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Traditions of Human Rights: Who Needs Universal Human Rights?

What exactly is meant by saying that rights are universal? Professor Mégret, who studies this question, proposes a reconciliation of the dichotomy between universalism and pluralism, in a “universality of traditions of human rights”.

What exactly is meant by saying that rights are universal? On one level, what is universal is the very idea of rights, but this is a meagre, empty victory for rights advocates, with which very few would be content. Clearly many of those who make claims on behalf of the universality of rights mean much more, something akin to the idea that all concrete human rights have universal validity. When pushed, many would go further and argue that particular authorized understandings of rights are also part of the universality package. For example, it is not only that there is a right to food, but that this right is subject to the progressive realization yardstick, that it includes a sense of minimal calorific intake, that it has both a negative and a positive dimension, etc.

In other words, the understanding of universality shared by many human rights promoters is a thick understanding, one that includes the idea of rights, particular lists of rights, and particular understandings of such rights. The human rights package has, if anything, become more and more bloated – a far cry from its ambition to provide a parsimonious and minimalistic guide to just political organization. To believe in this relatively thick understanding of universality is, nonetheless, part of the human right creed.

At the same time, it is plain that the universality of human right is largely a figment of the imagination. Human rights are hardly universal in this thick way, nor is there any real demand, weirdly, that they be within the human rights movement. For one thing, human rights have developed very differently on different continents and in different countries. No one in the international human rights movement seems to have taken a principled stance against the very idea of regional human rights instruments, for example, even though regional human rights instruments differ markedly in terms of what rights they protect and what understanding they have given of these rights. For example, there are considerable and quite deliberate differences between the European Convention on Human Rights, the Inter-American Convention on Human Rights, and the African Charter on Human and Peoples' Rights not to mention a range of other international human rights instruments.

Moreover, within regional human rights systems, not only is there considerable diversity in terms of human rights approaches but that diversity is often bowed to by international human rights law via such devices as the margin of appreciation. The multitude of reservations entered to human rights treaties also attest to at least a felt need by states to maintain distinct paths to human rights and, although not all may be compatible with the “object and purpose” of said treaties, this remains a rather moot question in practice. The paradox, then, is that even as the rights movement claims universalism for itself, its reality is much more fragmented and pluralistic in ways that the movement itself makes no particular effort to hide. How do we make sense of that paradox? Is there potential to understand universalism in a way that leaves this pluralism open?

Rather than universal human rights, I wonder if what is not most interesting in this day and age is the existence of, if not an infinity at least a great many traditions of human rights. I use the term "tradition" in the way that scholars have spoken of (sometimes irreducible) legal traditions, such as indigenous law, civil law, Islamic law, Talmudic law, the common law, etc. Traditions include, according to Patrick Glenn, a “canonical point of origination”, followed by “subsequent access and application” and “recapture of the application of the information”. They are processes of normative meaning production that largely feed on themselves. This is surely familiar from human rights’ own history of early liberal revolutions followed by constitutional entrenchment and subsequent practices of rights adjudication through judicial review and the like.

Human rights are immersed in the thickness of each state’s constitutional life, but also increasingly part and parcel of local legal traditions which they help reshape. Domestic rights cultures, in fact, preceded the international human rights movement by centuries, have continued to develop alongside it, and, in many societies, still provide the obvious point of reference for the articulation of rights claims. Traditions of human rights have given rise over time not only to irreducible ways of thinking about human rights generally, but also to significant differences in what counts as a right or how rights should be enforced.

That there are such traditions of rights – and here I mention only those that explicitly incorporate human rights language – is obvious. The French Republican and Rousseauian conception of human rights is distinct from a Lockean minimalist and individualist concept; the Inter-American Convention on Human Rights effectively bans abortion by conceptualizing the right to life as beginning with conception where Canada considers that banning abortion is a violation of women’s rights; freedom of expression in the US is understood as largely unlimited, whereas most of the rest of the world sees no problem with limiting rights; secularism means very different things for freedom of religion in Turkey or the UK; India and South Africa have foregrounded economic and social rights where other constitutions have not; even authoritarian regimes have their own traditions of human rights, dubious as they may be. There is also a particular tradition of thinking about human rights internationally as pertaining to some global political heritage, a tradition that is remarkably young by the standards of many others that have preceded it.

Note that I use the term “tradition” purposefully even though human rights, in their characteristic modernist fashion, have always been raised as bulwarks against tradition (as Patrick Glenn once put it, there is, after all “a tradition of modernity”). What an irony, then, that they are themselves susceptible to the pull of traditions – but what a predictable and perhaps wonderful irony.

The obvious retort is that this leads to utter relativism, the death of human rights in the name of pluralism. But surely the issue is far more complex. In fact, I would suggest that the opposite may be true, that the evisceration of human rights lies in the (risk of) utter abstraction of the rights creed from particular life worlds. The more universal rights are claimed to be, the more they need be couched in abstract terms; the more abstract, the less accessible and even unintelligible they become. They turn into mere platitudes that everyone can agree with one minute, only to disagree vociferously the next as the conversation descends into spelling out their content.

Unless we think that these many local and national traditions of thinking about human rights are an elaborate ill-faith subterfuge to lure the international community into thinking that particular communities take human rights seriously, we must acknowledge that they are, in fact, both genuine and distinct and, what is more, that they run particularly deep. In other words, these local and national traditions not only historically but logically and normatively precede the commitment to universalism.

This is particularly evident in countries that have historically invested the most in the Western vernacular of rights (the US, France, Canada, the UK are examples), and which have, precisely as a result, sometimes been the most reticent towards international human rights standards. It should be stressed, in this respect, that early invocations of universalism only reached out to the global to better make a domestic point. Although this underscores in part their hypocrisy, it also suggests that universalism was understood as quite compatible with distinct national rights developments, at least within a certain family of thought.

Rather than thinking of traditions of human rights as a regrettable left over of nation building projects waiting to be dissolved into a bland universal consensus, then, we might be well advised to rehabilitate them for what they are, as ways of interrogating the universal in particular contexts (the authenticity imperative), and the particular from an imagined universal perspective (the generalizability imperative). Traditions mediate abstract thought and identity, aspiration and grounding, cosmopolitanism and communitarianism. Perhaps more importantly, traditions provide a rich texture with which to give consonance to complex debates about what rights are and how they should operate, debates that often make little sense except in conversation with particular social and political configurations. They foreground the importance of practice, of “muddling through,” of making sense of shared ideals for oneself, and of fraught political and democratic practices, as opposed to theory.

Finally, traditions can be useful for the international human rights project in its more universalizing variant, by providing rich independent reservoirs of cultures of human rights that can be reinvigorated for various uses. Think of the multiplicity of traditions as so many species in an ecosystem providing biodiversity: the Amazon rather than a single soya crop. In that respect, if there is to be a universality to human rights, it is surely the universality of traditions of human rights.

About the author

Frédéric Mégret
Image by Lysanne Larose.
Frédéric Mégret, PhD, is a Full Professor and a William Dawson Scholar at the Faculty of Law of McGill University. He also held the Canada Research Chair in the Law of Human Rights and Legal Pluralism and is affiliated with the McGill Centre of the same name. He holds an LlB from King’s College London, a DEA from the Université de Paris I, and a PhD from the Graduate Institute of International Studies (Geneva), as well as a diploma from Sciences Po Paris. His work focuses on some of the theoretical dimensions of international law, international criminal justice, international human rights law and the laws of war.

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