26 If we acknowledge that cultural community is a good for providing basic safeguards of life and that protecting cultural community from standard modern threats is thus desirable from the perspectives of members of such a community, then human rights must also be desirable from the same perspective since human rights provide similar safeguards – especially when cultural communities have declined. Human rights help to protect traditional communities and the indigenous safeguards that sustain them in the face of state coercion and unaccountable agencies in the modern world.27 This argument is a consequentialist one in that it defends certain associational prerequisite human rights because of their utility to members of cultural communities. Two ideas are crucial for further developing this argument, which I have only sketched: the ideas of ‘standard modern

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threats’ and basic liberty rights as ‘associational’ prerequisites to viable associations (including cultural or communities). ‘Standard modern threats’ The human rights theorist Jack Donnelly acknowledges that ‘traditional culture’ usually provides some protection for human dignity. He contends that human rights advocates should tap into this resource of ‘traditional checks.’ (Donnelly, 1989, p. 121) He defends human rights essentially along the following line of argument outlined above: [I]n the conditions of modern society human rights are a particularly appropriate mechanism to protect human dignity. The modern state, the modern economy, and associated ‘modern’ values tend to create communities of relatively autonomous individuals who lack the place and protections provided by traditional society. Moreover, regardless of the relative degree of individual autonomy, people today face the particularly threatening modern state and the especially fierce buffeting of the ever-changing modern economy. Rights held equally by all against the state – rights that both limit its legitimate range of actions and require positive protections against certain predictable economic, social, and political contingencies – are a seemingly natural and necessary response to typically modern threats to human dignity and basic human values, traditional and modern alike. (Donnelly, 1989, p. 122) Some of Donnelly’s underlying assumptions are debatable. The decline of traditional communities together with their traditional protective mechanisms does not mean the disappearance of communities. Alternative or renewed communities may offer new protective mechanisms. Civil society associations (churches, voluntary organizations, unions, professional associations, etc.) in modern societies, in theory at least, are not necessarily less capable of protecting their members against standard modern threats than their pre-modern counterparts. Moreover, the ‘typical modern threats to human dignity and basic human values,’ today include nonstate actors like multinational corporations and dominant forces inside a community. A human rights framework primarily holding the state accountable is no longer adequate. Donnelly makes the important observation that the sustainability and viability of local safeguards tend to be romanticized. Many of these communities had already declined, leaving their members powerless and vulnerable to abuses, naked against modern threats without any

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effective local safeguards to soften their blunt blow, even before human rights reached their shores. (Donnelly, 1989, pp. 118–19) However, Donnelly goes on to contend that, ‘[S]uch civil rights as freedom of conscience, speech, and association may be a bit more relative’ to culture than the right to life, because civil rights ‘assume the existence and positive evaluation of relatively autonomous individuals,’ while the right to life does not make such an assumption. He also says that these civil rights need not be protected in ‘strong, thriving traditional communities’ because ‘members of such a community simply will not have the desire or need to claim such civil rights.’ (Donnelly, 1989, p. 123) This could be true only if a ‘strong and thriving’ cultural community were homogenous in beliefs or opinions. If not, it is likely to have its internal dissent, contestation, and protest. In such a community, members in the minority will surely want such protection as the rights to free conscience and expression. If a ‘strong and thriving’ community has functioning traditional mechanisms to protect minorities or dissenters, then, instituting civil rights may indeed be redundant. But the presence of functioning local safeguards for civil rights does not mean the absence on the part of members of a ‘desire or need to claim’ safeguard rights, nor does it mean an objection to civil rights’ relevance. If traditional protections decline or prove ineffective, in such a case, these civil rights are applicable in principle to such a community. And they are not judged valid or invalid relative to the local culture. This argument for human rights from the perspective of members of vulnerable communities is thus historically contingent. Its validity depends on certain historical developments – the rise of the modern state and multinational actors in the globalization age have undermined traditional safeguards sustained in cultural and indigenous communities and made their members vulnerable to life’s standard modern threats. Standard modern threats refers to the specific threats to human life, security, and dignity posed by forces in the globalizing modern world, including the modern state, tyrannical social majorities, and unscrupulous multi-national corporations. Standard modern threats are on the rise and may replace conventional (local authoritarian or dominant social) threats as the main source of threats, as a by product of the rapid growth in the transportation across borders of goods, people, ideas, practices, and technology. If such threats had not become so imminent and urgent, threatening to overwhelm indigenous or traditional communities, such communities might have their own ways to protect the associational prerequisite rights. (However, as argued earlier, this does not mean the validity of

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these rights are culturally relative.) In pre-modern societies, traditional cultural customs and practices, as Donnelly notes, usually provide each person with a place in society and a certain amount of dignity and protection because ‘there usually are reciprocal bonds between rulers and ruled and between rich and poor.’ (Donnelly, 1989, p. 121) Such protections may have functioned sufficiently well to safeguard life and dignity in the absence of typical modern threats. In such a community, if it ever existed or could be recreated, it would be conceivable that life, security, and dignity could be safeguarded without introducing the institution of associational prerequisite rights. The penitentiary systems (as stipulated in Article 10(3) of the Universal Declaration of Human Rights), might be unnecessary, as Donnelly points out, since certain customary punishments might have been adopted on the basis of community consensus and these might serve the purpose fairly well in the specific context. Certain traditional, possibly non-legalistic, mechanisms perhaps once employed in pre-colonial African villages or Native American tribes, Islamic societies, or Confucian kinship clans, for example, might once have sufficed to protect members, or at least some of them. However, these mechanisms may have since declined and the communities that once sustained them may have been dying.28 The seemingly improbable affinity between cultural-indigenous communities and human rights is thus explained by the response of these communities to the particular threats posed in the modern world. The modern states, while claiming guardianship and representation for local traditions, have been one major source of rights violation of these communities. As Donnelly notes: Government officials denounce the corrosive individualism of Western values – while they line their pockets with the proceeds of massive corruption, drive imported luxury automobiles, and plan European or American vacations. Leaders sing the praises of traditional communities – while they wield arbitrary power antithetical to traditional values, pursue development policies and systematically undermine traditional communities, and replace traditional leaders with corrupt cronies and party hacks. (Donnelly, 1989, pp. 119–20) However, a diagnosis focusing on the modern states is no longer adequate. The standard threats since before the inception of the international before human rights framework half a century ago had mutated, or more precisely, found new collaborators. The initial framework of human rights and accountability inadequately anticipated the rise of

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multinational players in economic globalization and the ways they could inflict harm. For purpose of clarification, the more general notion of ‘standard threats,’ of which ‘standard modern threats’ is a sub-category, is used by Henry Shue to elucidate the concept of ‘moral rights.’ (Shue, 1980, p. 13) By ‘standard threats,’ Shue refers for ‘the more devastating and more common of life’s threats,’ including ‘loss of security and loss of subsistence.’ (Shue, 1980, pp. 18, 29–34) Such threats could conceivably rise in any societies at any given time. Donnelly’s ‘typical modern threats’ and what I refer to as ‘standard modern threats’ are the modern equivalent to Shue’s general term, ‘standard threats.’ Moreover, as mentioned above, Donnelly’s ‘typical modern threats’ is narrower than ‘standard modern threats.’ The former focuses on the threats posed by the modern state. In comparison, sometimes ‘standard modern threats’ emphasizes a wider range of heterogeneous, mutually re-enforcing, threats posed by both state and non-state forces.29 The new types of threats can be as coercive and as potent as those posed by the state. It is naïve to think that vulnerable communities can survive in the face of such threats relying solely on any safeguards. They need the protection of the international human rights framework against the power of states and multinational forces. ‘Associational prerequisites’ This crucial idea for developing the consequentialist argument for human rights from the perspective of members of vulnerable communities is inspired by the idea of ‘associationist social form’ of human life used by Rawls in his argument for international protection of basic liberal rights. (Rawls, 1999, p. 68) Rawls contends that the associationist form of human life, in which human beings cooperate in pursuit of their heterogeneous goods, requires viable associations or communities; and these associations and communities cannot survive or flourish if persons are not protected in their equal freedom of association, assembly, expression, and conscience. He concludes, What have come to be called human rights are recognized as necessary conditions of any system of social cooperation. When they are regularly violated, we have command by force, a slave system, and no cooperation of any kind. (Rawls, 1999, p. 68) Rawls is responding here to the communitarian critique of liberal rights on the ground that liberal rights conceive persons as first and foremost

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autonomous individuals, neglecting their ties in specific social and cultural communities. Rawls argues that certain liberal rights of individuals can be defended precisely because they are necessary for conducting and preserving social–cultural associations and socially cooperative forms of human life.30 Rawls tries to identify an alternative to the comprehensive liberal justification for rights, which assumes a conception of the person as free and equal and a conception of the good life as a life of freedom for its own sake. Rawls finds the ‘associationist’ form of life a more appropriate ground for liberal rights, one that applies in our world of diverse conceptions of the good and of personhood. The associationist social form of human life, Rawls suggests, can appeal to those who do not share the liberal conception of the good and its underlying conception of the person. In his earlier work, The Theory of Justice (1971), Rawls suggested this idea when he discussed how his theory of justice did not neglect the values of personal affection and friendship, meaningful work and social cooperation, and the pursuit of knowledge and the fashioning and contemplation of beautiful objects in associations and cultural communities. He contended that these prominent factors in persons’ rational plans could for the most part be advanced in a manner which justice would permit. (Rawls, 1971, p. 425) For Rawls, liberal justice and rights are committed to promoting these goods, wherein his conception of justice draws a measure of moral legitimacy. Rawls also argued that the human associational life and communities that would sustain such a life should have worth and deserve protection because it would be through the associational life that persons could achieve and perfect the human good characterized by the ‘Aristotelian principle,’ the view that human beings enjoyed the exercise of their realized capacities and this enjoyment would increase the more the capacity could be realized, or the greater its complexity. (Rawls, 1971, p. 426) A society that protects the associationist form of life and the communities, in which persons cooperate in their pursuit of various conceptions of the good, hence also safeguards its members in actualizing and perfecting their potential human capacities for the good. If Rawls is right about human life as having an ‘associationalist’ social form, a view which both the American Anthropological Association and communitarian philosophers as Sandel and MacIntyre would not reject, then, as Rawls argues, liberalism does not deny the moral significance of communities and liberal rights, especially what I refer to as ‘associational prerequisite rights,’ are desirable for protecting associations and communities. I now respond to a related claim that human rights function specifically as legal instruments; as such, they tend to homogenize locally

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well-suited traditional, presumably non-legalistic, safeguards; and they are therefore incompatible with traditional cultures that value congeniality and oppose confrontational litigation. I suggest that one can respond to critics along the following lines, though I will not be able to pursue them further than giving some examples: (1) a political or moral aversion to the legalistic approach is likely contested inside a cultural community. (2) The historical absence of legal institutions and practices in some societies, even if true, does not entail a cultural opposition to the legalistic approach of international human rights. And (3) the evolvement and change of views or sentiments toward the legalistic approach and indeed the development of the legalistic approach, e.g. in the ‘West,’ may be part of the changing ‘Western’ culture. Along the line of argument (1), one could illustrate that, for instance, even if one school of thought in the Chinese cultural traditions, e.g. Confucianism, argued not in favor of a legalistic approach, this does not mean that the Chinese culture is opposed or alien to it. Take one example, the school of Legalism, a contemporary rival of classical Confucianism, for instance, argued in its favor.31 Moreover, the Chinese cultural traditions have also radically departed from either classical Confucianism or Legalism. In today’s Chinese society, many have adopted the litigious approach to settling disputes over rights and responsibilities.32 Along the line of argument (2), one can demonstrate that, facing standard modern threats, those who have resorted to traditional (presumably non-litigious) venues may have had little success or have paid dearly. As in the cases of the Mayans in Guatemala, the rural women in Mexico, or Buddhist Falun Gong worshipers in China, and the Amazon villagers, people from traditional or indigenous groups may have learnt from their experiences that the international human rights framework and legal instruments are preferable tools for their struggle against their own governments, majorities in their own societies, or multinationals. Human rights particularly the associational prerequisite rights, can strengthen particularly suited safeguards (if any) developed in their own communities and they can carry on the functions these traditional devises could no longer perform. In this sense, one may contend, as the political scientist and China scholar Andrew Nathan has, when he comments on the historical journey of the idea of human rights in the Chinese political discourse, that … human rights principles are generated from within separate modern societies by the intrinsic needs of people living in them. If this is so, then these values’ validity is truly universal, in the sense that they

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have sprung up virtually everywhere because of their widespread applicability to the modern conditions. If the human rights idea had not already existed, then twentieth-century China would have had to invent it, to defend people whose traditionally rooted sense of human dignity came to be threatened by sweeping economic and social changes, and most of all, by the rise of the modern state.33 And more recently, the rise of multinational forces in the globalization era, one may add. Moreover, along the line of argument (3), one can demonstrate that the evolvement of legal orders in North America and Europe is a historical process, in which new systems of symbols and meanings become adopted. It is through these systems that structures of normative orders are formed, communicated, imposed, shared and reproduced. (Geertz, 1983) These have been processes of negotiations and contestations about the assignment of specific rights and obligations to specific individuals and groups. Groups or communities that strive to legitimize their moral political views, values, or ways of life, find it desirable to seek to play a role in shaping the normative legal order and to have input in formulating the orders, which are bound to represent and perpetuate specific interests, regulating patterns and methods of settling disputes. Just as such concepts as ‘property right’ and ‘legal person’ could be projected by law and systematically exclude some groups, those who seek to end such exclusion or uphold the ideal of equal representation must try to influence the legal norm-setting process in order to have their ideals symbolically represented. (R. Sieder and J. Witchell in Cowan et al., 2001, p. 203) This account explains why non-Western and historically marginalized groups have resorted to national or international legal systems as the appropriate vehicles for claiming, innovating, and contesting norms and demands. (Starr and Collier, 1989) As the example of the peace settlement brokered by the UN between the Mayan insurgent group and the Guatemala government demonstrates, human rights including indigenous rights have become resources for the Mayan indigenous people despite these rights’ legalistic approach. Throughout the world, human rights ‘are increasingly taken up and vernacularized in particular social contexts, often providing important leverage for opposition movements in their struggles to extract greater concessions from national states.’ (Sieder and Witchell in Cowan et al., 2001, p. 204) So far in this book, I have assumed that there are certain merits in the view, often dabbled by critics of human rights, that no one lives in a

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cultural vacuum and humanity cannot develop and manifest itself without culture, and that cultural communities offer members protection and a sense of meaning and dignity. However, as I demonstrate in Chapter 2, community ‘embeddedness’ does not mean an absence of personal autonomy. Still, if we accept the omnipresence of the culture factor and the embeddedness of human lives everywhere, we must also accept that the right to participate in the cultural life of human communities and to benefit from the fruits of cultural creativity and cultural development must also be recognized as rights of all human beings. In other words, as I argue in this chapter, the claim to protection of cultural rights is universal if all human beings universally seek actualization and expression of their humanity through their cultures, and if standard modern threats to the survival of cultural communities have become omnipotent and ubiquitous in the contemporary world. Specifically, in this chapter, I focus on developing the first cultural case for human rights against the objection that human rights are ‘individualistic’ and thus incompatible with and destructive of cultural communities, which value collective good. I question the assumption of human rights as ‘individualistic’ by demonstrating that common understandings of ‘collective rights’ do not meaningfully exclude classical liberal human rights. I argue that cultural rights (as well as some presumably collective social-economic rights) are not that different from other human rights in that they all demand social collaboration for their realization, for instance. Even when conceived as ‘special membership rights,’ which makes cultural rights sufficiently distinct from classic liberal rights because of the membership-only exclusivity, cultural rights are, I argue, compatible with and integral to these other human rights. To grant special protections to members of certain disadvantaged cultural communities helps safeguard their equal exercise of basic human rights if such communities have developed particularly suitable safeguards for members’ rights to life and basic securities. For members of such communities, I contend, the class of ‘associational prerequisite’ rights – civil–political liberty rights – is indispensable and desirable from their own perspectives for the survival and flourishing of their communities. This argument undercuts the ‘culture vs. human rights’ dichotomy by demonstrating their compatibility and mutual dependency.

5 Intolerant of Cultural Pluralism?

Human Rights are one window through which one particular culture envisages a just human order for its individuals … [S]hould we smash the windows and make the many portals a single gaping aperture … or should we enlarge the viewpoints as much as possible and … make people aware that there is … a plurality of windows? R. Panikkar1 The very core of cultural relativism is the social discipline that comes of respect for differences – of mutual respect. Emphasis on the worth of many ways of life, not one, is an affirmation of the values in each culture. Melville Herskovits (1973, p. 33) I now develop the second cultural case in defense of human rights against the objection that human rights are anti-pluralist (or monist), hegemonic, and intolerant.2 This will also be the second argument undermining the ‘culture vs. human rights’ dichotomy. I purport to show that the two ethical norms, tolerance and pluralism, are not in opposition to upholding human rights even though human rights are grounded in specific values and are intolerant of derogation of their fundamental principles. I proceed by challenging certain presuppositions of this objection about the norms of tolerance and pluralism. These include the presuppositions about their demands for generous permissibility and indiscriminate acceptance of diverse moral practices. I argue that the tolerance principle cannot be self-consistent if it is not intolerant of its own violation. I contend that major ethical defenses for moral pluralism do not permit this principle to be applied to 102

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achieving plurality for its own sake – or without any moral purpose. Consequently, the presumably ‘monist’ moral vision of an ethical regime like human rights and its intolerance of violations of its most fundamental principles do not in and of themselves invalidate such a regime. Inevitably, as immigrants put down roots in Europe and North America, citizens of these countries work, study, or vacation in developing countries, and refugees flee violent conflicts or devastating deprivation, they bring ideas, customs, and social organizations that may clash with those of the locals. Recent controversies over France’s ban on displaying religious symbols, like the Islamic headscarf, testify the deep uneasiness about multiculturalism. Supporters argue that the French Constitution enshrines secularism, which mandates inculcating in French youth an appreciation of secular republic values. Critics, however, find the ban discriminatory and in violation of religious freedom and principles of tolerance and multiculturalism.3 In Italy, immigrant families resort to unlicensed practices or send their daughters to home countries to undergo female genital cutting.4 Meanwhile, non-Western societies, e.g. India and Nepal, have embraced multiculturalism and political tolerance.5 Yet, the bloody decades in recent past have taught us, religious and ethnic groups do not co-inhabit in genuine harmony when domination and subjugation were maintained by fiat or terror, where tensions and frictions were suppressed, as in Iraq, the former Soviet republics, the former Yugoslavia. Ethnic violence, genocide, or civil war followed in these cases soon after the repressive political lid was lifted. (Gurr, 1993; Mansfield and Snyder, 1995; and Snyder and Walter, 1999) The idea of liberal constitutional rights and human rights may seem paradoxical. A moral and legal regime of such rights protects cultural pluralism by safeguarding equal rights to religious freedom, freedom of association, expression and conscience. But this regime upholds a specific set of values and it prohibits practices in violation of such rights. Human rights thus assume a monist value outlook.6 The suppositions that lurk behind the objection to the monist outlook of human rights, however, are problematic. In lodging this objection, one treats tolerance and cultural pluralism as normative (as opposed to ‘descriptive’) principles. One views them as the rivals to such norms as liberty and equality. One assumes that tolerance and pluralism are fundamental principles (or as fundamental as those of liberty and equality) such that moral judgments, standards, and policies ought to be governed by them or evaluated against them.

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I will discuss pluralism and tolerance separately, though, as it will become clear, they are related (yet distinct) ideas. Tolerance as a character trait or policy is desirable for effective implementation of pluralism; and pluralism, to be viable, demands tolerant institutions and citizens. Yet neither of them necessarily endorses the other nor depends on the other for validity. On the one hand, one could endorse pluralism without accepting tolerance. For example, one could accept pluralism as a good in and of itself without rejecting intolerance as a vice or always a bad policy. A person is not inconsistent if she is intolerant of anyone who opposes cultural pluralism. On the other hand, one could endorse tolerance of cultural difference as a virtue or always a good policy without accepting cultural pluralism. A person who believes one should tolerate different religions may consistently believe that diversity in religion is not an ultimate good or a requirement for the good society.

Pluralism with moral purpose By cultural pluralism, I refer to a type of normative moral pluralism. It is the position that it is desirable to protect cultural diversity in morality. Contemporary moral pluralism can be traced conceptually to, but has decidedly transcended, the philosophical tradition of metaphysical and epistemological pluralism which extends back to the Greeks. Contemporary moral pluralism attends to the diversity of moral practices and perspectives in the human world.7 Given our discussion of the nature and attributes of culture in Part I, cultural plurality must not be misunderstood as a multiplicity of monolithic, static, and mutually incommensurable bodies of inherited, traditionally embedded, and socially transmitted informal knowledge. Instead it must be understood as a multiplicity of evolving, interconnected, interpenetrating, and internally pluralistic bodies of such knowledge. This clarification, as we will see, has significant ramifications for assessing competing claims about cultural pluralism. Cultural pluralism is related to, hence can be easily confused with, cultural relativism. Isaiah Berlin drew attention to the distinction between the two positions. What many have referred to as ‘relativism,’ such as the view advanced by the German intellectual Herder, Berlin contends, is actually pluralism, i.e. ‘the conception that there are many different ends that men [and women] may seek and still be fully rational, fully men [or human], capable of understanding each other and sympathizing and deriving light from each other, as we derive it from reading Plato or the novels of medieval Japan – worlds, outlooks,

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very remote from our own.’ (Berlin, 1992, p. 11) A cultural pluralist is not necessarily a cultural relativist, though a relativist presupposes pluralism. Non-relativist pluralism, which Berlin defended, maintains that ‘[w]e are free to criticize the values of other cultures, to condemn them, but we cannot pretend not to understand them at all, or to regard them simply as subjective, the products of creatures in different circumstances with different tastes from our own, which do not speak to us at all.’ (Berlin, ibid., p. 11) The desirability of pluralist cultures cannot be derived from the view that culture or cultural community is intrinsically or instrumentally desirable. One could hold this view about culture (e.g. on the ground that culture provides the form in which human life develops and takes place, or on the ground that cultural community provides certain safeguards for life and dignity) without also accepting plurality of diverse cultures or communities as a good. One may at the same time believe that one particular culture or community is superior to all others (because, e.g. it provides the best form of human life or the most effective safeguards). The desirability or validity of cultural pluralism as a normative position, however, can be supported by the following arguments appealing to substantive value norms: the argument based on equality and the argument based on liberty or liberal choice. Argument based on equality Equality of treatment or opportunity to exercise equal rights is often, perhaps implicitly, the foundation of cultural pluralism. At the heart of cultural pluralism is the idea that diverse cultural views and practices must be granted equal recognition and respect. This idea is derived from the more general idea of equality. Equality-based argument for pluralism allows one to ease the tension between a commitment to protecting cultural diversity and a commitment to upholding the liberal value of equality as an overarching governing principle.8 To be consistent with this rationale for pluralism, equality-grounded pluralism is thus limited in its scope. It entails that the scope of permissible plurality is restricted to cultural practices that do not undermine equality. Equality-based cultural pluralism sets clear boundary to the scope of morally permissible diversity and multiplicity. Brian Barry has cautioned against blindness to such a boundary. (Barry, 2002) Barry worries that boundless multiculturalism undermines efforts for equity and redistribution, harming those the liberal equality reforms seek to help – minority groups or disadvantaged societies.

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Barry’s egalitarian critique of multiculturalism takes seriously the limits set upon the scope of plurality by the liberal principle of equality. In the case of the French ban on ostensible religious symbols in public schools, one may apply this line of argument to opposing the ban. One can cite the ban’s effect on perpetuating social discrimination against French Muslims by stigmatizing their religious practices. The French state, in legislating this ban, restricts French Muslim girls’ the equal freedom to practice their religion and denies them an equal respect, which may further their marginalization in French society. Those who oppose the ban on the ground of equality-based pluralism, however, must be aware of the limit of their argument. They cannot extend their argument to accommodating cultural practices that perpetuate inequality. To let stand the practice of wearing the headscarf, as some feminists argue, is to allow some parents and authorities in the Muslim community to force under-age girls to wear this symbol of women’s subjugation. One can justify equality of cultural groups’ right to practice their traditions without at the same time endorsing unequal treatment inside any of these groups of their own members. As discussed in the previous chapter, one must can require groups enjoying special membership cultural rights to allow their members to opt out of practices that infringe upon their equal rights and liberties guaranteed by the larger society’s constitution and laws. Thus, a woman who chooses not to wear the scarf must not be forced to do so by religious authorities. However, in the French case, the ban concerns under-age schoolgirls. Parents, as it is stipulated in the UDHR, have rights to decide their children’s religious upbringing and education. Even if the headscarf is for some a symbol of women’s unequal treatment, equality alone may not be sufficient to cancel out parents’ rights. It is also unclear whether permitting Muslim parents to pressure their daughters to wear headscarves offers any exclusive privileges since parents in general are already granted the ‘privilege’ of imposing their decisions on children. Meanwhile, the headscarf ban may prompt some Muslim parents to withdraw their children from public schools. This will possibly boost the burgeoning privately run Muslim schools. Such an exodus has serious repercussions for the French society’s efforts through its education system to promote equal citizenship and secular republicanism among its rapidly growing immigrant population. Students educated in Muslim (or other religious) schools may receive less instruction on secular liberal republican values (e.g. the instructions may leave out certain important events in history or the biology of human reproduction). Some parents would find no option but forgoing the economic benefit of public

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education, which would leave them disadvantaged. Alternatively, they may be forced (by state policy and economic hardship) to give up their choice for their children’s religious upbringing. These consequences must be considered in assessing the overall impact of such a legislative ban intended to promote equality. Argument based on liberty or liberal choice This is the argument that pluralist cultural traditions are a good for a liberal society for they provide real options and allow meaningful choices of ways of life by free and equal citizens. William Galston, for instance, argues that pluralism is intrinsic to the idea of liberty or freedom of persons to lead their own lives: Liberalism requires a robust though rebuttable presumption in favor of individuals and groups leading their livers as they see fit, within a broad range of legitimate variation, in accordance with their own understanding of what gives life meaning and value. (Galston, 2002, p. 3) This liberal choice based argument for pluralism is an elaboration of what Galston calls ‘the principle of expressive liberty.’ Kymlicka makes a similar argument defending protections for minority communities of indigenous nations within a liberal democratic society. He contends, ‘Freedom of choice, while central to a valuable life, is not the value which is centrally pursued in such a life.’ (Kymlicka, 1990, p. 210) A valuable life pursues meaningful relationships and worthy activities. Since (a) a valuable life must be the life freely chosen by the person who lives it, (b) such choices can only be possible when there are viable social or cultural communities that foster alternative meaningful relationships and worthy projects, and (c) the capacity of individuals to make meaningful choices depends on viable communities and practices, in which they develop such a capacity, therefore, pluralism, which requires protection of disadvantaged communities, are desirable.9 Preserving pluralist communities and supporting vulnerable minority communities are thus demanded by liberal choice, by liberties of the person, of conscience, expression, and association.10 This argument for pluralism also suggests clear limits to the permissible scope of diversity. Liberal citizens’ freedom of choice and other liberties demand that only those viable communities, practices, or ways of life that do not infringe upon these liberties are justified to have a legitimate place in a liberal society. Making the freedom of choice and liberties

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meaningful is a moral purpose of pluralism. When a community or a practice no longer presents a meaningful option, or worse, when it undermines members’ freedom of choice and other liberties, it loses the raison d’être for its protection by the liberal state. Because the liberal choice-based argument for pluralism entails clear limits to the scope of diversity and multiplicity, it may work in favor of the French ban. A cultural pluralism with the purpose of providing liberal citizens more viable options will not permit a community to deprive its female members’ liberty to make choices. If it turns out parents and community leaders’ decisions regarding underage schoolgirls’ religion and education undermine their development of the capacity to make choices, there may be reason, consistent with liberal choice-based argument for pluralism, to uphold the ban on headscarf in public schools and to require private religious schools to teach fundamentals of secular liberal republicanism. This argument for pluralism, again, does not recognize pluralism per se as an ultimate value – but rather a subordinate norm to that of liberal choice. There are of course other arguments favoring cultural pluralism than I could examine here. For instance, I have left out any metaphysical views favoring pluralism as a desirable state of being or ideal order of things in the universe. As mentioned above, I focus on the human world, more precisely on cultural plurality in morality. This is because I am interested here in what arguments used by multiculturalists or cultural pluralists in the debate about human rights are plausible. I assume the two substantive arguments examined above capture the main rationale for multiculturalism. This examination then undermines the criticism of liberal (human) rights for being anti-pluralist on the basis that they prohibit practices that violate their fundamental norms such as equality and liberty. Anyone who defends cultural pluralism on such grounds would contradict her own premises if she defends cultural practices that undermine such grounding norms. To be self-consistent, a given moral position, including moral pluralism, must oppose practices that violate its fundamental principles. However, I should at least take a quick look at the methodological and cognitive arguments in favor of pluralism. I believe they help illustrate pluralism’s subordinate or derivative nature. Let me give one example of each. Argument based on moral particularism This is a methodological argument. Moral particularism is the view that the relevant factors or reasons for determining whether an action is

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right vary in particular situations. As a result, an action can be right in one but wrong in another situation. There can thus be more than one morally relevant factor for assessing the rightness or wrongness of an action. General moral principle is not the only criterion.11 Particularisits thus permit plurality of moral judgments, not on the ground that pluralism is an intrinsic value, but that plurality can be an outcome of particularist moral reasoning. This argument corroborates Berlin’s observation that pluralism does not entail relativism. In each concrete moral situation, according to particularism, there is arguably always one and the only correct answer to the question what the right course of action is, though there may be more than one in different situations. When all relevant factors are specified, there is arguably only one correct answer to the question, for instance, whether torture is permissible in one specific context. For the particularist, the principle prohibiting torture is possibly only one of many morally relevant factors. But the principle itself does not become valid or invalid relative to the contexts – culture or society. An overall balance of the possibly different sets of relevant factors in different situations may produce different judgments about the permissibility of torture. To the extent the particularist may allow torture in some situations but not in others, she and the relativist have something in common. However, for the relativist, such judgments must differ from culture to culture. To the question whether torture is permissible under a particular situation, the relativist would insist that the answer be decided by standards found in different contexts – culture or society – regardless of the particular factors in each. For these considerations, despite the temptation, one must resist equating particularism to relativism.12 The particularist argument also grants a conditional permission for pluralism. For the particularist, pluralist judgments concerning, say, torture, is not in and of itself desirable, though it may be the outcome of a balanced weighing of relevant factors in various situations in which torture is in dispute. It is conceivable that, after carefully weighing all relevant factors in various situations, the judgment against torture may be valid in each. In this scenario, the particularist does not support torture in any of the situations – her reasoning does not permit plurality or diversity in moral judgments concerning torture. In the case of France’s ban on ostensible religious symbols in public schools, a particularist may find such a ban appropriate in one situation but not in another. She would urge us to consider more morally relevant factors than the principle of religious freedom or French secular republicanism. She sees neither of these principles as is sufficient for judging

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the rightness or wrongness of such a legislation. The particularist would consider it relevant to inquire whether wearing an ostensible religious symbol, such as the Muslim headscarf, in public schools erodes important secular republic values and institutions, or whether Muslim girls will necessarily be impeded in developing their capability for making choice as a consequence of the ban. One cannot make an appropriate assessment of the ban without investigating these and other relevant factors. If it turns out that a symbolic article of cloth is so significant for people identified with the relevant tradition, such that a ban would seriously harm or undermine the welfare of the affected group, then, the particularists, having weighed all other relevant factors, might oppose such a ban. However, the particularist may also support the ban if it is demonstrated that the display of such a symbol has (due to changing circumstances) become an affront, as some supporters of the ban claim, to the French society’s efforts to uphold liberal democracy. One changing condition might be that the events of September 11, 2001 and its aftermath (as well as the expanding immigrant Muslim population and existing anti-Semitic attitudes), have created rising tensions in France. Such tensions might have become dangerously inflammable that it might be necessary to ban the display of religious symbols. The particularist is not necessarily opposed to the ban merely on the ground of multiculturalism. Argument based on practical reason Rawls made this cognitive argument on the basis that we have to accept human cognitive limitations – the ‘burdens of reason.’ Such burdens are responsible for moral disagreements even if people are sufficiently informed and make the best possible judgments they could. Such a ‘reasonable pluralism’ is a human condition. Rawls argues that a just society ought to accommodate reasonable pluralism because it is a lesser (political) evil than coercing people into moral agreement, which has often meant the use of brute force. Given our bloody humane history of atrocities, violence, war, and repression, Rawls urges us, accepting reasonable pluralism is prudent – warranted by practical reasons. This argument is not readily adoptable to defending cultural pluralism. Rawls is concerned about disagreements between reasonable persons – between their deliberative, critically reflected moral judgments. Existing cultural or religious diversity can not always be characterized as reasoned or reasonable moral disagreements between reflective persons. Moral judgments formed on bases of habits or passions may fit this description even less comfortably. Rawls’ view suggests that such

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disagreements do not fall within ‘reasonable’ plurality, that a just liberal state is required to protect. This reading of Rawls leads to a rather strict scope for permissible cultural diversity. The just liberal state would not measure up to Rawls’ criterion if it protects diversity characterized by unreasonable pluralism. Such a constraint on acceptable cultural diversity in a just liberal society, however, is significantly relaxed under the just international order Rawls has elaborated later. (Rawls, 1999) There, Rawls seems to suggest that a much wider scope of moral and political differences between cultures and religions become acceptable. He seems to argue that, so long as countries do not engage in aggressive war or violate basic human rights, their different practices and perspective need not be reasonable in order to warrant being acceptable and tolerable by a just international order. Such a pragmatic approach to building a workable international order between liberal and non-liberal states, however, must be understood as one based on pluralism of political practices or styles of government, rather than pluralism of culture or religion, as Rawls and some commentators sometimes suggest. (See discussion in Chapter 1, pp. 5–6.) The reason is that cultural or religious boundaries do not fall along geo-political or sovereign boundaries (and often cut across them). This brief tour of selective arguments in favor of cultural pluralism suggests that pluralism as a plausible ethical norm has been premised on and limited by such norms as equality and liberty. It has also been provisionally supported by particularism and practical reasons. According to these arguments, a defensible pluralist position is a rather constrained yet principled moral position. A principled moral pluralism sets clear limits to acceptable scope of diversity and multiplicity of moral views or practices, be they cultural, religions, or political. Arguably, the fact that human rights have at their core a monistic moral vision defined by specific values is no reason for rejecting them from the pluralist’s perspective. Ethically defensible pluralism does not stand without the support of those same values such as equality or liberty.

The intolerance of toleration Some critics reject human rights on the ground that they are intolerant (because they prohibit practices that violate human rights standards). This rejection assumes that tolerance is a meta-ethical norm, against which human rights standards must be measured for ethical legitimacy. A related assumption about tolerance, which human rights proponents sometimes seem to share, is that tolerance means acceptance of the tolerated views or

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practices. By implication, unacceptable views or practices must not be tolerated. Some feminists, e.g. support the French legislation against ostensible religious symbols in public schools (or the ban on female genital cutting in some European countries) on the ground that such practices must not be tolerated because they are unacceptable and wrong – they symbolize and perpetuate women’s repression and subjugation. In everyday uses, ‘toleration’ sometimes does mean ‘acceptance,’ ‘indifference,’ or ‘making no judgment.’ In moral philosophy, however, ‘toleration’ has obtained specific meanings and significance. As an evaluative term, it approves of the disposition of restrained moral indignation. It prescribes a policy of patient forbearance in the presence of something that is disliked or disapproved of.13 Meanwhile, the related term ‘tolerance’ refers to a praiseworthy temperament or a virtue, though ‘intolerance’ is not necessarily a character defect or always a bad policy: it depends on what one is intolerant of.14 We may thus tentatively stipulate that, To tolerate x means to view x as being wrong, to disapprove of x, and to condemn x, yet to adopt a policy to put up with x; to be tolerant is to have developed the disposition of self-restraint while being morally indignant about x. In the following explication, I will focus on ‘to tolerate’ or ‘toleration’ as a policy. If it is a good policy, then, there is reason to advocate cultivating the disposition of ‘being tolerant.’ Such a disposition enhances the implementation of the policy of toleration. If to tolerate is, first, to disapprove of, and then, to put up with x, then the decision to ‘put up with’ is partially premised on ‘to disapprove of’ and partially on some other considerations. To condemn and not to put up with, i.e. to take action to forbid the expression of views or acts that one considers unacceptable is to step beyond the permissible bound of toleration. Note how we often draw distinction between toleration of moral views, of actions, and of persons. To tolerate a view, e.g. the belief about women’s inferiority is to have taken a side in judging such a belief as being wrong, yet at the same times to adopt the policy of putting up with the belief as it is expressed in speech or in action. To tolerate an action, e.g., making young women wear the headscarf, however, is to have judged that it does not cause others serious enough harm to be prohibited. In such a judgment, the fact that the action, let’s assume, is motivated or supported or is intended to symbolize wrong beliefs (e.g. about women’s inferiority) figures less prominently than the harm factor. When an action causes little or no harm to other persons,

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even though we may disapprove of it, we may, on balance, decide to put up with it. As we tolerate an action or a practice x, we have already judged that x does not cause seriously enough harm to others. In making this judgment, we appeal to a separate moral norm – that of harm reduction or harm prevention. We do not prohibit x even though we consider x or the beliefs involved (in motivating or justifying them) wrong. In such a case, we are not referring to ‘toleration’ alone in judging whether or not to put up with an action. This norm alone is inadequate in determining whether to put up with x. In this sense, the toleration principle is a subordinate or auxiliary principle. Its own validity or moral justification – when or where it is justified to tolerate an action – depends on or refers to other morel principles (such as the harm principle). Toleration of views and toleration of actions can be collapsed into one since the expression of a view constitutes a speech act. And such an act can likewise be assessed for any seriously harmful consequences. To tolerate a person, finally, is to have taken side in a dispute about the person’s view (about women’s inferiority), or act (prohibiting women from exercising equal political rights), to have judged such a view or act wrong, and yet to decide to put up with such a view or act of the person. In this sense, toleration of persons can also be collapsed into toleration of views (expressions, tastes) or actions. There are subtle yet important differences between several cognitive dispositions: acceptance (or endorsement), indifference (or neutrality), and toleration. Though acceptance in ordinary language does not mean agreement, it does assume that those who accept some view or somebody are in sufficient, if not complete, agreement with what they accept. If one is indifferent about a moral view, one has no principled objection to such a view, or at least one is not in any serious disagreement with it. The common misuse of ‘toleration’ to mean ‘indifference’ has to do with the historical evolvement of the notion of ‘toleration.’ In the history of religious persecution and colonialism in Europe, ‘toleration’ has evolved as the antonym of ‘persecution.’ And ‘persecution’ has always been associated with a moral wrong. However, ‘persecution’ does not exhaust the meaning of intolerance, a position often seen as the opposite of toleration. Morality governing personal lives in many traditions may have praised tolerance as a virtue and intolerance a moral defect – associated with arrogance, narrow-mindedness, and impatience. However, ‘intolerance’ defined as the logical opposite of tolerance is not necessarily a vice or character defect.15 If ‘not to tolerate x’ means ‘to condemn x but not put up with x,’ then, depending on what x is, ‘intoleration’ is relatively neutral in the moral assessment such a policy conveys. It is more neutral at least than ‘persecution.’ The policy of not

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tolerating an action can be ethically appropriate or inappropriate – it depends on the action in question. Not tolerating torture is generally appropriate, while wearing the Islamic headscarf may not be. The policy of intoleration has been clearly called for in order to stop the horrors and injustice in history and in the contemporary world. Meanwhile, to ‘persecute’ people for their acts or speech acts (whether involving torture or the headscarf) is arguably always wrong. This de-coupling of ‘intoleration’ from ‘persecution’ is crucial for demonstrating that the opposite of toleration, is not always a bad policy. In the classical liberal tradition of moral philosophy, ‘toleration’ is unambiguously value-laden and judgmental. Classical liberal thinkers like Locke and Mill viewed liberty the freedom to do good or morally neutral deeds, not the freedom to do evil. For classical liberal philosophers, the value of freedom of speech, worship, and movement, lies in the good or at least the ethically neutral substance enjoyed through the exercise of such freedom. Liberty understood as ‘the freedom to do good’ means that free people must be tolerated in their exercise of the freedom to pursue the good in ways they see fit. Toleration became, in this understanding, an intrinsic requirement of liberty. This understanding, of course, is inadequate unless it could specify how to deal with the problem of tolerating the exercise of liberty to do evil. Contemporary liberal philosophers continue wrestling with the issue of how to appropriately exercise toleration in a modern liberal society. Judith Shklar, for instance, drew a distinction between minor (‘ordinary’) from severe (‘first’) vices. ‘Ordinary’ vices include such things as hypocrisy, snobbery, and disloyalty. And the ‘first’ vices refer to misanthropy and cruelty and other traits that allow people to act atrociously against humanity and liberties essential to humanity. Shklar argued that citizens of liberal nations should tolerate – put up with (nonetheless condemn) – ‘ordinary’ vices, but they should fight to eliminate ‘first’ vices.16 History has taught us that toleration of ‘ordinary’ vices was an imperfect response but a necessary compromise for the purpose of eradicating ‘first’ vices. Shklar wrote: Liberal democracy is more than a set of political procedures. It is a culture of subcultures, a tradition of traditions, and an ethos of determined multiplicity. It puts enormous burdens of choice upon all of us, and it ought to be seen as very demanding. … The ordinary vices, at the very least, reveal what we have to contend with if we want to be fully aware of what we think we already know. (Shklar, 1984, p. 249)

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Shklar suggested that we view tolerance (and pluralism) as the requirements of fundamental liberal values – equal rights, freedom, and the protection of human lives and their pursuits of the good. A liberal constitutional regime, committed to toleration of diverse cultures and traditions, is not reduced to indifference or inability to act in the face of practices that are seriously harmful. Such a regime is not violating the principle of toleration even when it acts intolerantly toward such practices. It is acting on the imperative of preventing and reducing harm. In daily language usages, we can afford to ignore these subtle differences partly because we can pretty much tell what the speaker means with the aid of situational information we gather in the specific context. In moral discussions, we may not have the luxury to ignore subtle conceptual differences. Clarifying and articulating these evaluative terms is what a moral critique could offer. More importantly, conceptual differences (e.g. whether telling a lie is judged ‘tolerable’ or ‘unacceptable’ or ‘making no difference’) can have real impact on lives. In policy debates, then, equating toleration with either acceptance or indifference blinds us to important distinctions useful for assessing alternative courses of action. One common mistake those in the human rights debate make is precisely to collapse toleration into either acceptance or indifference. To sum up, toleration of a moral view or practice does not entail acceptance. Nor does toleration entail neutrality with regard to the truth or validity of such a view or practice. Toleration as a moral norm is by definition unambiguously value-laden and judgmental. It is also intolerant of its own violation. Being intolerant in ways discussed here, a moral regime of human rights is not necessarily objectionable. A policy of toleration, in order to be consistent with this plausible understanding comes with built-in stipulations about its limit. It must be intolerant of practices such as persecution of members with dissenting or unorthodox views in the very community that adopts it. Intolerance is not always an ethically bad policy. It is not always in violation of the ethical principle of toleration. This principle, to be consistent and coherent, must dictate policies of intoleration toward practices that violate the principle itself. When serious harm is caused by certain practices (whether or not they have a purported cultural basis), such as slavery, genocide, or torture, here the principle of toleration is sufficient to dictate policies that acquiesce with these practices. Policies toward such acts must be grounded on more than the tolerance principle alone. They must invoke other ethical norms such as reduction of harm to basic human security and subsistence. In cases involving less-than clearly serious harm, one must judge

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whether to put up with acts or speech acts after one investigates whether they would under given circumstances inflict serious harm by, e.g. inciting violence. In such cases, where serious harms are disputed, still, toleration is inadequate for guidance. For instance, in the case of female circumcision, its harms to various parties (young girls, families, the society) and at different stages of life (e.g. future benefits balanced against lifetime pains and health risks) are much disputed and differently weighed. Toleration alone, in a case like this, is a poor tool for addressing the question of whether the state or international law should ban such a practice. Such a question must be addressed with the aid of other ethical norms, such as democratic deliberation, the rule of law, equal (gender) respect and treatment, and freedom of expression and conscience as well as an investigation of the harms. The French legislation to ban ‘ostentatious’ religious symbols in public schools, for instance, would not be considered a breach of the principle of toleration if it can be satisfactorily shown that the alternative – permitting the display of such symbols – on balance does more harm than good. This would be a more plausible line of argument, if serious harm can be established, in favor of the ban than, say, arguing that the views expressed by the symbols or practices are wrong or untrue. Even if one finds these views wrong or untrue, the principle of toleration does not entail that they must be banned. The French government appeared intolerant when it defended expelling radical Islamic clerics on the ground that their apologetics for wife-beating, lapidation of moral offenders, and the subjugation of women was incompatible with French republican ideas of human rights and equality. The government would have had a stronger case if it had argued that the speech acts in question incited violence against women. Likewise, the banning of Holocaust denials could also be defended without breaching the toleration principle if its supporters could show – and the burden is upon them to show – that such speech acts have seriously harmful consequences, quite apart from whether the denials false or offensive to some. Clarifications on the normative ideals of toleration and cultural pluralism have implications for institutional reform. In countries where the constitutions remain committed to one religion (such as Pakistan’s constitution, which guarantees that Pakistani laws must not contradict Islam) or one ideology (such as the constitution of the People’s Republic of China, which still upholds Marxism, Maoism, and Deng Xiaoping’s thought as the ‘cardinal principles’), those who seek to end social injustice and repression against minority religions, cultural communities, or ethnic groups must seek to change the constitutions, establishing a rule

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of law. If these efforts fail, they must seek actions through international human rights mechanisms or could support from the international community. This is because under modern conditions of life – most importantly, the standard modern threats, political toleration and multiculturalism are possible only under a regime of human rights protection. Such a regime in some ways monist and intolerant, offers protection for cultural pluralism and religious tolerance in such cases. The response suggested in this chapter to the objection to human rights’ moral monism and intolerance challenges this objection’s underlying suppositions about pluralism and tolerance. These include the suppositions about a rather generously permissive scope of moral diversity and an indiscriminate acceptance of moral practices. By inference, human rights can be defended against this objection on the ground that, despite their monist moral vision and intolerance of their fundamental principles, they safeguard people of different beliefs and faiths from discrimination and unfair treatment by requiring states and international institutions to secure freedom of conscience, worship, assembly, association, and expression. Where these rights are effectively protected, the twin norms of pluralism and tolerance would also be respected and diverse cultures would flourish within a scope more generous than under a regime of disrespect for human rights. A regime of human rights is inherently a more tolerant and less partisan moral governance as compared to competing moral regimes that are fundamentally committed to particular religious, spiritual, ideological or metaphysical visions. This response further undermines the ‘culture vs. human rights’ dichotomy. The fact that a moral regime of human rights is intolerant of, say, slavery, genocide, or torture, is not necessarily a negation of its commitment to cultural pluralism and religious tolerance. Indeed, pluralism and tolerance, in their most plausible formulations, have resorted to the basic values of human security, freedom, and equality for their own justification. If human rights were to put up with violations of its most fundamental principles, they would be unprincipled, selfcontradictory, and defective in moral integrity.

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Part III Validating Rights: The View from Anywhere

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6 Cross-Cultural Via the Inter-Subjective

All peoples have believed in magic, in spells, in demons, in apparitions, in the influence of stars, and in hundreds of similar inanities. Might it not be the same with respect to what is just and unjust? Voltaire, ‘Le Philosophe Ignorant,’1 Intercommunication between cultures in time and space is only possible because what makes men human is common to them, and acts as a bridge between them Isaiah Berlin, ‘The Pursuit of the Ideal’ (1992, p. 11)

The return to the ordinary I have tried to explicate the implications of complex features of cultures on ethics (Part I) and, particularly, on human rights (Part II). I have made two cases undermining the ‘culture vs. human rights’ dichotomy, demonstrating their compatibility and inter-dependency. I now turn, in Part III, to matters concerning the normative justification of the universal validity of human rights (Chapters 6, 7, and 8) and their implementation in a realistic and fair manner (Chapter 9). I begin with an examination of the moral skeptic objection to human rights. Cultural moral skepticism is the view that there cannot be any cross-cultural standards to determine whether persons in different cultures can effectively communicate and non-arbitrarily evaluate their moral views. This view is essentially a type of normative meta-ethical relativism or cultural subjectivism. It stresses the lack of trans-cultural standard to determine the validity of ethical standards held by people in different cultures. So long as this is the case, this chapter can be read as an extension of the re-examination of cultural relativism in Chapter 3. 121

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It also carries on the efforts made in Part II to address ‘cultural’ objections to human rights. And it begins to address questions about the source of moral legitimacy of human rights. More importantly, this chapter paves the way to a constructivist approach to validating human rights, i.e. to infer, extrapolate, articulate, identify, ethical codes of conduct or standards of behaviors on the basis of certain basic human values. This approach is to be outlined in Chapter 7. In this chapter, I identify ‘internal realism’ as a plausible account of the inter-subjectivity (i.e. non-arbitrariness and cross-cultural validity) of presumably culturally incommensurable value claims. Such an account does not resort to metaphysical ‘objectivity’ or ‘truth standards.’ I identify and elaborate several simple tests for evaluating value claims. This approach will then be applied, in Chapter 7, to establishing non-arbitrariness or cross-cultural validity of the fundamental value claims grounding human rights. There is a familiar line of practical responses to cultural moral skeptic rejection to human rights. It can be outlined as the follows. The same globalization process that has accentuated the paradoxical features of cultures and made cultural boundaries porous has also transformed human rights.2 This idea has evolved beyond its origin in specific contexts – presumably the ‘West’ – though, as a modern achievement, human rights are ‘new to all cultures.’ (Ayton-Shenker, 1995) This transformation is assisted by a converging ‘concern for human suffering,’3 made possible partly by shortened distance, physical and virtual distance, between human beings. As Sissela Bok put it, ‘As the media disseminate images worldwide of atrocities from places such as Tiananmen Square, Kurdistan, Burma, Croatia, or Somalia, it becomes ever more difficult to maintain that the victims are somehow so culturally different from the viewing public that their plight cannot be evaluated from the outside.’ (Bok, 2002, p. 61) Consequently, even if the idea of human rights was initially more often parochially interpreted (e.g. as rights of white male property owners), such interpretations have been transcended and the idea has gained meanings that all members of the human community can now reasonably identify with and claim as part of their own heritage. This idea is now transformed into cultural subsistence – it is embodied in internationally recognized symbols and practices, taught and learnt in diverse communities. In a sense, whether the world is ready there has emerged a global ‘culture of human rights.’4 This emergence may not be inevitable in the sense of pre-determined cosmological order, but it is historically

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irreversible – in the sense that history cannot be erased and recreated. The permeation of the idea of human rights has fundamentally changed visions about how human beings should conduct themselves and treat each other. For many advocates, human rights envision a ‘realistic utopia,’ inspiring social and political reforms in many parts of the world. (Rawls, 1999, p. 11) This vision lays out the groundwork for a working project to build a framework of global ethical governance. Michael Ignatieff characterizes human rights as ‘the major article of faith of a secular culture that fears it believes in nothing else’ and ‘the lingua franca of global moral thought.’ (Ignatieff, 2001, p. 53) Certain traditional cultural communities and indigenous peoples may have been initially excluded from the process of codifying international standards. Nevertheless, many from these communities have come to identify with human rights as a meaningful expression of their own aspirations. They have recognized human rights as the instruments of empowerment in their own struggles against oppression, deprivation, marginalization, and injustice. Human rights have thus rallied grassroots and coalition groups advocating the rights of vulnerable persons in many non-Western societies.5 Non-governmental or indigenous groups, not Western governments, now spearhead the international efforts to elaborate the framework of international human rights and enhance implementation.6 In the absence of democratic world governance, which entails a lack of systematic popular checks and balances on powerful world organizations and states, these NGOs, constituents of an emerging international civil society, carry out some of the functions that citizens ought to perform in a democratic world. (Willetts, 1996) International human rights documents may have dodged matters of metaphysical or philosophical foundations.7 Yet leaders of religious and intellectual traditions seem to have found grounds for the idea of human rights within their own faiths or schools of thought, despite their diverging convictions and worldviews.8 According to the scholar of religions Hans Küng, all major world religions share moral rules that are congruent to basic human rights principles. These include rules such as ‘Do not kill,’ ‘Do not lie,’ ‘Do not steal,’ ‘Do not engage in fornication,’ and ‘Honor one’s parents and love one’s children.’9 At least in public pledges, world organizations and most states promise to safeguard human rights. They may have initially touted the idea in political rhetoric but, over time, due to their need to function in a changing world, have been forced to make some efforts at implementing it.10 Many countries have adopted the principles in their own

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constitutions. Governments are now accustomed to condemning rights violations in other countries – even as they violate these rights and reject international scrutiny as ‘interfering in [their] internal affairs!’11 Perpetrators typically deny violations of human rights rather than justify them as such.12 Even if they ‘claim moral justification for such conduct because of temporary exigent circumstances,’ as Henry Steiner has remarked, ‘they do not dispute what a full realization of the right would entail.’ (Steiner, 1988, p. 82) Alternatively, rights abusers defend their actions as necessary for protecting rights in the long run or for some greater good.13 Victims of atrocities are often de-humanized by perpetrators who then deny responsibilities for crimes against humanity. (Vested interest in avoiding punishment may be behind such denials, but they ironically confirm the publicly indisputable wrongness of human rights violations – even those who despise rights must speak the language and pretend to respect rights.)14 When violations of rights are condemned by almost all parties of various affiliations and standings at least in principle or in public, it does not make it gratuitous to reflect on the idea of human rights. After all, the rise of ‘a culture of human rights’ might be the work of dominant powers or politics of convenience, not the fruit of critical reflection, rational arguments, and persuasion of reason. As Voltaire discerned, one could object to a notion of justice based on general consensus because ‘the consent of people in all periods and all countries is no proof of truth.’15 Sissela Bok responds to this observation by differentiating between what may have been commonly accepted (for instance, slavery and subjugation of women in human history) and what is ‘necessary for human survival’ (thus such unjust practices as slavery and the mistreatment of women are clearly not). (Bok, 2002, p. 54) A general consensus based on the latter can be ‘proof of truth.’ The actual movement of human rights ideas, symbols, and practices across borders, even if a historical fact, as it is, does not in and of itself suffice in validating the universality of human rights, that is, validation in the full sense as philosophers understand it. The actual acceptance of human rights by many around the world does as the familiar line of responses to skeptics shows, offer a practical refutation to the claim that, due to cultural diversity, it is impossible or at least doubtful for the idea of human rights to become the framework of a global ethic. Though this refutation is perhaps theoretically unsatisfactory, the globalization of the ideal of human rights remains an unpleasant fact for cultural relativists and moral skeptics who doubt the possibility of establishing the universal (cross-cultural) validity of human rights. They can no longer deny the

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possibility of human rights’ cross-cultural appeal and allegiance, that is, without trying to explain away their actuality. Meanwhile, this movement has blessed (but also posed challenges to) moral universalists. One must however go beyond the practical response. To do so, let’s first inspect the cultural form of moral skepticism that there can be any objective (or culturally unbiased) standards for assessing substantive moral claims such as ‘All human beings have certain inviolable rights’ or ‘It is wrong to torture.’ The skeptics contend that, such substantive claims and the ethical or meta-ethical standards that must be used to determine their truth are dependent on, or relative to, the culture in which they are conceived and developed. When people in one culture believe ‘Torture is wrong’ and people in another believe ‘Torture is right or permissible,’ there cannot be any culturally unbiased standard to determine the correct or incorrect (true or untrue) answer to the question of who (which culture) is right. This is because there cannot be any trans-cultural, higher-order (above and beyond the realm of judgmentmaking by people steeped in one or another culture) ethical or metaethical standards to judge the correctness of the claims or the validity of such standards. Their truth status is indeterminable. The conceptual clarifications on ‘culture’ (Chapter 1) suggest a preliminary response to cultural form of moral skepticism. According to these clarifications, discrete cultures can be interconnected, interpenetrating, unbounded by geo-political or societal borders, evolving, and internally contentious. These clarifications make it conceivable that an originally locally-developed (whether in the West or East) moral culture like that of human rights can be transmitted cross-culturally and incorporated in the mosaic cultural fabrics of human communities in the contemporary world. For purpose of illustration, let’s label cultures in various countries or regions, such as China, France, East Asia, or Islamic societies, as C1, C2, C3, etc. keeping in mind their creolized or hybrid dynamics. Thus, for example, when we refer to the culture in contemporary China as the ‘Chinese culture,’ or C1, we must be aware that we are referring to a dynamic, internally contested, and time-specific, discourse. In this culture, modern Confucians, Taoists, Buddhists, Christians, Tibetans, Muslims, and secular Communists or liberal-democrats, who believe in x, or y or z, respectively, clash, compete, and influence each other. Accordingly, we must view cultures in the world, C (C1, C2, C3, etc.), more accurately as C (C1 (x, y, z, etc.), C2 (x, y, z, etc.) and C3 (x, y, z, etc.), and so on). To contend that the moral vision of human rights, x, can be incorporated and transmitted in a global ethical culture is, according

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to this understanding, to contend that x can become part of the contentious discourses in C1, C2, C3, etc. or that C(C1(x, y, z, etc.), C2(x, y, z, etc.), C3(x, y, z, etc.), etc.) can be a plausible description of the world’s cultural makeup. It is to contend that x can become a part of the informal moral knowledge transmitted and contested in C1, C2, C3, etc. where the Cs have porous boundaries and the competing moral visions, x, y, z, etc. change, clash, or consolidate, within each society and between them. Consequently, the validity of x, y, or z, cannot be said to be relative to standards found exclusively in C1 or C2 or C3. It is conceivable that x is judged right or true according to standards that are shared by persons in C1, C2, and C3. In each of these cultural contexts, there may be diverse, competing standards that overlap with those in other contexts. The possibility of cross-culturally acceptable and applicable standards is thus also an analytic possibility inherent in the nature of culture – in addition to having been proved a practical, historically realistic, possibility. Such a response relies on empirical facts about culture. Philosophers may still find little comfort in such an analytic response to cultural skepticism. They will keep probing how any genuine inter-personal communication is at all possible. They may contend that, perhaps, those who claim to share values across cultures are collectively mistaken about the validity of these values. But for philosophers who are thus inclined, cultural differences should be no worse (no better) than any other (political, socio-economic, educational, historical, psychological or ideological) obstacles to inter-personal communication. Any cultural obstacles would by no more impenetrable (or no less porous) than these other ordinary kinds of obstacles that persons have to overcome in their everyday communication. The collapse of cultural moral skepticism into ordinary moral skepticism does not dissolve the ordinary problem raised by moral skepticism, of course. Even though cultural differences do not constitute any more or less impenetrable divides than other differences between human beings, this does not mean that there is no impenetrable divides whatsoever between the subjective worlds of any two separate individuals. To the extent that inter-subjective communication continues to vex philosophers, the realistic possibility of cross-cultural communication will not ease their anxiety. For them, even if there are no problems of particularly cultural moral skepticism, there are still problems of ordinary moral skepticism. Though persons may not be prohibited by their cultural or any other differences from sharing ideas and standards, however, they may be collectively deceived or mistaken about the objective truth of

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their shared ideas or standards: since they may be biased by their human perspectives.

Between objectivity and subjectivity One must then go after ordinary moral skepticism. So we would not leave it unexamined for the purpose of defending universal human values and principles of human rights based on such values. How might then human rights and its fundamental value claim be defended against ordinary moral skepticism? Ordinary moral skepticism, to elaborate, is the position that there cannot be any way of knowing the objective truth of any moral value claims and truth standards without human (subjective) interferences; any assessment of the validity of such claims is relative to the standards developed or accepted by the human agents; any standards the human agents have developed or accepted are distorted by their cognitive limitations and parochial biases. Dworkin characterizes this position as the view that there is no ‘real’ or ‘objective’ or ‘absolute’ or ‘foundational’ or ‘fact of matter’ or ‘right answer’ truth about anything, that even our most confident convictions about what happened in the past or what the universe is made of or what we are or what is beautiful or who is wicked are just our convictions, just conventions, just ideology, just badges of power, just the rules of the language games we choose to play, just the product of our irrepressible disposition to deceive ourselves that we have discovered out there in some external, objective, timeless, mind-independent world what we have actually invented ourselves, out of instinct, imagination and culture. (Dworkin, 1996, p. 87) The trap that one is sometimes advised to avoid, while one tackles the problem of ordinary moral skepticism, is to retreat to an equally problematic position: metaphysical realism. Metaphysical realism assumes that there exists a deterministic way to ascertain the truth of moral value claims. For example, it supposes that such claims can be measured against the Law of Nature or the truth and truth standard out there, in the universe, independent of any human cognitive or interpretive distortion. A metaphysical realist would insist that, for instance, genocide is wrong because its wrongness corresponds to an objective state of affair, whether known or intuited by any human beings or not. Nussbaum

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characterizes metaphysical realism as the claim that our moral knowledge is ‘radically independent of our actual choices, our self-understandings, our hopes and loves and fears;’ this knowledge is ‘to be discovered by experts’ and delivered to us ‘as a correct account of the way things are.’ (Nussbaum, 1993, p. 206) The question is whether one has no option but embrace moral skepticism if one abandons metaphysical realism. Moral skepticism comes in different shades, so does realism. What we have identified in the above is known as external moral skepticism. It is possible not to embrace this shade of skepticism while one abandons metaphysical realism. There are other shades of skepticism that may not be as problematic as external skepticism. One is ‘internal’ skepticism, which is very close to the position known as ‘internal’ realism such that philosophers sometimes refer to them interchangeably. Internal realism is the view that substantive moral claims such as ‘Genocide is wrong’ can be evaluated according to standards that are ‘internal’ to the ordinary moral discourse, to the inter-subjective world of human reasoning. This view does not deny the contribution of human interpretation. Nussbaum refers to this position as ‘internalist essentialism,’ (Nussbaum, 1993, p. 207) which she applies to validating substantive moral claims about essential human functionings and human capabilities. Such substantive claims, she contends, are learnt from and validated by critical examinations of human experiences and by reflections of thoughtful men and women in many places and times – in their moral traditions. The internalist essentialist, according to Nussbaum, establishes essential human functioning by examining various forms of human life in human history. She may arrive at an initial list of such functioning in this way and then subject it to critical contestation. She can proceed, for instance, by taking away certain properties, X, Y, or Z (gender, sex, skin color, faiths, caste, and so on) that seem to differentiate people rather than characterizing their common functionings. She can then check to see what these lives now have in common. The exclusions and inclusions she makes can be challenged and contested on the ground of reflected human experiences. For instance, one may contest whether, indeed, a certain skin color makes people less human. As distinctive lives encounter and interact, such contestation is made possible and fruitful. It is through such encounters and interactions that we learn about what we have in common with those who otherwise look, act, talk or believe in unfamiliar ways.16 Other philosophers have referred to internal realism alternatively as ‘quasi-realism,’ ‘moral expressivism,’ or ‘metaethical minimalism.’ Blackburn, for instance, arguing with Alan Gibbard and a procession of

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philosophers,17 contends that when philosophers make claims about the objectivity or truth of their moral judgments, the references to mind-independent metaphysical state of affairs are actually references to reasons that can be given from within the enterprise of evaluating value propositions. (Blackburn, 1992, p. 4) Such references are repetitions, emphases, reaffirmations, and expressions of moral convictions and the standards against which the convictions are measured as valid. (Blackburn, 1992, pp. 172–73) Blackburn contends that ‘the theoretical temperature should remain the same whether we say “slavery is bad”, or “it is true that slavery is bad”, or “it is really true and corresponds to the world that slavery is bad”, or the like.’18 Instead of seeking meta-ethical, truth standard external to the realm of human reasoning to settle moral disagreements, Blackburn proposes, one can ascertain whether such disagreements are merely surface diversities. Disagreeing parties may actually, at a deeper level, share views about some core function that the diverse practices, which each side advocates, may perform. The core function of diverse practices is key to effective inter-subjective communication and evaluation of moral judgments or value propositions. The core function makes possible communication and cross-examination across social, cultural, ideological and other divides between individual human beings. For Blackburn, ‘there is no moral problem of relativism,’ though ‘there are particular problems of when to tolerate and when to oppose [moral views or practices], each issue has to be fought on its merits.’19 Blackburn’s quasi-realism suggests a plausible way to answer the question whether a moral judgment, say, ‘Genocide is wrong,’ is correct or true without making commitment to mind-independent facts in the universe. According to internal realists, any ‘external’ claims to such mind-independent ‘facts’ must also be subjected to evaluation by referring to reasons ‘internal’ to the enterprise of moral evaluation in the ordinary discourse that takes place in the human inter-subjective world. Dworkin has usefully illustrated this point. He demonstrates that moral propositions that make references to objectivity or truth, such as ‘It is true that genocide in Bosnia is wrong’ or ‘The judgment that genocide is wrong is objective,’ do not claim any second-order, meta-ethical, metaphysical position about things out there, ‘external’ to evaluative discourse in the human world. For example, ‘The judgment “genocide is wrong” is objective’ makes the substantive moral claim that genocide is, for good reasons, always wrong whatever any particular persons thought about it. (Dworkin, 1996, pp. 92, 98) One may proceed to evaluate this latter claim, which does not have the last words. One may, for instance, explain why

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genocide remains wrong despite approval or indifference by particular parties, for instance, by the perpetrators, or persons who had a conflict of interest with victims, or persons who generally lack the capacity to make sound judgments, and so on. One may also refer to states of affairs, such as the consequences of genocide, e.g. the pains and sufferings of victims and their families, which exist no matter what people thought about genocide. One may then proceed to argue why such consequences are undesirable. One’s arguments and further claims, of course, can be disputed and evaluated. But such a course of inquiries need not invoke the authority of ‘objective’ truth beyond the human world. Likewise, if one tries to judge which of two opposing moral judgments ‘Genocide in Rwanda is wrong’ and ‘Genocide in Rwanda is right’ is correct, the typical moral skeptic’s response that ‘There is no objectively correct (or incorrect) answer’ is not obviously the default answer. Even in making this third answer one actually presupposes additional substantive moral claims – at least in effect if not in intention. To resort to the ‘no objectively correct answer’ for an answer is in effect to take no side, which entails taking no action. It is to give some weight to such equivalent claim as, e.g. ‘The only thing that matters or has any inherent value is one’s own security or perhaps the security of those dear and near; genocide or no genocide in Rwanda, either way, does not threat or increase such a value.’ The effective equivalent to the skeptic’s answer can be more than one. The above claim is only one example of a plausible equivalent. The validity of such a claim, as Dworkin notes, is not apparent or by default. It ‘must be judged and evaluated in the same way as any other substantive moral claim.’ (Dworkin, 1996, p. 89) Hence we proceed in this way to assess the correctness or incorrectness of moral claims. [w]e must do the best we can: we must choose amongst the three substantive views on offer by asking which strikes us, after reflection and due thought, as more plausible than the others. And if none does, we must then settle for the true default view, which is not indeterminacy but uncertainty. (Dworkin, 1996, p. 135) Moral uncertainty does not entail moral indeterminacy. One may not be certain about whether to lie in a particular situation; but this does not mean that there is no way to determine whether telling lies is right or wrong in the given situation. It could be that our information, imagination, or ability to reflect, are inadequate. We defer to others who might be more imaginative or have better tools for reflection. And we keep

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searching for further information. For the time being, we leave our evaluative inquiry inconclusive. This uncertainty about how to conclude under given circumstances is not a permanent condition of impossibility to ever determine the conclusion. While its various advocates may disagree among themselves,20 internal realism suggests several procedures for assessing the validity of moral judgments or value claims through inter-subjective reflection in the normal moral discourse in the human world: 1. ‘Identifying effective equivalents’ 2. ‘Uncovering core function’ 3. ‘Ruling out corrupt judgment’ (This last one is not particularly associated with internal realism.) In the following sections, I illustrate how one may apply each of these procedures, especially, how one may apply them to verifying the proposed universal validity of the values upholding human rights.

Identifying effective equivalents In adopting this approach to evaluating a moral value claim we try to identify and then evaluate the equivalent moral claims that the moral skeptic’s ‘no-objectively-correct-answer’ response effectively amounts to or entails. Dworkin suggests that the equivalent substantive response to the skeptics’ response to indeterminacy do not have to be actually made or intended by the skeptics. It could be a logical possibility entailed by the indeterminacy response or a practical implication of claiming indeterminacy. (Dworkin, 1996, pp. 136–8) The effective equivalents to the skeptic’s claim to indeterminacy, as illustrated in the case of judging the morality of genocide, can be identified as a number of substantive moral claims. Among them, as illustrated above, is the claim that something else matters more than genocide. One can then evaluate the equivalent claims ‘by treating them as internal, substantive positions based, as firmly as any other, on positive theories or assumptions about the fundamental character of the [evaluative ethical] domain to which they belong.’ (Dworkin, 1996, p. 137) The key is to demonstrate that these claims cannot be ‘true by default:’ they need as much ethical defense by positive arguments as the realist’s claim that there is a correct or incorrect answer to the question, in our example, whether ‘genocide is wrong’ is objectively true.

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Before I elaborate how the skeptic’s indeterminacy claim about the fundamental value claim of human rights can be undermined in this manner, let me simply state this fundamental value claim for the sake of clarity. The idea of human rights contains a host of more or less abstract moral claims. They include such claims as ‘It is wrong to disrespect equal humanity in each and every person,’ ‘It is wrong to enslave any human being,’ or ‘It is wrong to deprive a person of basic subsistence.’ I will only state the most fundamental and abstract value claim, from which other claims can somehow be derived, or of which the others can be seen as elaborations. This is the claim that no human being should be allowed to sink below the minimal threshold of human life, where a life would be so deprived or harmed to be minimally good or dignified. This value claim states the lowest threshold conditions for a minimally decent or good human life. These conditions include basic physical security and basic subsistence, or the basic freedom from physical insecurity and from below subsistence-level existence. This fundamental value claim, ‘It is right (or good) to safeguard the essential necessities of a minimally decent human life,’ wil be referred to as the minimalist conception of human good or human dignity, i.e. the notion that the necessary conditions for a minimally good or dignified life are a common fundamental value. I will refer to it as ‘the minimalist value’ for short. Accordingly, we can now restate ‘external’ moral skepticism’s rejection to human rights in the following way: there is no objectively, universally, right or wrong answer to the question whether ‘It is right to safeguard the essential necessities of a minimally decent human life’ to say that this claim is true or objectively, universally, true is to make reference to some metaphysical, mind-independent, moral facts out there, to which this claim corresponds to; but there is no way for any human mind not to distort such facts. We can also restate the internal realist’s response accordintly to such a rejection: To claim there is no universally, objectively, right or wrong answer to the question whether the minimalist value claim is valid is to make, in effect, certain equivalent moral claims. For example, it is equivalent to, among other things, making the claim that ‘It does not matter whether people live below subsistence level or lack basic security; there are some other things (whatever these are) that matter more or are more important than safeguarding the essential necessities of minimally decent human life, and these more important things would be jeopardized if one gives any determinant answer to the question under consideration; to safeguard the essential necessities of life or not would make no difference to advancing or undermining these more important

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things.’ The internal realist contends that these are substantive moral value claims, and, as such, they must also be subjected to the same sort of evaluation that human rights’ minimalist value claim is subjected to. The moral skeptic’s objection to human rights is more likely to be an objection to a concrete judgment about a specific practice, policy, or view. Take for example the judgment, based on the minimalist value claim of human rights, disapproving widow burning. Widow burning is the custom, still practiced in some rural regions of India, of women committing suicide by leaping in their dead husbands’ funeral pyres and burning themselves to death.21 Those who do not accept the minimalist value may disagree with the human rights judgment about this practice. The moral skeptic, however, insists that there is no objectively correct or incorrect answer that would settle the disagreement. To respond, the internal realist points out that the skeptic’s answer is in effect equivalent to certain substantive moral claims. For instance, it is equivalent to claiming that ‘It does not matter whether or not women are pressured or allowed to burn themselves to death in this fashion; what matters is, for example, happiness or pleasure; in either case, happiness or pleasure in the universe or among India’s rural poor would be neither increased nor decreased.’ This substantive moral claim must be subjected to the same evaluation that ‘Widow burning is wrong’ or ‘Widow burning is right’ are subjected to. It is not true by default. Such an evaluation, the internal realists believe, can proceed in many ways and can reach determinant answers without resorting to the arbitration of objective truth or truth standard out there, in the universe, completely undistorted by human interference. For instance, one can evaluate ‘Burning a widow does not increase or decrease happiness’ by probing what one might assume about ‘happiness,’ or how such a state of affair might be measured or promoted. One can assess whether ‘happiness’ means the same thing for everybody, including Indian’s rural poor and especially the women. One does not simply accept any equivalent claims as the valid default answers to the question whether widow burning is permissible or impermissible. In pursuing this line of evaluative inquiry of competing claims, one benefits from consulting with psychologists or historians and experts of local societies (in this case, rural India). After due investigation and reflection, as thoroughly and reasonably as one can, one may learn a great deal about the particular practice, the contexts in which it has evolved, and the moral claims defending or rejecting it.22 One can, pursuing this path of reflective evaluation, reach determinant answers. For instance, one may find that a widow might have been raised to believe

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that she would be liable in the event of her husband’s death. She might then be tormented for the rest of her life. She might also be raised to believe that she could redeem and cleanse herself by sacrificing her life through this rite. Alternatively, a widow might see no other means of livelihood after her husband’s death. She might also see no other ways of public protest, than her own death in such a ritual, against her mistreatment or the mistreatment of women in general. She might even believe in the effectiveness of such an act of protest, which, according to local legends, unleashes her ghost upon her enemies. This line of inquiry may also uncover how surviving family members grieve over the loss of loved ones, what impact such a practice may have on young girls’ development of self-esteem and on women’s treatment in general. From time to time, one may be uncertain about some of these claims due to, for instance, lack of information. However, it is conceivable that one can conclude at some point, with determinacy, that on balance this practice does decrease overall happiness. One can then defend the judgment that ‘It is wrong to enforce widow burning or provide no options for widows’. One may disagree with the human rights judgment on widow burning on the basis of the value claim that a sense of pride or dignity identified with a cultural tradition, or a sense of piety in keeping with what one’s spirituality requires, is a higher good than safeguarding basic human security or reducing harm and suffering. The skeptic’s noobjectively-correct-answer response in this case may then be an effective equivalent to the claim that, ‘Since we don’t know what is objectively true about human dignity, pride, or piety, we must not ban widow burning or any other practices embodying a local sense of dignity, pride, or piety.’ A further value claim implicit in the disagreement with the human rights judgment is a claim to autonomy – a person’s capacity to choose and form their own conception of the good, in this case, a sense of pride or dignity. Autonomy is seen as a more important value than safeguarding basic human security or harm reduction (by prohibiting subjection of women to widow burning). The skeptic’s refusal to commit to any determinant judgment about widow burning is then one effective equivalent to the claim that it makes little difference to the promotion of autonomy if widow burning is banned or permitted. To respond, one can point out that all of these effective equivalents must be subjected to further ethical evaluation. For example, if widow burning is banned, a willing widow may not have the legal option to commit suicide by leaping into her husband’s pyre. This may be said

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to undermine her autonomy. But is she really ‘willing?’ Is her ‘autonomy undermined? Has she been exposed to viable options for leading a worthy life after her husband’s death? Are such options made available to women in the local communities? Are these women literate enough to know about or know how to explore such options? Have they had the equitable opportunity for schooling? If it is sufficiently demonstrated that properly educated women, with viable options to lead a worthy life, would still prefer ending their lives on their husbands’ pyres, one may conclude that these women may have made informed decisions. Under such conditions, banning the practice may limit the autonomy of these women.23 But the burden is on those who oppose the ban on such a ground to show that such conditions for autonomy have been met. This conclusion, however, shows that there can be a determinate – correct or incorrect – answer to the question whether widow burning is wrong.

Uncovering core functions This procedural approach is suggested by Blackburn. Instead of seeking external, meta-ethical, truth standard to validate moral value claims and settle moral disagreements, e.g. between those who judge widow burning wrong and those who judge it permissible in the example I use, Blackburn proposes that we ascertain whether underneath such surface diversities lies a shared notion of the core function that diverse practices are believed (by different persons) to perform. Widow burning, may be perceived as an effective way to protest mistreatment and injustice, thus performing the core function of dealing with grievances and voicing demands for social justice. To identify the core function of disputed practices (such as female genital cutting or honor killing) and evaluate the perceived effectiveness of these practices in performing the intended core functions is one way via which to arrive at a determinant answer to the question whether the disputed practices are right or wrong – and to undermine the moral skeptic’s no-right-answer claim. This approach can be adopted in an effort to dispel moral skepticism about the universal validity of the basic moral claim of human rights – the minimalist human value. If it can be demonstrated that different practices in various human communities are believed (perhaps erroneously) to perform the same functions of safeguarding the essential necessities of a minimally good or dignified human life, then, these

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functions can be said to be affirmed or valued in all these communities, and there can be a determinant answer to the question whether the claim to the minimalist value is universally valid. The course of evaluative inquiry is essentially this: Do one’s best to explain away (but not excuse or justify) any surface diversities in moral practices or judgments, particularly those that seem to present diversions from, contradictions or rejections to the minimalist value of human rights. (It is important as I argue in Chapter 2, to keep the distinction between explanation and excusing, or between understanding and justification, which some advocates for cultural sensitivity sometimes fail to draw. A crime that is fully explained or understood is no less a crime. The same applies to a moral wrong.) This procedure is based on the assumption that moral agents’ actions and judgments do not always indicate any deep convictions or basic moral instincts they may have. There can be many causes of such discrepancies. Individual actors may for whatever purposes and intents disregard their own deep convictions. They may misjudge the compatibility between their actions/judgments in specific instances and their basic values. One may have a weak will to stick to any moral guidance that one’s conscience dictates. The list of psychological and sociological explanations can go on. It suffices to say that there may not be any deep conviction or belief in values that have motivated persons to do what they did or make the judgments they made. According to the rationale of this functionalist response to skepticism about human rights’ value claim, the irrepressible and persistent differences in moral views and practices around the world may merely reflect surface diversities, not necessarily diversity in value. Different practices may be believed to be effective or appropriate for implementing a similar value. These practices may have been developed under very different circumstances at different times. They may have been indeed effective or appropriate there and then. People may also have been mistaken in believing that these practices are still effective or appropriate under current circumstances. These practices may have become obsolete, however, due to changed conditions. According to this explanation, the minimalist value of human rights is thus not necessarily rejected or contradicted by surface diversities. The reason is simple. Diverse forms of social cooperation may aim at improving the life conditions of cooperating members. These diverse forms of social cooperation can be judged for success or failure, effectiveness or ineffectiveness in improving lives. They can be appraised for their instrumental value for achieving the intended objectives.

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To apply this procedure, we inspect any perceived diversity carefully between a given judgment about certain practice (say, widow burning) and the human rights notion of the core function – safeguarding essential necessities of life – of basic human practices and social institutions. We proceed roughly by following these steps: (1) In the presence of any judgment approving some practice that is perceived a violation of or contradiction to the minimalist value, try to identify the functions the practice in question was intended or believed to perform. For instance, the judgment endorsing cutting off a person’s arm for theft may be based on the belief that such a punishment deters theft and hence reduces insecurity. The judgment permitting leaving the elderly to die in the wilderness may be based on assessment that it was the only way for others to survive the harsh conditions. Judgments supporting female genital cutting may be based on the belief that it is a necessary means to securing the future welfare of young women. In Saudi Arabia, some professional and educated women said that they only want women to have the rights to run business and get higher education, not the rights to vote, to free movement (which may request driving), or to choose whether to wear the veils. These particular claims do not necessarily clash with the objective of women’s equality. These women must be aware of the equality of men and women provisioned the Koran, but also of the tremendous political and religious obstacles to achieving equality in reality. In another example, in 1990, dozens of women took to the roads of Riyadh in their own cars to protest the ban on women driving. Their act met with a quick ban on women’s right to drive by the Saudi government, attempting to pacify powerful clergymen of fatwa, the fundamentalist Islamic sect in Saudi. It is plausible to argue that the women in our first example do not oppose the ultimate objective of women’s full emancipation, but they see women’s economic autonomy as the strategic inroad to achieving it. Finally, even some conservative religious leaders seem open to more participation and autonomy by women as long as they remain properly veiled and avoid improper mixing with men.24 One cannot conclude that what these religious leaders embrace as fundamentally important do not clash with the minimalist values of human rights. However, one can argue that certain practices consistent with human rights’ minimalist values may be acceptable from their perspective. (2) Compare the intended functions, once identified, to human rights’ notion of the core function – safeguarding essential necessities of a minimally decent life – and lay bare any discrepancies or contradictions between them. For example, one must inspect whether and how the intended core functions of the practices of letting the elderly die in

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the wilderness, or requiring women to be fully covered in public, are indeed fundamentally inconsistent with the minimalist value. As my examples show, some of the core functions are consistent. (3) Assess whether the particular practices are necessary and whether they can adequately or effectively perform the intended core functions under the specific circumstances. One can inspect whether forbidding women to mix with men other than their immediate family, requiring them to get permission from husbands or fathers for doing virtually everything, are necessary and effective under given conditions of life for achieving the intended functions such as protecting women’s security.25 In addition, (4) identify any viable alternatives – practices that may perform the intended functions more effectively or appropriately. Thus those who agree that the Prophet Mohammed had approved of women’s rights to engage in economic activities should also recognize the need to relax certain customs when, under given conditions, required by women’s free exercise of this economic right, such as the customs of full cover of their bodies and not mixing with men in public. James Rachel is perhaps the most articulate in elucidating this functionalist approach, if not exactly these steps. In arguing against the relativist’s denial of common human values and cross-cultural standard of moral evaluation, Rachel contends that, despite their seemingly radical differences from practices in our own society and of our own time, such customs as leaving the elderly to die in the wilderness and female infanticide might have been believed necessary for the sake of human survival under the specific circumstances. Customs that do not directly concern life and death issues, such as truth telling, may be intended to perform other functions indirectly beneficial for improving lives, such as facilitating communication and coordination in complex societies.26 On the other hand, Rachels contends, without assuming the value of human life, one would be unable to make sense of any forms of social cooperation or customary practices: How else could people have come to adopt the practices and institutions they have. Seeking cooperative, albeit particular and diverse forms of protection of minimally dignified human lives – harm reduction and welfare improvement – confirms the minimalist value rather than repudiates it. Such a basic value is thus consistent with the fact of persistent diversity in human practices and forms of social cooperation. They are diversities in human understandings about the best ways and means to protect and improve human lives.27 For the purpose of further illustration, consider two societies, where different practices are generally accepted as performing the function of paying due respect to the deceased. In one, a nomadic society, people

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moved seasonally in search of pasture and developed the customary practice of ‘heavenly burial.’ In the other, a primarily agricultural society, people settled along fertile valleys and river basins. They considered ‘earthly burial’ a fitting expression of this respect, performing the intended function. Here the differences in customs can be explained as influenced by differences in practical ways of life. Such different customs are consistent with the core function of paying respect for the deceased.28 This functionalist explanation of common human values despite differences in practices suggests one plausible understanding of customs. Customs embody inherited informal knowledge, including particular experiences about how to achieve or actualize basic values or conceptions of the good. A customary rule can be formulated into a moral maxim: ‘Act always in such and such a way so as to conform to, actualize, or express certain deep conception of the good or certain core function of human activities.’ A custom codifies the experience-informed view that, under given circumstances, certain basic value could be actualized or expressed if people always act in such and such a manner. A custom thus understood is not a permanent device, defying changes in practices when circumstances and experiences change. When such changes take place, certain customs may no longer serve the originally intended purposes. Reflective persons would recognize such changes and support reforming outdated customs. One way to be a sensitive critic of a foreign custom is to demonstrate its ineffectiveness in performing certain intended function. To point out that a custom is no longer effective under changed conditions is not insensitive to differences.29 The procedure of ‘uncovering core function’ does not produce a justification for practices that violate the minimalist value of human rights. It explains that such practices might have once been intended or believed (perhaps mistakenly) to perform certain core functions compatible to those prescribed by the minimalist value, such as safeguarding basic human security. Rachels may give the impression that this approach suffices in validating a certain human value claim when he replies rhetorically to those who cite traditional practices as evidence that ‘care for the young’ is not a universal human value: How could it be otherwise? How could any society survived without valuing care for the young? (Rachels, 1999) Those who seek to establish the universal validity of care for the young may find this unhelpful. Surely a society could survive while neglecting ‘undesirable’ or unfortunate children (and such societies have survived, sometimes even prosperously and stably). Such a society would be an abhorrent or failed society judging by the minimalist value of human rights, though its practice of neglecting

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‘undesirable’ or unfortunate children may be explained by a mis-judgment about means and ends. This procedure, when applied to explaining all sorts of perceived diversities from the minimalist value of human rights, helps reach a determinant answer to the question whether the minimalist value is universally valid in the human world. I am not going to spell out the details since doing so would require careful investigations and a great deal of empirical data, which would be beyond my expertise.

Ruling out corrupt judgments We can adopt this approach in conducting a pre-assessment as to whether a judgment should be taken seriously before one invests further energy in evaluating its validity. If one can successfully demonstrate that one or both of two opposing judgments are corrupt, then, one has reason not to proceed any further in assessing their validity. This approach practically undermines the ‘external’ moral skeptic’s claim that there cannot be a correct or incorrect answer to the question whether a substantive moral claim is valid. For example, one may call an end to the evaluative inquiry of ‘It is permissible to practice honor killing’ if one has good reasons to think that this moral claim is corrupt. One stops before one reaches any determinant answer whether this judgment is correct or incorrect. But the judgment about its corruption is a determinant answer. In defending the universal validity of the minimalist value of human rights against moral skeptics, if one can demonstrate that a contrary moral judgment (e.g. one that endorses genocide) is corrupt, one rules out the judgment as a serious challenge to the universal validity of the minimalist value. One affirms one’s reasons (whatever these are) for upholding such validity. Here, one does not arrive at a determinant answer to the question about the validity of human rights’ minimalist value. But one identifies good reasons for believing that the perceived challenge to the minimalist value is corrupt, hence not worth any further investigation of its validity. This procedure guides us in inspecting possible corruption of any given judgment, which, once established as valid, would undermine the universal validity of the minimalist value. Corruption can be caused by any of a number of corrupting factors (see Chapter 2, pp. 44–7). These factors include cognitive errors, defective capacity in making judgment, vested interest, and deficient sentiments. When the moral skeptic claims indeterminacy in evaluating judgments approving female infanticide or torture, for instance, indeterminacy in validating the minimalist value of human rights, which faults such practices, one can inquire

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whether these judgments are somehow corrupted by any of the corrupting factors. For instance, the judgments endorsing these practices may have used cognitively erroneous premises or outdated information (about the conditions of life such as a severe scarcity, about inability of females in hunting or gathering food, or about the effectiveness of abuse and humiliation in extracting useful information, etc.). The cognitive errors can then be brought to light. For instance, updated information may support the assessment that resources have become available for caring for infants; and that alternative moods of economic activities have become viable such that women are just as capable as men to provide for the family and community. Study data may show that abuses rarely lead to extraction of useful information and have other undesirable consequences. At this point, we can conclude that the judgments in question are based on inadequate or outdated information. They are flawed and unreliable for guiding moral decisions. We then decide not to take them seriously. They do not pose any challenge, as they may have seemed to, to reasoned beliefs about the universal validity of human rights’ minimalist value. We can also check a judgment for possible corruption due to a general inability of the person who made the judgment to form sound judgments. Alternatively, we can assess whether the person is biased due to his vested interest in this case, or one can assess whether the person is deficient in moral sentiments. Each of these cases of corruption can be investigated and verified. I will only provide one example of each of these possibilities of corruption here and leave readers to work out the details. A judgment is corrupt if it was made by somebody who has a track record of systematic failures to form sound judgments in even the simplest cases of everyday life about such mundane matters as telling night from day or family members from strangers. (Lichtenberg, 1994) If such a person judges that anyone who has brown hair and green eyes ought to be eliminated, or widows must be burnt, we would not take such judgments seriously. We would invest no more energy in evaluating whether they are valid – their validity is a foregone conclusion. We rule out such judgments expediently because we have reasons not to trust such a person for making sound judgment. If the person in question does not have a history of systematic failures to make sound judgment in simple cases, we may then ask whether she is adequately endowed in moral sentiments such that her moral judgments can be appropriately motivated. We inquire whether she might have been deprived of a upbringing which would have properly nurtured her potentials for moral sentiments, or whether her instincts or nurturing might have been stunted, such that she has been unable to feel the

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normal human sentiments, such as love for those who love her, grief for the loss of loved ones, or outrage at odious murder of innocents. When such a deprived or stunted person pronounces that ‘Killing fellow villagers with machetes in Rwanda is tasteful, joyous, and good,’ we have good reason to discount this judgment’s soundness because we have reason to question this person’s sentimental adequacy for forming valid moral judgments. Even if we are satisfied with a person’s endowment in moral sentiments, we may proceed to ask questions about any vested, exterior interests that might have distorted the judgment in question. Thus we may have reason to doubt that the soundness of the judgment ‘Widow burning is right’ if those who insist or advocate it see benefits in or stand to gain from women’s subjugation. We also have good reason to doubt that the judgment endorsing fighting a war to topple a brutal dictator presiding over an oil rich country was sound if we have strong evidence that those who make or support such a judgment have vested business interest in controlling that country’s oil wealth. Likewise, we have good reason to suspect self-serving interest when authoritarian governments defend the judgment that monopoly of power is legitimate. One needs to spell out a great deal more than I have in order to develop a robust ‘internal realist’ response to the moral skeptic’s rejection of the underlying values of human rights. I have only attempted to indicate some of the plausible moves one may make and demonstrate what it may take to respond effectively. This discussion, however, allows us to conclude that, in general, the lack of assured grasp of mindindependent standards for determining the truth or objectivity of value claims does not entail that such claims are nothing but the subjective, arbitrary, or irrational preferences or tastes of solitary individuals or persons trapped in their cultural biases. This discussion thus suggests that we can at least reasonably postulate the possibility of non-arbitrarily verifiable values, even if a metaphysical view or cultural perspective on human nature or the human good may not be actually shared by all in the human world. When it comes to the possibility of common human values underlying such ethical standards as human rights, it suffices to say that reasonably informed and reflective men and women, albeit of diverse backgrounds, can non-arbitrarily, inter-subjectively and hence cross-culturally, examine and verify these value claims. To recognize the possibility of common human values is thus no more than to acknowledge the possibility of their inter-subjective scrutiny, critique, and validation. To the elaboration of this approach as it is applied to the underlying value claims of human rights, I now turn.

7 From Human Values to Inherent Rights

We all ‘agreed’ about human rights, ‘provided no one asks us why.’ Jacques Maritain1

Ask us why we all agree Seeking to demonstrate the possibility of justifying human rights, I am aware of Jacques Maritain’s advice, but unpersuaded. Maritain, a philosopher himself, was involved in the drafting and consensus-building process which produced the Universal Declaration of Human Rights. He worried, that, if the drafters had probed the foundation of the agreement, they would have found no commonality there but only the void of a moral underpinning. He was concerned that this foundational approach would have undermined the agreement. Maritain might be right to discern little metaphysical or ideological alliance among the delegates to the drafting committee and among the state parties at the UN Assembly, which adopted the document. I will certainly not try to provide any historical or empirical account to prove otherwise. However, I will argue against moral skeptics by demonstrating that it is possible to provide a normative justification that is foundational and cross-culturally or inter-subjectively verifiable. In Chapter 6, I identified a few simple procedures for seeking intersubjective validity. I suggest that one can apply them to validating (a) claims to common human values – conceptions of the good and of the rights, or (b) claims, presumably made from particular cultural perspectives, which are said to contradict or to be incommensurable with claims to human values. These procedures allow us to approach determinant answers concerning their inter-subjective validity or non-arbitrariness. 143

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These tests amount to nothing more than the ordinary give-and-take of reasons such as ‘identifying moral equivalents,’ ‘establishing core functions,’ and ‘ruling out corrupt judgments.’ Thus, for example, presumably cultural claims such as ‘It is good for young girls, for securing their livelihood in adulthood, to undergo female circumcision,’ or ‘It is just, for maintaining order and stability needed for economic development, to suppress any public expression of political dissent,’ which are said to distract or contradict claims to human values, can be put to such tests. These claims are sometimes referred to as evidence that ‘non-Western’ cultures contradict or reject the proposed common human values such as prohibition against physical harm and freedom of expression. Such claims are sometimes said to demonstrate that other cultures simply have incommensurable values. However, such claims are very likely disputed, though with some acceptance, in the relevant communities. They may also find subscriptions in other communities that are considered not part of the culture. The very propositions (no harm principle or freedom of expression) that they are said to contradict or reject may also find acceptance within these communities. Incommensurability is not a problem as construed by the cultural relativists and skeptics. Communication, comparative critique and interpenetration between these various claims are possible since cultures are internally divided, with porous boundaries, mutually penetrable, and changing. There are no ‘cultural’ chasms so radical as to make it impossible for people in the different communities to critique, confirm or falsify the various value propositions. They can do this by, for instance, applying the simple procedures. But in so doing, their move beyond culture-to-culture communication. They engage in inter-subjective communication, as individual cognizing agents, with fellow members of their own community and outsiders. They subject the various value claims and their underlying, often implicit, supporting propositions to the ordinary kinds of contestation via the give-and-take of reasons for soundness or corruption. Thus, if one underlying supporting claim to female circumcision was that such a practice, by making girls desirable for marriage, secures a decent life for them with the social and economic necessities afforded by marriage, then, one may argue for certain compatibility between this supporting claim and the no-harm claim. One may then question whether the potential harms to women’s health actually undermine this underlying supporting claim or contradict its stated objective of caring for the future security of the young women. One may also question whether, under conditions in the modern world, this surgical procedure remains

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the only means for girls’ future securities in life. This reasoning can be undertaken by persons either inside or outside the very communities where this practice has continued. (The same tests can be performed on the claim that political suppression for economic stability is justified by cultural preferences. However, I doubt whether such a claim has any cultural authenticity and whether it can pass the test for uncorrupted judgment due to the vested political interest.) These sorts of cross-examination, inter-subjective and cross-cultural, suffice to undermine the claim that the support for such cultural practices in some societies contradicts claims to certain common human values presupposed by human rights and detracts their universal validity. For the sake of convenience, I will refer to them as the standard tests. In this chapter, before I proceed to show how certain basic human rights can be constructed on the basis of certain claims to human values, I emphasize that two steps can be taken to test the cross-cultural and inter-subjective validity of fundamental human rights: first, identifying the essential, fundamental value claims underlying and upholding human rights, as I have in Chapter 6; second, showing how these value claims are inter-subjectively valid, or not culturally arbitrary or biased as I elaborate here. The first step (as already taken in Chapter 6, p. 132) simply consists in identifying the most fundamental value claims underlying human rights, essential for making the rights demands. I expand the minimalist value here into two claims: (1) an appraisal of the lowest threshold of essential necessities for a minimally good or dignified human life, below which no human being should be subjected or allowed to sink; and (2) a further appraisal, implicit in (1), that all human beings, despite their social, economic, political, religious or cultural identities or status, must be equally accorded the threshold necessities for a minimally good or dignified life. These two claims are the necessary presuppositions of the human rights demands and prohibitions. One could not formulate, make sense of, and justify these demands and prohibitions without assuming the validity of these claims. One reason we must specify (2), is that (1) alone would have been insufficient to give rise to and uphold even the most fundamental demands and prohibitions prescribed by human rights. I will continue referring to them as the minimalist values. Their universality, as I argue lies in a normative justifiability from anywhere in the contemporary human world, and does not depend on their actual acceptance by all human beings. The second step consists in arguing for the possibility of cross-cultural, inter-subjectively non-arbitrary, validation of the minimalist values by

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performing the standard tests. The reason that I may seem to set the goal so low – to aim for possibility of validation, rather than an outright proof of validity – is that my expressive purpose here is undermining the cultural moral skeptic claim that human rights are grounded in biased cultural (presumably Western) values and therefore people from other cultures cannot possibly support human rights. It is important to note the modesty of the goal set for the second step. It is also important to note its ambition to go beyond actual (historical or empirical) universality in acceptance of the minimalist values. The second step does not aim to show that people of diverse cultural backgrounds actually do appreciate the minimalist values, or that some traditions or texts or wise men in the world’s diverse cultures have accepted or defended them. Recognizing the modesty and the ambition of this undertaking is crucial to addressing one anticipated criticism of identifying the two claims as the fundamental values upholding human rights. Critics may point out that, for instance, it is reasonable to expect a broad recognition of (1), that is, the desirability of minimalist necessities for anyone to pursue their substantive ideas of the good or dignified life; however, those who recognize the desirability of (1) may not necessarily recognize that of (2) – that all persons, not just oneself or one’s own kind of people, must be accorded the minimalist necessities. Their own incongruent visions of the universe or transcendental orders are likely to interfere here, undermining their imagination of others and their acceptance of extending safeguards of basic necessities to others. One major source of human rights violations, critics may continue, has been precisely a rejection of (2), while many resorted to violence and arbitrary exercise of power to secure resources and safety for themselves and their own kin or clan or those in their intimate circles.2 It requires a leap of conscience, so to speak, from recognizing the value of essential necessities for pursuing one’s own vision of the good life to recognizing the value of these for all fellow human beings. To respond to this criticism, it is important to clarify that the objective of the second step is not to demonstrate that all people of different cultural backgrounds do actually accept these value claims. By pointing out that some people actually reject (2) or do not acted in accordance with (2), this criticism thus does not raise any serious problem to the proposition that (2) can be cross-culturally and inter-subjectively validated. Moreover, as I will argue, this leap can take place wherever people recognize certain practical reasons for accepting human co-dependency and the benefit of collaboration. The moral cultural skeptics and normative cultural relativists object to universal human values not on the ground that some (non-Western)

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people do not hold such values. (This is perhaps because even they realize that such an objection to the normative value claims would have little force.) Rather they object to them on the ground that it is impossible for people outside the culture of origin (of the human rights values) to appreciate and accept them. To reply to such an objection, it suffices in demonstrating that there are possibilities for such an appreciation and acceptance. I have demonstrated in Chapter 6 that we can approach determinant answers to questions concerning the validity of the minimalist values by conducting the standard tests, by engaging the ordinary give-and-take of reasons among persons of either the same or different cultural backgrounds. I will leave the full and extensive detail exercises for readers. One other reason that I am unable to detail them here is because of their demand for particular knowledge from the contexts, in which the specific rejections to, or discordance with minimalist values that are believed to occur. These could be outright rejections to (1) or (2) or both. These could also be views expressed by customary or conventional practices (such as cutting off the arms of a thief, or inflicting unbearable pain for the purpose of extracting confession) that are said to contradict the minimalist values. To test whether these constitute inter-subjectively reasonable rejections, or more reasonable alternatives, to the minimalist values, one is required to have extensive knowledge of the historical circumstances, the special supporting beliefs and so on. What I could have done is at best illustrations of these rather the sorts of reasoning that might go into these exercises, as I have done with regard to the cases of female circumcision and widow burning and female enfant abandonment in previous chapters. However, I will highlight some of the reasons and findings of these rather extensive and particularist exercises, which aim to establish the minimalist values’ normative validity in the full philosophical sense: (A) The minimalist values specify often-unstated presuppositions of substantive moral visions. The minimalist values, particularly (1), state the practical preconditions for pursuing substantive moral visions. For instance, the Buddhist vision that a good human life must be one devoted to contemplating the way of the universe or getting rid of desires for corporal enjoyment presupposes basic securities from physical assault and deprivations of basic subsistence. (Hence the imprisonment and torture of Tibetan Buddhist monks violate their basic human securities, jeopardizing any pursuits they might choose to realize their conception of the good life.) The conception that

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a good life in the human world must be one devoted to God – lived according to God’s will – also presupposes that such a life must be free from physical assault and from constant struggle to survive. (Hence police raids, arrests, and imprisonment of ‘underground’ Christians in China also violate the minimalist value of basic human security – a prerequisite for pursuing their Christian notion of the good.) The minimalist value claimed under (1) is in this sense compatible with substantive visions in spiritual traditions (in these cases, Tibetan Buddhism or Chinese ‘underground’ Christianity). Even if the necessities for a minimally good or dignified human life is valued in these cases in order to please a divine being or harmonize with the natural cycle of life in the universe, such visions grant value to life at least in its human form, during its passage through this world. And this world is shared with many others of different faiths under constraints of resources, where the actions or choices of each have consequences on others. It is reasonably conceivable that persons immersed in competing visions can be appealed by the proposition implicit in (2) that it is desirable to collaborate with other members in the human world, to recognize their minimalist demands in order to pursue their own substantive visions, and to accept certain common ethical rules accordingly – norms prescribing that one must never treat each other in specific ways, never do certain things to others. The minimalist values, at least (1), affirm a presupposition that, for instance, the Buddhists or Christians or those holding whatever visions of the human good or the ideal life must accept: presumably even a life devoted to the cultivation of virtues or destined for redemption must be lived above the lowest threshold conditions of the day-today in this world. Such a life must be secured from life’s fundamental threats in this world in order to be devoted to achieving what it is meant to achieve for the future, afterlife, or in another world. The minimalist values captured by (1) are thus analytic in that they are presumed by substantive conceptions. Whatever a substantively good or dignified human life is said to require, it cannot reasonably reject the enjoyment of basic human securities or basic freedoms from their infringement. No moral ideals or substantive conceptions of the good human life, religious or secular, can plausibly be premised on nihilism about human life – the denial of or disregard for human life or life’s essential necessities. Any substantive conceptions of the human good that reject the minimalist values would be self-contradictory and self-defeating. They would in effect endorse human insecurity, destruction, deprivation, or belowsubsistence existence, as what make their visions of the good human life possible! They would endorse, for example, that the good human life is

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the destruction of human lives or inflicting human suffering. With such an endorsement, such substantive conceptions should be considered moral claims to the human good! The minimalist values capture the prerequisites of at least those substantive notions of the human good that compete with human rights to govern global justice or ethical conduct. These competing conceptions include, for instance, the notion that a human life without basic liberties is undignified or no better than death, the sense of human dignity identified with appearing in public without shame, the notion of the good life as life devoted to God or to cleansing one’s materialist desires, or the notion that a just human world must maximize human happiness or pleasure. These competing notions of the human good or dignity all presuppose human life (as opposed to death) as worth living and appraise the minimal necessities for a life with dignity. They presuppose that basic security and subsistence are essential necessities for achieving the good or dignified life as they have conceived it, though they disagree about what else must be secured in order for a life to be substantively good or dignified. The minimalist values can be identified through inquiries by consulting the wisdoms and experiences of thoughtful men and women in diverse traditions, though I will not pursue this line of reflective historical investigations by engaging major spiritual and philosophical traditions. For example, as Nussbaum (1992) suggests, in arriving at her list of essential human functioning, one can initially consult well-reflected notions of the human good in moral traditions and compile a sort of consensus list of essential necessities for a minimally good life; one can then take away one item, as Nussbaum suggests, from such a list, say, basic security, and see whether a life lived below this condition (suffering from vulnerability to assault, rift with fear for being subjected to murder, torture, genocide, or slavery) can still be at least minimally good or dignified. One can also contest this minimal threshold by asking whether human conditions in the world are such that, for instance, a higher threshold might be realistic and necessary. One can pursue this line of inquiry by consulting historians and experts on moral cultural traditions, whose work may offer evidence that the minimalist values are compatible with competing substantive conceptions of the human good found in many moral traditions.3 There is no denial that unanimity in the minimalist values may never be achieved. There are always persons believing in the opposite claims. Some may hold the conviction that only the lives of those with certain colors of the eyes, hair, or skin have inherent worth and the safeguard of their essential necessities alone can be morally demanded. Nonetheless, I suspect, such value claims will not survive the standard tests in the

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first place. Such claims, though held by more than a few, are in most cases harboured as private feelings. The minimalist values, let me then further qualify, are prerequisites for pursuing pluralist substantive conceptions of the human good that are publicly endorsed or have been made explicit in lived traditions. These prerequisites may not be actually shared by everybody. They can be reasonably expected to appeal to all reflective persons, whatever their conceptions of the good might be, under congenial conditions for informed and critical reflection. (B) The minimalist values state very general or abstract moral claims. These values are indeed more substantive than ‘survival values.’ They stress the sense of not merely survival, but survival with a sense of minimal dignity, not merely one’s own survival, but survival with other co-habitants of the human world. Yet these are not at all substantive metaphysical values spelling out full requirements for the excellent or flourishing or happy human life. Rather, they capture the minimal requirements for human beings to be able to survive with minimal dignity and to have the necessities for pursuing their own sometimes incompatible ideals of the good and the right. In this sense, the minimalist values are to be understood not as systematic, comprehensive, substantive conceptions of the good and the right. They are to be understood as abstract, general conceptions of good and the right threshold prerequisites for pursuing substantive visions of human excellence or happiness and systematic codes of ethical conduct. This feature allows minimalist values to be compatible with diverse cultural traditions, religions, ideologies, or systems of metaphysics, as many theorists have pointed out. Substantive codes of moral conduct and traditional norms of behavior may at some general or abstract level cohere with the minimalist values. For example, the accepted customs of sending the elderly out to die in the wilderness and of female circumcision in some societies may be supported by the belief that these are necessary for securing a minimally decent survival for the rest of group in the former case, or for the future basic security of young girls in the latter case. (Such a belief might be misinformed, e.g. about the availability of survival goods or about securing girls’ future security through marriage at the expense of their health. The supported practices may also be in contradiction with the supporters’ own objective of dignified surviving.) One can demonstrate to supporters of these customs that the minimalist values are compatible with their own fundamental

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values (survival or basic security in life). (One should point out any cognitive or logical errors involved in accepting these customs – how they actually breach or depart from supporters’ own fundamental values – and argue for change. But that is a different point.) To fully appreciate the minimalism of these values, it is important to clarify that (1) captures the threshold conditions for a minimally good or dignified human life. These are distinct from threshold conditions for human life. A human life severely harmed, deprived of the essential necessities, is still human, but not minimally good or dignified in any meaningful way. Moral theories have clashed over both the essential necessities of human life and those of the good or dignified human life. I only invoke the latter threshold here. For the purpose of this inquiry, I believe it suffices if we defer to the life sciences for an understanding of human life as the life of Homo sapiens – differentiated from other genus of living species. However, a brief comparison of the minimalist values to ideas about the minimal conditions of those helps achieve clarity. Contemporary philosophers have proposed competing threshold conditions of humanity and of the human good. These differ in how high the thresholds must be set. One example of relatively high threshold is Nussbaum’s lists of essential conditions of humanity and of the good human life. (Another is the set of fundamental ‘duties and obligations’ that Hampshire believes to have been worked out in every society: ‘the obligations of love and friendship, of duties of benevolence, or at least of restraints against harm and destruction of life.’4) Nussbaum provides the lists to characterize ‘two distinct thresholds:’ ‘a threshold of capability to function, beneath which a life will be so impoverished that it will not be human at all, and a somewhat higher threshold, beneath which those characteristic functions are available in such a reduced way that although we may judge the form of life a human one, we will not think it a good human life.’ (Nussbaum, 1992, p. 221; my italics) Judging from Nussbaum’s evolving thoughts on the subject in her various writings, it is sometimes unclear which threshold she is discussing and she sometimes slips in and out of each liberally.5 In the article I rely on primarily, although the view expressed in which have since been slightly revised, Nussbaum makes ‘a first approximation’ to ‘what seems to be part of any life that we will count as a human life’ and she comes up with the following list of capabilities that define ‘the shape of human form of life:’ ‘mortality,’ bodily features including ‘hunger and thirst; the need for food and drink,’ ‘need for shelter,’ ‘sexual desire,’ and ‘mobility;’ ‘capacity to pleasure and pain,’ ‘cognitive

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capability: perceiving, imagining, thinking,’ ‘early infant development,’ ‘practical reason,’ ‘affiliation with other human beings,’ ‘relatedness to other species and to nature,’ ‘humor and play,’ and ‘separateness.’ (Nussbaum, 1992, pp. 216–21) This rather extensive and substantive list of threshold essentials of a human life sets up a rather high minimum. According to Nussbaum, a life that has all of these features is merely human, not yet ‘good.’ In comparison, she provides another list, one of ‘basic human functional capabilities,’ which describes the ‘good’ or ‘flourishing’ human life. This second list includes such items as ‘being able to use the five senses,’ ‘being able to live for and with others,’ or ‘being able to laugh, to play.’6 The reason I consider Nussbaum’s first list of threshold conditions of humanity too high is that it may not pass the ‘internal realist’ scrutiny, particularly the test that Nussbaum herself has suggested. In this test, one excludes various items from or includes others in a proposed list and see, in each case, whether the list could account for what is normally considered a minimally human life – normally, i.e. through consulting human experiences and reflected knowledge of ourselves and others in major traditions of all kinds of human societies. For instance, even if a person did not develop the capability to ‘relate to other species,’ or ‘for humor and play,’ or did not receive ‘early enfant development,’ she may still be considered by reflective and appropriately sentimental people in many societies as recognizably human. Indeed, millions of people throughout human history had lived with much less than the ‘minimal essentials’ of humanity prescribed by Nussbaum. Of course, such lives should have been considered violated or deprived and efforts should have been made to improve them. Just institutions should strive for higher thresholds than the status quo. But we have little trouble recognizing the ‘human shape’ of such violated or deprived lives around us. Nussbaum would not really want to refer to them as non-humans or sub-humans. And she has tried to distance from such a position. (Nussbaum, 2002) We would be reluctant to do so for practical and normative reasons. We may feel that dehumanizing those who are unfortunate to function or have the capabilities to function in the ways Nussbaum requires might give ammunition to those who justify treating these persons in inhumane and degrading ways. This is the normative consideration. The practical one is that we are trying to identify reasonably acceptable basic human values that can appeal broadly to people of diverse backgrounds. Our notion of humanity must thus be inclusive and the threshold conditions of humanity must be as low as possible – so as to appeal to people holding broader conceptions of humanity.

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One example of relatively high thresholds of the good human life is Henry Shue’s idea of ‘basic goods:’ ‘basic security,’ ‘basic subsistence,’ and ‘basic liberties.’ Shue contends that, below the thresholds of ‘basic goods,’ no ‘self-respecting’ human beings must be allowed to sink. (Shue, 1980) However, for the practical consideration of maximizing the appeal, Shue’s threshold of the human good is still too high. Specifically, ‘basic liberties’ as among Shue’s threshold conditions for a ‘selfrespecting’ (good or dignified) human life may diminish the appeal of such a basic conception of the human good. Shue defines ‘basic liberties’ as those that are ‘necessary’ for the enjoyment of other basic rights – rights to basic security and basic subsistence. (Shue, 1980, pp. 70–1) ‘Basic liberties’ are thus potentially extensive since among the necessary liberties for the enjoyment of basic security and subsistence rights are the freedom of physical movement, liberty for political participation, and many of the civil liberties such as freedom of expression and association. (Shue, 1980, pp. 74–82) For this reason, the minimalist values leave out some of these liberties. They include ‘basic freedom’ as one of the essential necessities of the minimally good or dignified human life. But ‘basic freedom’ is simply an emphasis of the other essential necessities: ‘basic security’ and ‘basic subsistence.’ ‘Basic freedom’ is restricted to freedoms from fear for physical insecurity and from want or deprivation of basic subsistence. This understanding of ‘basic freedom’ is more abstract, or less substantive, than Shue’s ‘basic liberties.’ By leaving out liberty of equal political participation and basic civil liberties, the minimalist value is not particularly associated to liberalism as a substantive moral ideal. Meanwhile, the ‘basic freedom’ from fear for physical insecurity and from deprivation of basic subsistence can capture an aspiration in most human struggles for justice, against repression and exploitation, throughout human history. ‘Basic freedom’ understood as such is more likely to appeal more broadly, beyond those who have already embraced liberalism. (C) The recognition of the minimalist values as essential and foundational to human rights is consistent with historical accounts of the actual adoption of international human rights and the broad support human rights have since generated and enjoyed. Key international human rights documents (the Universal Declaration of Human Rights and the two international rights covenants) can be

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read as an affirmation and specific action guides for actualizing these values. Indeed, when the framers drafted and the state parties to the UN General Assemblies adopted these documents, they presupposed and upheld these values as beyond further dispute. (Morsink, 1999) The two value claims I have formulated (1) capture the strong moral convictions that inspired and generated sufficient synergy in adopting the documents. They express the disapproval of an aversion to, ‘the great evils of human experiences:’ ‘murder and destruction of life, imprisonment, enslavement, starvation, poverty, physical pain and torture, homelessness and friendlessness.’ (Hampshire, 1989, p. 90) Claim (2) in particular captures the general recognition that these acts are so outrageous and plainly wrong such that no one should be subjected to them and no one should be permitted to do these things to fellow human beings at any time and anywhere. It recognizes that all human beings, despite their competing social, economic, and political interest, and diverse religious, cultural, or ideological visions, which had so often been resorted to as the justification for subjecting some persons to these horrifying treatments, must be accorded the same protections. These recognitions must have motivated the framers to articulate a set of enforceable codes of conduct – the prohibitions against slavery, genocide, torture, arbitrary imprisonment, and deprivation and the demands for aid victims and protect all equally from such assaults. Human rights have since proved more than instrumental benefits. People have found in human rights moral inspiration for building a better world rather than mere utility for advancing their immediate narrow interest. The minimalist values suggest a plausible account of what it is that has inspired the impressively broad-ranged loyalties, devotion, and commitments.7 International human rights documents that laid out the current operative framework give some clues to the minimalist values in identifying the moral foundation of human rights. One clue in the UDHR, for instance, is the statement about the basic value underlying the principles codified in this document: that each and every member of the human family has ‘inherent dignity’ and that the human person has ‘worth,’8 where the human person is defined minimally – by stripping away ‘distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’9 The notion of equal inherent ‘worth’ in each and every human person may be said to have been stated in the language of a particular substantive moral system (presumably Christian or Western Enlightenment humanist tradition). This is because the concepts of the ‘person’ or human ‘dignity’ may

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be said to be embedded in such a tradition.10 However, the minimalist values express these notions without drawing on concepts embedded in this or any other substantive belief system or tradition of thought – liberalism, Christianity, Islam, or Confucianism. The silence in the UDHR, divulging no further explication of the moral foundation for the ‘inherent dignity’ or ‘worth’ of the human person, allows one to fill in this void the minimalist values.11 More importantly, these values are reasonably plausible and sufficiently compatible with the contenders – substantive conceptions of the human good.

The leap of conscience One set of compelling reasons arguing for the validity of the minimalist values is practical. Anyone can recognize his or her own vulnerability to violation and deprivation. Anyone can thus find the value claim (1) appealing at least because of the utility (of implementing it) for pursuing his or her own objectives. However, not everybody shares the spiritual or theoretical belief that each and every human life has an inherent worth and is entitled to certain respect. Nevertheless, a pragmatic attraction can evolve into a genuine belief in, an experience-informed commitment to, the inherent worth of all fellow human beings as vulnerable creatures to assault and deprivation. In the process of seeking political solidarity and alliance with other similarly situated persons in order to gain rights protection for themselves, for instance, the pragmatic persons can identify with these others, whose minimal claim to the worth and dignity of their persons they may not have recognized before. They can identify with them as essentially needy creatures, vulnerable to standard modern threats. Their initially instrumental ‘overlapping consensus’ over the international instruments of human rights, or even over the value claim (1), may thus evolve into an appreciation of (2) – that all other human beings also have claims to the necessary essentials for a minimally good dignified life. Practical reasons play a prominent role in validating (2). Arguably, globalization can induce a growing recognition of human interconnectedness and the necessity for universal safeguards. For purpose of illustration, I elaborate this line of practical reasoning that reflective persons may engage across either cultural lines or within the same cultural community with divided conceptual, ideological, religious, or political commitments and loyalties, and across the boundaries of their subjective mental worlds. The practical reasons for the minimalist value captured by (2), if they had not always been compelling and articulated everywhere since antiquity, have emerged under the contemporary human conditions in

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the world. This is partly because historical experiences of slaughtering and bloodshed, often in the name of God, or a Utopia, or for advancing a superior race or greater good, sufficiently shocked people. This is also partly because changing circumstances have presented compelling reasons for people everywhere to see the desirability of accepting each other, acknowledging their co-dependency and the need for collaboration for the sake of achieving their often incongruent visions. One major change in human conditions is the challenges and opportunities presented by globalization. Globalization has brought down old walls dividing people and has erected new ones. It has facilitated transportation of people, goods, and ideas in exponential speed and power. As ‘previously isolated peoples are being brought together voluntarily and involuntarily,’ in the words of Diana Ayton-Shenker, ‘the resulting confluence of peoples and cultures is an increasingly global, multicultural world brimming with tension, confusion and conflict in the process of its adjustment to pluralism. This climate of change and acute vulnerability raises new challenges to our ongoing pursuit of universal human rights.’ (Ayton-Shenker, 1995) The challenge of globalization, however, goes with the new opportunities it opens up. As another observer put it, ‘the very blurring of borders and rise of transnational actors that facilitated the developments of a global human rights regime may also be generating new sources of human rights abuse. Even as they are more broadly articulated and accepted, the rights of individuals have come to depend ever more on a broad array of global actors and forces, from ministries to multinationals to missionaries.’ (Brysk, 2002, p. 1) All other things being unequal, today, villagers in the Amazon forest and farmers in rural China face standard modern threats to their basic security and livelihood. So do downsized workers in the American Midwest and in the industrial cities of northeast China. The threats are posed by forces inherent in the modern structures of power – the dominance of powerful modern states, the modern international regulatory and financial institutions, and multinational corporations. Inhabitants of far corners of the globe are united in vulnerability to structurally similar threats. For their empowerment and protection, it no longer suffices to hold local actors or national governments alone responsible. Effective safeguards of basic human security and subsistence demand holding multilateral actors and world bodies responsible for the disadvantaged and accountable for abuses. This may mean keeping oil drilling off the Amazon,12 lift heavy farm subsidies in wealthy countries, retain manufacturing jobs, or respect labor standards in countries with abundant cheap labor.13

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Allowing people, ideas, and goods move across borders helps foster a growing realization of the common destiny and an urgency for collaboration. This recognition centers on an awareness of what Peter Singer refers to as the ‘one-worldness’ – a unity in common problems, shared destiny, and necessity for global cooperation.14 This process also fosters a confidence in meeting these challenges through concerted efforts. Such a confidence grows as, for example, impressive international collaboration is built in the rapidly formed coalitions to respond to environmental threat to damage the Earth’s ozone layer. It took only a few years for governments to agree on cooperating and take action to reduce causes of ozone depletion. In comparison, the evolution of collaboration to improve international human rights has taken nearly a century. Still there is a significant shift, which is similar to what Bok has remarked, ‘To the extent that peoples and governments recognize that they cannot meet such a potent threat alone and that not only their descendants but they themselves are at ever-growing risk, negotiations move more rapidly and mutual aid comes to the perceived as imperative. … As Chernobyl and the AIDS epidemic have once again demonstrated, societies cannot wall themselves off: ‘lifeboat ethics’ makes less sense than ever.’ (Bok, 2002, pp. 63–4) The pressing necessity and a growing feasibility of global cooperation for meeting common standard threats to basic human security and subsistence are born of structurally convergent conditions of human existence that define the contemporary world. These conditions have created the circumstances of universal human rights conditions that make the recognition of shared human vulnerability, common standard threats, and minimalist universal prohibitions or demands, necessary and desirable. Rawls has used ‘circumstances of justice’ to characterize the ‘normal conditions [in a country or society] under which human cooperation is both possible and necessary.’ (Rawls, 1971, p. 126) One such condition is the ‘moderate scarcity’ of resources, where resources are not so abundant that schemes of cooperation would be simply superfluous, nor are they so harsh that ventures in cooperation must inevitably break down. There are good reasons for believing that global resources are now not too scarce to derail any efforts for just human cooperation, nor too abundant to make it superfluous. The modern world’s unprecedented wealth, thanks to advanced technology and institutional facilities, can meet the challenge of safeguarding basic human securities equitably – if there were the political will.15 However, the glaring reality of deprivation, repression, exploitation, and corruption in many regions of the world testifies to the non-superfluousness of global justice.

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The notion of the circumstances of universal human rights is not as substantive as a notion of, say, the circumstances of global justice (i.e. an explanation of Rawls’ ‘circumstances of justice’ to the globe). This more substantive notion would recognize, for instance, that globalization has ushered in a transnational society of societies, a human community of communities. It is forcing countries to form a joint system of, in Rawls’ words, ‘a cooperative venture for mutual advantage;’ this system, however, will be marked by ‘a conflict as well as an identity of interests;’ conflict of interest arises because individuals, their groups, and states ‘are not indifferent as to how the greater benefits produced by their collaboration are distributed, for in order to pursue their ends they each prefer a larger to a lesser share;’ a global ‘social cooperation makes possible a better life for all than any would have if each were to try to live solely by his own efforts,’ or if each society or community were to try to live by its own efforts. (Rawls, 1971, p. 126) Principles of global justice (assigning rights and obligations trans-nationally) are to guide the choices among competing ideals of social and political arrangements. The less-substantive notion of the circumstances of universal human rights only provides the practical reason for people to recognize certain minimalist ethical prohibitions and demands – that no one is allowed to violate anyone’s basic securities, deprive basic subsistence, or infringe upon basic freedom from such violation and deprivation. This minimalist idea of the right, upheld by the minimalist conception of the human good, gives rise to a small set of fundamental human rights. A full set of human rights, as I lay out in the next chapter, provides the substantive principles for governing global justice in the human community.16 In short, as human lives everywhere are made vulnerable to the ubiquitous standard modern threats, human beings everywhere can come to recognize the minimalist idea of the right and then the reason for adopting a regime of human rights for the sake of their own struggles against such threats.17 While globalization enables the consequences – harms and benefits – of actions of powerful transnational agents to transcend borders, it also help spread aspirations and experiences in how to hold these agents accountable through concerted international efforts made possibly also by globalization. While human rights as principles of ethical governance of global justice emerge as a reasonably ‘realistic utopia,’ it is also crucial that human rights are normatively justifiable in ways broadly appealing to people immersed in culturally and otherwise complicated relations. To the further elucidation of the possibility of such a justification on the basis of the minimalist values, I now turn.

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Constructing rights I proceed to demonstrate how, given that the minimalist values can be cross-culturally and inter-subjectively verified as reasonable hence valid, the few most fundamental human rights codifying these values can then be justified. This is the first stage of the justification for human rights. In Chapter 8, I demonstrate, at the second stage, how we can ground a host of additional rights in consequentialist considerations of their instrumentality for safeguarding rights justified at the first stage.18 I refer to rights validated at the first stage by the ‘foundationalist justification’ as ‘inherent rights,’ and those at the second stage by the ‘consequentialist justification’ as ‘extrinsic rights.’ These rights thus validated are moral (human) rights (as contrasted to declared or codified positivist human rights) because of their validation through moral reflection and critical reasoning. In Chapter 9, I outline an account of the duties and obligations justified by these moral rights as being realistic and fair. The first-stage involves showing how the claims to a few fundamental rights can be inferred, extrapolated, or derived from the propositions of the claims to the minimalist values, and how the appraisals of the desirability of certain goods and actions (or taboos) can be codified, or expressed and formulated in the language of ethical standards of behavior or principle of just institutions. I refer to these exercises as constructivist. Such an approach to justifying human rights assumes that the stipulations of rights (prohibitions and demands) are justifiable universally or inter-subjectively, if and only if the values underlying them are. Henry Richardson calls ‘constructive ethical pragmatism’ the view that ‘the right act is the one endorsed by the conception of the good best integrating principles of right within it.’ (Richardson, 1995, p. 129) This rationale for adopting such an approach, as H. L. A. Hart points out, is that, as long as some general notions about human nature and basic human necessities for survival are accepted, ‘there are certain rules of conduct which any social organization must contain if it is to be viable.’ (Hart, 1961, p. 186) Political theorists and philosophers have adopted various forms of the constructivist approach to justifying substantive ethical norms. In searching for a common standard of social justice, for example, Hampshire tries to articulate it from ‘the core of a thin notion of minimum procedural justice,’ which constitutes part of ‘the minimum common basis for a tolerable human life’ for people who may differ in their conceptions of the good life. (Hampshire, 1989, pp. 14, 32–33) Seeking to explicate widely shared and cross-culturally observed values, Bok

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postulates ‘a starting point’ for such a pursuit: ‘the biological survival needs that human beings share with a number of species: the needs for at least enough nourishment, oxygen, water, and shelter not to perish.’ (Bok, 2002, P. 52) Bok, with Hampshire and others, refers to this approach as a ‘minimalist ethics,’ which consults ‘minimalist values’ and ‘a rudimentary procedure’ for identifying common moral standards. (Bok, 2002, pp. 52, 54) The constructivist approach is strategic in that it aims to maximize the prospect of reasonable appeal of the ethical standards thus arrived at to those with possibly different perspectives. The constructivist approach is made well-known by Rawls’ theory of justice, which seeks to ground principles of justice for well-ordered liberal democratic societies in an Overlapping Consensus over ‘freestanding’ (non-metaphysical) conceptions of the good. Yet Rawls was only able to identify a very limited international consensus. (Rawls, 1999) This is partly due to certain conceptual problems with regard to whole cultures, traditions, or societies, as I discussed in Chapter 1 (pp. 5–6). He treated national or sovereign divides as if they encircled whole cultures, religious traditions, or philosophical outlooks. This prevented him from giving sufficient thought to diversity inside a sovereign state or society and from adequately recognizing similarities between traditions of culture, religion, or philosophy across nations or societies. Such internal diversification and transnational overlaps in ideas and values have significant implications for theories about the foundation and justification of ethical norms governing international justice. These theorists generally assume the construction of principles of justice or ethical norms is a process of building the idea of the right from conceptions of the good – historical traditions of religion, culture, metaphysics, or ideology. Philosophers often use ‘the conception of the good’ to refer to substantive, systematic or comprehensive, visions of excellent or flourishing or happy life and of accordingly organized social world, while they use ‘the idea of the right’ to refer to ethical codes of conduct, standards of right behavior, or principles of just institutions. It is questionable, however, whether historical traditions consist of only conceptions of the good, devoid of ideas of the right. If this assumption about historical traditions is incorrect, then, the perceived obstacle preventing people imbedded in these traditions from endorsing ‘the idea of the right’ e.g. principles of human rights (also democracy or liberal principles of justice) – is in this sense artificial. The minimalist idea of the right captured in value claim (2) – that whatever else one aspires to do in pursuing his visions of the good, must do or not do certain things to other human beings – can be said to have

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been developed as part of certain traditions or can appeal to people in these traditions, even if these traditions may have not developed the idea of human rights. For example, consider such conceptions of the right or, ethical codes of conduct as the ‘golden rule:’ ‘Do not do to others what you do not want others to do to you,’ or the Christian commandments: ‘Thou shall not kill’ and ‘Love your neighbor,’ or the Confucian Mandates from Haven: benevolence or love for all under haven (ren ai); or the Buddhist teaching: Harm no forms of life, etc. (As discussed in Chapter 3, moral or ethical claims are universalist in nature – intended to apply to judging all persons everywhere.) The confrontation or competition, if at all genuine, between human rights and other moral traditions (including those of Western origin such as Marxism, Communitarianism, post-modernism, or arguably some form of Utilitarianism) thus cannot exactly be characterized as confrontation or competition between an idea of the right and various conceptions of the good. Rather, they may also be between conceptions of the good or between ideas of the right. The constructive move in our case then does not grant ‘the good’ a historical priority over ‘the right.’ Rather, ‘the good’ and ‘the right’ both reside in the minimalist values and are considered both historically and conceptually prior to human rights. This modification of the constructivist approach is important for understanding the approach I take here. The task of validating human rights is less about transcending or soliciting consensus from diverse conceptions of the good, than about arguing for the reasonableness or validity of human rights vis-à-vis competing ideas of the right. If people from certain traditions find human rights reasonable, it may thus be because they find the underlying minimalist values, including the threshold idea of the right (the value chain (2)), persuasive and valid. Conversely, if they have adopted the minimalist values, they would find sufficient reasons for adopting a few fundamental human rights. The constructivist approach I take thus does not ‘construct’ ‘the right’ out of ‘the good’ alone. It constructs basic human rights from the minimalist values – a minimalist conception of the good, as stated by (1), and a threshold idea of the right, as stated by (2). A few fundamental human rights identify, articulate, stipulate, or codify the ethical demands of these minimalist values.19 In this fashion, we arrive at the few universal prohibitions and requirements for action, which are expressed in the language of right. Specifically, these include everyone’s right to life (to basic securities and subsistence) or to freedom from assault and deprivation ( liberties from genocide, slavery, torture, and below-subsistence existence). I refer to these rights as inherent rights. The goods that these rights demand to be safeguarded for

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all human beings are premised or entailed, or inherent in the minimalist values. Here, the justification for the inherent rights has the following format: X is justified if X prescribes what Y, independently justified value claims, demands. To argue that the inherent rights or, more generally, enforceable normative standards of behavior or just institutions, are justified is to contend that some independently justifiable value claims (the minimalist values in this case) demand doing what these rights prescribe. This constructivist approach is able to account for the strong sense of the normative or ‘deontic’ priority of ‘the right’ (ethical norms, in this case, the inherent rights) over ‘the good’ (pursuits of substantive moral visions). This is the sense that the wrongness of certain acts – slavery, genocide, torture and severe deprivation and so on – are beyond dispute and must be prohibited always and everywhere, even where committing them may seem necessary for achieving some substantive moral visions. However, the recognition of this priority ordering, this leap of conscience, is not achieved when the inherent rights are formulated and codified. Rather it takes place earlier, in the process where the reasons for recognizing value claim (2), the minimalist idea of the right, becomes compelling and persuasive. In other words, the sense that ‘the right’ is prior to ‘the good’ must have been accepted before the inherent rights can, analytically speaking, be formulated and codified. Historically, it was only after this leap of conscience had taken place in sufficiently profound and widespread fashion that it became possible to adopt and implement the international human rights standards. The inherent rights resemble what Shue has defined as ‘basic’ ‘moral rights.’ Shue defines ‘a moral right’ as a right that ‘provides (1) the rational basis for a justified demand (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats.’ (Shue, 1980, p. 13) There are nonetheless differences between Shue’s basic moral rights and inherent rights. One difference is that his threshold of ‘self-respecting’ human life, upon which his ‘basic’ ‘moral rights’ rest, is more extensive than the threshold of minimally good or dignified human life, upon which inherent rights rest, as I discuss earlier (p. 153). While ‘basic liberties’ are part of his threshold conditions, as I have argued, some basic liberties are not part of the minimalist threshold necessities. This discrepancy has implications for defining fundamental human rights: while the right to equal liberty of political representation, e.g. is a ‘basic right’ for Shue, it is not included among the inherent rights. Inherent rights are a small subset of moral human rights. They stand out because they can be grounded directly in the minimalist

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human values. Other moral rights, as I argue later, can be justified in a different manner: by consequentialist practical reasons – means-end considerations – as safeguards for inherent rights. Those extrinsic rights, however, may also have intrinsic value for other purposes, from other perspectives, just as inherent rights may have consequentialist values for safeguarding extrinsic rights. Extrinsic rights still draw on the minimalist human values for justification, but only indirectly – via their relationship with value-grounded inherent rights. Inherent rights can be divided into at least two subsets according to the two types of essential necessities they demand for the minimally good or dignified human life they demand: (1) Basic security rights: rights not to be subjected to murder, genocide, slavery, torture, rape, starvation and de-capacitating malnourishment; (2) basic subsistence rights: rights to adequate food, clothing, shelter, drinkable water, clean air, and basic healthcare, or rights not to be subjected to below-subsistence-level existence.20 One might, for the purpose of emphasizing (1) and (2), specify a third subset, (3) basic freedom rights: rights to freedom from fear (for physical assault) and from want (severe deprivation or below-subsistence-level conditions).21 This classification resembles Shue’s tri-partite division of ‘basic rights’: to basic security, basic subsistence, and basic liberties. However, my ‘basic freedom rights’ are more restrictive than Shue’s ‘basic liberty rights.’ Most strikingly, liberty to political participation, which is one of Shue’s basic liberty rights, is not included among the inherent rights. (Shue, 1980, pp. 20, 23–4, 67–71) Let me now give a more adequate account of the rationale. First, I do not consider political liberty an unimportant human right. Rather, I argue that this right is only indirectly justified by the minimalist values, while directly by its instrumental value for safeguarding basic human security and subsistence rights. For this consideration as well as the strategic consideration to appeal to a broader range of supporters, I leave out of inherent rights demands for the equal liberty of political representation. However, a good or dignified human life minimally specified by its essential necessities as having a legitimate demand to inherent rights is inherently unstable and unsustainable – unless, as I will argue later, such a life (its inherent rights) is safeguarded by additional rights, including the right to liberty of political participation. Shue specified two requirements that a right must meet in order to be ‘basic,’ one formal and the other substantive: (i) Formal: A right is ‘basic’ if its enjoyment is essential for enjoying all other rights. (Shue, 1980/1996, p. 19) Without such a right, any attempt to enjoy any other rights would be ‘quite literally self-defeating, cutting the ground from beneath itself.’

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(Shue, 1980/1996, p. 19) (ii) Substantive: A right is ‘basic’ if it provides ‘minimal protection against utter helplessness to those too weak to protect themselves’ and is thus ‘a shield for the defenseless against at least some of the more devastating and more common of life’s threats;’ or if it specifies ‘everyone’s minimum reasonable demands upon the rest of humanity,’ (Shue, ibid., p. 19) which define ‘the line beneath which no one is to be allowed to sink’ and are tied ‘closely to self-respect.’ (Shue, ibid., p. 18) It is not entirely clear whether both requirements are necessary or how these two are related. But clearly Shue considers the right to political liberty ‘basic’ because it satisfies at least the formal requirement. In comparison, the only requirement a right must meet in order to be considered inherent is substantive: A right is inherent if its enjoyment is essential to a minimally good or dignified human life. An inherent right need not also meet the formal requirement of being essential for enjoying any other moral rights. In making this substantive requirement the sole requirement for inherent human rights, I recognize that it is conceivable that no greater or higher human good can be enjoyed in a sustainable manner and to its full extent by a human being without first satisfying his or her demands for life’s minimal essentials. However, some essential necessities for a minimally good life can be enjoyed independently from other goods, at least to some extent and for a short time. Such a short time may be significant for any human life which is, from the perspective of human history, brief. Thus persons can enjoy the goods demanded by their right to basic subsistence, even though they risk imprisonment if they criticize their government, and even though, because of their unprotected political and civil liberty rights, their subsistence right is not secured in the long run. Human rights theories must reconcile with the reality that, when not all moral rights are safeguarded (not equally for everybody), not all is lost. As theorists stress the integrity and inter-dependency of various human rights, they must also recognize the autonomy of each right’s value to the individual human beings. Too much emphasis on integrity and interdependency may lead to political demands that are unobtainable or unrealistic. In the end, I am in agreement with Shue and liberal philosophers about the importance of political liberty rights – as vital safeguards for other moral rights. But I make the strategic decision for maximizing the appeal to leave any rights justified in consequentialist fashion out of the minimally possible set of fundamental rights. I focus at this stage on identifying a bare-bone set of rights that can be constructed on the basis of the minimalist human values, with the hope that this set can

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maximally appeal to people who can be reasonably expected to find the minimalist values, if nothing else, appealing. This move allows me to conceive, at least in theory, such fundamental rights as specifying the moral demands of threshold conditions for a minimally good or dignified human life, the demands for basic security and basic subsistence, or basic freedom from fear and want. However, by no means I deny that a minimally good life is inherently unstable and unsustainable. I am only demonstrating that one can be reasonably expected to accept inherent rights without having to, at least not initially or immediately, accept political and other liberty rights. This is why the second stage of justification, to be outlined in Chapter 8, where I will work out the justification for these liberty rights (and many other social, economic, and cultural rights), is indispensable. Having tried to appeal to people with diverse moral visions, we can then appeal to their practical rationality and prudence in an effort to justify liberty rights on the basis of their effectiveness in safeguarding inherent rights. Those who may otherwise find liberty rights incompatible with or contradicting their substantive visions may then find them appealing upon recognizing their instrumentality.22

8 From Practical Reasons to Extrinsic Rights

If the human rights idea had not already existed, then twentieth-century China would have had to invent it, to defend people whose traditionally rooted sense of human dignity came to be threatened by sweeping economic and social changes, and most of all, by the rise of the modern state. Andrew J. Nathan1

Rights as instruments The need to expand the few value-grounded inherent human rights to include a host of additional human rights must ultimately be explained with reference to the rapid homogenization of basic human conditions in the contemporary world. These include the ubiquitous standard modern threats, a common human vulnerability, and the increasing interdependency and interconnectedness of human actions and choices around the globe. Such an explanation takes seriously the growing ‘one-worldness’ – similar problems, common destiny, converging demands for global cooperation in finding solutions, and growing awareness of the necessity and possibility to seek global responsibilities and international accountability. These developments are significant for norm-setting for global governance in ethics and international justice.2 Specifically, they have brought to light the practical reasons in favor of adopting means and ways that have demonstrated some success in safeguarding inherent rights. If inherent rights stand alone, naked, against standard modern threats to life’s essential necessities, they cannot be effectively implemented and their implementation will not be sustainable. These and other consequentialist considerations justify pressing for other specific demands. These are demands for guaranteeing the enjoyment of goods necessary for the 166

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effective and sustainable implementation of inherent rights. These demands legitimize additional rights. Such rights as liberty rights and social, economic, and cultural rights, if they prove to be instrumental to implementing inherent rights, can be validated in this consequentialist fashion. I refer to these rights as ‘extrinsic rights.’ They can be justified as instruments for assisting the realization and protection of inherent rights, which can thus be understood also as ‘end rights.’ This approach has particular significance for the justification of liberty rights, the most controversial in the ‘culture vs. human rights’ debates. Such a justification is worth explicating even if it is just for the sake of responding to critics of human rights’ liberal biases. In order to specify broadly appealing moral rights grounded in the minimalist notion of the human good, I recognize the possibility, in theory at least, of leading a minimally good or dignified human life under the lowest threshold conditions. (See Chapter 7) It is a recognition of the minimal worth of life lived under conditions of unprotected equal political–civil liberties and other non-inherent rights. But human life lived under such conditions is inherently unstable and unsustainable. No sooner have we constructed inherent rights than we must then buttress these rights with institutional safeguards that impose further demands, prohibitions, and responsibilities. These demands, I contend, must also be understood as universal moral rights, at least potentially so, though they are only indirectly supported by the minimalist human values – via an argument about their instrumentality for guaranteeing inherent rights. I have set out on the consequentialist path in Chapters 4 and 5, where I presented two ‘cultural cases’ against objections to human rights respectively as destructive of cultural communities and as intolerant of cultural plurality. I contend that practical considerations of instrumentality and necessity have or should have made associational prerequisite rights, i.e. political–civil liberty rights, appealing to members of minority, disadvantaged, or vulnerable communities outside or inside Western societies. These rights can be seen, from these members’ perspectives, as attractive institutional instruments for safeguarding their inherent rights as well as their rights to culture. This may be because that their traditional tools, if any, against standard, pre-modern or pre-globalization, threats have declined and would be no match to the standard modern threats. I continue here arguing along this line to validate political–civil liberty rights and other social, economic, and cultural rights. I will also elaborate the relationships between extrinsic rights and inherent rights. Extrinsic human rights are moral demands, justified by consequentialist reasons, for guaranteeing the actual enjoyment of goods essential to the equal

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and sustainable safeguard of inherent rights against standard modern threats. If inherent rights are moral demands inherent in essential necessities for each and every person’s leading a minimally dignified life, extrinsic rights derive their moral legitimacy from the consequentialist reason that they are instrumental for safeguarding inherent rights against standard modern threats under given human conditions in the contemporary world. Without extrinsic rights, an inherent right would remain abstract in conception and vulnerable in practice. The inherent right to basic subsistence, for instance, is abstract for a rights-bearer in the contemporary world if it is not defined more specifically as, for instance, the right to work (and to labor protection), the right to participate in economic development, the right to education, the right to own property, and rights to express opinions and participate in decision-making. These extrinsic rights spell out what is required for implementing, preventing deprivation of, and seeking accountability for abuses of the right to basic subsistence. They also, as I discuss in Chapter 9, assign specific parties specific duties and obligations to guarantee the actual enjoyment of the goods demanded by this inherent right. If they are safeguarded, their exercises contribute to the safeguarding of the right to basic subsistence. I can only provide a rough formula here for identifying and validating extrinsic rights. This is mainly because no arm-chair philosopher can conduct the empirical social science investigations required for this task – to collect and process information required for assessing competing judgments as to which proposed institutional arrangements are instrumental to safeguarding inherent rights in the contemporary world. This rough formula is as follows: If the actual enjoyment of certain good X is essential to the equal and sustainable safeguard of an inherent right, then, the demand that the enjoyment of X be guaranteed is justified as an extrinsic right. Conversely, if, in the absence of the enjoyment of X, an inherent right can still be safeguarded, then, X is not established as an extrinsic right. Extrinsic rights form a security zone around inherent rights, keeping at bay standard modern threats. They prevent severe deprivation of goods essential for the equal and sustainable enjoyment of the goods demanded by inherent rights. It should become clear now why this consequentialist approach is so dependent on empirical evidence. It involves assessing means–end effectiveness. For example, consider the demand for equal liberty to political representation. One could assess whether this demand qualifies as an extrinsic right only with sufficient information about whether and how equal representation is instrumental for safeguarding inherent rights and with the means for assessing the evidence. Unequipped to

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conduct such assessments of all the proposed extrinsic rights, I illustrate below how to rely on commonsense and widely accepted evidence to support selective rights in international documents, such as the Universal Declaration of Human Rights and the two international covenants. I demonstrate how some of these positivist rights can draw upon consequentialist reasons for their moral legitimacy.3 Extrinsic rights are moral rights because they are independent of or prior to declared or legislated positivist rights. They provide the moral legitimacy for the latter and for pressing demands to reform or enforce the latter. But, as moral rights, they depend on the latter for prescribing duties and obligations. Consider, again, political and also civil rights. The UDHR declares that everyone has ‘the right to freedom of thought, conscience and religion’ (Article 18), ‘the right to freedom of opinion and expression’ (Article 19), and ‘the right to freedom of peaceful assembly and association’ (Article 20). And Article 21 stipulates that ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.’ A justification of these rights as moral rights lies in demonstrating their instrumentality and sustainable effectiveness for safeguarding inherent rights. For instance, one can offer evidences from the social sciences to demonstrate that repression of freedom of religion, conscience, thought and expressions results in violation of inherent rights to basic security and basic subsistence. For example, one may cite Amartya Sen’s famine studies to demonstrate that an accountable government and a free press are necessary for preventing famine and saving lives. (Sen, 1981) One can also show that, through empirical or historical studies, democratic states do not go to war against one another, sparing innocent lives and avoiding inflicting sufferings, as Kant postulated. Investigations of recent incidents of genocide and ethnic cleansing suggest that such humanitarian disasters could have been prevented if there had been a representative political process at the local national level, an independent press, and a responsive and accountable international mechanism that had responded to publicized early warnings of imminent threats to inherent rights.4 Safeguarding intrinsic rights in some circumstances may require suspending political or civil rights. For example, equal political participation for each and every citizen may not always be the most effective way for protecting basic subsistence and basic security in a society burdened with extreme scarcity of resources, a non-functioning infrastructure, intense religious or ethnic tension and violence, or civil war. Temporary suspension of such rights under these circumstances must not be confused with their invalidation or rejection.

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This consequentialist approach to the justification of liberty rights can potentially undermine the claim that political-civil liberty rights are somehow a Western preoccupation. If these rights are justified on consequentialist grounds by empirical evidence of their instrumentality for safeguarding inherent rights, they rest neither on a liberal foundation nor any other religious or metaphysical foundations. They can thus appeal more easily to people with alternative moral worldviews. Taking the same approach illustrated above, one can proceed to examine other positivist rights such as the right to education. Article 26 of the UDHR declares that ‘everyone has a right to education.’ In theory, the bare essentials of a minimally dignified human life can be enjoyed by a person who has not enjoyed education. The right to education is thus considered a non-inherent right. Yet, under conditions in the contemporary world, the lack of education seriously undermines a person’s life prospect and makes her more vulnerable than those who are educated to life’s standard modern threats. An enjoyment of the right to education now, if not in the past, ensures a person equal access to safeguards of basic security and subsistence. An illiterate is disadvantaged in benefiting from such safeguards. A person who has enjoyed basic education is also better equipped to exercise her other extrinsic rights, such as rights to participate in policy decisions, and to express herself and to obtain information, all of which are instrumental for safeguarding her inherent rights. Also, consider the right of the accused to a public hearing. Article 10 of the UDHR declares that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ In light of the power of the state to use its police and the court to persecute its critics and oppositions in authoritarian countries, this right has instrumental value to guaranteeing the right to basic physical security. The validity of the right to public hearing depends on an empirical studies showing that it this right helps ensure fair trails, which in turn help ensure the basic security right to freedom from arbitrary imprisonment. Donnelley suggests that allowing cultural variations in the forms and interpretations of the human right to public hearing might sometimes be necessary. (Donnelly, 1989, p. 124) However, in most cases, state restrictions on the right to public hearing have nothing to do with whether members of the society have certain cultural views or sentimentality that favor trials of the accused to be conducted secretively. Typically, such cultural views or sentiments tend to diverge in a society. The burden is on any governments that make such claims to

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defend its decision to act upon one but not other cultural views or sentiments – if it intends to tailor its policies to reflect culture. According to the same rough formula, one can also consider the much-ridiculed right of workers to rest and leisure and to ‘paid vacations.’ Does this right, which is affirmed by Article 24 of the UDHR, make morally justifiable demands on consequentialist grounds? In the globalized economy, manufacturing and service-sector jobs are shifting to developing countries with large pools of cheap labor and inadequate labor protections. The seemingly bourgeois right to rest, leisure, and paid vacation thus becomes an important safeguard for millions of laborers in these countries. This right is justified by the reasoning that it enhances safety by allowing workers to work shorter hours each day, and thus to be protected from exhaustion and over-work, and to have time for recuperating. Periodical rest is thus in the profound interest of workers, particularly the exploited cheap labourers in developing countries. (Waldron, 1993, pp. 12–13) Also, cultural rights and rights of indigenous people can also be evaluated along the same line of consequentialist arguments. To the extent that cultural and indigenous communities could still protect members’ basic security and subsistence in the contemporary world, and to the extent such community safeguards are effective (or more effective than any alternatives), such rights can arguably be defended as extrinsic rights. However, as the discussion in Chapter 4 shows, such safeguards, if any, may have become endangered by rising standard modern threats. Members of these communities now may be compelled to seek alternative protection of their inherent rights. Or they may try to restore or strengthen local community safeguards. They must then demand protection of their communities, which require safeguards of their associational prerequisite rights. However, if it turns out that certain community safeguards are not irreplaceable nor more effective than viable alternatives, then, it may just be that we are not in a position to validate that these rights apply in these situations on consequentialist grounds. We may then judge that restoring or sustaining such communities do not seem to be necessary or effective for safeguarding inherent rights. But in such a case, it is possible that cultural rights and rights of indigenous peoples are still instrumental for the enjoyment of certain extrinsic rights – hence indirectly beneficial for safeguarding inherent rights. For instance, as discussed in Chapter 5, ensuring that indigenous communities are viable may be instrumental for developing the capacity of their members to have meaningful choices in associations, in spirituality, or in ways of life. Such choices are themselves among the goods

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demanded by such extrinsic rights as rights to freedom of association, religion, and conscience. Here, I am making a further distinction between two classes of extrinsic rights: the directly and the indirectly instrumental rights for the actual enjoyment of goods demanded by inherent rights. Indirect extrinsic rights are justified by their instrumentality for enjoying other extrinsic rights, though they may also depend on these other extrinsic rights for their own safeguard. This may be the case with cultural and indigenous rights. The right to a fair public hearing may also be an indirect extrinsic right: It is instrumental for safeguarding the extrinsic right to fair trails, which in turn is instrumental to safeguarding the inherent right to basic security. Meanwhile, one cannot actually enjoy the right to a fair public hearing unless one can also enjoy other extrinsic rights, such as rights to freedom of expression and press, to liberty of political representation – since these rights ensure a rule of law, of which the right to fair public hearing is an integral piece. Sometimes, an extrinsic right can be both direct and indirect, e.g. the right to rest and leisure, which directly safeguards the right to basic physical security and indirectly safeguards this right via protecting the right to safe working conditions. I do not deny that an extrinsic right can be supported by both consequentialist considerations and value convictions. Instrumentally grounded rights are more likely to gain support from persons of diverse cultural, religious, or metaphysical beliefs. Consequentialist reasons for an extrinsic right are more likely to be recognized by people despite their diverse beliefs. If their deep convictions do not support an extrinsic right, they may still be persuaded by consequentialist reasons for such a right. Irrespective of their substantive belief systems, people who have recognized the minimalist conception of the human good (e.g. as a prerequisite of their own substantive moral claims to the human good), hence the inherent rights, can be reasonably expected to recognize the consequentialist reasons in favor of extrinsic rights. This recognition may become incorporated into their convictions as these evolve over time and are subjected to new interpretations in light of members’ changing life experiences.

Integrity and trade-off Integral relationships between rights We grant inherent rights a moral legitimacy by drawing directly upon the minimalist values, but we grant extrinsic rights a moral legitimacy by drawing upon consequentialist considerations. By citing extrinsic rights’ instrumentality to safeguarding inherent rights, however, we draw

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indirectly, via inherent rights, upon the minimalist values for the justification of extrinsic rights. In the former case, the universal validity of the minimalist values is carried over to the inherent rights: if we accept the minimalist values as universally valid, we also accept the demands inherent in it – inherent rights – as universally valid. In the latter case, this universal validity is not carried over automatically to the extrinsic rights. Extrinsic rights are not inherent or entailed in inherent rights. We need additional, empirical evidence to support extrinsic rights’ instrumentality or consequentialist validity. This difference has to do with the different types of arguments used in justifying these rights. The argument used in the former is analytic or deductive, and in the latter inductive. We infer the validity of inherent rights, X, from the validity of the minimalist values, X1. This inference is not as strictly analytic as that from 2 ⫹ 2 to 4, but ‘analytic’ in the sense we derive X from X1 and we explicate or elaborate X1 to reveal X. This not-so-strictly analytic inference should not, however, dilute the universal validity that is carried over. As far as ordinary moral reasoning goes, if a norm is constructed on the basis of certain value claims, the universal validity of these claims is normally considered sufficiently carried over to the norm. Thus we normally assume this is the case as we infer from, say, ‘Kindness is a requirement of a virtuous person’ to ‘Kindness must be fostered or made possible in a good society among its members,’ from ‘Music is an essential necessity to the good life’ to ‘One should preserve music, support musicians, or develop one’s sense of music appreciation,’ or from ‘The capability to express one’s opinions freely is essential for human functioning’ to ‘Just social institutions ought to be designed in such and such a way that persons can actually express their opinions freely.’ In these routinely made constructivist moral inferences, if the premises are valid, all other things being equal, the derived normative propositions are also valid. The induction of norms from consequentialist considerations works differently. Extrinsic rights are not derived from inherent rights. Rather, they are supported by experiences and empirical knowledge as consequentialist goods – instrumental to safeguarding inherent rights. In comparison, as we deduce from the minimalist values the demands that the essential necessities of a minimally good human life be guaranteed, we do not particularly gain more knowledge than what is already given in the premise (the minimal values). We come to support extrinsic rights as we learn, from historical experiences, that the inherent right to be free from genocide, e.g. can be more effectively guaranteed if political and civil liberty rights (that promote tolerance, ensure a representative and accountable government,

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and sustain a vibrant civil society) and social and economic rights (that promote equality in access to and enjoyment of vital resources) are granted and effectively implemented. We validate the demands of these rights based on evidence of their instrumentality and benefits for bringing about the desired result – safeguarding the inherent rights to basic security from murder and assault, and to basic freedom from the harms and sufferings of such acts. The consequentialist argument is essentially inductive: If A is the given objective, if adopting the course of action proposed by X is demonstrated as normally instrumental, hence beneficial, for bringing about A, then, we conclude, X is validated on consequentialist grounds. One can specify, in the following fashion, the integral relationships among the rights that can be justified in these distinctive manners, and between rights and the minimalist values that provide them with the moral foundation: ●

●

●

Inherent rights and the minimalist values: inherent rights are analytically constructed on – inferred from and justified by – the minimalist values (while inherent rights may also have the support of consequentialist reasons); Inherent and extrinsic rights: extrinsic rights are supplementary to intrinsic rights because they are instrumental for safeguarding inherent rights and they depend on inherent rights for their own sustainability. Inherent rights thus can instrumental for the actual enjoyment of goods demanded by extrinsic rights. Extrinsic rights and the minimalist values: extrinsic rights are indirectly justified by the minimalist values – they draw indirectly upon the latter for validity, via their relationship with inherent rights (while extrinsic rights may also have the support from religious or metaphysical convictions).

Ideally, inherent rights are guarded and facilitated by extrinsic rights or, more precisely, by layers of direct and indirect extrinsic rights, and inherent rights in turn make it possible to enjoy the goods demanded by extrinsic rights. We can visualize that extrinsic rights form a structured security zone around inherent rights. In this zone, direct extrinsic rights (e.g. the right to work), when protected, contribute to, hence protect, the inherent right to basic security and subsistence. And the right to work is protected and meaningfully exercised when some indirect extrinsic rights (e.g., rights to rest and leisure and paid vacation) are

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meaningfully exercised and form a layer of protection around the right to work. At the center surrounded by the security zone, are the inherent rights. When these rights are well-protected, rights-bearers are capable of meaningfully exercising their extrinsic rights that make up the security zone. When there are signs of a standard threat (say, famine) to an inherent right (right to basic subsistence, e.g. of children in poor countries), ideally, a first line of defensive and preemptive actions, should take place at the outer layers of the security zone. These actions are demanded by indirect extrinsic rights buttressing the children’s inherent rights to basic subsistence via a host of direct extrinsic rights. These indirect extrinsic rights include, e. g. the rights of the family. The international human rights instruments, e.g. the UDHR, however, only provide the language that can be interpreted as stipulating the right of the family.5 The family, when empowered, can provide the best protection for children. Parents and guardians are generally better situated to know how best to protect children in their specific contexts. However, in the nonideal world that we inhabit today, families and local communities may have themselves been severely weakened, deprived, and unable (or unwilling) to prevent child hunger and malnutrition. A failure to protect the right of the family leads to failures to take early, preventive, actions to protect children. The protection of the children’s basic subsistence rights now fall on those who are potentially more powerful (such as the state) and capable to take indirect and direct actions to protect the children as demanded by other extrinsic rights. These include, e. g. the right to social security (which requires a functional state to collect taxis) and the right (of parents and caretakers) to work (and generate income), which also requires the State to adopt certain policies of economic incentives and labor protection law. These may also include the right of citizens to participate in and benefit from social economic development, rights of cultural and indigenous communities (to sustain certain locally suitable safeguards), and rights to freedom of peaceful assembly and association (that are required for meaningful exercise of rights of such communities). These rights justify holding certain actors (including the state) under obligation to take appropriate actions. After these actors fail to protect these extrinsic rights, the protection of the children falls on international agents (world institutions) vested with the authority to enforce rights and obligations. At this point, actions taken by these agents to strengthen the security zone – by safeguarding extrinsic rights via

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support for institution-building at national and local levels and by strengthening rights-protection mechanisms and capacity-building at these levels – may be too late. The situation may have well degenerated into a humanitarian crisis. The duty to safeguard the children’s basic subsistence right has to take the form of a duty to aid victims of violation and deprivation of such a right. I will elaborate the complex duties of moral agents to safeguard human rights in Chapter 9. For now, I press the point that when the structured extrinsic rights in the security zone are meaningfully exercised by variously actors, which means that the various duties and obligations to safeguard these rights are fulfilled by various agents and institutions, the relevant inherent rights at the center of such a zone (in our example, children’s right to basic subsistence) will be safeguarded from deprivation. (This is why, as Sen’s studies of famines found, where there is a functional democracy and independent press, a full-fledged famine can be prevented.) Reversely, when various obligated parties fail to do their share in safeguarding extrinsic rights, building a robust security zone to protect inherent rights, they leave the children in our case vulnerable, exposed directly to standard threats to their basic subsistence. Take for example the HIV/AIDS epidemic in the rural Henan province, China, first disclosed in the late 1990s. Thousands of children have been orphaned or infected with the virus. Many more will be affected.6 The parents and adult caretakers of these children are among those who are most vulnerable in Chinese society: women, the rural poor, and migrant laborers. Possibly one million people were infected with HIV through unsanitary practices during commercial plasma collections. Children who lost one or both parents to AIDS or whose parents are living with HIV/AIDS and can no longer care for them are known as the ‘AIDS orphans’. Many of them suffer from extreme poverty, neglect, discrimination, and isolation. Some are forced out of schools and into child labor.7 The government first tried to cover up the epidemic. When it finally admitted it under international and domestic pressure, it did too little and too late to assist them. This is no isolated incident of policy error. The lack of participation in public health policy-making, the absence of public awareness and preventive programs, and government control of information, the repression of nongovernmental organizations and outspoken individuals and journalists, have all contributed to the failures to prevent the suffering of people living with HIV/AIDS and the AIDS orphans. The defunct health care system and the increasing costs in education in rural areas have further worsened the AIDS orphans’ plight. This case shows how it

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can be misleading to dismiss the importance of extrinsic rights for subsistence rights and to reject the actions and institutional reforms these rights demand. The visualized image of extrinsic rights forming a security zone around inherent rights can be illustrated in Figure 8.1. The rights located at the secured center, are protected by those in the surrounding security zone and in turn, make it possible to enjoy the extrinsic rights. When these circles of rights, where indirect extrinsic rights are located on the outmost circles, direct extrinsic rights on the inner circle, and inherent rights at the core, are safeguarded, they reinforce each other and form a relatively self-sustainable system. These general relationships can be disaggregated into specific relationships between each inherent right and its protective rights. Thus, for example, with regard to the inherent right to basic subsistence, its relationships with extrinsic rights can be illustrated in Figure 8.2. When we work out each of the multiple sets of relationships with regard to each of the inherent rights, we can see how they overlap. The right to political participation and free press, for example, are direct intrinsic rights securing both the right to basic subsistence and the right to basic securities (freedom from torture, genocide, etc.). They would fall in the inner circles of both of these inherent rights. This understanding entails a complex view of the priority-ordering and the permissibility for trade-offs.

Outer security zone: Indirect extrinsic rights Inner security zone: Direct extrinsic rights Secured center: Inherent rights

Figure 8.1 The structure of rights

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Rights to education, union rights, etc.

Rights to political participation, freedom of press, assembly; rights to work, etc. Right to basic subsistence

Figure 8.2 Example of a micro-structure of rights

Permissible trade-offs The priority-ordering and permissibility for trade-offs can be worked out in accordance with these rights’ respective moral importance and practical urgency. Here, I understand ‘trade-off’ as temporary suspension or constraining, not stripping off or alienation (of a right). Not all rights are equal in these regards. Inherent rights have the highest moral sanctity and impermissibility for trade off. No compromises on inherent rights are morally justifiable in ways consistent with the minimalist human values. In some extraordinary situations, actions may have to be taken – such as in a genuine ‘ticking bomb’ scenario, where torture may conceivably be the only option for saving many lives or saving humanity itself (say, when we have in custody someone who has information about a terrorist suicidal plot to trigger a dozen of nuclear bombs). In such an imaginable scenario, a trade-off between two inherent rights (say, the right of the detainee to freedom from torture and the right of many innocent persons not to be murdered or harmed) may be unavoidable. As a result, one of them is violated or derogated for the safeguard of the other. In the account I give here of moral priority of rights, no value-based moral argument can be made to justify such a trade-off. This is because there are no higher or more fundamental human values, than the minimalist values, to appeal to in order to justify derogating an inherent right, for the sake of protecting another. Such a trade off, however, be defended on the practical ground that doing so is instrumental to protecting

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another inherent right. This practical or consequentialist justification involves a balance of cause-effect considerations. Even in this imaginable extreme scenario, it is indeed extremely demanding and burdensome for those who make the ‘no option’ defense of torture to provide the circumstantial evidence. In most real life cases of torture, there are almost always other things to try to head off making the trade-off. If all else fail, then, one may defend the use of torture as the only option in order to save many lives. Even so, a consequentialist argument in such a case must take into account the unreliable nature of torture as a method to extract information. It must also consider the long-term impact of torture on perpetuating cycle of violence and escalating use of cruel, degrading and inhumane treatment of suspects, detainees, and captives, as well as the impact on the sense of torturers as self-respecting human beings. However, even theorists who would permit torture in extreme circumstances have argued in favor of its general ban sometimes on consequentialist grounds. Concerning the use of torture in interrogations of Al Qaeda captives, for instance, Nussbaum recently writes, ‘I don’t think any sensible moral position would deny that there might be some imaginable situations in which torture [of a particular individual] is justified.’ However, Nussbaum notes, in the real world, governments commit torture not just in a ‘ticking bombs’ situation. But even in an extreme situation, no one can know for certain whether a suspect really has information about a ticking bomb or whether the torture victim tells the truth, as David Cole points out. ‘Because of this, you end up going down a slippery slope and sanctioning torture in general.’ When torture was used in Israel, before the Israeli Supreme Court formally banned it in 1999, to prevent ‘ticking bombs’ from being used in suicide attacks, the practices of hooding, beating and abusing Palestinian detainees became standard practices. This is because ‘the ticking bomb metaphor is infinitely expandable,’ says Human Rights Watch director Kenneth Roth. ‘Why stop with the bomber? Why not torture the person who could introduce you to the cousin who knows someone who planted the bomb? Why not torture the wife and kids? Friends? All of this becomes justified.’ As soon as the taboo is lifted, as Shue puts it, torture can quickly spread ‘like a cancer,’ because ‘torture is a shortcut, and everybody loves a shortcut.’ Shue says. ‘I think it’s a fantasy to believe that the United States is that much better than anybody else in this respect.’ Thus, Cole favors a ‘bright line’ prohibiting torture.8 From the ideal point of view, in designing the just society and international order, one should build basic institutions and adopt policies that would prevent the extraordinary circumstances of the ‘ticking bomb’ scenarios from occurring.

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Indirect extrinsic rights, strategically placed in the outer security zone around direct extrinsic rights, which in turn surround inherent rights, generally have derivative moral importance and a bigger margin of permissibility for trade off than direct extrinsic rights. The permissibility for any trade-off between two direct extrinsic rights, or between direct and indirect extrinsic rights, can be assessed by these rights’ relative practical urgency and instrumentality for securing inherent rights and other extrinsic rights. For example, the right to political participation can be justifiably restricted for the sake of safeguarding the inherent right to basic security – if an open public session of policy makers or public voting may expose participants’ lives to danger.9 A trade-off between two extrinsic rights, e.g. the right to work (which requires creating more jobs) and the right to labor protection (which requires investment in workplace safety, social security, or unemployment benefits, making it costly to create jobs) can also be assessed on the basis of instrumentality – which alternative is more effective in protecting inherent rights or other extrinsic rights. The margins of permissibility increase, as Figure 8.2 also illustrates, while the circles of security zones radiate outward. At the center, the inherent rights cannot be morally justifiably permitted for trade-off for the sake safeguarding any other rights located on its surrounding security zones. Their derogation for the sake of other inherent rights, as in the imagined extreme scenario, can only be defended on the basis of consequentialist considerations. However, in making these calculations with regard to one inherent right, for instance, the right to basic subsistence, one must take into consideration the negative impact on the safeguard of another inherent right, say the right to basic securities, of trading off one extrinsic right for another. This is because the sets of multiple circles overlap – inherent rights share the protection of the same direct extrinsic right, e.g. the right to political participation. In the end, the practical justification for trade-offs involves extensive and complicated calculations, demanding a great deal of specific information. Consider the claim that reforms to institutionalize political–civil liberty rights in China can be justifiably held back for the sake of protecting social– economic rights. Without delving into substantial empirical studies in the social sciences, what an ethical analysis can say in reply is very limited. I will however argue that the case of China does not invalidate the above arguments about the integrity and priority ordering of these various rights. China’s spectacular economic growth and raising standard of living under the repressive one-party political system in the last quarter of century seems to falsify the view about political–civil liberties’ instrumentality

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and necessity for safeguarding basic social–economic (subsistence) rights.10 But this assessment mistakes rising average standard of living for improving protection of social–economic rights. Even if we assume, for the sake of argument, that social–economic rights conditions are better, meaning the poorest in society have better access to basic subsistence, this betterment may have something to do with relaxed control of liberties rights by the state. A due assessment of the Chinese case along this line, I believe, will reveal that somewhat eased grip of freedom by the government and measured achievement in poverty relief occurred more or less simultaneously. A gradual erosion of political control since the death of Mao Zedong in 1976 helped remove political obstacles to economic development. Without a gradual though limited loosening of their grip on political control and personal freedom, the Chinese leaders would not have permitted nor stayed the course of economic reforms.11 As Bruce Gilley notes, in their desperation to regain political control after crushing the pro-democracy protests of 1989, the Chinese rulers accelerated the pace of social liberalization. All but the largest state industries were decentralized and many privatized. The Communist Party loosened its control over the media, education, healthcare, and personal lives. Rule of law reform and the role of local people’s congresses in policymaking gained ground at the expense of the Party’s supreme rule by fiat. Over the years, the State becomes somehow less intrusive and less arbitrary. (Gilley, 2004) Experiments with elections of village councils and local People’s Congresses and election of officials within the Party’s local branches had also begun before 1989.12 It is thus somewhat inaccurate to say that ‘China did not achieve political pluralism, but it did move toward economic pluralism, cultural pluralism, [and] social pluralism.’13 It has moved gingerly toward limited political pluralism,14 and it would not have achieved the sort of economic, cultural, and social pluralism without also having taken such movements. Democracy may not yet be inevitable to arrive in China in the near future,15 but the miraculous lifting of millions of Chinese out of sub-subsistence conditions in the last quarter of century would not have been possible without the withering of the Chinese Communist dictatorship and the grudging relaxation of its absolute monopoly on power. This account is consistent with the bleak social–economic rights conditions in China, which have worsened for millions of workers, poor rural and migrant laborers. Those who organize or assist the disgruntled to demand redress for social injustice have been harshly suppressed and punished. This is not surprising given that the country remains under the control of an authoritarian state and given the inadequate and often stalled political change and rule of law reform. The government

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imposes Internet censorship, persecutes democracy party organizers, liberal intellectuals, political dissidents and faith groups. It also controls information about the economy, the banking system, persecutes journalists who disclose official embezzlement and money laundering in the financial system, and harasses doctors and health workers who expose official cover-ups of impending public health hazards.16 It also punishes labor organizers, violating the right to form independent unions, a social–economic right as well as a civil–political right. The leaders may have lengthened the ‘leash’ and the Chinese enjoy some limited, yet unprecedented liberties by default. But the ‘leash’ remains in the hands of largely unaccountable leaders, which they can still tighten up at their will. The Chinese are not guaranteed the right to defend the few selected liberties bestowed them or to demand more. The Communist Party’s continuing monopoly of key powers allows it to adopt and enforce economic adjustment policies without public consultation, without adequately considering the negative and sometimes devastating impact of such policies on the lives of China’s powerless and vulnerable populations. The political leaders are largely at liberty to write off the interest and rights of these populations, suppress their voices and protests, severely punish any organized efforts to seek compensation or redress. They face little accountability for the harm caused by their policies and mis-management to public interest (such as environmental and ecological disasters). Such unaccountable exercise of power backed by ruthless repression is generally unavailable or not without hefty political prices in democratic societies (say, in India).17 Thus, millions of workers have been laid off from state industries with little social safety net benefits; millions more migrant laborers are mistreated and discriminated by state and private business employers. Those who cite China’s economic growth as evidence against the importance of civil–political liberty rights for safeguarding subsistence rights need to take into account worsening social-economic rights conditions due to lack of sufficient improvement in political accountability and basic civil liberties (e.g. the rights of mistreated social groups to political participation, free expression, association, and assembly).

Contingent universality The moral permissibility for trade-off of extrinsic rights, however, does not take away their universal or potentially universal validity as human rights. Universally valid moral demands, even when they are validated on consequentialist grounds, admit temporary suspension or restriction

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under exceptional circumstances. The moral prohibition against lying offers an apt example. Such a prohibition is presumably valid in all human societies. The argument for this universal validity can be one of consequentialist nature – that telling truth is necessary and instrumental to building mutual trust among members of a society, who are cooperating for improving their lives, and to effectively conducting human communication necessary for profitable cooperation. Its temporary suspension or breach, permissible under exceptional circumstances (e.g. lying to Nazis hunting for one’s friends), does not take away its universal validity based on the above argument. Since the universal validity of inherent rights is not automatically carried over to extrinsic rights, the universal validity of, say, the right to due process must be established elsewhere – on the consequentialist ground that it is instrumental for safeguarding, say, the inherent right to freedom from torture in all human societies. As the conditions under which extrinsic rights are instrumental and indispensable for safeguarding inherent rights are becoming globalized, the validity that extrinsic rights obtain from their instrumentality and indispensability is also becoming universal. To the extent that such conditions are becoming potentially globalized, this validity is also becoming potentially universal. When the one-worldness of common problems, standard modern threats to life, and necessity for international cooperation becomes wellentrenched, certain extrinsic rights, ones that have been demonstrated instrumental and effective for safeguarding inherent rights in developed modern societies, have also become instrumental and effective in newly developed or modernized societies. For example, promoting women’s right to equal political participation and basic education has proved effective or instrumental for advancing women’s status in the equal exercise of their rights to basic physical security and subsistence in many societies. Specifically, in the contemporary world, there have come into being the realistic possibility for equal political participation as means to protecting the vulnerable and disadvantaged members of society. There has emerged the possibility for women to learn skills and utilize information for their own empowerment. The validity of these extrinsic rights (to equal political participation and education) is becoming universal when their instrumentality for safeguarding women’s inherent rights is becoming universal due, partly, to the globalization of the circumstances of rights. This universal validity may be said to be not yet real. This is because there are still some societies in the world, where war, violence, and extreme scarcity of resources make it unrealistic under the circumstances to guarantee women’s equal education and political

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participation. But even in these societies, where unfavorable conditions persist, it remains valid to state that women’s basic protection can benefit from improving their equal political status and education. It is in this sense, I argue, that some extrinsic rights (such as women’s equal right to education) can be understood as potentially universally valid on the consequentialist ground of their instrumentality for safeguarding inherent rights. This account of the universality and validity of extrinsic rights takes more seriously the particularities of the historical contexts than other theoretical accounts, for example, those that derive rights from hypothetical contractual models or from transcendent laws of nature. This account is, rather, situational or historically contingent. The consequentialist reasons that validate extrinsic rights may not have presented themselves, or may not have been compelling in a different era, or if human history had taken different turns. In such cases, the inherent rights’ demands for safeguarding the essential necessities of a minimally dignified human life would have remained the same. But they might have been expressed in different moral vocabularies. The demands for safeguarding inherent rights, however, might have not been the same – a different set of goods (from, e.g. equal political participation or equal opportunity for education) might have been instrumental for such safeguards. As Donnelly points out that ‘human rights’ is a concept distinct from broader ideas of human dignity and social justice. It is a modern, hence historically contingent, expression of how to advance, human dignity and justice.18 I recognize that it is conceivable that the minimalist human values, under conditions different from those found in the contemporary world, e.g. in the absence of standard modern threats, might be pursued by codifying principles of justice other than that of extrinsic rights. Though contingent and particularistic, the current account should be compelling enough to validate extrinsic rights as ethical norms governing behavior under the given human conditions in the contemporary human community.

9 An Unfair Utopia?

Institutional design [for safeguarding human rights] must combine judgments about what it is fair to expect people to do, what is efficient to ask people to do, and what it is possible to motivate people to do. Henry Shue (1980/1996, p. 170)

‘Unrealistic,’ ‘Unfair,’ and other criticisms Readers of the previous two chapters’ arguments for the plausibility to justify human rights from cross-cultural and inter-subjective points of view – have reasons to be concerned about how these rights might be effectively implemented. I address this concern, by way of responding to criticisms that human rights (1) envision a Utopia, and in such a Utopia, things are (2) not even fair because of its demand on each person to respect the rights of all human beings, which makes this moral vision (3) insufficiently motivating. The concerns about unrealistic expectation, unfairness, and lack of motivating power are inter-related. Human rights may seem unrealizable because it imposes unfair obligations that are therefore difficult to enforce or motivate compliance. Cultural differences in moral views about who must fulfill what obligations further complicate these matters and have been cited to give credential to these criticisms. In this final chapter, I lay out further implications of the analyses and clarifications made in Part I and Part II of the book and outline (regrettably, not elaborating) an account of justifiable demands for fulfilling duties to safeguard universal human rights. It is an account of the fairness and realism of such duties. Specifically, I argue, such duties can be plausibly realistic and fair if they are implemented through a specific division and collaboration of moral labor. To achieve such an implementation, it is 185

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necessary to work with and develop informal knowledge or cultural understandings of these duties and, more importantly, to strengthen communities, social organizations, and institutions that enforce but also enable members to fulfill their duties. This account views rights-justified duties as universal, but not always universally activated.1 It argues that all capable moral agents can be plausibly viewed as obligated to safeguard basic human rights, though not all have the same schedule of duties, despite cultural differences (i.e. differences in informal knowledge) about who has what duties to safeguard whose lives. According to this view, each person can be plausibly seen as having a schedule of duties defined by not only what is necessary and effective, from the perspective of informal knowledge, for the specific agent to do, but also what can be fairly and realistically expected of the agent given the more over-aching institutional and other background conditions. Specifically, I argue that the following criticisms can be addressed even if one must take into consideration of different bodies of informal knowledge about the duties and obligations to safeguard human life: ‘The impartiality critique’: Human rights hold everyone universally under impartial duties to all fellow human beings, which clash with cultural conceptions of ‘obligation’ or ‘duty’ as being partial.2 Communitarian critics, for instance, contend that no one can possibly be impartial in performing these duties to people near and far, dear and unfamiliar. People develop partial ties, special commitments, and loyalties developed through meaningful relationships and shared pursuits in communities. (Sandel, 1983) The idea of human rights presupposes that persons are stripped off these special relationships. This sort of argument is made specifically in the debate about human rights and Chinese moral cultural tradition. (Rosemont, 1991) ‘The “onerousness” critique’: Holding people under a great many of obligations to safeguard universal human rights is fallacious because ‘ought’ implies ‘can’: if one cannot possibly perform such duties toward all human beings because of their partial ties developed in specific cultural communities, then, one should not be obligated by them. ‘The statist critique’: Human rights duties rely heavily on the state or multinational political institutions for enforcement. Human rights prescribe the rule of law, representative government, and institutions of international legal accountability, to hold parties accountable for rights neglect or violation. Such a statist approach is thus anti-communitarian or at least insufficiently appreciative of local institutions’ role. It neglects the possibly more effective functions of cultural communities and

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basic social organizations in safeguarding lives and providing human security. It is not my intention to dismiss certain legitimate concerns these criticisms raise. It is reasonable to ask whose duty it is to guarantee that children in Africa are protected from enslavement or military conscription, from malnourishment or death from preventable diseases, or what duties should be imposed in order to secure vulnerable populations from genocide or ethnic cleansing. Also, one has reason to demand, for instance, whether the duties to secure the US ‘homeland’ from terrorist attack should override, for instance, the duty not to torture or engage in inhumane and degrading treatment. A person may claim many rights but enjoys none if no specific duties are assigned and performed by others. A duty can only be motivating and effectively performed, however, if it is fair and realistic from the obligated parties’ perspectives – as members of communities or with upbringing in specific traditions. One may particularly have reason to be concerned about how culture and cultural differences factor in the thinking about such matters concerning duties to respect human rights. Specifically, one is reasonable to demand that a culturally sensitive account of the universality of human rights, such as the one developed in previous chapters, respond to criticisms from perspectives of local cultural communities. As I have stressed, however, these communities confront the challenges (and also promise) of globalization. The idea of common human values (democracy, human rights, world peace, development, scientific-technology progress, to name just a few) may have inspired at least some of the forces driving globalization. In turn, globalization facilitates the transmission and provides a reality check of such ideas. The biggest challenge globalization poses to human rights universalists is the rise of multinational and non-state threats that globalization has helped spread. The forces that pose such threats are scornful of, and overwhelmingly powerful in penetrating, any cultural, geopolitical, and social-economic borders. They are not held accountable, at least not sufficiently, under the conventional state-based model of rights protection and the emerging, nonetheless weak, international institutions. It is also reasonable to recognize that, compared to the sort of protection and security that a person can conceivably enjoy in the safe havens of loving parents, caring fellow members, and dutiful local authorities, the resort to impersonal, impartial, institutional, and often legally enforced protection seems indeed impoverished, insensitive, ineffective,

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and perhaps unrealistic about how human beings organize their societies. This recognition credits critics who recommend non-Western cultures, especially Confucian culture, which presumably views morality as a system of communally developed or inherited responsibilities and duties. They see this culture as typical of the perspectives most people in the world have about morality. (Rosemont, 1991, 1998; Chan, 1999) The accuracy of such claims about such a non-Western cultural perspective is simply assumed here for the sake of argument. (However, in light of the paradoxical nature of culture, as discussed in Part I, there is reasonable doubt as to the plausibility of any society’s having a monolithic, exclusive, and invariable perspective). I grant that, as these critics insist, the moral aspiration for safeguarding essential necessities of human life can be expressed in the language of human rights or human responsibilities (or obligations), though I stress that such expressions should not be assumed to exist in any one society or region, uniquely and unchanging. For instance, the minimalist values at the core of human rights can alternatively be explicated and elaborated in the language of human responsibility or obligation,3 as long as these norms demand that the same goods (basic security, subsistence, and freedom) be guaranteed equally for all human beings. The substance of inerent human rights – their moral claims to certain values and demands for action – should remain unchanged if human rights are translated into the language of human responsibilities, obligations, and duties in this fashion.4 This translation is plausible because an inherent right is nothing but a justification for holding certain moral agents under specific duties to safeguard certain substance demanded for a minimally good or dignified life of any human being. To claim that a person has a moral right not to be tortured is to justify that a host of moral agents have obligations to safeguard the enjoyment of the substance of such a right, i.e. freedom from torture. The language of rights, however, has become meaningful in effectively communicating and inspiring social and political movement, codifying the moral demands, and reforming institutions. The moral vocabularies of human rights have been incorporated into a global ethic culture. There are thus prudential reasons for keeping the rights language for the sake of linguistic conventions and profiting from its motivating power. Nevertheless, the above considerations do not rule out that the human rights thinking could profit from reflections on certain distinctive feature of humanity, which are more elaborated in some bodies of informal knowledge than others. These reflections stress the importance of human beings pursuing their goals in organized social entities. This

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emphasis recognizes individual human beings’ vulnerability to the typical threats of life. Throughout human history, people in different societies have experimented with diverse forms of social organizations and collaborative communities to cope with problems stemming from this common human condition. These forms of social organizations include family, tribe, church or temple, trade associations, workers’ unions, political parties, the nation state, and world organizations. The diverse human experiments provide rich materials for those seeking effective and realistic safeguards for equal basic human rights. Human rights theorists could respond to certain criticisms more effectively by acknowledging the prudence of seeking safeguards for basic human rights via strengthening or rebuilding historically developed, time-tested, culturally familiar forms of social organizations and communities. This would also address critics’ contention that it is through social organizations and communities that persons develop special commitments and loyalties to fellow members, which tend to be culturally more motivating for them to perform their duties toward them. For instance, human rights theorists could offset parochial group membership duties by taking into account individuals’ overlapping multiple memberships in organizations and communities, local and global, national and international. Some rights theorists have tried to wrestle with these difficult issues. For instance, Henry Shue recently responds to the ‘onerousness’ critique by clarifying his earlier rejection of the distinction between ‘positive’ rights and ‘negative’ rights.5 He proposes that not everyone always has all the duties justified by basic rights and one only has duties that are fair and realistic demands upon her. (Shue, 1980/1996, p. 170) The question remains how fairness and realistic expectations should be determined.6 Thomas Pogge, instead, sees institutional reform as an alternative to the approach that focuses on a right’s ‘directly corresponding’ duties. Pogge contends that the protection of a right may be achieved through such indirect, long-term, routes as building basic institutions. (Pogge, 1995, pp. 103–22) This ‘institutional-turn’ aims at structural, hence fundamental and far-sighted, protection and capacity building. It looks beyond the focus on reactionary duties, duties to act to end ongoing violations, aid victims, or interfere with the sources of violation or failures to protect. The institutional approach must, however, be balanced against efforts to fulfill reactionary, imminent, duties given the importance of saving lives or reducing suffering. Pogge may have recently recognized this need for balance.7 Moreover, though the institutional

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approach makes the duties to safeguard human rights less onerous, its emphasis is on over-arching, basic (national and international) institutions. It gives perhaps only an after-thought to what victims and vulnerable persons, organized locally or globally, can do to protect themselves and what their groups can be empowered to do (and do better) to perform this function. Some philosophers now recognize the differences between direct and indirect duties obligating moral agents who are differently related to rights-bearers or victims of rights abuses. Jeremy Waldron describes these diverse duties as ‘successive waves of duties.’ (Waldron, 1993, p. 25) Not all of these duties are directly involved at the battlefront in safeguarding a right at a given time – not all of them are necessary for the actual enjoyment of a right under given conditions. Shue also finds it more appropriate to characterize moral agents obligated with correlated duties to rights as ‘webs of duty-bearers’ around rights-bearers, ready to ‘become involved at various stages’ of safeguarding a right if called for on a consequentialist basis. (Shue, 1980/1996, p. 166) However, the specific relationships between duties located on the ups and downs of the ‘successive waves,’ between duty-bearers positioned differently on the ‘webs of duty-bearers,’ and between duty-bearers and rights-bearers, remain to be worked out. One objective of this chapter is to do just that.

‘Centrifugal circles’ of duties For the sake of argument, the account I intend to develop assumes (without so much as proving by presenting historical evidence), the existence of bodies of historically inherited, traditionally or practically embodied, and communally transmitted informal knowledge that vision the moral world primarily in terms of human responsibilities, duties, and obligations, rather than rights. I aim to demonstrate that an account of human rights duties, sensible to these possible bodies of informal knowledge (or cultures), is plausible. I use ‘centrifugal circles’ instead to characterize the multiple, heterogeneous, structurally integral, duties of standard duty-bearers toward specific rights-bearers. The ‘centrifugal circles’ metaphor is often used by communitarians, especially those working in the Confucian tradition, to describe the duties and obligations of persons imbedded in communities. These communitarians cite the Confucian culture as one source of the view that persons are connecting dots of social relationships of various degrees of intimacy. These relationships are said to begin with the family, extend out to local community, to society, and to humanity,

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in order of decreasing intimacy. Communitarian critics of human rights have contended that human rights’ demands for universal, indiscriminating impartial duties to all human beings are unrealistic, impossible to implement, or culturally alien to people of Confucian traditional background, and wrong. (Rosemont, 1991) The ‘centrifugal circles’ account of human rights duties departs from these critics. It emphasizes that human beings in the contemporary world have multiple memberships in heterogeneous social collaborative communities and institutions – such as family, tribe, church or temple, or civil society groups, professional affiliations, or international organizations. It assigns value to those organizations or communities and institutions that have developed or can be rebuilt to provide safeguards of at least their members’ most fundamental human rights, i.e. inherent rights: the rights to basic human security, subsistence, and freedom from fear and want. (I will limit my discussion below to these rights unless otherwise noted.) This account will also explicate the limits of these safeguards and their dependency on extrinsic rights for sustainability. This account shows that, let me state summarily at the outset, the duties to safeguard universal human rights equally for all, ideally speaking, can be fulfilled by fairly obligated and appropriately motivated moral agents without indiscriminately holding every moral agent always under active duties. A duty to safeguard universal human rights can be fulfilled by a host of duty-bearers, variously related to rights-bearers in particular social organizations and communities, governed by specific institutions, through a ‘division of moral labor.’ (Shue, 1980/1996, p. 153) The labor to safeguard a universal right is divided, so to speak, into labor to fulfill community and institution membership duties among duty-bearers who are fellow members of rights-bearers in multiple communities, small and big, intimate and impersonal, local and global. This account thus tries to be sensitive to and take into consideration of the possible cultural perspective we consider here, from which community-imbedded duties and commitments are seen as important moral concepts. Let me elaborate. This account begins with the proposition that, given any specific rights-bearer, those moral agents in the small, intimate, local communities, if they are able, should have the primary, active, duties to safeguard her basic human rights. Meanwhile, those in the increasingly bigger, more impersonal, associations and communities should have stand-by or inactive duties, ready to kick in, in the event that those in the inner circles fail due to whatever causes to fulfill their duties. All moral agents, additionally, have active duties to support institutions (including not only state, multi-national, but also

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non-state organizations and communities), in which membership duties function as duties to safeguard human rights. Examples are citizenship duties to respect fellow citizens’ constitutional rights to free expression, or membership duties in a religious community to provide education or basic health care. The effective implementation of any scheme of rights-justified duties would be impossible without effective implementation of such universal duties to support what might be called duty-enhancing institutions. Rights-justified duties are understood here as partial because they only hold certain moral agents under active duties, while others might be under inactive duties only. Moral agents’ specific schedules of active and inactive duties are shaped by taking into consideration moral agents’ special relationships with the rights-bearers. Inactive duties are potentially binding. Or, they are only conditionally non-binding. When active duties fail, they kick in. They are necessary because, in the non-ideal world, those who have active duties toward specific rights bearers more often than not fail to perform their duties. Members of various communities and organizations, who have such active duties toward fellow members by the nature of their specific relationships, have often failed notoriously to fulfill membership obligations to safeguard, e.g. fellow members’ basic security or subsistence. There have been failed states, there have been failures on the part of world organizations, but there have also been failed (or weakened) communities, oppressive social groups, dysfunctional or irresponsible families, and uncaring or negligent parents. We have known men sending millions of their compatriots to gas chambers and death camps; villagers hacking thousands of fellow villagers to deaths; local officials knowingly letting tens of millions starve by faking harvests; and fellow worshipers burning dissenters alive. Meanwhile, due to failed larger, overarching, institutions (national and international), millions of children in West African are being sold into slave labor because their families and local communities are too impoverished to care for them,8 and many children in HIV/AIDS ravaged countries are orphaned by parents and relatives infected with the viruses, stigmatized in local communities, neglected by governments.9 The rationale of this understanding of universal duties to safeguard human rights is hence consequentialist and rather compatible with communitarian emphasis on building local communities (without de-emphasizing making overarching institutions work). The ‘centrifugal circles’ analysis takes into consideration effectiveness in duty implementation and motives of compliance. It is conducive to communitarian (presumably Asian Confucian) thinking in that it recognizes that those

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who have developed special, meaningful, relationships and bonds with rights-bearers have intimate local knowledge of their particular situations and more motivated to act. According to this thinking, fellow members of local communities are in a better position to respond to each other’s special needs and provide effective assistance. They normally feel more strongly and passionately, than the average stranger, for fellow members’ suffering and they care more about their welfare. They are more motivated to act on behalf of their basic rights and interest. Without challenging the anthropological cogency of attributing these views to Asian cultural communities, the ‘centrifugal circles’ account is able to accommodate them and assume that, all other things being equal, fellow members of the same social collaborative organizations or communities, if capable, are better situated and more motivated to provide sensible and effective safeguards of each other’s basic security and subsistence. By ‘all other things being equal,’ I refer to ideal situations such as the absence of war, widespread dire poverty, ethnic conflict, or other conditions of humanitarian crisis that make social organizations, communities, and infrastructural institutions so fragile, fragmented, and unsustainable such that their members can not fulfill their membership duties to safeguard fellow members’ basic security and subsistence. Thus, this account will assume with the so-called Asian Confucian thinking that members in the most intimate organizations and communities (such as family) should have the first line of direct, active, duties to protect basic human security and subsistence. They should because moral rights demand who they are (their special ties and relationships), and because what they can (their better position). However, this account goes further, following the same logic, in insisting that those who have not developed intimate relationships with specific rights-bearers also have rights-justified duties toward them through shared membership in the larger, less personal communities. From the perspective of considerations about effectiveness and motives, such duties are understood as inactive duties, which are to become activated only when those in the intimate circles fail their active duties. By then, the effectiveness of inactive duties may change. More importantly, one reason for pushing further, along the line of communitarian (or Asian Confucian) thinking about effective and motivated performance of duties, is that, under normal conditions, local and intimate social organizations and communities cannot be sustained without the support from members of the larger communities and overarching institutions. An organization or community may become dominated by powerful individuals or sub-groups who pursue their special interest at

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the expense of dominated members. Their leaders for their own gains may have usurped the community. On the other hand, members may become aggressive toward minority members or non-members. In these cases, it is important, for the purpose of safeguarding basic human security and subsistence, that there exist safeguards in the larger, encompassing, communities, with their overarching institutions, to step in on behalf of those made vulnerable or violated by members of their own communities or aggressive ones from rival local communities. Members of the larger communities can support the smaller sub-communities in their function (if any) to safeguard their members’ basic human security (and subsistence) and adjudicate conflicts among members. In the event that some sub-committees do not function to safeguard their own members’ equal rights (to basic security, e.g.) or are aggressive in violating non-members’ rights, members in the larger communities have rights-justified duties to intervene – to assist victims, to reform or rebuild these communities so that they can be retooled for the purpose of safeguarding members’ basic human rights. Consequently, this account is able to address the communitarian and the ‘onerousness’ criticisms. A standard duty-bearer, under ideal situations, only has active duties to safeguard the rights of those rights-bearers with whom she has developed intimate relationships or binding commitments and for whose effective safeguard she is thus better positioned. These rights-bearers normally include her family members; on the next, larger, circle, members of local (e.g. neighborhood or worship or professional) communities, those with whom she has entered into an intimate personal or binding contractual relationship in social collaborative organizations of the everyday – neighbors, fellow church members, students or colleagues or regular clients. She does not have active duties to safeguard rights of all human beings impartially at all times. Each rights-bearer, meanwhile, is the beneficiary of multiple active duties simultaneously performed by those intimately related to her, those with binding commitments to her, and by those – all fellow human beings – who have active duties to support duty-enhancing institutions and stand-by duties to step in when those in intimate circles fail to fulfill their active duties. Ideally, each rights-bearer can be protected by centrifugal circles of duty-bearers with active and stand-by duties. These duties are duties of memberships in the various communities where the rights-bearer and duty-bearers are fellow members. The inner most circle consists of active duties of the rights-bearer’s family and responsible caretakers. Each outer circle consists in inactive duties, ready to kick in when those in the inner circles fail, and active duties to support communities or institutions in the inner circles, which enhance the

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duty performance of their members. The rights-justified duties of all members of the human community to safeguard the rights of any fellow human being are located on the outermost circle. They consist in (a) stand-by duties to aid victims when duty-bearers in all the inner circles fail and (b) active duties to support all the smaller, more intimate, communities and institutions (see Figures 9.1 and 9.2 on p. 197). Let me use example to illustrate these ideas about how an account of duties to safeguard human rights can accommodate communitarian or presumably ‘non-Western cultural’ emphasis on relationships and responsibilities. Under ideal conditions, an average American’s active duties to safeguard the inherent human rights to basic security need not extend to girls in Chinese villages. However, the topography of duties changes when these girls are subjected to abduction, sold into prostitution, and physically abused by those in their intimate communities, due to failures in law enforcement and defective state policies. An American may of course choose to devote himself to freeing them from their bondage and getting them safely home. Parents and other family members of these girls would have been, if they could, in the best position and should be the ones who are most motivated to protect them, from abduction. They should be the first in line to assume active duties to safeguard them. However, they may have been made powerless or turned greedy. The institution of family may have generally been weakened in rural China of the 21st century. This may have to do with over-taxation by corrupt officials, unaccountable or incompetent village leaders, rampant criminal gangs, pressure for the young and able bodies to migrate to search for work in cities, and the lack of civil society self-help or advocacy groups and weak faith communities because of government restrictions. The communities that would be next in line to take active duties to safeguard the girls may not exist or are too weak to be of any use. Members of such communities should have been in better positions to safeguard the girls than, say, those from neighboring villages or another province or from foreign countries. These less-intimately related moral agents, however, must now activate their stand-by duties – unless they too have been made powerless by forces beyond their control. However, suppose that local officials and the police, who are among those next in line, also fail their active duties not only to safeguard the girls, but also to empower the families, village communities, and local social advocacy groups. Now fellow members in the Chinese society, fellow citizens of the People’s Republic, must be called upon, justified by the human rights to basic security and women’s equal human rights to protections from violence, to activate their duties to aid victims of abduction and forced (sex) labor, and to continue performing their active duties to

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support reforms of local institutions, to make the Chinese government accountable, e.g. by eradicating official corruption and incompetence. They may perform active duty by empowering the poor rural population to benefit from the booming economy, and by ensuring equal opportunities in education and employment for women. If the Chinese government fails to assist citizens to fulfill their active duties – due to its suppressing of democratization efforts and NGO efforts to advocate the rights of victims, or if members of the Chinese society fail to fulfill their activated duties to safeguard their fellow compatriots, then, members of the international community must activate their duties to safeguard rights of fellow human beings, in this case, the rural Chinese girls subjected to abduction, forced labor, and physical abuse. In addition, they must continue to fulfill their standing active duties to support subcommunities (the Chinese society as a social and political community and the sub-communities within it – local communities, civil society groups, and the family) in their capacity-building for empowering their members to fulfill their active duties. These ideas can be graphically presented, at the risk of simplification, in Figures 9.1 and 9.2. The first is an illustration of the duties members of multiple communities have toward (see p. 197) a fellow member, the standard rights-bearer (at the center of the circles). The second is an illustration of the reversed relationships of a standard duty-bearer (at the center), who has various duties toward all rights-bearers in various communities, which form circles around the duty-bearer. (1) Centrifugal circles of duties, of various active and inactive status, of members in communities of increasing intimacy, toward a standard rights-bearer (Figure 9.1) There may be many other circles that can be inserted between the family and the human community, as bigger or smaller ‘local communities’ than I could detail here. ‘Local’ is a relative term: it can refer to ‘national’ or ‘regional’ (e.g. African continent, or East Asian) from the international perspective or ‘provincial’ from the national perspective. (2) Centrifugal circles of duties, of various active and inactive statuses, of a standard duty-bearer toward rights-bearers in various communities of decreasing intimacy or binding force (Figure 9.2) Figure 9.1 and Figure 9.2 are two images of the same set of ideas. Figure 9.1 highlights how the standard rights-bearer should be safeguarded by the multi-party duties-bearers who have active and inactive

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Human community and international institutions

Local Communities and local & national institutions

Family & intimate relationships Rightsbearer

Figure 9.1 Centrifugal circles of duties toward the standard rights-bearer

Fellow human beings

Fellow members of local or national communities

Family members and intimate relations, those under one’s direct care Duties-bearer

Figure 9.2 Centrifugal circles of duties of the standard duties-bearer’s

duties toward her. My family members and intimate circles of relationships, when they are capable, have active duties ‘to protect, aid, or not to deprive’ me, a standard rights-bearer (this differentiation is by Shue (1980/1996, pp. 76–8)) while my less intimate relationships, including any other human beings, have only indirect duties toward me but active duties to

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support the intimate communities or institutions that enhance performance of the active duties of my intimate relations toward me. Figure 9.2 highlights how the standard duty-bearer’s duties reach outward to all members of the human community. Only a small number of these duties, ideally, are always active or constantly binding. Active duties go far beyond the family, though. I have active duties to my family and fellow members who are under my direct responsibilities to protect, aid, or not to deprive in the intimate collaborative organizations and communities: my students (if I am a teacher), my patients (if a doctor or nurse), residents of my precinct (if a police officer), abused women (if social worker at a shelter), or orphans (if a worker at an orphanage), or constituents (if an elected official). Though one’s active duties can be many, they are still significantly smaller in numbers and less demanding than non-discriminating, un-differentiated, direct duties to protect, aid, or not to deprive of the basic rights of all human beings. This account of human rights duties is not as marginalized as it may impress one at first. Some of its key ideas are actually implicit in the Universal Declaration of Human Rights, for instance. After enumerating the list of human rights, this document states, ‘Everyone has duties to the community in which alone the free and full development of his [or her] personality is possible.’ (UDHR, Article 29) For the ‘free and full development’ of one’s humanity to be possible, of course, more than one community is necessary. The language of Article 29 suggests that, nonetheless, if the free and full development of everyone’s humanity, which requires the guarantee of one’s enjoyment of the substance of human rights, is only possible in (heterogeneous) communities (including the community of humanity), then everyone has duties to these communities, including duties to support them and to enhance their capacity to guarantee the enjoyment of human rights by their members. Moreover, the UDHR has arguably stipulated human rights as a variety of membership rights in the human community and the sub-communities within it: civil rights, political liberty rights, and legal rights as membership rights in a political community (the state),10 marriage rights and right to social security as membership rights in a society,11 workers’ union rights, property rights, and right to development as membership rights in social-economic communities,12 and rights to culture, to religious freedom, as foremost membership rights in cultural or religious communities, which must be respected by both fellow community members (the majority and leaders) and members of the larger society/state.13

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Fairness, impartiality, and institutions To flush out implications of the ‘centrifugal circles’ account, we must work out complex calculations to determine which duties must be active or inactive, and what the specific schedules of duties toward specific rights-bearers should be. Such schedules may never be fully calculated in scientific precision or in the abstraction. It is constrained by consequentialist assessments, considerations of fairness, and requirements of the priority ranking of human rights under given conditions. However, this task is made easier by a division of moral labor suggested by this account. By way of further addressing the ‘onerousness’ criticism, let me elaborate, for example, how an active duty to safeguard one specific right of a specific right-bearer can be fulfilled through a division of moral labor. Shue has shown that the moral labor to fulfill a rights-justified duty can be further divided into fulfilling several sub-duties: duties to protect, to aid, and not to deprive (Shue, 1980/1996, pp. 76–8). I argue that these sub-duties may be more effectively fulfilled by variously situated dutybearers with specific relationships to the rights-bearers in question. Thus, some are better positioned and more motivated than others, due to their particular community membership or collaborative social organizational ties, to protect, to aid, and to not deprive. Some are thus better positioned to fulfill a combination of more than one of these sub-duties, perhaps different combinations at different times. (This is why it is simply counterproductive for all of us to join UN peacekeeping missions when ethnic violence breaks out!) There are multiple ways in which one can fulfill a sub-duty, say, to aid victims. One can join a humanitarian operation, donate money, become active in a campaign to aid victims, or support institutions (by paying taxes, or membership dues, participating in institutional reform efforts, and so on) that work toward empowering the vulnerable and enhancing duty performance by their fellow community members. It may be more effective, than donating money for humanitarian relief, for me to fulfill such a duty by supporting accountable and effective world organizations that provide effective support for member states to safeguard the human rights of their citizens or sanction them for violating human rights domestically. Misjudgment of who has which duties to do what, toward whom, may lead to blames on victims for failed duties. Such failures, however, may have been caused by the utter powerlessness of duty-bearers in communities destroyed due to decisions made or actions taken by powerful parties. For example, holding HIV/AIDS-infected mothers accountable for

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infecting their babies or neglecting the care for their children shifts the burden of duty from institutions or individuals, whose policies and practices have impeded prevention of the spread of HIV/AIDS. Sound judgments in assigning responsibilities and blames must take into consideration forces or courses of actions beyond a duty-bearer’s control. This call for consideration of institutions draws attention of moral scrutiny to those agents responsible for weakening families and destroying local communities. In the case of the HIV/AIDS-infected villagers in China’s Henan Province, for example, in judging duty performance, one must hold accountable local, provincial, and national government officials for failures to protect and aid the children of HIV/AIDS-infected parents. In the late 1990s, after the pandemic was identified in this inland agricultural province, which spread due to unsanitary practice in collecting blood by government agencies for commercial purposes, officials and the police harassed journalists, doctors, and activists, who tried to inform the public, educate villagers, and assist victims. The local government, meanwhile, failed its active duties to enforce the law forbidding unsanitary blood collecting, to protect a free press, and provide basic health care for the infected population.14 I want to draw attention to several important features of this ‘centrifugal circles’ account: Permissible partiality This account permits a duty-bearer to be partial in fulfilling her duties as demanded by human rights. She can first fulfill her active duties to those with whom she has developed special relationships and has made special commitments. This permissibility for partiality need not imply unequal protection of basic rights. If all duty-bearers who are capable of fulfilling their duties would act at their best in this manner, albeit partial, the basic rights of all human beings could be equally safeguarded given available resources and current state of modern transportation and distribution tools.15 Human rights’ intrinsic demand for equal protection also implies a concept of fairness. It is only fair, according to this concept, that human rights be equally safeguarded for all, including not only rights-bearers but also duty-bearers in any specific situations.16 In other words, it would be unfair if, in performing their rights-demanded duties, the duties-bearers’ own rights or the rights of those under their direct responsibility, of the same kind or not, must be infringed or neglected. This notion of fairness, to the extent it is palatable, is thus consistent with the above account of partiality. ‘The impartiality critique’ – that human rights hold everyone universally under impartial duties to all fellow human beings, which clash with

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cultural conceptions of ‘obligation’ or ‘duty’ as partial, and that human rights leave little room for special ties, loyalty, and commitments – can now be addressed in the following fashion: The ‘centrifugal circles’ account has a realistic understanding of special relationships and commitments. It permits a standard duties-bearer to prioritize her duties to those she has developed special relationships and made special commitments. One way to layout this response is to differentiate it from the utilitarian account, which maximizes effectiveness in implementing rights. My response permits one to prioritize one’s active duties even if doing so does not maximize the overall utility of safeguarding the equal rights for all. Imagine that many children, including one’s own and those in communities or social organizations of one’s intimate or immediate responsibilities, are severely malnourished. My account permits one to care for one’s own children first or make sure they do not get worse, before one assists other affected or vulnerable children, if one is still capable. Indeed, this account requires one to care first for one’s own and those under one’s direct responsibility, making such care one’s priority. If every parent, when capable, fulfills her priority duties, and is empowered by society and the larger institutions to do so, most children in the world would be protected from malnourishment. Meanwhile, when children suffer equally from severe malnutrition locally and in far away place, those who do not have parental duties also have active duties to aid victims who are near and dear first in their neighborhood, churches, villages, towns, or through their special commitments vested in various social roles, e.g. as teachers, doctors, relief workers, or policemen, before they aid victims farther away. My account considers this is however an optimal solution, but it does not aim at maximizing the outcome as a utilitarian solution would. In the reality of our world, however, in societies where child malnutrition is severe and widespread in particular, the infrastructural and institutional conditions are such that the obligated parties (parents, relatives, or local intimate communities) are themselves powerless and often suffer from severe deprivation themselves. The question concerning duty to protect the relevant rights, then, is whether well-to-do people in the larger, less intimate communities in far away places have what sort of duties toward malnourished children and how such duties might be fair. Without activating these people’s duties, malnourished children would receive little assistance from their intimate relations, from those presumably who are naturally disposed to love them, from those directly obligated to protecting them (even if we assume that those in their intimate circles tend to know how to protect them better than

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those outside). In such a situation, my account requires those who are well-situated or capable to assist these children, whether they are dear or near to them, but only after they have fulfilled their special commitments or immediate obligations, if failing of which would result in equally severe consequences (i.e. problem of malnutrition affecting those in their outer circles of relationships). In other words, the ‘centrifugal circles’ account permits the wellsituated to fulfill their active duties to safeguard the basic subsistence of the relatively fewer children near and dear to them first. It does not require them to leave these duties behind even if doing so can maximize the number of children protected or assisted from malnutrition, supposing, for instance, the cost of keeping one child from malnutrition in a wealthy society might be higher than the cost of keeping many children from this condition. Suppose, one’s own child has a rare disease which requires costly medical care in order for the child not to be malnourished. It is permissible, under this account, but not under utilitarianism, for the parents to seek the necessary medical care for their child, even if doing so would tie up funds that could otherwise be used to save many more children suffering from malnutrition in poor countries. In this case, the right that all these children are equally entitled to is a similar right to basic (physical) security or freedom from malnourishment. The parents, doing what the ‘centrifugal circle’ account requires, are not prioritizing protection for a less important right of their own child over a more important right of many more other children. This account, however, does not allow one to fulfill one’s active duty to safeguard a less important (non-basic) right of one’s own child first, before one fulfill one’s duties to safeguard a more important right (a basic right or an inherent right) of other children. Thus, if we alter our hypothetical in the above, suppose the child has a condition that impedes her speech. The parents and educators may have active duties to assist the child if the condition, when untreated, would make her disadvantaged in learning and in effectively exercising her right to free expression. However, the duties invoked here, though they are justified by the relevant rights (the right to free expression, e.g.), are duties to fulfill rights that are of lesser importance or urgency than, say, the basic subsistence right to freedom from malnourishment, according to the hierarchy of rights worked out in Chapters 7 and 8. When the inner circles of duties-bearers fail their active duties to safeguard this basis subsistence right of poor children in another country, on another continent, then, those in a wealthy country have to activate their previously inactive duties to aid these children. The activation of these duties is

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demanded by the fundamental rights to basic subsistence. These duties may then justify diverting, if necessary, as it rarely is, resources for assisting children with conditions impeding their ability to express themselves to the assistance of malnourished children in poor countries. The ‘centrifugal circles’ may not capture the complex personal commitments to various rights-bearers through familial, communal, national, and international relationships. Rather, it demonstrates that duties justified by basic human rights are compatible with personal commitments and leave room for special relationships. In the ideal world inhabited by loving parents, harmonious families, caring fellow members in local communities, responsible professional caretakers, uncorrupt officials, and so on, if every capable person fulfills active duties if those dear and near primarily, it should suffice to safeguard the rights of most members in the human community. This ideal scenario, indeed, would make the impartial duties of human rights stay mostly inactive. In the real world, however, partial duties are unreliable and duties-bearers themselves are often powerless to act. The impartial duties toward all members of the human community must be required of duty-bearers as a fall-back, or an insurance policy. Those who reject human rights because they demand impartial duties have no satisfactory response to the reality of failed partial duties due to irresponsible or devastated families, repressive or dysfunctional or weakened communities, exploitative or undermined social organizations, corrupt officials, and failed national political communities. Such critics, communitarians often among them, also need to come to grips with the reality that intimate communities and local organizations are capable of inflicting harm on their own members and neglecting special commitments and partial duties.17 As I argue in Chapter 4, social organizations and communities in non-state sectors are themselves vulnerable to standard modern threats and cannot survive without protection by national or international institutions that secure freedom of association, assembly, and religion, and that grant special privileges or immunities to intimate local communities. It is important to human rights as a modern response to the catastrophic failures of our times to fulfill our duties to safeguard basic human freedom from insecurity and below-subsistence existence of persons, to whom we have developed intimate relationships or made special commitments. Duties: ‘onerous’ but mostly inactive The above response to the ‘impartiality critique’ has entailed a response to the ‘onerousness critique.’ Let me sum it up.

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The standard duties-bearer’s human rights duties are less ‘onerous’ than they may seem, according to the ‘centrifugal circles’ account. Many of these are normally inactive. Furthermore, this account divides up the labor of fulfilling an active duty to safeguard a right. For example, my child is also the beneficiary of active duties performed by my spouse and other guardians, her teachers, nurses, doctors, local officials on the Board of Education, those making policies on health care and so on – though in different capacities. My elderly parents’ right to basic subsistence benefits from my active duties, but also those performed by my siblings, my parents’ doctors or social workers, policy makers, and so on. Permissive assignment and implementation of rights-justified duties are restricted by the idea of fairness – the idea of equal human rights for all. Duties to safeguard specific rights, following from the discussion above, should not be implemented in ways that infringe upon the dutybearer’s own similar rights or similar rights of those in her inner circles of communities. (I may of course choose to put myself in danger in order to safeguard others’ basic rights. Such supererogatory acts, however, fall outside the concerns about what one ought to do to fulfill one’s rightsjustified duties.) Moreover, because of the priority ranking within the system of human rights, which are worked out in Chapters 7 and 8, my duty to safeguard a right of myself or those in my inner circles has a moral priority over my duties to safeguard a similar right of rights-bearers in my outer circles of communities, e.g. the less intimate community of humanity. These points contain a preliminary response to the ‘onerousness’ or ‘un-fairness’ critique – rights-justified duties are too demanding, unfair, and impossible to fulfill. Let me elaborate by saying something more about the idea of a division of moral labor in fulfilling rights-justified duties, as implied by the ‘centrifugal circles’ account. This idea essentially refines our usual understanding of ‘can’ – the capability to act according to the moral demands of human rights. We usually assume (implicitly) that ‘can’ means an individualized capacity of each moral agent to act according to such demands. This account refines this understanding of ‘can’ by restoring it to the sensible understanding of ‘can’ as a collective capacity of all members in the human community to fulfill such demands through collaboration. Each duties-bearer is called upon to do what she can – in her capacity and under given institutional and other conditions, in accordance with requirement of fairness. One duties-bearer cannot safeguard any one of the most basic rights universally, but together all of us can share the duty to safeguard such a right through collaborative schemes of labor division: each of us fulfills his or her active duties, first,

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in intimate communities and then, when necessary, in communities that are less personal and remoter. At the same time, of course, we all have active duties to support larger, overarching, institutions that enable members in intimate communities to fulfill their active duties. This idea of moral division of labor elaborates the idea of fairness of rights-justified duties. I mention above that one notion of ‘fairness’ is implicit in the requirement for equality of each and every human being’s rights protection. This requirement means that the demand to fulfill rights-justified duties does not justify neglecting or infringing upon the protection of similar rights of duties-bearers themselves and those of their relationships and fellow members in their intimate communities. ‘Can’ refers to the possibility of achieving rights protection when all duty-bearers fulfill their active duties to those near and dear and their active duties to support duty-performance enhancing institutions. To introduce the division of moral labor may seem to let duties-bearers off the hook. Those who may raise this concern occupy the other end of the spectrum of criticisms. These critics must be reminded of the extensiveness of one’s direct relationships and responsibilities. Such relationships may come into existence even without kinship, shared social identity, explicit contracts, or short geographic distance. In the era of globalization, we must recognize special relationships and direct responsibilities that link strangers from remote corners of the world. They may have entered such relationships unintentionally or without contractual consent. However, once entered, these relationships have moral consequences and such consequences establish ethical responsibilities. For example, you may unintentionally enter a relationship with poor people in a distant oil-rich country. You benefit as consumers because the greedy and ruthless dictator of that country sells the government or private companies of your country cheap oil while oppressing and impoverishing his own people. Through your representative government or the companies whose products you buy, through your consumer choices, you enter a relationship that links you to the deprived people of that country. This special relationship has moral consequences – the deals contribute to the perpetuation of these people’s deprivation. This relationship thus gives rise to special obligations to parties who benefit from it – the obligation not to harm or to protect those whose lives are negatively affected. In other examples, the coffee growers in Colombia may not have intimate communal relationships with coffee consumers in North America and Europe, but they now have entered a direct relationship with moral consequences in the era of global coffee trade.18 Likewise, villagers in Southern China, who live near dumping grounds for global toxic rubbish,

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have entered a cause–effect relationship with those in toxic-rubbish exporting countries, who paid to have their rubbish removed for health concerns and hence have transferred the health hazards to the Chinese villagers. A duties-bearer who consumes Colombian coffee, or benefits from an environment free of toxic rubbish, enters direct, special, relationships with the coffee growers and Chinese villagers. These relationships obligate her under active duties to protect, aid, and not to deprive those at other ends of the relationships, who suffer from the consequences of her choices. She would otherwise have only stand-by duties to protect or aid the Columbian farmers or Chinese villagers. The institutional turn What has emerged from the above is clearly the recognition that human rights implementation requires strengthening and building institutions at the levels of state and international, and more importantly, at the level of non-state sectors. This account of human rights duties is thus able to address concerns raised by the ‘statist critique.’ Critics maintain that rights-justified duties rely on the modern state and multinational agencies for enforcement, hence neglecting the critical role of social organizations and local communities in motivating compliance and facilitating implementation. The ‘centrifugal circles’ account responds in two ways: ‘Yes,’ ideally, membership duties in collaborative social organizations and intimate communities, which can be meaningful and motivating, may suffice to guarantee their members, basic human securities which human rights seek to protect; and, ‘No,’ in the real world, these non-state social institutions have proved often unreliable for providing such protection of their members and vulnerable to standard modern threats. For effective functions to achieve the desired protection, these non-state institutions must be strengthened or, where they failed, rebuilt by institutions vested with legitimate power and authority, i.e. state and multi-state institutions. This account fully acknowledges the role of collaborative social organizations and intimate communities in providing effective safeguards of basic human rights. In such non-state institutions forged by personal loyalties and commitments, the wheels of duties can be sufficiently oiled to turn smoothly. Efforts to promote human rights must thus work through such institutions, where they exist and remain functional, or invest in their development. Where they fall apart or malfunction, such efforts should rebuild and retool them. The sentiments of loyalty, commitment, passion, and empathy, which are cultivated in such organizations and communities, supply the cultural capital for implementing any

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regime of moral ideals or ethical standards. From this consequentialist, means–end, perspective, a regime of human rights and human responsibilities benefits from viable and properly functional non-state institutions: collaborative social organizations, intimate communities, and the family. What this account has consulted with is not a romanticized view of communities or non-state institutions. Such institutions can and have often become dominated by self-serving leaders or intolerant majorities. When they are robust, they do not always serve the interest of their members in safeguarding their basis human securities (from violations of basic human rights). The modern state, in order to protect the basic human rights of its citizens, must set limits to its support to non-state institutions and to what these institutions can permissibly do to their members. However, while recognizing this role of the state, its legal and constitutional restrictions, this account stresses the vulnerability of non-state institutions to the threat from, precisely, the modern state or multi-state institutions. As detailed in Chapter 4, non-state institutions (civil society or private organizations) are no match to the overwhelming and coercive force of the modern state and multinational agencies. When their powers are un-checked, the state and multi-state institutions are capable of the most gross rights violations of individuals as members of local communities, civil society or private sector organizations. The emphasis here is thus the desirability, from the perspective of human rights, to strengthen and build viable social organizations and communities in ways not only to enable them to safeguard the basic human rights of their members, but also to empower them to resist pressures from state and multi-state institutions. At the same time, it becomes clear that it is desirable to strengthen the accountability of supra-national institutions. Such institutions can exercise some oversight on state and multinational institutions, holding the later accountable for their destructive or irresponsible policies and pursuits. In these regards, the present approach goes beyond – below and above – the ‘statist model’ critics that have attributed to current efforts promoting human rights. The modern nation states, though perhaps the most readily available instruments today for effectively safeguarding rights, cannot adequately respond to globalization’s challenges to human rights. The modern states have not been reliable for protecting their own citizens from the negative impact of global trade and investment.19 Such failures and unaccountability on the part of many modern states demand the development of internationally binding institutions, such as the UN organizations with its human rights mechanisms,20 properly strengthened

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and reformed, and of a vibrant international civil society consisting of, say, local and supra-national NGO networks, monitoring state and multi-state players’ performance in protecting human rights. Globalization, despite its negative effect has made possible the development of a vibrant international civil society, turning the previously Utopian vision of a community of humanity into an increasingly meaningful reality. As illustrated in Chapter 1, such a culturally creolized community is emerging, such that it too has generated loyalties and shape commitments through unconventional relationships. These cosmopolitan community loyalties and commitments will motivate members of the human community to act dutifully toward fellow members, whatever their nationality, religion, ethnicity or ancestry. One argument for preferring the modern state than supra-national institutions is that, for the purpose of safeguarding human rights, it is more manageable than any form of ‘world government.’ According to this argument, the diverse historical backgrounds and social, economic, and political conditions are bound to derail any efforts at building social cohesion necessary for a world political community. Citizens of a world government would lack shared experiences, common traditions, and a shared sense of identity. Among such shared experiences, as Walzer argues, are the experience of social collaboration in fighting for unity or independency and the experience of constructing national institutions and a national political community. These experiences, in Walzer’s view, constitute a good in and of themselves. They give rise to a right of the people to their own political community.21 The social cohesion that grows out of such experiences makes it easier for the state to do its job, e.g. to collect taxes and redistribute wealth. Moreover, Walzer and others argue, contractual relationships exist at least between representative states and their citizens, which are largely missing between any imaginable world government and world citizens. This argument, however, does not provide a sufficient basis either for supporting the statist approach to enforcing duties to safeguard inherent human rights or for ruling out the possibility of viable ‘world government’. As discussed in the above, accountable supra-national institutions have several advantages over the states which can be summed up as follows: First, the world still has no shortage of non-representative governments with track records of abusing their own citizens’ human rights. Secondly, even accountable state institutions may sometimes abuse the human rights of minority citizens (though such mistakes are in principle correctible within their political systems).

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Thirdly, humanitarian interventions,22 required by activated membership duties to safeguard rights in the community of humanity and justifiable by rights underpinning these duties, may run into opposition from a majority of citizens voting democratically in their national political community.23 Fourthly, failed or imploding states lack the infrastructure to prevent and constrain powerful non-state actors, such as militias, religious fanatics, or terrorist organizations, from preying upon vulnerable populations. Fifthly, few states are equipped to seek accountability from multinational actors (e.g., international drug or weapon or human trafficking networks, multinational corporations investing or subcontracting businesses in countries with loose labor standards) for harmful and irresponsible actions with negative consequences on human rights.24 Each of these disadvantages of the statist model can be spelt out better than I have. It suffices to say that supra-national institutions are vital for safeguarding human rights under the given conditions of the modern states as we know them. Consequently, this vitality argues in favor of taking steps to strengthen the existing regime of international human rights governance and transcend the currently dominating statist approach. The existing regime has demonstrated some, though rather limited and sometimes counter-productive, efficacy in providing safeguards and seeking trans-national accountability. It must undergo drastic reforms, however, to meet the challenge of enforcing membership duties in the community of humanity when these duties must be activated. One major problem contributing to the ineffectiveness of the UN (the closest to a supra-national institution) in protecting human rights is the lack of accountability of state parties who often politicize the process of operating the UN’s human rights machinery.25 The irony is that numerous member states holding seats on key UN agencies entrusted with the responsibilities for protecting human rights around the world are themselves abusive of human rights and politically accountable for their behavior toward their own citizens. When a member state’s human rights performance is the subject of evaluation by the UN’s human rights bodies, the same member state continues to enjoy voting right on such a matter, and political influence on the decision. Any member states that systematically violate human rights at home must forfeit their rights as voting members on a world body working to protect human rights.26 The problem remains that unaccountable governments holding seats in such world bodies make political deals with each other to secure votes in their own favor. They are less responsive than democratic governments to disclosure of such scandals in the press and to

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opinions of citizens at home (including those whose rights are abused by the same governments). One necessary institutional reform is thus to increase accountability of such international agencies (as the UN human rights Commission) by requiring member states to take steps to become democratically accountable and to have demonstrated commitments to protect human rights domestically and abroad.27 One logical step such a reform should ideally take, for example, is to grant democratic member states with clean records of rights performance more votes since they are, in principle, procedurally bound to accountability to their own citizens for their behavior domestically and internationally. Moreover, such states should play rotating leadership roles in human rights bodies, while non-representative states that generally respect human rights should have voting rights, but states that systematically suppress pro-democracy reform efforts at home and abuse human rights of their citizens can only have consultative status. These are logical steps that should ideally be taken in order to be true to the UN’s commitments to human rights. They give member states the incentives to respect human rights and permit political reforms at home. Reforms like these contribute to the existing human rights bodies’ moral and political legitimacy, generate public support for their decisions, and help motivate compliance worldwide.28 Effective supra-national human rights institutions are crucial, to sum up this last section, in enforcing stand-by or active duties of members of the human community to safeguard at least the most fundamental human rights. They are necessary due to chronic failures or weakness in duty performance in more intimate, local or national communities. It is also crucial to empower or rebuild these communities. Moreover, accountable international human rights decision making and enforcement institutions provide the mechanism to ensure equal participation in the continuing debates and dialogues, internationally and domestically, about desirable social, economic, and political institutions for a peaceful and prosperous world. Such equal participation, not only by state parties in world forums, but more importantly at the national level by their own citizens, especially those who are silenced by their own governments, is crucial for the meaningfulness of such inter-faith, cross-cultural, and trans-national dialogues. To conclude the book, I highlight, in the Postscript, some of the practical implications of the classifications and analyses it has tried to make.

Postscript

This is a book about the ethics of culture and human rights. Yet I have not managed to examine all relevant topics. I discuss culture only where ethical debates about human values habitually defer to, hence have invited culture, particularly cultural differences. I do not intend to traverse territories of anthropologists and sociologists who toil to enlighten us about cultures. My interest goes only so far as spelling out some of the implications for ethics of the specialists’ contested findings. More precisely, then, this is a book about the ethical significance of cultures – properly understood as paradoxical – for the theory and, to a lesser extent, practice of human rights, with implications for the quest for human values and common standards of conduct in general. Due to this constraint, this book defends the idea of human rights also in a rather limited manner. It elucidates the plausibility to validate human rights with an awareness of the culturally complex world. It is thus not intended to compete with theories providing systematic justification for human rights. It only aims to supplement other theories with an appreciation of the culture factor in human life. I hope I have recast the arguments about human rights’ universal justifiability and applicability in the light of an inventive and appealing understanding of culture. I approach this familiar subject with a harder and more persistent push, than I have seen attempted, for conceptual clarity. Particularly, I seek to lay plain what such an approach entails for many assumptions and substantive beliefs we have, e.g. about the importance of cultural differences for ethics, the relativity of morality to culture, the protection of ‘collective’ interests or ‘group’ rights, including right to culture, the stringency of the requirements for tolerance and pluralism, and the possibility for justifying universally applicable human rights standards. 211

212 Postscript

This approach takes seriously, nonetheless strictly qualifies, the significance or relevance of cultures to ethics by disaggregating and sorting out the various roles of cultures in implementing ethical norms and developing moral motives. It takes us beyond the ‘Asian values’ debate, beyond the ‘moral universalism vs. cultural relativism’ confrontation that has often framed the relevant discourse. It decidedly weakens the case for cultural relativism by adopting the understanding of cultures as internally contested, with shifting and porous borders, hybridity, and changing identities. Consequently, I draw attention to the ethical significance for human rights of the overlooked commensurability between different cultures. By way of concluding, let me highlight some practical implications of the analyses and clarifications I have made in this book. First, human rights policy-making and institutional reforms must accord a firm priority to safeguarding inherent rights, the fundamental rights to basic human security and subsistence, or basic freedom from fear and deprivation. These rights enjoy robust justification by foundational human values. For the sake of safeguarding them, we make necessary trade-offs and institutionalize other rights and duties. Second, to achieve genuine cultural sensitivity in such pursuits, we must attend to the full complexity of culture. A common mistake we often make is to conflate cultures with discrete societies, nation states, or ethnic groups. This mistake makes it difficult to divert our fixation on inter-cultural differences to intra-cultural diversity and inter-cultural convergence. A genuine sensitivity to culture demands us to give proper due to the paradoxes of culture. We must thus be skeptical to claims to cultural uniformity, incommensurability, or static-ness in any geopolitical regions, societies, or social groups. The burden is on those making such claims to prove that their cases are exceptions to the norm of paradoxical cultures. Claims about ‘Chinese characteristics’ or ‘Asian values,’ for example, lack genuine cultural sensitivity to the complex texture of cultural life in China or Asia unless their exceptionality to the norm can be demonstrated. Third, to take the culture factor seriously in assessing norms and policies, we must consider the impact of diversity within a culture. To the extent that cultural perspectives matter to ethical evaluation or policymaking (concerning honor killing, e.g.), diversity of opinion at the local level matters at least as much as regional or international differences. To be sure, internal diversity in a culture does not necessarily make international consensus (e.g. about justice and protection of women) easier. Yet the fact that international diversity in moral

Postscript 213

judgment often mirrors internal diversity in a community significantly undermines the claim to cultural incommensurability and the normative significance of any differences between whole cultures. Consequently, if we are to take seriously the need to involve people outside our own culture in deliberation about moral problems (the treatment of women in this case), we must regard the opinion of those among them who disagree with us as no more respectable than that of those among them who agree with us. Fourth, to be sensible and sensitive, the ethical significance of culture must be carefully disaggregated and qualified. It is important either to qualify that culture does not have a strong heuristic significance in providing causal explanation, or a normative significance in providing justification for the views or behaviors of members of the relevant culture. However, an understanding of moral agents’ cultural background makes their judgments and actions more intelligible. We must thus avoid making general claims about the ethical significance of culture. This analysis allows us to infer that a cultural invalidation of a proposed standard of behavior or policy does not have the normative weight usually attributed to it. This argument takes the first step toward undermining the ‘culture vs. human rights’ dichotomy. Fifth, there is a good case for recognizing ‘the right to culture’ as a human right. As I argue in Chapter 4 (and also Chapter 8), the right to culture is instrumental to protecting the inherent rights of members of vulnerable cultural communities. Certain special membership privileges or exemptions help sustain cultural communities that have been able to offer locally suited and effective safeguards. So long as there are such communities, membership rights in such communities must be recognized and protected under a regime of human rights. The demand for protecting the right to culture, however, cannot be met without safeguarding certain political–civil rights such as rights to equal representation, freedom of association, expression, assembly, and conscience. Sixth, cultural pluralism (or multiculturalism) must be promoted with (independently justifiable) moral purposes such as protecting equal rights or promoting liberal choice. Cultural pluralism, as I argue in Chapter 5, is premised on and limited by such moral norms as equality and liberty. A defensible policy promoting cultural pluralism (e.g. allowing diverse languages being taught or wearing traditional symbols or practicing traditional customs) is constrained by the requirement of upholding the moral norms that legitimize pluralism. Policies categorically advocating the ‘hands-off’ approach to culturally diverse practices

214 Postscript

are inconsistent with and sometimes may be in violation of justifiable principles of tolerance and multiculturalism. Such principles may demand ‘hands-on’ and interventionist, or even intolerant, actions if the relevant cultural practices violate the moral norms upholding these principles. Seventh, it is of critical importance to develop cultural capital for implementing valid moral visions or ethical principles. By ‘cultural capital,’ I refer to products of culture that facilitate the effective implementation of valid principles. Such products are bodies of informal knowledge embodied in customs and symbols, incorporated in practices, socially transmitted in communities, and cultivated into dispositions and sentiments. Investment in building cultural capital is crucial, by inference, for implementing human rights effectively.1 The cultural capital of human rights can facilitate (1) forming the motivation to act in compliance with, (2) efforts to implement, and (3) public support for, human rights. The attention to cultural capital is another crucial move to go beyond the ‘culture vs. human rights’ dichotomy, toward a better appreciation of their compatibility and inter-dependency. It suggests a shift in human rights institution-building and strategic policymaking. It proposes a new focus on promoting the embodiment of the human rights principles and standards in symbols (e.g. vocabularies) and customs (e.g. holidays). It urges more efforts to incorporate human rights instruments and procedures in practices (e.g. equal schooling for boys and girls, or presuming innocence of criminal suspects until proven guilty). It also advises facilitating the cultivation of certain dispositions and sentiments (such as tolerance of differences and aversion to atrocities). This last practical implication addresses concerns raised by some ‘cultural’ critics of human rights. One such concern is that, for human rights principles to have universal appeal and binding force, they must be communicable, using symbols and vocabularies familiar to people in different cultures. People must be able to relate to, and find expressions for their aspirations in, the language of human rights.2 Human rights must appeal to culturally developed sentiments and habits of the heart and mind.3 Those who find human rights disconnected to their aspirations may see little reason for modifying their practices and supporting institutional reform for respecting human rights.4 Investing in the growth of cultural capital favorable to human rights protection is thus a practical necessity – for the sake of reducing ‘the enforcement costs.’5 Some rights theorists have reacted for instance, by calling for taking seriously ‘descriptive cultural relativism.’6 What these theorists want us to

Postscript 215

pay attention to is not an actual (descriptive) relativity of morality to culture. Descriptive relativity has yet to be established on empirical grounds. Rather, what they draw our attention to is the role culture plays in motivating compliance, reducing enforcement cost, and generating sustainable support for human rights. This recognition has been incorporated into international conventions on human rights. The Vienna Declaration (1993) adopted clear language about the crucial role of culture in promoting human rights: ‘The significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.’ International conventions have stipulated ‘the right to culture’ as a human right, moving beyond the ‘culture vs. rights’ opposition. Eighth, for effective and sustainable human rights governance, it is critical to build both civil society communities and state/multi-states institutions. The development of cultural capital and the effective (and fair) enforcement of duties to safeguard rights require long-term investment in strengthening or rebuilding communities, social collaborative organizations, and national/international institutions. Only when these communities, organizations, and institutions are viable and healthy, could the cultural capital of human rights be developed, and the fair and realistic division of moral labor operate optimally. One prerequisite for strengthening cultural communities and social organizations is the guarantees of equal participation and representation, freedom of expression and assembly, and freedom of information, however. Yet, these rights cannot be meaningfully exercised unless the institutions protecting them can themselves be consolidated. Strengthening communities and civil society organizations thus must also invest in building legal and constitutional protection as well as international mechanism. Herein lies yet another practical reason for the inter-dependency of human rights and culture. These practical implications do not exhaust the messages entailed by our discussions in this book. Those who aspire to safeguard human rights must act in the face of dilemmas, competing demands, and uncertainties, all unfortunately inherent in the human conditions of the contemporary world. The paradoxes of culture present only one instance of such challenges. It begs the question to react to moral disputes presumably between cultures by granting equal weight to diverse perspectives – treating them as equally relevant for ethical reflection. If differences between cultures ought to have any normative significance to ethics, differences within a culture must not be glossed over. Conversely, if uniformity found presumably

216 Postscript

within a culture is granted a normative ethical significance, then, similarity apparently found between cultures must also be given such a consideration unless one presents compelling reasons for its dismissal. A plausible account of the ethical significance of culture must make sense of the willingness apparently found in many societies to alter or abandon presumably local cultural perspectives or traditional practices, for example, as in the cases of female circumcision, foot binding, widow burning, or honor killing. Thus, while slavery, torture, the subjugation of women, and racial discrimination, for instance, had been practiced in many parts of the world, the more recent objection and abolishment of these practices, demanded and supported by people in some of the same societies, must be taken seriously by anyone urging cultural sensitivity. But more importantly, I take seriously the sense that though practiced in many different historical, social and cultural contexts, such acts as slavery, torture, genocide and subjugation of women and so on are in a compelling sense, expressed perhaps in different moral vocabularies, simply wrong wherever and whenever anybody is subjected to them. Moral disagreements and convergences among people change over time, leaving those seeking ethical guidance by consulting cultures, the status quo perceptions or behavioral patterns, at a loss. Moral agents’ divergent or similar cultural backgrounds, to the extent they can be singled out from other background conditions, do not in any case adequately explain the causes and motives of their agents’ judgments and actions, nor does such information justify their judgments and actions. However, prudence advises not ruling out considerations of the culture factor in morality and policy thinking altogether. No moral ideals or ethical principles (such as those embodied in the language and institution of human rights) could be meaningfully realized without the necessary cultural capital. The lack of shared perspectives, inadequate information, as well as our chronic poverty in imagination of other human lives, have more often than not led moral judgments astray and produced phenomenal failures in saving lives and relieving human suffering. Nevertheless, not all is lost. Human collaboration to achieve at least the modest objectives of safeguarding basic human security and subsistence has become realistically possible today. Such minimalist goals can be reasonably expected to appeal to reflective persons and inspire them, despite their diverse backgrounds. Globalization, while perhaps giving rise to new sources and impetus for exploitation and deprivation, has drastically improved the means of communication, enabled us to enrich our imagination, to open our mind to other points of light, and to coordinate better across

Postscript 217

entrenched borders once thought impenetrable and sealed off. We may still fail, of course, to explore and grasp what the new global circumstances of human rights have in store for us. We may not always be certain as to how to respond to the standard modern threats to increasingly inter-connected human lives. Ethical reflections give us no illusion that, in the complex world we inhabit, we will always arrive at certainties as to the best course of moral actions. Moral uncertainties, however, entail no genuine problem of moral skepticism or relativism – the collapse of moral judgment under the weight of an impossibility of communication and comparative validation of competing visions and diverse perspectives. The paradoxical nature and attributes of culture, exacerbated and altered by globalization, essentially present no unbridgeable chasms for inter-subjective, hence cross-cultural, validation of moral judgments and ethical standards. We cannot wish away the dilemmas and uncertainties challenging any efforts we might make to end human atrocities and severe deprivation. We can act, as we must, as sensibly and sensitively as humanly possible.

Notes Introduction 1. Former genital cutters and local activists opposing the practice from several African countries held a conference in Nairobi in June 2004, where they shared experiences and lessons in working towards a ban. The conference is one indication of intra-cultural diversity in moral judgment about such a practice. See Mark Lacy, ‘Genital Cutting Shows Signs of Losing Favor in Africa,’ The New York Times, 8 June 2004. 2. Montaigne (1965), p. 14. Montaigne also wrote that ‘the taste of good and evil depends in large part on the opinion we have of them.’ (Ibid., pp. 33–4) 3. Contemporary cultural challenge to human rights, according to Michael Ignatieff, ‘arises from three distinct sources – from resurgent Islam, from within the West itself, and from East Asia’ and these challenges ‘have raised substantial questions about the cross-cultural validity – and hence the legitimacy – of human rights norms.’ (Ignatieff, 2001, p. 102) 4. ‘Asian values’ refer to the claims that in East Asia, certain cultural characteristics – such as obedience to authority, priority to family and society over the individual priority, that material security over spiritual, intellectual, and artistic freedom – should set moral standards, and that only such standards are valid and applicable in East Asian societies. Such ideas as popular self-governance, equal rights and liberties are culturally alien, meaningless, and thus inapplicable to these societies. (See the ‘Interview’ with Lee Kuan Yew, in Foreign Affairs, March/April 1994, and Kausikan, 1993) 5. For these efforts, see Ghai (1994), Sen (1997), Little (1996), and Inoue Tatsuo, ‘Liberal Democracy and Asian Orientalism,’ in Bauer and Bell (1999). Also see discussions of the dynamics and pluralism within East Asian cultures and religions in Bloom et al. (1996), esp. essay by Richard Bulliet, ‘The Individual in Islamic Society.’ For more general discussions of these issues concerning other regions, see Witte and van der Vyver (1996), especially the essays by Luke Timothy Jackson, ‘Religious Rights and Christian Texts,’ Abdullahi An-Na’im, ‘Islamic Foundations of Religious Human Rights,’ and Donna E. Arzt, ‘The Treatment of Religious Dissidents under Classic and Contemporary Islamic Law.’ 6. This approach is represented by some of the essays in Mamdani (2000). Critics of cultural relativism have legitimate grievances against dragging the human rights debate down to political rhetoric about cultural differences. They worry that a discussion about the legitimacy of human rights will be sidetracked by questions why a particular culture did not originally develop the concept of human rights. 7. Otherwise, relativists and universalists in general seem to work under opposing assumptions about culture: for relativists, culture is ‘an eternal, unchanging entity, impervious to influences from without or within,’ and for universalists, it is ‘a complex set of practices in which we find constant 218

Notes 219 tension between the old, as expressed in ideological or social norms, and the new, represented by people’s attempts to create new patterns of thought and action.’ (Lichtenberg, 1993, p. 25) 8. Some anthropologists who follow the rights/culture debates find the notion of ‘culture’ as used by political philosophers and ‘orthodox’ liberals, such as Ronald Dworkin, to be ‘unreconstructedly nineteenth century in its bounded, whole, and static nature.’ (Cowan et al., 2001, p. 17) 9. Some of them have addressed perplexing philosophical issues concerning cultural relativity. The anthropologist, Elvin Hatch, for example, argues in length against cultural relativism from an anthropological perspective. (Hatch, 1993, esp. chs 5 and 6). Also, see contributions to the collection of essays in Cowan et al. (2001). 10. I recognize the tension, as James Nickel points out, between starting from abstract and general, hence hardly controversial premises, and deriving human rights from directly relevant, hence not too distant, premises. (Nickel, 1987, pp. 82–3) I deal with this tension by deriving very few inherent rights from relatively uncontroversial premises and then arguing for a larger body of extrinsic rights on consequentialist grounds.

1

Paradoxes of Culture

1. Merry, ‘Changing Rights, Changing Culture,’ in Cowan et al. (2001), pp. 41–2. 2. In public forums, cultural relativists and postmodernists have been on the defensive since ‘9.11.’ See Edward Rothstein, ‘Moral Relativity Is a Hot Topic? True. Absolutely,’ The New York Times, 13 July 2002. 3. This law includes ‘urgent [human] rights’ such as ‘freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide.’ (Rawls, 1999, p. 79) 4. Rawls (1999), pp. 5, 64–7. Rawls thinks that decent hierarchical peoples are reasonable enough for fruitful collaborations with liberal peoples for peace and protection of urgent rights. 5. Rawls’ position in the Law of Peoples and in his early work is not moral relativist. Some theorists may disagree. For example, some commentators criticize Rawls’ urge not to rest a political theory of justice upon any particular substantive belief system for having strengthened ‘the most relativist and conventionalist elements’ and for having abandoned ‘the objectivist, universalist assumptions which have inspired a whole generation.’ (Nino, 1991, p. 92) Nino writes, in the new version of Rawls’ theory, ‘the relevant intuitions are restricted to those implicit in the culture of democratic societies, and any other role of reflective equilibrium vanishes, since the conditions of the original position or the conception of the person implicit in it are also grounded on intuitions embedded in the democratic culture.’ (Ibid., p. 102) Nevertheless, this emphasis on particularist conditions for reasonable reflection does not make Rawls a relativist. Rawls does not view the ‘out-law states,’ ‘burdened societies,’ and ‘totalitarian states,’ as morally justified on their own terms for engaging certain practices. 6. See Taylor, ‘Conditions of an Unforced Consensus on Human Rights,’ in Bauer and Bell (1999).

220 Notes 7. This seems to be what Bell (2000) proposes as a ‘characteristically’ Chinese democracy, suited to his interpretation of the Confucian tradition and the ‘local knowledge’ of the Chinese. 8. Anthropology offers not one but many contested and competing views. For instance, one survey conducted half a century ago found over 150 diverse definitions of culture. (Kluckhohn and Kroeber, 1952, p. 357) The one I adopt is a broadly defined concept, which serves my purposes here. It is based on what has been accepted among anthropologists as the standard textbook concept, i.e. ‘culture’ conceived as ‘distinctly human; transmitted through learning; traditions and customs that govern behavior and beliefs’; (Kottak, 1991, p. 17) or as ‘the system of knowledge more or less shared by members of a society.’ (Keesing, 1981, p. 509) 9. These scholars revolted against the early modern usage of ‘culture’ to refer to cultivated idealistic end-states, toward which all human populations strive by developing their artistic, intellectual, and moral qualities. Matthew Arnold was an early advocate for this understanding, who defined culture as ‘the love of perfection’ and ‘a study of perfection.’ (Arnold, 1873, I) 10. This school is critical of early authors using culture to refer to the distinctive, pluralist, modes of existence of people in different societies, while, in contrast, using ‘civilization’ to refer to the universal ideal order of human society. For them, culture referred to whole social mind, that uniquely identified and differentiated one people from another: culture was not transferable, while civilization referred to stages of human development and rational reason, which was transferable between peoples. In this view, while there could be no uncultured people, there could be uncivilized ones. (Sahlins, 1995, 10–12) For post-war anthropologists who revised and further developed these ideas, civilization was fictional and it was AngloFrench capitalist colonialist culture in disguise. ‘Civilization’ was, Sahlins writes, ‘a term coined in France in the 1750s and quickly adopted in England, becoming very popular in both countries in explication of their superior accomplishments and justification of their imperialist exploits.’ (Sahlins, 1995, p. 10) 11. For a critique of anthropologistes who tried to deny the global influence on ways of life in ‘primitive’ societies, see Keesing and Jolly, ‘Epilogue,’ in Carrier (1992), pp. 224–47. The authors point out that some anthropologists, in characterizing life in Melanesia, persistently edited out the imprint by Christianity, trade stores, labor migration, contemporary politics, and cash economy. 12. For these critiques and views see Merry, ‘Changing Rights, Changing Culture,’ Dembour, ‘Following the Movement of a Pendulum,’ and Eriksen, ‘Between Universalism and Relativism,’ in Cowan et al. (2001), especially, pp. 41–2, 59, 131–4, 141. Also, see Eriksen (1993) for critical comments on the ‘archipelago’ vision. 13. For a critical discussion of cultural reification in the debate about Indian rights in Brazil, see Mannela Carneiro de Cunha, ‘Custom Is Not a Thing, It Is a Path: Reflections on the Brazilian Indian Case,’ in An-Na’im (1992), pp. 276–94. 14. For these views, see Eriksen, ‘Between Universalism and Relativism,’ in Cowan, et al. (2001), esp. p. 134.

Notes 221 15. Raymond Williams, ‘Culture is Ordinary.’ in McKenzie (1958), p. 6. 16. Schwartz writes, ‘Culture consists of the derivatives of experience, more or less organized, learned or created by the individuals of a population, including those images or encodements and their interpretations (meanings) transmitted from past generations, from contemporaries, or formed by individuals themselves.’ (Schwartz, 1992, p. 324) 17. Anthropologists draw a clear distinction between complex ways of modern life and simpler ones that are relatively untouched by inventions such as writing and printing, rapid transportation, and mass telecommunication. Goody, who does comparative studies of cultures in Africa and Europe, argues that, ‘Even for these simpler societies it is easy to overemphasize the homogeneity of culture, which is always relative. In any system of human interaction, there are common understandings of a cultural kind between the participants, negotiated certainly, but at the same time, those participants each retain their own different understandings. Even in oral societies these are not simply deviations from a fixed norm but may differentiate one individual or group from another at any one point in time, while over the longer duration they may constitute creative acts that redefine culture and social relationships themselves.’ (Goody, ‘Culture and Its Boundaries: A European View,’ in Borofsky, 1994, p. 253) 18. As Clifford demonstrates, the Mashpee trial shows that Native Americans often make claims to indigenous (bounded and consensual) culture in order to assert rights to land or recognition as a tribe. They are aware of an audience who recognize these rights, and they have pitched their argument with this intended audience in their negotiations for territory or sovereignty with the outside world. (Clifford, 1988) 19. Meanwhile, one can also compare culture as informal knowledge to formal knowledge, such as science or knowledge of promulgated rules or the law. Though some cultural theorists in the classic traditions may dispute that any knowledge could be outside culture, I doubt they can be consistent in this regard – since they might not fly any airplane if they had genuinely believed that aero-science was nothing more than socially inherited informal knowledge! However, formal knowledge can be historically inherited (e.g. Newton’s law of gravity), socially transmitted (through practice) and embodied in customs (e.g. the ceremony of the New Year’s Eve ball dropping at Time Square in New York City). Moreover, informal knowledge can become formal knowledge (as in the case of Chinese medicine or the evolution of astrology). The boundaries between formal and informal knowledge is negotiable and porous. 20. The external view finds sympathy among behavioral scientists studying social and political behavioral patterns in specific societies and generating hypotheses about their culture. It has inspired comparative studies of values and political cultures in the late 20th century. See, for example, Gabriel A. Almond and Sidney Verba, The Civic Culture (Boston: Little, Brown, 1965) and International Social Survey Programme, Role of Government – 1985 Codebook ZA-NO. 1490 (Ann Arbor: ICPSR, University of Michigan, 1985); Robert T. Holt and John E. Turner, The Methodology of Comparative Research (NY: Free Press, 1970); and Sidney Verba, Norman H. Nie and Jae-on Kim, Participation and Political Equality: A Seven Nation Comparison (NY: Cambridge University Press, 1978). In

222 Notes

21.

22.

23. 24.

25.

26.

a study of contemporary Chinese political culture, the political scientist and China specialist Andrew Nathan, in collaboration with Tianjian Shi, used such methods to compare different cultural attributes. (Nathan and Shi, 1993, pp. 95–123) Those who work within the hermeneutics tradition tend to adopt the internal view, preferring interpreting attitudes, beliefs, sentiments and other psychological states of members in a society and, on the ground of such interpretations, characterizing their culture. The ‘interpretive’ approach is popular among certain scholars of ‘the Chinese (political and moral) culture.’ Their depictions of such a culture rest on their interpretations of specific incidents and events in Chinese history. Such depictions rely on their impressions of typical attitudes and propensities presumably displayed by the Chinese. (Tu, 1991; Wang, 1991; and Pye, 1992, 1988). For a critique of this approach in general and specifically Pye’s views, see He (1992), ‘A Methodological Critique of Lucian W. Pye’s Approach to Political Culture.’ For an informative discussion of the disputes between scholars who favor the behavioral (external) and those who favor the interpretive (inner) approaches, and the impact of these disputes on discussions about human rights and democracy in China, see Nathan (1997), especially Chapter 10, ‘Is Chinese Culture Distinctive?’, pp. 136–51. Eriksen, for instance, proposes that ‘Instead of invoking culture, if one talks about local arts, one could simply say “local arts”; if one means language, ideology, patriarchy, children’s rights, food habits, ritual practices or local political structures, one could use those or equivalent terms instead of covering them up in the deceptively cozy blanket of culture.’ (Eriksen, 2001, p. 142) Appiah (2005) makes this point. Appiah refers to the tendency to freeze people in their historically constructed identities as ‘the Medusa Syndrome.’ Nathan (1997, pp. 136–51) makes this observation and discusses how Chinese culture’s uniqueness has become a central topic in the debate about justifying applying human rights in China. When a Pakistani village council decided to punish a family by ordering the gang rape of one daughter, Pakistani women’s organizations, urban intellectuals, and liberal seculars, condemned the punishment as itself a crime and pressed for police action and legal charges. Ian Fisher, ‘Account of Punjab Rape Tells of a Brutal Society,’ The New York Times, 17 July 2002. Consider the practice of female circumcision (FC). Some commentators and scholars treat FC as if it were representative or typical of the local culture. Some of the societies where some members still practice FC may have had long dominant traditions that endorse FC. However, this must not overshadow internal clashes and divisions. As many have pointed out, authoritative Islamic texts and social opinions do not agree about the interpretations and moral significance of such a custom. Some Islamic scholars argue that the practice is a deviation from the moral norms in the Koran, questioning its textual or legendary authenticity. Religious lore from the Koran or hadith (sayings attributed to the prophet Muhammad), which has been interpreted as the source of support to FC, has encountered rival interpretations by local religious scholars. Some local scholars argue that FC puts a woman’s health at great risk and it should not be

Notes 223

27. 28.

29.

30.

31.

considered a Sunna, or good religious action, since the aim of the Islamic faith is to look after the welfare of all its adherents. FC is also feared or rejected by some women raised in the Islamic tradition. Some women tried to escape and an increasing number of them have sought safe haven in other countries. In a celebrated decision, the US Immigration Appeals Court in 1996 granted political asylum to Fauziya Kassinga, a nineteenyear-old citizen of Togo, who had been sheltered from forced FC by her father, a wealthy businessman, until his death. (Henkin et al., 1999, pp. 415–21) Local doctors and feminists also oppose it. Since the 1960s, doctors in the Sudan, Somalia, and Nigeria have documented the harmful consequences of the procedure and have publicized its medical complications. (Rahman and Toubia, 2000). In Egypt, some women activists ask how parents could possibly fulfill their duty to God, as demanded by the Koran, to protect their children, who, as their upbringing tells them, are also God’s blessings, if parents subject their daughters to the pain and health risks of FC. Others wonder why a woman’s genitalia must be excised since her anatomy is part of God’s creation. These examples are given in Nadia Wassef and Melron Micol-Wilson, ‘Ending Female Genital Mutilation without Human Rights: Two Approaches,’ Human Rights Dialogue (Carnegie Council on Ethics and International Affairs, Summer 2000, series 2, No. 3) J. Goody, ‘Culture and Its Boundaries,’ in Borofsky (1994), p. 254. Keesing, for example, points out that those who adopt the Boaz framework of analysis turn blind eyes to internal diversity, and consequently, ‘the voices of subalterity … , contradictions and conflicts [within cultures], the hegemonic force of dominant ideologies, cleavages of class and gender, are glossed over with a wave of the analytical brush.’ (Keesing, in Borofsky 1994, p. 306) See discussion in Hatch (1993, pp. 89–93) of the Yanomami, a people who live in villages scattered through the tropical rain forest on the borders between Venezuela and Brazil. The classic studies by Chagnon (1977) came under fire recently for the authenticity of their evidence and the impact of the scholars’ controlled experiments on the Yanomami. Chagnon’s studies indicated that it was problematic to view violence and brutality as the Yanomami’s consistent, coherent, and unanimously accepted values. As victims and potential victims, they clearly indicated, if not in words, but in behavior, their aversion to and fear of suffering, death, abduction, and rape. Warfare was only one part of their harsh life. Among fellow villagers, they could be warm and affectionate. (Chagnon, ibid., pp.74–5, 81–3, 135–7, 162–3) Anthropologists find that diverse sub-communities (e.g. ethnic minorities within a modern society) tend to interact, merge, and diverge in complex patterns. The boundaries between them become fluid and porous. For a discussion of these moods of diversity, see Goody, ‘Culture and Its Boundaries, A European View,’ in Borofsky, 1994, pp. 255–60. Benhabib (2002). In this book, she challenges the assumption that cultures are boundary-clear, distinct, pieces of a mosaic. Instead, she defends the understanding of cultures as continually creating, re-creating, and renegotiating the imagined boundaries between ‘us’ and ‘them.’

224 Notes 32. The assumption of culture’s continuity (identity preservation) hence resistance to changes, plays different role in policy and politics. For instance, British colonialists stressed anti-science elements in the Indian culture as the proof of a retrograde culture, justifying colonial restrictions on scientific development as culturally sensitive. (Nussbaum, 2000, pp. 46–7) 33. Information can be found at http://www.state.gov/r/pa/prs/ps/2003/24768.htm and www.publicdiplomacy.org. 34. Disputes can arise regarding which language is a local language and should be taught in schools, for example. The Washington Post reports that, after Sudan’s northerners and southerners signed a peace accord following a long-running civil war, the people of Nuba in central Sudan decide not to use the official language, Arabic, in schools, for they feel ‘closer ethnically and culturally to the south, where English became commonly used when the region was under British control.’ (Emily Wax, ‘A Language Barrier to Peace,’ The Washington Post, 13 December 2003, A12) The question is, if one defines culture by language, then, whether one should see the local Nuba culture as affiliated with the British culture. The point is that a preferred language by some in the local society (or the state) does not necessarily capture the local culture as a whole. Whether standardized Chinese should be used in a unified China, the simplified version currently used on the Mainland, or the complicated version in Taiwan, Hong Kong, and overseas, is also a highly contested matter. 35. Appiah (2004) makes the same point in Chapter 4 titled ‘Trouble with Culture,’ as he sums it up in an interview about his new book, ‘The trouble that most worries me is that people make appeals to cultural difference to justify resisting just the sort of moral demands that I think everybody ought to recognize. Appeals to culture are often appeals that aim to squash individuals, to say to the Saudi woman who wants to participate in the management of her society as a citizen, “No, it’s not our tradition, it’s not our culture.” That’s just something that stops her exercising what I take to be her individual right. We can have an argument about whether that’s OK, but it’s not an adequate defense to say, “Well, it’s our culture.” The problem is, there isn’t consensus in the very societies that we’re talking about. So maybe there are significant numbers of Saudi women who think [not being able to vote] is fine, but there are certainly some who don’t, and there are some Saudi men who don’t think it’s fine, either.’ (Drake Bennett, ‘The Trouble with Identity,’ 6 February 2005, for the Boston Globe website at http://www.boston.com/news/globe/ideas/articles/2005/02/06/the_trouble_ with_identity?pg⫽2) 36. There have been discontents with utilitarian and deontological theories, the two contemporary mainstream theories that view morality as acting according to general principles and standards and that have offered general formulas for testing the rightness or wrongness of moral principles. Moral particularists, for instance, argue that such rationalistic, generalist, theories are unrealistic about human moral cognitive psychology – character strength, virtue, or habits. Communitarians and virtue ethicists have also expressed this dissatisfaction. For a critique aimed at moral theory in general, the Enlightenment liberal visions in particular, see Diamond (1982), pp. 23–41.

Notes 225 37. These are Annette Baier’s words when she tries to distance from MacIntyre in her own critique of contemporary moral theories. (Baier, 1989) 38. A cosmopolitan account of cultural tradition, recently articulated by Benhabib (2002), provides a counterpoint to MacIntyre’s pessimistic outlook. Benhabib argues that ‘narrative’ traditions are constructed to provide coherence to people’s historical and social experiences. Diverse cultures in the form of different narratives reflect diverse human experiences. Yet human beings have a common need to make sense of one’s own and others’ experiences and lives. Their internally and externally contested ‘narratives’ can converge and become mutually comprehensible through intricate dialogues in a democratic process.

2

The Ethical Significance of Culture

1. ‘Committee for Human Rights,’ American Anthropological Association, ‘Declaration on Anthropology and Human Rights,’ adopted by the AAA membership, June 1999. 2. Renteln (2004) provides a sympathetic view of the use of ‘cultural defenses’ in court cases involving customs and religious beliefs linked to alleged drug abuse, animal cruelty and mistreatment of the dead. Renteln contends that cultural information should be admissible in all cases to help the court understand motivations. However, she does not argue that culture should always influence the outcome in cases. She wants the courts to open the door to evidence about a person’s cultural background, while taking a case-by-case approach to deciding whether the information should affect the disposition of the case. 3. In this case, the Eskimo custom seems evidently different from that of our own, but such differences do not necessarily entail or presuppose differences in basic values. For more discussion of this point, see Chapter 6. 4. For an argument for the compatibility of this interpretation with the Islamic law, which prescribes amputation of arms for thieves, see An-Na’im (1992). 5. For an overview and assessment of this and other ideas in virtue ethics, see Slote (2001). 6. Those who practiced female genital cutting found it very difficult to stop. One of their main concerns is the loss of their means of making a living since they have not acquired other profession or skill. (Mark Lacy, ‘Genital Cutting Shows Signs of Losing Favor in Africa,’ The New York Times, 8 June 2004) 7. The alternative view is that moral sentiments or sense of right and wrong are instinctive, i.e. innate, not socially provided. Sidgwick, for instance, believed that we know what our duties are because they are self-evident to us and intuitive. No other theoretical or rational justification for principles of the right seems necessary. (Henry Sidgwick, Methods of Ethics, 7th edition (London: Macmillan, 1907; 1st edition 1874)) For my purpose here, however, I limit the discussion to socially cultivated sentiments, though one can further dispute whether such cultivated sentiments are nurtured from certain innate potential or from socially supplied seeds – whether human beings are naturally endowed with such potential.

226 Notes 8. The incident of Serb soldiers forcing Muslim Bosnian prisoners biting off the penises of fellow prisoners was reported by David Reiff and cited in Rorty (1993), p. 112. 9. In his recent writings, Rorty is willing to consider the role of faith communities and social groups in re-energizing progressive liberal movement and he seems more willing to reflect on the social-political downside of postmodernism. (Rorty, 1998b) However, his criticism on rationalism and his pragmatism seem remain much the same. (Rorty, 1998a) He still believes that pragmatism offers the only hope for social progress. Whether our ideas correspond to truth and reality is not that important; but ideas must be helpful for us to achieve our goals and build a better democratic country. (Rorty, 1999) 10. This has been a consistent thesis since his early work interpreting pragmatism. See Rorty, Philosophy and the Mirror of Nature (CA: Stanford University Press, 1979) and Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982). Rorty contends that language cannot represent reality as if it were a ‘mirror of nature.’ No truth is ‘out there’ for us to discover. No guaranteed way is there for us to get beyond language and to see the ‘real’ world. In this regard, Rorty is influenced by philosophers such as Nelson Goodman, W. V. O. Quine, Hilary Putnam, and Jacques Derrida. 11. In Contingency, Irony, and Solidarity (Cambridge, UK: Cambridge University Press, 1989), one can find precursors of this irrationalist relativist approach, especially in the view, that Rorty refers to as ‘ethnocentrism.’ All of our claims to ‘truth’ and ‘knowledge’ of the ‘real’ world are contingent upon our positions in specific time and space, Rorty contends. Then, we must be speaking of ‘knowledge’ or ‘truth’ with a sense of ‘irony.’ The ‘truth’ or language accepted by any other community might be as ‘true’ or ‘real’ as ours might. Universal moral ‘truth,’ according to Rorty, will never become the unifying norm of the world. However, one can hope for a consensus supported by a majority of the world population. To avoid the impasse of ‘ethnocentrism,’ Rorty says, we in a liberal democracy must be open to those who are different from ‘us’ or opposed to ‘us,’ and open to changes of our historical, contingent, view of the world. Only liberal democracy, Rorty contends, could be open to and include those who make ‘unfamiliar noises’; and the best way to expand ‘our’ democracy and human rights culture is sentimental ‘education.’ This proposal coheres with his notion of ‘progress’ as a process in which we imaginatively integrates past and recent developments in our society towards sensitizing people’s minds to others’ lives around them. For this idea of ‘progress,’ also see Rorty (1998a). 12. Rorty considers Hume a better adviser than Kant, particularly the Hume through the interpretation of Baier (1991). 13. Freud espoused the view that moral learning primarily took place in childhood – by internalizing authority and consequently forming a superego – before the young child could understand the reasons of moral rules. Through the psychological process characteristically conflicted and stressful, the child acquires moral attitudes or new motives to follow moral rules. (Freud (1856–1939), Letters of Sigmund Freud. Selected and edited by Ernst L.

Notes 227

14.

15. 16.

17. 18.

19.

Freud; translated by Tania & James Stern (New York: Basic Books, 1975, c1960)). Rousseau observed that ‘[t]he benefits that accrue to man in civil society more than makes up for whatever advantages that he possessed in the state of nature. His faculties are exercised and developed, his intellectual horizon expands, [and] his sentiments are enriched. Indeed, his very soul is entirely elevated.’ (Rousseau, The Social Contract, Book 1, Chapter viii) Rousseau emphasized the crucial importance of social inculcation of innate faculties or human ‘nature.’ For Kant’s view on this subject, see The Critique of Practical Reason, especially Part II. In praising individual liberty as consistent with obeying moral principles, Mill writes that ‘[i]t is not by wearing down into uniformity all that is individual in themselves, but by cultivating it and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation.’ (Mill, [c1859] Chapter III, p. 16) In addressing the question of what the motives to obey a moral principle are, Mill argues that motives are potentially endowed in the moral agent. ‘The feeling of unity with our fellow creatures shall be … as deeply rooted in our character;’ and such feelings can be developed through education from men’s ‘capacities of human nature,’ which ‘admit of disinterested devotion to’ doing what is the right. (Mill, [c1859], Chapter III, p. 26, and [c1861], Chapter V) Jean Piaget, The Moral Judgment of the Child, translated by Majorie Gabain (London: Kegan Paul, Trench, Trubner, 1932). On this basis, Rawls argues that his principles of justice favor institutions that facilitate the development of persons’ potentials for the sentiment of justice, which, in turn, generate broad support for the principles of justice as fairness and motivate compliance over time. Rawls makes this argument in response to critics from feminist and communitarian perspectives. For a feminist critique of Rawls, see Okin (1989). For a communitarian critique, see Sandel (1983), and Galston (1991, pp. 144–6, 148). Rawls is keenly aware that ‘moral sentiments are necessary to insure that the basic structure is stable with respect to justice.’ (Rawls, 1971, p. 458) He stresses the crucial importance of developing certain virtuous characters and sentiments, necessary for a sense of justice, through upbringing in the family, schools, and socialpolitical institutions that are just. (Rawls, 1971, p. 395) For Rawls, only when members of a society have developed the required moral sentiments, can the principle of justice generate its own support and can just institutions be stable. This list of corrupting factors of moral judgment is adapted from Lichtenberg (1994, pp. 186–87), where she gives three ways ‘to account for a person’s divergence from the common response to easy cases’ of judging moral rightness or wrongness. Rawls has implied a similar list when he identifies fundamental moral judgments as the ‘considered judgments’ in a well-ordered liberal democratic society. He characterizes such judgments as ‘those judgments in which our moral capacities are most likely to be displayed without distortion.’ He suggests that they can be identified by discarding ‘those judgments made with

228 Notes

20.

21.

22.

23.

3

hesitation, or in which we have little confidence,’ ‘those given when we are upset or frightened, or when we stand to gain one way or the other,’ in short, any judgments ‘that are likely to be erroneous or to be influenced by an excessive attention to our own interests.’ (Rawls, 1971, p. 47) Moral psychologists dispute whether these corrupting factors exist in any particular societies or cultures. Some may contend that cognitive errors, stake, defective ability to judge, and deficient sentiments are problems with persons of particular social–cultural background. The cultural psychologist Richard Nisbett, for instance, claims that ‘human cognition is not everywhere the same’ and that people brought up in East Asian and Western cultures think differently. (Nisbett, the Geography of Thought: How Asians and Westerners Think Differently … and Why (New York: Free Press, 2003)). However, Nisbett fails to present sufficient quantitative data to support his interpretations and conclusion. He uses ‘culture’ rather casually to refer to everything that falls within the geo-political borders of East Asia. Moreover, he pays little attention to the distinction between human cognitive capacities and socially acquired cognitive habits. This formulation is my interpretation of communitarian views as these are presented in Sandel (1982), and to some extent, in MacIntyre (1981) (though MacIntyre’s view on ‘tradition’ does not lend support to this interpretation), and Bell, ‘Communitarianism,’ Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/communitarianism/) To claim that Chinese cultural tradition accounts for the practice of female infant abandonment in the People’s Republic of China in the 1980s and 1990s, one must provide evidence that rural Chinese parents at the time were typically inculcated through social learning in traditions that presumably discriminates against women, and that such traditions survived the communist campaigns to purge ‘feudalist’ heritage and the Cultural Revolution, or have since the end of those tumultuous decades been sufficiently revived. One needs also to establish that social learning institutions have been largely successful in inculcating such traditional teachings into beliefs, character traits, or sentimental dispositions. For a recent update on the status of the Chinese population control policy and its practical implications, see Jim Yardley, ‘Fearing Future, China Starts to Give Girls Their Dues,’ The New York Times, 31 January 2005.

A Cultural Critique of Cultural Relativism

1. No small number of anthropologists or authors familiar with anthropological discussions has addressed perplexing philosophical issues concerning relativity. Elvin Hatch, for example, argues eloquently and powerfully against cultural relativism from an anthropological perspective. See Hatch (1983), esp., chs 5 and 6. Also see contributions to the collection of essays, Culture and Rights: Anthropological Perspectives (Cowan et al., 2001). 2. This exercise is useful since philosophers tend to consider cultural relativism an incoherent or implausible position. Richard Brandt writes, ‘Contemporary philosophers generally apply the terms to some position they disagree with or consider absurd, seldom to their own views; social scientists, however,

Notes 229

3.

4.

5.

6.

7.

8.

9.

often classify themselves as relativists.’ (Brandt, 1967, p. 75) Also, see M. Edel and A. Edel (2000) for an examination of the relationship between moral philosophical and cultural anthropological work. They argue that philosophers and anthropologists are deadlocked in moral studies because they fail to give adequate consideration to each other’s specific concerns and approaches. See Brandt (1967) for a three-way distinction: descriptive, normative, and meta-ethical. Also, see Teson (1985, pp. 886–8). The third type, however, is really a sub-type of ‘normative’ relativism. I am indebted to Judith Lichtenberg for pointing this out. Human Rights Watch defines ‘honor killings’ as ‘honor crimes,’ acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family. A woman may be targeted by her family for a variety of reasons including refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce – even from an abusive husband – or committing adultery. The mere perception that a woman has acted in a manner to bring ‘dishonor’ to the family is sufficient to trigger an attack. (Human Rights Watch, World Report 2001, ‘Women’s Rights,’ ‘Integration of the human rights of women and the gender perspective: Violence against Women and “Honor” Crimes.’) As a special sub-type of normative cultural relativism, meta-ethical cultural relativism further maintains that there are no trans-cultural or cross-cultural, objective, standards for evaluating moral standards found in cultures. Any meta-ethical standards are valid only relative to the culture(s) where they are found. Montaigne (1965), Book I, 14. Montaigne also observed that ‘the taste of good and evil depends in large part on the opinion we have of them.’ (Ibid., pp. 33–4) The distinction between DCR and NCR parallels Donnelly’s distinction between ‘weak’ and ‘strong’ cultural relativisms. Donnelly argues that certain cultural variations in the forms and interpretations of particular human rights might be necessary, while those who accept such variations do not reject human rights’ ‘fundamental moral universality.’ (Donnelly, 1989, p. 124) Donnelly has an additional category – ‘radical’ relativism: the position that culture is the sole source of validity of moral values. In contrast, ‘radical universalism’ is the position that culture is irrelevant to the validity of moral rights. Donnelly rejects both of these radical positions. He recommends ‘weak’ relativism as the most attractive position, which allows human rights supporters to be aware of the cultural barriers in implementing the norms. (Ibid., pp. 109–10) For a sympathetic view of descriptive cultural relativism, see An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights,’ An-Na’im (1992), ‘Toward an Islamic Hermeneutics for Human Rights,’ An-Na’im, Gort, Jansen, and Vroom (1995), and ‘Islamic Foundations of Religious Human Rights,’ Witte and van der Vyver (1996). There are other sub-types of NR: Normative societal or individual relativism, where morality is considered relative to society or to the individual. Relativity to society differs from relativity to culture in that, in a given

230 Notes

10. 11.

12.

13.

14.

15.

4

society, there may be more than one culture; and persons from more than one society may share a culture. For a classification of these types of relativism, see Brandt (1967). For this refutation, see B. Williams (1972) and (1985), ch. 9; Lyons (1975–76, pp. 107–9); and Nino’s critiques of moral relativism in Nino (1991). Kant developed this view about the nature of moral propositions, as he wrote, ‘All [moral] maxims have … a form, which consists in universality; and in this respect the formula of the moral imperative requires that the maxims be chosen as though they should hold as universal laws of nature.’ (Kant, Critique of Practical Reason, Translated, with an introduction by, Lewis White Beck. (New York: Liberal Arts Press, 1956) IV, section 436) Alan Gewirth elaborates this Kantian requirement in Gewirth (1978) and (1982, pp. 52, 128–41). According to one source, as of 2004, honor killings have occurred in numerous countries, including Bangladesh, Brazil, Ecuador, Egypt, India Italy, Jordan, Morocco, Pakistan, Palestine, Sweden, Turkey, Uganda, and the United Kingdom. In Europe, honor killings have been reported within the Muslim and Sikh communities. Many cases of honor killing have been reported in Pakistan, where it is known as KaroKari; it is also reported among Sikhs in the adjacent Indian Punjab. (The Free Encyclopedia, http://en.wikipedia.org/ wiki/Honor_killing) For documentation of honor killing in Palestine, see ‘Honor Killing: Killing of Women on the Basis of Family Honor,’ by the Palestinian Human Rights Monitor, at http://www.phrmg.org/monitor2002/ Aug2002.htm; and Suzanne Ruggi, ‘Honor Killing in Palestine,’ Middle East Report, Spring 1998. Rorty does not shy away from the description by critics of his position as that of ‘cultural relativism;’ and he associates his brand of cultural relativism to ‘irrationalism’ because ‘it denies the existence of morally relevant trans-cultural facts.’ (Rorty, 1993, p. 116) Lauren (1998) argues that the Christian religious visions played an important role in raising human rights conscience in the West and pushing for the international human rights movement. Clea Koff, author of Bone Women (NY: Random House, 2004), which chronicles her experiences participating in an UN operation unearthing mass graves in Rwanda, quoted in an interview with journalist Jane Perlez, ‘A “Bone Woman” Chronicles the World’s Massacres,’ The New York Times, 24 April 2004, A4.

Destructive of Cultural Community?

1. Committee for Human Rights, American Anthropological Association, ‘Declaration on Anthropology and Human Rights,’ adopted by the AAA membership, June 1999. (http://www.ameranthassn.org/stmts/humanrts.html) 2. Acuerdo de Identidad y Derechos de los Pueblos Indigenas (1995), United Nations, Guatemala. 3. See Rachel Sieder and Jessica Witchell, ‘Advancing Indigenous Claims through the Law: Reflections on the Guatemalan Peace Process,’ in Cowan et al. (2001), pp. 201–25.

Notes 231 4. See June Starr, ‘The Role of Turkish Secular Law in Changing the Lives of Rural Muslim Women, 1950–1970,’ Law and Society Review, 23:3 (1989), pp. 497–523. Also, see Jane Collier, Law and Social Change in Zinacantan (CA: Stanford University Press, 1973) 5. ‘Falun Gong Slaps Jiang with Genocide Suit,’ the Associated Press, Beijing, 24 October 2002. 6. See Korey (2001) for a historical account of the roles NGOs have plaid in the international human rights movement. 7. The UN Declaration on the Rights of Indigenous Peoples (draft) provides that indigenous people have the right to control their own development and local affairs, including culture, religion, education, and land. (Article 31) 8. The UN human rights documents rarely clarify the relationship between ‘cultural rights’ to other human rights. Article 27 of the UDHR simply lists ‘the right freely to participate in the cultural life of the community.’ Article 15 of the ICESCR states the right ‘to take part in cultural life’ and the obligation of state parties to take measures ‘necessary for the conservation, the development and the diffusion of science and culture.’ Article 27 of the ICCPR guarantees members of minority groups ‘the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’ Article 13 of the ICESCR also grants the liberty of parents to send their children to schools other than those established by the state! This loose category of rights to culture obviously must be integrated into equal exercise of other human rights recognized in these same documents. However, these documents seldom specify how. 9. The phrase ‘third generation rights’ is based on a conception of civil and political rights as ‘first generation rights’ and social and economic and cultural rights as ‘second generation rights.’ For a critique of this parsing of rights, see Philip Alston (1982). 10. Karel Vasak, ‘For the Third Generation of Human Rights: The Rights of Solidarity,’ Inaugural Lecture, Tenth Study Session, International Institute of Human Rights, July 1979, in Steiner and Alston (1996), p. 1111. 11. See, for example, Estlund (2002) for discussions of some of the social coordination problems. 12. With regard to the ‘second generation’ rights, the necessity of coordinated societal actions (government regulated intervention programs, public funding, and community efforts to foster the spirit of mutual assistance and care, and so on) for their effective exercise is commonly recognized. There is little controversy about their being ‘collective’ in the sense of requiring social collaboration and positive action. 13. See Shue (1980), ch. 2, ‘Correlative Duties,’ particularly pp. 35–46, for a repudiation of this dichotomy. 14. Some Muslim feminists argue that veiling could be an act of women’s selfempowerment in societies where women have lower social status. Women aspiring for educational and professional advancement could benefit from veiling, they argue, which allows them to make the transition from their familiar traditional rural setting to a sexually integrated, uncomfortable urban world. It is thus important for women to have a voice in decision-making concerning this tradition in their communities. (Ahmed, 1992, pp. 223–4)

232 Notes 15. Here, I draw upon Kymlicka’s argument that indigenous (firs nations, native peoples) rights can be plausibly understood as special membership rights, which, due to the historical injustice and mistreatment of these people in the larger societies, can be justified as necessary for them to exercise their equal citizen rights in a liberal democracy. (Kymlicka, 1989) I apply Kymlicka’s argument to an account of cultural rights without assuming historical mistreatment of members of cultural communities. 16. Barry (2002) argues that individual human beings have the ability to make and exercise rights as individuals, not as members of collective cultural groups. However, the case of women’s rights shows that, an individual woman claims women’s rights both as an individual and as a member of the social (gender) group. 17. Identity by birth leaves children vulnerable. When the French state prohibits children wearing the headscarf and other ostentatious religious symbols in public schools, in an effort to prevent subjecting children to certain religious practices by parents or authorities in their communities, however, as critics say, it must take into account of the fact that parents usually are allowed to decide the choice of religion for their children. The French ban may result in an exodus of Muslim children from public schools and into Islamic religious schools. As under-aged girls do not have the freedom to choose their religion or reject the customs as long as they remain under the protection of their parents, this exodus will undermine one of the stated objectives of the ban – to educate all citizens of civic republicanism. (Clare Murphy, ‘Headscarves: Contentious Clothes,’ BBC News Online, 11 December 2003) In another case, due to the illegality of performing female circumcision in Italy, African immigrants parents have sent their daughters back to home countries to be circumcised or, in Italy, subjected them to underground and often procedurally risky operations. (Frank Bruni, ‘In Italy, Clash over an African Rite,’ The International Herald Tribune, 2 February 2004) 18. Likewise, it is problematic to refer to the communities and nation-states that participated in the initial stage and played an active role in the international human rights process as ‘cultural.’ The US government, for instance, which played such a role, if it has not consistently ever since, represents a country where there are diverse faith communities, schools of moral political thought, and ideological groups. (Some of these are opposed to human rights, e.g. the neo-Nazis, the communists, and some post-modernists and communitarian philosophers.) 19. In the following discussion, as in the discussions before, when I refer to a social or indigenous group, or a society, as a ‘cultural community,’ I mean to use it as shorthand for the context in which there is a body of diverse and evolving cultural views and practices. 20. One UNESCO document assesses that ‘Cultural rights are now widely recognized as deserving the same protection as human rights’. (Perez de Cuellar, J. et al., Our Creative Diversity: Report of the World Commission on Culture and Development (Paris: UNESCO, 1995) 21. The Universal Declaration of Human Rights, Article 27; International Covenant on Economic, Social, and Cultural Rights, Article 15, and International Covenant on Civil Political Rights, Article 27.

Notes 233 22. These general assumptions can be supported by piecing together the clarifications, analyses, and arguments I have made in Part I. 23. Participants in the drafting process of the Universal Declaration of Human Rights may have alluded to this argument. After contentious discussions about what constituted the proper duties of individuals, communities, and the state, they settled on an interestingly and delicately worded Article 29(1), stating, ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’ Though this article is about ‘duties,’ it is also about ‘rights.’ Everyone has duties to the community only because the community provides the form in which they can achieve free and full development of their personality. As soon as the community ceases to recognize individual members’ rights to free and full development, they have no reason to fulfill their duties to the community. The choice of words, ‘alone’ and ‘free,’ was carefully made after considerable debates and negotiations. Apparently, the insertion of ‘alone’ was initially objected to by some delegates for it suggested to them that community was the only and sole factor for the development of the individual’s personality. However, ‘alone’ can also be understood as affirmation of the belief that community is indispensable for developing personality. Meanwhile, the word ‘free’ sets the limit to the kind of communities that members have duties toward: only those that allow individual members free and full development. This implies that individuals should be permitted to exit a community – and relinquish their duties toward it – if that community fails to allow them a free and full development. (Morsink, 1999, pp. 246–7) 24. See Kymlicka in Okin (1999). Kymlicka is concerned about native or ‘first nation’ communities, not cultural communities, though he seems to consider these the same, which is conceptually problematic as I point out in Chapter 1, pp. 19–20. 25. For this point, see Yael Tamir, ‘Siding with the Underdogs,’ in Okin (1999), pp. 47–52. Tamir illustrates her point by citing example of flourishing communities of Reform Judaism in America, where religious freedom are granted to individual members, and comparing them to the lack of dynamics in traditional communities in Israel, where religious rights are granted to Jews as a group, within which, the Orthodox dominates, claiming to speak for the entire Jewish community. 26. These anthropologists suggest that a life lived outside any particular culture is hardly distinctively human – humanity cannot exist without the form provided by cultural identity. See American Anthropological Association ‘Statement on Human Rights,’ American Anthropologist 49 (1947), 539–43. 27. The American Anthropological Association has apparently revised its early position stated in its 1947 statement, where it had opposed efforts to draft the ‘universal’ declaration on human rights. There, it stated its commitment to man’s right to ‘his’ particular culture, as if ‘his’ humanity could be realized only in ‘his’ own culture of birth or heritage. Its 1999 statement is worded in such a way that it permits the reading that changes in one’s cultural identity are possible: ‘[T]he capacity for culture is tantamount to the capacity for humanity. Culture is the precondition for the realization of this capacity by individuals.’ … anthropology’s cumulative knowledge …

234 Notes

33.

attests to the universality of the human capacity for culture. This knowledge entails an ethical commitment to the equal opportunity of all cultures, societies, and persons to realize this capacity in their cultural identities and social lives.’ The American Anthropological Association, ‘Declaration on Anthropology and Human Rights,’ adopted by the AAA membership, June 1999. For example, the Amazonian Indians now face standard modern threats from globalization’s negative impact, as logging and oil drilling endanger their livelihood. Sometimes, the preservation of their distinctive ways of life has become a matter of life and death. More generally, since globalization began in the late 19th century, as Jared Diamond observes in his award-winning history book, Guns, Germs, and Steel: The Fates of Human Societies (NY: W. W. Norton Company, 1998), ‘Many of [the world’s] other indigenous populations – such as native Hawaiians, Aboriginal Australians, native Siberians, and Indians in the United States, Canada, Brazil, Argentina, and Chile – became so reduced in numbers by genocide and disease that they are now greatly outnumbered by the descendants of invaders. Although they are thus incapable of mounting a civil war, they are nevertheless increasingly asserting their rights.’ (p. 17) One must now add the transnational terrorist networks to the list of major threats in the modern world, which would have been much harder to operate before the age of telecommunication and rapid transportation. What Rawls calls the human associability is akin to what anthropologists call ‘the [human] capacity for culture.’ The American Anthropology Association in its 1999 statement uses the phrase ‘the capacity for culture’, where it is stated ‘the capacity for culture is tantamount to the capacity for humanity,’ and it is also said to be the capacity ‘to produce, reproduce and change the conditions and forms of their physical, personal and social existence … ’ (Ibid.) The Confucian distaste for lawsuits or preference for seeking consensus, is often cited by critics of human rights when they argue against the legalistic framework. The traditional Chinese school of thought known as Legalism, during the period known as the ‘hundred schools [of thought]’ (551–233 BC), was active. It was represented by the work of Shang Tzu and Han Fei Tzu, which advocated, contrary to Confucianism, that laws should rule in stead of persons, even persons of great virtues. For references to their work, see Waley (1982), pp. 158–63, 177–83, 202, and Creel (1953), pp. 135–58. Today, many Chinese have abandoned the conventional administrative mechanism established under the old communism and resorted to legal solutions in the court. The administrative adjudication systems are ineffective due to corruption and the rapid increase in disputes over conflicting interests in the transformation to privatization and a market economy. Nathan, ‘Foreword’ to Svensson (2002), p. ix.

5

Intolerant of Cultural Pluralism?

28.

29.

30.

31.

32.

1. R. Panikkar, ‘Is the Notion of Human Rights a Western Concept?’ in Alston (1996), pp. 164–5.

Notes 235 2. For a stimulating discussion of the intolerance critique of human rights, see Hatch (1983), especially Chapter Four: ‘The Call for Tolerance.’ 3. See Elaine Sciolino, ‘Ban Passed on Religious Symbols in Schools,’ The International Herald Tribune, 11 February 2004, and Human Rights Watch, ‘France: Headscarf Ban Violates Religious Freedom,’ 27 February 2004. 4. Frank Bruni, ‘In Italy, Clash over an African Rite,’ The International Herald Tribune, 2 February 2004. Other cases of clashing practices in multicultural liberal societies, such as wife beating, forced marriage, polygamy and child abuse, are discussed in Okin (1999). 5. India has been an officially secular republic since independence. Its Constitution guarantees equal treatment of all citizens despite their multireligious background, though special membership status is granted to particular groups to exchange for allegiance to the republic. The new India has retained the British colonial practice of separate personal legal codes for Muslims, Hindus, Christians, Parsis, and Jews. (David N. Gellner, ‘From Group Rights to Individual Rights and Back: Nepalese Struggles over Culture and Equality,’ in Cowan et al. (2001)) In Nepal, a Hindu dominated society, the new Constitution (1990) ushered in after the overthrow of the authoritarian Panchayat regime in the People’s Movement (1989–90), defines Nepal as ‘a multi-ethnic, multilingual, democratic, independent, indivisible, sovereign, Hindu and Constitutional monarchical Kingdom,’ legally recognizing cultural and religious pluralism. According to Section 26 of the Nepali Constitution, ‘The State shall, while maintaining the cultural diversity of the country, pursue a policy of strengthening the national unity by promoting healthy and cordial relations amongst the various religious, castes, tribes, communities and linguistic groups, and by helping in the promotion of their languages, literatures, scripts, arts and cultures.’ For the official English translation of the Constitution and a discussion, see Gellner, ‘Ethnicity and Nationalism in the World’s Only Hindu State, in Gellner et al. eds. Nationalism and Ethnicity in a Hindu Kingdom: the Politics of Culture in Contemporary Nepal (Amsterdam: Harwood, 1997). 6. Parekh (2002) challenges the ‘moral monism’ of moral theories in Western philosophical tradition, particularly liberalism, which, he contends, heralds only one way of life, with one set of values, as worth pursuing, dismissing competing ways as misguided or wrong. 7. For an overview of philosophical understandings of pluralism, see ‘Pluralism,’ in The Cambridge Dictionary of Philosophy, Robert Audi, ed. (UK: Cambridge University Press, 1995), pp. 624–5. 8. This uneasiness underlies some of the criticisms against liberal feminism. Thus liberal feminism is said to undermine cultural pluralism by demanding a liberal society not to accommodate certain sexist practices. For these concerns and the liberal feminist responses, see Okin (1999). 9. Kymlicka lays out this argument in ‘Individual and Community Rights,’ in J. Baker (1994), p. 25. 10. This line of argument seems implicit in the Universal Declaration of Human Rights. Article 29(1), for instance, stipulates that ‘Everyone has duties to the community in which alone the free and full development of his personality is possible.’

236

Notes

11. For this understanding of moral particularism, see J. P. Dancy, ‘Moral Particularism,’ Stanford Encyclopedia of Philosophy, online at http://plato. Stanford.edu/entries/moral-particularism. 12. Nino believed, however, the emphasis on particularity by philosophers with a communitarian bend certified their position as ‘traditional ethical relativism.’ (Nino, 1991, p. 102) 13. For a similar understanding of ‘tolerance,’ see J. Budziszewski (2000). 14. Maurice Cranston, ‘Toleration,’ The Encyclopedia of Philosophy, vols 7–8, p. 143. 15. Oberdiek offers a critical assessment of this perception of intolerance and he calls ‘tolerance’ an impossible virtue. (Oberdiek, 2001) 16. Shklar (1984), particularly, in ‘Introduction: Thinking about vices,’ and Chapter 1, ‘Putting cruelty first.’

6

Cross-Cultural Via the Inter-Subjective

1. Voltaire, Mélanges (Paris: Bibliothèque de la Pléiade, 1965), Bok (2002), p. 54. 2. Globalization is the transnational permeation of capital, markets, means of communication, goods, technology, people, associations, communities, and ideas, a process accelerated since the 19th century with the technological revolution in rapid transportation and communication. For case studies and discussions of connections between aspects of globalization and new patterns of human rights abuses, see Held (2000). Also, see contributions to Brysk (2002), in particularly, Kristen Hill Maher, ‘Who Has a Right to Rights? Citizenship’s Exclusions in an Age of Migration,’ Amalia Lucia Cabezas, ‘Tourism, Sex Work, and Women’s Rights in the Dominican Republic,’ Richard Falk, ‘Interpreting the Interaction of Global Markets and Human Rights,’ Wesley T. Milner, ‘Economic Globalization and Rights: An Empirical Analysis,’ Raul C. Pangalangan, ‘Sweatshops and International Labor Standards: Globalizing Markets, Localizing Norms,’ and Shane Weyker, ‘The Ironies of Information Technology.’ 3. Appiah (1992), p. 155. The idea of common aversion to suffering and its role in laying the groundwork for the idea of human rights is discussed in Felice (1996). 4. See Cowan et al. (2001), 11–13, where the authors urge that the international human rights movement be studied as a culture: ‘rights as culture.’ 5. When making claims about ‘Western’ and ‘Eastern’ differences on human rights, one tends to exaggerate Western counties’ influence on international norm-building and gloss over evidence that non-Western perspectives may have also influenced the process. For a discussion of such evidences, see Morsink (1999), Lauren (1998), and Lindholm, ‘Prospects for Research on the Cultural Legitimacy of Human Rights: The Cases of Liberalism and Marxism,’ in An-Na’im (1992). 6. A sore reminder of this shift is that the US, a driving force behind the Universal Declaration of Human Rights, has become reluctant to support the internationalization of legal practices and institution building for seeking human rights accountability. For instance, the US government has resisted signing the Kyoto Treaty on Global Warming and the International Treaty to Ban Landmines, or supporting the International War Crime Tribunal. This process is now driven by coalitions of NGOs and civil society advocacy

Notes 237

7.

8.

9. 10.

11.

12.

groups. For discussions of the role of international NGOs in international norm setting, see Boli and Thomas, ‘INGOs and the Organization of World Culture: International Non-governmental Organizations Since 1875,’ in Boli and Thomas (1999). Also, the US and European governments have only selectively criticized abuses of the presumably ‘Western’ trademark civil liberties in other countries. Since 11 September 2001, the Bush administration has shown a willingness to look the other way as long as abusive governments cooperate in the war against terrorists or make token gestures, and a willingness to curtail these rights on US soil for the sake of ‘national security.’ For a stimulating discussion of the rollback on human rights after ‘9.11,’ see David Luban, ‘The War on Terrorism and the End of Human Rights,’ in Gehring (2003), 51–62. Also see Human Rights Watch, World Report, 2004: Human Rights and Armed Conflict (New York: Human Rights Watch, 2004). Country representatives on the drafting committee of the Universal Declaration of Human Rights avoided making explicit any particular metaphysical, religious or philosophical, foundations for the rights declared in the UDHR. (Morsink, 1999, particularly ch. 8) In all known major traditions, scholars argue, moral teachings praise those who love and care for the poor and needy, and honor benevolence, generosity, truthfulness, and justice. Such commandments as ‘Do not kill or harm an innocent person,’ ‘Love your neighbors,’ and ‘Care for those in need,’ as well as the ‘Golden Rule’ – ‘Do not do to others what one does not want others to do to oneself’ – are believed to exist in many spiritual and philosophical traditions such as Confucianism, Islam, Judaism, Buddhism, Hinduism and Christianity. Scholars contend that these traditions have resources to incorporate the idea of human rights. See An-Na’im (1992), pp. 19–43, and An-Na’im, ‘Islamic Foundations of Religious Human Rights,’ in van deer Vive and Witte (1996); Irene Bloom ‘Confucian perspectives on the Individual and Collectivity,’ in Bloom, et al. (1996); De Bary (1998); Victor van Bijert, ‘Raja Rammohun Roy’s Thought and its Relevance for Human Rights,’ in An-Na’im et al. (1995); and Sen (1997). Hans Küng, Projekt Weltethos (München, Zürich: Piper, 1990), ch. 2. See Jones (1991), for a lengthy report on the shifting political reactions to international standards of behavior since human rights were first stipulated at Versailles in 1919. The Chinese government now issues an annual report criticizing rights violations in the US, while it continues to dismiss the US State Department’s annual world report on human rights and any other international NGO reports as interferences in China’s internal affairs. See the ‘2001 Record on Human Rights in the United States’ (2002 meiguo renquan jilu), issued by the News Office, the PRC State Council, March 2002, available at http://202.181.201.237:10089/gate/gb/big5.hrichina.org/subsite/big5/article. adp?article_id⫽1838&category_id⫽40. The slave trade, Nazi concentration camps, the Soviet Gulag, the Japanese ‘rape of Nanjing,’ Apartaid in South Africa, or the genocide in Bosnia and Rwanda, are rarely defended on grounds of cultural or religious values – rather, they are simply denied: ‘The Holocaust never happened!’ ‘The Nanjing massacre was a fabrication!’ or ‘The “slaves” were willing and content domestic servants.’

238 Notes 13. The Chinese leaders who ordered military crackdowns on peaceful demonstrators in Beijing and other cities in June 1989, which killed hundreds if not thousands of civilians and wounded many more, never publicly contended that killing unarmed civilians was justified. Rather they derided the peaceful demonstrators as violent ‘counterrevolutionaries’ who disrupted public order and endangered ‘state security.’ They vehemently denied the killings and tried to hide the evidence by ordering the burning of bodies immediately after the massacre. They told the world that the military was carrying out a routine action of restoring order and cleaning up, which, they defended as necessary for maintaining social stability. For this and other points about the implicit recognition of human rights – even by rights violators, including the Chinese government, see Zhao Dagong, ‘Universality of Human Rights Is Unquestionable,’ [renquan de pushixing burong zhiyi] in Humanity and Human Rights [Ren yu Renquan], www.renyurenquan.org 21 March 2002). 14. For further discussion and articulation of the significance of human rights movement transcending its origin, see Falk (2000), and Steiner and Alston (2nd ed., 2000). 15. Voltaire, Mélanges, ibid. 16. One may question, of course, whether critical examinations of reflective understandings of human beings in history, developed in different contexts, could coherently yield Nussbaum’s substantive and extensive accounts of essential human functions and capabilities. Philosophers who undertake the internalist essentialist approach are likely to disagree about what must be included in such a list, if nothing else. However, this approach itself is not repudiated by such disagreements. Nussbaum allows the list of essential ingredients of human life to be ‘open-ended.’ Her list can accommodate expansion or new emphases as results of our new knowledge about other societies (Nussbaum, 1993, p. 216), and can be ‘as universal as possible,’ cutting ‘cross religious, cultural and metaphysical gulfs.’ (Ibid., p. 215) 17. Gibbard (1990) argues that morality needs to be rescued from ‘Platonism,’ the view that the truths of moral judgments about the good, right, just, or rational are ‘among the facts of the world.’ To ‘debunk’ this view, one must show that morality does not depend on Platonism – morality does not describe the truths out there; it is an expressive enterprise. (Gibbard, 1990, p. 154) 18. Blackburn, ‘Blackburn Reviews Dworkin,’ posted on 11 November 1996, at www.brown.edu/Departments/Philosophy/bears/9611blac.html. 19. Blackburn, ‘Relativism’ in LaFollette (2000), p. 43. One need not concur with Blackburn ‘there remain moral problems connected with multiculturalism.’ (Ibid., p. 43) Blackburn seems to assume that culture is one main factor of the Taliban ban on women’s education, suggesting that all other things being equal, cultural differences make people differ in moral judgments (regarding whether women should be allowed in school). Blackburn contends that, each time we travel into one foreign country, we have a moral ‘problem of living’ because our own culture and the culture of our travel destination differ. Our moral compass somehow malfunctions in a foreign culture. It is, however, an exaggeration to claim that moral culture

Notes 239

20.

21.

22.

23.

24. 25.

changes at the border of a foreign country or that morality changes at the border of another culture. Moral disagreements about women’s education simply cannot be mapped on to cultural or geo-political boundaries. Judging from the examples he uses, Blackburn does not treat cultures as if they were internally homogenous. This makes his diagnosis of the moral problems with multiculturalism particularly puzzling. Instead, he should have concluded that there is no moral problem of relativism, multiculturalism, or cultural differences, but only human (inter-personal) problems of living due to inter-personal, inter-group, or inter-societal miscommunication and human cognitive limitations. For instance, Blackburn doubts Dworkin ‘has entirely removed the metaphysical taint’ and may have indeed failed to ‘stand by the advertised minimalism.’ (‘Blackburn Reviews Dworkin,’ ibid.) Dworkin meanwhile thinks that Blackburn still tries to hold on to and locate Platonism. (Dworkin, 1996, pp. 111–12) There is little documentation of the reasons being publicly presented in its defense in contemporary Indian society. In view of the discussion about ‘culture’ in Chapter 1, one must not assume that widow burning is the custom of a bounded, isolated, and internally monolithic Indian culture. There have been criticisms and demands for banning this practice in the multi-cultural India. The issue has divided Indian women themselves. Some intellectuals and feminists denounce it for perpetuating the view that women’s lives have no worth other than that derived from their husbands. The persistence of this practice in pockets of the democratic India, however, frustrates those who believe that, if these women were allowed to have their say, such a practice would have little chance to survive in modern times. By studying the mythology, philology, scripture, art, folk tales, eyewitness accounts, court records, and mass media coverage, Winberger-Thomas et al. (2000) explains the widow’s motivations, commitments, and practical rationales. In this case, these women’s motivations are explained in terms of their spirituality and religious faith. Note how this evaluative inquiry only confers permission for this act of faith strictly on the women themselves. Even if a democratic society had decided to allow widow burning as a voluntary act of faith, prudence and reasonable doubt would advise government authorities to require necessary procedures, such as a waiting period, mandatory consultation with an independent council or psychologists, or completion of legally certified will, in order to ensure that the women have indeed made conscientious decision. These precautions must be taken in order to rule out coerced enforcement by religious leaders or parties with vested interest (such as the husband’s relatives, or those who now have the responsibility to care for the widow or are next in line in inheritance). See Charles A. Radin, ‘Saudi women ask if economic development, not political rights, holds the key to liberation,’ The Boston Globe, 3 October 2004. Female genital cutting may have been adopted as the means to implementing or expressing the value of caring for girls and securing their life prospect. Instead of denouncing such a custom as barbaric, critics can be more sensitive and persuasive if they demonstrate other available means to securing

240 Notes

26. 27.

28.

29.

7

women’s livelihood and hold parties accountable for depriving women of these alternative means. See my discussion of this case in ‘Tolerating the Intolerable’ (X. Li, 2001). See Rachels, ‘The Challenge of Cultural Relativism,’ in Rachels (1999), pp. 20–36. This functionalist approach to explaining value similarities supposes that moral judgments, no matter how strange, can be analyzed and evaluated with the help of certain social scientific methods. See A. Edel (1997) for a discussion of how the making of moral judgments by different people can be analyzed and compared. A. Edel analyzes the structure of ethical behavior by references to their biological, psychological, social, and historical functions. He argues that a scientific account of ethics is possible since moral norms are themselves products of an experiential field open to verification procedures common to all other walks of human life. Also, see A. Edel (1995) for an argument about the role played by social scientific information in ethical judgment and moral action. There, he contends that many ethical controversies have emerged because different theories made different scientific assumptions. This fact requires ethical theorists to examine the empirical core of their statements. Consider the traditional Chinese custom of observing a three-year period of mourning after the death of a parent. One factual belief that may have supported this custom was that an infant was completely dependent on parents during his or her first three years of life. Today, this support no longer seems compelling due to increased knowledge about infant care and better social services in professional childcare. Parents no longer have to be the only providers of infant care. This may explain partially the disappearance of this mourning ritual in Chinese urban areas today. The custom of letting an infant go hungry in order to cure a stomach illness, for instance, which the Yanomami people, who live in the jungles of South America presumably practiced, may no longer be seen by some tribe members as the best way to care for the sick child if modern medicine becomes available and has proven effective. When an outsider (an anthropologist, e.g.) expresses disapproval about a mother who did not appear to worry whether her toddler with a stomach illness appeared to be dying of starvation, while the mother had access to the medicine and plenty of food, the outsider is not being insensitive to local custom or expressing a cultural superiority. The outsider’s critical judgment does not necessarily mean that she imposes her own morality on the locals. Rather she challenges the factual beliefs about how to cure a stomach illness and about a child’s vulnerability to hunger. For an anthropologist account of this custom and the scenario, see Chagnon (1977).

From Human Values to Inherent Rights

1. Jacques Maritain, ‘Introduction’ to UNESCO (1973). Maritain, a French philosopher, described in these words the surprising consensus reached by the panel of scholars and philosophers from diverse backgrounds, which he convened to discuss human rights prior to the UN drafting of the Universal Declaration of Human Rights.

Notes 241 2. This criticism is in fact raised by an anonymous reader of the manuscript, to whom I am very grateful. It has prompted me to re-write parts of this chapter in order to make my points more clearly than I had and to address this reasonable concern. 3. See, for example, Stephen (2002), Stephen and Svensson (2001), An-Na’im (1992), Bloom et al. (1996), De Bary (1999), De Bary and Tu (1998), Du Gangjian and Song Gang (1995), Sen (1997), Witte and van der Vyver (1996), Mayer (1994), and Lauren (1998). 4. Hampshire (1989), pp. 32–3. Bok considers Hampshire’s list ‘too “maximalist” ’ because of its inclusion of obligations of love and friendship. Bok writes: ‘Few who heard of the campaigns by mothers for the return of their “disappeared” in Argentina and other nations had the slightest difficulty understanding their plight. But whereas we can invoke a right not to be subjected to such treatment, whether by fellow citizens or by strangers, we can claim no comparable right to be treated with friendship or love.’ (Bok, 2002, p. 55) 5. I draw mostly on Nussbaum (1992) here because this is one place where she clearly distinguishes the two thresholds and helpfully clarifies the two levels of what she calls ‘the thick vague conception.’ 6. Nussbaum (1992), p. 222. In her Tanner Lecture (2002), Nussbaum seems to have relaxed these minimal requirements for the ‘good’ life, recognizing that the mentally disabled persons who may not be able to use all five senses can still have a flourishing life and should be recognized for ‘full and equal citizenship’ in a just society. (Nussbaum, ‘Capabilities and the Mentally Disabled,’ The Tanner Lectures on Human Values, Australian National University, 12 November 2002) 7. Dershowitz (2004) argues that rights come from particular experiences with injustice. Yet, experiences that were not properly reflected in traditions kept alive by communities may also give rise to revenge, violence, and human destruction. Such reflections do not guarantee reasonableness since traditions may turn into domination and communities may dysfunction. Going back to deep-seated minimalist human values in traditional communities, however, in spite of misinterpretations or unreflective instincts, helps identify more robust source of support for human rights. 8. The Universal Declaration of Human Rights (UDHR), ‘The Preamble.’ 9. Article 2, UDHR. 10. Also in the Preamble of the UDHR, it is stated that human rights reflected the moral indignation against ‘barbarous acts which have outraged the conscience of mankind,’ which seems a more explicit reference to the Christian or Enlightenment view of humans as conscientious beings, a view that other religions may not accept. 11. Historians believe that this silence was a deliberative decision by the framers in order to gain broad support among state parties at the UN. For a historical account of the disputes, bargaining and compromises made by members of the drafting committee, who were UN-appointed country representatives and experts, during the drafting process of the Universal Declaration of Human Rights, see Morsink (1999) and Glendon (2001). 12. Juan Forero, ‘Seeking Balance: Growth vs. Culture in Amazon,’ The New York Times, 10 December 2003.

242 Notes 13. Consider children exploited in sex slavery, prostitution, or child labor in many developing countries. To safeguard these children, it is not only necessary that local governments outlaw and enforce laws against these practices, but also that governments of rich nations and international agencies seek accountability of transnational networks organizing sex tourism and running child labor smuggling rings, and hold responsible consumers of products involving these practices. For a discussion of child prostitution and sex tourism as problems of globalization and challenges to conventional state-based model of human rights protection, see Heather Montgomery, ‘Imposing Rights? A Case Study of Child Prostitution in Thailand,’ in Cowan et al. (2001). 14. This growing ‘one-worldness’ and its ethical implications are the subject of Singer (2002) and also Pogge (2002). 15. If willing, a small portion of wealth of the world’s richest countries would suffice to bring the world’s poorest above poverty line. (Pogge, 2002) 16. Beitz (2003) argues that human rights articulate basic principles of global justice. 17. For a justification of human rights as instruments to counter severe poverty in today’s world, see Pogge (2002). 18. I recognize the tension, as James Nickel points out, between starting from abstract and general, hence hardly controversial premises, and deriving human rights from directly relevant, hence not too distant, premises. (Nickel, 1987, 82–3) I deal with this tension by deriving very few rights from relatively uncontroversial premises (the minimalist values) and then arguing for a larger body of rights on consequentialist grounds. 19. These values can be considered what Nickel (1987) calls the ‘starting point’ for justifying human rights, a ‘basic premise,’ ‘something which is accepted without argument,’ where the chain of reasons can go back to. (Nickel, 1987, p. 82) 20. Each of these subsets can conceivably be revised or amended. As the prospects of life (life expectancy, healthcare, supplies of goods and the rise of new threats) change over time, the essential necessities for a minimally good or dignified human life can also conceivably vary. For instance, basic healthcare for preventable and easily treatable diseases (otherwise deadly) can expand when more diseases become easily treatable as medical sciences advance. But such a fluctuation is not subjected to arbitrary interpretation. The legitimate margins are constrained by the minimalist and maximalist requirements: the specifications of inherent rights must stay close to demands for essentials of minimally good human life and what most substantive conceptions of the human good can be said to have presupposed in order to gain maximal support. Physical security from falling while rockclimbing, from injuries during luxury vacations, or the liberty to express oneself in forms of high art, are examples of demands that do not satisfy these requirements. 21. These inherent moral rights give moral legitimacy to rights adopted in international conventions or law, such as the Universal Declaration of Human Rights. UDHR declares, ‘Everyone has the right to life, liberty and security of person,’ (Article 3) though this article does not specify the right to ‘basic subsistence’ as a ‘right to life.’ However, in articles 22 and 25, one finds such a

Notes 243 specification: ‘Everyone has a right to social security’ and ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstance s beyond his control.’ One also finds specification of inherent rights to basic freedom in the following articles: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’; (Article 5) ‘No one shall be held in slavery or servitude’; (Article 4) ‘No one shall be subjected to arbitrary arrest, detention or exile’; (Article 9) and ‘Everyone has the right to freedom of movement.’ (Article 13) 22. Shue’s arguments in favor of political liberty rights are largely consequentialist. (Shue, 1996, pp. 71–8)

8

From Practical Reasons to Extrinsic Rights

1. Nathan, ‘Foreword’ to Marina Svensson (2002), p. ix. 2. See P. Singer (2002) and Pogge (2002) for making a forceful case for this oneworldness and exploring its ethical implications. 3. What are adopted by representatives and delegates of member states at the United Nations, The Universal Declaration of Human Rights (General Assembly resolution 217 A (III), 10 December 1948), International Covenant on economic, Social and Cultural Rights, and International Covenant on Civil and Political Rights (General Assembly resolution 2200 A (XXI). 16 December 1966) are declared, positivist rights. Such rights draw upon moral rights for moral legitimacy. 4. For instance, see the United Nations, Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda; and Samantha Powers, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002). 5. For example, the UDHR states that ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ (Article 16(3)) 6. UNAIDS (2001), HIV/AIDS: China’s Titanic Peril. 7. The Beijing AIZHI Action and Education Institute, an advocacy group, estimates that there are as many as 100,000 children infected and affected in Henan and the number will grow to one million (calculated according to estimated numbers of infected parents). 8. For a recount of these exchanges, see Eyal Press, ‘In Torture We Trust?’ The Nation Magazine, 31 March 2003. Also see Sanford Levinson, ‘The Debate on Torture: War against Virtual States’ and Henry Shue, ‘Response to Sanford Levinson,’ in Dissent Magazine, summer 2003. 9. For a real life case that presents such a scenario, see Rajiv Chandrasekaray, ‘Death Stalks an Experiment in Democracy: Fearful Baghdad Council Keeps Public Locked Out,’ The Washington Post, 22 June 2004. 10. According to the UNDP’s Human Development Indicators (2003), the average rate of Chinese living below income poverty line of $1 a day between 1990

244 Notes

11.

12.

13. 14.

15. 16.

and 2001 is 16.1% (compared to 34.7% in India, another developing country with a large population, but a half century experiment with democracy), the average rate of underweight children below the age of 5 between 1995 and 2001 is 10% (47% in India), the probability at birth of not surviving to the age of 40 between 2000 and 2005 is 7.1% (15.3% in India), and combined (primary, secondary, and tertiary) school enrollment ratio for 2000–01 is 64% (56% in India). Today, there are thousands of newspapers or magazines, hundreds of publishing companies, thousands of TV stations, millions of cell phone users, and Internet users. But these numbers did not occur overnight. Alternative media began to appear in the 1980s. Despite these impressive numbers, the government has strengthened its modern technology capability in censorship and targeted crackdown on liberal publications and persecuting journalists. These steps toward political reform were taken a few years after Deng Xiaoping gave green light to local experiments in rural economic reform in the late 1970s in a pragmatic response to the need to reverse a devastated economy due to Mao’s exhausting political purges and to the widespread disillusions with the Communist Party. Official experiments with village elections began with drafting the law regulating local self-governance in the early 1980s. Though largely insignificant for basic structural political change (village directorship is not a level of government administration), village elections facilitate a training ground for developing capacity for exercising the right to equal political representation. Together with the other local or intra-party election experiments, they help Chinese democrats to dissuade fears that democracy breads chaos and change an elite perception that the ordinary Chinese lack the quality for self-governance. Nicholas D. Kristof, ‘A Little Leap Forward,’ a review of Gilley (2004), The New York Review of Books, 24 June 2004, p. 57. Lifetime position at top leadership practically ended with Deng, though he lingered behind-the-scene as the country’s ultimate authority till his death in 1997. As the ‘fourth-generation’ leadership under Hu Jintao and Wen Jiabao took over from Jiang Zemin, Zhu Rongji, and Li Peng without bloodshed in 2003, the Party’s new rule on term-limit of top leadership positions is put to test. There is hope that periodical peaceful leadership transition may become a routine, though power transfer remains limited within one party. The Chinese National People’s Congress annual session in March 2004 approved amending the PRC Constitution with articles stipulating protection of private property ownership rights and human rights. This may be one indication of the top leadership’s willingness to appear less authoritarian and more acceptable as a member in good standing in the world community. But one cannot rest assured that human rights are now to be respected. The government does not have a good track record to respect the country’s own constitution. This cannot be helped so long as it remains an authoritarian state. Gilley (2004) predicts that democracy is arriving, surely even if difficultly, in China. After the fiascos of cover-up of the outbreak of SARS in summer 2003, the new leaders reacted to media expose and criticisms by publicly acknowledging

Notes 245 errors and demoting officials. These and other moves indicate tiny steps toward government responsiveness to public concerns. Even though the government may have reacted pragmatically under the pressure to bring back foreign tourists and business, it shows responsiveness nevertheless. 17. Rapidly growing gaps between the rich and poor in China explain that sustaining high rates of growth has not benefited the protection of equal basic security and subsistence rights. Income disparity in China has grown to be among the largest in the world. China’s Gini coefficient, according to the UN Human Development Report (2004) is 0.447, larger that of the US (0.408). (The income disparity is partly explained by China’s urban–rural income gap. According to Chinese official estimates, urban per capita disposable income in 2003 was $1,028, while rural per capita cash income was $317.) The Chinese government estimated that 30 million persons lived in poverty; while the World Bank estimated 100 to 150 million people live on income lower than $1 per day. The UN estimates that 16.6% Chinese live below the $1 income poverty line between 1990 and 2002, higher than the rate between1990 and 2001 – 16.1%. 18. Donnelly (1989 [2003]), esp. ch. 2. In this sense, one needs to be careful in calling ideas of dignity and justice from ancient ideas of ‘human rights.’ For one instance of this equivocation, see Lauren (1998), esp. p. 11.

9

An Unfair Utopia?

1. I use ‘obligation’ and ‘duty’ and sometimes ‘responsibility’ interchangeably, though according to Webster’s dictionary, ‘obligation can apply to what one must do or refrain from doing usually by an immediate constraint inherent in position, occupation, relationship, or belief … whereas duty can suggest less immediate compulsion but a greater general compulsion on moral or ethical grounds …’. And ‘responsibility’ means the ability to be ‘answerable, accountable, amenable, liable,’ though ‘responsible’ may differ from answerable and accountable in centering attention to a formal organizational role, function, duty, or trust. (Webster’s Third New International Dictionary. Springfield, MA: G. & C. Merriam Company, 1976). What concerns me here is both general compulsion on moral grounds and immediate constraints inherent in position and relationship and sometimes formal organizational trust. 2. Such criticisms may point the Utilitarian approach to impartial universal duties, as developed by Peter Singer. Singer seems to argue that anyone who is capable is required to give to the world’s starving even if this means that they are able to do less for their own family, friends, or compatriots. Partiality in loving and caring for those near and dear is only justified if it produces the best overall outcome for saving the starving. P. Singer (2002) argues along these lines about the optimal way to stop genocide or intervene in humanitarian disasters. 3. A group of former heads of state, led by the German philosopher Hans Küng, formulated ‘A Universal Declaration of Human Responsibilities.’ The group, which called itself the InterAction Council, intended to get this declaration endorsed by the United Nations, so that, according to the

246 Notes

4.

5.

6.

7.

8.

9.

communitarian philosopher Amitai Etzioni, ‘the current one-sided declaration of rights will be completed.’ Etzioni’s comments and the text of the declaration, as well as the list of the heads of state, can be found at the website ‘Phila, a dialogue on citizenship,’ (http://www.philia.ca/Caring_citizen/universal-responsib.htm) The Universal Declaration of Human Responsibilities (ibid.) recognizes ‘the inherent dignity and of the equal and inalienable rights of all members of the human family’ as ‘the foundation of freedom, justice, and peace in the world and implies obligations or responsibilities.’ However, one worry shared by those who endorse this Declaration is that ‘the exclusive insistence on rights can result in conflict, division, and endless dispute and the neglect of human responsibilities can lead to lawlessness and chaos.’ This worry leads them to emphasize responsibility: ‘all people, to the best of their knowledge and ability, have a responsibility to foster a better social order, both at home and globally, a goal which cannot be achieved by laws, prescriptions, and conventions alone.’ Shue (1980) argues that this distinction is illusory since the so-called ‘negative’ security and liberty rights also demand action, intervention, and assistance. However, the argument for the vital importance of social–economic subsistence rights, as eloquently articulated by Shue, may have the unintended effect of trivializing political–civil liberties. By arguing that liberty rights are as ‘positive’ as social and economic rights, one implies that liberty rights too are as demanding as these other rights. Those who see social economic rights, because of their ‘positive’ demands, as merely inspirational rights, toward the achievement of which parties must make good-faith efforts to strive, may now also see liberty rights as merely inspirational. Nickle (1987, pp. 54–5) addresses this question and proposes that the mixed bag of duties be assigned on grounds of means-end considerations. A duty is assigned fairly and reasonably if it is effective and efficient for guaranteeing the substance demanded by the correspondent right. Duties that fail to motivate compliance and cannot hence be effectively enforced are unreasonable and unjustified. Also see Nickle, ‘A Human Rights Approach to World Hunger,’ in Aiken and LaFollette (1996), pp. 17–85. This account of fairness may not seem entirely satisfying. What efficiency and necessity for safeguarding rights require of moral agents may not be fair. Critics of utilitarian maximization of overall outcome at the expense of individual attachment and meaningful projects have made this clear. Pogge (2002) argues that world organizations and governments of affluent nations, whose policies are responsible for severe world poverty, must fulfill humanitarian duties to aid victims, while reforming basic social-political institutions. Pogge contends that there is a ‘causal explanation’ of how these agents’ actions and policies have caused deprivation and therefore they have such duties. For a report on trafficking of children into slave labor in West African countries, see Human Rights Watch, ‘Borderline Slavery: Child Trafficking in Togo,’ April 2003, at http://hrw.org/reports/2003/togo0403/. For a report on HIV/AIDS orphans in Kenya, which finds a serious lack of care due to social stigma, government neglect, and the need for assistance from international organizations, see Human Rights Watch, ‘In the Shadow of

Notes 247

10.

11.

12.

13.

14.

15.

16.

Death: Children’s Rights and HIV/AIDS in Kenya,’ 21 June 2001, at http:// www.hrw.org/reports/2001/kenya. For instance, ‘Everyone has the right to take part in the government of his country, directly or through freely chosen representatives’; (UDHR, Article 21) ‘Everyone has the right to a nationality’; (UDHR, Article 15) ‘Everyone has the right to freedom of … residence within the borders of each State … [and] the right to leave any country … and to return to his country’. (UDHR, Article 13) These rights cannot be exercised or protected without a host of legal rights and civil rights, which can also be understood as political membership rights. Legal rights: ‘Everyone has the right to recognition everywhere as a person before the law’; (UDHR, Article 6) ‘All are equal before the law’; (UDHR, Article 7) ‘Everyone is entitled in full equality to a fair and public hearing …’; (UDHR, Article 10) and ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty …’ (UDHR, Article 11). Civil rights: ‘Everyone has the right to freedom of thought, conscience …’; (UDHR, Article 18) ‘Everyone has the right to freedom of opinion and expression’; (UDHR, Article 19) and ‘Everyone has the right to freedom of peaceful assembly and association.’ (UDHR, Article 20). For example, the ‘equal rights to marriage, during marriage and at its dissolution’ and ‘to found a family,’ because ‘The family is the natural and fundamental group unit of society’; (UDHR, Article 16) all the civil rights as necessary for forming and protecting social groups and communities; (UDHR, Articles 18, 19, and 20) ‘Everyone, as a member of society, has the right to social security’. (UDHR, Article 22) For example, ‘Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment,’ ‘to equal pay for equal work,’ and ‘to form and to join trade unions for the protection of his interests’; (UDHR, Article 23) ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’; (UDHR, Article 24) ‘Everyone has the right to own property, alone as well as in association with others’. (UDHR, Article 17) ‘Everyone has the right freely to participate in the cultural life of the community’; (UDHR, Article 27) ‘Everyone has the right to freedom of … religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance’. The Chinese healthcare and public health system are in shambles in many parts of rural areas such that they failed to provide even the most basic care and were caught utterly unprepared by the HIV/AIDS pandemic, first exposed in 1999, and the 2003 outbreak of SARS. Meanwhile, high-tech medicine and treatments are coveted for urban elites in well-equipped hospitals located in metropolitan centers. Inequity, not resources, it seems, is the problem. Even so, this account differs significantly from the utilitarian account. It permits one to prioritize one’s active duties even if doing so does not maximize the overall utility of safeguarding the equal rights for all. (See discussion on p. 201) This requirement of equality implies that the duty to safeguard rights of victims (or potential victims) shall not override certain rights of perpetrators

248 Notes

17.

18.

19.

20.

21.

22.

23.

24.

25.

(or suspects). The duties to secure the homeland, for example, do not justify violating the rights of terrorist suspects and enemy combatants. See Kymlicka (1989) for a discussion of individual members’ claims to their communities for rights protection and their communities’ claims to the larger society for protection of the group. I have discussed his views in Chapter 4. Now suppose that the coffee trade has turned the local economy dependent on the global market. Suppose that, over time, local farmers have lost their capacity to produce other cash crops. When coffee prices drop due to competition from coffee growers in South Asia, for example, Columbia growers would suffer. For this widely accepted recognition, see Donnelly (2003), p. 181, where he writes, ‘The moral universality of human rights … must be realized through the particularities of national action.’ These include not only the rights conventions, the Human Rights Commission, the specific treaty bodies, and the UN’s WTO and ILO, as well as the ad hoc international tribunals prosecuting genocide and war crimes in the former Yugoslavia and Rwanda. See Walzer (2000). However, Walzer argues that, when assessing whether to authorize humanitarian intervention, which means overriding a sovereign state, the right to a political community of citizens of the state must be weighed against the human rights of individuals. There are ethical concerns about how to fulfill such an obligation effectively. Humanitarian intervention to stop serious human rights violations and aid victims may mean fighting wars against other states. Such wars must be limited in their scope by the just war principle of proportionality, yet the balancing between lives saved and lives lost may not be morally justifiable by the principle of human rights itself. For a justification for humanitarian intervention on grounds of human rights, see Teson (2003). It has been argued that humanitarian intervention on behalf of universal human rights can best be justified as permissible, not obligatory. If the democratic state cannot participate in such intervention without political legitimacy (domestically), it should not be obligated for acting in this way. For discussions of this issue, see Teson, ‘The Liberal Case for Humanitarian Intervention,’ in Holzgrefe and Keohane (2003), and Luban, ‘Intervention and Civilization: Some Lessons of the Kosovo War,’ in De Greiff and Cronin (2002). See Pogge (2002) and ‘Severe Poverty as a Human Rights Violation’ (paper, on file with this author, delivered at the Department of Philosophy, University of Maryland, 3 March 2004). Pogge links the gross violation of human rights to basic subsistence to ‘an unjust global order,’ which affluent countries ‘effected and still greatly benefit from.’ In the 2004 paper, he writes, ‘This catastrophe [of 270 million poverty-related deaths since the end of the cold war and many more living in life-threatening poverty] was and is happening, quite foreseeably, under a global institutional order designed for the benefit of the affluent countries’ government, corporations and citizens and of the poor countries’ political and military elites.’ For instance, organizations remain dominated by a few powerful states. The UN derives little legitimacy from, since it is hardly representative of,

Notes 249 the people it purports to govern (especially people ruled by nonrepresentative governments, which are recognized as their spokespersons at the UN). These organizations cannot be counted on to act responsively, though they may have from time to time, to violations of human rights of the un-represented and to hold powerful state or multinational perpetrators accountable. 26. The hypocrisy that discredits The UN Human Rights Commission is most telling in the case of the Chinese government. This government desires an active role in world affairs and in international treaty bodies, demands the full benefits of participation and equal or more voting rights. But it has lobbied aggressively to block actions to scrutiny of its own record of human rights performance at home! 27. The UN Secretary-General, Kofi Annan, recently took some initiatives to strengthen the UN’s human rights machinery. In his report ‘In larger freedom: towards development, security and human rights for all’ (UN A/59/2005, General Assembly, 21 March 2005), the Secretary acknowledged that the UN Human Rights Commission was ineffective in addressing human rights abuses around the world because ‘states have sought membership of the Commission not to strengthen human rights but to protect themselves from criticism or to criticize others.’ The proposed creation of a standing Human Rights Council will have enhanced authority. Though the report proposes that member states of this Council should abide by the highest standards of human rights, it does not go far enough to propose that only states moving toward democratic accountability should qualify. Rather, it proposes member states be elected directly by the General Assembly by a two-thirds majority, which retains the status quo since unaccountable or abusive state parties remain the majority. 28. Such reforms would, of course, be short of establishing a democratic world government. However, this undeservingly ridiculed Utopia should not be categorically ruled out. The usual arguments against it often cite such technical problems as the problems with managing it and with the lack of political will. These problems seem surmountable in principle given changing conditions due to rapid globalization, which has surpassed any body’s widest imagination. For example, consider the perceived problems with constricting politicians from abusing power through formal procedures such as regular elections, which are easily tainted by voting irregularities, illicit campaign contributions, media manipulation, and difficulties with informing the public. These well-known problems in practicing democracies at national level, critics say, would be gravely compounded if democracy is practiced on the transnational level. There are also the sorts of problems that Walzer has raised, such as historical divergence, lack of social cohesion, and the intrinsic goodness of (national) political communities. However, these problems, though still very difficult to solve, no longer seem impossible today, due to high-tech telecommunication, rapid mass transportation, and far reaching mass media, which significantly shortened the distances between people. The growing ‘one-worldness’ in common human conditions, problems, and destiny, has been accompanied by growing means and ways that are yet to be utilized to seeking solutions. The recent expansions of the European Union into formerly ideologically, politically, social–economically

250

Notes separated countries injects a measure of hope into the once Utopian idea of a democratic world government.

Postscript 1. The idea of ‘cultural capital’ draws inspiration from the recently revived interest in democracy studies in ‘social capital’ – civic virtues, or ‘habits of the heart,’ a phrase is attributed to Alexis de Tocqueville. (De Tocqueville [1835–40], 1969, p. 287) Tocqueville used ‘habits of the heart’ to characterize the ethos found among Americans in the 19th century US. He believed that such habits shaped the American moral/political institutions that made American democracy feasible and effective. Such ‘habits of the heart’ included a taste and passions for equality and participatory self-governance, which were shaped largely by political experiences.) When social capital is developed in a civil society, it is believed to make democratic selfrule viable and sustainable. For discussions about ‘social capital’ and civil society, see Putnam (1995); Fukuyama (1995); and Benjamin R. Barber, ‘Clansmen, Consumers, and Citizens,’ and other contributing essays in Civil Society, Democracy, and Civic Renewal, Fullinwider (1999). ‘Social capital’ and ‘cultural capital’ overlap. Both stress the vital importance of cultivated habits of the heart (and mind). While ‘social capital’ emphasizes the role of socialization and participation in civil society organizations in such a cultivation process ‘cultural capital’ emphasizes the role of cultural traditions, practices, and social learning institutions in the development of moral motives. 2. One author argues that, for example, in order to gain cultural legitimacy for international standards of human rights in countries in the Islamic world, and ‘to broaden and deepen universal consensus’ on human rights, there needs to be ‘an internal reinterpretation of’ international standards within the ‘Islamic culture.’ (An-Na’im, ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment,’ An-Na’im, 1992, pp. 21, 32, 33) Another author asks rhetorically, given the transgression of human rights everywhere, ‘could it not also be that Human Rights are not observed because in their present form they do not represent a universal symbol powerful enough to elicit understanding and agreement?’ (Panikkar, 1996, p. 161) 3. The emphasis on ‘a human rights culture’ (Rorty 1993) draws attention to the critique that it is not enough for sustainable and effective implementation that human rights principles are rationally and reasonably justified, institutionally adopted or legally codified. Those governed by such an ethical regime must be motivated to act upon the principles. Critiques to this effect can also be found in An-Na’im (1992), An-Na’im, Gort, Jansen, and Vroom (1995), and Witte and van der Vyver (1996). 4. An-Na’im, for instance, doubts that the ‘very notion of a tradition-independent moral standard’ could be the foundation for human rights and that a human rights vision thus founded could be ‘ultimately incoherent.’ See AnNa’im, Gort, Jansen, and Vroom (1995), pp. viii–ix. For a discussion of these concerns, also see Tore Lindholm, ‘Prospects for Research on the Cultural

Notes 251 Legitimacy of Human Rights: The Cases of Liberalism and Marxism,’ in AnNa’im (1992). 5. Wilson argues that political culture should be understood as shared values that ‘reduce enforcement costs.’ (Wilson, 1991, p. 53) 6. See Donnelly (1989), for instance. What theorists like Donnelley come to acknowledge are cultural differences in morality, not moral relativity to culture – an important distinction that I draw in Chapter 3.

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Index abortion, 21, 67, 150, 151 acceptance, 113 acculturation, 52 adultery, punishment for, 32–3 Africa, xxi slavery, 40 Afshari, R., 75 alliance, 155 Al Qaeda, torture of suspects, 179 Amazon forest, 156, 234n29 American Anthropological Association, 25, 75, 98, 234ns27–8 Angle, S.A., 87 ‘anti-terror’ wars, 3, 18 Appadurai, A., 12 Aristotelian principle, 98 ‘Asian values’, xv–xvi, 54–5, 212, 218ns4–5 associational prerequisite rights, 78, 92, 93, 95, 167, 171 collective rights as, 82 associational prerequisites, 97–101 associationist form, 98 asylum, xiii atrocities, 38, 39, 42, 44, 71, 122, 124 authoritarianism, 142 authority figures, 34, 35 autonomy, 134–5, 164 personal, 25, 103 Ayton-Shenker, D., 122, 156 ‘barbarians’, 23 Barry, B., 105 basic, definition of, 163 basic goods, 153 basic rights, 163–4, 233n23 basic subsistence, 168, 175–6 right to, 180 beliefs homogenous, 87–8 and tradition, 21, 32 Bell, D.A., xvi

Benhabib, S., 17 Berlin, I., 41, 104–5, 121 Blackburn, S., 129, 135, 239ns19–20 Boas, F., 10 Bok, S., 122, 124, 157, 159–60 borders and boundaries, 12, 13, 16, 17–18, 19, 68–9, 157, 217 cultural community, 47 cultural and religious, 111 fluidity, 66 and human rights, 124–5 and standard modern threats, 95 Brysk, A., 156 Buddhism, 6, 8, 31, 87, 89 Tibetan, 89, 147 can, concept of, 204–5 capabilities, 128, 151, 152, 204 capacities, cultivation of, 43 Catholics, 21 censorship, 61 centrifugal circles of duties, 190–8, 203–4 toward the standard rights bearer, 197 changes, cultural, 18 Chan, J., 188 character traits, ethical significance of, 33–8 Chernobyl, 157 children, 106–7, 108, 139, 175–6, 201–3, 204, 232n17, 242n14 China, 8, 19, 26, 125, 148, 205–6, 212, 220n9, 235n33, 244n10–17, 248n14 abduction of girls, 195–6 communism, 181, 182 family planning policy, xiv female infant abandonment (FIA), 48–50, 228n23 HIV/AIDS, 176–7, 244n7 human rights, 99–100, 166, 237n10 ‘liberation of women’, 33 264

Index 265 China – continued reforms, 180–2 rights, 86–7, 89 sale of live chickens, 30–1 student demonstrations, 7, 238n12 choice, 15 Christianity, 6, 161, 230n14 civil rights, 95 civil society associations, 94, 207 civil society communities, 215 classical school of cultural thought, 10, 57, 220ns11–12 classic human rights, 77 classic liberal rights, 79 clean air, 80 co-dependency, 156 codes of conduct, 161 coffee trade, 205–6, 248n18 Cole, D., 179 collaboration, xv, 14, 156, 158, 189 collective human rights, 77, 211 collective right, meaning of, 78 collective rights, xix, 78 as associational prerequisite rights, 82 as communally constituted rights, 81–2 as non-excludable rights, 80–1 as socially collaborated rights, 78–80 as special membership rights, 82–5 Colombia, coffee trade, 205–6, 248n18 common heritage, 15 communally constituted rights, 78 collective rights as, 81–2 communication culture-to-culture, 144 intercultural, 17 inter personal, 126 inter-subjective, 144 communism, 8 China, 181 communitarianism, xviii, xix, 6, 47, 48, 52, 228n22 communities civil society, 215 prerequisites for viable, 92–4 and security, 194–5

traditional, 94 vulnerable, 95 community, xvi, 32 ethical significance of, 47–53 as paradoxical social context, 19–20 compatibility, 15 competition, 8 complex societies, 13 conception of the good, 160, 161 Confucianism, xvi, 8, 19, 28, 63, 86, 161, 188, 190–1, 193, 234–5n32 consensus cultural, 6, 14 on human rights, 6 political, 5, 6 view, 9–14 consequentialist approach, 168, 170, 171, 173, 179 conservation, 15 constructive ethical pragmatism, 159 constructivism, xx, 159 constructivist approach, 122, 160, 161–2 contemporary school of cultural thought, 10, 11, 12, 13, 14–15, 221n15 contingent universality, 182–4 continuity, 15 convergence, xvii convictions, 46 core function, 129, 135–40 corruption, 140 corrupt judgements, 140–2, 228ns20–1 Cowan, J.K., 11, 100 ‘creolization’, xvii, 11–12, 16, 125, 207 and culture of human rights, 42 Crocker, D., 66 cross-cultural allegiance, xviii cross-cultural moral principles, 16 cross-cultural standards, xx, 16, 126 cross-cultural validity of human rights, 125 ‘cultivated characters’, 34–6 cultivated sentiments, 38–47, 47 cultivation, 34–5 of capacities, 43 cultural capital, 206–7, 214, 215, 250n1

266 Index cultural changes, 18, 224n35 cultural community, 9, 19–20, 87, 233n25 boundaries of, 47 concept of, 47 differences within, 45, 51 and norms, 47–8 cultural consensus, 6, 14 ‘cultural defense’, 28, 225n2 cultural differences, xiii, xiv, 41, 56–7 cultural groups, 76 cultural identity, 17, 87 cultural moral skepticism, 121, 122, 125, 126 cultural pluralism, 104, 213–14 and cultural relativism, 104 cultural privileges, xiii cultural relativism, xviii–xix, 4, 16, 41–2, 122 cultural critique of, 54–72 and cultural pluralism, 104 normative, 54 Williams on, 55 cultural relativity, 56–7, 67, 219n9 cultural rights, xiii, 83, 101, 171, 231n8 claims, 91–2 as human rights, 88 as membership privileges, 91 cultural sensitivity, xiii, 212 cultural symbolism, xiii cultural tradition, xiii, 9, 20–4, 224–5n39, 225n42 culture, xvi, 3–9, 219n3 as a body of informal knowledge, 18 classical school view of, 10, 15 concept of, xvi–xvii, 9 contemporary school view of, 10, 11, 12, 13, 14–15 critical analysis of, 4 definitions of, 9–11, 15, 18, 20, 220n10 dimensions of, 15 disaggregation, 28 ethical significance of, 25–53, 213, 216 and ethics, xviii ethics of, xv external view, 14, 222n23

as a geo-political entity, 19–20 heuristic significance of, 27 of human rights, 123 human rights to, 85–92 internal dynamics, 13, 221n18 internal view, 14, 222n24 normative significance of, 54 ‘ordinary’ conception of, 12–13 paradoxes of, xvii–xviii, 14–19 right to, 81, 213 vs. human rights, xix, 75 working concept of, 18, 22, 24, 25, 27, 29, 65 culture factor, xiii–xiv, xviii, 3, 25–6 culture-to-culture communication, 144 ‘curious grapevines’, 77 customs, 14, 31–2, 138 Eskimo, 29–30 and functionalism\functionalist approach, 139 Czechs, demonstrations, 7 Darley, J.M. and C.D. Batson, 35 death, xv, 56 De Bary, T.W., 87 deceased, respect to the, 138–9, 240n29 democracy, 7–8, 79 ‘deontic’ priority, 162 descriptive cultural relativism, 55, 214–15, 230n8 cultural critique of, 56–7 distinction from normative cultural relativism, 55–6, 229–30n7 destiny, 15 differences, 38, 102, 215 cultural, 41 in sentiments, 72 dignity, 134, 149, 154, 155, 184 discreteness, 15 diversification, 15, 18 diversity, 107–8, 137 internal, 31–2 intracultural, 16–17 surface diversities, 129, 135 within cultures, 212–13 division of moral labor, xxi–xxii, 199, 205

Index 267 Donnelly, J., 56, 83, 94, 95, 96, 170, 184 Doris, J., 34 duty-bearers, 190, 191, 194, 197, 200 duty/duties, xxi, 186–90, 201, 245–6n1 ‘centrifugal circles’ of, 190–8 inactive, 192, 193 membership, 192 Dworkin, R., 127, 129–30, 131

experience, 37, 128, 149, 221n19, 241n7 explanation, 26 extrinsic rights, xx–xxi, 159, 163, 167, 169, 171, 173, 210 definition of, 167–8 indirect, 172, 180 as a security zone around inherent rights, 177 trades offs, 182

East Asian cultures, xvi economical deprivation, 49 education, 39, 42 moral, 40, 41 right to, 170 effective equivalents, 131–5 effectiveness, maximizing, 201 elderly abandoning in wilderness, 137–8 care of, 29–30, 204 elites, 22 embeddedness, 25, 26, 29, 47, 48–9, 51–2, 77, 101 emotion, and moral judgements, 44 end rights, 167 enforcement costs, 214 Enlightenment, 22, 23 equality, 200, 248n16 and pluralism, 105–8 Eskimo, 29–30, 225n3 ethical principles, feasibility and effectiveness, 56 ethical significance of character traits, 33–8 of community, 47–53 of cultivated sentiments, 38–47 of culture, 25–53, 213 normative, 26–7 quantifying, 25–9 of tradition, 29–33 ethics of culture, xv and culture, xviii ethnic cleansing, xxi ethnic minorities, see subcommunities European Court of Human Rights, 81 exclusion, 100

failed communities, 192 fairness, concept of, 200, 246–7n6 fallacy, ‘naturalistic fallacy’ argument, 58–62 Falun Gong, 76, 87, 89, 90, 91, 92, 99 family, rights of, 175 famine, 169, 176 female circumcism, xiii, xiv, xviii, 51, 91, 116, 137, 144–5, 218n1, 223n29, 240n28 Italy, 103 female infant abandonment (FIA), 48–50, 228n23 feminism, 112 fluidity, historical, 16–17 France, 20 legislation on religion, 3, 103, 108, 109–10, 112, 116 freedom, 153 freedom rights, 163 Freud, S., 42, 227n14 functionalism\functionalist approach, 136, 138, 139, 240n27 and customs, 139 Galston, W., 107 gated communities, 20 Geertz, C., 10–11, 100 generality requirement argument, 62–4 generalization principle, 63, 230n11 genocide, 38, 39, 40, 71, 103, 127, 129–30, 131 geo-political borders, 5 Gibbard, A., 129 Gilley, B., 181

268 Index globalization, xiii, xvii, 12, 95, 100, 124, 155, 156, 158, 187, 207–8, 216, 238n15 global justice, 158 God, 148 Gold Mountains, 65–6 good, 173 conceptions of, 160, 161 Goody, J., 13, 17 government, styles of, 5–6 Greek–Aristotelian tradition, 22 Guatemala, 100 peace agreement, 76 Gurr, T.R., 103 Hampshire, S., 154, 159 Haney, C., 34 harm, 34–5, 39, 113, 115, 116, 161 Harman, G., 34 Hart, H.L.A., 159 Hatch, E., 54, 57, 59 headscarf, 26, 59–60, 83, 91, 106, 108, 109–10, 112 Helping Behavior Experiment, 35 Herder, J. von, 10 heritage, 19, 20 Herodotus, xv, xvi, 55–6 Herskovits, M.J., 102 heterogeneity, 191 intracultural, 17 heuristic significance of culture, 27 hierarchy, 17 historical fluidity, 16–17 historically inherited knowledge, 14 HIV/AIDS, 157, 192, 199–200, 247n9 China, 176–7, 200 Holocaust denial, 116 homeland, 20 homogeneity, internal, 58 homogenous beliefs, 87–8 honor killing, xiii, 26, 55, 56, 57, 61, 229n4, 230n12 Pakistan, 66, 68 human dignity, 94 human good, 148–9, 150 humanitarian disasters, 169 humanitarian interventions, 209, 248–9ns22–3 humanitarianism, 39

humanity, xvi, 25, 43, 93, 151, 153 crimes against, 124 human life, 151–2, 163 human nature, universal, 38 human rights, xv, xvii, xx, 6–7, 70 absence of, 70–1 and borders and boundaries, 124–5 classic, 77 collective, 77 consensus on, 6 cultural rights as, 88 culture of, 123 Donnelly on, 94 as individualistic, 77, 101 international, 39 language of, 214, 250n2 as legal instruments, 98–9 monist value outlook, 103 moral skeptic objection, 121 Rawls on, 5 and religion, 123 and sentiments, 70–1 to culture, 85–92 universality of, 75 universal justifiability, 211 vs. culture, xix, 75 and vulnerable communities, 95 human rights culture, 70, 251n3 human rights universalism, 16 human values, 145 Hume, D., 42, 58 Huntington, S., xvi, 18 hybrid quality, 12 hybrids, 15 Ignatieff, M., 39, 123 immigrant groups, 20 immigrants, 103 impartiality, xxi impartiality critique, 186, 200–1, 246n2 implementation, of rights, 185 incommensurability, 16, 57–8, 64, 65 indeterminacy, 131, 132, 134 India, 103, 235n5 caste system, 19 indifference, 113 indigenous groups, 76, 99, 107, 221n21

Index 269 indigenous peoples, rights of, 77, 93, 96, 123, 171, 231n7 indigenous population, 76 indigenous rights, 83, 232n15 individual human rights, 77 individualism, xix, 23 individualistic rights, 75 individualization, 13, 15, 52 inequality, 84, 106 informal knowledge, 18, 19, 20, 21, 27–8, 33, 50–1, 65, 87, 88–9, 186, 188, 221–2n22 inherent rights, xx, 159, 161–3, 164, 210, 243n22 and the minimalist conception, 172–3 safeguarding, 166–8, 212 validity of, 173 inherent worth, 154, 155 inherited knowledge, 23 instinct, 37, 141 institutional reform, 116, 189–90 institutions, 52, 206–10, 215 non-state, 207 state, 208 supra-national, 207 instrumentality, 180 integral relationships, between rights, 172–8 integrity, and trade-off, 172–90 intercultural communication, 17 intercultural overlap, 17 internal diversity, 31–2 internal fissures, 17 internal heterogeneity, 15 internalist essentialism, 128 internal realism, 128–9, 238n16 identifying effective equivalents, 131–5 and moral judgements, 131 ruling out corrupt judgements, 140–2 uncovering core functions, 135–40 international conventions, 77–8, 88 international human rights, 39, 162 documents, 153–4 Western bias, 93 international justice, 7 interpenetration, of cultures, 12

inter personal communication, 126 inter-subjective communication, 144 inter-subjective validity, 143 intolerance, 113–14 intracultural diversity, 16–17 intracultural heterogeneity, 17 intrinsic rights, safeguarding, 169 Iraq Abu Ghraib prison, 3, 46 torture of prisoners, 25 irrational cultural relativism, 41–2 case against, 69–72 cultural critique, 70 irrationalism, xviii Israel, torture, 179 Italy, female circumcism, 103 Jackson, J., 11 judgements corrupt, 140–2 factors that corrupt, 44–5 and tradition, 29 justice, 6–7, 8, 9 international, 7 Kant, 43, 169 knowledge historically inherited, 14 inherited, 23 inherited and embodied, 36 moral, 19 morally relevant, 9 see also informal knowledge Kothari, S. and H. Sethi, 76 Künf, H., 123 Kymlicka, W., 20, 90, 107 language, 224n38 of human rights, 214, 250n2 teaching bans, xiii law of peoples, 5, 9, 219ns4–6 legal instruments, as human rights, 98–9 legal restrictions, xiii liberal constitutional rights, 103 liberal rights, 22, 97–8 liberties, 8, 153 civil and political, xxi

270 Index liberty or liberal choice, and pluralism, 107–8 liberty rights, 88, 89, 92, 163, 167 justification of, 170 Lichtenberg, J., 44–5, 141 Lindholm, T., 6 lived ideas, 21 local communities, 192, 196 local culture, and moral judgements, 65 local standards, 65, 66, 68 Luban, D., 39 MacCormick, N., 80 MacIntyre, A., 9, 22–3 Mansfield, E. and J. Snyder, 103 Mao, 33, 181 marginalization, 76, 100 Maritain, J., 143 marriage, 58–9, 198, 247n11 maximizing effectiveness, 201 Mayan indigenous people, 100 meanings, 12, 13 membership duties, 192 membership privileges, as cultural rights, 91 membership rights, 198, 247n10 meritocracy, 8 Merry, S.E., 3 meta-ethical standards, 61 metaphysical realism, 128 Mexico, women, 76, 99 Milgram Experiment, 34 Milgram, S., 34 Mill, J.S., 43, 227n17 minimalist idea of the right, 160–1 minimalist values, 132–3, 135–6, 137–8, 139, 140–1, 145, 147–50, 154, 155–6, 158, 162, 165, 242–43ns20–1 differing interpretations, 150–1 and inherent and extrinsic rights, 174 moral claims, 150–3 normative validity, 147 validation by standard tests, 145–6 minimal rights, 7 minimal threshold, 132, 146, 149 minorities/minority groups, 18, 76

‘moderate scarcity’ of resources, 157 monist value outlook, 103, 235n6 Montaigne, Michel de, xv, 56, 218n2 Moody-Adams, M., 57 moral agents, 27, 67, 69, 190, 247n7 moral cultivation, 21–2 moral culture, 19, 224n37 moral disagreements, xv moral education, 40, 41 moral judgements, xiv, 4, 26, 28, 29, 67, 216, 217 and emotion, 44 and internal realism, 131 and local culture, 65 and normative cultural relativism, 55, 64 and sentiment, 39–40 and virtues, 34–5 moral knowledge, 19 moral labor, division of, xxi–xxii, 199, 205 morally relevant knowledge, 9 moral particularism, 6 and pluralism, 108–10 moral principles, cross-cultural, 16 moral propositions, 63 moral right, definition of, 162 moral rights, 97, 169 moral sentiments, 37–8, 43, 226n7 moral skepticism, external, 128, 132 moral uncertainty, 130 moral visions, 147–50 Morsink, J., 154 multiculturalism, 213–14 multinational corporations, 95, 156 murder, 150, 151 Muslims, 3, 18, 32, 38, 64, 75, 232n14 Sudan, 92 wearing of headscarves, 26, 83, 106, 108, 109–10, 112 Muzaffar, C., 76 narrative, 22 Nathan, A.J., 16, 99, 166 nation, 20 nation states, 207–8 ‘naturalistic fallacy’ argument, 59–60 Nazism, 37, 64 Nepal, 103

Index 271 NGOs, 123, 196, 207, 236–7n5 Nietzsche, F., 18 nondiscrimination, 84 non-excludable rights, 78 as collective rights, 80–1 normative cultural relativism, 54, 55, 62, 229n2 cultural critique, 64–9 distinction from descriptive cultural relativism, 55–6, 229–30n7 generality requirement argument, 62–4 and moral judgements, 55 ‘naturalistic fallacy’ argument, 59–60 normative (moral) relativism, 230n9 ‘naturalistic fallacy’ argument, 58–62 philosophers’ critiques, 57–64 self-inconsistency argument, 60–2 normative priority, 162 normative significance of culture, 54 norms, 13, 47–8 Nussbaum, M., 128, 149, 151–2, 179 objectivity, 127–31 obligation, xxi, 188, 201, 205, 245–6n1 onerousness critique, 186, 189, 194, 199, 203–6 ‘one-worldness’, 157, 166, 183 ‘ordinary’ conception, of culture, 12–13 ordinary moral skepticism, 126, 127 organized social entities, 188–9 overlap, intercultural, 17 overlapping consensus, 4, 6, 160 ozone depletion, 157 Pakistan, 223n28 honor killing, 66, 68 Panikkar, R., 102 paradoxes of culture, xvii–xviii, xix, 14–19, 29 partiality, permissible, 200–3 peace, 80 penitentiary systems, 96 peoples, 9, 20 persecution, 113, 114

personal autonomy, 25, 103 personhood, xvi, 4, 98 philosophical critiques, 55 Piaget, 43 pluralism, xix, 102, 104–11, 236ns7–8, 10 and equality, 105–8 and liberty or liberal choice, 107–8 and moral particularism, 108–10 and practical reason, 110–11 unreasonable, 111 Pogge, T., 189 political and civil rights, 169, 170, 173–4 political consensus, 5 political liberty rights, 164–5 political oppression, 49 political reform, 4, 210, 249–50n28 positivist rights, 169 poverty, 249n24 practical reason, and pluralism, 110–11 preferences, 63 presuppositions, xiv pride, 134 principles, and rules, 21 public hearing right to, 170 cultural variations, 170 punishment for adultery, 32–3 by amputation, xiii, xix, 32, 137 Pye, L.W., xvi Rachels, J., 64, 138, 139 rationalism, 42, 43 Rawls, J., 5, 43, 97, 110–11, 123, 157, 158, 160, 227–8n19 A Theory of Justice, 52, 98 realism, see internal realism reflective practices, 22 relativism, xviii, 16, 41, 42, 229n1 see also cultural relativism religion, 17, 35, 169 and human rights, 123, 237n7 overlap in populations, 6 Renteln, A.D., 28, 31 resources extreme scarcity of, 169 ‘moderate scarcity’ of, 157

272 Index responsibility, 188, 246n4 rest and leisure, right to, 171 Richardson, H.S., 159 right ideas of, 160, 161 to culture, 81–2, 213 to education, 170 to public hearing, 170 universal idea of, 157, 158 rights basic, 163–4, 233n23 civil, 95 cultural, xiii of family, 175 implementation of, 185 individualistic, 75 as instruments, 166–72 integral relationships between, 172–8 minimal, 7 moral, 97 political and civil rights, 169, 170, 173–4 positive and negative, 79, 189, 246n5 social group rights, 84–5 structure of, 177 see also collective rights; extrinsic rights; inherent rights; liberty rights; women’s rights rights-bearers, 190, 191, 193, 194, 197 rights-justified duties, 186, 192, 195, 206 rights violations, 124 roots, 15 Rorty, R., 14, 38–44, 69, 70, 226–7ns9–13 Rosemont, H. Jr., xvi, 186, 188, 191 Roth, K., 179 Rousseau, 43, 227n15 rules, 21 Rwanda, genocide, 71, 230–1n15 Sahlins, M., 10 Sandel, M.J., 6, 47, 52, 186 Saudi Arabia, women, 137 Schwartz, T., 13 security, 90, 149, 153, 170, 175, 187–8 and communities, 194–5

security rights, 163 security zones, 175 selective rights, 169 self, 47, 52 self-critique, 15 self-inconsistency argument, 60–2 Sen, A., 169, 176 sentimentality, 38, 40–1, 70 malleability of, 42 and torture, 41 sentiments cultivated, 47 deficient, 44–5 differences in, 72, 170 and human rights, 70–1 manipulation of, 40, 41 moral, 37–8, 43 and moral judgement, 39–40 Serbia, soldiers’ torture of Muslims, 38 Shklar, J., 114 Shue, H., 15, 97, 153, 162, 164, 189, 190, 191 Sieder, R., 100 similarity, 15, 18 simpler societies, 13, 221n20 Singer, M.G., 63 Singer, P., 157 situational factors, 28 skepticism, external moral skepticism, 128, 132 skill, 36–7 slavery, 40, 56, 64 Snyder, J.L. and B. Walter, 103 social cohesion, 208 social cooperation, 79, 97–8, 136, 138, 157, 158, 234n31 social group rights, 84–5 social justice, 159 social learning, 21–2, 23, 34, 35–6 in traditions, 37 socially collaborated rights, 78 collective rights as, 78–80 social transmission, 14, 15, 19, 33 society, 13, 20 conception of, 15 solidarity, 16, 17, 155 sovereign right, 78 sovereign states, 5

Index 273 special membership rights, 78 collective rights as, 82–5 spiritual traditions, 17 standard modern threats, xxi, 90, 93, 94–7, 155, 158, 166, 168, 183 standards, 12, 55, 59 common moral, 160 cross-cultural, 16 local, 65, 66, 68 meta-ethical, 61 Stanford Prison Experiment, 34 Starr, J. and J. Collier, 100 state institutions, 208 states, 209 statist critique, 186, 206 Steiner, H., 124 sub-communities, 17, 224n33 subjectivity, 127–31 subsistence rights, 163 Sudan, Muslims, 92 Summer, W.G., 41 supra-national human rights institutions, 210 supra-national institutions, 207 surface diversities, 129, 135 survival, 90, 138, 150 Svensson, M., 87 sweatshops, xiii Taoism, 8 taste, 41, 46 Taylor, C., 6, 19–20 terrorism, xiii, 3, 234n30 treatment of suspects, 3 Teson, F.R., 39, 61, 63 theft, punishment for, 32 A Theory of Justice, 52, 98 ‘third generation rights’, 77–8, 80, 81, 231ns9–10 threats, 156 threshold of human goods, 153 threshold necessities, 145, 151–2 Tibetan Buddhism, 89 ‘ticking bomb’ scenario, 178, 179 tolerance/toleration, 102, 111–17, 236n14 torture, 25, 36–7, 38, 39, 40, 45–7, 125, 178–9 and particularism, 109

and rights, 81 and sentimentality, 41 trade-offs and integrity, 172–90 permissible, 178–82 tradition, xvi and beliefs, 21, 225n40 broad view of, 21, 22 cultural, xiii local, 8 ethical significance of, 29–33 internal diversity, 31–2 and judgement, 29 MacIntyre on, 22–3 narrow view of, 21 as reflective discourse, 20–4 rules of, 21 social learning in, 37 traditional communities, 94 transformation, 15 truth, 39, 44, 129, 130, 142, 183 Turkey, women, 76 tyranny, 7 UN, ineffectiveness, 209–10, 249ns25–7 uncertainty, moral uncertainty, 130 un-fairness critique, 204 uniformity, 15, 215–16 in social learning, 16–18 uniqueness, 15, 16 unity, 15, 16–17 Universal Declaration of Human Rights, 6, 76, 143, 169, 170, 198, 242ns10–12, 243n3 on penitentiary systems, 96 universal human nature, 38 universal human rights, 56 duties to safeguard, 191 universal idea of right, 157, 158 universalism, 16 universalist ethical principles, 3 universality contingent, 182–4 of human rights, 75 universal justifiability, of human rights, 211 unpredictability, 15 unreasonable pluralism, 111

274 Index US, 7, 8 Bush administration, 18 Utopia, 185 values, 12, 57, 126, 127, 132 unanimity in fundamental, 149 vices, 114 victims, 38, 39, 40, 41, 42, 124, 130 Vienna Declaration, 215 violence, 17, 71 ethnic, 103 virtue ethicists, 21–2, 34, 35 virtues, and moral judgements, 34–5 Voltaire, 121, 124 vulnerability, 156 vulnerable communities, 95, 97, 236n4 Waldron, J., 79, 80, 81, 171, 190 Wallerstein, I., 77 Walzer, M., 6–8, 19, 39, 207 ‘war on terrorism’, 18 widow burning, xiii, 133–5, 239–40ns21–3

Willetts, P., 123 Williams, B., xviii, 55, 57–8, 62–3 Williams, R., 12–13 Witchell, J., 100 women, 59–60 abuse of, 26 Mexico, 76 Saudi Arabia, 137 subjugation or discrimination, xiii, 51, 106, 124 Turkey, 76 under Mao’s regime, 33 and the Yanomami tribe, 17 women’s rights, xiii, 78, 84, 183–4, 232n16 world government, 208 worth, inherent, 154 Wright, S., 16 Yanomami tribe, 17, 223–4n32, 240–1n30 young, care of the, 139