January 2007 Edition

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INTRODUCTION

I would like to begin with some pre­liminary considerations which may help to clarify what is meant in the fol­lowing reflections by “human rights”.  It is useful to bear in mind that “human rights” is not merely an ethical theme, such as “justice”, and is also not sim­ply a style of moral discourse, such as “rights language”. Human rights is now a system of international law. Its foundation document is the Universal Declaration of Human Rights, which was adopted by the General Assembly of the United Nations in 1948. The Universal Declaration marks the beginning of what is often called the modern human rights movement. For the purposes of this discussion, human rights are understood as those rights which are defined in the Universal Declaration of Human Rights, its related international treaties and other human rights documents.

While concepts of human rights have a long history, it is not my purpose here to look into the antecedents of the Universal Declaration of Human Rights, but to take the Declaration as the point of reference for an inquiry into “univer­sality” of moral norms as embodied in human rights. To begin, let me briefly give a historical context for the Universal Declaration of Human Rights.

HISTORICAL CONTEXT

The twentieth century was the blood­iest in human history. In those one hundred years forty-two million people died in civil and international wars. The horrendous fact, however, is that at least one hundred and seventy mil­lion people were killed by their own governments – more than four times the number killed in armed conflict (Scully 1996). The grotesque brutality and vast scale of crimes committed by fascist governments during World War II led to the realization that the power of the state, if unchecked, could lead to monstrous atrocities. As the Universal Declaration says:

Disregard and contempt for human rights have resulted in barbarous acts which have outraged the con­science of mankind” (Preamble).1

It became apparent that protec-tion of human rights could not be left up to the governments of individual countries, and that  a nation could not say that how it treated its own citizens was its own concern and no one else’s – as Hermann Goering had said at the Nuremburg Trials: “But that was our right! We were a sovereign State and that was strictly our business” (Lauren 1998, 210). Limitation of national sovereignty was then and continues to be today a hotly contested issue. International instruments were nonetheless held by many to be needed to codify and guar-antee human rights, indeed to protect people from their own governments, as they had until then no legal recourse if abused. The war after all had been fought against tyranny and barbarism and to protect freedom and human rights, as stated in the Atlantic Charter signed by Franklin Roosevelt and Winston Churchill in 1941 (Lauren 1998, 142-45). The Charter of the United Nations, after a complex political process and in spite of resistance, had ultimately included wording on “friendly relations among nations based on respect for the principle of equal rights and the self-determination of peoples” and “respect for human rights and for fundamental freedoms for all” (Glendon 2001, Ch. 1; Lauren 1998, Ch. 6).

The Commission on Human Rights was set up in June 1946 as part of the Economic and Social Council (ECOSOC) to create a detailed docu-ment on human rights following on the United Nations Charter.  Eleanor Roosevelt, a member of the United States delegation to the United Nations, was unanimously elected chairman. Work on the drafting process began in January 1947. A strategic decision was made not to attempt the cre-ation of a legally binding document on which it would be politically impos-sible to reach agreement in a short time, but a statement of principles similar to a constitution. Some mem-bers of the Commission were broadly erudite, such as the Confucian Pen-chun Chang of China, Charles Malik of Lebanon, a scholar of Whitehead and Heidegger, well versed in the Bible and deeply influenced by Thomas Aquinas, Canadian legal scholar John Humphrey, and René Cassin of France, a Jew and an authority on international law. All three played a leading role in addition to Eleanor Roosevelt. The commission included members from India and Iran as well as from Latin American and Western countries.

Meanwhile, UNESCO solicited input from experts on philosophy, with deliberate intent to give a full account of philosophical traditions of differ-ent civilizations, not only that of the West. Among the one hundred and fifty contributors were Jacques Maritain, Benedetto Croce, F.S.C. Northrop, and also Humayun Kabir, S. V. Putambekar  and Le Zhongshu writing on the Islamic, Hindu and Confucian tradi-tions respectively. The Committee on the Philosophical Principles of the Rights of Man was convened in Paris in early summer of 1947. After much discussion it issued a statement saying, “Human rights have become, and must remain, universal. All the rights which we have come slowly and laboriously to recognize belong to men everywhere without discrimination of race, sex, lan-guage, or religion. They are universal” (Lauren 1998, 224). The statement goes on, “Varied in cultures and built upon different institutions, the members of the United Nations have, nevertheless, certain great principles in common” (loc. cit.). Research by John Humphrey of Canada, who prepared the first draft, included thorough comparative study of the world’s legal traditions as well as existing human rights documents (Glendon 2001, 257).

In the fall of 1948, the final draft of the Universal Declaration was submitted to the General Assembly for approval. The intense preliminary debate in the Third Committee (for social, humani-tarian and cultural affairs) ranged over “spiritual values and religious belief, cultural relativism, whether there should be a reference to the divine origin of the human being, the ideal relationship between the individual and the larger society, the connection between rights and responsibilities, whether concepts of ‘natural law’ could have universal validity, the nature of men and women, the purpose of the state, when life began and whether children have rights, justice and morality, definitions of ‘freedom’ and ‘democracy’, and the meaning of the ‘public good’ and ‘the dignity and worth of the human person’ (Lauren 1998, 234).” Thus the Universal Declaration was based on strenuous and well informed efforts to discern what moral norms the diverse cultures of humanity actually share.

The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations with forty-eight votes for, eight abstentions, and no votes against, on December 10, 1948. It was followed in 1966 by two legally binding treaties, the Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights. Together the three documents are known as the International Bill of Rights. Dozens of other human rights documents international, regional, and national have been created since 1948. Throughout the world the Universal Declaration serves as a point of refer-ence for human rights law and advocacy, as well as a rallying banner for activist movements.

 

THE ETHICS OF HUMAN RIGHTS

Several points on the ethics of human rights need to be made before engaging directly the question of universality. First, a criticism sometimes levelled against human rights is that it is inadequate as a moral discourse. Human rights docu­ments themselves, however, comprise a system of law as just explained, and are not intended to serve as a substitute for a religion or philosophy which aspires to give full treatment of all essential questions. To give a detailed account of human rights as an ethical system is a task in addition to naming basic principles and defining specific rights. The drafters of the Universal Declaration were keenly aware of this.

Second, an allied criticism is that in human rights discourse there is an overem­phasis on rights and an inadequate weight given to duties and responsibilities. It is well established, however, that for rights there are correlative duties, and the Universal Declaration itself when read as a whole (as it should be) makes clear the importance of duties and responsibilities. Article 29 con­cerns duties and the limitations of rights. While some felt during the drafting, and some still feel, that this should have been one of the first articles, it is in any case an integral part of the Universal Declaration.

Third, there is the criticism that human rights deals in terms of the indi­vidual and does not foster community. To this it can be said that the principle of non-discrimination logically requires the indi­vidual to be the bearer of rights, and the nature of collective rights versus those of the individual is a complex issue. It is also very important to note that the Universal Declaration does not actually speak of “the individual” but, in the Preamble of “all human beings”, “all members of the human family” and “the dignity and worth of the human person”, and in the list of rights, “everyone”, which does not have the same sense as “the individual”. Through its references to the family, the community, the nation, and the need to provide for human welfare, the Universal Declaration communicates a vision of the person as embedded in human commu­nity and a network of reciprocal relation­ships. As Michael Novak has put it:

The very term person implies a vision of a universal society, which for reasons of practicality and local autonomy, and by the workings of culture and history, is organized through countless local associations of varying sizes and horizons((Novak 1999, 41).

 

The ideal of human rights here offers a powerful vision of human solidarity (See also Glendon, 2001, 257).

Fourth, it is argued by some that human rights is Western in origin and character, is imposed by the West, and is not suitable for other cultures. The narrative of its drafting and adoption given above surely calls this in ques­tion; I will attempt to refute this claim further below. Finally, all of the above points need to be seen in light of a large overarching reality, which is that human rights is an evolving system of law and thought, a work in progress, in which some principles and rights are widely accepted and others are contested.

The ongoing process of debate and negotiation resolves some issues, finds others intractable and continues to pro­duce new documents.

Turning to the main topic, univer­sality of moral norms and human rights, first it should be said that human rights norms in the Universal Declaration of Human Rights are moral norms. They are authoritative principles and values concerned with good and evil, the right and wrong conduct of human beings towards one another, and the establishment of peace and justice. Human rights and laws are not identi­cal, as the Universal Declaration says that it is necessary that “human rights should be protected by the rule of law” (Preamble). Taking human rights norms as moral, what then is the nature of their universality? “Universal” means true everywhere, hence justified and applicable everywhere. How should we understand this? Universality can be construed in a number of ways. I now attempt to outline different sens­es of “universality”. These senses are  interrelated and may overlap. They are significant, separately and in sum, for grasping what may be meant by uni­versality of moral norms, taking human rights as the point of departure.

UNIVERSALITY AS PEREMPTORY

The Universal Declaration of Human Rights in its Preamble refers to “the equal and inalienable rights of all mem­bers of the human family” and “the dignity and worth of the human person” and notes that “a common understand­ing of these rights and freedoms is of the greatest importance.” It then states, “Now, therefore, the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and nations.”  Displayed here is universality of intent, expressed by the proclamation of a common standard. This may be called “peremptory” universality in the sense of admitting no denial and expressing urgency. Simply put, it means (among its other meanings) that this is the com-mon standard for all peoples and nations because we proclaim it as such.

This peremptory universality by proclamation is claimed to be warranted by “human dignity” and the equal and inalienable nature of freedom and rights. Article 1 reads, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Therefore the proclamation of a com­mon standard is legitimate because dig­nity and rights inhere in each human being by virtue of his or her human-ness alone, without regard to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Article 2). There is something objective in the human condition which is morally valuable and is universal or common to all, and it is this that justifies a common moral standard to be spelled out in a set of practical requirements. All through the two and a half year of the drafting process of the Universal Declaration, debates and reflections continued on these fundamental points. In the end, the words “by nature” were omitted as were any references to God or the idea that humans are created in the image of God. The final wording in itself yields a doctrine of “simple inherence” (Morsink 1999, 294-95). This doctrine affirms that the human being, by virtue of being human, has “dignity” or is wor­thy of respect. It is through “reason and conscience” that we are able to know this. (Morsink 1999, 296) The human, as such, has the rights demanded by human dignity. Beyond this the state­ment of inherent rights is not explicit or determined. The drafters, however, intended that it be philosophically open, allowing for reading between the lines and interpretation, rather than minimal­istic or impoverished.

UNIVERSALITY AS CONSENSUS

Universality by proclamation can be supported by agreement to what is proclaimed. As mentioned, when the Universal Declaration was adopted there were no opposing votes though eight of fifty-six countries abstained. When it is objected today that human rights are “Western” it is often said that a great many of the nations that now exist were not represented at the time of the drafting or adoption. The argument appears to be that since the origin of the Universal Declaration was not inclusive, therefore its content cannot be universal. Mary Ann Glendon and others respond that this is not a valid argument as content is what must be scrutinized (Glendon 2001, 226); in  any case, the world’s regions and their cultures were very wide­ly represented in the drafting, if not all of the states which now exist. Moreover, in the last fifty-three years most of the countries of the world have been involved in international and regional processes which have created a whole series of human rights instruments. More general­ly, human rights has become the currency of world politics, and as David Little says, “a common vocabulary in which claims from very different cultures are similarly articulated” (Little 1993, 76). While some human rights do not find global acceptance, others are not officially contested by any country, for example, slavery or torture (Kelsay and Twiss 1994, 43). They are universally endorsed, if not universally complied with. A counterar­gument could be that consensus, even if it is found on some points, is a shallow form of justification. What people or governments agree on today for whatever reason (not necessarily moral conviction), they may disagree on tomorrow. A moral norm that is supported by consensus still does not deserve to be called a universal moral norm. Consensus, to be even a partial basis for claims of “universality” must be not only broad, but also deep and abiding.

EMPERICAL EVIDENCE FOR COMMON MORAL NORMS

What then, might be the reason for consensus, if it exists? If people agree, why and how strongly do they agree? I have heard that Quakers believe that consensus in their community shows the action of the Holy Spirit among them. Agreement on moral norms may be of great importance even if in prac­tice it only means that the norms are or can be understood, and not that human beings live up to them. In his book Human Universals, anthropologist Donald E. Brown finds in his survey of social scientific evidence that all cultures distinguish between right and wrong, all recognize the norm of reciprocity, all have proscriptions against rape and murder, and all have a concept of the “person” (Brown 1991, Ch. 6). If a human society lacks these norms, it is suffering from pathology as a society. Social scientists and ethicists recognize that certain acts and attitudes affecting human welfare are intrinsic to the human condition and call for moral reflection in all cultures, giving rise to common moral norms (see Little and Twiss, Ch. 2), while in the interfaith movement the project of a “Global Ethic” seeks to demonstrate that religious traditions agree on a set of com-mon “core values” (Küng and Kuschel 1993).2  If the Universal Declaration of Human Rights finds global acceptance it is because it corresponds with already known cross-cultural moral norms. This correspondence is not an accident, but is there because of the extensive study, great care, historical depth and insight with which it was drafted.

UNIVERSALITY AND MORAL INTUITIONS

If it can be empirically demonstrated that common moral norms are present in many cultures, and states do officially agree, let us say, on slavery or torture, what account can be given of this? What is it in human moral consciousness that makes it possible for us to agree?

Here I follow David Little’s account of universality in his article, “The Nature and Basis of Human Rights” (Little 1993). Little argues that some acts are “trans­parently wrong”, for example, that the torture of a child is wrong needs no proof or argument. “When authors of Nunca Mas write,” Little says, “‘Each time that a child suffered torture directly or witnessed the torture of his parents, he entered a realm of horror [in some cases leading to suicide],’ can there be any reasonable doubt that acts of this sort are simply and transparently wrong in themselves, who­ever may perform them and in whatever culture?,” that they have acted “contrary to what it means to be a human being?” (80). If a moral principle or doctrine leads to such acts or acceptance of them, it may be judged morally defective just on that basis. He quotes a 1957 article by William Gass, “The Case of the Obliging Stranger” (about baking a stranger in one’s oven): “[..the] act is not inexplicable; it is transparent...[Thus, the] explanatory fac­tor is always more inscrutable than the event it explains” (79). Little adds, “As in other similar examples of moral revulsion – for instance, in response to extrajudicial execution for purposes of terrorizing and intimidating – our reactions to the torture of children and the like conform precisely to Gass’s account. First, moral theories, insofar as they pretend to “explain” and “justify” why these acts are wrong, are little more than pompous distractions” (80). Little calls his position a form of “rational intuitionism” and says that “Wrongness is, accordingly, ‘cognizable’ in that the notion has certain cognitive features, as already specified [as the arbitrary infliction of extreme suffering]. Human beings may be expected to know enough to be able to recognize these features” (84). This is, of course, not only consistent but power­fully resonant with the reference of the Universal Declaration to “barbarous acts which have outraged the conscience of mankind” (Preamble) as well as to “reason and conscience” (Article 1).

UNIVERSALITY AS INTELLIGIBILITY

This leads me to the final sense of uni-versality I wish to discuss. The idea of universal human rights is currently chal-lenged or rejected as unreal or unavailable by certain leading ethicists, as essentialist by postmodernists, as “Western” and hege-monic by postcolonialists, and now as in the past as infringing on national sovereignty by a number of governments. I suggest in reply that those who claim to oppose “human rights” as a defective ideology will still in practice be swift to claim their own rights if their human rights are violated. They will not feel it is justifiable or moral for them or their children to be seized, detained, tortured, enslaved, or killed by their govern-ments or others because of their race, color, sex, language, religion, political opinion or national origin. Whether or not they will use the language of “rights” or not in such situations is possibly a trivial point (though it will not be surprising if they do). At least some rights, I argue, are in fact accepted universally in a pragmatic manner. Even those governments that engage in human rights violations do not want to be accused of these same violations – no one wants to be called a butcher, a torturer, a perpetrator of genocide.

A kind of global consensus, then, is growing in which human rights is emerging as a common moral language. In no way does this mean that people or governments comply with human rights standards, nor that all agree on all specif­ic rights, let alone that all or most people can exercise their rights. It does mean that human rights norms are intelligible to all. I contend that to argue against universality of human rights effectively, one would have to demonstrate not that no one ever disagrees on human rights, or that rights are never violated, but that significant numbers of people or cultures do not even understand what a right is or what a human rights violation is. This does not mean that diverse languages all have words for “rights” or that rights must be seen to predominate over duties and responsibilities (which is clearly not what human rights discourse means to say in any case). Rather it means that functional equivalents in the ethics and moral norms of the world’s religious traditions and cultures can be found.3  I conclude that human rights can be affirmed as universal moral norms not in the sense that they are universally agreed on or realized, but that they are virtually universal in being understood: by virtue of their universal intelligibility.

Though Little places his position within the tradition of philosophical intuitionism, I believe that in the con­text of human rights it can also be seen as an extension of a kind of consensus argument – but here it is a deep and powerful kind of consensus on wrong­ness and rightness. It is the kind of agree­ment that was documented and defined by the philosophers and legal scholars who drafted the Universal Declaration of Human Rights (though not perfectly, as they often said themselves), by all those consulted and involved in the debate, by the hundreds of millions who have since embraced human rights, by social scientists studying human societies everywhere in the world, and by scholars and activists in the interfaith movement seeking formal and informal agreements on moral norms. Here philosophical and legal analysis, political processes, social science and intercultural dialogue seem to converge on the perception that an understanding of what human dignity is and of what human rights are does indeed arise from the very nature of the human. Ethical inquiry and empiri-cal study do uphold the universality of human rights. The deep structure of the affirmation of universality lies in the “outrage of conscience” and the funda-mental sense of “the dignity and worth of the human person” to which we may come through “reason and conscience”.

REFERENCES

Brown, Donald E. (1991). Human Universals. New York: McGraw-Hill.

George, William P. (1996). “Looking for a Global Ethic? Try International Law.” Journal of Religion. 1996: 359-382.

Glendon, Mary Ann. (2001). A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House.

Kelsay, John, and Sumner B. Twiss, eds. (1994). Religion and Human Rights. New York: Project on Religion and Human Rights.

Küng, Hans and Karl-Josef Kuschel, eds. (1993). A Global Ethic: The Declaration of the Parliament of the World’s Religions. New York: Continuum.

Lauren, Paul Gordon. (1998). The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press.

Little, David. (1993). “The Nature and Basis of Human Rights” in Gene Outka and John P. Reeder, eds., Prospects for a Common Morality. Princeton: Princeton University Press. 72-92.

Little, David and Sumner B. Twiss. (1978). Comparative Religious Ethics. New York: Harper and Row.

Morsink, Johannes. (1999). The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press.

Novak, Michael. (1999). “Human Dignity, Human Rights.” First Things. 97 (Nov. 1999): 39-42.

Rouner, Leroy S., ed. (1988). Human Rights and the World’s Religions. Boston University Studies in Philosophy and Religion, Volume 9. Notre Dame, Indiana: University of Notre Dame Press.

Scully, Gerald W. “Word for Word/‘Murder by the State.’” New York Times, December 14, 1997. "Week in Review", 7.

Traer, Robert. (1991). Faith in Human Rights. Washington: Georgetown University Press.

United Nations. (1993). The International Bill of Human Rights. New York: United Nations.

NOTES

1The Universal Declaration of Human Rights is widely available. I cite United Nations 1993.

2William P. George gives a very useful analysis of the relation of the “Global Ethic” undertaking to international law, with refer­ence to the implicit religious dimensions of international law, the “common heritage” concept, and “international law as a carrier of transcendental meaning” (George, 1996).

3Scholarship on human rights and the world’s religions has been expanding rap­idly in the last decade. For relatively earlier contributions see Rouner 1988 and Traer 1991.