Universalism and Cultural Relativism

Core claim: human rights belong to every human being simply as a human being, everywhere and at all times, because of shared human dignity. They are not created by States or cultures, so no culture or government can legitimately deny them.

Foundations: natural law and natural rights (Locke, Kant on dignity), the idea of a common humanity, the moral minimum necessary for a decent life.

Textual support: the UDHR (1948) claims to be “a common standard of achievement for all peoples and all nations”; the Vienna Declaration and Programme of Action 1993 (Part I, paragraph 1) says the universal nature of human rights is beyond question, and paragraph 5 says all human rights are universal, indivisible, interdependent and interrelated, that national and regional particularities and different historical, cultural and religious backgrounds must be borne in mind, but that it is the duty of States, whatever their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.

Evidence of universality: near-universal ratification of the Convention on the Rights of the Child; wide acceptance of the ICCPR and ICESCR; the status of some norms as customary law or jus cogens (prohibition of genocide, torture, slavery); the Universal Periodic Review of every State.

Arguments for universalism: (a) cultures are not monolithic and have internal dissenters (women, minorities, dissidents) whose rights relativism would silence; (b) relativism is often invoked by ruling elites rather than by the people; (c) practices such as female genital mutilation, honour killings, child marriage and slavery cannot be justified by tradition; (d) every major culture contains ideas of dignity and justice, so rights are not purely “Western”; (e) a rejection of universality leads to moral relativism with no basis to condemn atrocities.

Core claim: moral values and rights are products of particular cultures, so there is no culture-independent standard by which one culture may judge another; the universal claim of rights is a form of cultural imperialism or ethnocentrism.

Origins: the American Anthropological Association submitted a statement to the UN Commission on Human Rights in 1947 (drafted by Melville Herskovits) warning that a declaration reflecting only one culture’s values would not command respect; the same logic underlies the abstentions at the UDHR vote (Soviet bloc States, South Africa, Saudi Arabia).

Types: radical (strong) relativism holds culture is the sole source of validity of a moral right or rule. Moderate (weak) relativism accepts a core of universal rights but allows cultural variation in interpretation and implementation.

Arguments for relativism: (a) the UDHR was drafted mostly by Western States and reflects individualism; many societies stress community, family and duties; (b) colonial history and selective use of human rights to pursue political interests (“double standards”); (c) priority of economic development and collective rights in the developing world (Declaration on the Right to Development 1986); (d) respect for the right of peoples to cultural self-determination.

Instruments associated with relativist positions:

• Bangkok Declaration 1993 (Asian States, before Vienna): human rights are universal, but must be considered in the context of a dynamic and evolving process of norm-setting, bearing in mind national and regional particularities and different historical, cultural and religious backgrounds; stresses the right to development and non-interference.

• Cairo Declaration on Human Rights in Islam 1990 (Organisation of the Islamic Conference): rights are subject to the Islamic Shari’ah (Articles 24 and 25).

• African Charter on Human and Peoples’ Rights 1981 (Banjul Charter): recognises peoples’ rights and imposes duties on individuals towards family, society and the State.

• Arab Charter on Human Rights 2004; ASEAN Human Rights Declaration 2012.

• “Asian values” (Lee Kuan Yew of Singapore, Mahathir Mohamad of Malaysia): emphasis on community, order, family, and economic development ahead of civil and political liberties.

• Reservations to human rights treaties (for example to Articles 2 and 16 of CEDAW) based on religious or cultural law; reservations incompatible with the object and purpose of the treaty are invalid under Article 19 of the Vienna Convention on the Law of Treaties and General Comment 24 of the Human Rights Committee (1994).

Ethnocentrism (judging other cultures by one’s own), cultural imperialism, moral relativism, cultural pluralism, cultural rights (Article 27 UDHR; Article 15 ICESCR; UNESCO Universal Declaration on Cultural Diversity 2001; UN Declaration on the Rights of Indigenous Peoples 2007).

Indivisibility (Western States prioritised civil-political rights, socialist and developing States prioritised socio-economic rights; the two Covenants in 1966 were the compromise).

Cultural defence in criminal law (courts accept cultural background as relevant to mitigation, not as a justification).

India’s official position favours universality along with indivisibility and the right to development, plus respect for cultural diversity; at Vienna (1993) India argued against using human rights conditionally to pressure developing States.

Constitutional approach: the Constitution is itself a universalist rights document adapted to a plural society. It protects religious freedom (Articles 25–28) and minority cultural rights (Articles 29–30) but subordinates religious and cultural practices to public order, morality, health and the other fundamental rights.

Courts and culture:

• Commissioner of Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) and the later “essential religious practices” test.

• Mohd. Ahmed Khan v. Shah Bano Begum (1985): maintenance for a divorced Muslim woman under s.125 CrPC; the legislative response (Muslim Women (Protection of Rights on Divorce) Act 1986) shows the cultural-rights tension.

• Shayara Bano v. Union of India (2017): instant triple talaq (talaq-e-biddat) held unconstitutional.

• Indian Young Lawyers Association v. State of Kerala (2018, Sabarimala): restriction on women of menstruating age held unconstitutional by majority; the dissent argued for judicial restraint in matters of faith. A larger bench reference on the scope of religious freedom was pending after the 2019 review reference.

• Navtej Singh Johar v. Union of India (2018): constitutional morality prevails over social morality.

• Independent Thought v. Union of India (2017): sexual intercourse with a wife below 18 is rape (children’s rights over cultural acceptance of child marriage).

• Statutory interventions against customary practices: abolition of untouchability (Article 17 and the Protection of Civil Rights Act 1955), Commission of Sati (Prevention) Act 1987, Child Marriage Restraint Act 1929 replaced by the Prohibition of Child Marriage Act 2006, the Dowry Prohibition Act 1961.