Intersecting identities: Matolino’s limited communitarianism and its implications for LGBTQ+ in African communities

Cultural Relativism and the Construction of Culture: An Examination of Japan Annette Marfording (bio) I. Introduction This article suggests a new approach to the human rights debate on the issue of universalism versus cultural relativism of human rights, which has reached an impasse. Proponents of the universality of human rights rely on the International Bill of Rights incorporating the Universal Declaration of Human Rights 1 and the International Human Rights Covenants, 2 and argue that the rights incorporated in these international treaties are so fundamental as to constitute natural law that is universal to human kind. 3 Cultural relativism can be traced back to anthropologist scholars such as Melville [End Page 431] Herskovits 4 and Adamantia Pollis and Peter Schwab, 5 who contended that the international human rights treaties reflect ethnocentric Western perspectives and that the imposition of these external standards on other cultures which uphold different values is wrong. In more recent times some Asian government leaders have eagerly adopted the cultural relativism theory, and have voiced their opposition to the universality of human rights at recent forums such as the World Conference on Human Rights in Vienna in 1993 6 and the ASEAN-EU meeting in Bangkok in March 1996. 7 Their argument is essentially that Western human rights principles are based on the notion of individualism, which is inappropriate for Asian societies, where the interests of the community or the group are given priority over those of the individual. 8 Persuasive arguments can be made in favor of either theory. Relativism seems preferable at first sight, in light of the history of Western colonialism and imperialism, and the ensuing destruction of many cultures. The values espoused in the International Bill of Rights may not be shared by all cultures, and why should different value systems be denied equal validity? Does not the experience of the Third Reich and of the more recent Bosnian crisis suggest that tolerance for diversity is not merely an important value in itself, but a condition precedent to the survival of human life and humanity? On the other hand, the fundamental aim of human rights is to protect the individual from the exercise of public power. In view of the worldwide growth of the modern state, and the ensuing heightened vulnerability of the individual to the exercise of its power, human rights principles and protections have become even more important. In my view there are two reasons why the universalism versus cultural relativism debate has reached an impasse. The first is the apparently equal validity and persuasiveness of arguments for either side. But more importantly, the debate has taken place at a very generalized level. This article suggests that a more constructive approach lies in a sustained examination [End Page 432] of the formation of culture in specific societies. I contend that cultural relativism is not a valid proposition if political and social power structures artificially construct “culture.” If cultural values are not determined by the respective population, but rather by these power structures, cultural relativism gives credence to cultural ideology rather than to culture, and thereby opens the door to state oppression. Thus, my approach to determining the validity of the two theories requires a detailed examination of the formation of culture in each society. In response to Adamantia Pollis’ recent contention that “[t]he limited scope of individual human rights [in Japan] is a result of the psychological imperatives of Japanese values and not a consequence of state coercion,” 9 the subject of this article will be Japan. The question is whether the Japanese people have determined their cultural values for themselves or whether a cultural ideology has been imposed upon them from above. Even though Japan and its legal system have been the subjects of my research for several years now, I am nevertheless an external observer and thus acknowledge the potential for misinterpretation. To reduce this risk, this article relies predominantly on scholarly writing from within Japan. II. Culture in Japan There is a vast body of literature, referred to in Japanese as nihonjinron, on Japanese culture and distinctive Japanese patterns of behavior and thought. The gist of this literature is that Japanese society is very homogenous, characterized by...

Wat van plekke, rolle en ampte? Want die reg gaan oor meer as individuele regte What about places, roles and offices? Because the law is about more than individual rights

It is determined that the universality of international Human Rights is in the focus of the scholars` discussions. This paper considers various disputes challenging the realistic feature of Human Rights and questioning their enforceability. The research examines the peculiarities of implementation of the selected human rights to the controversial culture and regionally factored phenomenon – sexual/gender identity. The ontology and realistic aspects of the application human rights principles to the persons with different sexual orientation under the International Covenant on Civil and Political Rights (here- in-after referred to as “ICCPR”) is in the focus. In the course of the research the key aspects affecting the application and protection of human rights of the discussed groups were identified. The analysis conducted on the selected ICCPR guaranteed rights – equality and non-discrimination (Articles 2 and 26) and investigated the right to privacy as outlined in Article 17, freedom of expression per Article 19, and family and marriage rights as specified in Article 23. The overall research illustrates that Human Rights is a concept responsive to social dynamics, which ensures its dual, idealistic and realistic nature. The examination of the evolution of these rights in relation to individuals’ sexual orientation and gender identity highlights bottlenecks and challenges within International Human Rights Law. These challenges include the absence of specific characteristics in international law, the progressive role of treaty body jurisprudence in effectively applying protection, and ongoing debates about the universality of human rights. Despite variations in implementation status and timelines, the guaranteed ICCPR rights remained realistic. Moreover, there has been substantial progress, even concerning the most recent and debated rights for LBTI individuals. The gradual and often lengthy process of recognition and implementation of these SOGI-related rights is a natural outcome of the diversity among different countries and societies. While there may be some inconsistencies and complexities in the development of human rights, they do not diminish the inherently progressive nature of civil and political rights and standards.

Controversy has revolved around the issue of the universalism of human rights versus cultural relativism. Advocates of universality contend that individual rights either are or are becoming valid throughout the world. Although the notion of individual human rights emerged at a particular historical epoch in Europe, it is argued that in the post World War II era, this concept of rights is being disseminated along with modernization. Therefore, communalism, characteristic of traditional societies, is gradually being replaced by notions of individual human rights.1 This study of human rights in modern Greece attempts to answer the question of whether the Western conception of individual human rights is applicable to a peripheral European country. Greece's historical legacy is rooted in German legal positivism, and not in Anglo-Saxon liberalism, a difference with significant consequences for the standing of human rights. In the West itself there are varying notions as to the source of human rights and their philosophic foundations. Claims to universality may reflect an AngloSaxon primarily American ethnocentric bias. There are divergent conceptions regarding the origin and justification of rights among the European

The European Court of Human Rights in the Post‐Cold War Era: Universality in TransitionSweeney, James A.Oxon, New York, Routledge (2013), 262 p., ISBN: 978‐0415‐54433‐7

Human rights issues have become an interesting debate in the dynamics of the current world political arena. Western countries use human rights issues as a political instrument against other countries, especially Muslim countries. The reality of the concept of universal human rights comes from natural law. Long before the declaration of universal human rights, the Prophet Muhammad (PBUH) had issued the charter of Medina, which was full of human rights values. The formulation of universal human rights and Islamic human rights is hardly different. In fact, it can be said to be complementary. This paper uses a descriptive-analytical method, namely, by explaining the description of the data found and analyzing it so that the results and findings of this paper can be holistic, concise, and philosophical, and can be scientifically proven based on existing reality. This paper finds that in the Islamic world, the concept of human rights aims at the benefit (maqāṣid al-sharī'ah). However, there are differences between Universal and Islamic human rights, such as the concept of women's freedom and heritage. This difference has an impact on the concept of specific human rights or relative human rights, which are limited by the culture and sociology of certain societies, especially religions that cannot be equated. The Islamic world's response to universal human rights conceptually considers that universal human rights are different from Islamic human rights principles, universal human rights are not based on religious (secular) values. Some Muslim countries are against directly rejecting and using Islamic human rights completely, such as in Iran and Saudi Arabia; and some of them accommodate universal human rights. In the Islamic world, the implementation of human rights is influenced by global political factors with the imposition of Western double standards on Muslim countries, accompanied by economic, military and media forces to pressure Muslim countries. This causes the human rights problem in Muslim countries to be not completely resolved and gives rise to a strong resistance movement to Western human rights (Islamic fundamentalism).

Objective: The objective of the instant paper is to examine and potentially support the claim that fundamental rights guaranteed by the Indian Constitution, such as freedom of religion, despite reservations from cultural relativists, can be seen as emerging elements of constitutional morality. This examination will be based on a comprehensive analysis of judicial decisions, scholarly publications, and juristic opinions. Methodology of the Study: The study will analyse relevant judicial decisions, including landmark cases related to fundamental rights, especially freedom of religion, to understand how the Indian judiciary has interpreted and applied these rights. This will involve examining how the courts have balanced cultural relativism concerns with the principles of constitutional morality. Conclusion: The paper emphasizes the importance of universal human rights and argues against dismissing them due to their Western origin. It advocates for the acceptance of human rights across all cultures. The text acknowledges the complex interaction between law and religious culture, with an emphasis on individual morality. It highlights the value of human dignity within the Indian Constitution, aiming to balance individual rights with the state's duty to ensure equality. The paper also prioritizes women's rights and opposes customs that infringe upon them. It mentions Article 25 of the Indian Constitution, which secures freedom of religion with some limitations. In summary, the passage supports universal human rights, addresses the challenges at the intersection of law and religious culture, and stresses the importance of individual rights and dignity within constitutional morality. Result: The findings of this paper will aim to provide a nuanced understanding of the relationship between fundamental rights, cultural relativism, and constitutional morality in the Indian context. It will shed light on whether fundamental rights, especially freedom of religion, can be considered as emerging elements of constitutional morality despite reservations from cultural relativists. The study will present an analysis of judicial dicta, scholarly publications, and juristic opinions to support its conclusions and contribute to the ongoing discourse on these complex and significant issues within Indian constitutional law.

Du Bois’ sociological thought reveals an overlooked tension in the pursuit of human rights, a tension between universal human rights for all people, in general, and a race-specifi c human rights agenda for blacks, in particular. Du Bois recognizes both universal human rights for all individuals, groups, nations, and international bodies (regardless of race, gender, class, and other human divisions) and case-specifi c human rights for particular individuals, groups, nations, and international bodies (with regard to race, gender, class, and other human divisions). I aim to demonstrate why Du Bois’ acknowledgment of universal and case-specifi c human rights, and dynamics of their interrelationship, improves contemporary sociological thought about the complexities of addressing human rights issues and provides a more nuanced model for human rights social action.

Viewpoint: How to avoid a dichotomy between autonomy and beneficence: from liberalism to communitarianism and beyond

The literature on the relationship between globalization and human rights has laid out three responses to the economic, political, and social transformations of globalization within the human rights. First, some scholars consider globalization as complementary to the progressive realization of universal human rights on a global scale. They cite the extension and deepening of the formal human rights regime through international institutions and nongovernmental organizations (NGOs), and the emergence of new private, corporate forms of authority. Second, others perceive of globalization as creating substantial challenges for the realization of universal human rights on a global scale. Such scholars are engaged in criticism of the existing institutional arrangements of the formal human rights regime. They highlight the way in which human rights act as a form of power over people, especially where different ways of life are brought into contact and conflict through transformations associated with globalization. Furthermore, they reject the idea of the progressive realization of human rights as some form of an inevitable unfolding of history or as a singularly desired end point, and instead acknowledge conflicting conceptions of rights as expressions of social struggle A third group of scholars are engaged in the critique of the conception and function of human rights within globalization. From this viewpoint, globalization reveals that ideas of universal and indivisible human rights, along with their progressive realization, are flawed and need to be replaced by more substantive concepts. The critiques stem from the perspectives of neo-Marxism, postpositivism, feminism, and cultural relativism.

The universality of human rights is a fundamental principle of international human rights law (IHRL). The main source of IHRL is the Universal Declaration of Human Rights (UDHR). Article 2 of the UDHR says that everyone is entitled to all the rights set forth in the Declaration. The Vienna Declaration (1993) affi rmed that the universality of human rights was ‘beyond question’. 1Yet the universality of human rights has been questioned. In 1947 the Executive Board of the American Anthropological Association (AAA) published a ‘Statement on Human Rights’, in which they asserted that values and standards ‘are relative to the culture from which they derive’. 2 This cultural relativism was motivated by a fear that the promotion of human rights as universal values would lead to the hegemony of the dominant global powers. The AAA now supports human rights, but ‘extends’ them to the collective rights of cultural groups. 3In the 1990s the dominant conception of universality was challenged on the basis of ‘Asian values’ by certain Asian governments and intellectuals, who insisted that there was a distinctively Asian conception of human rights. 4 Similar challenges have been made by some African scholars, 5 and on the basis of Islam. 6These challenges are often interpreted as manifesting a contest between the West and the rest, but Western culture does not always support human rights. Conservatives and leftists have reservations about IHRL. Communitarian philosophers have argued that the1 Vienna Declaration and Programme of Action (1993) UN Doc A/CONF.157/23, para. 1. 2 The Executive Board, American Anthropological Association, ‘Statement on Human Rights’(1947) 49(4) American Anthropologist 539-43 at 542. 3 K. Engle, ‘From Skepticism to Embrace: Human Rights and the American AnthropologicalAssociation from 1947-1999’ (2001) 23(3) Human Rights Quarterly 536-59. 4 J. Bauer and D. Bell (eds), The East Asian Challenge for Human Rights (Cambridge, CUP, 1999). 5 M. Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press,2008). 6 A. Mayer, Islam and Human Rights: Tradition and Politics , 4th edn (Westview Press, 2007).

The article analyzes the intersection of universal and regional human rights concepts in Latin America. The regional approach to human rights protection has been proposed by anthropologists who argue that cultural relativism is the basis for the development of the concept of human rights protection. The evolution of human rights is examined by scholars through the prism of both cultural relativism and universalism. While proponents of the first approach assert the importance of cultural and civilizational particularities, proponents of universalism promote the idea of universal morality. The novelty of this study lies in the examination of a different academic approach to human rights protection that encompasses features of both of the aforementioned concepts in order to provide a more objective picture of the current state of the system of human rights protection. The interaction of these concepts is demonstrated through the example of the system for the protection of women's rights in Latin America, as well as of the rights of other vulnerable groups such as indigenous peoples. This leads to the conclusion that both the universalist and the regionalist approaches to human rights protection are mutually supportive. Furthermore, universal and local moral systems borrow elements from each other despite the contradictions between them. In general, the interaction between universalization and regionalization of human rights is clearly visible in Latin America. The elaboration of a new approach that incorporates the features of the two old ones is necessary in order to better understand this process, since human rights protection is acquiring new features that fit into the so-called paradigm of relative universalism. An explanatory model to account for this phenomenon is needed for better understanding of the common patterns of the process.

Debates on the universality of human rights and cultural relativism seem to be eternal and will continue to exist as societal dynamics bring different views, concepts, and understandings of human rights and culture. However, it cannot be denied that modern international human rights law which is currently being referred to and adopted by the international community, still creates gaps in the protection of human rights. Meanwhile, the development of cultural relativism in the 20th century is quite successful in bridging the gap between the two and contributing positively to the implementation of international human rights law at the domestic level. Nonetheless, the cultural relativism approach presents critiques and challenges. By using various secondary resources, this paper begins with the concept of, debates between, and challenges of cultural relativism and universality of human rights. The paper indicates that the contribution of cultural relativism can be seen from building tolerance and protection of communal rights, the rights of marginal groups, and the optimization of domestic law when dealing with some competing’s rights. This is a good opportunity to reduce discriminatory actions against marginalized groups for maintaining tolerance and harmony in a plural society. The effectiveness of the application of "margin appreciation" in Europe should be the best practice to actualize "Asian values" or "African values" in formulating the concepts of "public morality" or "public order" clearly and precisely. The cultural relativism approach may not be used by a government to justify any human rights violation. Both of these are important considerations for Indonesia because of its ambiguous attitude in placing these two theories appropriately and purposefully.

The call for implementation of universal human rights in Africa is principally perceived to be a mixed bag of potential triumphs and setbacks. A core principle of any (political or) scientific study is that data underdetermines theory, i.e., one can look at the same data and reasonably see different phenomena. Simply put, there is no exclusive way of assessing information or determining (better) ways of life. In Africa, the question of whether human rights should be universal or national/cultural remains contested with both the opposers and proponents presenting fathomable reasons. At the core of controversies surrounding universal rights are issues of global inequality, poverty and Africa’s underrepresentation or otherwise misrepresentation in key global decision-making bodies. From the turn of the new millennium, discourses on jurisprudence about universal human rights have intensified whereby, the definition, meanings, functions and scope of what constitutes fundamental human rights have expanded beyond the often too familiar rigid and orthodox domestic law regimes. Today, national sovereignty claims on human rights are only valid to the extent that those assertions are not at loggerheads with the spirit and principles contained either in the Bill of Rights or the Universal Declaration of Human Rights (udhr) (1948). Furthermore, Human Rights Watch (2021) argues that in contemporary international relations, human rights are no longer conceived only in a vertical lens, i.e., only seen as the mere concern of the state, but now necessarily includes a horizontal lens consideration, whereby, private entities are also included because they are equally capable of violating human rights. Knox (2008) also hinted that discourse on this subject matter seems unavoidable as it has continued to gain traction in modern jurisprudence. As such, public law remedies have expanded into the private realm to protect individual rights. This has become necessary because the services provided by private local entities including conglomerates and transnational corporations have increased considerably. For instance, private medical facilities, private schools, media houses, digital and telecommunication companies, and water and sanitation services, all count among several private entities that are prone to abuses of human rights. Consequently, legislative administrators have devised the term ’the contracting state’ to define a setting where a variety of public interests are increasingly being provided by the private sector rather than by the state. In providing their services, the private entities cannot do as they please or ignore the rule of law governing international human rights protection. This essay argues that given the increasing intertwining of regional and global governance activities in finance, trade, commerce, education, agriculture, and medical advances, the implementation of universal human rights would best serve the collective interests of all stakeholders. In advancing this argument, this essay critically analyses the plausible obstacles on the path towards the attainment of universal rights in Africa while also identifying silver linings.

This paper examines the universal values of human rights and their contradictions within the context of advancing human rights in Indonesia. The Universal Declaration of Human Rights (UDHR) emphasizes the importance of universally respecting human dignity. However, Indonesia, as a country rich in culture and religion, often faces challenges in applying these universal human rights values, particularly when state policies prioritize local cultural considerations over the universal dimension of HR. One example is the prohibition of interfaith marriages, which shows that religious and cultural values still serve as the primary basis in human rights policies in Indonesia. Indonesia is a nation with strong cultural and religious richness, influencing various aspects of life, including state policies related to human rights. Although the UDHR stresses the importance of universal human rights implementation, in practice, Indonesia often experiences tension between these universal values and local values rooted in tradition and religion. This study aims to explore how universal human rights values confront cultural relativism in the Indonesian context, seeking common ground between the two to strengthen the advancement of HR in the country. This study is conducted through an in-depth analysis of literature and relevant scholarly references. The research finds that there is significant tension between human rights universalism and cultural relativism in Indonesia. However, these two approaches have the potential to collaborate and complement each other, with universalism providing a strong normative framework and cultural relativism offering relevant and acceptable local context. These findings are significant as they offer a new perspective in understanding the dynamics of human rights in Indonesia. By considering and integrating these two approaches, human rights policies in Indonesia can be more responsive to local realities without sacrificing fundamental universal principles