A Contemporary Perspective: A Middle Ground between the Polarised Debate

One of the fundamental reasons why the cultural relativist critique of the universality' of rights has acquired its distinguished status in the discourse of human rights norms is primarily' because of their shared foundations upon which the beliefs are based. Universalists draw upon humanity' and human nature to claim the inherent value of human rights simply' because one is human.¹⁶ Similarly, cultural relativists draw upon the very concept of human nature and humanity by emphasising the significance of‘culture’ in shaping and moulding the beliefs, practices, and perceptions of human nature itself. In fact, the scholars Pearce and Kang go to the extent of arguing that ‘to be human is to have been encultured to some specific culture whose characteristics have been internalised’.¹⁷ The influence of culture in all aspects of society is so fundamental that an individual’s perception of the world is unconsciously conditioned by pre-existing categories and standards of a particular culture.¹⁸ In this way, both the universalist and cultural relativist positions draw upon the inherent nature of human beings in substantiating their respective claims. Going further, it is difficult to dispel the belief that a form of cultural relativism is necessary, if not essential, to provide an appropriate check and balance to the claims of universality of human rights, which often accused of possessing ethnocentric tendencies. Sonia Haris Short strongly condemns the ethnocentric nature of the ‘presumed universality of human rights’, which asserts that human rights are determined as the ‘absolute truth’ and thus are by definition universal.¹⁹ Such a pure universalist position not only is impossible to be objectively verified, but also can be rightfully dismissed as being morally imperialistic.²⁰ Appreciating the merits of a degree of cultural relativism into the discourse of international human rights law, An-Na’im argues that in order to establish genuine universal human rights, there is a need to be aware of the limitations of our own ethnocentricity and appreciate cultural differences.²¹ In this way, the challenge of cultural relativism is significant as it helps to enlighten and question one’s own ethnocentricity and helps to rebut the accusations of moral imperialism that are often associated with the universalist claims of human rights.

Just as the philosophy of universalism has its justifications based on a variety of theoretical foundations, there are, similarly, various different formulations of the theory of cultural relativism. In fact, it is almost habitual for the most ardent critiques of cultural relativism to presume a uniform construct of the theory, resulting in their censure often only being applicable to the most radical variation.²² A careful consideration to understand the nuanced differences between the different variations of cultural relativism is significant in not only recognising its invaluable contribution to a form of relativism in the discourse of international human rights, but also providing aid in being able to distinguish and identify the more radical forms of cultural relativism. This will ensure that a radical form of relativism can be appropriately challenged if adopted in the discourse of international human rights law. This task will begin with the following analysis of some of the key concepts that have emerged from universalism and cultural relativism debates, which will provide the foundations to help distinguish between the various formulations of cultural relativism.

Conceptualising ‘Culture’ within the Context of Cultural Relativism

Anthropological and sociological literature has provided a number of different definitions of culture.²³ Whilst this book of literature carries great significance, a more focused and detailed analysis of the boundaries of culture can provide a tool to understand the refined positions held by scholars along the spectrum of cultural relativist critiques. The most criticised and often dismissed definition of culture is that conceptualised by Franz Boas.²⁴ Known as the Boasian view of culture, he understood culture to be a bounded, static, and homogenous entity that was distinct and resistant to change.²⁵ Xiarong Li describes this as the ‘classic school vision of culture’ which perceives culture as ‘time insensitive’ and thus determines ‘the destiny of the population and the ways in which they think, feel, judge and behave’.²⁶ One of the most profound criticisms of this narrow interpretation of culture is that not only does it play pretence to being able to maintain boundaries around any human group, but, more importantly, it fails to take into account historical and social changes that occur within cultures over a period of time.²⁷ This narrow conceptualisation of culture is often aggressively used by repressive regimes who exploit the bounded and static interpretations of culture to justify intolerable practices.²⁸ This reluctance to accept that cultural norms can be reformed is at the heart of the most radical form of cultural relativism, named for the present analysis as the strictest form of cultural relativism, which will be discussed at length in the next section. For the present purposes, this narrow conceptualisation of culture is often aggressively used by repressive regimes who exploit the bounded and static interpretations of culture to justify intolerable practices.²⁹ Primarily for this reason, a number of alternative definitions of culture have been proposed.

A modern conceptualisation of culture recognises it as a dynamic process. This position perceives culture as ‘unbounded, contested, and connected to the relations of power’.³⁰ This is a more ‘fluid’ interpretation of culture, whereby practices and values of a particular culture are subject to ‘internal inconsistencies, conflicts and contradictions’.³¹ Advocating this view, Sally Engle Merry clarifies the traditional misconceptions of the anthropological definition of culture by arguing that contemporary anthropologists understand cultural ‘boundaries as fluid’, and thus culture is ‘marked by hybridity and creolization rather than uniformity or consistency’.³² In this way, scholars that adopt this interpretation recognise that cultures are often subject to ‘internal inconsistencies, conflicts and contradictions’.³³ In other words, recognising that norms internal to cultures are subject to contestations means that there is a possibility that cultural norms and beliefs are changes and reforms to accommodate and respond to norms that are significant to a particular society.³⁴ This modern conceptualisation of culture is encapsulated at the heart of the works of a number of scholars that can be broadly defined as moderate cultural relativism. Whilst there are nuanced differences between the suggestions advocated by the scholars, this modern conceptualisation of culture is adopted to advocate the utilisation of the porous definition of culture to gain cultural support of international human rights norms, with the ultimate aim to further enhance implementation of international human rights law in the domestic context.³⁵ An elaboration of this variation of cultural relativism and how it is positioned within the broader spectrum of universalism and cultural relativism will be the focus of the next section.