The Relative Universality of Human Rights
Jack Donnelly
Human Rights Quarterly, Volume 29, Number 2, May 2007, pp. 281-306
(Article)
Published by The Johns Hopkins University Press
DOI: 10.1353/hrq.2007.0016
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HUMAN RIGHTS QUARTERLY
Human Rights Quarterly 29 (2007) 281–306 © 2007 by The Johns Hopkins University Press
The Relative Universality of
Human Rights
Jack Donnelly*
Abstract
Human rights as an international political project are closely tied to claims
of universality. Attacks on the universality of human rights, however, are
also widespread. And some versions of universalism are indeed theoretically
indefensible, politically pernicious, or both. This essay explores the
senses in which human rights can (and cannot) be said to be universal, the
senses in which they are (and are not) relative, and argues for the “relative
universality” of internationally recognized human rights.
Introduction
This essay explores several different senses of “universal” human rights. I also
consider, somewhat more briefly, several senses in which it might be held
that human rights are “relative.” I defend what I call functional, international
legal, and overlapping consensus universality. But I argue that what I call
anthropological and ontological universality are empirically, philosophically,
or politically indefensible. I also emphasize that universal human rights,
properly understood, leave considerable space for national, regional, cultural
particularity and other forms of diversity and relativity.
* 		Jack Donnelly is the Andrew Mellon Professor at the Graduate School of International Studies,
University of Denver.
				 The tone of this essay owes much to a long conversation with Daniel Bell and Joseph
Chan in Japan nearly a decade ago. I thank them for the sort of deep engagement of fundamental
differences that represents one of the best and most exhilarating features of intellectual
life. I also thank audiences at Yonsei University, Ritsumeikan University, and Occidental
College, where earlier versions of this paper were presented, and more than two decades
of students who have constantly pushed me to clarify, sharpen, and properly modulate my
arguments.
Vol. 29282 HUMAN RIGHTS QUARTERLY
Cultural relativism has probably been the most discussed issue in the
theory of human rights. Certainly that is true in this journal. I have been an
active participant in these debates for a quarter century, arguing for a form of
universalism that also allows substantial space for important (second order)
claims of relativism.1
I continue to insist on what I call the “relative universality”
of human rights. Here, however, I give somewhat more emphasis to
the limits of the universal.
In the 1980s, when vicious dictators regularly appealed to culture to
justify their depredations, a heavy, perhaps even over-heavy, emphasis on
universalism seemed not merely appropriate but essential. Today, human
rights are backed by the world’s preponderant political, economic, and
cultural powers and have become ideologically hegemonic in international
society. Not only do few states today directly challenge international human
rights, a surprisingly small number even seriously contend that large
portions of the Universal Declaration do not apply to them. An account that
gives somewhat greater emphasis to the limits of universalism thus seems
called for, especially now that American foreign policy regularly appeals
to “universal” values in the pursuit of a global ideological war that flouts
international legal norms.
1.	Conceptual and Substantive Universality
We can begin by distinguishing the conceptual universality implied by the
very idea of human rights from substantive universality, the universality of
a particular conception or list of human rights. Human rights, following the
manifest literal sense of the term, are ordinarily understood to be the rights
that one has simply because one is human. As such, they are equal rights,
because we either are or are not human beings, equally. Human rights are
also inalienable rights, because being or not being human usually is seen
as an inalterable fact of nature, not something that is either earned or can
		 1.	 Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western
Human Rights Conceptions, 76 Am. Pol. Science Rev. 303–16 (1982); Jack Donnelly,
Cultural Relativism and Universal Human Rights, 6 Hum. Rts. Q. 400 (1984); Jack Donnelly,
Universal Human Rights in Theory and Practice (Ithaca: Cornell Univ. Press, 1989);
Jack Donnelly, Traditional Values and Universal Human Rights: Caste in India, in Asian
Perspectives on Human Rights (Claude E. Welch, Jr. & Virginia A. Leary 1990); Jack Donnelly,
Post-Cold War Reflections on International Human Rights, 8 Ethics & Int’l Aff. 97
(1994); Jack Donnelly, Conversing with Straw Men While Ignoring Dictators: A Reply to
Roger Ames, 11 Ethics & Int’l Aff. 207 (1997); Jack Donnelly, Human Rights and Asian
Values: A Defense of “Western” Universalism, in The East Asian Challenge for Human Rights
(Joanne R. Bauer & Daniel A. Bell eds. 1999); Jack Donnelly, Universal Human Rights in
Theory and Practice (2d ed. Ithaca: Cornell Univ. Press, 2003); Rhoda E. Howard & Jack
Donnelly, Human Dignity, Human Rights and Political Regimes, 80 Am. Pol. Science Rev.
801 (1986).
2007 The Relative Universality of Human Rights 283
be lost. Human rights are thus “universal” rights in the sense that they are
held “universally” by all human beings. Conceptual universality is in effect
just another way of saying that human rights are, by definition, equal and
inalienable.
Conceptual universality, however, establishes only that if there are any
such rights, they are held equally/universally by all. It does not show that
there are any such rights. Conceptually universal human rights may be so
few in number or specified at such a high level of abstraction that they are
of little practical consequence. And conceptual universality says nothing
about the central question in most contemporary discussions of universality,
namely, whether the rights recognized in the Universal Declaration of
Human Rights and the International Human Rights Covenants are universal.
This is a substantive question. It will be our focus here.
2. 	 Universal Possession Not Universal Enforcement
Defensible claims of universality, whether conceptual or substantive, are
about the rights that we have as human beings. Whether everyone, or even
anyone, enjoys these rights is another matter. In far too many countries today
the state not only actively refuses to implement, but grossly and systematically
violates, most internationally recognized human rights. And in all countries,
significant violations of at least some human rights occur daily, although
which rights are violated, and with what severity, varies dramatically.
The global human rights regime relies on national implementation of
internationally recognized human rights. Norm creation has been internationalized.
Enforcement of authoritative international human rights norms,
however, is left almost entirely to sovereign states. The few and limited
exceptions—most notably genocide, crimes against humanity, certain war
crimes, and perhaps torture and arbitrary execution—only underscore the
almost complete sovereign authority of states to implement human rights in
their territories as they see fit.
Except in the European regional regime, supranational supervisory bodies
are largely restricted to monitoring how states implement their international
human rights obligations. Transnational human rights NGOs and other
national and international advocates engage in largely persuasive activity,
aimed at changing the human rights practices of states. Foreign states are
free to raise human rights violations as an issue of concern but have no
authority to implement or enforce human rights within another state’s sovereign
jurisdiction. The implementation and enforcement of universally held
human rights thus is extremely relative, largely a function of where one has
the (good or bad) fortune to live.
Vol. 29284 HUMAN RIGHTS QUARTERLY
3. 	 Historical or Anthropological Universality2
Human rights are often held to be universal in the sense that most societies
and cultures have practiced human rights throughout most of their history.
“All societies cross-culturally and historically manifest conceptions of human
rights.”3
This has generated a large body of literature on so-called non-western
conceptions of human rights. “In almost all contemporary Arab literature on
this subject [human rights], we find a listing of the basic rights established
by modern conventions and declarations, and then a serious attempt to trace
them back to Koranic texts.”4
“It is not often remembered that traditional
African societies supported and practiced human rights.”5
“Protection of human
rights is an integral part” of the traditions of Asian societies.6
“All the
countries [of the Asian region] would agree that ‘human rights’ as a concept
existed in their tradition.”7
Even the Hindu caste system has been described
as a “traditional, multidimensional view[s] of human rights.”8
Such claims to historical or anthropological universality confuse values
such as justice, fairness, and humanity need with practices that aim to realize
those values. Rights—entitlements that ground claims with a special
force—are a particular kind of social practice. Human rights—equal and
inalienable entitlements of all individuals that may be exercised against
the state and society—are a distinctive way to seek to realize social values
such as justice and human flourishing. There may be considerable historical/anthropological
universality of values across time and culture. No
society, civilization, or culture prior to the seventeenth century, however,
		 2.	 This section draws directly from and summarizes Donnelly, Universal Human Rights in
Theory and Practice (2d ed.), supra note 1, at ch. 5.
		 3.	 Adamantia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited
Applicability, in Human Rights: Cultural and Ideological Perspectives 1, 15 (Adamantia
Pollis & Peter Schwab eds., 1979); compare Makau Mutua, The Banjul Charter and
the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 Virgina J.
Int’l L. 339, at 358 (1995); David R. Penna & Patricia J. Campbell, Human Rights and
Culture: Beyond Universality and Relativism, 19 Third World Q. 7, at 21 (1998).
		 4.	 Fouad Zakaria, Human Rights in the Arab World: The Islamic Context, in Philosophical
Foundations of Human Rights 227, 228 (UNESCO ed., 1986).
		 5.	 Dunstan M. Wai, Human Rights in Sub-Saharan Africa, in Human Rights: Cultural and
Ideological Perspectives 115, 116 (Adamantia Pollis & Peter Schwab eds., 1979).
		 6.	 Ibrahim Anwar, Special Address presented at the JUST International Conference: Rethinking
Human Rights (7 Dec 1994) in Human Wrongs 277 (1994).
		 7.	 Radhika Coomaraswamy, Human Rights Research and Education: An Asian Perspective,
in International Congress on the Teaching of Human Rights: Working Documents and Recommendations
224 (UNESCO ed., 1980).
		 8.	 Ralph Buultjens, Human Rights in Indian Political Culture, in The Moral Imperatives of
Human Rights: A World Survey 109, 113 (Kenneth W. Thompson ed., 1980); compare
Yougindra Khushalani, Human Rights in Asia and Africa, 4 Hum. Rts. L. J. 403, 408
(1983); Max L. Stackhouse, Creeds, Society, and Human Rights: A Study in Three Cultures
(1984).
2007 The Relative Universality of Human Rights 285
had a widely endorsed practice, or even vision, of equal and inalienable
individual human rights.9
For example, Dunstan Wai argues that traditional African beliefs and
institutions “sustained the ‘view that certain rights should be upheld against
alleged necessities of state.’”10
This confuses human rights with limited gov-
ernment.11
Government has been limited on a variety of grounds other than
human rights, including divine commandment, legal rights, and extralegal
checks such as a balance of power or the threat of popular revolt.
“[T]he concept of human rights concerns the relationship between the
individual and the state; it involves the status, claims, and duties of the former
in the jurisdiction of the latter. As such, it is a subject as old as politics.”12
Not all political relationships, however, are governed by, related to, or even
consistent with, human rights. What the state owes those it rules is indeed
a perennial question of politics. Human rights provide one answer. Other
answers include divine right monarchy, the dictatorship of the proletariat,
the principle of utility, aristocracy, theocracy, and democracy.
“[D]ifferent civilizations or societies have different conceptions of human
well-being. Hence, they have a different attitude toward human rights
issues.”13
Even this is misleading. Other societies may have (similar or different)
attitudes toward issues that we consider today to be matters of human
rights. But without a widely understood concept of human rights endorsed
or advocated by some important segment of that society, it is hard to imagine
that they could have any attitude toward human rights. And it is precisely
the idea of equal and inalienable rights that one has simply because one
is a human being that was missing not only in traditional Asian, African,
Islamic, but in traditional Western, societies as well.
		 9.	 For detailed support for this claim, see Donnelly, Universal Human Rights in Theory and
Practice (2d ed.), supra note 1, at ch. 5; Rhoda E. Howard, Human Rights in Commonwealth
Africa, at ch. 2(1986).
	 10.	 Wai, supra note 5, at 116.
	 11.	 Compare Asmarom Legesse, Human Rights in African Political Culture, in The Moral
Imperatives of Human Rights: A World Survey 123, 125–27 (Kenneth W. Thompson ed.,
1980); Nana Kusi Appea Busia, Jr., The Status of Human Rights in Pre-Colonial Africa:
Implications for Contemporary Practices, in Africa, Human Rights, and the Global System:
The Political Economy of Human Rights in a Changing World 225, 231 (Eileen McCarthyArnolds,
David R. Penna, & Debra Joy Cruz Sobrepeña eds., 1994); for non-African
examples, Abdul Aziz Said, Precept and Practice of Human Rights in Islam, 1 Universal
Hum. Rts. 63, 65 (1979); Raul Manglapus, Human Rights are Not a Western Discovery,
4 Worldview (1978); Adamantia Pollis & Peter Schwab, Introduction, in Human Rights:
Cultural and Ideological Perspectives xiii, xiv (Adamantia Pollis & Peter Schwab eds.,
1979).
	 12.	 Hung-Chao Tai, Human Rights in Taiwan: Convergence of Two Political Cultures?, in
Human Rights in East Asia: A Cultural Perspective 77, 79 (James C. Hsiung ed., 1985).
	 13.	 Manwoo Lee, North Korea and the Western Notion of Human Rights, in Human Rights
in East Asia: A Cultural Perspective 129, 131 (James C. Hsiung ed., 1985).
Vol. 29286 HUMAN RIGHTS QUARTERLY
The ancient Greeks notoriously distinguished between Hellenes and
barbarians, practiced slavery, denied basic rights to foreigners, and (by our
standards) severely restricted the rights of even free adult (male) citizens.
The idea that all human beings had equal and inalienable basic rights was
equally foreign to Athens and Sparta, Plato and Aristotle, Homer, Hesiod,
Aeschylus, Euripides, Aristophanes, and Thucydides. Much the same is true
of ancient Rome, both as a republic and as an empire. In medieval Europe,
where the spiritual egalitarianism and universality of Christianity expressed
itself in deeply inegalitarian politics, the idea of equal legal and political rights
for all human beings, had it been seriously contemplated, would have been
seen as a moral abomination, a horrid transgression against God’s order.
In the “pre-modern” world, both Western and non-Western alike, the
duty of rulers to further the common good arose not from the rights (entitlements)
of all human beings, or even all subjects, but from divine commandment,
natural law, tradition, or contingent political arrangements. The people
could legitimately expect to benefit from the obligations of their rulers to
rule justly. Neither in theory nor in practice, though, did they have human
rights that could be exercised against unjust rulers. The reigning ideas were
natural law and natural right (in the sense of righteousness or rectitude) not
natural or human rights (in the sense of equal and inalienable individual
entitlements).
Many arguments of anthropological universality are inspired by an
admirable desire to show cultural sensitivity and respect. In fact they do no
such thing. Rather, they misunderstand and misrepresent the foundations
and functioning of the societies in question by anachronistically imposing
an alien analytical framework.
I am not claiming that Islam, Confucianism, or traditional African ideas
cannot support internationally recognized human rights. Quite the contrary, I
argue below that in practice today they increasingly do support human rights.
My point is simply that Islamic, Confucian, and African societies did not in
fact develop significant bodies of human rights ideas or practices prior to
the twentieth century. The next section offers an explanation for this fact.
4. 	Functional Universality
Natural or human rights ideas first developed in the modern West. A fullfledged
natural rights theory is evident in John Locke’s Second Treatise of
Government, published in 1689 in support of the so-called Glorious Revolution.
The American and French Revolutions first used such ideas to construct
new political orders.14
	 14.	 John Locke, Two Treatise ON Government (London, W. Wilson 1821) (1689).
2007 The Relative Universality of Human Rights 287
The social-structural “modernity” of these ideas and practices, however,
not their cultural “Westernness,” deserves emphasis.15
Human rights ideas
and practices arose not from any deep Western cultural roots but from the
social, economic, and political transformations of modernity. They thus have
relevance wherever those transformations have occurred, irrespective of the
pre-existing culture of the place.
Nothing in classical or medieval culture specially predisposed Europeans
to develop human rights ideas. Even early modern Europe, when viewed
without the benefit of hindsight, seemed a particularly unconducive cultural
milieu for human rights. No widely endorsed reading of Christian scriptures
supported the idea of a broad set of equal and inalienable individual rights
held by all Christians, let alone all human beings. Violent, often brutal, internecine
and international religious warfare was the norm. The divine right
of kings was the reigning orthodoxy.
Nonetheless, in early modern Europe, ever more powerful and penetrating
(capitalist) markets and (sovereign, bureaucratic) states disrupted,
destroyed, or radically transformed “traditional” communities and their
systems of mutual support and obligation. Rapidly expanding numbers of
(relatively) separate families and individuals were thus left to face a growing
range of increasingly unbuffered economic and political threats to their
interests and dignity. New “standard threats” to human dignity provoked
new remedial responses.16
The absolutist state offered a society organized around a monarchist hierarchy
justified by a state religion.The newly emergent bourgeoisie envisioned
a society in which the claims of property balanced those of birth. And as
“modernization” progressed, an ever widening range of dispossessed groups
advanced claims for relief from injustices and disabilities. Such demands
took many forms, including appeals to scripture, church, morality, tradition,
justice, natural law, order, social utility, and national strength. Claims of
equal and inalienable natural/human rights, however, became increasingly
central. And the successes of some groups opened political space for others
to advance similar claims for their equal rights.
The spread of modern markets and states has globalized the same threats
to human dignity initially experienced in Europe. Human rights represent
the most effective response yet devised to a wide range of standard threats
to human dignity that market economies and bureaucratic states have made
	 15.	 See Donnelly, Universal Human Rights in Theory and Practice (2d ed.), supra note 1, at ch.
4; compare Michael Goodhart, Origins and Universality in the Human Rights Debate:
Cultural Essentialism and the Challenge of Globalization, 25 Hum. Rts. Q. 935 (2003).
Arvind Sharma, Are Human Rights Western in Origin? A Contribution to the Dialogue of
Civilizations(2006) extensively and critically explores the wide variety of senses in which
human rights have been held to be “Western.”
	 16.	 Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 29–34 (1980).
Vol. 29288 HUMAN RIGHTS QUARTERLY
nearly universal across the globe. Human rights today remain the only proven
effective means to assure human dignity in societies dominated by markets
and states. Although historically contingent and relative, this functional
universality fully merits the label universal—for us, today.
Arguments that another state, society, or culture has developed plausible
and effective alternative mechanisms for protecting or realizing human dignity
in the contemporary world deserve serious attention. Today, however,
such claims, when not advanced by repressive elites and their supporters,
usually refer to an allegedly possible world that no one yet has had the
good fortune to experience.
The functional universality of human rights depends on human rights
providing attractive remedies for some of the most pressing systemic threats
to human dignity. Human rights today do precisely that for a growing number
of people of all cultures in all regions. Whatever our other problems, we
all must deal with market economies and bureaucratic states. Whatever our
other religious, moral, legal, and political resources, we all need equal and
inalienable universal human rights to protect us from those threats.
5.	 International Legal Universality
If this argument is even close to correct, we ought to find widespread active
endorsement of internationally recognized human rights. Such endorsement
is evident in international human rights law, giving rise to what I will call
international legal universality. The foundational international legal instrument
is the Universal Declaration of Human Rights. The 1993 World Human
Rights Conference, in the first operative paragraph of the Vienna Declaration
and Programme of Action, asserted that “the universal nature of these rights
and freedoms is beyond question.”
Virtually all states accept the authority of the Universal Declaration of
Human Rights. For the purposes of international relations, human rights
today means, roughly, the rights in the Universal Declaration. Those rights
have been further elaborated in a series of widely ratified treaties. As of 6
December 2006, the six core international human rights treaties (on civil and
political rights, economic, social, and cultural rights, racial discrimination,
women, torture, and children) had an average 168 parties, which represents
a truly impressive 86 percent ratification rate.17
Although this international legal universality operates in significant measure
at an elite interstate level, it has come to penetrate much more deeply.
Movements for social justice and of political opposition have increasingly
	 17.	 Ratification data is available at http://www.ohchr.org/english/countries/ratification/index.
htm and http://www.ohchr.org/english/bodies/docs/status.pdf.
2007 The Relative Universality of Human Rights 289
adopted the language of human rights. Growing numbers of new international
issues, ranging from migration, to global trade and finance, to access
to pharmaceuticals are being framed as issues of human rights.18
States that systematically violate internationally recognized human
rights do not lose their legitimacy in international law. Except in cases of
genocide, sovereignty still ultimately trumps human rights. But protecting
internationally recognized human rights is increasingly seen as a precondition
of full political legitimacy. Consider Robert Mugabe’s Zimbabwe. Even
China has adopted the language (although not too much of the practice)
of internationally recognized human rights, seemingly as an inescapable
precondition to its full recognition as a great power.
International legal universality, like functional universality, is contingent
and relative. It depends on states deciding to treat the Universal Declaration
and the Covenants as authoritative. Tomorrow, they may no longer accept
or give as much weight to human rights. Today, however, they clearly have
chosen, and continue to choose, human rights over competing conceptions
of national and international political legitimacy.
6.	Overlapping Consensus Universality
International legal universality is incompletely but significantly replicated at
the level of moral or political theory. John Rawls distinguishes “comprehensive
religious, philosophical, or moral doctrines,” such as Islam, Kantianism,
Confucianism, and Marxism, from “political conceptions of justice,” which
address only the political structure of society, defined (as far as possible) independent
of any particular comprehensive doctrine.19
Adherents of different
comprehensive doctrines may be able to reach an “overlapping consensus”
on a political conception of justice.20
Such a consensus is overlapping; partial rather than complete. It is political
rather than moral or religious. Rawls developed the notion to understand
how “there can be a stable and just society whose free and equal citizens are
deeply divided by conflicting and even incommensurable religious, philosophical,
and moral doctrines.”21
The idea, however, has obvious extensions
to a culturally and politically diverse international society.22
	 18.	 Alison Brysk, Human Rights and Private Wrongs: Constructing Global Civil Society (2005).
	 19.	 John Rawls, The Law of Peoples xliii–xlv, 11–15, 174–76 (1999); John Rawls, Political Liberalism
31–33, 172–73 (1993).
	 20.	 Rawls, Political Liberalism, supra note 19, at 133–72, 385–96.
	 21.	 Id. at 133.
	 22.	 Rawls, The Law of Peoples, supra note 19. Rawls’ own extension involves both a wider
political conception of justice and a narrower list of internationally recognized human
rights. The account offered here is Rawlsian in inspiration but not that of John Rawls.
Vol. 29290 HUMAN RIGHTS QUARTERLY
Human rights can be grounded in a variety of comprehensive doctrines.
For example, they can be seen as encoded in the natural law, called for by
divine commandment, political means to further human good or utility, or
institutions to produce virtuous citizens. Over the past few decades more
and more adherents of a growing range of comprehensive doctrines in all
regions of the world have come to endorse human rights—(but only) as a
political conception of justice.23
It is important to remember that virtually all Western religious and
philosophical doctrines through most of their history have either rejected
or ignored human rights. Today, however, most adherents of most Western
comprehensive doctrines endorse human rights. And if the medieval Christian
world of crusades, serfdom, and hereditary aristocracy could become today’s
world of liberal and social democratic welfare states, it is hard to think of
a place where a similar transformation is inconceivable.
Consider claims that “Asian values” are incompatible with internationally
recognized human rights.24
Asian values—like Western values, African
values, and most other sets of values—can be, and have been, understood
as incompatible with human rights. But they also can be and have been
interpreted to support human rights, as they regularly are today in Japan,
Taiwan, and South Korea. And political developments in a growing number
of Asian countries suggest that ordinary people and even governments are
increasingly viewing human rights as a contemporary political expression of
their deepest ethical, cultural, and political values and aspirations.25
	 23.	 Heiner Bielefeldt, “Western” versus “Islamic” Human Rights Conceptions?: A Critique of
Cultural Essentialism in the Discussion on Human Rights, 28 Pol. Theory 90 (2000) makes
a similar argument for overlapping consensus universality, illustrated by a discussion
of recent trends in Islamic thinking on human rights. See also Ashwani Kumar Peetush,
Cultural Diversity, Non-Western Communities, and Human Rights, 34 Philosophical Forum
1 (2003), which deals with South Asian views. Vincanne Adams, Suffering the Winds of
Lhasa: Politicized Bodies, Human Rights, Cultural Difference, and Humanism in Tibet, 12
Med. Anthropology Q. 74 (1998) presents an account of the suffering of Tibetan women
activists that stresses their instrumental adoption of human rights ideas to grapple with
injustices and suffering that they understand in very different terms. For a looser account
of cross-cultural consensus, see Human Rights in Cross-Cultural Perspectives: A Quest for
Consensus (Abdullahi Ahmed An-Na’im ed. 1992).
	 24.	 Anthony J. Langlois, The Politics of Justice and Human Rights (2001) offers perhaps the
best overview. Human Rights and Asian Values: Contesting National Identities and Cultural
Representations in Asia (Michael Jacobsen & Ole Bruun eds., 2000); The East Asian Challenge
for Human Rights, supra note 1, are good collections of essays.
	 25.	 “Confucians can make sense of rights out of the resources of their own tradition.” May
Sim, A Confucian Approach to Human Rights, 21 Hist. Phil. Q. 337, 338 (2004). Compare
Joseph Chan, Moral Autonomy, Civil Liberties, and Confucianism, 52 Phil. East & West
281 (2002); Joseph Chan, Confucian Perspective on Human Rights for Contemporary
China, in The East Asian Challenge for Human Rights, supra note 1. On Confucianism and
modern social and political practices, see Confucianism for the Modern World (Daniel A.
Bell & Hahm Chaibong eds., 2003).
2007 The Relative Universality of Human Rights 291
No culture or comprehensive doctrine is “by nature,” or in any given or
fixed way, either compatible or incompatible with human rights. Here we
circle back to the insight underlying (misformulated) arguments of anthropological
universality. Whatever their past practice, nothing in indigenous
African, Asian, or American cultures prevents them from endorsing human
rights now. Cultures are immensely malleable, as are the political expressions
of comprehensive doctrines. It is an empirical question whether (any, some,
or most) members of a culture or exponents of a comprehensive doctrine
support human rights as a political conception of justice.
All major civilizations have for long periods treated a significant portion of
the human race as “outsiders” not entitled to guarantees that could be taken
for granted by “insiders.” Few areas of the globe, for example, have never
practiced and widely justified human bondage. All literate civilizations have
for most of their histories assigned social roles, rights, and duties primarily
on the basis of ascriptive characteristics such as birth, age, and gender.
Today, however, the moral equality of all human beings is strongly
endorsed by most leading comprehensive doctrines in all regions of the
world. This convergence, both within and between civilizations, provides the
foundation for a convergence on the rights of the Universal Declaration. In
principle, a great variety of social practices other than human rights might
provide the basis for realizing foundational egalitarian values. In practice
human rights are rapidly becoming the preferred option. I will call this
overlapping consensus universality.
7.	 Voluntary or Coerced Consensus?
Is the transnational consensus underlying international legal and overlapping
consensus universality more voluntary or coerced? The influence of the
United States and Western Europe should not be underestimated. Example,
however, has been more powerful than advocacy and coercion has typically
played less of a role than positive inducements such as closer political or
economic relations or full participation in international society. Human rights
dominate political discussions less because of pressure from materially or
culturally dominant powers than because they respond to some of the most
important social and political aspirations of individuals, families, and groups
in most countries of the world.
States may be particularly vulnerable to external pressure and thus
tempted or even compelled to offer purely formal endorsements of international
norms advocated by leading powers.26
The assent of most societies and
	 26.	 Even that seems to me not obviously correct. I read hypocrisy more as evidence of the
substantive attractions of hypocritically endorsed norms.
Vol. 29292 HUMAN RIGHTS QUARTERLY
individuals, however, is largely voluntary. The consensus on the Universal
Declaration, it seems to me, principally reflects its cross-cultural substantive
attractions. People, when given a chance, usually (in the contemporary world)
choose human rights, irrespective of region, religion, or culture.
Few “ordinary” citizens in any country have a particularly sophisticated
sense of human rights. They respond instead to the general idea that they and
their fellow citizens are entitled to equal treatment and certain basic goods,
services, protections, and opportunities. I am in effect suggesting that the
Universal Declaration presents a reasonable first approximation of the list
that they would come up with, largely irrespective of culture, after considerable
reflection. More precisely, there is little in the Universal Declaration
that they would not (or could not be persuaded to) put there, although we
might readily imagine a global constitutional convention today coming up
with a somewhat different list.
The transnational consensus on the Universal Declaration arises above
all from the largely voluntary decisions of people, states, and other political
actors that human rights are essential to protecting their visions of a life of
dignity. Therefore, we should talk more of the relative universality of human
rights, rather than their relative universality.27
8.	Ontological Universality
Overlapping consensus implies that human rights can, and in the contemporary
world do, have multiple and diverse “foundations.” A single transhistorical
foundation would provide what I will call ontological universality.28
	 27.	 Laura Hebert in a private communication pointed out that I previously described my
views as weak relativist or strong (but not radical) universalist, but that in an earlier
version of this essay I used the label weak universalist. The careful reader will note that
here I have avoided such formulations in favor of a notion of relative universality that is
open to differing emphases. This reflects my growing appreciation of the advantages of
approaching the continuum between relativism and universalism less as an ideal type
account of all possible positions and more in terms of the spectrum of views that happen
to be prevalent among actively engaged participants in the debate at a particular
time and place.
				 The actual spectrum of views actively engaged at any given time and place is likely
to cover only a portion of the ideal type spectrum. My arguments have always been
formulated primarily, although implicitly, with respect to the former. Over the past
decade, much of the relativist end of the Cold War era spectrum has disappeared from
mainstream discussions. Therefore, views such as my own that once appeared near the
edge of the universalist end of the spectrum now appear more moderately universalist. I
must also admit, though, that given this new political context I have intentionally given
greater emphasis to the space available for diverse implementations of universal human
rights norms. See Donnelly, Human Rights and Asian Values, supra note 1; Section 13,
14 below.
	 28.	 For a recent attempt to defend ontological universality, see William J. Talbott, Which
Rights Should Be Universal? 3–4 (2005).
2007 The Relative Universality of Human Rights 293
Although a single moral code may indeed be objectively correct and valid at
all times in all places, at least three problems make ontological universality
implausible and politically unappealing.
First, no matter how strenuously adherents of a particular philosophy
or religion insist that (their) values are objectively valid, they are unable to
persuade adherents of other religions or philosophies. This failure to agree
leaves us in pretty much the same position as if there were no objective
values at all. We are thrown back on arguments of functional, international
legal, and overlapping consensus universality (understood now, perhaps, as
imperfect reflections of a deeper ontological universality).
Second, all prominent comprehensive doctrines have for large parts of
their history ignored or actively denied human rights. It is improbable (although
conceivable) that an objectively correct doctrine has been interpreted
incorrectly so widely. Thus it is unlikely that human rights in general, and
the particular list in the Universal Declaration, are ontologically universal.
At best, we might find that an ontologically universal comprehensive doctrine
has recently and contingently endorsed human rights as a political
conception of justice.
Third, the ontological universality of human rights, coupled with the
absence of anthropological universality, implies that virtually all moral and
religious theories through most of their histories have been objectively false
or immoral. This may indeed be correct. But before we embrace such a
radical idea, I think we need much stronger arguments than are currently
available to support the ontological universality of human rights.
Overlapping consensus, rather than render human rights groundless,
gives them multiple grounds. Whatever its analytical and philosophical
virtues or shortcomings, this is of great practical utility. Those who want
(or feel morally compelled) to make ontological claims can do so with no
need to convince or compel others to accept this particular, or even any,
foundation. Treating human rights as a Rawlsian political conception of
justice thus allows us to address a wide range of issues of political justice
and right while circumventing not merely inconclusive but often pointlessly
divisive disputes over moral foundations.
9.	Cultural Relativism
Having considered a variety of possible senses of “universality,” I now
want to turn, somewhat more briefly, to several different senses of “relativity.”
What makes (or is alleged to make) human rights relative? Relative to
what? We have already seen that they are historically relative and that, at
best, ontological universality remains a matter of debate. The most common
argument for relativity appeals to culture.
Vol. 29294 HUMAN RIGHTS QUARTERLY
Cultural relativity is a fact: cultures differ, often dramatically, across
time and space. Cultural relativism is a set of doctrines that imbue cultural
relativity with prescriptive force. For our purposes we can distinguish methodological
and substantive cultural relativism.29
Methodological cultural relativism was popular among mid-twentieth
century anthropologists. They advocated a radically non-judgmental analysis
of cultures in order to free anthropology from unconscious, and often even
conscious, biases rooted in describing and judging other societies according
to modern Western categories and values.30
Such arguments lead directly to a
recognition of the historical or anthropological relativity of human rights.
In discussions of human rights, however, cultural relativism typically appears
as a substantive normative doctrine that demands respect for cultural
differences.31
The norms of the Universal Declaration are presented as having
no normative force in the face of divergent cultural traditions. Practice is to
be evaluated instead by the standards of the culture in question. As the Statement
on Human Rights of the American Anthropological Association (AAA)
put it, “man is free only when he lives as his society defines freedom.”32
Rhoda Howard-Hassmann has aptly described this position as “cultural
absolutism”33
. Culture provides absolute standards of evaluation; whatever
a culture says is right is right (for those in that culture).34
Rather than address
the details of such claims, which usually involve arguments that other
	 29.	 John J. Tilley, Cultural Relativism, 22 Hum. Rts. Q. 501 (2000) carefully reviews a number
of particular conceptions and cites much of the relevant literature from anthropology.
Compare Alison Dundes Renteln, Relativism and the Search for Human Rights, 90 Am.
Anthropologist 56 (1988).
	 30.	 Melville J. Herskovits, Cultural Relativism: Perspectives in Cultural Pluralism (1972).
	 31.	 Even Renteln, Relativism and the Search for Human Rights, supra note 29, at 56, who
claims to be advancing “a metaethical theory about the nature of moral perceptions,” thus
making her position more like what I have called methodological relativism, insists on
“the requirement that diversity be recognized” and the “urgent need to adopt a broader
view of human rights that incorporates diverse concepts.” Alison Dundes Renteln, The
Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 Hum.
Rts. Q. 514, at 540 (1985). Such substantive propositions simply do not follow from
methodological relativism or any causal or descriptive account of moral perceptions.
	 32.	 Exec. Comm., Am. Anthropological Ass’n, Statement on Human Rights, 49 Am. Anthropologist
539, 543 (1947).
	 33.	 Rhoda E. Howard, Cultural Absolutism and the Nostalgia for Community, 15 Hum. Rts.
Q. 315 (1993).
	 34.	 A variant on such arguments popular in the 1980s held that each of the three “worlds”
of that era—Western/liberal, Soviet/socialist and Third World—had its own distinctive
conception of human rights, rooted in its own shared historical experience and conception
of social justice. See, e.g., Hector Gros Espiell, The Evolving Concept of Human Rights:
Western, Socialist and Third World Approaches, in Human Rights: Thirty Years After the
Universal Declaration (B. G. Ramcharan ed., 1979); Adamantia Pollis, Liberal, Socialist,
and Third World Perspectives on Human Rights, in Toward a Human Rights Framework
1 (Peter Schwab & Adamantia Pollis eds., 1982). This story was often associated with
a claim that the West was focused on “first generation” civil and political rights, the
socialist world on “second generation” economic, social, and cultural rights, and the Third
2007 The Relative Universality of Human Rights 295
cultures give greater attention to duties than to rights and to groups than to
individuals, I will focus on six very serious general problems with substantive
or absolutist cultural relativism.
First, it risks reducing “right” to “traditional,” “good” to “old,” and
“obligatory” to “habitual.” Few societies or individuals, however, believe that
their values are binding simply or even primarily because they happen to be
widely endorsed within their culture. Without very powerful philosophical
arguments (which are not to be found in this cultural relativist literature on
human rights) it would seem inappropriate to adopt a theory that is inconsistent
with the moral experience of almost all people—especially in the
name of cultural sensitivity and diversity.
Second, the equation of indigenous cultural origins with moral validity
is deeply problematic. The AAA statement insists that “standards and values
are relative to the culture from which they derive so that any attempt
to formulate postulates that grow out of the beliefs or moral codes of one
culture must to that extent detract from the applicability of any Declaration
of Human Rights to mankind as a whole.”35
The idea that simply because a
value or practice emerged in place A makes it, to that extent, inapplicable
to B is, at best, a dubious philosophical claim that assumes the impossibility
of moral learning or adaptation except within (closed) cultures. It also
dangerously assumes the moral infallibility of culture.
Third, intolerant, even genocidal, relativism is as defensible as tolerant
relativism. If my culture’s values tell me that others are inferior, there is
			 World on “third generation” solidarity rights. See Stephen P. Marks, Emerging Human
Rights: A New Generation for the 1980s?, 33 Rutgers L. Rev. 435 (1981); Karel Vasak,
Pour une troisième génération des droits de l’homme, in Studies and Essays on International
Humanitarian Law and Red Cross Principles in Honour of Jean Pictet 837 (Christophe Swinarski
ed., 1984); Karel Vasak, Les différentes catégories des droits de l’homme, in Les Dimensions
universelles des droits de l’homme. Vol. I. (André Lapeyre, François de Tinguy, & Karel
Vasak eds., 1991). Micheline R. Ishay, The History of Human Rights: From Ancient Times to the
Globalization Era (2004) presents a relatively sophisticated post-Cold War version of this
argument. For a counter-argument, see J. Donnelly, Third Generation Rights, in Peoples
and Minorities in International Law 119 (Catherine Brölmann, René Lefeber & Marjoleine
Zieck eds., 1993).
				 The three worlds story suggests that level of development and political history impose
priorities on (groups of) states. Socialist and Third World states, it was argued, could
not afford the “luxury” of civil and political rights, being legitimately preoccupied with
establishing their national sovereignty and economic and social development. While
usually acknowledging the long run desirability of civil and political rights, they were
dismissed as (at best) a secondary priority, a distraction, or even a serious impediment
to progress in countries struggling to achieve self-determination and economic development.
The claim, though, that benevolent governments that denied civil and political
rights could deliver development more rapidly and spread its benefits more universally,
unfortunately found almost no support in the experience of developmental dictatorships
of the left and the right alike during the Cold War. Quite the contrary, pursuing
economic and social rights without civil and political rights in practice usually led to
poor performance in realizing both, particularly over the medium and long run.
	 35.	 Exec. Comm., Am. Anthropological Ass’n, supra note 32, at 542.
Vol. 29296 HUMAN RIGHTS QUARTERLY
no standard by which to challenge this. A multidimensional, multicultural
conception of human rights requires appeal to principles inconsistent with
normative cultural relativism.
Fourth, cultural relativist arguments usually either ignore politics or
confuse it with culture. The often deeply coercive aspect to culture is simply
ignored. As a result, such arguments regularly confuse what a people has
been forced to tolerate with what it values.
Fifth, these arguments typically ignore the impact of states, markets,
colonialism, the spread of human rights ideas, and various other social
forces. The cultures described are idealized representations of a past that, if
it ever existed, certainly does not exist today. For example, Roger Ames, in
an essay entitled “Continuing the Conversation of Chinese Human Rights,”
completely ignores the impact of half a century of communist party rule, as
if it were irrelevant to discussing human rights in contemporary China.36
Sixth, and most generally, the typical account of culture as coherent,
homogenous, consensual, and static largely ignores cultural contingency,
contestation, and change. Culture in fact is a repertoire of deeply contested
symbols, practices, and meanings over and with which members of a society
constantly struggle.37
Culture is not destiny—or, to the extent that it is, that
is only because victorious elements in a particular society have used their
power to make a particular, contingent destiny.
The fact of cultural relativity and the doctrine of methodological cultural
relativism are important antidotes to misplaced universalism. The fear
of (neo-)imperialism and the desire to demonstrate cultural respect that lie
behind many cultural relativist arguments need to be taken seriously. Normative
cultural relativism, however, is a deeply problematic moral theory that
offers a poor understanding of the relativity of human rights.
10.	Self-Determination and Sovereignty
Self-determination and sovereignty ground a tolerant relativism based on the
mutual recognition of peoples/states in an international community. Self-determination,
understood as an ethical principle, involves a claim that a free
	 36.	 Roger T. Ames, Continuing the Conversation on Chinese Human Rights, 11 Ethics & Int’l
Aff. 177 (1997).
	 37.	 For excellent brief applications of this understanding of culture to debates over human
rights, see Ann-Belinda S. Preis, Human Rights as Cultural Practice: An Anthropological
Critique, 18 Hum. Rts. Q. 286 (1996); Andrew J. Nathan, Universalism: A Particularistic
Account, in Negotiating Culture and Human Rights (Lynda S. Bell, Andrew J. Nathan &
Ilan Peleg eds., 2001). Compare also Neil A. Engelhart, Rights and Culture in the Asian
Values Argument: The Rise and Fall of Confucian Ethics in Singapore, 22 Hum. Rts. Q.
548 (2000); Elizabeth M. Zechenter, In the Name of Culture: Cultural Relativism and
the Abuse of the Individual, 53 J. Anthropological Res. 319 (1997).
2007 The Relative Universality of Human Rights 297
people is entitled to choose for itself its own way of life and its own form
of government. The language of “democracy” is also often used. Democratic
self-determination is a communal expression of the principles of equality
and autonomy that lie at the heart of the idea of human rights.
Whether a particular practice is in fact the free choice of a free people,
however, is an empirical question. And self-determination must not be
confused with legal sovereignty. Legally sovereign states need not satisfy
or reflect the ethical principle of self-determination. Too often, repressive
regimes falsely claim to reflect the will of the people. Too often, international
legal sovereignty shields regimes that violate both ethical self-determination
and most internationally recognized human rights—which brings us back
to the relative enjoyment of human rights, based largely on where one
happens to live.
Often the result is a conflict between justice, represented by human
rights and self-determination, and order, represented by international legal
sovereignty. Non-intervention in the face of even systematic human rights
violations dramatically decreases potentially violent conflicts between states.
We can also see international legal sovereignty as an ethical principle of
the society of states, a principle of mutual toleration and respect for (state)
equality and autonomy. However we interpret it, though, legal sovereignty
introduces a considerable element of relativity into the enjoyment of internationally
recognized human rights in the contemporary world.
11.	Post-Structural, Post-Colonial, and Critical
Arguments
The growing hegemony of the idea of human rights since the end of the Cold
War, combined with the rise of post-structural and post-colonial perspectives,
has spawned a new stream of relativist, or perhaps more accurately antiuniversalist,
arguments. Although often similar to earlier cultural relativist
arguments in both substance and motivation, they typically are based on a
very different sort of anti-foundationalist ontology and epistemology38
and
tend to be specially addressed to the context of globalization. They seek
to challenge arrogant, neo-imperial arguments of universality, and draw
attention to “the civilizationally asymmetrical power relations embedded
in the international discourse,” in order to open or preserve discursive and
practical space for autonomous action by marginalized groups and peoples
across the globe.39
	 38.	 Critical Marxian perspectives, however, make similar arguments from a foundationalist
perspective. See, e.g., Tony Evans, US Hegemony and the Project of Universal Human Rights
(1996); Human Rights Fifty Years On: A Reappraisal (Tony Evans ed., 1998).
	 39.	 Anthony Woodiwiss, Human Rights and the Challenge of Cosmopolitanism, 19 Theory,
Culture & Society 139 (2002).
Vol. 29298 HUMAN RIGHTS QUARTERLY
Although some versions of such arguments are dismissively critical,40
many are well modulated. “[T]he seduction of human rights discourse has
been so great that it has, in fact, delayed the development of a critique of
rights.”41
They claim that a lack of critical self-reflection has made human
rights advocates “more part of a problem in today’s world than part of the
solution.”42
There are “dark sides of virtue.”43
The uncomfortable reality,
whatever the intentions of Western practitioners, too often is “imperial
humanitarianism.”44
In these accounts, universality per se—and more particularly the tendency
for universal claims to intellectually obscure and politically repress
difference—is targeted more than universal human rights in particular. Conversely,
even many fairly radical post-structuralist and post-colonial authors
reject normative cultural relativism in favor of a more dialogical approach
to cross-cultural consensus that is not in the end dissimilar to overlapping
consensus arguments discussed above.45
This, I believe, is a reflection of a
growing sophistication in the discussion of relativity and universality -on
both sides of the old divide.
12.	Justifying Particularity: Universal Rights, Not
Identical Practices
Over the past decade, most discussions have tried to move beyond a dichotomous
presentation of the issue of universality. Most sophisticated defenders
of both universality and relativity today recognize the dangers of an extreme
	 40.	 For example, Makau Mutua writes of “the biased and arrogant rhetoric and history of
the human rights enterprise,” which is simply the latest expression of “the historical
continuum of the Eurocentric colonial project.” Makau Mutua, Savages, Victims, and
Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201, 202, 204 (2001). The
hegemony of international human rights norms, in this reading, amounts to granting
Western culture “the prerogative of imperialism, the right to define and impose on others
what it deems good for humanity.” Id. at 219.
	 41.	 Makau Wa Mutua, The Ideology of Human Rights, 36 Virginia J. Int’l L. 589, 591
(1996).
	 42.	 David Kennedy, The International Human Rights Movement: Part of the Problem?, 15
Harvard Hum. Rts. J. 101 (2002).
	 43.	 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (2004).
	 44.	 Gil Gott, Imperial Humanitarianism: History of an Arrested Dialectic, in Moral Imperialism:
A Critical Anthology 19 (Berta Esperanza Hernández-Truyol ed., 2002); compare Susan
Koshy, From Cold War to Trade War: Neocolonialism and Human Rights, 58 Social Text
1 (1999); Pheng Cheah, Posit(ion)ing Human Rights in the Current Global Conjuncture,
Public Culture 233–266 (1997). Michael Ignatieff, Human Rights as Politics, Human
Rights as Idolotry, in Human Rights as Politics and Idolatry 3, 53 (Amy Gutmann ed., 2001)
expresses similar worries from within a very traditional Western liberal perspective.
	 45.	 See, e.g., Bonaventura de Sousa Santos, Toward a Multicultural Conception of Human
Rights, in Moral Imperialism: A Critical Anthology 39 (Berta Esperanza Hernández-Truyol
ed., 2002); Berta Esperanza Hernández-Truyol & Sharon Elizabeth Rush, Culture, Nationhood,
and the Human Rights Ideal, 33 U. Mich. J. L. Reform 233 (2000).
2007 The Relative Universality of Human Rights 299
commitment and acknowledge at least some attractions and insights in the
positions of their critics and opponents.
At the relatively universalistic end of this spectrum, I have defended
“relative universality.”46
Towards the relativist end, Richard Wilson argues that
ideas of and struggles for human rights “are embedded in local normative
orders and yet are caught within webs of power and meaning which extend
beyond the local.”47
Near the center, Andrew Nathan uses the language of
“tempered universalism.”48
This more flexible account of universality (and relativity) makes a threetiered
scheme for thinking about universality that I have long advocated
particularly useful for thinking about what ought to be universal, and what
relative, in the domain of “universal human rights.”49
Human rights are
(relatively) universal at the level of the concept, broad formulations such as
the claims in Articles 3 and 22 of the Universal Declaration that “everyone
has the right to life, liberty and security of person” and “the right to social
security.”50
Particular rights concepts, however, have multiple defensible
conceptions. Any particular conception, in turn, will have many defensible
implementations. At this level—for example, the design of electoral systems
to implement the right “to take part in the government of his country,
directly or through freely chosen representatives”—relativity is not merely
defensible but desirable.51
Functional and overlapping consensus universality lie primarily at the
level of concepts. Most of the Universal Declaration lies at this level as well.
Although international human rights treaties often embody particular conceptions,
and sometimes even particular forms of implementation,52
they too
	 46.	 Towards this end of the spectrum, compare Fred Halliday, Relativism and Universalism
in Human Rights: the Case of the Islamic Middle East, 43 Pol. Stud. 152 (1995); Michael
J. Perry, Are Human Rights Universal? The Relativist Challenge and Related Matters, 19
Hum. Rts. Q. 461 (1997); Charles R. Beitz, Human Rights as a Common Concern, 95
Am. Pol. Science Rev. 269 (2001).
	 47.	 Human Rights, Culture & Context: Anthropological Perspectives 23 (Richard Wilson ed.,
1997); compare Fred Dallmayr, “Asian Values” and Global Human Rights, 52 Phil. East
& West 173 (2002); Charles Taylor, Conditions of an Unforced Consensus on Human
Rights, in The East Asian Challenge for Human Rights, supra note 1; Penna & Campbell,
supra note 3.
	 48.	 Nathan, supra note 37; compare Preis, supra note 37; Declan O’Sullivan, Is the Declaration
of Human Rights Universal? 4 J. Hum. Rts. 25 (2000).
	 49.	 Donnelly, Cultural Relativism and Universal Human Rights, supra note 1; Donnelly,
Universal Human Rights in Theory and Practice (2d ed.), supra note 1, §6.4.
	 50.	 Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, arts. 3, 22, U.N. Doc. A/810 (1948),
reprinted in 43 Am. J. Int’l L. 127 (Supp. 1949).
	 51.	 Id. art. 21.
	 52.	 For example, Article 14 of the Convention against Torture specifies that:
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress
and has an enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture,
his dependants shall be entitled to compensation.
Vol. 29300 HUMAN RIGHTS QUARTERLY
permit a wide range of particular practices. Substantial second order variation,
by country, region, culture, or other grouping, is completely consistent
with international legal and overlapping consensus universality.
Concepts set a range of plausible variations among conceptions, which
in turn restrict the range of practices that can plausibly be considered
implementations of a particular concept and conception. But even some
deviations from authoritative international human rights norms may be, all
things considered, (not il)legitimate.
Four criteria can help us to grapple seriously yet sympathetically with
claims in support of such deviations. For reasons of space, I simply stipulate
these criteria, although I doubt that they are deeply controversial once we
have accepted some notion of relative universality.53
1) Important differences in threats are likely to justify variations even at
the level of concepts. Although perhaps the strongest theoretical justification
for even fairly substantial deviations from international human rights norms,
such arguments rarely are empirically persuasive in the contemporary world.
(Indigenous peoples may be the exception that proves the rule.)54
2) Participants in the overlapping consensus deserve a sympathetic
hearing when they present serious reasoned arguments justifying limited
deviations from international norms. Disagreements over “details” should
be approached differently from systematic deviations or comprehensive attacks.
If the resulting set of human rights remains generally consistent with
the structure and overarching values of the Universal Declaration, we should
be relatively tolerant of particular deviations.
			 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No.
51, art. 14, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in
23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985).
	 53.	 I am implicitly speaking from the perspective of an engaged participant in international
society. A different and more complex “subject position” may be important “on the
ground” where ordinary people have more local and particularistic understandings of
their values. I suspect that much of the “talking past each other” in debates on cultural
relativism and human rights arises from taking arguments that may be well formulated
for a particular setting, be it local or international, and applying them directly in another
discursive setting, without the adjustments required to give those arguments resonance
and persuasive force in that context. For example, in much of rural China today, direct
appeals to internationally recognized human rights are unlikely to be politically efficacious,
and often will be positively counter-productive, either for mobilizing peasants
or persuading local authorities. Those working directly to improve the day to day life
of Chinese peasants needs to give central place to this fact. But I would suggest that it
says more about the Chinese state and the enforced isolation and systematic repression
of Chinese peasants than about “Asian values.”
	 54.	 Defensible categorical differences between “developed” and “developing” countries, I
would argue, involve, at most, differing short-term priorities among particular internationally
recognized human rights, not major differences in the list of rights appropriate
for individuals in such countries.
2007 The Relative Universality of Human Rights 301
3) Arguments claiming that a particular conception or implementation
is, for cultural or historical reasons, deeply imbedded within or of unusually
great significance to some significant group in society deserve, on their
face, sympathetic consideration. Even if we do not positively value diversity,
the autonomous choices of free people should never be lightly dismissed,
especially when they reflect well-established practices based on deeply
held beliefs.
4) Tolerance for deviations should decrease as the level of coercion
increases.
13.	Two Illustrations
Article 18 of the Universal Declaration reads, in its entirety, “Everyone
has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or
in community with others and in public or private, to manifest his religion
or belief in teaching, practice, worship and observance.”55
Most schools of
Islamic law and scholarship deny Muslims the right to change their religion.
Is prohibition of apostasy by Muslims compatible with the relative universality
of Article 18? Reasonable people may reasonably disagree, but I am
inclined to answer “Probably.”
The variation is at the level of conceptions—the limits of the range
of application of the principle of freedom of religion—in a context where
the overarching concept is strongly endorsed. Most Islamic countries and
communities respect the right of adherents of other religions to practice
their beliefs (within the ordinary constraints of public order). Prohibition
of apostasy also has a deeply rooted doctrinal basis, supported by a long
tradition of practice. I think, therefore, that we are compelled to approach it
with a certain prima facie tolerance, particularly if it is a relatively isolated
deviation from international norm.56
Persuasion certainly lies within a state’s margin of appreciation. Freedom
of religion does not require religious neutrality—separation of church and
state, as Americans typically put it—but only that people be free to choose
and practice their religion. Furthermore, there is no guarantee that the choice
	 55.	 Universal Declaration, supra note 50, art. 18.
	 56.	 Even where there is a broad pattern of systematic violations of international human
rights norms, we often would do well not to focus too much on the issue of apostasy,
which is likely to have a much stronger internal justification than many other violations
of internationally recognized human rights. A better strategy, at least where apostates do
not suffer severely, would be to work to improve broader human rights practices, with
the aim of creating a situation where we would be “willing to live with” at least some
forms of prohibition of apostasy.
Vol. 29302 HUMAN RIGHTS QUARTERLY
be without cost. A state thus might be justified in denying certain benefits
to apostates, as long as those benefits are not guaranteed by human rights.
(Protection against discrimination on the basis of religion is one of the
foundational principles of international human rights norms.) It may even
be (not im)permissible to impose modest disabilities on apostates, again
as long as they do not violate the human rights of apostates, who remain
human beings entitled to all of their human rights. And the state is under
no obligation to protect apostates against social sanctions imposed by their
families and communities that do not infringe human rights.
Executing apostates, however, certainly exceeds the bounds of permissible
variation. Violently imposing a specific conception of freedom of religion
inappropriately denies basic personal autonomy. Whatever the internal
justification, this so excessively infringes the existing international legal and
overlapping consensus that it is not entitled to international toleration—although
we should stress that the same constraints on the use of force apply
to external actors, even before we take into account the additional constraints
imposed by considerations of sovereignty and international order.
Consider now Article 4(a) of the Racial Discrimination Convention,
which requires parties to prohibit racial violence and incitement to such
violence and to “declare an offence punishable by law all dissemination
of ideas based on racial superiority or hatred.”57
Article 20(2) of the International
Covenant on Civil and Political Rights similarly requires that “any
advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.”58
Such
requirements have been rejected in the United States, where free speech
includes even “hate speech” that does not incite violence.
Here the issue is balancing two competing human rights, rather than
a conflict between human rights and another value. Any resolution will
require restricting the range of at least one of these rights. Therefore, any
approach that plausibly protects the conceptual integrity of both rights must
be described as controversial but defensible. American practice with respect
to hate speech clearly falls into this category.
Because incitement to violence is legally prohibited, US practice involves
only a narrow deviation from international norms, with respect to one part
of a second order conception, in a context of general support for the overarching
concepts and conceptions. Furthermore, the deviation is on behalf
of a strong implementation of another vitally important human rights. And
	 57.	 International Convention on the Elimination of All Forms of Racial Discrimination,
adopted 21 Dec. 1965, art. 4, ¶ a, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969),
reprinted in 5 I.L.M. 352 (1966).
	 58.	 International Covenant on Civil and Political Rights, adopted 19 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 20(2), U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
2007 The Relative Universality of Human Rights 303
it is deeply rooted in legal history and constitutional theory. I can imagine
few stronger cases for justifiable deviations from international norms.
Targets of hate speech may indeed be harmed by that speech. They remain,
however, protected against violence. Conversely, prohibiting speech
because of its content harms those whose speech is restricted. It also effectively
involves state imposition of a particular viewpoint, which is prima
facie undesirable. Reasonable people may reasonably disagree about which
harm is greatest. Toleration of the American refusal to prohibit hate speech
thus seems demanded, even from those who sincerely and no less reasonably
believe that prohibiting hate speech is the better course of action. Americans,
however, need to be respectful of the mainstream practice and be willing to
engage principled arguments to conform with international norms.
These brief arguments are hardly conclusive, perhaps not even correct.
(I am inclined to think that my argument on apostasy accepts too great a
relativism.) I think, though, that they show that the (relative) universality of
internationally recognized human rights does not require, or even encourage,
global homogenization or the sacrifice of (many) valued local practices.
Certainly nothing in my account of relative universality implies, let alone
justifies, cultural imperialism. Quite the contrary, (relatively) universal human
rights protect people from imposed conceptions of the good life, whether
those visions are imposed by local or foreign actors.
Human rights seek to allow human beings, individually and in groups
that give meaning and value to their lives, to pursue their own visions of
the good life. Such choices—so long as they are consistent with comparable
rights for others and reflect a plausible vision of human flourishing to which
we can imagine a free people freely assenting—deserve our respect. In fact,
understanding human rights as a political conception of justice supported by
an overlapping consensus requires us to allow human beings, individually and
collectively, considerable space to shape (relatively) universal rights to their
particular purposes—so long as they operate largely within the constraints
at the level of concepts established by functional, international legal, and
overlapping consensus universality.
14.	Universalism Without Imperialism
My account has emphasized the “good” sides of universalism, understood in
limited, relative terms. The political dangers of arguments of anthropological
universality are modest, at least if one accepts functional and international
legal universality. In arguing against ontological universality, however, I
ignored the dangers of imperialist intolerance when such claims move into
politics. This final section considers a few of the political dangers posed by
excessive or “false” universalism, especially when a powerful actor (mis)takes
its own interests for universal values.
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The legacy of colonialism demands that Westerners show special caution
and sensitivity when advancing arguments of universalism in the face
of clashing cultural values. Westerners must also remember the political,
economic, and cultural power that lies behind even their best intentioned
activities. Anything that even hints of imposing Western values is likely to
be met with understandable suspicion, even resistance. How arguments of
universalism and arguments of relativism are advanced may sometimes be
as important as the substance of those arguments.59
Care and caution, however, must not be confused with inattention or
inaction. Our values, and international human rights norms, may demand
that we act on them even in the absence of agreement by others—at least
when that action does not involve force. Even strongly sanctioned traditions
may not deserve our toleration if they are unusually objectionable.
Consider, for example, the deeply rooted tradition of anti-Semitism in the
West or “untouchables” and bonded labor in India. Even if such traditional
practices were not rejected by the governments in question, they would not
deserve the tolerance, let alone the respect, of outsiders. When rights-abusive
practices raise issues of great moral significance, tradition and culture
are slight defense.
Consider violence against homosexuals. International human rights law
does not prohibit discrimination on the basis of sexual orientation. Sexual
orientation is not mentioned in the Universal Declaration or the Covenants,
and arguments that it falls within the category of “other status” in Article 2
of each of these documents are widely accepted, at least at the level of law,
only in Europe and a few other countries. Nonetheless, everyone is entitled
to security of the person. If the state refuses to protect some people against
private violence, on the grounds that they are immoral, the state violates
their basic human rights—which are held no less by the immoral than the
moral.60
And the idea that the state should be permitted to imprison or even
execute people solely on the basis of private voluntary acts between consenting
adults, however much that behavior or “lifestyle” offends community
conceptions of morality, is inconsistent with any plausible conception of
personal autonomy and individual human rights.
I do not mean to minimize the dangers of cultural and political arrogance,
especially when backed by great power. US foreign policy often confuses
American interests with universal values. Many Americans do seem to believe
that what’s good for the US is good for the world—and if not, then “that’s
	 59.	 I probably would not object to readers who took this as implicit acknowledgment of
certain shortcomings in some of my previous work on relativism, although I suspect
that we might disagree about the range of applicability of such criticisms.
	 60.	 For clarity, let me explicitly note that I am not endorsing these judgments but simply
arguing that even if they are accepted they do not justify violating human rights.
2007 The Relative Universality of Human Rights 305
their problem.” The dangers of such arrogant and abusive “universalism”
are especially striking in international relations, where normative disputes
that cannot be resolved by rational persuasion or appeal to agreed upon
international norms tend to be settled by (political, economic, and cultural)
power—of which United States today has more than anyone else.
Faced with such undoubtedly perverse “unilateral universalism,” even
some well meaning critics have been seduced by misguided arguments for
the essential relativity of human rights. This, however, in effect accepts the
American confusion of human rights with US foreign policy. The proper remedy
for “false” universalism is defensible, relative universalism. Functional,
overlapping consensus, and international legal universality, in addition to
their analytical and substantive virtues, can be valuable resources for resisting
many of the excesses of American foreign policy, and perhaps even for
redirecting it into more humane channels.
Indirect support for such an argument is provided by the preference of
the Bush administration for the language of democracy and freedom rather
than human rights.61
For example, the introductions to the 2002 and 2006
national security statements use “freedom” twenty-five times, “democracy”
six times, and “human rights” just once (and not at all in 2006).62
Part
of the reason would seem to be that human rights does have a relatively
precise and well-settled meaning in contemporary international relations.
“Democracy” is both narrower and more imprecisely defined, especially
internationally.63
And “freedom” is a remarkably malleable idea—“rich” or
“empty,” depending on your perspective—as a review of the roster of the
“free world” in the 1970s indicates.
International legal and overlapping consensus universality can provide
important protection against the arrogant “universalism” of the powerful.
Without authoritative international standards, to what can the United States
(or any other great power) be held accountable? If international legal universality
has no force, why shouldn’t the United States act on its own (often
peculiar) understandings of human rights? Even the Bush Administration’s
preference for “coalitions of the willing” provides indirect testimony to the
attractions of the idea of overlapping consensus.
	 61.	 Compare Julie Mertus, The New U.S. Human Rights Policy: A Radical Departure, 4 Int’l
Stud. Perspectives 371 (2003).
	 62.	 See available at www.whitehouse.gov/nsc/nssall.html; www.whitehouse.gov/nsc/nss/2006/
print/intro.html. The prefaces of the Clinton national security statements of 1996, 1997,
and 1999, taken together, use “democracy” twenty-one times, “human rights” seven times,
and “freedom” six. See available at www.fas.org/spp/military/docops/national/1996stra.
htm; www.fas.org/man/docs/strategy97.htm; www.dtic.mil/doctrine/jel/other_pubs/nssr99.
pdf.
	 63.	 Donnelly, Universal Human Rights in Theory and Practice (2d ed.), supra note 1, §11.3
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The contemporary virtues of (relative) universality are especially great
because the ideological hegemony of human rights in the post-Cold War
world is largely independent of American power. As Abu Ghraib indicates,
international human rights norms may even provoke changes in policy in
the midst of what is typically presented as a war. The international and
national focus on Guantanamo—which on its face is odd, given the tiny
percentage of the victims of the War on Terror who have suffered in this bit
of American-occupied Cuba—underscores the power of widely endorsed
international norms to change the terms of debate and transform the meaning
of actions.
International legal universality is one of the great achievements of the
international human rights movement, both intrinsically and because it
has facilitated a deepening overlapping consensus. Even the United States
participates, fitfully and incompletely, in these consensuses. Not just the
Clinton administration but both Bush administrations as well have regularly
raised human rights concerns in numerous bilateral relationships, usually
with a central element of genuine concern. (The real problem with American
foreign policy is less where it does raise human rights concerns than where
it doesn’t, or where it allows them to be subordinated to other concerns.)
And all of this matters, directly to tens or hundreds of thousands of people,
and indirectly to many hundreds of millions, whose lives have been made
better by internationally recognized human rights.
Human rights are not a panacea for the world’s problems. They do,
however, fully deserve the prominence they have received in recent years.
For the foreseeable future, human rights will remain a vital element in
national, international, and transnational struggles for social justice and
human dignity. And the relative universality of those rights is a powerful
resource that can be used to help to build more just and humane national
and international societies.