The Contested Nature Of Human Rights
The theme of the contested nature of human rights can be broken down into a number of related issues, which in turn can be seen as questions. Firstly, to what extent is the nature of human rights contested? Secondly, is it good that this is the case? Thirdly, to what extent would consensus prevent further development of human rights?
The nature of human rights is certainly contested. This can be evidenced by the different ways of thinking about human rights. The term ‘human rights’ denotes both their nature and their source: they are the rights that one has simply because one is human. All human beings hold them, regardless of any rights or duties that persons may (or may not) have as citizens, as members of families, as workers or as parts of any public or private organization or association. Human rights are universal rights and all individuals hold them equally and inalienably.
Human rights may be explicable as rights that we have by virtue of our humanity, but this does not necessarily make them legally enforceable or fundamental. Unless a positive legal source states that they are fundamental, human rights fall short of legal claims and can perhaps be thought of as political claims about the desirability of a certain state of affairs. In this sense perhaps human rights provide a moral standard of national political legitimacy. The extent to which a human right is binding is the extent to which it is internationally recognized and legally enforceable. Although some rights may indeed be both recognizable and enforceable by a court, others cannot be so enforced – or at least cannot be enforced by a court.
On the 45th anniversary of the Universal Declaration of Human Rights (UDHR) 1948, the UN held a World Conference on Human Rights, in Vienna in 1993. Decades after the UDHR, it seemed little progress had been made. However, first the whole issue of universal human rights had to be re-argued, refined and even redefined. A significant wave of dissension from the universal human rights project had developed and was strongly articulated at the conference. There were different strands to this dissension. These could be analyzed as presenting two main themes. The first theme presented economic, social and cultural rights as downplayed in favour of the ‘luxuries’ of civil and political rights. Here, the universal nature of human rights was not contested itself; rather it was the content and priorities of implementation involved in the project. A key issue was that the ‘right to development’ should be recognized as a universal human right.
A second theme was that human rights were not universal but historically, socially and politically contextual and contingent. The so-called ‘universal’ human rights were just modern Western values in disguise while non-Western values; culture and community should also have been respected. ‘Asian values’ were invoked as one example of alternative cultural and/or social ordering. It was equally important to recognize that the so-called ‘Western values of freedom and liberty’ often depicted as ancient Western inheritance, were not particularly ancient. Many have become dominant in the West only over the last few centuries – nor are they exclusively Western in their formation. This stance was labeled as ‘cultural relativism’ – but this term is also often used to encompass the first theme as well. The dissenting point of view was largely unsuccessful at the conference, although it made an important impact on some of the key formulations. Thus, the Vienna Conference reaffirmed the universality of human rights, characterizing such rights as ‘universal, indivisible, interdependent and interrelated’ and sought to give them a more effective legal reality.
Since the Vienna Conference the phrase ‘universalism vs cultural relativism’ has become the standard way of understanding the clashes over the nature of human rights. Merely emphasizing that rights are universal in scope and are to be applied in a ‘fair and equal manner’ is not necessarily the same as having established an underlying theory of universal human rights – the Universalist viewpoint seeks this broader account of the nature of human rights. What the Universalist positions have in common is the underlying presumption that human rights exist objectively, independent of differences in culture, religion, and ideology or value systems. Law gives these rights positive existence, but in fact rights pre-exist positive law. The assumption is that the rights already exist and positive law (treaties, conventions, etc.) merely gives them a specific form and makes it easier to ensure that such rights are universally respected.
Unlike the UDHR, the Universal Islamic Declaration of Human Rights is based on sacred sources: the Qur’an and the Sunnah, which provide for the establishment of rights in Islam. The Declaration has been compiled by Muslim scholars, jurists and representatives of Islamic movements and schools of thought.
How can we think about the complexity of rights? Human rights do not just confirm or enforce certain universal personality peculiarities – their continuous extension to new groups and novel areas of activity indicates their deeply antagonistic character. Their recognition goes to the heart of existence, addresses the fundamental appreciation and self-esteem of the individual beyond respect and touches the foundations of identity. We are either doomed or blessed to strive endlessly for concrete recognition of our unique identity. But the avoidable misrecognitions, the myriad instances of mismatch between the self-image of an individual or group and the identity that law and rights allow them to project, make law a necessary but inadequate and defective partner in the struggle for identity. A complete identity cannot be based on the universal characteristics of law but on the continuous struggle for the other’s unique desire and concrete recognition. Human rights, like desire, are a battlefield with ethical dimensions. Social conflict may occasionally be destructive of the social bond, but it is also a step in the development of political and ethical forms of community. But the desire for the other remains a step ahead of law. It keeps seeking greater formal recognition but, as soon as the claim for legal form has been granted, its achievement undermines the desire for the other. “Human rights create selves in this intricate but paradoxical intertwining with identity and desire” (Douzinas, 2000).
The fact that human rights are deeply antagonistic suggests that for all the international conferences devoted to the coordination of human rights, there is something that remains irreducible. This is because rights have to be seen as operating in social and cultural contexts where ‘identity’ is always at stake. Law is invoked in these claims to identity, whether the claims are over individual or group identity, but there is an incompatibility between the need to articulate identity and the role that rights play. Law will never satisfy claims to identity. This is because identity is not ultimately based on law, but ‘on the continuous struggle for the other people’s unique desire and concrete recognition’. Desire, in this sense, constantly strives to make claims about individual and cultural recognition. The law cannot limit this, although the law is essential to its articulation. In this sense, the key term is political desire. We could thus see a statement of Islamic rights as a claim that Islam should be recognized as an alternative rights tradition. This takes a legal form in the documents that we have studied, but these documents themselves are only comprehensible by signifying broader social and religious concerns that are attached to the Islamic claim to identity. Thus the Shariah issue should not be seen purely in limited terms, as there is a need to reconcile legal traditions. Claims made in favour of the recognition of Shariah law have to be comprehended as more fundamental assertions of a legal tradition that is bound up with claims to Islamic identity.
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