The guiding question of this paper is “How can, if at all, the universality of human rights survive critical examinations within the prevailing multiculturalist frame of reference?” This paper ...examines the possibility conditions of critically reasoning for the universality of human rights. The discussions in this paper runs at two levels of analysis. At the conceptual level, a theoretical monist-pluralist frame of reference will be developed to reformulate the problematic of the universality of human rights in a form more compatible methodologically with multiculturalist approaches in the humanities, social sciences and current discourses of cultural studies. Demonstrating the weaknesses of the alternative solutions, the main hypothesis of this study suggests to refer to a reconstructed version of the “golden rule of reciprocal fairness.” At the practical level, this paper will set forth three “why”, “which”, and “how” questions regarding those principles which can bolster a universal reception of the human rights as fairness. این مقاله این پرسش اصلی را پی میگیرد که چگونه میتوان از جهانشمولی حقوق بشر در عالم مقال چندفرهنگگرایانهی روزگار مدرن متأخر و پسامدرن سخن گفت. با بررسی این پرسش، این مقاله شرایط و حدود امکان اندیشیدن نقادانه به حقوق بشر و جهانشمولی آن را میکاود. مباحث این مقاله در دو تراز روان است. در تراز نظری، با مقابل نشاندن رویکردهای مونیستی و پلورالیستی به حقوق بشر، کوشش شده است که مسألهی جهانشمولی حقوق بشر چنان از نو صورتبندی شود که در عالم مقال چندفرهنگگرایانه قابل بحث و بررسی باشد. در همین تراز، عناصر مقوم ایدهی حقوق بشر به مثابهی انصاف معرفی میشود. در تراز کاربست و عمل، مباحث این مقاله بر چرایی و چیستی و چگونگی روند و روالی تمرکز مییابد که میتواند به جایگزین شدن فهم بسته از حقوق بشر با فهمی گشوده و کثرتگرایانه از آن در قالب حقوق بشر به مثابهی انصاف بینجامد.
Gender equality and women’s rights are among the most discussed issues in the context of Islam. Any thorough analysis of the persistence of conservative patriarchal religious interpretations in ...Muslim communities should also consider social factors. The conservative appropriation of Islam is not only the result of theological factors but also a manifestation of a conservative and patriarchal habitus. This article draws attention to the vitality of empathy in establishing universal equal human dignity. It dwells on the idea of the universal innate nature of the child to offer some solutions to overcome the persistence of conservative religious interpretations and develop gender equality in the Muslim context. Also, the reformist views of the Jadids and Alash intellectuals, the Eurasian Muslim reformists of the early twentieth century, are analyzed as authentic historical and conceptual precedents to develop gender-egalitarian Islamic interpretations. Overall, this article establishes a connection between women’s rights in Islam, the universal innate nature of the child (and the universality of children’s right-friendly parenting and education that fosters empathy and critical thinking), and the intellectual legacy of the Jadids and Alash intellectuals, who wanted to transform the conservative and patriarchal habitus through educational reform, literary works, and a rationalistic, thematico-holistic approach to Islam.
Debates on the universality of human rights and cultural relativism seem to be eternal and will continue to exist as societal dynamics bring different views, concepts, and understandings of human ...rights and culture. However, it cannot be denied that modern international human rights law which is currently being referred to and adopted by the international community, still creates gaps in the protection of human rights. Meanwhile, the development of cultural relativism in the 20th century is quite successful in bridging the gap between the two and contributing positively to the implementation of international human rights law at the domestic level. Nonetheless, the cultural relativism approach presents critiques and challenges. By using various secondary resources, this paper begins with the concept of, debates between, and challenges of cultural relativism and universality of human rights. The paper indicates that the contribution of cultural relativism can be seen from building tolerance and protection of communal rights, the rights of marginal groups, and the optimization of domestic law when dealing with some competing’s rights. This is a good opportunity to reduce discriminatory actions against marginalized groups for maintaining tolerance and harmony in a plural society. The effectiveness of the application of "margin appreciation" in Europe should be the best practice to actualize "Asian values" or "African values" in formulating the concepts of "public morality" or "public order" clearly and precisely. The cultural relativism approach may not be used by a government to justify any human rights violation. Both of these are important considerations for Indonesia because of its ambiguous attitude in placing these two theories appropriately and purposefully.
This paper analyzes Robert Alexy's explicative-existential justification of human rights. According to the author, there are two problems connected with this concept. It cannot establish human rights ...universally and explain why we should accept them. In the paper, these questions are addressed in the context of the Is-Ought problem. Alexy's approach is compared with other theories that strive for human rights justification (basic needs approach, capability approach, and the foundationalism of Alan Gewirth). The author finds that in this respect all other theories have similar disadvantages. The inability to adequately elucidate the transition from Is to Ought is a general problem in moral philosophy, and therefore cannot diminish the position of Alexy's justification in this context. Although his approach does not really meet certain absolute requirements for good justification, if we evaluate it in relation to other available alternatives, we have to acknowledge its significant place in the philosophy of human rights. Even with Alexy's theory, however, the problem persists that it establishes rights of human persons rather than rights of human beings. It is therefore not able to fulfill some of its universalist aspirations.
Drawing on the contested legacy of Montesquieu in The Spirit of the Laws, this essay questions the efficacy of state-centric legality in the enforcement of human rights, and proposes an alternative ...approach of cultural transformation and political mobilization. The author begins by exploring whether Montesquieu's thought may have inspired European powers to seek to impose his model of the nation-state and its positive laws through global colonial projects. Second, the author discusses the structural inadequacy of the current treaty-based state-centric enforcement paradigm while highlighting the viability of a universally realistic alternative of cultural transformation and political mobilization for the implementation of consensus-based human rights norms. Third, the author explores his proposed people-centered alternative to the state-centric enforcement model for human rights. This paradigm shift is necessary because the current legalistic approach has totally failed in providing any protection of human rights for the vast majority of humanity around the world.
The article is devoted to the study of the factors determining the boundaries or limits of legal integration in the modern globalizing world. All historical experience shows that the boundaries of ...legal integration have limits beyond which it loses its rationality and necessity. Legal integration is both a condition and a consequence of globalization processes. Capital is cosmopolitan, rational and requires free promotion of goods, services and labor, and law in modern national legal systems reveals both rational qualities and irrational characteristics connected with socio-cultural traditions and peculiarities. The author outlines the following factors that determine the limits of legal integration, highlighted by the processes of globalization: the political factor connected with the state (its essence, organization and regime of power). The fact is that globalization, primarily economic, is an objective process, it is not formed according to the plan, but the essence, form, functions of the state are the subjective choice of a nation, the ruling elite, that chooses the state's course towards harmonization and approximation of national legislations, or to closeness, protecting their legal identity. And this dictates the limits of legal integration; the social factor that determines the quality and maturity of civil society, the level of its civilizational development, as well as the system of protecting the rights of the individual; and, finally, the legal factor connected with deep legal traditions, beginning with the peculiarities of legal technique and ending with the peculiarities of legal consciousness and attitude to the law. As a result of the study, the author comes to the following conclusion: socio-cultural characteristics in all spheres of state and public life (political, economic, social) accumulate national and legal differences in law, defining its specificity and dissimilarity, which impedes modern processes of rapprochement and unification by establishing it limits. In this situation it is necessary to study and evaluate it objectively, carefully, in the interests of ensuring both nationally-special and integrative-legal principles in the general historical process of legal development.
As part of the special issue on “The United Nations at Seventy-Five: Looking Back to Look Forward,” this essay looks at the UN's human rights efforts through the lens of the ethics of survival, ...normative ethics, the ethics of protection, institutional ethics, and the ethics of the human predicament in the face of the Sustainable Development Goals (SDGs). The essay finds that while the consecration of the right to life has made a contribution to the ethics of human survival, the overall impact of the human rights program has been marginal. Normative ethics shows the UN performing magisterially in drafting and adopting a body of international norms for the universal protection of human rights. However, when it comes to the ethics of protection, the UN performs poorly because of the numerous oppressive governments that control the world body. On the ethics of the human predicament, this essay finds that SDG 16, which is devoted to development, peace, justice, and strong institutions, has so far had little practical impact. Gross violations of human rights continue to take place in numerous parts of the world.
In this book, William Talbott builds on the work of J.S. Mill, John Rawls, and Jürgen Habermas to develop a new equilibrium model for moral reasoning, in which moral reasoning is primarily bottom-up, ...from judgments about particular actual and hypothetical cases to norms or principles that best explain the particular judgments. Employing the equilibrium model, Talbott builds on the work of John Rawls, Amartya Sen, and Henry Shue to explain how, over the course of history, human beings have learned to adopt a distinctively moral standpoint from which it is possible to make reliable, though not infallible, universal judgments of right and wrong. He explains how this distinctively moral standpoint has led to the discovery of the moral importance of nine basic human rights. The book is constructed around pivotal examples. Talbott uses the example of Bartolomé de Las Casas and his opposition to the Spanish colonists’ treatment of the American natives in the 16th century to illustrate the possibility of attaining a universal moral standpoint. He uses the example of the development of women's rights as a microcosm of the development of basic human rights. He argues that assertions of basic human rights are almost always a response to oppressive norms justified by self-reinforcing paternalism. Talbott uses examples from Marxist dictatorships to show the importance of basic human rights in solving what he refers to as the reliable feedback problem and the appropriate responsiveness problem for governments. He uses Sen’s research on famines and psychological research on the ultimatum game and other related games to explain how individual fairness judgments from the moral standpoint make rights-respecting democracies self-improving self-regulating systems that become more just over time. Undoubtedly, the most controversial issue raised by the claim of universal human rights is the issue of moral relativism. How can the advocate of universal rights avoid being a moral imperialist? In this book, Talbott shows how to defend basic individual rights from a universal moral point of view that is not imperialistic. Talbott avoids moral imperialism, first, by insisting that all of us, himself included, have moral blindspots and that we usually depend on others to help us to identify those blindspots; second, by emphasizing the importance of avoiding moral paternalism. In the book, Talbott develops a new consequentialist account of the importance of the basic human rights, which he employs to augment the more familiar nonconsequentialist accounts.
The lecture 'The Spirit of Laws is not Universal: Alternatives to the Enforcement Paradigm for Human Rights' by Professor Abdullahi An-Na'Im goes to the heart of the human rights predicament. ...An-Na'Im offers a profound critique of the inadequacy of the current treaty-based state-centric enforcement paradigm and suggest a people-centered alternative, to human rights protection. The alternative proposed remains rather indistinct and raises several questions addressed in this commentary. Human rights enforcement is a much more complex interplay of transnational legal processes than portrayed. It is argued that international human rights law is gradually evolving towards a more complex, multifarious landscape than that of the established, one-dimensional state-centered paradigm. Moreover, agreeing with the need for a paradigm shift away from the state as the conventional duty-bearer it is suggested that this should go beyond political power to include economic power.
The universality of (at least some of) moral norms was being challenged by many thinkers, philosophers, religious reformists, and even the political actors. Assuming that universality of the ...contemporary human rights as a morally justified as well as consistent system, the main task of this article is to appraise Wittgenstein`s ideas, once with regard to a Kantian contractual reading of human rights and then with an “in using” language approach, of course, not to question Universality of Human rights, rather to support a kind of universality. Finally, we shall explore the potentiality of Wittgenstein‘s thoughts to entertain a rather soft version of universality of human rights by revisiting his Tractatus and proposing the idea of “meaning in use” in his Philosophical Investigations
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