Cultural Relativism and Universal Human Rights Author(s): Jack Donnelly Source: Human Rights Quarterly, Vol. 6, No.

4 (Nov., 1984), pp. 400-419 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/762182 . Accessed: 19/01/2011 09:50
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HUMANRIGHTS QUARTERLY

CulturalRelativismand UniversalHuman Rights

lack Donnelly*

is Culturalrelativity an undeniablefact; moral rules and social institutions evidence an astonishing cultural historical and Cultural relativism variability. is a doctrinethat holds that (at leastsome) such variations exemptfrom are legitimatecriticismby outsiders,a doctrine that is stronglysupportedby notions of communalautonomyand self-determination. Moraljudgments, as however, would seem to be essentiallyuniversal, suggestednot only by Kant'scategoricalimperativebut also by the common sense distinction between principledand self-interestedaction. And if human rightsare, the literally, rights (every)onehassimplybecauseone is a humanbeing,they would seem to be universalby definition. How can the competing claims of cultural relativismand universal human rightsbe reconciled?Inthis articleI shalltryto specifythe natureof their relationship,and argue for an approachthat preservesthe tension and between, and the insightsof, both relativism universalism.
DEFINING "CULTURAL RELATIVISM"

The two extreme positions on cultural relativismcan be called radical and culturalrelativism radicaluniversalism. would Radical cultural relativism hold that cultureis the sole source of the validityof a moral rightor rule. to Radicaluniversalism would hold that cultureis irrelevant the validityof valid. moralrightsand rules,which are universally
of and forcedme to greater criticisms earlierdrafts * RhodaHoward's clarity precision,and insistedon leavinga few in saved me from severalerrors-although I have stubbornly here. JohnVincentstartedme thinking along these lines and providedhelpfulcomments on an earlierdraft.Ted Lewellenoffered useful observationsfrom an anthropologist's to point of view. I am grateful them for theirhelp. 400

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These radicalviews are ideal types that markthe end pointsof a continuum. The body of that continuum, those positions involvingvarying can and mixes of relativism universalism, be roughlydivided into what we can call strongand weak culturalrelativism. holdsthatcultureis the principal source of the Strongculturalrelativism is of validity a moralrightor rule.Inotherwords,the presumption that rights (and other social practices,values, and moral rules)are culturallydeterof servesas a check on mined, but the universality humannatureand rights At the potential excesses of relativism. its furthestextreme, just short of would accept a few basic rights radicalrelativism, strongculturalrelativism with virtually universal application,but allow such a wide rangeof variation sets for most rightsthat two entirelyjustifiable mightoverlaponly slightly. source holds thatculturemay be an important Weakculturalrelativism of the validityof a moral rightor rule. In other words, there is a weak presumption of universality,but the relativityof human nature, communities,and rightsservesas a check on potentialexcesses of universalism. weak cultural At its furthestextreme, just short of radical universalism, a comprehensiveset of prima facie universal would recognize relativism human rightsand allow only relativelyrareand strictlylimitedlocal variations and exceptions. to Strongand weak are relativeterms referring the extent of cultural We mustbe careful,however, not to use merelyquanvariation permitted. titativemeasuresof relativism; qualitative judgmentsof the significanceof must also be incorporated. differentculturalvariations there are several Acrossthe continuumof strongand weak relativisms In levelsof varialevels or types of relativity. a roughway, three hierarchical in the substanceof lists cultural tion can be distinguished, involving relativity of of humanrights,in the interpretation individual rights,and in the formin are implemented.The rangeof permissible variation which particular rights at a given level is set by the next higherlevel. Forexample,"interpretations" of a rightare, logically,limitedby the specificationof the substance of a right.The range of variationin substance is set by the notions of human nature and dignity,from which any list of human rightsderives. In other we the words, as we move "down" hierarchy are in effectfurther specifying in and interpreting, a broadsense of that term, the higherlevel. I shallultimately to defenda weak cultural relativist positionthatpertry humanrights at standards'primarily mitslimiteddeviationsfrom"universal" the levelsof formand interpretation. the way to thisconclusion,I argue, On in the followingsection, that radicalrelativism radicaluniversalism and are
other of 1. Cultural relativism, course, appliesprimafacie to practicesand moralstandards than human rights,but henceforthI shall be concerned here almost exclusivelywith lists culturalrelativist argumentsapplied to human rights,and in particular of human documentssuch as the UniversalDeclaration of rightsin widely accepted international HumanRights.

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misguided.I then explore, in greaterdetail,the levels and types of cultural relativism,and address the problem of the cultural basis of relativism. consensus in Finally, the lasttwo sections, Itryto show thatthe international and of represented the UniversalDeclaration HumanRights the Internaby tionalHumanRights Covenants,in the conditionsof the modernworld,supthat relativist porta weak cultural approachto humanrights; is, an approach but that views humanrightsas primafacieuniversal, recognizescultureas a limitedsource of exceptionsand principlesof interpretation. A NECESSARY TENSION RELATIVITY UNIVERSALITY: AND The dangersof the moralimperialism impliedby radicaluniversalism hardly need be emphasized.Radicaluniversalism, however, is subjectedto other moralobjectionsas well. Moralrules, includinghuman rights,functionwithin a moralcommuuniversalism nity. Radical requiresa rigidhierarchical orderingof the multimoralcommunitiesto which individuals groupsbelong. In orderto and ple must for preservecomplete universality basic rights,the radicaluniversalist absolutepriority the demandsof the cosmopolitanmoralcommunity to give over all other ("lower" Thiscompletedenialof national moralcommunities. is and subnational ethicalautonomyand self-determination dubiousat best. in the developmentof Evenif the nation is a doomed, transitory stage human moralcommunity,there is no logicalor inescapablemoralreason why peoples cannot accept or choose it as their principalform of social moraland political and locus of theirextrafamilial organization the primary we commitments.Once we allow the moralvalidityof such commitments, are bound to accept at least certaintypes of substantivemoralvariability, in includingvariability human rightspractices. Such moral"nationalism" be based on reasonssuch as an inability may or of to agreeon the structure a supranational organization a fearof creating an instrument universal of tyranny.More directlymoralreasonsmightalso of be advanced,such as the advantages international providedby a diversity it strongcommitmentto nationalor local customs. Most importantly, rests But on the notion of self-determination. however it is justified and the various argumentsare likely to be mutuallyreinforcing-at least certain choices of such moral communitiesdemand respect from outsiders;not acceptance, let alone emulation,but in some cases at necessarilyuncritical maincannot be justifiably least, tolerance.Therefore,radicaluniversalism tained. Thisis perhaps stronga conclusion.Theremay be some formalprintoo of that mightplausibly ciple, such as the universalizability moraljudgments,
be argued to be universally valid. There may even be a very short list of universal rights. Advocates and theorists of human rights, however, rarely if ever restrictthemselves to either of these extremely limited claims. For any

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robustsubstantivelist of basic human rights-for example, the lists in the UniversalDeclaration HumanRights the International of and HumanRights Covenants-at least some allowance must be made by outsidersfor the special practices of national and other noncosmopolitan moral communities. A culturalrelativist account of human rights,however, seems to be If are guiltyof logicalcontradiction. humanrights basedin humannature,on the simplefactthatone is a humanbeing, and if humannatureis universal, then how can human rightsbe relativein any fundamental way? The simple answer is that human nature is itself in some measure relative. Thereis a sense in which this is trueeven at the biological culturally level; for example, if marriagepartnersare chosen on the basis of largely culturalpreferencesconcerningheight,weight, skintone, or other physical the attributes, gene pool in a communitywould be alteredin ways equivamechanismsof selection. More importantly, lent to "natural" culture can influencethe presenceand expressionof manyless easilyquansignificantly tifiedaspectsof humannature,forexample,by encouraging discouraging or the developmentor perpetuation certainpersonality of types. The impact of cultureon the shapingof individuals systematicand is may lead to the predominance of distinctivesocial types in different cultures. There can be little doubt that there are important,structurally determineddifferences,for example, between the modal"natures" men of and especiallywomen in modernwesternand traditional Islamicsocieties. In any particular the case, "humannature," realized natureof real human is a social as well as a "natural" beings, product. Whether we conceive of this process as involvingculturalvariation around an inalterable "natural" core or largelyculturalvariationwithin a fixed range, there is an undeniablesocial side to human physiologically nature,at least insofaras that nature is expressed. Human nature,at the levels of the individual,the group, and the species alike, is a range of fixed possibilities, varying,in partin responseto culture,withinapparently and limits;it is as much a project,and an individual social psychobiological discovery, as a given. Even if all behaviorshould prove to be ultimately genetic, the expressionof thatgenetic endowment- which also meritsbeing called "humannature"-is in considerablemeasureculturally determined. Elsewhere have sketcheda theoryof humanrights I consistentwithsuch an account of human nature.2 Here I simplywant to stressthat the cultural variabilityof human nature not only permits but requires significant allowancefor crosscultural variations human rights.3 in
2. JackDonnelly,The Conceptof HumanRights,forthcoming, Chapter3. that are variations morally 3. Note thatI am not arguing all such cultural below, I justifiable; will argueexplicitlythatthey are not. My pointis thatsome such variations justifiable, are on a variety of moral and practical grounds. Particular argumentsconcerning the of practices,however,are largelybeyond my scope here. justifiability individual

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But if all rightsrested solely on culturallydeterminedsocial rules, as radicalculturalrelativism holds, then there could be no human rights,no rightsone has simply as a human being. This denial of human rightsis as perfectlycoherent. Furthermore, I have arguedelsewhere, "traditional" societies generallydo not recognize rightsheld simply because one is a human being.4Nonetheless,I shall argue that radicalculturalrelativism is morallyindefensibletoday. The strongest formof radical cultural relativism would holdthatthe conthe cept "humanbeing"is of no moralsignificance; mere fact that one is a human being is irrelevant one's moralstatus. It is true that premodern to societiestypicallyhave not recognized"human being"even as a descriptive category,but insteaddefine personsby social statusor groupmembership. Forexample, the very names of many culturesmean simply"thepeople" and (e.g., Hopi, Arapahoe), theiroriginmythsdefine them as separatefrom who are somehow "not-human." outsiders, Similarly,in ancient Greece This there were Hellenes and barbarians. view, however, is almost univerworld. sally rejectedin the contemporary Forexample, chattel slaveryand caste systems,which implicitly deny the existenceof a (morally common humanity, almostuniverare significant) the sallycondemned, even in the most rigidclass societies. Likewise, basic moraldistinctionbetween insidersand outsidershas been seriouslyeroded comby greatlyincreasedindividual mobilityand by an at leastaspirational mitmentto the idea of a universalhumanmoralcommunity. international agreement,at leastin theory, Todaythere is nearuniversal althoughoften not in practice,thatcertainthingssimplycannot legitimately in of be done to human beings- regardless the difficulties specifyingthose things.5Failureto act or even speak out againstthe grossest affrontsto would be human dignity overseas on the grounds of culturalrelativism widely- and I believe correctly- perceivedas moralcowardice.6 Evenmorestriking the apparent is crosscultural consensuson a few particularpracticesthat cannot be justifiedby even the hoariestof traditions, of and certainlynot by any new custom. Forexample,the prohibition torture and the requirement procedural due process in imposingand exeof
An of 4. JackDonnelly,"Human and Critique Non-Western Rights HumanDignity: Analytic American PoliticalScience Review 76 Oune 1982), Conceptions of Human Rights," 303-316. the S. Suchinternational agreement,of course,tendsto reflectprimarily views of those who are politically active in the modernsector. Exceptions, therefore,continueto exist, parsocieties still persistwith some ticularlyin relativelyisolated areas where status-based vigor. Nonetheless, I would argue that even such exceptionsare subjectto defensible (althoughperhapsnot necessarilydecisive)criticism,on groundsdiscussedbelow. Relativism" 6. CompareR. J. Vincent,"HumanRightsand Cultural Paperpresentedat the of StudiesAssociation, 25thAnnualConvention the International Atlanta, Georgia,March to 1984. Thisarticleis largely resultof myefforts come to gripswiththe issuesraisedin the Vincent'spaper.

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cuting legal punishmentsseem to be accepted as binding by virtuallyall cultures, despite profound differences in specifying the practical and substantivemeaningsof these notions. The radicalrelativist might respondthat such consensus is irrelevant. this consensusdoes not necessarily entail Logically, is correct;crosscultural force for a moralrule. Nonetheless,I would submitthat virany additional force to the tuallyall people do view such consensus as addingsubstantial while rule, and thus in an importantsense this sort of radicalrelativism, logicallyimpeccable,is morallydefective. In effect, a moral analog to customary internationallaw seems to operate. If a practice is nearly universal and generally perceived as communitystandardsrequirethat practice of all obligatory,international members of the community,and precludethe legitimatedevelopmentof alternativepractices.There is-or at least one might plausiblyargue that there is-a weak cosmopolitanmoralcommunity,which imposes minimal on culturalmoralvariation. substantivelimitations the rangeof permissible however, that I have arguedonly that there are at least a few Notice, valid moralvalues.This still leaves open the possibility a of crossculturally denial of humanrights.Such an argumentwould radicalculturalrelativist moralrulesor values,humanrights hold thatwhile there may be universal inalienableentitlementsheld equally by all, groundingparticularly strong claims that may be made against the state and society-are but one of severaldefensiblemechanismsto protecthumandignity(whichin any case is largelya culturally determinednotion).7 can Plausible mechanisms arguments be advancedto justifyalternative for to guaranteehumandignity; example, natural law, which imposestransto that Few culturalmoralobligations are not correlative rights.8 if any states, however, actuallyadvance such arguments.Inthe First, Second, and Third is Worldsalike,a strongcommitment humanrights almostuniversally to proclaimed, even where practicethrowsthat commitmentinto question. as It is too easy to dismisssuch proclamations mere rhetorical fashion; moral"fashion" musthavesome substantive such a widespreadinternational basis. That basis, I would suggest, is the moral hazard presented by the modern state. rulersusuallyfaced substantial morallimitson theirpolitical Traditional limitsentirelyindependentof humanrights.Furthermore, power, customary the relativetechnologicaland administrative weakness of traditional states
here restson the conceptualdistinction 7. Theargument betweenrights,in the strongsense of titlesgroundingclaimsof a special type, and righteous; is, between rights,in the that in sense in which one has rights,and (mere)righteousness, the sense in which something is right.Fora further see discussionof thisdistinction, Donnelly,note 3 above, Chapter1 and Vincent,note 6 above, 303-306. Law Western 8. Compare JackDonnelly,"Natural and Rightin Aquinas'Political Thought," 33 PoliticalQuarterly (December1980), 520-535.

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and nonstatepoliticalinstitutions providedconsiderablepracticalrestraints on arbitrary abusesof power. Insuch a world, at leastsome humanrightsof held againststate and society- might inalienableentitlements individuals be held to be superfluous the sense that basicdignity (in was being plausibly mechanisms)if not positivelydangerousto wellguaranteedby alternative establishedpracticesthat realizeda culturalconception of humandignity. Sucha world,however,existstodayonly in a relatively smallnumberof isolatedareas. And the modern state, particularly the ThirdWorld, not in free of the moralconstraints custom but has far of only operates relatively and greateradministrative technologicalreach. It thus representsa serious threatto basichumandignity,whetherthatdignityis definedin "traditional" or "modern" terms. To the extent that modernization Westernization reached into, or has and transformed, traditional communities, traditional approaches to traditional guaranteeinghuman dignity seem objectively inappropriate; limitson politicalpowerare unlikely functioneffectively moderncondito in tions. In such circumstances-to which we will return in more detail below-at least certain basic human rightsseem necessary ratherthan or relativism as inapis optional.In mostinstances,then, radical unrestricted as unrestricted some sort of intermediate universalism; propriate positionis Thisrequires to considerin greater us detailthe variouslevelsand required.9 types of culturalrelativism.
LEVELS ANDITYPESOF RELATIVISM

In discussingforeign practices,we can distinguishbetween what can be called "internal" and "external" evaluations. An internal judgment asks whetherthe practiceis defensiblewithinthe basic value framework that of society; the issue here is whether a plausibleand coherent defense of the criticism. Practices do that practicecan be made in responseto universalistic not even stand up to such evaluationscan in no sense be defended on culturalterms.An externaljudgmentappliesthe standards the evaluator of in (modified,as appropriate, relativistic by arguments) orderto determine whetherthe practicecan or shouldbe accepted or defended,all thingsconsidered. Clearlythe most importantcontroversiesare likelyto arise over but practicesthat are defensibleaccordingto internalstandards unacceptable by externalstandards; these are the practiceswe are most concerned with in the discussionof culturalrelativism universalhuman rights. and To a considerabledegree this distinction between internaland external
is and 9. Note thatthisargument largely Whileothersmaywish to conempirical functional. structa moreambitious, "universal" for argument humanrights,Ishallrestrict myselfhere to this historically horizon. "limited"

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evaluations matches up with, and further elaborates, the distinction between strongand weak culturalrelativism; strongerone's relativism, the the greaterone's relianceon internalevaluations.It also helps to elucidate the dilemmawe face in judgingculturally specific practices,torn between the demands of relativismand universalism, demands that requireus to renounce radicalrelativism radicaluniversalism favorof some comand in binationof internaland externaljudgments. As I have alreadyemphasized,relativism restson the notionsof moral autonomy and communal self-determination.Respect for autonomous moralcommunitieswould seem to demandinternal evaluations.Butto rely on internal would seem to abrogateone's moralresponsientirely judgments bilitiesas a memberof the cosmopolitanmoralcommunity; such memberwould seem to demand the applicationof universalstandardsin ship in externaljudgments.Membership one's own nationalor local moralcomalso mightdemand (a different munity judgments.Furthertype of) external more, moral judgmentsby their nature are universal,or at least universalizable,even thoughwe know thatmoralvaluesand particular judgments are, at least in partand in theirgenesis, historically specificand contingent. The choice between internaland externalevaluationsthus is itself a moralchoice. However,the choice is not entirelyfree or simplya matterof of standards personalmoraljudgment.Withineach system- the "universal" of the cosmopolitanmoralcommunity,the standards one's home community, and those of the foreign community whose practice is being evaluated- we can rankpracticesin termsof theirmoralworth.As a general a rule,we can suggestthatthe more"important"practicewithina particular which can be overridden standards, system,the greaterthe force of internal only by particularly strongexternaljudgments. Such a generalrule hardlysolves all our problems.Besidesthe obvious of difficulties providingeven a very crude system for weighingcompeting internal and external standards,in some instances at least "important" values, judged by externalstandards,will compete with internally "important"values or practices,presentinga dilemma of immense proportions. the However,such a rulecan greatlysimplify processof evaluation assumjudgmentsof "importance." ing we are able to make at least roughinternal As I noted above, strongand weak relativism cannot be distinguished standards; solely by the numberof deviationsthey allow from"universal" some qualitativemeasurealso is required.The distinctionbetween variaand tions in substance,interpretation, formis a usefulplace to begindiscussthis issue. ing Even very weak cultural relativists-that is, relativelystrong univerin salists-are likelyto allow considerablevariation the form in which most
rights are implemented. For example, whether free legal assistance is required by the right to equal protection of the laws is best viewed as a technical issue of the form in which the right is implemented, and thus

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standards. differImportant largelybeyond the legitimatereachof universal ences between strongand weak relativists likelyto arise,however,when are we move to the levels of interpretation substance. and Whilethe distinction in is between variations formand in interpretation difficult draw with precision,it is fairlyclear and quite important, we to as can see by lookingat a particular to right,such as the right politicalparticipation. In specifyingthe right to political participation, can begin by we electoralfrom nonelectoralforms of participation. can We distinguishing also distinguish directdemocracyfromrepresentative and government, both of these from participation throughoccasional plebiscites.Representative elections can be furtherdivided into relativelyopen and closed multipleparty and one-partyelections. We can also distinguishelections where voting is a basicrightfromthose where it is a privilegeor even a duty,elections intendedto determinethe will of the people fromelectionsthat serve to principally mobilizepopularsupportfor governmentpolicy,and so forth. All of these variationsin "interpretation" different clearly are qualitatively from questions of form such as how often elections, town meetings, or plebisciteswill be held. Butwhile allthese mechanisms of represent plausible interpretations the to politicalparticipation, need not- and should not- hold that all we right are "interpretations" equallyplausibleor defensible.Theyareinterpretations, not free associationsor arbitrary the stipulations; meaningof "the rightto is controversial,but the range of controversy is political participation" limitedby the concept. Forexample, an election in which a people were allowed to choose an absolutedictatorfor life-"one man, one vote, once," as a WestAfrican a quip puts it- in no way represents defensibleinterpretation of the right. Particular human rights are like "essentially contested concepts," in which there is a substantial rathergeneralconsensus of meaning,coubut and conflictof interunresolvable, pled with a no less important, apparently pretations.'0In such circumstances,culture provides one plausible and defensible mechanismfor selecting interpretations (and forms). Nonetheless, there are strongconceptuallimitson the acceptablerangeof variation. In additionto essential contestability, scarcityalso implies permitting in variations formand interpretation. effectivepoliticalimplementation The of virtually humanrights all consumesresources.Whilefrequently noted for economic and social rights,this is equally true of many civil and political directcosts, as well as indirectcosts rights.Forexample,there are significant such as the diversionof resources,in running election, operatinga legal an system in accord with principlesof due process, and protectingcitizens
10. See W. B. Gallie, "Essentially Contested Concepts,"Philosophyand the Historical (New York:ShockenBooks, 1964), 157. Understanding

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or againstarbitrary inhumaneand degradingtreatmentby officialsof the state."1 Fiscal constraints may also require difficult decisions concerning decisionsthat are in parttied to culture.In settingsuch priorities, priorities, however,an especiallyextremeemphasisor deemphasisof a right(orset of namely,variations bringsus to the edge of the thirdtype of relativity, rights) in substance,differencesin listsof human rights. still in that varyin formand interpretation are clearly"universal" Rights if an important sense, particularly the substantivelist of rightsis relatively universal.But while variationsin substance involve much more extreme can even here talk of universality be meaningful. relativity, thanparticular there maybe an Ifwe look at complete listsrather rights, even in the midstof considerablesubstantive essentialuniversality diversity. Such universality take the formof a largecommon core with relatively may few differences "around the edges." It may involve strong statistical in regularities, which outliersare few and are clearlyovershadowedby the central tendency. There may be clusterings,or lesser but still significant in overlaps,that allow us to speak of "universality" a very extended sense. we and between "major" "minor" And ifwe distinguish rights, mighthavestill amidst substantivediversity:the definitionof another sort of universality but such categoriesis of course extremelycontroversial, to the extent that a in variations substanceare concentratedamong"minor" rights, fundamenwould be retained. tal universality is are The extentto whichthe listedrights aggregated anotherimportant consideration.At the level of broad categories such as civil, political, economic, and social rights,there is widespreadagreement-except for a that verysmallminority stillrejectseconomic and social rights that"universality"is required;any defensible list must include rightsfrom all these however, the permissible rangeof relativity categories.As we disaggregate, expands, in part because each listed right is more minor,"and in part a in is becausedisaggregation largely processof interpretation, a broadsense of that term. Consider,for example, the rightto work, which is almost universally of recognizedin disaggregations economic rights.Thisrightmightbe interpreted as a rightto seek employment,to be compensatedfor unemployto ment, to be employed, or even a rightto employmentappropriate one's interestsand talents.Certainrightsspecifiedat this level, however, will be missingfromsome defensiblelistsof humanrights,includingmanyliststhat -for example, specifying disaggregation recognize a rightto work. Further
in and U.S. Foreign of in 11. CompareHenryShue, "Rights the Light Duties," HumanRights Mass.:Lexington Books, (Lexington, Policy, ed. PeterG. Brownand DouglasMacLean Affluence U.S.Foreign and Subsistence, 1979),65-81 and HenryShue,BasicRights: Policy PrincetonUniversity Press,1980), 35-53. (Princeton:

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the length and amount of unemploymentbenefits,or the extent of vocational trainingor retraining made available-is likelyto bring us into the realm of formal variation,where universality usually is an inappropriate demand. Thus in consideringthe variouslevels and types of relativism, see we once more, and now more deeply and in greaterdetail,thatthe problemof culturalrelativismand universalhuman rightscannot be reduced to an either-or in choice. Claimsof cultural show a greatdiversity meanrelativism and importance.Therefore,any evaluationof such claims ing, substance, mustbe sensitiveto thisdiversity, which is all too oftenoverlookedwhen the issue of culturalrelativism raisedin the discussionof human rights. is
CULTUREAND RELATIVISM

So far we have focused on relativism,in general. The culturalbasis of culturalrelativism mustbe considered,especiallyin lightof the factthat also numerous contemporaryargumentsagainst universalhuman rightsstandards strive for the cachet of culturalrelativismbut in fact are entirely withoutculturalbasis. Standard for arguments culturalrelativism on examplessuch as the rely Islamic precolonialAfricanvillage, Native Americantribes, and traditional socialsystems.Elsewhere have arguedthathumanrights- rights/titles I held against society equally by all persons simply because they are human beings- are foreignto such communities,which insteademployed other, often quite sophisticated,mechanismsfor protectingand realizingdefensible conceptions of human dignity.'2 The claims of communal selfdetermination particularly are stronghere, especiallyif we allow a certain moralautonomyto such communitiesand recognizethe cultural variability of the socialside of humannature.Itis important, however,to recognizethe limitsof such arguments. Wherethere is a thriving tradition community, and indigenouscultural of cultural relativism based on the principle of the selfarguments determinationof peoples offer a strong defense against outside interference- includingdisruptions mightbe caused by the introduction of that human rights.But while autonomous communitiesthat freely "universal" decide theirdestinylargelyaccordingto traditional still valuesand practices do exist throughoutthe ThirdWorld,"3 the they are increasingly exception
12. Donnelly,note 4 above. 13. Inwhat follows, I largelyrestrict madeon behalfof indigearguments myselfto relativist nous culturalpracticesin the ThirdWorld.This is not because of any greaterinherent it of universality western or northernpracticesor values. Rather, reflectsthe "western" of standards the fact thatarguments culturalrelativism and today genesis of international are made largelyon behalfof practicesin ThirdWorldcountries.

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ratherthan the rule. They are not, for example, the communitiesof the teeming slums that hold an ever-growingproportionof the populationof most states. Evenmost ruralareas have been substantially penetrated,and the local culture"corrupted," foreign practicesand institutions by ranging from the modernstate, to the money economy, to "western" values, products, and practices. Worldtoday, moreoftenthan not we see dualsocietiesand Inthe Third thatseek to accommodateseeminglyirreconcilable old patchwork practices culturein the face of thanthe persistence traditional of and new ways. Rather modern intrusions,or even the development of syncretic cultures and and incompletewesternization, values, we usuallysee insteada disruptive culturalconfusion,or the enthusiasticembrace of "modern" practicesand cultureadvancedto justifycultural the traditional values.'4In other words, relativism too often no longerexists. far while recognizingthe legitimate claimsof self-determination Therefore, we of and cultural relativism, mustbe alertto cynicalmanipulations a dying, of We mustnot be misledby complaints cultural lost, or even mythical past. of humanrightsmade by repressive the inappropriateness "western" regimes whose practiceshave at best only the mosttenuousconnectionto the indigof rhetorictoo often cloaksthe depredations enous culture;communitarian elites. In particular, must we and often westernizedor deracinated corrupt of denunciationsof the excessive individualism be wary of self-interested human rights. "western" Human rightsare inherently"individualistic"; are rightsheld by they individualsin relationto, even against,the state and society.'5 But while traditional cultures,both western or nonwestern,usuallyview personsprias thanas autonomousindividmarily partsof a familyor community,rather or uals, not all forms of nonindividualistic antiindividualistic politics are culture- even where that cultureremainsvital. In parbased in traditional defenses of traditional ticular,communitarian practicesusuallycannot be nationalist extended to modern nationstates and contemporary regimes. are Argumentsof culturalrelativism far too often made by economic and politicalelitesthat have long since lefttraditional culturebehind.While admirableeffortto retainor recapture this may representa fundamentally cherished traditional values, even in such cases it is at least ironicto see
in 14. CompareRhoda Howard,"IsThere an AfricanConcept of HumanRights?" Human in ed. Policy:Issuesand Responses, R.J. Vincent,forthcoming. (Currently Rights Foreign availableas WorkingPaper No. A:8, DevelopmentStudies Programme, Universityof versionsof Howard's Toronto.)I have also benefitedgreatlyfrom readingpreliminary Commonwealth Africa. ongoing researchon humanrightsin contemporary of and 15. Fora further see elaboration defenseof this understanding humanrights Donnelly, 4 HumanRights as note 2 above, and "Human Quarterly (August Rights NaturalRights," based on the natureof modernsoci1982), 391-405, where, in additionto the argument relyingon conceptualanalysisand the internaety developed here, I presentarguments of tionalconsensus represented the UniversalDeclaration HumanRights. by

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largelywesternizedeliteswarningagainstthe values and practicethey have adopted. At their best, such argumentstend to be dangerouslypaternalwhich was supposed to reflecttraditional istic-for example, villagization, Africanconceptions, was accomplishedin Tanzaniaonly by force, against the vocal and occasionallyeven violent oppositionof much of the population- and even such a troublingsincerityis unfortunately rare. Argumentsof cultural relativismregularlyinvolve urban elites elothe quentlypraising gloriesof villagelife- a lifethatthey or theirparentsor hardto escape, and a lifeto whichthey have not the grandparents struggled Government officials denounce the corrosive slightestintentionof returning. individualism westernvalues- while they line theirpocketswith the proof ceeds of massivecorruption, drive importedluxuryautomobiles,and plan or-American vacations.Leaders the praisesof traditional comEuropean sing munities,which they claim as the source of their politicalpractices- while to values, pursuedevelopthey wield arbitrary power antithetical traditional ment policies that systematically underminetraditional communities,and traditional leaderswith corruptcronies and partyhacks. replace In other words, appealsto traditional practicesand values all too often are a merecloak forself-interest arbitrary or rule. Forexample,the AllAfrica Councilof Churcheshas condemned the fact that"someleadershave even resortedto picking out certain elements of traditional Africanculture to anesthetizethe masses. Despitewhat is said, this frequentlyhas littleto do with a returnto the positive,authenticdimensionsof Africantradition."'6 Whilethiscynicalmanipulation tradition of occurseverywhere,let me mention just a few African illustrations. In Malawi, President Hastings Kamuzu Banda utilizes "traditional courts" orderto deal with politicalopponentsoutsideof the regular in legal system. Forexample, Orton and Vera Chirwa,afterbeing kidnappedfrom court"made up of five judges Zambia,were broughtbefore a "traditional and three tribalchiefs, all appointeddirectlyby Banda.While there was a prosecutor,no defense attorneywas allowed, and the only possibleappeal was to Bandapersonally."Such procedureshave not the slightestconnection with authentictraditional practices. InZaire,President Mobutuhascreatedthe practiceof salongo,a formof communallaborwith a supposedlytraditional basis.Infact, it has littleor no connectionwith indigenoustraditional rather,it is a revivalof the practices; colonial practice of corvee labor.'8 In Niger, samarias,traditionalyouth
16. All AfricaCouncilof Churches/World Councilof ChurchesHumanRights Consultation, for of Khartoum, Sudan,16-22 February 1975, "Factors Responsible the Violation Human Issue6 (Winter1976), 45. Rightsin Africa," 17. AfricaReport27 (September/October 1982), 35; AfricaReport27 (November/December 1982), 35. 18. ThomasM. Callaghy, Communication Zaire:Domination the Conin and "State-Subject of African Studies18 (September Journal Modern cept of DomainConsensus," 1980),490.

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have been "revived"-but not so much out of a respectfor organizations, traditionalculture as "to replace party organizationsso as to channel And youthfulenergiesaway from politics.""19 MaciasNguemaof Equatorial Guinea,probablythe most vicious rulerindependentblackAfricahas seen, Masterof PopularEducation, Science and Traditional called himself"Grand a title that would be comical if it weren'tso tragic. Culture,"20 The cynicismof many claimsof culturalrelativism also be seen in can the factthat fartoo often they are for externalconsumptiononly. The same elites that raise culture as a defense againstexternalcriticismsbased on universalhuman rightsare often ruthlessin their suppressionof inconveor Nationalunificanient local customs,whetherof the majority a minority. of will sacrifices localcustoms,but the lack tion certainly requiresubstantial shown by manynationalelitesthatstrongly advoof localcultural sensitivity culturalrelativism a very high degree of selfcate an international suggests interest. numerous and regretablycommon practices, such as Furthermore, disappearances,arbitraryarrest and detention, or torture, are entirely without cultural basis. Idi Amin, Pol Pot, and the death squads of El Salvadorcannot be attributedto local culture; while these names have such practicesare not become justlysynonymouswith modern barbarism, an expressionof establishedculturaltraditions.Riggedelections, military to and caused by governmentincentives produce dictatorships, malnutrition cash crops ratherthan food are just a few of the widespreadabuses of thatare in no sense a positiveexpression generallyrecognizedhumanrights of indigenouscultures.Such practicescan be condemned on the basis of both internaland externalevaluationsand thus are in no sense capable of plausibledefense. In traditionalcultures-at least the sorts of traditionalcultures that human rights would readilyjustifyculturaldeviationsfrom international decisionsof rulerswhose standards- people are not victimsof the arbitrary of claimto power is theircontrolof moderninstruments force and principal In administration. traditionalcultures, communal customs and practices usuallyprovideeach personwith a place in society and a certainamountof there usually are well-established dignity and protection. Furthermore, reciprocalbonds between rulersand ruled,and between rich and poor. The human rightsviolationsof most ThirdWorld regimesare as antihumanrights theticalto such cultural traditions they are to "western" as concultural and practices valuescan be an ceptions. Infact,authentictraditional check on abuses of arbitrary African cultures, power. Traditional important for example, usually were stronglyconstitutional,with major customary
19. AfricaContemporary Record,14 (1981-1982), 8490-491. AfricaReport25 (May/June Guinea:Autopsyof a Miracle," 20. Rene Pelissier,"Equatorial 1980), 11.

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21 limitson rulers; a Basothomaximsays,"Achiefis a chiefby the people." as Not only arethese traditional checks a resourcethathumanrights advocates of may be able to tap, but it has even been arguedthattransgressions traditional limitshave figuredin the collapse of some recent regimes.22 as human rightslimitson Finally, I arguedabove, there are substantive even well-establishedcultural practices, however difficultit may be to account of what those practicesare. For specify and defend a particular while slaveryhas been customary numeroussocieties,todayit is in example, a practicethat no custom can justify.Likewise,sexual, racial,ethnic, and have been widely practiced,but are indefensible religiousdiscrimination the depth of the tradition anti-Semitism the West, for example, of in today; is no defense for the maintenanceof the practice. simply Thisis not to say thatcertaincultural cannotjustify even fundifferences damentaldeviationsfrom"universal" I have already humanrights standards; argued that they may. However, if culturalrelativismis to function as a rather than a cloak for despotism,we guaranteeof local self-determination, must insiston a strong,authenticculturalbasis, as well as the presence of alternative basichumandignity,beforewe justify mechanisms guaranteeing culturalderogationsfrom"universal" human rights.

THE CLAIMSOF RELATIVISM AND UNIVERSALISM RESOLVING

and profoundinternational differencesin ideology, levels Despite striking and stylesof economic development,and patterns political of evolution,virall statestoday have embraced- in speech if not in deed - the human tually enunciatedin the UniversalDeclarationof Human Rights rightsstandards and the International Human RightsCovenants.Thisconsensus presentsa that facie case for a relatively strongprima stronguniversalism; is, for weak culturalrelativism. Evenif this"consensus" largely complementof vice is the an to virtue,it revealswidely sharednotionsof "virtue," underlying "universal"moralpositioncompellingat least the appearanceof assentfromeven the cynical and corrupt. While human rights-inalienable entitlementsof individualsheld in relationto state and society-have not been a partof most culturaltraditions, or even the westerntraditionuntil ratherrecently,there is a striking in similarity manyof the basicvaluesthattoday we seek to protectthrough human rights.This is particularly when these values are expressed in true terms. Life,social order, protectionfrom arbitrary rule, relativelygeneral
21. See Richard Weisfelder, F. An of '7he Decline of HumanRightsin Lesotho: Evaluation Domesticand External Issue Determinants," 6 (Winter1976), 23. 22. See, e.g., VictorT. LeVine,"African Patrimonial Regimesin Comparative Perspective," of Studies18 (December1980), 672. Journal ModernAfrican

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of the of treatment, guarantee a place in prohibition inhumanand degrading the life of the community,and access to an equitableshareof the meansof in subsistenceare centralmoralaspirations nearlyall cultures. Thisfundamentalunity in the midstof otherwisebewildering diversity suggestsa certaincore of "humannature"-for all its undeniablevariability, to and despiteour inability expressthatcore in the languageof science. And then basic humanrightsmustat least if humannatureis relatively universal, universal. be assumedto be similarly initially Inthe conditionsof modernsociety, rights,especiallyhumanrights,are a particularly appropriatemechanism for protectingthis basic, relatively core of humannatureand dignity.The modernstate,the modern universal values tend to create communitiesof economy, and associated"modern" who lackthe place and protectionsproautonomousindividuals, relatively of vided by traditional degreeof regardless the relative society. Furthermore, modern individual threatening todayface the particularly autonomy,people state, and the especially fierce buffetingof the ever-changingmodern economy. Rightsheld equally by all against the state, both limitingits positiveprotectionsagainstcertain legitimaterangeof actionsand requiring economic, social, and politicalcontingencies,are a seemingly predictable naturaland necessaryresponse to typicallymodernthreatsto human digand nity, to basic humanvalues, traditional modernalike. seems to be confirmedby an examination forexamSuchan analysis of, of the UniversalDeclaration Human Rights.In the UniversalDeclaraple, tion we can see a set of rightsformulatedto protect basic human- not merelycultural-values againstthe specialthreatsposed by moderninstitutions. in The stresson equalityand nondiscrimination, particularly Articles1, modern view of man, state, 2, and 7, reflectsan essentiallyindividualistic are and society. Autonomousindividuals easilyviewed as essentially equal. Basicequality,however, is likelyto be an incoherentor incomprehensible notion where people are defined, as they usuallyare in traditional society, such as birth,age, or sex. Muchthe same is true characteristics by ascriptive 4 fundamental statusas of the guaranteesin Articles and 6 of an individual's a personand fullmemberof the communityby outlawingslaveryand assuring to all equal recognitionas a person before the law. Articles3 and 5 guaranteelife, liberty,and securityof the person, and or treatment punishment. tortureand cruel, inhuman,or degrading prohibit These rights reflect basic, very widely shared values, expressed in the modern form of rights held against the state; they representa minimal the universal modernconsensuson certainvirtually guarantees against state. 8 such as access to Articles through11 listfundamental legalguarantees arrestand judges, protectionagainstarbitrary legal remediesand impartial of and the presumption innocence. These rightscan be seen as detention, with ideasof fairness,againformulated of specifications seeminglyuniversal

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a special eye to the threatto individual dignityposed by the modernstate, web of customarypractices especially in the absence of the constraining of characteristic traditional society. Article 12, which recognizes a limited rightto privacy, is peculiarly it autonomousindividual; modern. Privacy of greatvalue to the relatively is It foreignto helps to protect his individuality. is, however, fundamentally in communitarian societies, as we can see even in English the traditional, Articles 14, and and connectionbetween privacy privation. 13, etymological 15, which recognizerightsto freedomof movement,asylum,and nationalmodernworld,but fluid,individualistic ity,are likewisebasicin the relatively in most traditional probably would seem odd, at least as basic rights, societies. Article16, which deals with the rightto marryand found a family,is in of but applicability, the requirement "freeand full consent partof universal as modernview of marriage a of the intendingspouses"reflectsa peculiarly union of individualsratherthan a linkingof lineages.The rightto private in articulated Article17, also is of some universal validity- virtually property, all societiespermitindividual ownershipof at leastsome goods- althoughin the modernsense of a rightto individual ownershipof the meansof producsector. tion it is clearlyappropriate only in economies with a largecapitalist The rightsto freedomof thought,conscience and religion,opinionand in expression,assemblyand association,and participation government,laid out in Articles18 through21, are clearlybased on modern individualistic societies often do conceptionsof man and society. Forexample,traditional not distinguish clearlybetween the religiousand the political,requireconformityof thought and belief, enforce deference, restrictassociation,and with such all deny popularpoliticalparticipation, of which are incompatible rights. Within the modern framework,however, these rights represent of minimum they are essentialguarantees guarantees basicpersonaldignity; of individual autonomy. 22 the recognizedin Articles through Finally, economic and social rights that basicprotections in traditional 27 guarantee,as individual society rights, usuallyare provided by the family or the communityas a whole: social in security,work, restand leisure,subsistence,education,and participation the culturallife of the community. But not only are these rightsdirected againstthe modern state, they are held by individualssimply as human of beings, and thus correspond to the individualization the person in a modernsociety.And Article28, which guarantees social and international order in which the previouslylisted rightscan be realized,clearlyreflectsa for responsibility the protection peculiarlymodern notion of international and provisionof basic rights. This review of the rights in the Universal Declaration is perhaps and simultaneously superficial overlylong. However,if my argumentis cora does represent minimalresponseto the Declaration the Universal rectand

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humanvalues and the specialthreatsto convergenceof basiccrosscultural humandignityposed by moderninstitutions, then thisset of rights a very has the mustbe that Therefore, presumption strongclaimto relativeuniversality. these rightsapply universally, can althoughthat presumption be overcome cultural This,of course, is the positionI have called by particular arguments. weak culturalrelativism.
ASSESSINGCLAIMSOF CULTURALRELATIVISM

Rightsare formulatedwith certain basic violations,or threats to human the Therefore, easiestway to overcome the presumption dignity,in mind.23 of universality a widely recognizedhumanrightis to demonstrate for either thatthe anticipated violationis not standard thatsociety, thatthe value is in not (justifiably) consideredbasic in thatsociety, or that it is protectedby an alternative mechanism.In other words, one would have to show that the visionof humannatureor society is both morally cultural defenunderlying sible and incompatiblewith the implementation the "universal" of human rightin question.I would arguethatsuch a test can be met only rarely today, and that permissibleexceptions usuallyare relativelyminorand generally consistentwith the basicthrustof the UniversalDeclaration. Forexample,it is hardto imaginecultural arguments againstrecognition of the basicpersonalrights Articles through11. Rights life,liberty, of 3 to and of the person;the guaranteeof legal personality; and protections security against slavery, arbitraryarrest, detention, or exile, and inhuman or degradingtreatment are so clearly connected to basic requirementsof humandignity,and are statedin sufficiently generalterms,thatany morally defensiblecontemporary form of social organization must recognizethem as In (although perhapsnot necessarily inalienable rights). fact, Iam tempted to say that conceptionsof humannatureor society incompatible with such rightswould be almost by definitionindefensible;at the very least, such rightscome very close to being fully universal. Civil rightssuch as freedom of conscience, speech, and association would be a bit more relative;as they assume the existence and a positive evaluationof relativelyautonomous individuals, they are of questionable applicabilityin strong traditional communities. In such communities, be however,they would rarely at issue. Iftraditional practices trulyare based on and protect culturallyaccepted conceptions of human dignity,then membersof such a communitysimplywill not have the desire or need to claim such civil rights.Butin the more typicalcontemporary case, in which the relativelyautonomous individualfaces the modern state, they would
23. See Donnelly, note 2 above, Chapter2. CompareHenry Shue, Basic Rights,note 11 above, 29-34.

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it seem to be close to universal rights; is hardto imaginea defensiblemodern of human dignitythat did not include at least most of these conception rights.A similarargumentcan easily be made for the basic economic and social rightsof the Declaration. The Declaration that does listsome rights are bestviewed as "interpretaFor to much greaterculturalrelativity. example, the already tions,"subject mentioned right of free and full consent of intending spouses not only of but reflectsa specific culturalinterpretation marriage, an interpretation thatis of relatively recentoriginand by no meansuniversal todayeven in the West. Notice, however, that the right,as Section 2 of Article16, is subordinate to the basic rightto marryand found a family. Furthermore, some traditional customs, such as brideprice,providealternative protectionsfor to that addressesat women, and a sort of indirectconditionality marriage concernsof Article16(2).Suchfactorsmake it least some of the underlying much easierto accept culturalrelativity with regardto this right. HumanRights When we considerthe much moredetailedInternational at Covenants,a numberof listed rightsapproachspecifications the level of form. Forexample, Article10(2)(b)of the International Covenanton Civil and Political the of requires segregation juveniledefendants.In many Rights cultures,the very notion of a juvenile criminaldefendantdoes not exist. Similarly,penitentiarysystems, mentioned in Article 10(3), are culturally specific institutions. we faces a Finally, should note that even the strongestculturalrelativist seriousproblemwhere culturesclashor are undergoing substanparticularly tialtransformationas is the case in much of the Third World.Inevaluating that involve otherwisejustifiabledeviationsfrom or customarypractices of we humanrights, oftenface the probinterpretations primafacieuniversal lem of "modern" individualsor groups who reject traditionalpractices. Should we give priority the idea of communityself-determination, to and the enforcementof customarypracticesagainstmodern"deviants," permit even ifthisinvolvesviolations "universal" of humanrights? shouldindividOr ual self-determination prevail,thus sanctioningclaims of universalhuman rightsagainsttraditional society? In a recentdiscussionof women's rightsin Africa,RhodaHowardsuggests an attractive,and widely applicable,compromisestrategy.Howard of and argues,on a combination practical moralgrounds,againstan outright ban on practicessuch as child betrothal widow inheritance.However, and she also arguesstrongly nationallegislation permits for that women (andthe familiesof female children)to "opt out" of traditional Where practices.24
24. Rhoda Howard,'Women's Rightsin English-Speaking Sub-Saharan in Africa," Human in and Rights Development Africa,ed. ClaudeE.Welch,Jr.and Ronald1.Meltzer(Albany: State University New YorkPress, 1984), 66-68. On the particularly of volatile issue of Howardalso arguesfor educationalprograms aimed at reducing "femalecircumcision,"

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a practical, practicesin favorof guaranteeing rightto "optout"of traditional human rightsor alternative human rightsinterpretations seems "universal" in an ideal,for it permits individual effectto choose his or herculture,or the in termson which he or she will participate the traditional culture. such choice is impossible,because the Sometimes,however, allowing conflicting practices are irreconcilable.For example, a right to private is withthe maintenance ownershipof the meansof production incompatible of a villagesociety in which familieshold only rightsof use to communally to owned land;allowingindividuals opt out and fullyown their landwould full the traditionalsystem. Similarly,although less dramatically, destroy with cerfreedom of religion,includinga rightto apostasy,is incompatible Islamicviews. tain well-established traditional Sometimessuch conflictscan be resolved,or at leastminimized,by the of of physicalseparation adherentsof old and new values.Evena separation and traumatic, for example, the old and new values may be difficult given, of interpenetration ruraland urbansectors, but such a course frequently with practicesthat are not materialto the may be possible, particularly of maintenanceor essentialintegrity either culture. Nevertheless,a choice must sometimes be made, at least by default, between competingpracticesor conceptionsof humanrights.Suchcases, I would suggest,take us out of the realmin which usefulgeneralguidelines are possible. Such cases, however,are the exception ratherthan the rule.And if my above are correct,we can justifiably insiston some formof weak arguments of that is, on a fundamentaluniversality basic human culturalrelativism; rights,tempered by a recognitionof the possible need for limitedcultural variations.Basic human rightsare, to use an appropriately paradoxical universal. phrase, relatively
in the popularity such practices,particularly theirmore extreme,and healththreatenof in appropriate this ing, forms.This seems to me generallydefensible,and particularly issue of the modernor majority cultureexertinstance,but it does raisethe controversial culturalpractices. ing pressureagainstminority