The concept of human rights entails a claim to universal validity in the sense that human rights are to facilitate human life in dignity and freedom for every per- son on this globe. This is the basic message of the Universal Declaration on Hu- man Rights , adopted by the General Assembly of the United Nations, on Decem- ber 10, 1948. The Declaration's first article reads: "All human beings are born equal and free in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."2 Only recently, the World Conference on Human Rights, held in Vienna in 1993, reaffirmed this claim by emphasizing that "the universal nature of these rights and freedoms is beyond question."3 Nevertheless, it is a matter of fact that the universality of human rights has al- ways been, and continues to be, a hotly debated issue. Critics from inside and out- side the Western world have alleged that human rights epitomize only "a Western construct with limited applicability,"4 that is, an expression of European political culture which has illegitimately come to be propagated throughout the world. From the perspective of cultural relativism, the purported universality of human rights seems tantamount to cultural imperialism which, in the guise of humanitar- 1 This article is a revised version of a paper that I presented in my seminar on "Dialogue about Rights and Cultural Imperialism" at the Law Faculty of the University of Toronto, in the spring term of 1994. 1 would like to thank the Law Faculty, represented by its Dean Ro- bert Sharpe, for giving me the opportunity to teach that seminar. I am especially indebted to my host in the faculty, David Dyzenhaus. I would also like to express my gratitude to the Alexander- von-Humboldt-Foundation for facilitating my stay and research in Toronto. 2 G.A. Res. 217 A (III), U.N.Doc. A/810 (1948). 3 Vienna Declaration and Programme of Action of 25 June 1993, quoted from Human Rights Law Journal 14 (1993), p. 353. 4 See Adamantia Pollis/ Peter Schwab , "Human Rights: A Western Construct with Lim- ited Applicability," in: Adamantia Pollis /Peter Schwab, eds., Human Rights: Cultural and Ideological Perspectives, New York: Praeger, 1979, pp. 1-18. See also R. Panikhar, "Is the Notion of Human Rights a Western Concept?", in: Diogenes, vol. 120 (winter 1982), pp. 75 - 102. This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms 284 Heiner Bielefeldt ian language, seeks to protect and e W estern econom y, and a W estern life In this article, I will try to outline that takes seriously the challenge p problem with ethical or political u "universalistic" point of view, becau side of culture and history, which w ly neutral arbitrator in current poli point of my analysis, admittedly, is theWest,thisisnottosay,however should serve as the binding paradig rather to undertake a critical scrutin order to overcom e som e typical obsta al com m unication and consensus-bui focus on the emancipatory principle lated in W estern philosophy, especia I will deal with the question of whet rights might provide a normative f tween different cultures and religio ciety (III). I. Overcoming Some Misunderstandings of the Western History of Human Rights

1. Human Right - Not a Self -Evident Expression of Occidental Culture First, it seems crucial to admit that human rights do not simply derive from the entirety of Western culture. It is obvious that the guiding principle of human rights, roughly defined as the political claim to equal liberty for all human beings, does not occur in the basic sources of Occidental religion, philosophy, or culture; it can be found neither in the Jewish-Christian Bible, nor in Greek philosophy. Instead, human rights emerged quite late in Western history: they were first declared at the end of the eighteenth century, in the great democratic revolutions in North Ameri- ca and France. The Virginia Bill of Rights of 1776 and the French Déclaration des droits de l'homme et du citoyen of 1789 entail the first politically effective cata- logues of human rights.5 Moreover, it is no coincidence that human rights were first declared under cir- cumstances of revolution and initially faced a great deal of resistance not only from state authorities but also from representatives of the established cultural tradi- tion in the West. The Catholic Church, for instance, endorsed human rights and 5 See Louis Henkin , The Rights of Man Today, Boulder: Westview Press, 1978, pp. 5 ff. This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

Human Rights in a Multicultural World 285 religious liberty as late as in the 1960s, during the Second Vatican Council.6 T might serve as further evidence to my thesis that human rights cannot be cons ered a self-evident expression of Occidental culture as a whole. To acknowledge this fact does not preclude the possibility that in premoder history of Western religions and philosophies some "roots" of human rights m be discovered. One may especially think of the Biblical idea that man is created the image of God (Gen 1.27), or of the cosmopolitan solidarity between all hum beings as it was demanded by Stoic philosophers.7 Whereas these and other ide do not yet formulate human rights claims in the strict political sense, they histo cally paved the way for their final adoption in modern times. However, comparable religious and philosophical motives can be found in no Western cultures as well.8 For instance, the Qur'an honors man as God's deputy earth (Qur'an 2.30). The right to political resistance against tyranny, frequent viewed as a main source of human rights in general, was rooted in various cultu in Africa, Europe, and China. In any case, the search for affinities between moder human rights conceptions and premodern traditions cannot be an exclusively Oc dental privilege.9 2. Human Rights - Not Dependent on a Particular Philosophy Human rights do not stem from, and are not dependent on, a particular Wester philosophy or ideology. A French "homme des lettre" in the declining ancien gime and a Protestant preacher in the puritan colonies of New England would p haps disagree about virtually all questions of religion, philosophy, or lifestyle; yet it is at least conceivable that they could politically cooperate in demanding man rights.10 It may be the case that some kind of "enlightenment" is a precon tion to understanding human rights. But what the concept of enlightenment c 6 See John Langan , "Human Rights in Roman Catholicism," in: Arlene Swidler, ed., H man Rights in Religious Traditions, New York: The Pilgrim Press, 1982, pp. 25-39, espe cially p. 34. 7 For an overview of the historic roots of human rights see Gerhard Oestreich , Geschichte der Menschenrechte und Grundfreiheiten im Umriß, Berlin: Duncker & Humblot, 2nd. edi- tion, 1978. 8 See a collection of documents that are to demonstrate the plurality of possible roots of human rights in the most different of cultures: Le droit d'être un homme. Recueil de textes preparé sous la direction de Jeanne HerscĶ Paris: UNESCO, 1968. 9 See Johannes Schwartländer / Heiner Bielefeldt , Christen und Muslime vor der Heraus- forderung der Menschenrechte, published by the German Bishops' Conference Research Group on the Universal Task of the Church, Bonn 1992; English translation: Christians and Muslims Facing the Challenge of Human Rights, Bonn 1994. 10 The academic conflict about the religious or philosophical origins of the idea of human rights in Western history is documented in Roman Schnur , ed., Zur Geschichte der Erklärung der Menschenrechte, Darmstadt: Wissenschaftliche Buchgesellschaft, 2nd. edition, 1974. This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

286 Heiner Bielefeldt cretely means has been construed guages, the term s "enlightenm en means interchangeable. In any case, from its very beginn herently pluralistic. Today, intern bring together people of very dif grounds who, nonetheless, share a dorsement of human rights is obv previous adoption of a particular W 3.HumanRights-Withoutan Human rights constitute a specif Acknowledging their inherent mod proof of general "historical progres cal achievem ent that deserves defe of building them into an ideology tion that they are generally superio tutions - it seems more appropriat to concrete experiences of injustic sion by an absolutist state, exploita colonialism and imperialism.As abuses of power in modern capital require genuinely modern safegua provide such political safeguards is Furthermore,oneshouldrecalltha in which international organization brought about; it is also a century m tice which, perhaps for the first tim humankind.Itisnocoincidenceth Human Rights refers to "barbaro m ankind." As this line suggests, it but rather the experience of atro many,whichsharpenedtheawaren had become an urgent need.12 Suc hum an rights m ovem ent, from its 11 See Jack Donnelly , Universal Hum University Press, 1989, p. 64. 12 See Virginia A. Leary , "The Effec Rights,"inAbdullahiAhmedAn-Na'im Cross-Cultural Perspectives, W ashingto This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

Human Rights in a Multicultural World 287 tion of these injustices should help us, in any case, to refrain from superficial pre- tensions to a general moral superiority of the modern era over premodern societies. II. The Emancipatory Principle of Human Rights So far, my brief characterization of human rights has been in negative terms only: I have emphasized that human rights can neither be derived immediately and exclusively from the basic sources of Occidental tradition nor appropriately con- ceived in terms of general progress. They are neither a self-evident expression of Western political culture nor dependent on a particular Western philosophy. In this section, I would like to go a step further and outline some positive aspects of an understanding of human rights. Again, I will first refer to Western historical ex- perience and philosophy and later analyze whether and how human rights can offer insights for an overlapping consensus that includes non-Western cultures as well.

1. A Social Contract for the Pluralistic Society As mentioned above, human rights are not simply an expression of Occidental tradition in its entirety. From a historical perspective, they rather indicate the nor- mative crisis of the dominant culture in the West, a crisis that is linked to the emer- gence of radical pluralism in Western societies. This crisis can be traced back at least to the age of Reformation.13 People in the twentieth century, who have be- come accustomed to living in a religiously pluralistic society, can hardly imagine what a horrifying experience the split within Occidental Christendom was per- ceived to be. With two (or more) churches undermining each other's authority, the very fabric of society seemed to be out of joint, since virtually all social principles and values were at stake: the legitimacy of the state or the given economic order as well as the meaning of monastical life or the sacramental dignity of marriage. Without a solution to this normative crisis society was doomed to plunge into anar- chy and permanent civil wars. A first result of the religiously motivated civil wars was an increase of abstract state power in early modernity.14 Jean Bodin and Thomas Hobbes, the most out- spoken philosophical supporters of state absolutism, argued on behalf of a "neu- tral" political authority that was intended to stand beyond the rivalries of religious factionalism. In order to be able to effectively dictate the terms of political security 13 See Martin Honecker , "Zur geschichtlichen Ausformung der Religionsfreiheit im refor- matorischen Raum," in: Johannes Schwartländer, ed., Freiheit der Religion. Christentum und Islam unter dem Anspruch der Menschenrechte, Mainz: Grünewald, 1993, pp. 230-41. 14 On the following, see Martin Kriele , Einführung in die Staatslehre. Die geschichtlichen Legitimitätsgrundlagen des demokratischen Verfassungsstaates, Opladen: Westdeutscher Verlag, 3rd. edition, 1988, pp. 47-66. This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

288 Heiner Bielefeldt and peace, the ruler should be vest this conception of state absolutism, criterion by which to distinguish matetyranny.Accordingly,theun norm ative basis for peaceful coex tic society. That is why some philosophers of the European "Enlightenment" explored the possibility of concluding a new "social contract" by which to overcome both civil wars and state absolutism.15 The fundamental problem they confronted was: how can people bring about a normative consensus in a pluralistic society which has lost - and will not regain - its previous religious homogeneity? Given the fact that one cannot any longer resort to a common religious creed, what else can supply the normative basis for social and political coexistence? The idea of human rights is intended to give an answer to these questions. It offers a normative framework for peaceful coexistence of people of different religious (and non-religious) con- victions in a pluralistic modern society. 2. Freedom and Equality The way to conclude a new social contract is by recognizing difference, in parti- cular difference of religious or philosophical convictions, as something valuable. A person holding a creed other than that of mainstream society should no longer be treated as a "lost brother" or a "lost sister" but should be entitled to respect and recognition. Genuine recognition, however, is more than mere toleration. What is needed, in order to achieve a normative consensus based on the recognition of dif- ference, is that this difference itself can be appreciated as an expression of human freedom which, for the sake of human dignity, deserves respect and legal protec- tion. The close connection between freedom and dignity is the hallmark of Kant's moral and political philosophy. (Although, as I mentioned earlier, no particular philosophy can pretend a "monopoly" on the interpretation of human rights, Kant offers some important ethical insights which might be helpful in promoting a bet- ter understanding of the underlying normative principle of human rights.) Accord- ing to Kant, the human person is a morally autonomous being and thus called upon to moral self-legislation. Since the person forms the source and center of all of morality, he or she must never be instrumentalized as a means only, but ought to be always respected as an end in itself. The categorical imperative thus com- mands: "Act so that you treat humanity, whether in your own person or in that of another, always as and end and never as a means only."16 In the realm of politics, 15 See Heiner Bielefeldt , Neuzeitliches Freiheitsrecht und politische Gerechtigkeit. Per- spektiven der Gesellschaftsvertragstheorien, Würzburg: Königshausen & Neumann, 1990. This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

Human Rights in a Multicultural World 289 due respect for moral autonomy finds expression in an order of legally guarant freedom. Kant writes that freedom is the only "innate right" of every human bein that is, the supreme principle of a political order of rights: " Freedom ... insofar it can coexist with the freedom of every other in accordance with a universal l is the only original right belonging to every man by virtue of his humanity. Freedom, however, cannot operate as the practical principle of the political ord unless it is connected with the principle of equality. Equality in turn is not an in pendent principle beside the principle of freedom, but is in fact the precondition the recognition of everyone's freedom. Since human beings ought to respect recognize each other's dignity on an equal footing, the political expression a guarantee of this dignity, that is, the order of rights must also be based on equali Consequently, the only "innate right" of freedom proves synonomous with th "innate right" of equality.18 From this perspective, all human rights represent th basic principle of equal freedom, which itself needs to be spelled out in a vari of legal standards, in correspondence with ever new experiences of oppression discrimination. The principle of equal freedom does not exclusively refer to the individual per- son but always includes a social dimension, too. For instance, freedom of expres- sion does not focus only on the private individual, but is also the way of achieving free public discourse. As Kant points out, the "public use of reason" must always be free, because it is the precondition of a republican constitution.19 "Freedom of the pen," he says, "is the only safeguard of the rights of the people,"20 that is, the basic "republican" right whose significance cannot be fully appreciated unless one is committed to the ideal of a republican union of citizens. In general, I would like to emphasize that the idea of human rights is not per se opposed to "communitarian" values, because it aims at facilitating free forms of social self-organization: in families, religious communities, political associations, democratic cooperation, etc. The idea of human rights is thus not tantamount to an abstract individualism but - as the critical demand - always affects both indivi- duals and communities in that it requires social cooperation and community-build- ing on the basis of mutual recognition of dignity and free participation. 16 Kant , Foundations of the Metaphysics of Morals, Trans, by Lewis White Beck, with critical essays ed. by Robert Paul Wolff, New York: Macmillan, 1969, p. 54. 17 Kant , The Metaphysics of Morals. Trans, by Mary Gregor, Cambridge: Cambridge Uni- versity Press, 1991, p. 63. 18 See ibid., p. 63: "This principle of innate freedom already involves the following authorizations, which are not really distinct from it ... : innate equality , that is, independence from being bound by others to more than one can in turn bind them ..." 19 See Kant , "What is Enlightenment?," in: Kant's Political Writings, ed. by Hans Reiss, Cambridge: Cambridge University Press, 2nd. enlarged edition, 1991, pp. 54-60. 20 Kant , "Theory and Practice," in: Reiss, ed., ibid., p. 85. 19 Jahrbuch für Recht und Ethik, Bd. 3 (1995) This content downloaded from 65.39.15.37 on Mon, 15 Jun 2020 20:08:36 UTC All use subject to https://about.jstor.org/terms

290 Heiner Bielefeldt III. Towards an "Overlapping C

1. The Need for a Cross-Cultu For Kant, the universality of human ciple, that is, the equal dignity of all refers to an undeniable empirical fac limited space on which people unavo a globe; they cannot disperse over a one another's company."21 Whenever other's freedom, they are bound to among each other. Insofarasthefac com m on earth has reached a global d tice must also extend to the entire g cum" which is to supplement and en people of the earth have thus eternity, and it has developed to the point world is felt everywhere. The idea of and overstrained; is a necessary c and international right, transforming i In the twentieth century, the limit already two hundred years ago, has and communication technologies ha, Karl Jaspers puts it, appears to be " ing to Jaspers, the emergence of glob fact that humankind has begun to sha nations, like the United Nations, corre apoliticalframeworkforglobalcoex Moreover, the plurality of religious and cultural patterns of life has become world. Pluralism and multiculturalism between and within the states cannot be abandoned unless one wants to risk political disasters, including "ethnic cleans- ing," new religious wars, and the breakdown of international communication. The prospects of peaceful coexistence and cooperation therefore depend on a basic normative consensus, across different nations, cultures, and religions. Human rights, in my opinion, represent an occasion to achieve such a normative consensus. As I stressed earlier, even though they are a concept of Western origin, they do not belong "naturally" or exclusively to the Occidental legacy. Inst they are historically connected with the experience of increasing pluralism w today has become an unescapable reality in most parts of the world. The ide human rights seems therefore to offer an opportunity to bring about a conse across national, ethnic, cultural, and religious boundaries. On this view, the versality of human rights does not mean the global imposition of a particular se essentially Western values but, instead, aims at the universal recognition of plur ism and difference - different religions, cultures, political convictions, ways of - insofar as such difference expresses the unfathomable potential of human e tence and the dignity of the person. 2. The Limited Scope of Human Rights Since human rights are to acknowledge and protect pluralism, they are not signed to replace the existing variety of religions, philosophical doctrines, or tural forms of life. Instead, the normative scope of human rights is limited in they concentrate on political justice, that is, on setting up political and legal dards for peaceful cooperation on the basis of equal recognition. As John Ra rightly emphasizes, "the idea of political justice does not cover everything an should not expect it to."24 To give an obvious example, human rights offer n swers to the existential questions of human life and death; nor do they prov detailed guidance as to how to lead one's life. Consequently, human rights do compete with religious or philosophical doctrines on an equal footing, beca they do not pretend to constitute a comprehensive doctrine themselves.25 S larly, they do not compete with cultural lifestyles, because they do not presupp a particular culture or a particular lifestyle. And finally, it is obvious that they not operate as a general benchmark by which to assess all sorts of religious, cult al, or ethical values. It seems indeed fair to acknowledge that particular forms of religiously or turally rooted ethics may extend beyond the normative reach of human rights their underlying ethical principle of equal freedom. This holds, for instance Christian demands of love and charity, Islamic solidarity, or the Buddhist ethic compassion with all living beings. Political and legal standards of human right by no means intended to replace those and other particular forms of ethics, but 24 John Rawls, "The Law of Peoples," in: Stephen Shute/ Susan Hurley, eds., On Hu Rights. The Oxford Amnesty Lectures 1993, New York: Basic Books, 1993, pp. 41 - 82, 25 In his recent book on "Political Liberalism" John Rawls has suggested a systematic tinction between a political conception of justice on the one hand and comprehensive gious or philosophical doctrines on the other. While the political conception of justic cuses on basic institutions and their underlying values, comprehensive doctrines repr more encompassing claims of theoretical or practical validity. See John Rawls , Political L eralism, New York:

292 Heiner Bielefeldt toestablishapoliticalframework guaranteeing for instance religious nority groups. Since the normative scope of human rights is limited, a commitment to their international implementation should not be viewed as aiming at new "crusades" on behalf of a modern "civil religion." Similarly, the consensus, as required in the idea of human rights, does not amount to a quasi-religious doctrine in which all religions and philosophies are merged. To put it in Rawlsian terms: The normative consensus on human rights does not form a "comprehensive doctrine" but restricts itself to an "overlapping consensus," that is, a partial consensus which, from different ideological, religious, and cultural perspectives, focuses on basic standards of political justice. 3. Human Rights - Challenge and Occasion To be sure, no one can predict to what extent such an overlapping consensus can in the long run be achieved and preserved. It is certainly the case that human rights, even though their normative scope is limited, present a serious challenge to cultural and religious traditions; they are critical of authoritarian elements of reli- gious or cultural tradition and they are clearly incompatible with political persecu- tion of religious dissidents or intolerance towards minority groups within the var- ious cultures. In general, the emancipatory principle underlying the modern con- cept of rights requires a willingness to both internal reforms and communication across existing boundaries. For this reason, many Christian churches were, over a period of several generations, reluctant to endorse human rights. Currently, we are experiencing the emergence of various fundamentalist movements, which assert their purported religious or cultural identities at the expense of both free internal debate and cross-cultural communication. Facing this reality, one may indeed sometimes wonder whether the idea of an overlapping consensus on human rights is a Utopian dream rather than a political project. However, whereas religious and ethnic fundamentalism ultimately appears to destroy the very sources of cultural development by building ghettoes, human rights may offer an occasion to bring about modern forms of religious and cultural identities and thus reconcile loyalty to tradition on the one hand with the norma- tive demands of modernity on the other. There are indeed some examples of a such a critical reconciliation. For instance, when Christian churches, after a long period of resistance, finally accepted the idea of human rights, they not only adapted to a new political reality but - at least partially - took this as an occasion to redefine the basic message of Christianity in terms of a message of liberation. In particular religious liberty, previously suspected of fostering agnosticism or atheism, has come to be seen as a precondition to any authentic religious life and faith. Human Rights in a Multicultural World 293 recently, Islamic scholars, such as the Egyptian judge Said al-Ashmawy and Sudanese lawyer Abdullahi Ahmed An-Na'im, have proposed substantial reform in Islamic law in order to make Islamic tradition compatible with modern standards of human rights. They have suggested that such a critical reform can at the same time, shed new light on the main source of Islamic ethics, that is, the Qur, whose ethical guidance is often wrongly overshadowed by medieval legal casui try.27 Buddhist philosophers have as well professed their support of universal man rights; although Buddhism generally strives to overcome the idea of the h man "self' as a nucleus distinguishable from other beings, many Buddh acknowledges the special dignity of all human beings as particular "loci of ex tense" within the all-encompassing network of living beings.28 One could give further examples of religious reforms and cultural change. The demonstrates that the principle of human rights, though critical to authoritarian elements of traditions, can help to bring about the political preconditions of redefining cultural and religious identities in an atmosphere of free dialogue and mutual respect. Hence human rights represent both a challenge and an opportunity to c tural and religious communities, whose willingness to meet this challenge, in tu seems crucial to a genuine cross-cultural and inter-religious consensus on hum rights.29