Columnists

Reflecting On The Law

Published: Thursday December 11, 2014 MYT 12:00:00 AM
Updated: Thursday December 11, 2014 MYT 7:21:46 AM

Dazzling diversity

While some believe in shared ideals, others argue that ‘universality’ is a cunning justification for preserving Western hegemony.

DEC 10 is International Human Rights Day and the immortal words of the Universal Declaration of Human Rights (1948) should be remembered: “… recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

In the era in which we are living, it is generally conceded in the East and the West, the orient and the occident, the South and the North that human rights has a central place in human flourishing. Yet, on a host of issues, the reflections of the East and the perceptions of the West do not always show congruence. In this article some such areas of discord will be outlined.

Universality: Are human rights universal or does context determine content? Are values so relative that “East is East and West is West and never the twain shall meet”? In a dazzlingly diverse world can anything be truly universal?

One view is that there is a high, common ground of shared ideals. The assertion of “Asian values” is a camouflage by Asian elites for perpetuating the unjust status quo and maintaining their feudal, authoritarian grip over political and economic processes.

The other perspective is that the human rights ruse is a cover for neocolonial intervention in the affairs of third world countries by the West. The “universality argument” is a cunning justification for preserving Western hegemony over the rest of the world by a civilisation that is used to domination.

Origin: What is the seminal source of human rights – God, nature, reason or intuition? Further, did human rights emanate from the West? Or did the ancient religions of the East supply the fountains from which flow our concepts of justice, equality, fairness, mercy and compassion?

Many Asian scholars point out that in a historical perspective, the West has a horrendous record of human rights. It acquired a human rights ethic only in the last century and that, too, hesitatingly and mostly in its dealings with its citizens but not in its relations with the “lesser” parts of the world.

Socio-economic rights: Is food as important as freedom and bread as necessary as the ballot box? Are socio-economic rights as indispensable as civil and political rights? Modern theory accepts that no such dichotomy exists and human rights are interconnected. As Amartya Sen points out, it is the availability of civil and political rights that permits the articulation and redress of our socio-economic needs.

Electoral democracy: Is the instrumentality of electoral democracy suitable for bringing about transformative, structural changes? Or is it the case that democracy is good for incremental changes but quite incapable of systemic, radical transformation?

Market economy: Does the instrumentality of a free market accentuate problems of socio-economic injustice? Can the dominant values of the consumer society be applied to societies that have very little to consume?

Religion: Must the human rights discourse take note of religious restraints on freedoms? Can any Declaration like the UDHR justifiably claim universality when its content makes no reference to the Creator? Can any theory of human rights claim moral legitimacy if it ignores the concept of sin?

Communitarianism: Are individual rights less important than collective, communitarian rights? Can the Western-dominated, radically individualistic view of people, emphasising freedom from interference by the state, be made compatible with a communitarian ethic?

It is submitted that an equilibrium between individualism and collectivism is possible and already exists in the UDHR. Articles 29 and 30 permit imposition of limitations for the purpose of protecting the rights and freedoms of others and the meeting of the just requirements of morality, public order and general welfare in a democratic society.

Responsibilities: Human rights are inseparable from human responsibilities. Duties to the family, community, nation and the broader global world are just as important as fighting for one’s own rights.

Rights or dignity? Is “human dignity” more important than “human rights”? Human dignity generates duties both to oneself and to others. A human being with dignity should not instrumentalise herself or violate her duty of self-esteem. There should be no human right to beg or sleep on the streets; become a sex worker; lease out one’s womb for surrogate parenthood; do drugs; or gamble away one’s wealth. The right of self-determination is secondary.

State paternalism: Western theory emphasises protection of the individual against the arbitrary powers of the state. In Asia and Africa the state is viewed not as a predator but as a protector and provider to shield the oppressed against hunger, want, poverty, illiteracy and sickness.

In the face of rampant private sector tyranny and endemic structural injustices and oppressive hierarchies, citizens need protection against feudal, customary and religious oppression. Human rights require protection from the state as well as protection of the state.

Cross-border violations: Far from protecting the weak, the regime of international law exposes the third world to predatory actions by international centres of power. Despite political independence, most Third World societies remain hopelessly susceptible to economic, political and social domination by cross-border agencies and institutions and processes owned by the West.

Whether it is predatory and heartless, commercial corporations like the one in Bhopal, exploitative trade practices, arm-twisting international pacts, neocolonial economic institutions like the IMF and World Bank, Western-manufactured civil wars as in Syria, Ukraine and Libya to bring about a regime change, threats of bombing or nuclear annihilation, trade embargoes as against Cuba and Iran, the reality today for Asia and Africa is that the international order is not emancipative but enslaving.

Such differences between the East and the West should not, however, be exaggerated. On core issues there are many commonalities that unite us. Our challenge is to separate the core from the fringe; show unwavering commitment to the paradigm but permit relativity at the outer edges of the human rights discourse.

> Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at prof.shad.saleem.faruqi@gmail.com. The views expressed here are entirely his own.

Tags / Keywords: Shad Faruqi, columnist

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