CHAPTER 1 The Scope of Human Rights: Toward a Freestanding, Culturally Sensitive Universalism

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Human Rights Education Beyond Universalism and Relativism

A Relational Hermeneutic for Global Justice

Fuad Al-Daraweesh and Dale T. Snauwaert

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human rights education beyond universalism and relativism Copyright © Fuad Al-Daraweesh and Dale T. Snauwaert 2015.

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CHAPTER 1

The Scope of Human Rights: Toward a Freestanding,

Culturally Sensitive Universalism

Introduction

The central question of this book in general, and this chapter in particular, is one of the scope or framing of human rights—are they relative or universal in breadth? This question asks how inclusive should the ethical–political community be? It is a question of who the subjects of justice are—who deserves moral consideration? Who should have moral standing (Fraser, 2010)? It is about whether the moral circle can be expanded to include all human beings (Singer, 2011). The exploration of these questions of the scope of human rights rests upon two fundamental ethical intuitions (Lukes, 2008, p. ix): The first intuition is that there are actions and behaviors that are universally right and wrong from the point of view of humanity itself. There are things one should do or never do to another human being (Perry, 1998). The idea of human rights entails an implicit normative claim to recognize that all human beings have equal moral standing in the human community; that the human moral community is cosmopolitan in the sense that it includes all human beings. In apparent tension with this first intuition is the second, which can be referred to as

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14 ● Human Rights Education Beyond Universalism and Relativism

cultural nonjudgment based on respect for diverse others: “Who are we to judge other cultures?” (Lukes, 2008, p. ix). This normative commitment to respect and nonjudgment is in fact implicit in the idea of human rights itself. By including all human beings in the moral community, human rights necessarily entail a right to cultural recognition and thereby respect for cultural pluralism (discussed in greater detail below). The problem that this chapter and book explore is whether these two intuitions can be reconciled, and, if they can be, in what way? In addressing this problem, we seek an alternative conception of universalism. To this end we ask: On what grounds can a conception of human rights be both universal in scope and respectful of cultural pluralism and cultural recognition? The legitimacy of human rights is contingent upon a successful answer to this question, for, while acknowledging the fundamental imperative of respect for pluralism and recognition, if rights are to be human rights in any meaningful sense, their scope must be “universal” in some sense. The purpose of this exploration is to provide a third conceptualization of the scope of human rights as both universal and respectful of cultural pluralism and a methodology for their realization.

It will be argued that there are inherent problems with both cultural relativism and a universalism based in metaphysical realism, rational intuitionism, essentialism, and Kantian moral constructivism. In turn, it will be argued that a “freestanding” universal scope of human rights is an alternative conception of a culturally sensitive universalism that solves the inherent problems of both metaphysical, essentialist-based universalism and cultural relativism. It will be argued that this freestanding universalism takes the form of an overlapping human rights consensus, and this form of universalism has the potential for achieving cross-cultural legitimacy and stability.

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the Scope of Human Rights ● 15

Ethical Universalism as Grounded in Metaphysical Realism and Essentialism

Historically, the universal scope of human rights has its origins in metaphysical realism and rational intuitionism. This tradition maintains that there exists a universal independent moral order that can be comprehended by human rationality, and, when comprehended, this moral order provides individuals with a legitimate and justifiable claim to the moral truth. The moral order is independent in the sense that it exists in itself separate from human interpretation. Yet it is accessible to rational intuition (Finnis, 1980; Nussbaum, 1992).

On the grounds of metaphysical and epistemological realism, the ancient Greeks and Romans (the Stoics) claim that a fundamental symmetry exists between the human mind and the cosmic order. From this perspective, human consciousness is a microcosm of the universe. Universal patterns or arche- types exist and structure the cosmos, including the mind. Given this basic structural symmetry, by comprehending the universal moral order the mind and human conduct would be ordered and fulfilled in accordance with the imperatives of that order. By knowing one’s self, one could come to the knowledge of an independent moral order, aligning one’s self to its order. Hence, the cornerstone of ancient philosophy, and its subsequent manifestations throughout the history of philosophy and theology, were the Socratic injunctions: “know thy- self ” and “knowledge is virtue” (Foucault, 2005; Hadot, 2002; Hadot and Davidson, 1995; Hadot and Marcus, 1998; Jaeger, 1943; Nussbaum, 1992; Tarnas, 1991).

Modern moral theory calls into question metaphysical realism and rational intuitionism, while attempting to preserve a universal moral scope. This attempt is perhaps best exemplified in Immanuel Kant’s moral constructivism. Kant puts forth the

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idea that ethical principles originate in and are expressions of the nature of practical reason and the conception of the person as autonomous. Given that the capacity for practical reason is universally found in all human beings, the principles of right are the moral imperatives given to one’s self as morally autonomous, reasonable persons (Kant, 1964). As John Rawls (1993) points out:

Constitutive autonomy says that the so-called independent order of values does not constitute itself but is constituted by the activity, actual or ideal, of practical (human) reason itself. I believe this, or something like it, is Kant’s view. His constructivism is deeper and goes to the very existence and constitution of the order of values. This is part of his transcendental idealism. (p. 99)

From this perspective, practical reason and, in turn, moral value and principle are grounded in the universal rational autonomy of the person.

A third potential grounding of universalism is the idea of essentialism, the proposition that there exists a basic good, grounded in an essential human nature, that is universal. Vari- ous forms of essentialism (e.g., utilitarianism, moral perfec- tionism, civic humanism) have a teleological structure in the sense that they posit a universal human good and maintain that the realization of that good is what is universally right (Rawls and Freeman, 2007; Rawls and Herman, 2000).

As discussed below, when taking into consideration the social conditions of cultural pluralism these philosophical attempts at universalism do not survive critical scrutiny.

Critique of Metaphysical-‐Based Universalism

The rise of cultural moral relativism proceeds from a critique of universalism grounded in metaphysical and epistemological

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realism. There are two general approaches to this critique, one descriptive and the other normative. The descriptive approach is grounded in nominalism and “perspectivism.” This critique leads to cultural relativism, the position that the existence and substance of rights, or any other moral principle, ideal, and/ or norm, is contingent upon the cultural belief systems of the people in question. From this perspective, morality is grounded in and emerges out of cultural, communal traditions.

The descriptive approach to questioning of universalism began in the fourteenth century with the nominalism of Wil- liam of Ockham and culminates in Friedrich Nietzsche’s perspectivism. Ockham’s basic claim was that universals, including the universal moral order, are not real, nor independent; they are constructions of the mind. For Ockham, universals are conceptual schema linguistically structured. David Hume argued in a similar fashion in the eighteenth century that the mind only experiences impressions of the world, and we, in turn, project order and meaning onto those impressions. However, there is no inherent pattern or order in the world that exists independently of the mind (Snauwaert, 1999; Tarnas, 1991).

Kant attempted to rescue universalism from this critique through his constructivist epistemology and moral theory. Kant concurs that the mind is capable of knowing only the phenomenal (one’s own mental impressions); however, he maintains that reliable knowledge of the world is possible. Kant maintains that the mind does not passively receive sense data; the mind constructs those data in terms of innate cognitive categories of the mind. Thus, we know the world as it is constructed by our minds. We can know reality, however, to the extent that the world corresponds with the structure of the mind. The innate structures of the mind mirror the order of the world. This epistemological perspective is a modification of metaphysical realism, a modification of the idea that there exists a basic symmetry between the mind and the universe.

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In building on the perspective of Ockham and Hume, Friedrich Nietzsche refutes Kant’s modified position on the grounds of perspectivism, which posits that what we know is constituted by the socially constructed position or perspective we assume—a type of cognitive relativism. There is no objective truth, no symmetry or correspondence with the world per se, only diverse perspectives and corresponding interpretations (Lukes, 2008). Through socialization, the individual forms a representation of his or her cultural worldview, and interprets experience of the world through this worldview. The structure of the mind is neither innate nor universal; rather the mind is a product of historically contingent social and cultural environments. The world from this perspective is thereby socially constructed. This position is fundamentally different from metaphysical realism and Kant’s constructivism, in that, instead of our mental conceptual schema accurately mirroring or representing reality, they represent a socially constructed interpretation of reality. From this perspective, the empirical existence of cultural pluralism, a diversity of cultural worldviews, results in a relative array of cultural interpretations of reality, not a singular, universal perspective. This descriptive approach to the critique of metaphysical realism yields cognitive relativism or perspectivism. It has been argued that the existence of a plurality of cultural worldviews and cognitive relativism automatically results in the validity of moral relativism; that is, moral norms and customs are relative to empirically based, descriptive cultural pluralism. However, the empirical existence of cultural plurality alone is not sufficient to invali- date the normative claim of universalism; a normative critique must be offered as well (Lukes, 2008; Nussbaum, 1992; Rawls and Freeman, 1999).

Moral relativism, in this context, refers to the position that the existence and substance of rights, or any other moral principle, ideal, and/or norm, is contingent upon cultural belief

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systems. From this perspective, morality is grounded in and emerges out of cultural traditions and is thereby pluralistic and culturally relative. This ethical perspective is developed within the communitarian tradition of moral and social thought. An example of this perspective is Michael Walzer’s theory of the spheres of justice and complex equality.

Walzer maintains that moral and political philosophy proceeds intellectually by the application of an interpretative method (Orend, 2000; Walzer, 1983, 1987, 2007). Moral- ity is neither discovered in the fabric of reality (i.e., rational intuitionism), nor invented, that is, constructed through purely procedural processes that model the nature of practical reason—Kantian constructivism (Rawls, 1971; Rawls and Herman, 2000). Walzer argues that we do not have to discover or invent the moral world, it already exists and we live in it. We are situated within it. We always perceive and understand from a position, a point of view. Our own communities and cultures are our ultimate source of morality; we do not need to discover or invent it, we need to interpret it. There is no other starting point for moral speculation; we start from where we are, reflecting on actually existing moral and political beliefs, which entails argument and deliberation about the meaning of moral goods and values. It is the interpretation itself that con- tains the moral content and substance. Ethical criticism mainly takes the form of pointing out inconsistencies with our deepest values—exposing hypocrisy. It is normative (both descriptive and prescriptive)—it presents a normative standard by which moral judgments can be made. Fidelity to the deepest meaning of our most cherished values is the moral standard. “Justice and equality can conceivably be worked out as philosophical artifacts, but a just or an egalitarian society cannot be. If such a society isn’t already here—hidden, as it were, in our concepts and categories—we will never know it concretely or realize it in fact” (Walzer, 1983, p. xiv).

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Walzer’s core theoretical claims are: (1) the fairness of the distribution of a social good is determined by how the meaning of the social good is culturally understood; (2) each social good constitutes an irreducible sphere of justice; (3) the invasion and domination of a social good outside its sphere constitutes injustice (for example, wealth determining the distribution of educational opportunity or health care); and (4) complex equality is a distributive concept that follows from pluralism, which posits that one’s standing in one sphere of good should not determine, including undermine, one’s standing in another sphere. Walzer’s theory of justice is premised upon the insight that general social goods can only be specified within certain social contexts. The argument proceeds as follows:

1. The meaning and value of social goods are situated within

and relative to the cultural context. Walzer (1983) writes:

I want to argue . . . that the principles of justice are themselves pluralistic in form; that different social goods ought to be distributed for different reasons, in accordance with different procedures, by different agents; and that all these differences derive from different understandings of the social goods themselves—the inevitable product of historical and cultural particularism. (p. 6)

2. The logic of the justice of a distribution of a social good

is implicit in the cultural meaning, the shared understanding, of the social good. The shared meaning of the social good con- tains the criteria, the ideal method, which should govern its distribution. Distributive criteria are present within the shared meaning of the good. Each social good has its own distributive criteria. “Social goods have social meanings, and we find our way to distribute it justice through an interpretation of those

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meanings. We search for principles internal to each distributive sphere” (Walzer, 1983, p. 19).

3. Since each social good has its own shared meaning, and, in turn, its own inherent distributive logic (the logic is implicit in the shared meaning), it constitutes a sphere of justice, defined by clear borders. The individual spheres may be interlocking, but they maintain their own integrity as a sphere. “There is no single set of primary or basic goods conceivable across all moral and material worlds—or, any such set would have to be conceived in terms so abstract that they would be of little use in thinking about particular distributions” (Walzer, 1983, p. 8).

4. Injustice is defined as a morally unjustifiable invasion or domination of one social good or sphere into and over another. This is in the sense that distributive injustice occurs when the possession of one social good, Y, allows one to possess another good, Z, by mere possession and without regard to the meaning of the good (violation of shared meaning). For example, when quality education is contingent upon family income you have a situation where money, one good/sphere, dominates another good, education. Justice demands that distinct social goods not be easily convertible—it should resist convertibility. Justice requires the defense of differences—different goods distributed differently among different groups of people.

5. Complex equality is a distributive concept; it describes the nature of just distribution of social goods under the conditions of pluralism. It posits that one’s standing in one sphere of good should not determine, including undermine, one’s standing in another sphere. Equality is complex in the sense that it is dif- ferentiated in terms of a plurality of social goods contextually defined. Normatively, the ethics of justice exist within cultural traditions, which, from Walzer’s perspective, are grounded in culturally defined goods.

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In addition, the normative validity of cultural relativism is also supported by the argument for a right to cultural recognition. This argument recognizes the fundamental moral equality of individual persons but rejects the monological construction of identity in favor of a dialogical conception, in the sense that one’s identity is formed in relationship to the culture one is socialized within. The culture is inseparable from one’s identity. Therefore, if we are moral equals, and if our identity is inseparable from our culture, then what follows in principle is a right to cultural recognition. In turn, if we have a right, justified claim, to cultural recognition, then the others are obligated to respect our cultural heritage. The right to cultural recognition puts forth a strong notion of respect for persons. It is strong in the sense that it is deeply respectful of the individual’s identity as a cultural being and treats all individuals and cultures as equals (Taylor, 1994).

Based upon these arguments, which establish the fundamental importance of cultural pluralism, descriptively and normatively, the claim of universal moral scope based in metaphysical realism, essentialism, and Kantian constructivism does not seem to stand up to critical scrutiny. However, there are also particular problems with the relativist position.

Critique of Cultural Relativism

The core problem with cultural relativism is that it presupposes the positional confinement of cultures. It suggests that individuals can never escape their cultural perspective and thus are confined within the position of that culture. Individuals tend to share a fixed position within their culture with other cultural members; as Amartya Sen points out, this fixed position leads to positional objectivity and, in turn, to the possibility of objective illusion and false consciousness. If the individuals within a group share the same, invariant position and attain

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agreement on the validity of their beliefs, perceptions, etc. then they have achieved positional objectivity—from within their shared position they have achieved intersubjective warrantabil- ity. However, the shared belief may be false, even though it is positionally shared (Sen, 2009). Examples include the historical beliefs that the earth is flat, the sun revolves around the earth, and slavery is morally justifiable, among many others. These beliefs constitute objective illusions; an objective illusion is “a positionally objective belief that is, in fact, mistaken in terms of transpositional scrutiny. The concept of an objective illusion involves both the idea of positionally objective belief, and the transpositional diagnosis that this belief is, in fact, mistaken” (p. 163). Objective illusions are, in turn, the basis of false consciousness, the collective beliefs that are false but pas- sionately held to be true. An entire population may suffer from false consciousness grounded in their positional confinement (Sen, 2009).

Positional confinement, in turn, blocks the possibility of a shared ethical agreement across cultures; this confinement is

then the basis of violence, for there are neither fair terms of cooperation nor the possibility of the nonviolent resolution of the inevitable conflicts that arise between nations and peoples

(Sen, 2006, 2009). Positional confinement renders, therefore, cultural relativism dangerously silent on ethical relations between cultural groups. From this perspective, there does not

exist recognition of any ethical–political obligation between cultural groups, for each is a positionally confined social construction with its own moral norms. The relations between cultural groups thus tend to be a matter of power rather than

ethics. This conception of the relations between nations and peoples has tended to take at least two theoretical forms: international political realism and the “clash of civilizations” thesis. Moral relativism and positional confinement logically lead to

international political realism. If moral consideration is

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confined to the boundaries of one’s own community, if moral understanding is impossible across cultural boundaries, and if the moral systems of various cultures are incommensurable, then there exists a state of moral, legal, and political anarchy between societies. International, intersocietal, and intercultural relations, then, can only be conducted in terms of rational self-interest pursued through the exercise of power. Relations between nation-states and peoples can only be based in power- politics, in the sense that they exclusively concern rational self-interest and power, not what is right per se (Brown, 1992; Cady, 1989; Doyle, 1997; Smith, 1986). This is a Hobbesian state of nature. If cultural relativism is assumed, then anarchy follows as the context of international relations.

Under these anarchical conditions, the international system exists in a perpetual state of war. These conditions lead to the phenomenon referred to as the “security dilemma.” Given the rationality of the actors, coupled with uncertain knowledge of others’ intentions, preparing to defend one’s community increases the probability of conflict; the rational pursuit of security leads to insecurity (Jervis, 1991). Thus, the assump- tion of anarchy generates a perpetual a state of insecurity. The only way under these conditions to maintain a modus vivendi, a state of cold war, is through a balance of power, which serves as a deterrent, giving no party advantage over the other (Doyle, 1997; Nye, 1977; Smith, 1986). A negative peace can only be achieved through deterrence. However, each culture is immi- nently susceptible to invasion.

From this perspective, there does not exist an obligation to give others external to one’s culture moral consideration. Based upon the positional confinement of cultural relativism, international political realism entails the denial of moral consideration to others. This positional moral confinement leads to a state of perpetual conflict and violence. This inherent problem

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with cultural relativism was exposed at the Nuremberg Tribu- nal after World War II and gave rise to the human rights move- ment (Snauwaert, 1995).

The International Military Tribunal at directly confronted the privation of moral relativism, and this confrontation led to the “human rights revolution” (Cooper, 1999; Falk, 1989; Glueck, 1966; Woetzel, 1962). The Nuremberg Tribunal argued that “crimes against peace” and “war crimes” were violations of international law. In addition, heinous actions that violate our basic sense of justice were understood to be “crimes against humanity.” In stipulating crimes against humanity the tribunal asserted a universal scope of moral consideration (Cooper, 1999).

In expanding the moral circle, the tribunal called into question the two basic realist principles: the Acts of State Doc- trine and the Territorial Jurisdiction. According to the Acts of State Doctrine, which provide an umbrella of sovereignty, it was customary practice in the relations between states to grant immunity to state agents. The tribunal argued that when the crimes of aggression, war crimes, and crimes against humanity are committed, state officials couldn’t stand behind the veil of national sovereignty, the orders of superiors, and/or national law with impunity.

In addition, the Nuremberg Tribunal invoked a principle of universal jurisdiction (Turner Johnson, 1999), arguing that “every nation can take jurisdiction over certain crimes against international law, regardless of where or by whom they were committed” (Woetzel, 1962, p. 69). The invocation of a universal jurisdiction is operative when the crimes constitute significant violations of justice. The principle of universal jurisdiction is now an established precedent and is regularly invoked by prosecutors. For example, Spanish prosecutors in Madrid indicted the former dictator of Chile, Pinochet, for crimes

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against humanity and requested his extradition from Great Britain to stand trial in Spain for crimes committed in Chile.

The result of the Nuremberg refutation of the Acts of State Doctrine and Territorial Jurisdiction constitutes the “Nurem- berg Obligation”: a duty to uphold international law and morality “by taking appropriate action even if it violates appli- cable domestic law” (Falk, 1989, p. 212). Individuals are obligated to obey the imperatives of international law even when in conflict with national law. Individuals are also personally responsible for such violations, even when their crimes conform to national law or to the orders of superiors (if, that is, a moral choice is possible). The Nuremberg Obligation codi- fies the individual’s moral obligation to refuse to participate in crimes against peace, including the planning of and prepa- ration for war, war crimes, and crimes against humanity. By implication, the Nuremberg Obligation mandates that citizens actively oppose acts of state that violate international law and morality (Falk, 1989). The Nuremberg Obligation exemplifies a fundamental moral imperative: universal respect for humanity. It bestows priority to protecting humanity above all the self-interest and power of states. It establishes the universal inviolability of human dignity.

Subsequent international human rights declarations and conventions, beginning with the UN Universal Declaration of Human Rights and followed by the Covenant on Civil and Political Rights, the Covenant on Economic, Social, and Cul- tural Rights, the Convention on the Prevention and Punish- ment of the Crime of Genocide, International Covenant on the Elimination of All Forms of Racial Discrimination, among many others, follow from the precedent set at Nuremberg.1

These international human rights conventions decouple human rights violations from the crime of aggression. With the stipulation of crimes against humanity, the scope of moral consideration was expanded to include all human beings, thereby

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providing a moral counterassertion to and uncovering the serious flaws of cultural relativism and political realism (Cooper, 1999).

Cultural relativism also manifests in the clash of civilizations thesis. Samuel Huntington (1996) maintains that the clash between civilizations is the primary form of conflict. In the modern era, war has moved from conflict between nations to conflict between ideologies to conflict between civilizations. From this perspective, the logic of equality is not universal; rather it is inherently Western, and from the perspective of non-Western cultures, its advocacy is hegemonic. The clash of civilizations hypothesis, based upon the presupposition of cultural relativism, suggests that a cross-cultural ethic is not possible. Under these conditions, there is the inevitable, ongoing conflict between civilizations/cultures, with no real means of solving them for what John Rawls refers to as the “right reasons.” Under these presupposed conditions the best that can be achieved is a modus vivendi, a short-term compromise and sus- pension of conflict that usually arises out of exhaustion (Rawls, 1999); it is a state of “cold war.”

In summary, the inherent problems with cultural relativism revolve around its moral positional confinement and thus the lack of ethical principle to guide the relations between peoples and their states. This confinement creates the conditions for a perpetual state of war between states and peoples, and, in turn, threatens the integrity of individual cultures (witness the long history of cultural imperialism), as well as provides a veil behind which governments can commit various human rights violations. The inherent premises of cultural relativism are in contradiction with the long-term survival of cultural pluralism. It seems that both universalism (grounded in metaphysical realism, essentialism, and/or Kantian constructivism) and cultural relativism have serious problems. As pointed out above, the driving question of this book is whether there is a

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possible middle-way between universalism and cultural relativism. It will be argued below that an alternative conception can be found within the normative criteria of human dignity, impartiality, and reciprocity inherent in the very idea of human rights itself. These criteria expand the scope of human rights to the level of a kind of ethical–political universalism based on an overlapping consensus, a fusion of horizons, around a political conception of human rights. This overlapping consensus achieves a universal scope while respecting cultural pluralism.

The Idea of Human Rights and the Normative Criteria of Human Dignity,

Impartiality, and Reciprocity

Implicit in the idea of human rights are three fundamental normative criteria: equal human dignity, impartiality, and reciprocity.

1.5.1 Human Dignity

Article I of the Universal Declaration of Human Rights states:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.

Amy Gutmann points out that this statement stipulates a

pluralistic conception of the dignity of the person as follows:

● Free and equal personhood: “All human beings are born free and equal”;

● Equal dignity: “free and equal in dignity”; ● Equal creation or endowment: “They are endowed with

reason and conscience”;

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● Equal brotherhood: “a spirit of brotherhood”; ● Human agency: “endowed with reason and conscience.”

(Gutmann, 2001, p. xxv)

Article I asserts that each human person possesses an intrinsic value and dignity, a status as moral ends; this claim cannot, however, be established empirically; nor does its validity need to be grounded in a metaphysical or cosmological perspective. As Nussbaum (2000) points out, the intrinsic value and dignity of our humanity exerts freestanding moral claims, independently of any metaphysical doctrine. As the foundation of human rights, human dignity is a normative assertion (Bobbio, [1990] 1996; Buergentahl, 1995; Ignatieff, 2001; Maritain, 1958, 2001a; Perry, 1998).

The argument here is that the idea of human rights entails the normative recognition of the intrinsic value and dignity of human beings. It is based upon the presupposition that human beings are more than mere objects. It is a moral attempt to transcend objectification and thereby dehumanization. Humans possess dignity due to their intrinsic values. They are ends. This is neither a metaphysical nor an empirical claim. It is a normative claim, a normative assertion.

This normative criterion leads to, as we will see below, political constructivism (developed by John Rawls) that follows from Kantian constructivism, but avoids the essentialism inherent in it. As Rawls points out, Kantian constructivism “specifies a particular conception of the person as an element in a reasonable procedure of construction, the outcome of which determines the content of the first principles of justice” (Rawls and Freeman, 1999, p. 304). Kant’s conception of the person entailed full rational autonomy. In the idea of human rights, the person is normatively conceived as morally equal in dignity and rights.

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1.5.2 Impartiality

Central to the idea of rights and following from human dignity is the normative criterion of impartiality. Impartiality is a core element of morality, including human rights. Implicit in the idea of ethics itself is the claim that to be right a choice must be disinterested and unbiased. Self-serving choices do not rise intuitively to the level of moral choice. Ethical choices and claims involve the exercise of judgment and require justification; that is, one must provide reasons that justify the choice. These reasons must be disinterested. “Bare-faced appeal to self-interest will not do” (Singer, 2011, p. 93). An ethical choice must give equal weight to the interests of all affected. That is, a principle of impartial consideration of interests of others is fundamental to an ethical choice. As Peter Singer points out: “It alone remains a rational basis for ethics” (p. 109).

As John Rawls has so forcefully demonstrated, justice has to be understood in terms of the demands of fairness, and fairness entails impartiality (Rawls, 1971; Rawls and Kelly, 2001). As Rawls suggests: “The fundamental idea in the concept of justice is fairness” (Rawls and Freeman, 1999, p. 47). “A man whose moral judgments always coincided with his interests could be suspect of having no morality at all” (p. 54). At a basic level of understanding, to be fair is to be unbiased; fairness demands that we impartially considered the claims and interests of others. Commenting on this basic idea, Sen (2009) writes:

This foundational idea [fairness] can be given shape in various ways, but central to it must be a demand to avoid bias in our evaluations, taking note of the interests and concerns of others as well, and in particular the need to avoid being influenced by our respective vested interest or by personal priorities or eccentricities or prejudices. It can be broadly seen as a demand for impartiality. (p. 54)

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So far as human rights are moral claims (discussed more fully below), they require impartiality. As Sen suggests, “The robust- ness of an argument that a particular claim can be seen as a human right has to be assessed through the scrutiny of public reasoning, involving open impartiality” (Sen, 2009, p. 366).

1.5.3 Reciprocity

Interconnected, in turn, with the criteria of human dignity and impartiality is reciprocity. The impartial consideration of the interests of others who possess equal human dignity entails reciprocity, in the sense that such consideration requires that the terms that regulate the ethical and political relationship between the parties must be acceptable to all affected. The terms must be such that no reasonable person would have grounds to reject them (Rawls, 1993; Rawls and Freeman, 1999; Rawls and Kelly, 2001; Scanlon, 2002). Reciprocity requires that we “arrange our common political life on terms that others cannot reasonably reject” (Rawls, 1993, p. 124).

Reciprocity is clearly visible in the idea of human rights, in the sense that rights entail duties. Duty is interrelated with right. If there are rights, then correlative duties logically follow. Individuals possess reciprocal obligations to each other as bearers of rights. Thus, the moral equation is not merely about what the individual is due; it fundamentally involves what individuals are obligated to provide and/or refrain from doing to others. Human rights entail both what one is owed and what one owes.

As Henry Shue (1980) demonstrates, rights, especially basic rights, entail three types of correlative duties:

1. Duties to avoid depriving another the right. 2. Duties to protect the other from deprivation of the right. 3. Duties to aid the deprived. (pp. 52–53)

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The duty to avoid deprivation entails the obligation to refrain from destructive action and/or interference. The duty to protect entails the obligation to establish a basic structure of society that ensures the rights of all members. The duty to aid entails the obligation to provide for those in need. Therefore, the normative criteria of reciprocity is implicit in the idea of rights/ duties.

The ethical question that follows these three normative criteria inherent in the idea of human rights is what do citizens owe each other? This question speaks to the very constitution of human rights.

If every human being possesses an equal inherent worth and every human moral agent should conform to the basic normative criteria of impartiality and reciprocity, what is the human being due, justified in demanding, entitled to, protected from, etc., from all and every other human being? One way to conceive rights, therefore, is to define them as what a human being is due. This conception is articulated by Jacques Maritain (2001b):

What does the notion of right mean? A right is a requirement that emanates from a self with regard to something, which is understood as his due, and of which the other moral agents are obliged in conscience not to deprive him. The normality of functioning of the creature endowed with intellect and free will implies the fact that this creature has duties and obligations; it also implies the fact that this creature possesses rights, by virtue of his very nature—because he is a self with whom the other selves are confronted, and whom they are not free to deprive of what is due him. And the normality of functioning of the rational creature is an expression of the order of divine wisdom. (p. 60)

From this perspective, “rights” constitute what each and every human being is owed by virtue of their humanity.

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As Henry Shue (1980) points out what can be conceived in terms of justified claims:

A moral right provides (1) the rational basis for a justified demand and (2) that the actual enjoyment of a substance be (3) socially guaranteed against standard threats (p. 13).

Basic rights, then, are everyone’s minimum reasonable demands upon the rest of humanity. They are the rational basis for justified demands the denial of which no self-respecting person can reasonably be expected to accept (p. 19).

From this perspective, rights are justified demands for the enjoyment of social goods that are guaranteed by the society (Shue, 1980, p. 19).

Rights can also be conceived as fundamental protections. Rights protect the powerless from the powerful (Bobbio, [1990] 1996; Ignatieff, 2001; Jones, 1999; Vincent, 1986). As Vincent

(1986) maintains: Human rights are “a weapon of the weak against the strong” (p.17). In this sense, rights are political (Igna- tieff, 2001). As Norberto Bobbio asserts, human rights arise out of “specific conditions characterized by the embattled defense of new freedoms against old powers” (Bobbio, [1990] 1996, p. xi).

Rights thus define what the individual is due, is justified in demanding, and/or is protected from. In this way, rights are moral and legal devices, which define the ethical and legal boundaries of what is right. Rights define what choices can never be made or those that must be made. Rights intrinsically

entail the normative claim that every human being possesses human dignity, and, therefore, “certain choices should be made and certain other choices rejected; in particular, certain things ought not to be done to any human being and certain other things ought to be done for every human being” (Perry, 1998, p. 5). In this sense, human rights function “as a fundamental moral limit” (p. 5).

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In summary, implicit in the idea of human rights are three intrinsic normative criteria: equal human dignity, impartiality, and reciprocity. These criteria are ethically freestanding in the sense that they do no rely upon any metaphysical and/or ontological presuppositions, rather they are implicit in the conception of human rights as a normative claim. This idea of a freestanding moral and political conception mirrors the idea of a freestanding political conception of justice shared by, for example, Rawls, Sen, and Nussbaum (Nussbaum, 2000, 2006; Rawls, 1993; Rawls and Kelly, 2001; Sen, 2009). These inherent elements of human rights transcend cultural boundaries thereby expanding the scope of human rights to a freestanding universalism.

1.6 A Freestanding Ethical–Political Universalism

Recognition of the equal intrinsic value and dignity of all human beings, impartiality, and reciprocity expands the circle of moral consideration beyond the cultural group. The universality of inclusion is an integral part of the normative criteria of equal human dignity, impartiality, and reciprocity. In the assertion of human rights rests normative claims that are not positionally confined within any particular cultural horizon as such. Equal dignity, impartiality, and reciprocity know no cultural boundary; they apply to all human beings and do not assume any metaphysical or ontological presuppositions. They are normative claims intrinsic to human rights and are thus freestanding. Human rights as a normative claim, with these intrinsic normative criteria, thereby pushes toward a fusion of horizons.

1.6.1 What form should/can this freestanding universalism take, and what secures its legitimacy and thus its stability overtime?

The normative criterion of reciprocity requires that the idea and content of human rights be mutually acceptable, that there be

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no reasonable grounds to reject the idea and content of human rights. The normative criterion of impartiality requires that this mutual acceptance be inclusive, that mutual acceptance transcend cultural boundaries to include all human beings. In other words, what form of human rights could be agreed to, or not reasonably rejected by, a pluralistic human community? The critique of metaphysically based universalism above eliminates the possibility of there being mutual acceptance based upon what Rawls refers to as “comprehensive doctrines,” doctrines that are grounded in a plurality of metaphysical, theological, ontological, and philosophical truth claims. Rawls conceives a “comprehensive doctrine” as a theoretical (broadly defined as a function of theoretical reason) conception grounded in a tradition—cultural, religious, philosophical, moral, epistemological, metaphysical, etc. It is a doctrine that

includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of friendship and of familial and associational relationships, and much else that is to inform our conduct, and in the limit to our life as a whole. A conception is fully comprehensive if it covers all recognized values and virtues within one rather precisely articulated system; whereas a conception is only partially comprehensive when it comprises a number of, but by no means all, nonpolit- ical values and virtues and is rather loosely articulated (Rawls, 1993, p. 13).

Comprehensive doctrines also include metaphysical conceptions regarding the nature of the universe, reality, being, etc. They include, thereby, religious doctrines that may include beliefs about the nature of a higher power (e.g., a conception of God[s] or some supreme being[s]) and that power’s relationship to human beings. They also include epistemological conceptions concerning the nature of human knowledge. A key characteristic of most, if not all, comprehensive doctrines is

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that those holding and abiding by the doctrine believe in and assert the truth, often The Truth, of the doctrine. Often the tra- ditional framers of the doctrine conceive of it as the sole truth (Freeman, 2007; Rawls, 1993, 1999a).

Inclusive, impartial mutual acceptance cannot proceed on the basis of truth per se. What is the alternative? Following Rawls, among others, the alternative form of human rights must be freestanding, and a freestanding form is potentially achievable through a political conception of human rights, which could gain legitimacy and stability by an “overlapping consensus,” or what we refer to below as a “fusion of horizons,” which would constitute an inclusive mutual acceptance under the conditions of cultural pluralism (Rawls, 2005).

Human rights are conceived, therefore, as political, or more precisely as an ethical–political conception, for rights contain intrinsic normative criteria. Being an ethical–political conception, human rights entail a conception of the person as a citizen, as a member of an ethical–political community. The person may be a member of multiple communities—associa- tions of faith, of science, of art, etc.—but when the person claims human rights, they are making a political claim against other citizens represented in part by governmental institutions (local, regional, national, international), as well as the state itself. As we will see below, this political conception of rights shifts the conception of the person as a rights bearer from the multi-identified person to a citizen. Human rights constitute the ethical–political terms for cooperation between citizens and between citizens and political institutions on all levels, defining what each citizen is due, justified in demanding, and protected from, and, in turn, what each citizen’s and each governmental official’s duty is to other citizens. As the focus of overlapping consensus, human rights become the mutually recognizable terms upon which public deliberation concerning citizen’s rights and duties can proceed.

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1.7 Overlapping Consensus

An overlapping consensus is not a modus vivendi; it is not a short-term compromise between political opponents who do not agree in principle but accept a thin kind of tolerance in order to maintain some modicum of social order. In contrast, an overlapping consensus is a mutual agreement among citizens, the focus of which is a set of ethical–political principles that are endorsed and affirmed from within each individual’s own comprehensive doctrine and/or cultural perspective (Free- man, 2003; S. Freeman, 2007; S. R. Freeman, 2007; Maffet- tone, 2010; Rawls, 1993, 1999a; Rawls and Freeman, 1999; Rawls and Kelly, 2001). As Sebastiano Maffettone points out, the idea of an overlapping consensus entails processes of both justification and legitimization (Maffettone, 2010).

One element of an overlapping consensus is the individual justification of the acceptance, endorsement, and affirmation of the set of ethical–political principles. For Rawls, this justification proceeds through the methodology of reflective equilibrium. Reflective equilibrium is a procedure through which one seeks coherence between one’s considered convictions and one’s principles upon due reflection. There isn’t an expectation that the procedure will achieve a perfect coherence; the standard is one of a reasonable coherence. The individual reflects on the degree to which her principles cohere with her convictions. There is a wide focus to this justification. The individual should consult the widest possible range of reasonable principles and their grounding theories. In terms of affirming a set of ethical– political principles and thereby endorsing an overlapping consensus, the principles are grounded in the background political culture of the society, nationally and internationally. The process of reflective equilibrium and this level of justification occurs from within the reasonable comprehensive doctrines of the individual: The individual is justifying the acceptance and

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affirmation of the political principles to herself from within her own perspective (S. Freeman, 2007; S. R. Freeman, 2007; Maf- fettone, 2010; Rawls, 1993, 1999a; Rawls and Freeman, 1999; Rawls and Kelly, 2001; Scanlon, 2002).

The idea of an overlapping consensus also concerns legitimization (Maffettone, 2010). The legitimacy of the political order, including the coercive power of the state, is contingent upon a set of ethical–political principles (which regulate the basic structure of society and the social and political institutions and relations therein) that are mutually acceptable to all citizens. An overlapping consensus concerning these principles renders the political order legitimate. In turn, the legitimization of the political order from the perspective of the citizenry is a necessary condition for the stability of that order, for the stability of the political order is contingent upon the consent of the people (Sharp, 1973).

Legitimization thereby entails a wide, public form of political justification and, in turn, the exercise of public reason. Political legitimacy is premised upon the free consent of equal citizens. Political consent refers to mutually recognized agree- ments that are reasonably justifiable (i.e., in the sense of being in alignment with interpretations of the values and principles of the political ethic) and, therefore, politically legitimate. Justification, rather than coercive force, is the source of political legitimacy. The political dynamics of consent have a necessary core element: public deliberation and, in turn, public reason.

Due to the sociological fact of reasonable pluralism, a mutually recognized point of view is necessary for public discourse and justification. Based upon the normative criterion of reciprocity, citizens have a civic duty to each other, what John Rawls refers to as the duty of civility, to explain and justify their political preferences and opinions to one another in the terms of the publically recognized and accepted values and principles

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of their shared political ethic (Rawls, 1993, p. 243). It is a duty to appeal to the political ethic in the course of public deliberation. As Rawls clearly states:

When may citizens by their vote properly exercise their coercive political power over one another when fundamental questions are at stake? Or in the light of what principles and ideals must we exercise that power if our doing so is to be justifiable to others as free and equal? To this question political liberalism replies: our exercise of political power is proper and hence justifiable only when it is exercised in accordance with the Constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational. This is the liberal principle of legitimacy. And since the exercise of political power itself must be legitimate, the ideal of citizenship imposes a moral, not a legal, duty—the duty of civility—to be able to explain to one another on those fundamental questions of how the principles and policies they advocate and vote for can be supported by the political values of public reason. This duty also involves a willingness to listen to others and a fair- mindedness in deciding when accommodations to their views should reasonably be made. (p. 217)

The duty of civility in fact structures a particular form of public discourse, a form of deliberation that is grounded in public reason. Government by consent, thereby, requires an overlapping consensus on values and principles of political justice whereby those values and principles are publically recognized, understood, and accepted. This ethic constitutes a “mutually recognized point of view from which citizens can adjudicate their claims of political right on their political institutions or against one another” (Rawls, 1993, p. 9). In other words, these recognized values and principles constitute an ethical framework for public deliberation. So construed, public deliberation employs a form of reasoning that is public—public reason.

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Public policy requires justification in order to achieve legitimacy. Justification is achieved through deliberation and the exercise of public reason. Without reference to the mutually recognized values and principles of a political ethic and adher- ence to the standards and practices of public reason, public speech becomes merely rhetorical and/or ideological. Authen- tic public deliberation and thereby legitimate public policy require a mutually recognized ethical framework, including the standards of public reason. As Rawls (1993) suggests:

Justice as fairness aims at uncovering a public basis of justification on questions of political justice given the fact of reasonable pluralism. Since justification is addressed to others, it proceeds from what is, or can be, held in common; and so we begin from shared fundamental ideas implicit in the public political culture in the hope of developing from them a political conception that can gain free and reasoned agreement in judgment, this agreement being stable in virtue of its gaining the support of an overlapping consensus of reasonable comprehensive doctrines. These conditions suffice for a reasonable political conception of justice. (pp. 100–101)

In his important book on human rights, the political philoso- pher Norberto Bobbio ([1990] 1996) identifies three broad stages in the development of the international human rights agenda:

1. The philosophical articulation and defense of human rights,

2. The political acceptance of the legitimacy of human rights, and

3. The codification of human rights in law, including enforcement on all levels, from local to global.

The last stage of development is when international human rights are affirmed from within the local culture and used as

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the content of public, including legal, deliberation, that is, as the content of public reason.

Our proposition in this book is that human rights can be understood as the content of a cross-cultural overlapping consensus and global public reason. Human rights can potentially constitute the ethical–political terms for cooperation between citizens and between citizens and political institutions on all levels, from the local to the global, defining what each citizen is due, justified in demanding, and protected from, and, in turn, what each citizen’s and each governmental official’s duty is to other citizens. As the focus of an overlapping consensus, human rights would become the mutually recognizable terms upon which public deliberation concerning each citizen’s rights and duties can proceed within and across cultures.

It is essential to point out, however, that the principles of global ethics, including international human rights, constitute what Michael Walzer refers to as a “thin” morality (Walzer, 1996). Freestanding universal moral principles are, by their very nature, necessarily thin. They are thin in the sense that they are abstract and general. They are broad guidelines that require specification in terms of the particularities of individual situations and contexts. It is undeniable that there exists a plurality of cultural value and moral systems that are distinct; however, they all have implicit in them the thin core of universal moral principle. Thus, international human rights and the principles of global ethics must be (and are) adapted to the relative, particular norms of various cultures and societies. As Walzer (1996) suggests:

This dualism is, I think, an internal feature of every morality. Philosophers most often describe it in terms of a (thin) set of universal principles adapted (thickly) to these or those historical circumstances. I have in the past suggested the image of a core morality differently elaborated in different cultures (p. 4).

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This dualistic metaphor captures our moral reality. We should not try to escape the dualism for it fits what I am inclined to call the necessary character of any human society: universal because it is human, particular because it is society (p. 8).

Human rights, therefore, can be conceived as both universal and pluralistic simultaneously. They are universal in a thin sense and particular and thus pluralistic in a thick sense when implemented in various contexts. Moral universalism and moral pluralism are not, from this perspective, contradictory; they are coherently interdependent. Universal principles and values are pluralistically manifested (Perry, 1998).

The fundamental position of human rights is that they constitute the universal moral limits and demands that follow from the intrinsic value of human life. Without such value, rights are meaningless. As Norberto Bobbio ([1990] 1996) suggests:

The only thing we know about fundamental rights is that they are necessary for the achievement of final values, and they are therefore an appeal to those final values. (p. 5)

Jacques Maritain (2001b) makes the same point:

For a philosophy which recognizes Fact alone, the notion of Value—I mean Value objectively true in itself—is not conceivable. How, then, can one claim rights if one does not believe in values? If the affirmation of the intrinsic value and dignity of man is nonsense, the affirmation of the natural rights of man is nonsense also. (p. 62)

Thus, human rights are grounded in human good and this good, as Martha Nussbaum points out, is objective and thereby universal:

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[Human good can] be objective in the sense that it is justifiable by reference to reasons that do not derive merely from local traditions and practices, but rather from features of humanness that lie beneath all local traditions and are there to be seen whether or not they are in fact recognized in local traditions (cited in Perry, 1998, p. 68).

Therefore, it can be concluded that human rights and human values and goods are interdependent, rather than mutually exclusive (Perry, 1998).

These goods and values are, in turn, also universal in a thin sense. They are found in every society and are necessary for human coexistence. As Sissela Bok (1995) maintains:

Certain basic values necessary to collective survival have had to be formulated in every society. A minimalist [i.e., thin] set of such values can be recognized across societal and other boundaries (p. 13).

These basic values are indispensable to human coexistence, though far from sufficient, at every level of personal and work- ing life and of family, community, national, and international relations (p. 19).

These basic values pertain to rights, duties, and norms in three areas: (1) positive duties of mutual care and support, (2) negative duties of no harm to others, and (3) norms of rudimen- tary fairness and procedural justice (Bok, 1995, pp. 14–16). These values directly correspond to economic rights, rights to negative liberty, and rights to positive liberty, respectively. Bok maintains that they are necessary for the kind of trust that underlies all social relations and thus are essential for societal order on all levels.

Societies have produced a diversity of maximalist (thick) values that are not common but can be consistent with the

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three kinds of universal minimalist values. The thin, minimalist values are specified in the context of the thick, maximalist values. Again from the perspective of values, universalism and pluralism are interdependent. Diversity can be honored while common values and universal rights are respected. Also the critique of local values and cultural norms and practices can be legitimate if those values, norms, and practices violate universal values and rights. However, a plurality of local values and practices can be compatible with universal human rights and values. As Bok suggests: “Any claim to diversity that violates minimalist values . . . can be critiqued on cross-cultural ground invoking the basic respect due all human beings” (1995, p. 24). This last statement summarizes the conception of human rights grounded in human dignity as both universal and pluralistic.

1.8 Conclusion

In summary, it has been argued that a freestanding universal scope of human rights is an alternative conception of a culturally sensitive universalism that solves the inherent problems of both metaphysical, essentialist-based universalism as well as cultural relativism. This freestanding universalism in the form of an overlapping human rights consensus has the potential for achieving cross-cultural legitimacy and stability.

The idea of an overlapping human rights consensus and the thick cultural specification of the content of human rights, while normative, have an epistemological dimension to them. The realization of an overlapping human rights consensus is contingent upon particular kinds of cultural, philosophical, historical, and political knowledge, which suggests a need for an epistemological methodology that complements normative affirmation.

Individual justification of the thin human rights principles through the procedure of reflective equilibrium requires

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significant knowledge of one’s own comprehensive doctrines as well as a wide understanding of ethical and political philosophies. It also requires knowledge of the history of the background political culture of one’s society. At the level of the public legitimization of the overlapping consensus, knowledge of the human rights principles must be publicly known and understood by all parties. Public knowledge of the principles is a necessary condition for the exercise of public reason (Rawls refers to this requirement as the “publicity condition”; see Rawls, 1993). In addition, the comprehensive doctrines of others in the consensus should be known as much as possible, including ethical–political philosophies. Knowledge of the political culture of members of other peoples who are party to the overlapping consensus is required. Also an important part of the exercise of public reason identified by Amartya Sen (2009) is the transcendence of positional confinement through widening the knowledge base of the participants. This widening is crucial for the exercise of impartial scrutiny. In addition, as alluded to above, the thick realization of the content of human rights requires the cultural specification of the meaning of that content. This specification is an interpretive process from within the horizon of the particular culture, thus requir- ing knowledge of the history of that culture.

Therefore, there are a variety of complementary epistemological requirements for the realization of an overlapping human rights consensus, its legitimacy and stability, the exercise of public reason, and the actualization of rights within local contexts. The purpose of the rest of the book is to articulate a complementary epistemological methodology and pedagogy for the universal realization of a culturally sensitive overlapping consensus regarding a freestanding, political conception of human rights.

If the understood meaning and the ethical affirmation of human rights are contingent upon cultural interpretation, then

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a methodological approach to interpretation is needed. Such an approach is central to normative interpretation, upon which the plausibility of an impartial perspective rests. Furthermore, the interpretive methodology is also required as a framework for a pedagogical approach to human rights education. In the next chapter, we turn to an account of a hermeneutic methodology as a potential method of interpretation as well as a pedagogical framework.

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CHAPTER 1 The Scope of Human Rights: Toward a Freestanding, Culturally Sensitive Universalism

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