Cultural Relativism and Cultural Imperialism in Human Rights Law Comment 5 Buffalo Human Rights Law Review 1999

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5 Buff. Hum. Rts. L. Rev. 211 (1999)
Cultural Relativism and Cultural Imperialism in Human Rights Law

handle is hein.journals/bufhr5 and id is 217 raw text is: CULTURAL RELATIVISM AND CULTURAL
IMPERIALISM IN HUMAN RIGHTS LAW
Guyora Binder*
One of the most persistent theoretical debates concerning
international human rights law is known as the Universalism-
Cultural Relativism problem. This debate proceeds on the
assumption that the legitimacy of international human rights law
depends upon the existence and perspicuousness of fundamental
principles ofjustice that transcend culture, society, and politics. Thus,
the debate presumes that to assert the cultural relativity of justice is
to deny the legitimacy of international human rights law and that to
defend international human rights law is to assert the universal and
transcendent validity of its norms. This comment seeks to challenge
this presumed linkage between international human rights law and
universally valid criteria of justice. It accepts the cultural relativity of
justice while insisting that this position has no necessary implications
for the legitimacy of international human rights law.
To understand the debate, it is necessary to recognize its
background in the nineteenth century legal positivist account of
international law as a product of the consent of sovereign states,
whether manifested in treaties or in custom and usage. This theory of
international law was securely rooted international law's validity in
the will of powerful governments -- but it left little place for an
international law of human rights that would constrain these
governments from mistreating their own people or persons
unprotected by another government. If international law can only be
created through the consent of sovereign states, no state need answer
to anyone concerning its treatment of its own people, unless it
consents to do so. And a state will only subject its treatment of its
own people to scrutiny if it already treats them decently (and gets to
define what counts as decent treatment!). Thus, a state based model
of international law would seem to render an international law of
human rights either impossible or superfluous. A human rights law
dependent on the will of sovereign states would appear to be no
* Professor of Law, State University of New York at Buffalo, School of Law.