Date: Thu, 05 Oct 1995 21:34:25 -0400
From: "Spellman J" [email protected]
Subject: Some Defining Issues
The definition that "human rights are rights a person possesses by virtue of being human" is much too narrow and limited for a Buddhist or global perspective. The argument is that these rights are "*possessed* by every- one regardless of race, colour, sex, religion, birth, etc. and are not conferred by – or removable by- a political or other authority." Historically, culturally, politically, and factually, this statement is not supportable. This view is, however, acceptable as the rhetoric of a particular western idealism.
The nub of the issue seem to be that the various human rights listed as found in various U.N. documents are rooted primarily in western historical traditions. They are called "universal" not because they are even remotely so, but because the doctrine of universalism has been a traditional and consistent buttress used to spread western cultural values and institutions. Since human rights discourse is largely among westerners or at least partially western trained persons in other parts of the world, the claim of universalism is widely argued.
The last ten years or so has seen growing opposition to this universal- ist view. The western response has been too often to attack – claiming alternative views are a ruse or cover up for despotic or totalitarian governments. Others dismiss them under the simplistic label of cultural relativism or call them peripheral. Some activists have labeled practices in traditional societies as "barbaric" and resorted to western human rights interpretations as justification for campaigns against those indigenous traditions. There is also the position that even if human rights as defined in U.N. resolutions are a western concept, they still ought to be enforced on a global basis, since no one in their right mind could reasonably object to such standards of good government. The 1993 human rights conference in Vienna was a major forum for espousing these views against those delegates from the South who objected to the dominance of the western perspective.
One of the major problems to effective communication and cross- cultural understandings that the concept, definitions and standards of human rights, as it developed in the west in recent times, has been dominated by lawyers and legal institutions. This has profoundly altered the meaning and direction of traditional concepts of human rights in areas such as religion, ecology, sociology, psychology, and other relevant fields. Academically, the subject is usually taught as Human Rights Law.
However, most of the peoples of the world do not share in any meaningful way, the values, reasoning, or infrastructures that are fundamental to western law. This includes the adversary process, rules of evidence, written legislation, secularism, the guilty-not guilty dichotomy, or the need for lawyers. India, for example, throughout most of its history had no such occupational class as lawyers. Even today, in conflict resolution for the 70 to 80% of people who live in villages, lawyers have virtually no role.
To appreciate the meaning and essence of human rights in different cultures, it is necessary to fundamentally and substantially alter and reduce the legal definitions, standards, and interpretations. It is the legal domination which insists that the word "human" means only human beings and that the word "rights" means entitlements. These are both recent historical interpretations. To properly and fairly understand the concept we must look behind these terms.
Down to the beginning of the 18th century, according to the unabridged Oxford English Dictionary, the word human was spelled "humane". The present primary definition of human is, "1. Of, belonging to or characteristic of man." "Humane" is defined as "1. Characterized by such behaviour or disposition towards others as befits a man. a. Gentle or kindly in demeanour or action; civil, courteous, friendly, obliging. b. Marked by sympathy with and consideration for the needs and distresses of others; feeling or showing compassion and tenderness towards human beings and the lower animals; kind, benevolent."
The word "right" has 8 pages of definition in the unabridged O.E.D. We do not have to look any further than the first major definition. "I.1 The standard of permitted and forbidden action within a certain sphere, law, a rule or canon. 2. That which is proper of incumbent on one to do; one’s duty. 3. That which is consonant with equity or the light of nature; that which is morally just or due…justice."
There is thus, compelling and long established definition to assert that human rights are those duties and obligations which are morally incimbent upon us all to show consideration and compassion for all beings. Every society has such concepts of human rights; indeed they may have several primary or dominant standards. Dhamma, Respect for example. The challenge ought to be to discover in detail what these are, their rationale, manifestations and influence. We may also compare and contrast them with those of the United Nations or other legal concepts such as civil rights and civil liberties.
Obviously we should include the obligations that the government or ruler owes to its citizens in terms of economic, political, social and psychological freedom. Whether the section in the Agganna Suttanta (D.III.90-93) is a social contract or not is open to interpretation. But not much turns on the answer. In any case, that passage of the Digha Nikaya should be read in the context of similar legends in Hindu literature particularly section 67 of the Santi Parvan of the Mahabharata where the people ask Brahma to appoint a king for punishing the wicked and the establishment of righteousness. There are also fables on the choosing and duties of rulers in the Tittira Jataka and the Uluka Jataka. The important point is that in all cases the primary duty of the king is to govern righteously and to protect.
While it is doubtful that Buddhist texts contain a fully developed theory justifying revolution against oppressive government, they are clear that there is a causal relation between oppression and government injustice and the deposition or assassination of a ruler. Such arguments are found, among other sources, in the following Jatakas: Mahasutasoma, Khandahala, Manicora, Padakusalamanava and the Saccamkira. The Milindapanho (VI.17) lists a number of tortures and punishments which a person unfit to rule might undergo if he claimed the throne. In ancient India there never was any doctrine that the king was above the law. The relationship between the duties of the king and the concept of Dharma were explicit and intrinsic. His duties were known as rajadharma. This concept influenced the manner of government including the degree to which taxes were collected (as the bee takes honey from the flower or the calf takes milk from its mother) – gradually and without injury. That too could well be considered a human rights concept, absent in western standards, with respect to government oppression. The Arthasastra and Dharmasastra literature are clear on the obligation of the ruler to provide assistance to a wide variety of people including children, aged persons, pregnant women, needy students, orphans, widows, diseased and distressed persons, mentally ill and others. We can learn much from these st standards of government compassion in what we now call economic and social rights – many of which do not exist in western definitions of human rights. Western standards and definitions of human rights are especially deficient in those areas where Buddhist perspectives are strongest. The United Nations limits human rights obligations to *governments* which sign the various conventions or declarations. Those obligations are to the international community that it will not violate certain provisions. If a government does not sign the Convention on Torture or Slavery or others, it is not obliged to recognize those as human rights. Civil liberty generally refers to obligations that a government makes to its own people by way of constitutions, bill of rights, charters or similar instruments. These are interpreted by its own courts and they can be abrogated under certain conditions.
But the moral behaviour and obligations implicit and explicit in the long-standing defination of human rights which we owe to each other and to all sentient beings – these essential foundations are hardly mentioned in western concepts. The human rights responsibilities which we have in terms of the panchasila and compassion and giving, by way of disciplining our own greed, anger and lust -these are significant deficiencies in the western legal definitions and standards. What Buddhist human rights identify as vice or defilement, we too often elevate, in our delusion, to virtues. A proper study of the various levels and components of Buddhism and human rights within the cultural values of its own framework has much to teach us personally and as a society and government. On the basis of historical definitions, past and existing world practices, valid and diverse cultural values, as well as a broader and more effective concept of human rights, we are justified not only in rejecting the claim of United Nations or western definitions as standards, but in insisting on the validity and integrity of other concepts of human rights – especially Buddhist.
Date: Fri, 06 Oct 1995 15:25:25 -0400
From: "Steven D. Jamar" [email protected]
Subject: Some Defining Issues
J. Spellman writes
The United Nations limits human rights obligations to *governments* which sign the various conventions or declarations.
Not true. Please read them before you make such a statement and please learn a bit more about international law concepts such as jus cogens and customary law.
As to universality of HR – it has been reaffirmed in the Rio Declaration, the Cairo Declaration, the Vienna Declaration, and the Beijing Women’s Conference Declaration. And I think it hard to say that only western women or western representatives were there and/or signed on.
The rights are universal – the recognition or observance or respect for them is not. Murder is a crime – but some people still murder, even, I’ll wager, in Windsor, Canada. Does this make murder not a crime? Or make it improper to say that one has a right to not be murdered, even if some people are still murdered?
But the moral behaviour and obligations implicit and explicit in the long-standing defination of human rights which we owe to each other and to all sentient beings – these essential foundations are hardly mentioned in western concepts.
I guess your reading list is significantly different from mine. For starters, Aristotle’s Rhetoric is replete with such language. More modern jurisprudential scholars always address such issues as well, including Hart and Dworkin, who are on opposite sides on many fundamental issues, but who agree on the importance of these foundational ideas.
I find it very curious to be defending western legal traditions in this conference, since I am in general a critic of many of them. But I do think the criticisms ought to be accurate and ought to give the idea of rule of law and individual rights its due.
I think more helpful and meaningful approaches than anti-western law broadsides are (1) to see if the concept of rights can be useful in a Buddhist setting (the Dalai Lama thinks so – as do some others); (2) which rights are most compatible with Buddhist approaches to life; and (3) where is there common ground?
Having said all of that, I do agree that a particular blindness of Americans in general, lawyers included, is ignorance of different cultures and traditions and the need to patch into those other mindsets to accomplish useful work more easily. And I do agree that the HR movement continues to be dominated by those with knowledge, money, mobility, and access to information the means to disseminate it. But I have met many people from Africa, China, Thailand, India, Pakistan, Indonesia, Sri Lanka, etc., who champion human rights as a sound, proper approach to curbing governmental abuse in their countries.
Would anyone have the temerity to justify Pol Pot on the grounds of cultural relativism?