Are human rights universal? The relativist challenge and related matters

Human Rights Quarterly

Volumn 19, Issue 3, 1997, Pages 461-509

  Perry, Michael J ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 0001136329     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.1997.0022     Document Type: Article

References (212)

1. © 1997, Michael J. Perry. This article is drawn from, MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES (forthcoming, Oxford Univ. Press, 1998).
2. NOAM CHOMSKY, FOR REASONS OF STATE 404 (1973).
3. Pope John Paul II, Veritatis Splendor, 23 ORIGINS 297, 314 (1993).
4. See PERRY, supra note 1 (explaining that in some cases the "should," "ought," or "ought not" might be conditional rather than unconditional or absolute).
5. Indeed, one can contend that no secular version of the claim is even intelligible. See PERRY, supra note 1 (inquiring whether there is any intelligible secular version of the claim that every human being is sacred).
6. See, e.g., FRIEDRICH NIETZSCHE, THE WILL TO POWER 147 (Walter Kaufmann ed. & Walter Kaufmann & R.J. Hollingdale trans., 1967) ("Naiveté: as if morality could survive when the God who sanctions it is missing! The 'beyond' absolutely necessary if faith in morality is to be maintained.").
7. See Jürgen Habermas, Transcendence from Within, Transcendence in this World, in HABERMAS, MODERNITY, AND PUBLIC THEOLOGY 226 (Don Browning & Francis Schüssler Fiorenza eds., 1992). Habermas argues: Who or what gives us the courage for such a total engagement that in situations of degradation and deprivation is already being expressed when the destitute and deprived summon the energy each morning to carry on anew? The question about the meaning of life is not meaningless. Nevertheless, the circumstance that penultimate arguments inspire no great confidence is not enough for the grounding of a hope that can be kept alive only in a religious language. The thoughts and expectations directed toward the common good have, after metaphysics has collapsed, only an unstable status. Id. at 239.
8. See Cynthia Price Cohen, United Nations Convention on the Rights of the Child: Introductory Note, 44 REV. INT'L COMM'N JURISTS 36, 39 (1990) (commenting on "[t]he carefully worded compromise language of article 1 which defines a child simply as 'every human being . . .' and leaves it to the State Parties to give their own meaning to the words 'human being' according to their national legislation"); Dominic McGoldrick, The United Nations Convention on the Rights of the Child, 5 INT'L J.L. & FAM. 1 32, 1 33-34 (1991).
9. See Cynthia Price Cohen, United Nations Convention on the Rights of the Child: Introductory Note, 44 REV. INT'L COMM'N JURISTS 36, 39 (1990) (commenting on "[t]he carefully worded compromise language of article 1 which defines a child simply as 'every human being . . .' and leaves it to the State Parties to give their own meaning to the words 'human being' according to their national legislation"); Dominic McGoldrick, The United Nations Convention on the Rights of the Child, 5 INT'L J.L. & FAM. 1 32, 1 33-34 (1991).
10. Universal Declaration of Human Rights, art. 2, adopted 10 Dec. 1948, G.A. Res. 21 7A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT'L L. SUPP. 127 (1949).
11. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966).
12. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, 993 U.N.T.S. 3 (entered into force 3 Jan. 1976), G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966).
13. See Johannes Morsink, World War Two and the Universal Declaration, 15 HUM. RTS. Q. 357, 363 (1993).
14. Richard Rorty, Human Rights, Rationality, and Sentimentality, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993 at 111, 112 (Stephen Shute & Susan Hurley eds., 1993); see also id. at 125.
15. Martha C. Nussbaum, Skepticism about Practical Reason in Literature and the Law, 107 HARV. L REV. 714, 718 (1994).
16. Id. at 744; see also Martha C. Nussbaum, Compassion: The Basic Social Emotion, 1996 Soc. PHIL. & POL'Y 27 (1996).
17. Nathan Stoltzfus, Dissent in Nazi Germany, ATLANTIC Sept. 1992, at 87, 94.
18. Rorty, supra note 13, at 123-24 (emphasis added).
19. See PERRY, supra note 1.
20. See PERRY, supra note 1.
21. See generally L.W. SUMNER, WELFARE, HAPPINESS, AND ETHICS (1996) (providing an important argument about the nature of well-being (welfare)).
22. Something, G, can be good for someone in the sense that G serves her well-being even if she does not believe that C serves her well-being - indeed, even if she believes that G disserves her well-being - and does not want C. Similarly, something, B, can be bad for someone in the sense that it disserves her well-being even if she does not believe that B disserves her well-being - even if she believes that B serves her well-being - and wants B. In short, human beings can be mistaken about what is truly good for them, or about what is truly bad for them, or about both.
23. Let me pause to forestall a possible misreading. I do not mean to suggest that the fact that something is good for every human being somehow entails that it ought to be done for every human being. That something, B, is bad for every human being - that it disserves the well-being of every human being - does seems to entail (that is, in conjunction with the premise that every human being is sacred it seems to entail) that B ought not to be done, or at least that it conditionally ought not to be done, to any human being; it seems to entail, that is, that no one ought to act for the purpose, or at least that there is a strong presumption against anyone acting for the purpose, of doing B to any human being. See PERRY, supra note 1. However, that something, G, is good for every human being - that it serves the well-being of every human being - does not entail that G ought to be done, or even that it conditionally ought to be done, for every human being; it does not entail that someone (or someones) ought to act for the purpose, or even that there is a strong presumption in favor of someone acting for the purpose, of doing G for every human being (or every human being lawfully within the jurisdiction, or every human being who is a citizen, etc. For example, G might not be something, like "help in trouble" (see infra note 40 and accompanying text), that someone can bestow on another human being. Or it might not be something that anyone can reasonably be thought to be required to bestow on another person just because the other person is a human being (and therefore sacred). Or, G might be something that every human being can achieve, if at all, only for himself or herself, or something that every human being is better off achieving for himself or herself, or, at least, something that the community is better off requiring everyone to achieve for himself or herself. In any event, that something is good for every human being does not by itself entail that it ought to be done for every human being, and I do not mean to suggest otherwise. Nonetheless, that something is good for every human being can be, depending on the nature of that something, part of an argument for concluding that it ought to be done for every human being. (Even if something is not good for every human being, or even for any human being, one might have an obligation to do it for some human being(s) - if, for example, it is not bad for any human being and one has accepted consideration for a promise to do it.) One more clarification. That something - for example, a democratic form of government - might not be good for each and every human being who has it does not entail that international law should not establish a right to that something as a human right; it does not entail that the international law of human rights should not make the choice of that something obligatory. That there is, as a moral matter, and that there should be, as an international legal matter, a human right to X - freedom from torture, for example - might presuppose that something (torture) is bad for everyone who is subjected to it and that freedom from that something is good for every human being who has it; it might presuppose that any human being is better off for having X. But that there is, as a moral matter, and that there should be, as an international legal matter, a human right to X - a democratic form of government, for example, or religious freedom - does not necessarily presuppose that X is good for every human being who has it. For whatever reason(s), there might be some who would be much better off, in one or more respects, if they did not have X. For example, there might be some poor souls, helplessly adrift in the spaces created by modern political and religious freedoms, who would be genuinely better off if, instead of living in a society that enjoyed such freedoms, they lived in a society in which they were told by a benevolent state what political and/or religious orthodoxies to accept. That there is a human right to X might presuppose only that most human beings in any existing society will be much better off (eventually if not right away) if they have X - and that a choice against X, which is a choice favoring the well-being of the few (the genuine well-being, let us assume) over the (genuine) wellbeing of the many, is therefore inconsistent with the premise that all human beings, and not merely some, are sacred.
24. The relativist might also claim that there is not even anything such that most people in any existing society will be better off, eventually if not right away, if they have it. See supra note 22. This article concentrates on the former claim. If the response developed here to the former claim is sound - the response that some things are good and some things are bad for every human being - a fortiori the response works against the second claim as well: some things are good, eventually if not right away, for most human beings in any existing society. Even if the response developed here is sound, there might still be serious disagreement about what things are good or about what things are bad for every human being, or about both, or about what things are good for most human beings in any existing society. (A puzzle: Why might anyone who affirms that there is something about every human being in virtue of which every human being is sacred deny that there is anything about every human being in virtue of which some things are bad or some things are good, or both, for every human being?)
25. Elaine Sciolino, Abuses by Serbs the Worst Since Nazi Era, Report Says, N.Y. TIMES, 20 Jan. 1993, at A8.
26. Stephen Shute & Susan Hurley, Introduction, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES, supra note 13, at 2.
27. Id.
28. Letter from Bosnia, NEW YORKER, 23 Nov. 1992, at 82-95, quoted in Rorty, supra note 13, at 112.
29. World News Tonight With Peter Jennings (18 Feb. 1994), ABC News Transcript #4035.
30. See also Anthony Lewis, The Level of Beasts, N.Y. TIMES, 27 June 1994, at A17 (providing yet another report of horror from the former Yugoslavia).
31. See, e.g., MARK DANNER, THE MASSACRE AT EL MOZOTE: A PARABLE OF THE COLD WAR (1994).
32. See infra text accompanying note 40.
33. I am referring here to wants or preferences the satisfaction of which is not antithetical to human flourishing or otherwise morally problematic.
34. DAVID B. WONG, MORAL RELATIVITY 158 (1984).
35. STUART HAMPSHIRE, MORALITY AND CONFLICT 155 (1983).
36. Cf. HILARY PUTNAM, REASON, TRUTH AND HISTORY (1981). Putnam argues: If today we differ with Aristotle it is in being much more pluralistic than Aristotle was. Aristotle recognized that different ideas of Eudaemonia, different conceptions of human flourishing, might be appropriate for different individuals on account of the difference in their constitution. But he seemed to think that ideally there was some sort of constitution that every one ought to have; that in an ideal world (overlooking the mundane question of who would grow the crops and who would bake the bread) everyone would be a philosopher. We agree with Aristotle that different ideas of human flourishing are appropriate for individuals with different constitutions, but we go further and believe that even in the ideal world there would be different constitutions, that diversity is part of the ideal. And we see some degree of tragic tension between ideals, that the fulfillment of some ideals always excludes the fulfillment of some others. Id. at 148. As Putnam goes on to emphasize, however: "[B]elief in a pluralistic ideal is not the same thing as belief that every ideal of human flourishing is as good as every other. We reject ideals of human flourishing as wrong, as infantile, as sick, as one-sided." Id.; see also id. at 140 (referring to "sick standards of rationality" and "sick conception(s) of human flourishing"); id. at 147 ("We have just as much right to regard some 'evaluational' casts of mind as sick (and we all do) as we do to regard some 'cognitional' casts of mind as sick.").
37. See BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY (1985). Williams argues: [T]here are many and various forms of human excellence which will not all fit together into a one harmonious whole, so any determinate ethical outlook is going to represent some kind of specialization of human possibilities. That idea is deeply entrenched in any naturalistic or . . . historical conception of human nature - that is, in any adequate conception of it - and I find it hard to believe that it will be overcome by an objective inquiry, or that human beings could turn out to have a much more determinate nature than is suggested by what we already know, one that timelessly demanded a life of a particular kind. Id. at 153.
38. See STUART HAMPSHIRE, Two THEORIES OF MORALITY (1977). Hampshire believes that: The correct answer to the old question - "why should it be assumed, or be argued, that there is just one good for man, just one way of life that is best?" - is . . . an indirect one and it is not simple. One can coherently list all the ideally attainable human virtues and achievements, and all the desirable features of a perfect human existence; and one might count this as prescribing the good for man, the perfect realization of all that is desirable. But the best selection from this whole that could with luck be achieved in a particular person will be the supreme end for him, the ideal at which he should aim. It is obvious that supreme ends of this kind are immensely various and always will be various. There can be no single supreme end in this particularized sense, as both social orders and human capabilities change. . . . Id. at 43. That there should be an abstract ethical ideal, the good for men in general, is not inconsistent with there being great diversity in preferred ways of life, even among men living at the same place at the same time. The good for man, as the common starting-point, marks an area within which arguments leading to divergent conclusions about moral priorities can be conducted. The conclusions are widely divergent, because they are determined by different subsidiary premises. Practical and theoretical reason, cleverness, intelligence and wisdom, justice, friendship, temperance in relation to passions, courage, a repugnance in the face of squalid or mean sentiments and actions; these are Aristotle's general and abstract terms, which do not by themselves distinguish a particular way of life, realizable in a particular historical situation. The forms that intelligence and friendship and love between persons, and that nobility of sentiment and motive, can take are at least as various as human cultures; and they are more various still, because within any one culture there will be varieties of individual temperament, providing distinct motives and priorities of interest, and also varieties of social groupings, restricting the choice of ways of life open to individuals.
39. Such differences have figured prominently in international political debates about human rights between proponents of liberal-democratic human rights of the sort emphasized in the "first" world and proponents of socialist human rights of the sort emphasized in the "second" world. See generally DAVID HOLLENBACH, CLAIMS IN CONFLICT: RETRIEVING AND RENEWING THE CATHOLIC HUMAN RIGHTS TRADITION (1979); MAX L. STACKHOUSE, CREEDS, SOCIETY, AND HUMAN RIGHTS: A STUDV IN THREE CULTURES (1984). Cf. infra note 70.
40. Such differences have figured prominently in international political debates about human rights between proponents of liberal-democratic human rights of the sort emphasized in the "first" world and proponents of socialist human rights of the sort emphasized in the "second" world. See generally DAVID HOLLENBACH, CLAIMS IN CONFLICT: RETRIEVING AND RENEWING THE CATHOLIC HUMAN RIGHTS TRADITION (1979); MAX L. STACKHOUSE, CREEDS, SOCIETY, AND HUMAN RIGHTS: A STUDV IN THREE CULTURES (1984). Cf. infra note 70.
41. STUART HAMPSHIRE, INNOCENCE AND EXPERIENCE 90 (1989) ("Moral relativism has always rested on an under-estimate of universal human needs.").
42. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
43. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
44. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
45. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
46. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
47. Philippa Foot, Moral Relativism, in RELATIVISM: COGNITIVE AND MORAL 152, 164 (Jack W. Meiland & Michael Krausz eds., 1982). For a more elaborate statement, see Martha C. Nussbaum, Human Functioning and Social justice: In Defense of Aristotelian Essentialism, 20 POL. THEORY 202 (1992). See also Jonathan Jacobs, Practical Wisdom, Objectivity, and Relativism, 26 AM. PHIL. Q. 199 (1989); John Kekes, Human Nature and Moral Theories, 28 INQUIRY 231 (1985); Jane E. Larson, "Imagine Her Satisfaction": The Transformative Task of Feminist Tort Work, 33 WASHBURN L.J. 56 (1993); Bimal Krishna Matilal, Ethical Relativism and Confrontation of Cultures, in RELATIVISM: INTERPRETATION AND CONFRONTATION 339, 357 (Michael Krausz ed., 1989) ("The common dispositions, constitutive of the concept of 'the naked man,' may be recognized as numerous simple facts about needs, wants, and desires, for example, removal of suffering, love of justice, courage in the face of injustice, pride, shame, love of children, delight, laughter, happiness.").
48. See Nussbaum, supra note 40; see also MARTHA C. NUSSBAUM, ARISTOTLE ON HUMAN NATURE AND THE FOUNDATIONS OF ETHICS (1990); Martha C. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in THE QUALITY OF LIFE 242-69 (Martha C. Nussbaum & Amartya Sen eds., 1993). The anti-"essentialist" position denies that there are any needs or goods common to each and every human being simply qua human; it denies, in that sense, that there are any needs or goods that are "essentially" human; it denies that there is any human "essence."
49. See Nussbaum, supra note 40; see also MARTHA C. NUSSBAUM, ARISTOTLE ON HUMAN NATURE AND THE FOUNDATIONS OF ETHICS (1990); Martha C. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, in THE QUALITY OF LIFE 242-69 (Martha C. Nussbaum & Amartya Sen eds., 1993). The anti-"essentialist" position denies that there are any needs or goods common to each and every human being simply qua human; it denies, in that sense, that there are any needs or goods that are "essentially" human; it denies that there is any human "essence."
50. RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY xiii (1989). Rorty writes approvingly of "this historicist turn," which, he says, "has helped free us, gradually but steadily, from theology and metaphysics - from the temptation to look for an escape from time and chance. It has helped us substitute Freedom for Truth as the goal of thinking and of social progress." Id. For an excellent critique of this and related aspects of Rorty's views, see Timothy P. Jackson, The Theory and Practice of Discomfort: Richard Rorty and Pragmatism, 51 THOMIST 270 (1987).
51. RICHARD RORTY, CONTINGENCY, IRONY, AND SOLIDARITY xiii (1989). Rorty writes approvingly of "this historicist turn," which, he says, "has helped free us, gradually but steadily, from theology and metaphysics - from the temptation to look for an escape from time and chance. It has helped us substitute Freedom for Truth as the goal of thinking and of social progress." Id. For an excellent critique of this and related aspects of Rorty's views, see Timothy P. Jackson, The Theory and Practice of Discomfort: Richard Rorty and Pragmatism, 51 THOMIST 270 (1987).
52. Richard Rorty, Solidarity or Objectivity?, in POST-ANALYTIC PHILOSOPHY 3, 11 (John Rajchman & Cornel West eds., 1985) (emphasis added).
53. Bernard Williams, Auto-da-Fé, N.Y. TIMES BOOK REV., 28 Apr. 1983, at 33.
54. RORTY, supra note 42, at xiii.
55. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, supra note 41, at 243 (emphasis added).
56. See CHOMSKY, supra note 2, at 404.
57. I concur in Martha Nussbaum's comment: I grant that some criticisms of some forms of essentialism have been fruitful and important: they have established the ethical debate on a more defensible metaphysical foundation and have redirected our gaze from unexamined abstract assumptions to the world and its actual history. But I argue that those who would throw out all appeals to a determinate account of human being, human functioning, and human flourishing are throwing away far too much. . . . Nussbaum, supra note 40, at 205. A comment by feminist legal theorist Robin West, though directed specifically to other feminist theorists, is relevant here: What is of value in critical social theory for feminists? My suspicion is that what attracts many feminists to critical social theory is not its anti-essentialism, but more simply its skepticism: its refusal to accept any particular account of truth or morality as the essential true, moral or human viewpoint. This skepticism is entirely healthy and something we should treasure. The antiessentialism of the critical theorist's vision, by contrast, is something we should reject. Surely we can have this both ways. A skepticism toward particular claims of objective truth, a particular account of the self, and any particular account of gender, sexuality, biology or what is or is not natural, is absolutely necessary to a healthy and modern feminism. But that skepticism need not require an unwillingness to entertain descriptions of subjective and intersubjective authenticity. . . . Robin West, Feminism, Critical Social Theory, and the Law, 1989 U. CHI. LEGAL F. 59, 96-97 (1989). For a more elaborate statement, see Robin West, Relativism, Objectivity, and Law, 99 YALE L.J. 1473 (1990).
58. I concur in Martha Nussbaum's comment: I grant that some criticisms of some forms of essentialism have been fruitful and important: they have established the ethical debate on a more defensible metaphysical foundation and have redirected our gaze from unexamined abstract assumptions to the world and its actual history. But I argue that those who would throw out all appeals to a determinate account of human being, human functioning, and human flourishing are throwing away far too much. . . . Nussbaum, supra note 40, at 205. A comment by feminist legal theorist Robin West, though directed specifically to other feminist theorists, is relevant here: What is of value in critical social theory for feminists? My suspicion is that what attracts many feminists to critical social theory is not its anti-essentialism, but more simply its skepticism: its refusal to accept any particular account of truth or morality as the essential true, moral or human viewpoint. This skepticism is entirely healthy and something we should treasure. The antiessentialism of the critical theorist's vision, by contrast, is something we should reject. Surely we can have this both ways. A skepticism toward particular claims of objective truth, a particular account of the self, and any particular account of gender, sexuality, biology or what is or is not natural, is absolutely necessary to a healthy and modern feminism. But that skepticism need not require an unwillingness to entertain descriptions of subjective and intersubjective authenticity. . . . Robin West, Feminism, Critical Social Theory, and the Law, 1989 U. CHI. LEGAL F. 59, 96-97 (1989). For a more elaborate statement, see Robin West, Relativism, Objectivity, and Law, 99 YALE L.J. 1473 (1990).
59. D.J. O'CONNOR, AQUINAS AND NATURAL LAW 57 (1968) ("In so far as any common core can be found to the principal versions of the natural law theory, it seems to amount to the statement that the basic principles of morals and legislation are, in some sense or other, objective, accessible to reason and based on human nature.").
60. See MICHAEL J. PERRY, MORALITY, POLITICS, AND LAW 9-23 (1988). If personal "autonomy" is a particular, and particularly important, constituent of human well-being, then protecting such autonomy is protecting an important constituent of human well-being and protecting human well-being in its entirety requires protecting personal autonomy. On the relation of human well-being and personal autonomy, see Joseph Raz, Liberalism, Skepticism, and Democracy, 74 IOWA L. REV. 761, 779-86 (1989).
61. See MICHAEL J. PERRY, MORALITY, POLITICS, AND LAW 9-23 (1988). If personal "autonomy" is a particular, and particularly important, constituent of human well-being, then protecting such autonomy is protecting an important constituent of human well-being and protecting human well-being in its entirety requires protecting personal autonomy. On the relation of human well-being and personal autonomy, see Joseph Raz, Liberalism, Skepticism, and Democracy, 74 IOWA L. REV. 761, 779-86 (1989).
62. One who holds the natural law position might also believe, and surely will believe: (1) that some things are good and some things are bad only for some human beings; and (2) that, nonetheless, whatever is good for a human being should be valued by that human being and whatever is bad for a human being should be disvalued by that human being. But the emphasis in the natural law tradition is on what is good/bad for every human being rather than on what is good/bad just for some human beings. (That something is good - sleep, for example - and should therefore be valued does not entail that one should value it more highly than something else with which, in the circumstances, it competes - for example, caring for one's sick child.) Properly understood, the "should" ("should be valued," "should be disvalued") is hypothetical rather than categorical. See PERRY, supra note 50, at 12-19.
63. Nussbaum, Non-Relative Virtues: An Aristotelian Approach, supra note 41, at 243.
64. See Pope John Paul II, supra note 3, at 314.
65. See supra text accompanying note 2.
66. See Robin W. Lovin, Perry, Naturalism, and Religion in Public, 63 TUL. L. REV. 1517 (1989). Lovin states: Perry speaks of "human good" in nonrelativist terms, not because he thinks that there is universal agreement about what is good for persons, nor even because he believes that there is some single ideal of human flourishing that would satisfy everyone, but because he thinks that people who disagree about the human good understand that they are disagreeing about the same thing. They are not talking about, say, architecture and tennis, in which the terms are so different that we would wonder how two people arguing about the relative merits of a good lobby and a good volley got into the same conversation. An argument over the relative values of artistic and athletic achievement in a complete human life, by contrast, does make sense, even if we are not certain that there is one and only one best solution to the problem. Id. at 1532-33. Cf. Amélie Oksenberg Rorty, Relativism, Persons, and Practices, in RELATIVISM: INTERPRETATION AND CONFRONTATION, supra note 40, at 418. [R]elativists are quite right to insist that even such dramatically basic activities as birth, copulation, and death, such basic processes as eating and sleeping, physical growth and physical decay, are intentionally described in ways that affect phenomenological experience. Events and processes are encompassed and bounded, articulated and differentiated, within the web of a culture's conceptual and linguistic categories; their meaning is formed by its primary practices and sacred books, songs and rituals. Even the conceptions of social practices and meaning are sufficiently culturally specific so that it is tendentious to refer to conceptions of culture practices, as if culture or practice were Platonic forms, waiting to be conceptualized this way or that. Indeed the very practices of interpretation and evaluation are themselves culturally variable. But nothing follows from this about the impossibility of crosscultural interpretation, communication, or evaluation, particularly among cultures engaged in practical interactions with one another. The core truth of relativism - the intentionality of practice and experience - does not entail that successful communication and justified evaluation require strict identity of meaning. There are, furthermore, basic culturally invariant psychophysical and biosocial salience markers that set the boundaries of attention, however variously these foci may be identified, interpreted, or evaluated. Id. at 418-19 (emphasis added).
67. See Robin W. Lovin, Perry, Naturalism, and Religion in Public, 63 TUL. L. REV. 1517 (1989). Lovin states: Perry speaks of "human good" in nonrelativist terms, not because he thinks that there is universal agreement about what is good for persons, nor even because he believes that there is some single ideal of human flourishing that would satisfy everyone, but because he thinks that people who disagree about the human good understand that they are disagreeing about the same thing. They are not talking about, say, architecture and tennis, in which the terms are so different that we would wonder how two people arguing about the relative merits of a good lobby and a good volley got into the same conversation. An argument over the relative values of artistic and athletic achievement in a complete human life, by contrast, does make sense, even if we are not certain that there is one and only one best solution to the problem. Id. at 1532-33. Cf. Amélie Oksenberg Rorty, Relativism, Persons, and Practices, in RELATIVISM: INTERPRETATION AND CONFRONTATION, supra note 40, at 418. [R]elativists are quite right to insist that even such dramatically basic activities as birth, copulation, and death, such basic processes as eating and sleeping, physical growth and physical decay, are intentionally described in ways that affect phenomenological experience. Events and processes are encompassed and bounded, articulated and differentiated, within the web of a culture's conceptual and linguistic categories; their meaning is formed by its primary practices and sacred books, songs and rituals. Even the conceptions of social practices and meaning are sufficiently culturally specific so that it is tendentious to refer to conceptions of culture practices, as if culture or practice were Platonic forms, waiting to be conceptualized this way or that. Indeed the very practices of interpretation and evaluation are themselves culturally variable. But nothing follows from this about the impossibility of crosscultural interpretation, communication, or evaluation, particularly among cultures engaged in practical interactions with one another. The core truth of relativism - the intentionality of practice and experience - does not entail that successful communication and justified evaluation require strict identity of meaning. There are, furthermore, basic culturally invariant psychophysical and biosocial salience markers that set the boundaries of attention, however variously these foci may be identified, interpreted, or evaluated. Id. at 418-19 (emphasis added).
68. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 61 (1989).
69. Id. at 61-62.
70. Vienna Declaration, World Conference on Human Rights, Vienna, 14-25 June 1993, U.N. Doc. A/CONF,157/24 (Part I) at 20 (1993).
71. Jack Donnelly, Post-Cold War Reflections on the Study of International Human Rights, 8 ETHICS & INT'L AFF. 97, 113 (1994). Where I have put the second ellipsis, Donnelly writes "and interdependence." Donnelly's reference to the "interdependence of internationally recognized human rights" is to the interdependence of "civil and political rights" on the one hand and "economic, social, and cultural rights" on the other. See id. at 111-13.
72. ALASDAIR MACINTYRE, AFTER VIRTUE 152 (1981).
73. Michael Moore, Moral Reality, 1982 Wis. L. REV. 1061, 1089-90 (1982).
74. HAMPSHIRE, supra note 39, at 90.
75. Warren Christopher, Democracy and Human Rights: Where America Stands, 4 U.S. DEP'T. ST. DISPATCH 441, 442 (1993).
76. It is a mistake, therefore, to think that such acts reflect a vision of human good, albeit a perverse vision. Rather, because everyone (not least, the perpetrators) understands that such acts - acts of calculated and gratuitous cruelty - are horrible for the victims, such acts constitute an existential, if not a reflective or self-conscious, denial that the victims are sacred. Some acts that violate one or another human right (or that are plausibly believed to do so) - some acts that do to a human being what ought not to be done to any human being, or that fail to do for a human being what ought to be done for every human being - can fairly be understood to reflect a (mistaken) vision of human good. Moreover, some acts that violate one or another human right can fairly be understood to reflect, not the view that the victims of the act are not sacred, but only a (perhaps mistaken) judgment that the act, understood as a means, is justified by the end it serves. Some terrorist acts come to mind here - shootings and bombings - as do many acts of war. But it seems difficult to understand acts of calculated and gratuitous cruelty like those reported above as not reflecting, however unselfconsciously, the view that the victims of the act are somehow subhuman and therefore not sacred.
77. Clitoridectomy is one of a collection of practices often subsumed under the name "female circumcision," or, more accurately, "female genital mutilation." See Larson, supra note 40. Larson explains: Female genital surgeries include clitoridectomy (surgical removal of the clitoris), excision (surgical removal of the clitoris and labia) and infibulation (stitching up the vaginal opening after removal of the clitoris and labia). These practices are sometimes incorrectly called "female circumcision," but this analogy is seriously misleading. The consequences of female genital mutilation are not comparable to the far safer, less painful, non-mutilating (indeed, perhaps prophylactic) practice of removing the penile foreskin. Id. at 60 n.12; see also A Traditional Practice that Threatens Health - Female Circumcision, 40 WORLD HEALTH ORG. CHRON. 31 (1986).
78. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
79. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
80. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
81. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
82. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
83. See generally Katherine Brennan, The Influence of Cultural Relativism on International Human Rights Law: Female Circumcision as a Case Study, 7 L. & INEQ. J. 367 (1989). Female circumcision is practiced in over 20 African countries. . . . [It] is also found in Malaysia, Indonesia, the southern parts of the Arab peninsula, Pakistan, some sects in the Soviet Union, United Arab Emirates, Oman, Bahrain, and South Yemen. Although the operations are most prevalent in Africa and the Middle East, they are also done in Peru, Brazil, eastern Mexico, and among the aboriginal tribes of Australia. Id. at 373 n.26. For recent stories about the practice in African countries, see Neil MacFarquhar, Mutilation of Egyptian Girls: Despite Ban, It Goes On, N.Y. TIMES, 8 Aug. 1996, at A3; Celia W. Dugger, A Refugee's Body Is Intact but Her Family Is Torn, N.Y. TIMES, 11 Sept. 1996, at A1 ; Celia W. Dugger, Genital Ritual Is Unyielding in Africa, N.Y. TIMES, 5 Oct. 1996, at A1 ; James C. McKinley Jr., At a Ceremony in Kenya, A Harsh Rite of Passage For a Brother and Sister, N.Y. TIMES, 5 Oct. 1996, at A6. See also Linda Burstyn, Female Circumcision Comes to America, ATLANTIC, Oct. 1995, at 28.
84. See Christina M. Cerna, Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts, 16 HUM. RTS. Q. 740, 746-48 (1994) (providing data). The language or vocabulary of rights is mainly Western in origin, but like many other artifacts mainly or even solely Western in origin, "rightstalk" has become an international currency. See PERRY, supra note 1.
85. Abdullahi Ahmed An-Na'im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives, 3 HARV. HUM. RTS. J. 13, 15 (1990). But cf. Philip Alston, The Universal Declaration at 35: Western and Passé or Alive and Universal, 31 INT'L COMM. JURISTS REV. 60, 61 (1983) (explaining that although it "has some basis," the argument that Third World participation in the drafting of the Declaration was negligible "is frequently overstated").
86. Abdullahi Ahmed An-Na'im, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives, 3 HARV. HUM. RTS. J. 13, 15 (1990). But cf. Philip Alston, The Universal Declaration at 35: Western and Passé or Alive and Universal, 31 INT'L COMM. JURISTS REV. 60, 61 (1983) (explaining that although it "has some basis," the argument that Third World participation in the drafting of the Declaration was negligible "is frequently overstated").
87. See Cerna, supra note 67, at 747. However, to be a signatory to an international human rights convention is not necessarily to have signed on to everything decreed in the convention. A state might hedge its signing by including, in its signing, one or more "reservations" or "declarations." Indeed, in extreme cases, some signatories have so hedged their signing that they have signed on to very little. See id. at 748-49 (reporting troubling examples with respect to the Convention on the Rights of the Child). The United States finally ratified the ICCPR in 1992, but not without several controversial reservations and declarations. See generally Symposium: The Ratification of the International Covenant on Civil and Political Rights, 42 DEPAUL L. REV. 1167 (1993). The United States has yet to ratify the International Covenant on Economic, Social and Cultural Rights. See Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 AM. J. INT'L L. 365 (1990).
88. See Cerna, supra note 67, at 747. However, to be a signatory to an international human rights convention is not necessarily to have signed on to everything decreed in the convention. A state might hedge its signing by including, in its signing, one or more "reservations" or "declarations." Indeed, in extreme cases, some signatories have so hedged their signing that they have signed on to very little. See id. at 748-49 (reporting troubling examples with respect to the Convention on the Rights of the Child). The United States finally ratified the ICCPR in 1992, but not without several controversial reservations and declarations. See generally Symposium: The Ratification of the International Covenant on Civil and Political Rights, 42 DEPAUL L. REV. 1167 (1993). The United States has yet to ratify the International Covenant on Economic, Social and Cultural Rights. See Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy, 84 AM. J. INT'L L. 365 (1990).
89. See ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 63-67 (1990); Cerna, supra note 67. I am not suggesting that there is unanimity. That there is widespread transcultural agreement does not entail that there is consensus. Widespread transcultural agreement about what human rights people have co-exists with much disagreement about what human rights they have. But, typically, such disagreements are not intercultural: the dividing lines in such disagreements do not separate all the members of one or more cultures from all the members of one or more other cultures; instead, they separate some members of one or more cultures from some other members of the same culture or cultures. The Reagan Administration's effort to paint the International Covenant on Civil and Political Rights (ICCPR) as a "Western" document and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a "non-Western," "socialist" document, though not surprising, was not at all persuasive. For an important discussion and development of the point, see Alston, supra note 69, at 375-76, 386-88. [T]he suggestion that the concept of economic and social rights is a "Soviet-Third World" creation does a gross injustice to the Catholic and many other churches (at least since the late 19th century) and those many Western European states, not to mention Australia and New Zealand, which have consistently championed economic and social rights, at least since the creation of the United Nations in 1945 and, in most cases, since the establishment of the International Labour Organisation in 1919. Id. at 387-88. It is often the case, as the Reagan Administration's effort to discredit the ICESCR illustrates, that "norms in societies are presumed to be ascertainable and cohesive; the multiply-constituted nature and competing understandings of any given culture are rarely discussed, and the tensions and contradictions within a society go unmentioned." Annie Bunting, Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies, 20 J.L. & Soc'y 6, 9-10 (1993). In particular, "the notion of 'Western' is rarely problematized by critics; while culture is seen as differentiated along the Western/non-Western lines, Western culture itself is not seen as heterogenous. Norms of morality within the West may be as diverse as norms found in non-Western contexts." Id. at 9. Not surprisingly, national leaders elsewhere have done in their political contexts what President Reagan did in his, namely, assert that some universally proclaimed human rights were more provincial than universal. Indeed, one prominent national leader, Chinese Premier Li Peng, has mirror-imaged President Reagan: Whereas Reagan focused on "economic, social and cultural rights" of the sort protected by the ICESCR, Li Peng has focused on "political and civil rights" of the sort protected by the ICCPR. See Tom J. Farer & Felice Gaer, The UN and Human Rights: At the End of the Beginning, in UNITED NATIONS, DIVIDED WORLD 240 (Adam Roberts & Benedict Kingsbury eds., 2d ed., 1993). Farer and Gaer refer to: [T]he not infrequent claims of certain political leaders that many of the civil and political rights enumerated in the Universal Declaration [of Human Rights] and other sacred texts, rather than reflecting universally relevant demands and interests, are provincial products of the West's singular historical experience and the liberal ideology stemming therefrom. Id. at 294. The authors cite in the footnote "the statement of Chinese Premier Li Peng to the first-ever heads-of-state meeting of the Security Council on 31 Jan. 1992. UN Doc. S/PV.3046, pp. 92-3." Id. at 294 n.114. See also Pieter van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms, 13 NETHERLANDS Q. HUM. RTS. 105, 105, 118-19 (1995) (quoting Speech of Liu Huaqiu, head of Chinese delegation, Vienna, 15 June 1993).
90. See ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 63-67 (1990); Cerna, supra note 67. I am not suggesting that there is unanimity. That there is widespread transcultural agreement does not entail that there is consensus. Widespread transcultural agreement about what human rights people have co-exists with much disagreement about what human rights they have. But, typically, such disagreements are not intercultural: the dividing lines in such disagreements do not separate all the members of one or more cultures from all the members of one or more other cultures; instead, they separate some members of one or more cultures from some other members of the same culture or cultures. The Reagan Administration's effort to paint the International Covenant on Civil and Political Rights (ICCPR) as a "Western" document and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a "non-Western," "socialist" document, though not surprising, was not at all persuasive. For an important discussion and development of the point, see Alston, supra note 69, at 375-76, 386-88. [T]he suggestion that the concept of economic and social rights is a "Soviet-Third World" creation does a gross injustice to the Catholic and many other churches (at least since the late 19th century) and those many Western European states, not to mention Australia and New Zealand, which have consistently championed economic and social rights, at least since the creation of the United Nations in 1945 and, in most cases, since the establishment of the International Labour Organisation in 1919. Id. at 387-88. It is often the case, as the Reagan Administration's effort to discredit the ICESCR illustrates, that "norms in societies are presumed to be ascertainable and cohesive; the multiply-constituted nature and competing understandings of any given culture are rarely discussed, and the tensions and contradictions within a society go unmentioned." Annie Bunting, Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies, 20 J.L. & Soc'y 6, 9-10 (1993). In particular, "the notion of 'Western' is rarely problematized by critics; while culture is seen as differentiated along the Western/non-Western lines, Western culture itself is not seen as heterogenous. Norms of morality within the West may be as diverse as norms found in non-Western contexts." Id. at 9. Not surprisingly, national leaders elsewhere have done in their political contexts what President Reagan did in his, namely, assert that some universally proclaimed human rights were more provincial than universal. Indeed, one prominent national leader, Chinese Premier Li Peng, has mirror-imaged President Reagan: Whereas Reagan focused on "economic, social and cultural rights" of the sort protected by the ICESCR, Li Peng has focused on "political and civil rights" of the sort protected by the ICCPR. See Tom J. Farer & Felice Gaer, The UN and Human Rights: At the End of the Beginning, in UNITED NATIONS, DIVIDED WORLD 240 (Adam Roberts & Benedict Kingsbury eds., 2d ed., 1993). Farer and Gaer refer to: [T]he not infrequent claims of certain political leaders that many of the civil and political rights enumerated in the Universal Declaration [of Human Rights] and other sacred texts, rather than reflecting universally relevant demands and interests, are provincial products of the West's singular historical experience and the liberal ideology stemming therefrom. Id. at 294. The authors cite in the footnote
91. See ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 63-67 (1990); Cerna, supra note 67. I am not suggesting that there is unanimity. That there is widespread transcultural agreement does not entail that there is consensus. Widespread transcultural agreement about what human rights people have co-exists with much disagreement about what human rights they have. But, typically, such disagreements are not intercultural: the dividing lines in such disagreements do not separate all the members of one or more cultures from all the members of one or more other cultures; instead, they separate some members of one or more cultures from some other members of the same culture or cultures. The Reagan Administration's effort to paint the International Covenant on Civil and Political Rights (ICCPR) as a "Western" document and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a "non-Western," "socialist" document, though not surprising, was not at all persuasive. For an important discussion and development of the point, see Alston, supra note 69, at 375-76, 386-88. [T]he suggestion that the concept of economic and social rights is a "Soviet-Third World" creation does a gross injustice to the Catholic and many other churches (at least since the late 19th century) and those many Western European states, not to mention Australia and New Zealand, which have consistently championed economic and social rights, at least since the creation of the United Nations in 1945 and, in most cases, since the establishment of the International Labour Organisation in 1919. Id. at 387-88. It is often the case, as the Reagan Administration's effort to discredit the ICESCR illustrates, that "norms in societies are presumed to be ascertainable and cohesive; the multiply-constituted nature and competing understandings of any given culture are rarely discussed, and the tensions and contradictions within a society go unmentioned." Annie Bunting, Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies, 20 J.L. & Soc'y 6, 9-10 (1993). In particular, "the notion of 'Western' is rarely problematized by critics; while culture is seen as differentiated along the Western/non-Western lines, Western culture itself is not seen as heterogenous. Norms of morality within the West may be as diverse as norms found in non-Western contexts." Id. at 9. Not surprisingly, national leaders elsewhere have done in their political contexts what President Reagan did in his, namely, assert that some universally proclaimed human rights were more provincial than universal. Indeed, one prominent national leader, Chinese Premier Li Peng, has mirror-imaged President Reagan: Whereas Reagan focused on "economic, social and cultural rights" of the sort protected by the ICESCR, Li Peng has focused on "political and civil rights" of the sort protected by the ICCPR. See Tom J. Farer & Felice Gaer, The UN and Human Rights: At the End of the Beginning, in UNITED NATIONS, DIVIDED WORLD 240 (Adam Roberts & Benedict Kingsbury eds., 2d ed., 1993). Farer and Gaer refer to: [T]he not infrequent claims of certain political leaders that many of the civil and political rights enumerated in the Universal Declaration [of Human Rights] and other sacred texts, rather than reflecting universally relevant demands and interests, are provincial products of the West's singular historical experience and the liberal ideology stemming therefrom. Id. at 294. The authors cite in the footnote "the statement of Chinese Premier Li Peng to the first-ever heads-of-state meeting of the Security Council on 31 Jan. 1992. UN Doc. S/PV.3046, pp. 92-3." Id. at 294 n.114. See also Pieter van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms, 13 NETHERLANDS Q. HUM. RTS. 105, 105, 118-19 (1995) (quoting Speech of Liu Huaqiu, head of Chinese delegation, Vienna, 15 June 1993).
92. See ANTONIO CASSESE, HUMAN RIGHTS IN A CHANGING WORLD 63-67 (1990); Cerna, supra note 67. I am not suggesting that there is unanimity. That there is widespread transcultural agreement does not entail that there is consensus. Widespread transcultural agreement about what human rights people have co-exists with much disagreement about what human rights they have. But, typically, such disagreements are not intercultural: the dividing lines in such disagreements do not separate all the members of one or more cultures from all the members of one or more other cultures; instead, they separate some members of one or more cultures from some other members of the same culture or cultures. The Reagan Administration's effort to paint the International Covenant on Civil and Political Rights (ICCPR) as a "Western" document and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as a "non-Western," "socialist" document, though not surprising, was not at all persuasive. For an important discussion and development of the point, see Alston, supra note 69, at 375-76, 386-88. [T]he suggestion that the concept of economic and social rights is a "Soviet-Third World" creation does a gross injustice to the Catholic and many other churches (at least since the late 19th century) and those many Western European states, not to mention Australia and New Zealand, which have consistently championed economic and social rights, at least since the creation of the United Nations in 1945 and, in most cases, since the establishment of the International Labour Organisation in 1919. Id. at 387-88. It is often the case, as the Reagan Administration's effort to discredit the ICESCR illustrates, that "norms in societies are presumed to be ascertainable and cohesive; the multiply-constituted nature and competing understandings of any given culture are rarely discussed, and the tensions and contradictions within a society go unmentioned." Annie Bunting, Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies, 20 J.L. & Soc'y 6, 9-10 (1993). In particular, "the notion of 'Western' is rarely problematized by critics; while culture is seen as differentiated along the Western/non-Western lines, Western culture itself is not seen as heterogenous. Norms of morality within the West may be as diverse as norms found in non-Western contexts." Id. at 9. Not surprisingly, national leaders elsewhere have done in their political contexts what President Reagan did in his, namely, assert that some universally proclaimed human rights were more provincial than universal. Indeed, one prominent national leader, Chinese Premier Li Peng, has mirror-imaged President Reagan: Whereas Reagan focused on "economic, social and cultural rights" of the sort protected by the ICESCR, Li Peng has focused on "political and civil rights" of the sort protected by the ICCPR. See Tom J. Farer & Felice Gaer, The UN and Human Rights: At the End of the Beginning, in UNITED NATIONS, DIVIDED WORLD 240 (Adam Roberts & Benedict Kingsbury eds., 2d ed., 1993). Farer and Gaer refer to: [T]he not infrequent claims of certain political leaders that many of the civil and political rights enumerated in the Universal Declaration [of Human Rights] and other sacred texts, rather than reflecting universally relevant demands and interests, are provincial products of the West's singular historical experience and the liberal ideology stemming therefrom. Id. at 294. The authors cite in the footnote "the statement of Chinese Premier Li Peng to the first-ever heads-of-state meeting of the Security Council on 31 Jan. 1992. UN Doc. S/PV.3046, pp. 92-3." Id. at 294 n.114. See also Pieter van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms, 13 NETHERLANDS Q. HUM. RTS. 105, 105, 118-19 (1995) (quoting Speech of Liu Huaqiu, head of Chinese delegation, Vienna, 15 June 1993).
93. See generally HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS (Abdullahi Ahmed An-Na'im ed., 1992) (providing a useful collection of relevant articles).
94. See, e.g., Brennan, supra note 66; Anna Funder, De Minimis Non Curat Lex: The Clitoris, Culture and the Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. 417 (1993); Note, What's Culture Got to Do with It? Excising the Harmful Tradition of Female Circumcision, 106 HARV. L. REV. 1944 (1993). See also the helpful compilation of materials in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY 240-54 (Henry J. Steiner & Philip Alston, eds., 1996).
95. See, e.g., Brennan, supra note 66; Anna Funder, De Minimis Non Curat Lex: The Clitoris, Culture and the Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. 417 (1993); Note, What's Culture Got to Do with It? Excising the Harmful Tradition of Female Circumcision, 106 HARV. L. REV. 1944 (1993). See also the helpful compilation of materials in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY 240-54 (Henry J. Steiner & Philip Alston, eds., 1996).
96. See, e.g., Brennan, supra note 66; Anna Funder, De Minimis Non Curat Lex: The Clitoris, Culture and the Law, 3 TRANSNAT'L L. & CONTEMP. PROBS. 417 (1993); Note, What's Culture Got to Do with It? Excising the Harmful Tradition of Female Circumcision, 106 HARV. L. REV. 1944 (1993). See also the helpful compilation of materials in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY 240-54 (Henry J. Steiner & Philip Alston, eds., 1996).
97. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
98. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
99. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
100. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
101. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
102. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
103. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
104. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
105. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
106. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
107. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
108. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
109. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
110. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
111. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
112. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
113. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
114. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
115. The literature on the human rights of women is large and growing. See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-Vision of Human Rights, 12 HUM. RTS. Q. 486 (1990); Bunting, supra note 70; Noreen Burrows, International Law and Human Rights: The Case of Women's Rights, in HUMAN RIGHTS: FROM RHETORIC TO REALITY 80 (Tom Campbell et al. eds., 1986); Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INT'L L. 613 (1991); HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES (Rebecca J. Cook ed., 1994); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125(1994); Ustinia Dolgopol, Women's Voices, Women's Pain, 17 HUM. RTS. Q. 127 (1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517 (1992); Karen Engle, Female Subjects of Public International Law: Human Rights and the Exotic Other Female, 26 NEW ENG. L. REV. 1509 (1992); Hastings Law School Symposium, Rape as a Weapon of War in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 69 (1994); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS (Joanna Kerr ed., 1993); Nancy Kim, Toward a Feminist Theory of Human Rights: Straddling the Fence between Western Imperialism and Uncritical Absolutism, 25 COLUM. HUM. RTS. L. REV. 49 (1993); Catharine A. MacKinnon, Crimes of War, Crimes of Peace, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, supra note 13, at 83; Catharine A. MacKinnon, Rape, Genocide, and Women's Human Rights, 17 HARV. WOMEN'S L.J. 5 (1994); Johannes Morsink, Women's Rights in the Universal Declaration, 13 HUM. RTS. Q. 229 (1991); No Justice, No Peace: Accountability for Rape and Gender-Based Violence in the Former Yugoslavia, 5 HASTINGS WOMEN'S L.J. 89 (1994); WOMEN'S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES (Julie Peters & Andrea Wolper eds., 1995); INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 887-967; Fernando R. Tesón, Feminism and International Law: A Reply, 33 VA. J. INT'L L. 647 (1993); Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 MICH. J. INT'L L. 903 (1991). See also supra note 72.
116. In the fall of 1996, Congress outlawed the rite of female genital cutting in the United States . . . and directed federal authorities to inform new immigrants from countries where it is commonly practiced that parents who arrange for their children to be cut here, as well as people who perform the cutting, face up to five years in prison. Celia W. Dugger, New Law Bans Genital Cutting in United States, N.Y. TIMES, 12 Oct. 1996, at A1.
117. Universal Declaration of Human Rights, supra note 9, art. 1.
118. See Larson, supra note 40, at 60 n. 12 ("[T]he practice [of female genital mutilation] is designed to aid male sexual control over females and is designed to destroy female sexual pleasure, and thus represents a direct attack on female sexuality and a reflection of women's subordinate position."). Larson adds that "[t]here is no credible argument that the practice of male circumcision in either non-Western or Western societies is a parallel mark either of hostility to male sexuality or of men's social inferiority." Id.
119. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/ 34/36 (1980), reprinted in 19 I.L.M. 33 (1980) (entered into force 3 Sept. 1981 ); see also Zearfoss, supra note 73 (discussing the Convention for the Elimination of All Forms of Discrimination Against Women).
120. Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).
121. See Brennan, supra note 66, at 374; see also Maynard H. Merwine, How Africa Understands Female Circumcision, N.Y. TIMES, 24 Nov. 1993, at A24 (letter to the editor); Dugger, supra note 66, at A1.
122. See MICHAEL J. PERRY, LOVE AND POWER: THE ROLE OF RELIGION AND MORALITY IN AMERICAN POLITICS 52-65 (1991).
123. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM AND THE POLITICS OF RECOGNITION 25, 72 (Amy Gutmann ed., 1992); see also id. at 66-73.
124. Id. at 72-73.
125. Id. at 73.
126. See Report of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, C.H.R. Res. 1988/34, U.N. ESCOR, Comm'n on Hum. Rts., 40th Sess., 36th mtg., at 62, U.N. Doc. E/CN.4/Sub.2/1988/45 (1988); Brennan, supra note 66, at 392.
127. See generally Donnelly, supra note 59, at 115 ("The goal is cross-cultural consensus not because it . . . somehow validates the norms but because consensus eases implementation."). However, that there is a "cross-cultural consensus" about a norm is at least some evidence that what the norm presupposes about human well-being is accurate, even if the absence of such a consensus does not entail that what the norm presupposes is false.
128. Philip E. Devine, Relativism, 67 MONIST 405, 412 (1984).
129. Richard Rorty, Science as Solidarity, in THE RHETORIC OF THE HUMAN SCIENCES: LANGUAGE AND ARGUMENT IN SCHOLARSHIP AND PUBLIC AFFAIRS 38, 43 (John S. Nelson et al., eds., 1987). Cf. Lynne Rudder Baker, On the Very Idea of a Form of Life, 27 INQUIRY 277 (1984). Rudder Baker argues: [W]hen we think of forms of life as conventional, . . . "we are thinking of convention not as the arrangements a particular culture has found convenient, in terms of its history and geography, for effecting the necessities of human existence, but as those forms of life which are normal to any group of creatures we call human, any group about which we will say, for example, that they have a past to which they respond, or a geographical environment which they manipulate or exploit in certain ways for certain humanly comprehensible motives. Here the array of 'conventions' are not patterns of life which differentiate human beings from one another, but those exigencies of conduct and feeling which all humans share." This passage makes it clear that - the amorphousness of life notwithstanding - most fundamentally, the human species is the locus of forms of life. For specific purposes, "form of life" is sometimes applied to practices that are not universal, as when writers take religion (or a particular religion) to be a form of life, or when writers speak of different societies as exhibiting different forms of life. Although I think that these narrower uses of "form of life" illustrate the elasticity of the idea, and suggest that
130. Richard Rorty, Science as Solidarity, in THE RHETORIC OF THE HUMAN SCIENCES: LANGUAGE AND ARGUMENT IN SCHOLARSHIP AND PUBLIC AFFAIRS 38, 43 (John S. Nelson et al., eds., 1987). Cf. Lynne Rudder Baker, On the Very Idea of a Form of Life, 27 INQUIRY 277 (1984). Rudder Baker argues: [W]hen we think of forms of life as conventional, . . . "we are thinking of convention not as the arrangements a particular culture has found convenient, in terms of its history and geography, for effecting the necessities of human existence, but as those forms of life which are normal to any group of creatures we call human, any group about which we will say, for example, that they have a past to which they respond, or a geographical environment which they manipulate or exploit in certain ways for certain humanly comprehensible motives. Here the array of 'conventions' are not patterns of life which differentiate human beings from one another, but those exigencies of conduct and feeling which all humans share." This passage makes it clear that - the amorphousness of life notwithstanding - most fundamentally, the human species is the locus of forms of life. For specific purposes, "form of life" is sometimes applied to practices that are not universal, as when writers take religion (or a particular religion) to be a form of life, or when writers speak of different societies as exhibiting different forms of life. Although I think that these narrower uses of "form of life" illustrate the elasticity of the idea, and suggest that forms of life, though not clearly demarcated, are thoroughly interwoven and even "nested," they do not tell against the point that Wittgenstein's first concern is with human practices, not with local options. Id. at 279 (quoting STANLEY CAVELL, THE CLAIM OF REASON: WITTGENSTEIN, SKEPTICISM, MORALITY AND TRAGEDY 111 (1979)). See also W.W. Sharrock & R.J. Anderson, Criticizing Forms of Life, 60 PHIL. 394, 395 (1985). Cavell believes that: Whether there are insuperable obstacles to mutual understanding (and, therefore, to external criticism) is not, then, something to be determined a priori, for the simple reason that the answer will depend on the nature of the differences and disagreements involved. . . . There is no basis in Wittgenstein's numerous comments on the nature of human beings and their lives for supposing that understanding between them must be either impossible or inevitable. He seems to try to maintain a perspicuous view of the balance of homogeneity and heterogeneity among human beings. He tries not to lose sight of the fact that human beings are, after all, human beings, members of the same species with their animal constitution (which has ramifying consequences for the lives they do lead) in common. At the same time he emphasizes how much the practices which they create may diverge from one another. Human lives develop in very different directions from the common "starting points" provided by their species inheritance. It is the fact that human beings are the kinds of creatures that they are which lets them take to training, to learn language and other practices. The fact that a human being might, with equal ease, have been inducted into either of two ways of life does not, however, mean that having been drawn into the one he can now adopt the other with the same facility as if he had been brought up to it - learning a second language is not the same as learning a first and, of course, a language like ours makes Chinese harder to learn than French. Two ways of life might, then, be organized in such ways that the grasp of one is inimical to the understanding of the other. Id. at 398.
131. Richard Rorty, Science as Solidarity, in THE RHETORIC OF THE HUMAN SCIENCES: LANGUAGE AND ARGUMENT IN SCHOLARSHIP AND PUBLIC AFFAIRS 38, 43 (John S. Nelson et al., eds., 1987). Cf. Lynne Rudder Baker, On the Very Idea of a Form of Life, 27 INQUIRY 277 (1984). Rudder Baker argues: [W]hen we think of forms of life as conventional, . . . "we are thinking of convention not as the arrangements a particular culture has found convenient, in terms of its history and geography, for effecting the necessities of human existence, but as those forms of life which are normal to any group of creatures we call human, any group about which we will say, for example, that they have a past to which they respond, or a geographical environment which they manipulate or exploit in certain ways for certain humanly comprehensible motives. Here the array of 'conventions' are not patterns of life which differentiate human beings from one another, but those exigencies of conduct and feeling which all humans share." This passage makes it clear that - the amorphousness of life notwithstanding - most fundamentally, the human species is the locus of forms of life. For specific purposes, "form of life" is sometimes applied to practices that are not universal, as when writers take religion (or a particular religion) to be a form of life, or when writers speak of different societies as exhibiting different forms of life. Although I think that these narrower uses of "form of life" illustrate the elasticity of the idea, and suggest that forms of life, though not clearly demarcated, are thoroughly interwoven and even "nested," they do not tell against the point that Wittgenstein's first concern is with human practices, not with local options. Id. at 279 (quoting STANLEY CAVELL, THE CLAIM OF REASON: WITTGENSTEIN, SKEPTICISM, MORALITY AND TRAGEDY 111 (1979)). See also W.W. Sharrock & R.J. Anderson, Criticizing Forms of Life, 60 PHIL. 394, 395 (1985). Cavell believes that: Whether there are insuperable obstacles to mutual understanding (and, therefore, to external criticism) is not, then, something to be determined a priori, for the simple reason that the answer will depend on the nature of the differences and disagreements involved. . . . There is no basis in Wittgenstein's numerous comments on the nature of human beings and their lives for supposing that understanding between them must be either impossible or inevitable. He seems to try to maintain a perspicuous view of the balance of homogeneity and heterogeneity among human beings. He tries not to lose sight of the fact that human beings are, after all, human beings, members of the same species with their animal constitution (which has ramifying consequences for the lives they do lead) in common. At the same time he emphasizes how much the practices which they create may diverge from one another. Human lives develop in very different directions from the common "starting points" provided by their species inheritance. It is the fact that human beings are the kinds of creatures that they are which lets them take to training, to learn language and other practices. The fact that a human being might, with equal ease, have been inducted into either of two ways of life does not, however, mean that having been drawn into the one he can now adopt the other with the same facility as if he had been brought up to it - learning a second language is not the same as learning a first and, of course, a language like ours makes Chinese harder to learn than French. Two ways of life might, then, be organized in such ways that the grasp of one is inimical to the understanding of the other. Id. at 398.
132. Richard Rorty, Science as Solidarity, in THE RHETORIC OF THE HUMAN SCIENCES: LANGUAGE AND ARGUMENT IN SCHOLARSHIP AND PUBLIC AFFAIRS 38, 43 (John S. Nelson et al., eds., 1987). Cf. Lynne Rudder Baker, On the Very Idea of a Form of Life, 27 INQUIRY 277 (1984). Rudder Baker argues: [W]hen we think of forms of life as conventional, . . . "we are thinking of convention not as the arrangements a particular culture has found convenient, in terms of its history and geography, for effecting the necessities of human existence, but as those forms of life which are normal to any group of creatures we call human, any group about which we will say, for example, that they have a past to which they respond, or a geographical environment which they manipulate or exploit in certain ways for certain humanly comprehensible motives. Here the array of 'conventions' are not patterns of life which differentiate human beings from one another, but those exigencies of conduct and feeling which all humans share." This passage makes it clear that - the amorphousness of life notwithstanding - most fundamentally, the human species is the locus of forms of life. For specific purposes, "form of life" is sometimes applied to practices that are not universal, as when writers take religion (or a particular religion) to be a form of life, or when writers speak of different societies as exhibiting different forms of life. Although I think that these narrower uses of "form of life" illustrate the elasticity of the idea, and suggest that forms of life, though not clearly demarcated, are thoroughly interwoven and even "nested," they do not tell against the point that Wittgenstein's first concern is with human practices, not with local options. Id. at 279 (quoting STANLEY CAVELL, THE CLAIM OF REASON: WITTGENSTEIN, SKEPTICISM, MORALITY AND TRAGEDY 111 (1979)). See also W.W. Sharrock & R.J. Anderson, Criticizing Forms of Life, 60 PHIL. 394, 395 (1985). Cavell believes that: Whether there are insuperable obstacles to mutual understanding (and, therefore, to external criticism) is not, then, something to be determined a priori, for the simple reason that the answer will depend on the nature of the differences and disagreements involved. . . . There is no basis in Wittgenstein's numerous comments on the nature of human beings and their lives for supposing that understanding between them must be either impossible or inevitable. He seems to try to maintain a perspicuous view of the balance of homogeneity and heterogeneity among human beings. He tries not to lose sight of the fact that human beings are, after all, human beings, members of the same species with their animal constitution (which has ramifying consequences for the lives they do lead) in common. At the same time he emphasizes how much the practices which they create may diverge from one another. Human lives develop in very different directions from the common "starting points" provided by their species inheritance. It is the fact that human beings are the kinds of creatures that they are which lets them take to training, to learn language and other practices. The fact that a human being might, with equal ease, have been inducted into either of two ways of life does not, however, mean that having been drawn into the one he can now adopt the other with the same facility as if he had been brought up to it - learning a second language is not the same as learning a first and, of course, a language like ours makes Chinese harder to learn than French. Two ways of life might, then, be organized in such ways that the grasp of one is inimical to the understanding of the other. Id. at 398.
133. Williams, supra note 44, at 158; see also Rorty, supra note 43, at 8-9. Rorty states: It is a consequence of this holistic view of knowledge . . . that alternative cultures are not to be thought of on the model of alternative geometries. Alternative geometries are irreconcilable because they have axiomatic structures, and contradictory axioms. They are designed to be irreconcilable. Cultures are not so designed, and do not have axiomatic structures. Id.
134. Williams, supra note 44, at 158; see Chandran Kukathas, Explaining Moral Variety, 11 Soc, PHIL. & POL'Y 1 Winter 1994 (providing an extended argument in support of this claim).
135. Williams, supra note 44, at 158.
136. Oksenberg Rorty, supra note 55, at 418; see also Rorty, Solidarity or Objectivity?, supra note 43. Rorty notes: [T]he distinction between different cultures does not differ in kind from the distinction between theories held by members of a single culture. The Tasmanian aborigines and the British colonists had trouble communicating, but this trouble was different only in extent from the difficulties in communication experienced by Gladstone and Disraeli. Id. at 9.
137. See supra note 70 and accompanying text.
138. Kim, supra note 73, at 88-90; see also Amy Gutmann, The Challenge of Multiculturalism in Political Ethics, 22 PHIL. & PUB. AFF. 171, 172-78 (1993); Thandabantu Nhlapo, Cultural Diversity, Human Rights and the Family in Contemporary Africa: Lessons from the South African Constitutional Debate, 9 INT'L J.L. & FAM. 208, 213 (1995).
139. Kim, supra note 73, at 88-90; see also Amy Gutmann, The Challenge of Multiculturalism in Political Ethics, 22 PHIL. & PUB. AFF. 171, 172-78 (1993); Thandabantu Nhlapo, Cultural Diversity, Human Rights and the Family in Contemporary Africa: Lessons from the South African Constitutional Debate, 9 INT'L J.L. & FAM. 208, 213 (1995).
140. Again, "[a] fully individuable culture is at best a rare thing." See supra note 88, and accompanying text.
141. Lee Yearley, The Author Replies, 21 J. RELIGIOUS ETHICS 385, 392 (1993).
142. Association of African Women for Research and Development, A Statement on Genital Mutilation, in THIRD WORLD - SECOND SEX: WOMEN'S STRUGGLES AND NATIONAL LIBERATION 217 (Miranda Davies ed., 1983); cf. Celia W. Dugger, New Law Bans Genital Cutting in United States, N.Y. TIMES, 12 Oct. 1996, at A1 (reporting that in 1996 the World Bank provided grants to the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, based in Addis Ababa). A study by Katherine Brennan helps us to see how those outside the cultures that practice female circumcision can provide - and, under the auspices of the United Nations, have provided - fruitful opportunities for those inside the cultures, especially women, to develop and then to advance, on the basis of premises and experiences authoritative for (many) persons in those cultures, a critique, partly rooted in human rights norms, of the practice of female circumcision. See Brennan, supra note 66.
143. Association of African Women for Research and Development, A Statement on Genital Mutilation, in THIRD WORLD - SECOND SEX: WOMEN'S STRUGGLES AND NATIONAL LIBERATION 217 (Miranda Davies ed., 1983); cf. Celia W. Dugger, New Law Bans Genital Cutting in United States, N.Y. TIMES, 12 Oct. 1996, at A1 (reporting that in 1996 the World Bank provided grants to the Inter-African Committee on Traditional Practices Affecting the Health of Women and Children, based in Addis Ababa). A study by Katherine Brennan helps us to see how those outside the cultures that practice female circumcision can provide - and, under the auspices of the United Nations, have provided - fruitful opportunities for those inside the cultures, especially women, to develop and then to advance, on the basis of premises and experiences authoritative for (many) persons in those cultures, a critique, partly rooted in human rights norms, of the practice of female circumcision. See Brennan, supra note 66.
144. See supra text accompanying note 63.
145. An-Na'im, supra note 68, at 15. See also these writings: Abdullahi An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1 (1987); ABDULLAHI AN-NA'IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW (1990); Abdullahi An-Na'im, Civil Rights in the Islamic Tradition: Shared Ideals and Divergent Regimes, 25 JOHN MARSHALL L. REV. 267 (1992); Abdullahi An-Na'im, Cultural Transformation and Normative Consensus on the Best Interests of the Child, 8 INT'L J.L. & FAM. 62 (1994).
146. An-Na'im, supra note 68, at 15. See also these writings: Abdullahi An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1 (1987); ABDULLAHI AN-NA'IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW (1990); Abdullahi An-Na'im, Civil Rights in the Islamic Tradition: Shared Ideals and Divergent Regimes, 25 JOHN MARSHALL L. REV. 267 (1992); Abdullahi An-Na'im, Cultural Transformation and Normative Consensus on the Best Interests of the Child, 8 INT'L J.L. & FAM. 62 (1994).
147. An-Na'im, supra note 68, at 15. See also these writings: Abdullahi An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1 (1987); ABDULLAHI AN-NA'IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW (1990); Abdullahi An-Na'im, Civil Rights in the Islamic Tradition: Shared Ideals and Divergent Regimes, 25 JOHN MARSHALL L. REV. 267 (1992); Abdullahi An-Na'im, Cultural Transformation and Normative Consensus on the Best Interests of the Child, 8 INT'L J.L. & FAM. 62 (1994).
148. An-Na'im, supra note 68, at 15. See also these writings: Abdullahi An-Na'im, Religious Minorities Under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1 (1987); ABDULLAHI AN-NA'IM, TOWARD AN ISLAMIC REFORMATION: CIVIL LIBERTIES, HUMAN RIGHTS AND INTERNATIONAL LAW (1990); Abdullahi An-Na'im, Civil Rights in the Islamic Tradition: Shared Ideals and Divergent Regimes, 25 JOHN MARSHALL L. REV. 267 (1992); Abdullahi An-Na'im, Cultural Transformation and Normative Consensus on the Best Interests of the Child, 8 INT'L J.L. & FAM. 62 (1994).
149. An-Na'im, supra note 68, at 15. An-Na'im consider[s] that efforts to promote respect for international human rights standards are often likely to remain superficial and ineffective until such time as they relate directly to, and where possible are promoted through, local cultural, religious and other traditional communities. Philip Alston, The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights, 8 INT'L J.L. & FAM. 1, 8 (1994).
150. The quote is from the editorial introduction accompanying the reprinting of the Declaration in 3 CONCILIUM, at 140-50 (1994). For three recent articles on Islam and Human Rights, see Abdullahi An-Na'im, Islamic Law and Human Rights Today, 10 INTERIGHTS BULL. 3 (1996); Mona Rishmawi, The Arab Charter on Human Rights: A Comment, 10 INTERIGHTS BULL. 8 (1996); Hatem Aly Labib Gabr, Shari'a as Principal Source of Legislation: Rulings of Egypt's Supreme Constitutional Court, 10 INTERICHTS BULL. 43 (1996).
151. The quote is from the editorial introduction accompanying the reprinting of the Declaration in 3 CONCILIUM, at 140-50 (1994). For three recent articles on Islam and Human Rights, see Abdullahi An-Na'im, Islamic Law and Human Rights Today, 10 INTERIGHTS BULL. 3 (1996); Mona Rishmawi, The Arab Charter on Human Rights: A Comment, 10 INTERIGHTS BULL. 8 (1996); Hatem Aly Labib Gabr, Shari'a as Principal Source of Legislation: Rulings of Egypt's Supreme Constitutional Court, 10 INTERICHTS BULL. 43 (1996).
152. The quote is from the editorial introduction accompanying the reprinting of the Declaration in 3 CONCILIUM, at 140-50 (1994). For three recent articles on Islam and Human Rights, see Abdullahi An-Na'im, Islamic Law and Human Rights Today, 10 INTERIGHTS BULL. 3 (1996); Mona Rishmawi, The Arab Charter on Human Rights: A Comment, 10 INTERIGHTS BULL. 8 (1996); Hatem Aly Labib Gabr, Shari'a as Principal Source of Legislation: Rulings of Egypt's Supreme Constitutional Court, 10 INTERICHTS BULL. 43 (1996).
153. Kukathas, supra note 89, at 10.
154. Id.; see also Bruce B. Lawrence, Woman as Subject/Woman as Symbol: Islamic Fundamentalism and the Status of Women, 22 J. RELIGIOUS ETHICS 163, 180-83 (1994).
155. See, e.g., LEILA AHMED, WOMEN AND GENDER IN ISLAM (1992); KARI ELISABETH BORRESEN & KARI VOGT, WOMEN'S STUDIES OF THE CHRISTIAN AND ISLAMIC TRADITIONS: ANCIENT, MEDIEVAL AND RENAISSANCE FOREMOTHERS (1993); FATIMA MERNISSI, THE VEIL AND THE MALE ELITE (1991). I am grateful to my colleague Jane Larson for bringing these works to my attention. See also Seth Mydans, Blame Men, Not Allah, Islamic Feminists Say, N. Y. TIMES, 10 Oct. 1996, at A4.
156. See, e.g., LEILA AHMED, WOMEN AND GENDER IN ISLAM (1992); KARI ELISABETH BORRESEN & KARI VOGT, WOMEN'S STUDIES OF THE CHRISTIAN AND ISLAMIC TRADITIONS: ANCIENT, MEDIEVAL AND RENAISSANCE FOREMOTHERS (1993); FATIMA MERNISSI, THE VEIL AND THE MALE ELITE (1991). I am grateful to my colleague Jane Larson for bringing these works to my attention. See also Seth Mydans, Blame Men, Not Allah, Islamic Feminists Say, N. Y. TIMES, 10 Oct. 1996, at A4.
157. See, e.g., LEILA AHMED, WOMEN AND GENDER IN ISLAM (1992); KARI ELISABETH BORRESEN & KARI VOGT, WOMEN'S STUDIES OF THE CHRISTIAN AND ISLAMIC TRADITIONS: ANCIENT, MEDIEVAL AND RENAISSANCE FOREMOTHERS (1993); FATIMA MERNISSI, THE VEIL AND THE MALE ELITE (1991). I am grateful to my colleague Jane Larson for bringing these works to my attention. See also Seth Mydans, Blame Men, Not Allah, Islamic Feminists Say, N. Y. TIMES, 10 Oct. 1996, at A4.
158. See, e.g., LEILA AHMED, WOMEN AND GENDER IN ISLAM (1992); KARI ELISABETH BORRESEN & KARI VOGT, WOMEN'S STUDIES OF THE CHRISTIAN AND ISLAMIC TRADITIONS: ANCIENT, MEDIEVAL AND RENAISSANCE FOREMOTHERS (1993); FATIMA MERNISSI, THE VEIL AND THE MALE ELITE (1991). I am grateful to my colleague Jane Larson for bringing these works to my attention. See also Seth Mydans, Blame Men, Not Allah, Islamic Feminists Say, N. Y. TIMES, 10 Oct. 1996, at A4.
159. Riffat Hassan, Women in Islam and Christianity: A Comparison, 3 CONCILIUM 18, 22 (1994).
160. Peter Waldman, Leap of Faith: Some Muslim Thinkers Want to Reinterpret Islam for Modern Times, WALL ST. J., 15 Mar. 1995, at A1. For an indication of some of the arguments Islamic reformers, including Islamic feminists, make from within the Islamic tradition, see Carla Makhlouf Obermeyer, A Cross-Cultural Perspective on Reproductive Rights, 17 HUM. RTS. Q. 366, 376-80 (1995).
161. Peter Waldman, Leap of Faith: Some Muslim Thinkers Want to Reinterpret Islam for Modern Times, WALL ST. J., 15 Mar. 1995, at A1. For an indication of some of the arguments Islamic reformers, including Islamic feminists, make from within the Islamic tradition, see Carla Makhlouf Obermeyer, A Cross-Cultural Perspective on Reproductive Rights, 17 HUM. RTS. Q. 366, 376-80 (1995).
162. The Universal Islamic Declaration of Human Rights, though not a part of the international law of human rights or of any domestic law, is nonetheless probative of the extent of transcultural agreement about what many of the human rights are that people have. For a critical analysis, see ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 27 (1991).
163. Foot, supra note 40, at 164; see id. at 165-66 (providing a perceptive explanation why "relativists, and subjectivists generally," are not able to take the whole journey); see also RONALD BEINER, POLITICAL JUDGMENT (1983). Beiner argues that: The question here is not whether there is some ascertainable moral-political framework that will guarantee a resolution in all cases; but rather, whether there is, in principle, any limit to the possibility of overcoming incommensurability. . . . [T]here is no such limit: at no point are we justified in terminating an unresolved argument, for it always remains open to us to persevere with it still further. The next stage of argument may yet bring an enlargement of moral vision to one of the contending parties, allowing this contender to integrate the perspective of the other into his own in a relation of part to whole. . . . Therefore at any point there remains the possibility, though not the guarantee, of resolving deep conflict. . . . Confronted with apparent stalemate, there is no need to give in to moral or intellectual "pluralism," for it always remains open to us to say "Press on with the argument." Id. at 186 n.17.
164. Christopher, supra note 63, at 442.
165. For a discussion of some of the different meanings of the term, see ALISON DUNDES RENTELN, INTERNATIONAL HUMAN RIGHTS: UNIVERSALISM VERSUS RELATIVISM 61-87 (1990); see also Douglas Lee Donoho, Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, 27 STAN. J. INT'L L. 345 (1991).
166. For a discussion of some of the different meanings of the term, see ALISON DUNDES RENTELN, INTERNATIONAL HUMAN RIGHTS: UNIVERSALISM VERSUS RELATIVISM 61-87 (1990); see also Douglas Lee Donoho, Relativism Versus Universalism in Human Rights: The Search for Meaningful Standards, 27 STAN. J. INT'L L. 345 (1991).
167. See supra note 81. One or more of the three positions I am about to criticize might be embedded in an anti-imperialist or anti-colonialist sensibility. Nothing I am about to say is meant to disparage such a sensibility, which might, after all, reflect an embrace of the conviction that every human being - and not just the privileged citizens of the imperial or colonial powers - is sacred.
168. Richard Rorty, Postmodernist Bourgeois Liberalism, 80 J. PHIL. 583, 589 (1983). To say that from any particular evaluative standpoint every culture is not as good as every other is not to deny that there might be one or another evaluative standpoint from which one or another culture is as good as one or another other culture, in this sense: "We may indeed be able to understand the transition [from a particular culture or way of life to another] in terms of gain and loss, but there may be some of both, and an overall judgement may be hard to make." See supra text accompanying note 56.
169. See TAYLOR, supra note 56, at 61.
170. See also SIMON BLACKBURN, RULE-FOLLOWING AND MORAL REALISM IN WITTGENSTEIN: To FOLLOW A RULE 163, 176 (Stephen H. Holtzman & Christopher M. Leich eds., 1981); JOSEPH RAZ, THE AUTHORITY OF LAW 271 (1979); Samuel Scheffler, Moral Scepticism and Ideals of the Person, 62 MONIST 288, 300-01 (1979)
171. See also SIMON BLACKBURN, RULE-FOLLOWING AND MORAL REALISM IN WITTGENSTEIN: To FOLLOW A RULE 163, 176 (Stephen H. Holtzman & Christopher M. Leich eds., 1981); JOSEPH RAZ, THE AUTHORITY OF LAW 271 (1979); Samuel Scheffler, Moral Scepticism and Ideals of the Person, 62 MONIST 288, 300-01 (1979)
172. See also SIMON BLACKBURN, RULE-FOLLOWING AND MORAL REALISM IN WITTGENSTEIN: To FOLLOW A RULE 163, 176 (Stephen H. Holtzman & Christopher M. Leich eds., 1981); JOSEPH RAZ, THE AUTHORITY OF LAW 271 (1979); Samuel Scheffler, Moral Scepticism and Ideals of the Person, 62 MONIST 288, 300-01 (1979)
173. See generally Geoffrey Harrison, Relativism and Tolerance, in RELATIVISM: COGNITIVE AND MORAL, supra note 40, at 229.
174. But cf. Gilbert Harman, Human Flourishing, Ethics, and Liberty, 12 PHIL. & PUB. AFF. 307 (1983). Harman contends that: [We can] condemn other people as evil, bad, or dangerous by our lights, or take them to be our enemies. Nothing prevents us from using our values to judge other people and other moralities. But we only fool ourselves if we think our values give reasons to others who do not accept those values. Id. at 321.
175. See Kim, supra note 73, and accompanying text.
176. See Kukathas, supra note 89, and accompanying text.
177. See Devine, supra note 86, at 405. Devine states that: [R]elativism is not individualistic subjectivism, for which anything goes intellectually; nor is it collective subjectivism, which would settle intellectual questions by voting. The analogy with law makes this point clear: while law is relative to a particular society, law and public opinion are not the same thing. Not anything goes by way of legal argument - the precedents and statutes have to be taken into account. But one can say, so long as one does not do so too often, that the decision of the courts, even those of the last resort, are legally and not just morally or politically wrong. Likewise a moral relativist who finds his basic standards in the ethos of a given society can disagree with the majority of that society (though perhaps not the overwhelming majority) on some moral issue, so long as he is prepared to defend his disagreement on grounds whose relevance the majority is prepared to accept. In brief, while the standards we employ are (according to the relativist) grounded in the fact of their acceptance by a group to which we belong, the application of these standards is objective and not a matter of what people think. Id. at 406. Cf. Jack W. Meiland & Michael Krausz, Introduction, in RELATIVISM: COGNITIVE AND MORAL, supra note 40, at 4. [J]ust as our ordinary conception of truth allows a person to hold beliefs which are false, so too the notion of relative truth must allow an individual to hold beliefs which are false for him or her. If it were not possible for an individual to hold beliefs which were false for him or her, then the notion of relative truth would be superfluous; for then to say that a belief is true for Jones would only be a roundabout way of saying that it was one of Jones' beliefs. And we do not need a new way of saying that. Id.
178. See EDMUND LEACH, SOCIAL ANTHROPOLOGY 56 (1982) (quoting Joseph de Maistre).
179. On the "coherentist" or "holist" nature of justification, see PERRY, supra note 80, at 52-65.
180. See Convention on the Rights of the Child, art. 3, ¶ 1, adopted 20 Nov. 1989, G.A. Res. 44/25, 44 U.N. GAOR Supp. (No. 49) at 165, U.N. Doc. A/44/736 (1989), reprinted in 28 I.L.M. 1448 (1989); Alston, supra note 99, at 18 ("If human rights norms in general can be said to be inherently indeterminate, the best interests principle is located by most of its critics at the most indeterminate outer margins even of that body of norms."). For additional discussions of the Convention on the Rights of the Child, see PRICE COHEN, supra note 8, at 36, 38; McGoldrick, supra note 8, at 132; LAWRENCE J. LEBLANC, THE CONVENTION ON THE RIGHTS OF THE CHILD: UNITED NATIONS LAWMAKING ON HUMAN RIGHTS (1995).
181. U.S. CONST, amend. I, V, VIII.
182. NIHONKOKU KENPO [Constitution], art. 19-21 (Japan).
183. Basic Law: Human Dignity and Freedom, enacted by the Knesset on 12 Adar 5752 (17 Mar. 1992). The bill and explanatory comments were published in Hatza'ot Hok 2086, of 6 Kislev 5752 (13 Nov. 1991), at 60.
184. Basic Law: Human Dignity and Freedom, enacted by the Knesset on 12 Adar 5752 (17 Mar. 1992). The bill and explanatory comments were published in Hatza'ot Hok 2086, of 6 Kislev 5752 (13 Nov. 1991), at 60.
185. There can be little doubt about the practical necessity of establishing normatively indeterminate or, more precisely, underdeterminate norms both in domestic, especially constitutional, law and, above all, in the international law of human rights. For a helpful presentation of the point in the context of the international law of human rights, see Alston, supra note 91. For a presentation in the context of domestic (United States) constitutional law, see MICHAEL J. PERRY, THE CONSTITUTION IN THE COURTS: LAW OR POLITICS? 76-78 (1994).
186. Cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 67 (1921) ("[W]hen [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance."). Hans-Georg Gadamer observed: In both legal and theological hermeneutics there is the essential tension between the text set down - of the law or of the proclamation - on the one hand and, on the other, the sense arrived at by its application in the particular moment of interpretation, either in judgment or in preaching. A law is not there to be understood historically, but to be made concretely valid through being interpreted. Similarly, a religious proclamation is not there to be understood as a merely historical document, but to be taken in a way in which it exercises its saving effect. This includes the fact that the text, whether law or gospel, if it is to be understood properly, i.e., according to the claim it makes, must be understood at every moment, in every particular situation, in a new and different way. Understanding here is always application. HANS-GEORG GADAMER, TRUTH AND METHOD 275 (1975). In the Federalist Papers, James Madison wrote: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." THE FEDERALIST No. 37, at 229 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also KIM LANE SCHEPPELE, LEGAL SECRETS (1988). Lane Scheppele notes: Generally in the literature on interpretation the question being posed is. What does a particular text (or social practice) mean? Posed this way, the interpretive question gives rise to an embarrassing multitude of possible answers, a cacophony of theories of interpretation. . . . [The] question that (in practice) is the one actually asked in the course of lawyering and judging [is]: what. . . does a particular text mean for the specific case at hand?" Id. at 94-95.
187. Cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 67 (1921) ("[W]hen [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance."). Hans-Georg Gadamer observed: In both legal and theological hermeneutics there is the essential tension between the text set down - of the law or of the proclamation - on the one hand and, on the other, the sense arrived at by its application in the particular moment of interpretation, either in judgment or in preaching. A law is not there to be understood historically, but to be made concretely valid through being interpreted. Similarly, a religious proclamation is not there to be understood as a merely historical document, but to be taken in a way in which it exercises its saving effect. This includes the fact that the text, whether law or gospel, if it is to be understood properly, i.e., according to the claim it makes, must be understood at every moment, in every particular situation, in a new and different way. Understanding here is always application. HANS-GEORG GADAMER, TRUTH AND METHOD 275 (1975). In the Federalist Papers, James Madison wrote: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." THE FEDERALIST No. 37, at 229 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also KIM LANE SCHEPPELE, LEGAL SECRETS (1988). Lane Scheppele notes: Generally in the literature on interpretation the question being posed is. What does a particular text (or social practice) mean? Posed this way, the interpretive question gives rise to an embarrassing multitude of possible answers, a cacophony of theories of interpretation. . . . [The] question that (in practice) is the one actually asked in the course of lawyering and judging [is]: what. . . does a particular text mean for the specific case at hand?" Id. at 94-95.
188. Cf. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 67 (1921) ("[W]hen [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance."). Hans-Georg Gadamer observed: In both legal and theological hermeneutics there is the essential tension between the text set down - of the law or of the proclamation - on the one hand and, on the other, the sense arrived at by its application in the particular moment of interpretation, either in judgment or in preaching. A law is not there to be understood historically, but to be made concretely valid through being interpreted. Similarly, a religious proclamation is not there to be understood as a merely historical document, but to be taken in a way in which it exercises its saving effect. This includes the fact that the text, whether law or gospel, if it is to be understood properly, i.e., according to the claim it makes, must be understood at every moment, in every particular situation, in a new and different way. Understanding here is always application. HANS-GEORG GADAMER, TRUTH AND METHOD 275 (1975). In the Federalist Papers, James Madison wrote: "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." THE FEDERALIST No. 37, at 229 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also KIM LANE SCHEPPELE, LEGAL SECRETS (1988). Lane Scheppele notes: Generally in the literature on interpretation the question being posed is. What does a particular text (or social practice) mean? Posed this way, the interpretive question gives rise to an embarrassing multitude of possible answers, a cacophony of theories of interpretation. . . . [The] question that (in practice) is the one actually asked in the course of lawyering and judging [is]: what. . . does a particular text mean for the specific case at hand?" Id. at 94-95.
189. Neil MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 OXFORD J. LEGAL STUD. 539, 548 (1990). Where I have used the term "specification," MacCormick uses the Latin term determinatio, borrowing it from John Finnis. "John Finnis has to good effect re-deployed St. Thomas' concept of determinatio; Hans Kelsen's translators used the term 'concretization' to much the same effect. " Id. (citing J.M. Finnis, On "The Critical Legal Studies Movement, " 30 AM. J. JURIS. 21, 23-25 (1985), and HANS KELSEN, THE PURE THEORY OF LAW 230 (1967)).
190. Neil MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 OXFORD J. LEGAL STUD. 539, 548 (1990). Where I have used the term "specification," MacCormick uses the Latin term determinatio, borrowing it from John Finnis. "John Finnis has to good effect re-deployed St. Thomas' concept of determinatio; Hans Kelsen's translators used the term 'concretization' to much the same effect. " Id. (citing J.M. Finnis, On "The Critical Legal Studies Movement, " 30 AM. J. JURIS. 21, 23-25 (1985), and HANS KELSEN, THE PURE THEORY OF LAW 230 (1967)).
191. Neil MacCormick, Reconstruction after Deconstruction: A Response to CLS, 10 OXFORD J. LEGAL STUD. 539, 548 (1990). Where I have used the term "specification," MacCormick uses the Latin term determinatio, borrowing it from John Finnis. "John Finnis has to good effect re-deployed St. Thomas' concept of determinatio; Hans Kelsen's translators used the term 'concretization' to much the same effect. " Id. (citing J.M. Finnis, On "The Critical Legal Studies Movement, " 30 AM. J. JURIS. 21, 23-25 (1985), and HANS KELSEN, THE PURE THEORY OF LAW 230 (1967)).
192. Anthony T. Kronman, Living in the Law, 54 U. CHI. L. REV. 835, 847-48 (1987).
193. See PERRY, supra note 123, at 70-115.
194. Alston, supra note 99, at 9, 23.
195. Id at 5.
196. See ICCPR, supra note 9 (emphasis added).
197. Alston, supra note 99, at 22. Nor is the reference to these predominantly Third World-focused case studies intended to suggest that the situation in the industrialized countries is radically different. Even within the common law tradition, American and English law have been shown to function very differently, in large part because of the different legal, political and institutional cultures in which the law operates. Id. at 22-23.
198. See PERRY, supra note 1 (collecting and discussing provisions like Article 19 and commenting on the nonabsolute character, in international law, of many human rights).
199. Alston, supra note 99, at 19. "In cultural terms, . . . the Convention (on the Rights of the Child], while by no means perfect, is probably more sensitive to different approaches and perspectives than most of the principal human rights treaties adopted earlier." Id. at 7. (The Convention was adopted in 1990.)
200. Vienna Declaration, supra note 58, Part 1, ¶ 5.
201. Donnelly, supra note 59, at 113.
202. Pope John Paul II, supra note 3, at 314 (emphasis added); see also Alston, supra note 99. Alston explains: Perhaps the best way to understand the role that culture can and does play in this regard is by analogy to the concept of the margin of appreciation within the jurisprudence developed under the European Convention on Human Rights. The analogy also serves to emphasize that the cultural dimension is a universal one and not only something which comes into play when we are considering non-Western cultural factors. The margin of appreciation concept is nowhere to be found in the text of the European Convention. Rather, it is a doctrine which has been developed by the European Commission and Court of Human Rights to enable an appropriate degree of discretion to be accorded to national authorities in their application of the provisions of the Convention. Cultural considerations have figured very prominently in the factors for which the European supervisory organs have been prepared to make some allowance. Moreover, many of the cases in which the doctrine has been most clearly applied and explored have concerned the notion of permissible restrictions upon rights, the organs have also made considerable use of the doctrine in determining the actual scope of many of the rights. Id. at 20. On the "margin of appreciation" doctrine in the European Convention system, see INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 615-17, 626-36.
203. Vienna Declaration, supra note 58, Part I, ¶ 5.
204. Christopher, supra note 63, at 442 (passages rearranged).
205. Alston, supra note 99, at 20.
206. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
207. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
208. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
209. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
210. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
211. Philip Alston, The UN's Human Rights Record: From San Francisco to Vienna and Beyond, 16 HUM. RTS. Q. 375, 384 (1994); see also Anne F. Bayefsky, Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies, 9 RATIO JURIS 42 (1996). Cf. Michael Posner, Rally Round Human Rights, 97 FOREIGN POL. 133 (1994-1995). Posner notes: Many of the Asian governments, like those of China and Singapore, that are most critical of U.S. human rights policy and seek to characterize it as Western-based and culturally biased are among the declining number of regimes that absolutely prevent any independent human rights groups from operating. Their claims of cultural relativism can only be sustained if they continue to prevent their own people from raising human rights issues. But they are fighting a losing battle. Recent experience in countries as diverse as Chile, Kuwait, Nigeria, South Africa, and Sri Lanka leave no doubt that where people are allowed to organize and advocate their own human rights, they will do so. The common denominators in this area are much stronger than the cultural divisions. Id. at 137-38. For a recent example of the Chinese government's effort to deflect the West's emphasis on human rights, see the Speech of Liu Huaqui, head of the Chinese delegation, Vienna, 15 June 1993, quoted in Dijk, supra note 70, at 105. See also Human Rights in China, a statement issued in 1991 by the Information Office of the State Council of the Peoples' Republic of China, excerpted in INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALITY, supra note 72, at 233-34. For a kindred statement on behalf of the countries of East and Southeast Asia, including Singapore, see Bilhari Kausikan, Asia's Differing Standard, 92 FOREIGN POL. 24 (1993). For a skeptical look at the claim "that there is a distinct Asian approach to human rights," see Yash Ghai, Human Rights and Governance: The Asia Debate, 15 AUSTL. Y.B. INT'L L. 1 (1994).
212. Alston, supra note 99, at 20.