Abstract
In considering various conventional objections against the universalist conceptions of human rights, it is important to distinguish between those objections which can be articulated as the charge of intolerance from those which are better articulated as the charge of paternalism. While the former are implausible, the latter may be sometimes correct but it is arguable that the paternalism a play is of an unobjectionable variety. But even if we dispel (as I will try to) the charges of an objectionable form of intolerance or paternalism leveled at a universalist project of human rights, we do not thereby satisfy ourselves about the feasibility of such an aspiration. There are clear limits to the feasibility of the universalist project, and the structure of human-rights discourse is such that certain factual factors which are built into this discourse are crucially context-dependent. The main types of such factors are described in this chapter as “justificatory”, “empirical” and “institutional”, and case studies are provided to exemplify each category.
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Notes
- 1.
See Gardbaum (1996).
- 2.
Rawls (1999, 59, see also 84). It should be remembered that respect for human rights is one of the requirements with which non-liberal but “decent” societies (which, in Rawls’s view, are “members in good standing” of an international Society of Peoples) must comply with.
- 3.
- 4.
See Sadurski (1996, 378).
- 5.
See, similarly, Barry (2001, 138).
- 6.
See, e.g., Cassese (1999).
- 7.
Harman (1996, 190); see also, similarly, in Harman and Thomson (1996, 59–61).
- 8.
For a critique, see Sadurski (1990, 70–86).
- 9.
- 10.
Dr Anwar Ibrahim, quoted in, The Economist (1998, 25).
- 11.
Dr Anwar Ibrahim, The Economist (1998, 25).
- 12.
Rawls (1993, 50, emphases added). Note that this quotation comes from an earlier article by Rawls upon which his book was to be subsequently based. I have not located an equivalent statement in the book but neither have I found any clear, or even implicit, repudiation of the view expressed in the statement. In fact, there are several implicit reiterations of this point; for instance, in the context of his rejection of an idea of “global original positions” in which all persons (as opposed to peoples or their governments) participated, Rawls adds: “The Law of Peoples proceeds from the international political world as we see it….” (Rawls 1993, 83, emphasis added).
- 13.
Rawls admits that societies which “honor human rights” but whose members “are denied a meaningful role in making political decisions” are not well-ordered (Rawls 1993, 4).
- 14.
- 15.
More on this distinction, in the context of freedom of speech, see Sadurski (1999, 173–78).
- 16.
- 17.
- 18.
The proportionality proviso is important because we may imagine an objectionable paternalism which is applied to people whose preferences have been defectively formed but where paternalism does not track those specific defects but rather follows from a general attitude of disregard for avowed preferences of people.
- 19.
For some typical expression of “color blindness” in the United States jurisprudence, see DeFunis v. Odegaard, 416 U.S. 312, 331–4 (1974) (Douglas, J., dissenting); Fullilove v. Klutznick, 448 U.S. 448, 523 (1980) (Stewart, J., dissenting); in the US legal scholarship: Bickel (1975, 132–3); Posner (1974).
- 20.
As opposed to the speech which hurts people because of their unusual, eccentric sensitivities.
- 21.
- 22.
Universality, just as “fundamentality,” of any given right can be easily ridiculed by formulating a right at a very concrete level but the rhetorical force of such a ridicule disappears when we remember that these concrete formulations are instantiations of a more abstract right, as the dissenting judges in Bowers v. Hardwick announced in the opening passage of their dissent: this case is no more about “a fundamental right to engage in homosexual sodomy,” as the Court purports to declare, than Stanley v. Georgia was about a fundamental right to watch obscene movies, or Katz v. United States was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about “the most comprehensive of rights and the right most valued by civilized men,” namely, ‘the right to be let alone,’ Bowers v. Hardwick 478 U.S. 186, 199 (1986) (Blackmun, J. dissenting) (citations omitted).
- 23.
Its locus classicus is of course the second chapter of John Stuart Mill’s “On Liberty.” Perhaps the best-known modern judicial statement of this idea is the United States Supreme Court’s assertion that “[e]ven a false statement may be deemed to make a valuable contribution to public debate,” New York Times v. Sullivan, 376 U.S. 255, 279 n. 19 (1964). A modified recent restatement of the theory may be found in Sunstein (1993).
- 24.
- 25.
See Schauer (1982, 7–10).
- 26.
Dworkin (1978, 92).
- 27.
As is clearly the case of Cooper and Williams (1999).
- 28.
As Professor Troper concludes, with respect to the French loi Gayssot: “En punissant la négation du génocide des mêmes peines que l’incitation à la haine raciale, [le Parlement] présume qu’elle est une acte équivalent parce qu’il est de même nature et qu’il porte comme lui atteinte à des intérets qui doivent être protégés” (Troper 1999, 1252).
- 29.
See Fox and Nolte (1995).
- 30.
See e.g. Hart Ely (1980, 135–79).
- 31.
See Waldron (1998, 280–81).
- 32.
For an impressive statement and elaboration of the “comparative institutional” thesis, see in particular Komesar (1994).
- 33.
There are also significant cultural factors. What is the dominant social expectation about certain types of people who are encouraged to stand for election, or to apply for nominations to certain bodies. These cultural expectations are of course, themselves, partly determined by institutional factors (what are the procedures and formal criteria for election or nomination).
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Sadurski, W. (2012). “It All Depends”: The Universal and the Contingent in Human Rights. In: Corradetti, C. (eds) Philosophical Dimensions of Human Rights. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2376-4_7
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