Universalism vrs. cultural relativism - Battle for soul of human rights

I have been exploring the concept of human rights; origins, development and application vis-a-vis the criminal justice system of Ghana.

Intend to highlight a recurring debate, which has agitated academics, practitioners and the general society at large, on claims which proponents of human rights and international human rights law make in justification of its continued application.

What is ‘universalism’, ‘cultural relativism’

As explained in earlier articles, human rights are universal in the sense that they are rights conferred on everyone, irrespective of nationality, status, gender etc.

The corpus of International Human Rights law posits that human rights apply to everyone simply by virtue of their being human.

This abstract construction is manifested and reflected in the fundamental document of modern human rights law, the Universal Declaration on Human Rights (UDHR), in the deployment of the language used for the rights in the treaty, such as, ‘everyone’ and ‘all human beings’.

However, this bold assertion of International Human Rights law has come under attack and fierce scrutiny by ‘cultural relativists’ who argue that the rights, with their liberal Western origins, are neo-imperialistic and culturally hegemonic in the sense that they impose the cultural values of Western nations on other cultures of the world that have developed differently and have cultures significantly removed from the Western world.

Simply put, cultural relativism is a theory that holds that beliefs, customs and morality exist in relation to the particular culture from which they originate and are not absolute.

Accordingly, cultural relativists argue that a person’s morality, laws, beliefs and practices should be situated and, by extension, be governed by their culture.

In other words, human rights law should not be absolute in application to different cultures but must be context specific.

Cultural relativists have criticised, and sometimes outrightly rejected the idea that the rights should apply to everyone, everywhere, arguing that different cultures and societies have evolved differently with the concomitant result that their understanding and beliefs as to what should govern human relationships must necessarily be different — herein lies the tension between the ‘universalists’ and the ‘cultural relativists’.

Sharia Law

An area that has probably highlighted this seemingly intractable tension/conflict in the global and universal application of human rights law is the area of Sharia Law of the Muslim fraternity.

Clearly, by International Human Rights Standards, some of the laws contained and practised under Sharia Law are almost in direct conflict with some of the accepted fundamental human rights norms.

For example, adultery under Sharia Law can attract a range of punishments from public lashings, imprisonment and in some cases, the death penalty.

There is an overlap of some fundamental rights that conflict with these, such as the prohibition of torture, cruel and inhuman treatment and the abolition of the death penalty.

The problem/tension between International Human Rights Law has recently played out in Ghana with the private members bill captioned ‘Proper Human and Sexual Rights and Ghanaian Family’ values, which is being championed by Sam George and other influential members of Parliament.

The yet to be promulgated bill is palpably against the LGBTQ+ community as the proponents argue that homosexuality is alien and frontal to Ghanaian values (culture) and that there is a need for that legislation to counter the supposed menace of homosexuality.

Pros, cons

The pros and cons of whether the bill will pass a constitutional test remain to be seen and will be the subject of a future article.

Suffice to say, as a firm believer of the Universalist Theory of Human Rights, I did serve notice of my readiness to challenge the constitutionality of the bill, should it be enacted, at the Supreme Court.

I have received and continue to court displeasure from a segment of the population for this stance, but I am of the full conviction that over time and with ‘proper’ education, my critics and that of my good friend and colleague, the irrepressible Akoto Ampaw, Esq. will see why the bill is discriminatory as per the 1992 Constitution.

The universality of human rights is often challenged, indeed questioned by proponents of cultural relativism.

By and large, these critiques emanate from duty-bearers as opposed to doers and not often reflect frank conceptual objectives to the concept of universalism but rather a ploy by recalcitrant states to avoid the promotion and implementation of human rights.

The writer is a lawyer

E-mail:georgebshaw1@gmail.com