To What Extent Is the Idea of Universal Human Rights an Illusion - Essay Example

Universal Human Rights: An Illusion 2009 Introduction The consequences of World War II, the atrocities committed by the Nazis, a strong political protest arose in the universal community ending with acceptance in 1948 of the Universal Declaration of Human rights, recognizing “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” (cited in udhr.org). Since then, the concern over human rights has been increasing. Till date, a lot of global, local or national accords relating human rights issues have evolved, albeit, major violations of such rights have been seen in South America to Far East Asia on a broad scale. While human rights have been violated in all parts of the world on the political or international agenda, there have also been violations in human rights in terms of social contracts and gender relations. In this paper, I will discuss the issue of human rights in light of various aspects of political science. Beginning with a broad definition of human rights and understanding of the theoretical perspectives, I will discuss the question with specific theories of natural law, positivism, feminist jurisprudence and postmodern approach. The Illusion and the Reality From the Universal Declaration, it is apparent that the issue of human rights requires universal fraternity that is taking the whole world as a common entity. Yet, very strangely a question comes today, especially from the post-modern, post-colonial viewpoint asking why the push on the non-occidental societies to give in to so-called Western sense of human rights should not be read as “cultural imperialism”? Amartya Sen (1998) says the idea of human rights develops from the belief of a human community and is not based on “citizenship of any country, or membership of any nation”, but as rights of every human being. This implies that the concept of collective human rights is a “uniting idea”. That such a notion finally ends up in heated political arguments and moral wrangles, predominantly in the context of non-Western societies is, according to Sen (1998) because of the cultural differences supposedly disintegrating the world we refer as the "clash of civilizations" or a "battle between cultures." In such situations, Sen Finds a big rift, a tendency to think in local and cultural terms that claims that Western countries acknowledge many human rights, related to their have no importance in Asian countries (Sen, 1998). Sen (1998) has shown that the "Asian values," as opposed to Western values have often been asserted by the official spokespersons of Asian countries contending the implication and logic of universal human rights and giving more stress to order and discipline (such as, in the Confucian system), and less on rights and freedoms. They consider the Universal Declaration of Human rights symbolizes imposing Western values on other cultures—a position strongly voiced by several official spokesmen from Asia at the Vienna Conference on Human Rights in 1993. The conference was attended by a record number of about 7,000 official delegates and the universal human rights community including academics, treaty bodies, national institutions and delegates of more than 800 non-governmental organizations (NGOs) -- two thirds of them at the ground level grass-roots level (hchr.org). On the question of political and civil rights the conference had a divide mainly on local lines, with several Asian delegates saying no to approve the fundamental political and civil rights. Universal human rights basically presume human dignity and justice as natural – an extremely mistaken notion to settle social debates , human behavior, or achieving social justice that such rights were thought to carry out. It is because such rights have limited authority to dictate orders. Human rights is a kind of dream that America cherish—a dream of a world without exploitation, without despotism, full of democratic spirit and free of past tyranny. Like every dream, it can also prove to be a delusion. The idea of universal human rights originated in the 18th century. It acts as the main force of modern human positions morally supporting the social deal between an individual and society controlling the extents of his/her legal defense and political involvement, influencing social values greatly. We feel honored in a society that defends us letting us full freedom of expression, while our self-esteem suffers in social systems authorized to mistreat us or exclude us from advantages allocated to certain others. The extent of our rights corresponds to the measure with which society regards us as human, as the degree to which we are denied of our human qualities such as individuality, concern, etc says about the degree we are deprived of our human rights (Kunstler, n.d). Thus, defying human rights not only acts against a particular human choice (freedom of expression or the right to elect), but hits at the very core of self and society. As Paolo Freire (cited in Kunstler, n.d) says, "what characterizes the oppressed is their subordination to the consciousness of the master", a society that robs its members of their rights batters its freedoms. The identity, laws, and values of the United States, in particular, are founded upon the idea of natural, inalienable rights. Yet, despite an intensified concern for human rights today and many successful human rights initiatives, the idea of rights has been degraded as rights are increasingly used to advance an endless set of agendas. Some of these agendas are indeed just, but using rights as the focal point of discourse burdens the idea with a weight it never was meant to bear. At this time, intellectual property rights are extended to up to bioengineered products. The right to have arms has included the right to use vest-piercing Teflon bullets. The clash between the rights to opt an abortion as opposed to the right to life of the fetus has become a major social split. Yet all at once, increasing rate of crime and violence are defying human rights (Kunstler, n.d). Natural Law and Human Rights History, for sure, has witnessed such conflicts already. A certain kind of freethinking that assume an inevitable connection between freedom and unbiased justice regarding individuals and their properties and compulsions surfaced up in Europe during the time of Christian orthodoxy, that is, the time when due to St. Augustine and other early Christian philosophers established through their effort a strong version of Bible in the churches. Even the so-called unbiased liberalism (“Classical Liberalism”, so to speak) had its chances to share basic nature of human beings, and interpersonal associations that Christianity believed in, presuming the same ethical implications of natural law. Christianity during its ascent and Classical Liberalism were both imbued with natural law as the basis of all significant thoughts (Dun, 2001). Both Classical Liberalism and Christianity started to wane from the last part of the 19th century onwards. The idea of natural law was not drawing the intellectual any more to gradually losing its relevance as we see it today. It has been replaced from the 19th century on by a newer notion called progressivism, the bedrock of progress in science and technology and a new lifestyle that believes in “new age” , nationally or “social utopia”, internationally. It gives up natural rights of human beings as limited, to attain ”right to everything” as am infinite and complete attainment. It is, therefore, a direct hit on the face of the idea of natural law (Dun, 2001). The natural law, is no “law”, as we understand the term today, but in a more philosophical sense a natural order, a human bondage based on the” natural sense of plurality” of the wide-ranging individualities. The Law, in the “natural” sense, believes in the natural order, as semantically it believes in separateness and distinction of individualities. This law is not the” rule of law”, a hierarchy of dictates a subjugation to a particular authority. Human beings have natural rights which are concrete and not philosophical or spiritual that can contain through their thoughts, emotions, speech and bodily movement .Logically this sort of tights do not interfere with others natural rights. It is unlike a thief who steals others’ assets and claims as it belongs to him or a strong forcing a weal to surrender to an authority, these sort of tights could not be called as natural rights (Dun, 2001). In the end, Natural law theory gives rise to the notion of "natural rights." John Locke 1632-1704), one among the most commanding modern political philosophers says In the Two Treatises of Government (published incognito in 1689 by Locke), that men are by nature free and equal. He asserted that people have rights-- right to life, liberty, and property, having a basis independent of the rule of law. Locke claims that men are naturally free and equal as the result of a social contract where people in the state of nature John Locke (1632-1704), is among the most influential political philosophers of the modern period. In the Two Treatises of Government, Locke said that men are by nature free and equal, refuting the claim man is subject to the orders of a monarch by divine ordinance. According to him, people have rights to life, liberty, and property whatever the laws of any society are. Understanding this theory of rights to freedom and equality, Locke claimed that legitimate political governments result from social contracts in which people have some control over government that is built to provide them with better lives. Since governments protect the rights of the people and further the public good, governments failing to do so can be opposed and superseded with new ones, thus defending the right of revolution by the people. In the Letter Concerning Toleration, Locke opposed forceful ways to bring people to the religion the ruler thinks to be true and also opposed the idea that churches should bully over their members. This natural rights” theory as advocated by Locke, offered a philosophical basis for both the American and French revolutions. "All men are created equal" is perhaps the most well-known phrase in any of U.S political documents Thomas Jefferson, the third president of the U.S (1801–1809) first used the phrase in the Declaration of Independence (1776) refuting the prevailing theory of the day known as, the Devine Rights of the King stressing that a king is not responsible to any worldly authority, his right to rule comes straight from the will of God (Greene, 1976, Jeudwine, 1919). These the present 21st century the Western European mass psyche accepts certain ideas about politics and good society, the ideal type of which is the democratic liberal state with a capitalist economy offering human rights for its members. Five different factors are involved here--- laissez-faire, democracy, state, a consumerist economy and the principle of human rights, it being implicitly implied these factors are roughly linked to each other or at least coherent at the minimum. This is an illusion, thinks Raymond Guess (2001), who studies important notions about modern western including the nature of state, power force and violence, the concept of liberalism, democracy, and human rights. He finds that that the liberal democratic state committed to human rights is actually a blend of unrelated elements, chaotically arranged. Geuss (2001) says that some historians egg on exploiting the conflicts and confusions of the collective psyche of the people belonging to a particular geo-political set-up. He says that there could be genuine and schemed differences in public opinion—like in certain societies, there could a collective belief that nobody can surpass the king and the Church. This matches about the differences the public mind as to who could become the king, what are the exact powers of a king and what shall be the relation between the king and the Church. Sincere differences may surface out urged by reason, rituals, good sense and religious mores. Individual value standards may also cause differences—discord happens at every such point. Social discord is something that marks history from the ancient days, neither agreement nor clash being the sole center of history of civilizations. Guess (2001) cites Nietzsche to establish that discord and conflict are as much needed for civilization as accord and harmony and that if conflict causes waning of civilization then such declines are as much needed as the waxing of societies. Regarding the conservative presumption that conflict causes erosion of definitions, Guess (2001) says referring Nietzsche history cannot be defined through terminologies of a fixed nature. Christianity, penalty, morality and principles are not as invariable as objects like triangle, water, mass, etc. They change their meaning and interpretations with time and space. Like, “ Third-century Christianity was not the same as eighteenth century Christianity. Christianity—the concept and the reality—is what a succession of humans have made it by virtue of acting in certain ways….Was Christianity “really” or “essentially” Christ’s first- century Jewish way of living, the doctrine of Paul, or the decrees on the nature of the Trinity made by a certain church council? Was it a form of liberation from the Law or a highly restrictive discipline of the will?” (Guess, 2001) So, according to Guess (2001), terminologies change their insinuations according to the historical context they are used. New institutions giving newer shades of meaning to words and expressions, each re-use of the word “democracy” in a different context is a newer reading of democracy. Hence, the author thinks our political life cannot have a definite and unchanging model, but it is a blend of half or hazily shaped ideas that we can reshape and bend to suit our need. The same happens to human rights with its constituent five elements having their independent histories of tensions among them (for example between democracy and liberalism), the issue of human rights is bound to endure tension within itself. Guess considers this to be an eternal conflict where one side will attempt to even out political and other differences to establish a common standard (here, Universal human rights) and others will veto to such rights from their own geo-political context. Positivism and human rights Presently, it is thanks to the United Nations with its deep commitment for about half century to the progress of humanity, a remarkable body of human rights policy has found place in universal law, differing stridently to the state of affairs some fifty years back when there was no body of global human rights law. Yet it the voyage has been made successfully this far, why should one then still be bothered with the philosophical basis of such rights? Philosophy, as Plato said, is to know oneself. According to many others philosophy serves is to strengthen our insight of truth. There are still others to whom the philosopher is a judge, measuring the human experience and speaking about there are reasons exist for searching the philosophic foundation of human rights law--one's own approaches toward the subject are likely to be hazy unless she understands the philosophies that mold them. Jean Piaget, the eminent researcher of cognitive tradition said that "morality is the logic of action. Besides, if one understands the law referred, one is more acquiescent to the authority of the global law of human rights (Shestack, 1998). International human rights law (IHRL) has endorsed two main models—the first views human rights from a restricted position—from a twofold format. The second is broader—view human rights as varied. At one end it is like a tradition and on the other end it is part of an international law. The difference between two models is that while the second one does not make any rigid difference between the law and the tradition the first one does make such a difference giving much stress on international law. The narrow position, a type of legal positivism, arguably, is better equipped, to cope with questions related to human rights. Legal positivism in global human rights can be divided in two parts: realist positivism and constructo-positivism. Realist positivism treats the power of the state and the \ interests of the state as the principal driving force in global relations and it has rude approach towards international law per se, having its link with classical and structural realism that stresses on the power and abilities of the state. Constructo-positivism emphasizes the appreciation of human rights among globally important players and state actors, introducing a more opulent version of positivism that permits all ethical conjectures of international relations. The interesting point with the constructo-positivists is that they take many things as considerations for their future agenda, keeping it in mind that there is a difference between present and future (Totaro, 2008). Classical positivism of the late 18th and 19th centuries was developed mainly Jeremy Bentham (1748-1832) & John Austin (1790-1859) standing against the prevailing semi-naturalistic legal theory of their day going as far as to attack Blackstone's vastly popular Commentaries on the Laws of England. Bentham censured Blackstone's fixation with the "rule of law"—laws that Bentham found ancient and obsolete Bentham found Blackstone’s theories. as “nonsense upon stilts”.  The utilitarian Bentham also saw faults such as; the confusion in the word ‘law’ caused by this, the part played by ‘unscientific’ ideas , a wrong description l of the law,  Bentham’s main concern being in the secularisation of law (Stone, page 123). Classical positivism does not have much concern about the moral aspects of international law, it rather stresses on the national interests and thinks the sovereign states to be the major powers in the international affairs. It believes mankind to be self-centric and competitive. But the look between legal positivism and the need for a sovereign hand keeping the distinction between morals and law was promptly thrown away by the legal thinkers. They considered the separation of moral and legal aspects of human rights by the legal positivists to be important needing attention as moral rules do not always correspond to political ambiance and often considered to end in accords through non-political ways. Legal rules, on the other hand are made through treaties, rituals and general guidelines of international law. In all the cases, international law has socio-political dynamics rules by state players in an open-minded atmosphere. Legal and moral aspects of law, albeit overlap to some extent, it is important that it is not the moral but the logical aspects that become the basis of a rule (Totaro, 2006). Disillusions crop up when we fail to understand that. Feminist Jurisprudence and Human Rights In the past, feminist legal theory made an impressive presence making major waves on many fields of the law, including rape, self-protection, family violence, and on new topics like sexual harassment. However, legal feminism, these days , goes far beyond in reallocating power from the male domination to the subordinates ( read, women), challenging the so-called key ideas of objectivity of Western jurisprudence declaring them as patriarchal fictions aimed to defend male advantages. Many legal reforms triggered by the feminists have spoken about the real wrongs, like the approach to deal rape victims more cruelly and distrustfully than ordinary victims to other offenses, which in has not provided them enough safeguard (Weiss and Young, 1996). The goal of feminist jurisprudence pressingly aims at restructuring institutions. This needs theoretical analysis and amendment because encouraging freedom and equality for women shows an insightful change in basic ideas about the spirit of women and their appropriate place in society -- a change from discrimination to equal opportunity of the sexes. The extent of this change has caused many feminist legal theories to develop mainly on two levels: one no-nonsense, tangible and specific and the other abstract and finally creative (Stanford Encyclopedia). Even to this day, the male dominated legal world gives little concern to the feminist jurisprudence that studies and investigates the right of women. Kathleen Lahey studies methods and processes that feminist legal scholars developed at a time when feminist legal scholarship was mostly an unrecognized arena. She found that feminist legal scholarship is not very authentic, being simply a variant of radical socialism, anarchism or existentialism and that feminist legal scholars fear their male-counterparts so much so that they almost echo the male voice to give it a genderless, classless and international shade. In later days this took many illuminating turns. An aspect of this legal scholarship became very much noticeable --its political intention of stopping the marginalization of women in society which could be plainly called gender justice. From such an aim, surfaced out the slogan—“The Personal is Political.” Besides feminist legal scholarship has tried to include a woman’s access to knowledge that was kept away from her for many a days and in this way feminist jurisprudence has chipped in a larger political fight, albeit it has been strongly censured by the mainstream academia for doing so (Thayyil, 1998). The point reached here by the feminist-jurisprudent did not only defended the women’s cause an added image of reverence, it also highlighted that human rights is not only an illusion for women and that it cam blend activism with the knowledge of law. Today, human rights could have been better appreciated if women's experience were the basis for positing and implementing such rights, which does not mean that is only a single feminist viewpoint about rights of human beings -- in fact there might be many points of view. Rather, it can be contended that, considering the life of a woman, the principles of human rights that would come out would not necessarily show the world of such rights as we understand it in the general sense. While the typical "human rights" case relates the political activist detained for expressing his views or political activities, there are other kind of silent oppressive methods that woman goes through-- oppression that do not correspond to the Bill of Rights and are rarely documented in international accords or national refuge laws, oppressions that include, problems related to marriage, child birth ,labor, property rights, sexual subjugation and other forms of discriminations that are customarily rated as personal, nongovernmental, and subjects of cultural difference. In such a situation possibly the most reflective stimulant to jurisprudence in the past two decades has been the of growth feminist approaches to the study of law which has assured the women that the law is not as illusive as it was before to have their rights as a human being fulfilled (Gayle, 1995). The liberal feminism of the 1960s sought to pull apart the legal blocks that discriminated women i equal opportunity to men. The theory behind was that individual human rights in a laissez-faire society should rise above gender differences (McElroy, 1991). This type of legal feminism was also manifested by Ruth Bader Ginsburg, once an associate justice of the Supreme Court, in a 1988 speech, where she said, “Generalizations about the way women or men are . . . cannot guide me reliably in making decisions about particular individuals." (as cited in Rosen, 1993). The feminist legal theory (known as "radical feminism"), that surfaced up during the 1980s, implored women to give up conventional ideas of rights and justice, seen as holding the viewpoint of male supremacy. The new feminists accused that the reforms attained "equality feminists" have ruined the benefits of the women and have not removed their miseries (Rosen, 1993). For radical feminists, the key idea was "patriarchy," that was recognized as a major male ploy of past days. Even liberal values like objectivity of the law, equality, and individual independence was unnecessary to them because of their "patriarchal" roots (Scales, 1986). The new feminism tried to substitute these conventional terminologies with a new kind of jurisprudence based on interpersonal bonds (West, 1988). Law was read as a tool to "change the distribution of power," needing not equality but "an asymmetrical approach that adopts the perspective of the less powerful group with the specific goal of equitable power sharing among diverse groups" (as cited in Chamallas, 1992) Canada was first to come forward to implement feminist jurisprudence on a national scale aided by American feminists. The roots of the legal revolution of the radical feminists are in American law schools, where feminist jurisprudence has now a strong and pervasive. In 1991, Fred Strebeigh reported in the New York Times Magazine that "most law schools in America now offer courses taught by professors concerned with feminist legal theory." By 1990, there were at least eight law reviews committed solely to feminist causes, with hundreds of articles. The American Bar Association in 1992 discussed feminist theory in particular. The effect of feminist legal theory is not limited to academia -- graduates from law schools are supporters of these theories (Weiss and Young, 1996). Postmodernism and Universal Human Rights In 1947, on the eve of the UN General Assembly's vote to endorse the Universal Declaration of Human Rights (UDHR), the American Anthropological Association (AAA) put forward a statement to the draft committee contending against such a declaration saying that the individual needs a respect for his/her cultural differences since it is through culture that the person recognizes his/her character (AAA, 1947). This possibly is the voice that exactly and openly expresses the voice of postmodern relativism -- coming from anthropologists is not a surprise since their profession recommends defending native cultures-- such values as universal human rights are to them, an indirect way to assert power and cultural domination. Fifty years later, defiance to universality of human rights are still there and, particularly in certain socialist states like China where government leaders have affirmed to stick to traditional mores—those values that were earlier scoffed at, like, Confucianism and other tradition. The need to oppose international criticisms of human rights record since 1989 has made the Chinese authorities to now assert that their political command is right by China’s traditional "cultural values (Li). Both the Chinese statements made strong normative claims: that the opposite views on values should not be judged by, or transposed on to, other cultures; and that a culture should not inflict on other cultures its own principles, universal human rights for them being veiled Western cultural ideas, nothing more and nothing less. As globalization rapidly gobbles up the traditional notions of authority, domestic imperative and cultural sovereignty, the present debate shows mixed emotional responses of shameful events awfully felt by nations swallowing radical changes. The diverse values they had was once morally censured by o colonialism. But ethical relativists’ assert on the uniqueness of cultural values. It is rather a denunciation of intersecting and mingling values between different cultures. The primary normative claim of cultural relativists is that cultural and value diversity exists in human civilization. But because of moral diversity, respecting different moral values is more crucial than realizing the existence of disease, hunger, torture, slavery. Empirical claims thus are not suitable as the basis for developing moral principles such as "Never judge other cultures" or "We ought to tolerate different values." Consequently, if it is proved that China had its distinct culture and values, this fact does not entail that such values should not be judged by other cultures and values (Li, n.d). Another problem with moral relativists has to do with a "genetic fallacy," the theory that cherish local norms and consider outlandish culture as unacceptable. But, the origin of an idea - cultural or religious or historical - does not need the command that it never be adjusted to another context. The Chinese leaders contradict themselves when they reject all non-Chinese ideas even while accepting many foreign ideas like Marxism and, at present, market capitalism (Li, n.d). The post modern approach to Human Rights’ universality thus makes the whole notion of such a grand theme merely as a new game plan and thereby reduces its future possibilities. Conclusion Thus, human rights, despite being the main bedrock on which all moral and social laws have been postulated, have remained an illusion. Even though the earliest political theorists have claimed that freedom, equality and liberty is the natural law, monarchy dismissed the principles by emphasizing monarchy as divine rights. Over the ages, various political and economic theories have been accepted as superior to others with the result that some social values, typically western, have been imposed on the rest of the world. Hence, capitalism, laissez-faire and market economics have become the basis of all social contracts which necessarily infringe on social relationships that other political forms would have brought about. In this sense, the Universal Declaration of Human Rights, which brings with it legal positivism, brought about by the United Nations itself is a western notion. In this respect, feminist jurisprudence, which rejects male domination in matters of deciding on human rights, has gained prominence. 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