Despite globalisation of human rights law, the world remains diverse in both culture and government. As such, the application of international human rights law is hindered by the conflict between cultures with varying moral rules and social institutions. Currently, the attempts to resolve this issue are focused on increasing moral knowledge through education of transcultural facts. However, according to Richard Rorty in his paper Human Rights, Rationality and Sentimentality, reason is a useless apparatus in promoting human rights instead the focus should be on sentimental education. The following essay will discuss Richard Rorty’s claims and their implications for the concept of universality of international human rights law. It is argued that the existence of cultural diversity ensures that the notion of universal international human rights law remains an ideology. Primarily, this essay considers the theory of universality with respect to cultural relativism and looks at the implication of sentimental education for human rights law. The essay then considers the effect of cultural relativism on the practical application of existing universal human rights law.
Universality
It is often held that the issue in implementing universal human rights is the line between objectivity and subjectivity. The ‘objective’ or Universalist human rights theory is founded on the fundamental postulate that human beings are born equal in dignity and rights. It argues that human rights are universal to all persons simply by being born human. However, this ‘objective’ theory of universal human rights does not reflect universal values but rather Western/European ones. Thus, cultural relativists or ‘subjective’ human right theorists criticise the Universalist approach as insensitive to cultural diversity as understandings of right and wrong vary across cultures.
Cultural Relativism over Rationality
Each culture possesses values, social institutions and embodied behaviours which are generationally reproduced through enculturation. As a result, cultural variability is considerable. To avoid undue conflict, the philosophy of cultural relativism emphasises tolerance of traditions or values inherent in customs diverse from one’s own. In respect of this, the Universal Declaration of Human Rights was formed with the intention of applying to all human beings as common values of every culture. However, it is claimed by Rorty that outside of the Western/European culture on which human rights are developed, people do not understand ‘…why membership in a biological species is supposed to suffice for membership in a moral community.’ Therefore, despite the existence of basic rights in every culture, human being is not synonymous with humanity.
In brief, universality of human rights is subject to ‘…who counts as a fellow human being…’ In Nigeria, basic human rights such as freedom of expression is heavily restricted for homosexual people as Nigerian law provides that a person who ‘…directly or indirectly makes public show of same-sex amorous relationship…’ is liable to a penal sentence of up to ten years imprisonment. A Universalist would argue that the act of denying a homosexual person basic rights to which all others are entitled is to deny that person their humanity or human dignity. Famously, Rorty stated that ‘Cultural relativism is associated with irrationalism because it denies the existence of morally relevant transcultural facts.’ If Rorty’s assertions are applied to this scenario, the suggestion is that it is not that the Nigerian community does not understand that the homosexual person is of human species or rational but that person is seen as morally defective, less human and therefore less deserving of the same human rights. Addressing this issue, psychiatrist Gbonju Abiri from the Federal Neuro-Psychiatric Hospital in Lagos stated: ‘Nigeria is deeply ingrained in culture and religious beliefs, and we are not able to deal with diversity just yet as we should.’ It therefore appears that Rorty’s claim that reason is an inadequate apparatus to deal with cultural diversity does severely constrain the concept of universality of human rights law. However, if universal faculty of human reason does not exist, how can universal human rights law be promoted?
Sentimental Education: The Answer?
At present, the Universalists attempt to justify universal human rights through rationalising common humanity, however, Rorty argues that reason is useless in promoting human rights and focus should instead be on sentimental education. Rorty describes sentimental education as sympathetic capacity to perceive similarity between cultures through manipulation of feelings using long, detailed and sad stories. The aim of this is to allow a person to put themselves in the other’s shoes, so to speak, and experience social solidarity in the understanding that those who are different to ‘people like us’ suffer the same. Rorty provides clarity on this concept in another book Contigency, Irony, and Solidarity where he states:
There is nothing deep inside each of us, no common human nature, no built-in human solidarity, to use as a moral reference point. There is nothing to people except what has been socialized into them… Simply by being human we do not have a common bond. For all we share with all other humans is the same thing we share with all other animals – the ability to feel pain.
The most obvious example of sentimental education resulting in changed perception of human dignity was the publication and mass exposure of holocaust horror stories. It is articulated by Rorty that ‘…nothing relevant to moral choice separates human beings from animals except historically contingent factors of the world, cultural facts.’ Perhaps this is the ultimate claim of sentimental education; in order to solve the problems inherent in the modern human rights system, history must take its place. While it is clear that reason alone cannot prompt action and that greater awareness of cultural diversity is integral to cultivating respect for human rights, the concept of sentimental education has serious implications for human rights law.
Sentimental Education: Negative Implications for Universal Human Rights Law
International human rights law is the system of justice which embodies supposedly universal principles that seek to structure moral interactions with others even those outside our limited interests. However, Rorty’s theory discredits the possibility of a rational and multicultural system of morals by which to guide the global community. Furthermore, the role of law in implementing human rights norms internationally are unacknowledged. In ignoring this aspect, Rorty has failed to address international human rights law as necessary in facilitation of social solidarity beyond suffering and as a reputable agency to ensure access to human rights without it being contingent on the appearance of sympathy.
The appearance of sympathy, as Rorty articulates, is dependent on sentimental education through ‘sad stories’. Rorty does admit that receptivity to sentimental education is dependent on security or ‘…people who can relax long enough to listen.’ However, Rorty fails to address the fact that cultures which are ‘irrational’, such as Nigeria, are living in insecure conditions of oppression by their own culture and does not discuss how these conditions can be improved so as to create an environment conducive to sentimental education.
In conclusion, while sentimental education is integral to promoting human rights, an institution such as the United Nations is necessary so as to ensure that rights are protected where sympathy is lacking. As such, the United Nations have implemented several human rights treaties with the intention of being universal, however, the system is far from universal as cultural relativism allows states to decide the human rights law that apply to their culture.
Sovereignty over Universality
The universality of human rights are conferred by international law such as the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights and Fundamental Freedoms (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). However, universality cannot undermine sovereignty. Although the covenants have absolute or non-derogable rights such as the rights to life or freedom from torture, the states may derogate from most rights in times of public emergency. Furthermore, a State may, when signing a treaty, make a reservation unless it is incompatible or prohibited. As such, can human rights be universal if a State can derogate from its duties or put reservations on rights?
Even in Western/European cultures, the centric perspective of human rights, the sovereign will determine the human rights applicable their culture. When Australia ratified the United Nations Convention on the Elimination of All Forms of Discrimination Against Women in 1984, it placed a reservation on Article 11 to restrict women from serving in direct combat roles in the Australian Defence Force. The placing of a limitation on the human rights of women aimed to reflect cultures ideals on war. More controversially, the British government derogated from Article 5, the right to liberty and security of person, and Article 6, the right to a fair trial, of the ECHR in 1988 and 2001 so as to detain suspected terrorists before charge in response to the escalating violence by the Irish Republican Army then the 11 September 2001 attack on America. The derogation allowed previously contravening acts by the UK, such as those in Brogan and Others v UK (1988) in which the detained applicants and suspected terrorists were not brought before a judge within a reasonable period of time, to be compliant with the ECHR in subsequent cases. In derogating, the State has denied persons, as a result of gender or extremist suspicion, basic legal rights afforded to the state majority thereby setting them apart from humanity within that culture.
In brief, the State exercised their sovereignty to derogate from rights that best reflect cultural values and expectations. Thus, this short rejoinder has returned the essay to Richard Rorty’s principle point: human beings have no inherent universal morality but rather are a product of external cultural values.
Conclusion
In conclusion, cultural relativism inherent in the current moral system ensures that universality of human rights law is ideological in a culturally diverse world. Essentially, Rorty claims that human beings are unwilling to conform to objective actualities outside of the subjective ideals of their culture. His solution is the theory of sentimental education. While the idea that existence of universal human rights law is contingent on the ability of people to sympathise with the suffering of others is relevant, it ultimately fails to consider the need for international legal system to protect human rights where sympathy is absent and ignores the oppressive conditions of the cultures in need of educating. Furthermore, the existence of cultural relativism through sovereignty over universality within the United Nation’s human rights legal system further highlights the impossibility of completely universal human rights law.