Intercultural Dialoque and Human Rights: A latinamerican reading of Rawls The Law of Peoples
I. RAISING THE ISSUE
Human rights, specially those belonging to the first generation, as they are expressed in "The Universal Declaration of Human Rights" of December, 10th, 1948, are the end product of a long historical process inside Western Culture and whose previous stages are the English Revolution of 1648, the Declaration of American Independence of 1776, and the Declaration of the Rights of Man and Citizen of August, 1789. These documents, at the same time, take back the sociopolitical thought that had been developped in a long tradition, and whose most striking stages are: the supreme value of reason as basis for any sociopolitical relation such as we discover at the Greek Polis and such as it is presented by the great thinkers Plato and Aristotle; the intrinsic value of human person, son of the same Christian God, and capable, because of his freedom, either of salvation or of condemnation, as it was understood by the main thinkers in the Middle Ages; the human Individual, considered as a juridical subject, capable of making contracts and assuming rights and duties and, therefore, as the last foundation of any sociopolitical organization, as he was thought by the liberal tradition embodied by Hobbes, Locke and the Encyclopedists. The concrete praxis of these theoretical principles in democratic societies and nations where the Individuals are the cause and the end of this sociopolitical order such as we find in Great Britain, Switzerland, Holland, USA, France, Sweeden, Norwegen, Canada and many other nations throughout the five continents.
The origen and the content of human rights, as they are presented by the Declaration of 1948, belong to a concrete cultural and political tradition, that is, the Western,liberal, individualistic and democratic tradition. But such Declaration of Human Rights intends to be universal, that is, valid for all kind of cultures and nations, at any place and any time. Valid not only in a theoretical, logical and metaphysical sense, but also in a cultural and political sense. The rights established by the Universal Declaration of the Rights of Men intend to be juridical and political rights, concrete and real rights for any human individual at any culture and at any nation. (1) Jürgen Habermas, for instance, in his commentary on Kant's Die ewige Friede, defends that human rights can and must be the juridical minimal rights for any citizen inside the cosmopolis we have to build up in order to make sure the worldy peace. (2) The Law that rules the internal relations among citizens inside the State and the international Law that rules intestate relations, has to be extended in order to create a iuscosmopolitanum, a worldy Law, according to which citizens of all States become subjects of right and all States become obliged to satisfy them.
Which political and juridical foundation can justify the transit from the Western, particular, to the universal?. How can we find the political and juridical basis that justifies the transit from these western human rights to human rights so that human rights can be accepted and respected by any type of sociopolitical organization existing inside the different cultures, nations and peoples?.
Past and present history tells us that, in practice, human rights continue to be understood in a equivocal way and, so, freedom and equality of human beings, established by the Universal Declaration of Human Rights, are understood in different ways according to the different cultural traditions and according to the different types of nations and states such as they exist.
This juridical political foundation for the universality of human rights cannnot be the rationalist, religious-metaphysical, personalist, liberal-individualistic, western tradition. This western tradition, originally religious and metaphysical, has been changing, during the Modern Age, and losing its religious and metaphysical character.
Other cultural traditions, different from Western, can hardly accept as justifying foundation of Human Rights a tradition of religious and metaphysical values they do not share. That is why it has been intended, in different ways, to find a pragmatic foundation by means of a multinational and multicultural agreement or contract that could justify the universality of Human Rights so that they could be considered as juridical rights for all human beings and, therefore, accepted and respected by all nations and peoples. One of this efforts is the one recently presented by John Rawls in his "The Law of Peoples".
II. THE LAW OF PEOPLES AND HUMAN RIGHTS IN JOHN RAWLS.
John Rawls raises the problem of the universal, juridical and political validity of human rights in a conference, "The Law of Peoples", delivered at Oxford in 1993. John Rawls, in this conference, thinks that his theory of justice, such as it is explained in his previous writings, is not sufficient to establish a non etnocentric foundation that justifies the universal validity of human rights. (3) It is not sufficient due to the fact that his theory of justice as fairness was only a political understanding of justice rooted in the intuitive and basic ideas of public culture of democracy; so, it could not be extended outside this democratic culture. His theory of justice as fairness is a political conception of justice and has the following three features: 1) it is framed to apply to basic political, economic and social institutions; in the case of domestic society, to its basic structure, in the present case, to the law and practices of the society of political peoples; 2) it is presented independently of any particular comprehensive religious, philosophical, or moral doctrine, and though it may be derived from or related to several such doctrines,it is not worked out in that way; 3) its content is expressed in terms of certain fundamental ideas seen as implicit in the public political culture of a liberal society. (4) It is, consequently, illogical to apply such theory of justice out of his sociopolitical frame in order to build up a foundation for the universal validity of human rights.
In his conference "The Law of Peoples", he tries to find a foundation, different from his theory of justice as fairness, that justifies the universal validity of human rights, as a part of the Law of peoples, without falling into metaphysics and etnocentrism. He uses the Law of Peoples, that is, the theory of International Justice, in order to establish universal norms so that these norms can rule the reciprocal conduct of many States and nations and can promote the construction of a Society of Nations. Rawls begins from the same principles of the political liberal justice, such as they are presented in The Theory of Justice, and tries to apply these principles to nonliberal states and nations, due to the fact that the Law of Peoples can oblige many more states, including those with no liberal democratic tradition. From a constructivist point of view, Rawls'"The Law of Peoples" comes to answer the question: which kind of agreement or understanding among nations should be attained so that rights so fundamental as the right of any human being to life and to security, to personal property, to free conscience and religion, to freedom of going and coming and, therefore, to emigrate can be accepted by a great number of states, including those without liberal democratic tradition?.
Rawls speaks of a hypothetical original position carefully described that promotes the agreement on minimal and fundamental principles acceptable and accepted by all. This hypothetical original position will have to satisfy the requirements of The Theory of Justice, realizing that, in this case, the individuals must be representatives of nations and/or peoples. The essential conditions of this original position are: "first, the original position represents the parties (or citizens) fairly, or reasonably; second, it represents them as rational; and third, it represents them as deciding between available principles by appropriate reasons. We check that these conditions are satisfied by observing that citizens are indeed represented fairly or reasonably, in virtue of the symmetry and equality of their representatives' situation in the original position. Next, citizens are represented as rational in virtue of the aim of their representatives to do the best they can for their essential interests as persons. Finally, they are represented as deciding by appropriate reasons". (5)
Rawls distinguishes two different stages in this process of getting an agreement in order to work out a Society of Nations that rules international politics of all its members. The first stage begins with the agreement and understanding of the nations with liberal-democratic tradition. The principles of justice between free and democratic nations will include certain familiar principles long recognized as belonging to the Law of the Peoples. Among them, peoples are to honor human rights.
Once these liberal-democratic nations attain a minimal agreement, the second stage begins in order to extend and apply these principles to other states and nations witout liberal-democratic tradition so that these nations could share in the original position. Rawls speaks of well-ordered hierarchical societies. These well-ordered hierarchical societies are those that do not accept the political fact of pluralism and are organized according to a comprehensive, metaphysical or religious doctrine. But they will have to satisfy three requirements: 1) they must be peaceful and gain its legitimate aims through diplomacy, trade and other ways of peace. Its religious doctrine is not expansionist. 2) they need to have a reasonably well-organized legal system. That requires that its system has the power to impose moral duties and obligations on all persons within its territory, that its system of law be guided by a common good conception of justice, and that there exists a reasonable belief of the part of judges and other officials who administer the legal order that the law is indeed guided by a common good conception of justice. 3)They admit a measure of liberty of conscience and freedom of thought , even if these freedoms are not in general equal for all members of society. 4) they admit the right of emigration. (6)
The conception of the common good of justice secures for all persons at least certain minimal rights to means of subsistence and security -the right to life- to liberty, to property, as well as to formal equality as expressed by the rules of natural justice (similar cases be treated similarly). The nations or societies that satisfy these requirements must be considered as well-ordered hierarchical societies with the right to belong to the Society of Nations and, so, with the right to share the hypothetical original position in order to attain an agreement or a contract with the liberal-democratic states on a minimum of human rights such as: the right to life and to personal security, the right to personal property, the right to the requirements of a legal rule, the right to a certain amount of liberty of conscience and association, and finally the right of emigration. (7)
III. INTERCULTURAL DIALOGUE AND HUMAN RIGHTS.
3.1 Critique to Rawls'constructivist conception.
Rawls thinks that his procedure avoids any etnocentrism and, at the same time, states a juridical foundation for the universal validity of human rights. With such purpose, human rights have been reduced to a minimum considered politically neutral.
From a latinamerican point of view, I think that etnocentrism or eurocentrism has not been overcome; on the contrary, Rawls' theory of "The Law of the Peoples" is an obvious sample of etnocentrism and eurocentrism:
1. He begins from the prejudice, not explicit but implicit, that western-liberal-democratic society is the best sociopolitical organization human beings have developped up today and, therefore, must be the only model of society and the only criterion to be followed in order to create a Society of Nations for the defense of human rights.
2. As consequence of the previous paragraph, in the Club of the Society of Nations only the following societies or nations must be accepted: in the first stage, the liberal-democratic nations, all with the same right; in a second stage, the well-ordered hierarchical societies, that is, those other societies or nations that, besides the liberal-democratic nations, are the most similar to the liberal-democratic ones. Universality is thus reduced to the western-liberal-democratic nations and to those societies that are the most similar to the western-liberal-democratic ones.
3. No word is said on which organism is going to decide if and when a people or nation satisfies the requirements of a well-ordered hierarchical society to be accepted at the Club of the Society of Nations. But, by the context, we can state that the liberal-democratic nations will decide which nation or people and which not satisfy the requirements of a well-ordered hierarchical society. Well-ordered hierarchical societies will always be the invited and the accepted second-circle, while liberal-democratic nations will always be the inviting and accepting first circle.
4. Human rights have been reduced to a minimum considered as fundamental and neutral and, therefore, acceptable to all nations and cultures. These few human rights keep anyway their Western character by their origin and their development. These Western human rights intend to be the only human rights. The confusion between the Western and the human continues to exist in Rawls'way of understanding human rights.
5. Rawls' "The Law of the Peoples" is not open to the possibility of widening the minimum of human rights with new human rights coming from non-western societies and non-western cultures. Rawls' minimal human rights are understood as a grant of liberal-democratic societies to well-ordered hierarchical societies. Rawls' theory on human rights is a new effort to apply and to widen western values in concentrical circles to other societies and cultures in order to make them similar to western societies.
6. It is the old western way of acting: our truth -in this case, practical and political truth- is the greatest truth. Therefore, we have to enforce other societies and cultures to accept it, now not by violence and war but by more subtle means such as barring them from the new Society of Nations and from the sociopolitical benefits deriving from that Society.
7. It does not seem that the rights and duties of the well organized hierarchical societies satisfy all the requisites of the hypothetical original position, specially the requisite of absolute equalilty among the participants of the original positions such as it is described by Rawls. (8) The well-organized-hierarchical-societies seem to be accepted to share these concrete western human rights but they do not seem to be able to make proposals on new human rights others than the few agreed by the liberal-democratic-nations.
3.2 Intercultural dialogue as means to attain legitimacy and universality for human rights.
Rawls'proposal with his hypothesis of an original position and the two stages or circles of nations accepting human rights, does not imply the possibililty of a true and real dialogue among the representative persons coming from different peoples, from different cultures and different sociopolitical organizations in order to attain an agreement on which human rights must be acceptable to all of them. Human rights, that may come from any culture and from any society. (9) Such dialogue must be an universalist true dialogue.
Universalist dialogue in the sense that the authentical representative persons entering into dialogue, need to come from the most different peoples, cultures and sociopolitical organizations of the whole world. True dialogue in the sense that all representatives would have the same real right to talk and propose possible human rights and the same right to mutually listen. To talk and to listen are the two essential moments of any dialogue. Talking is the moment of the "I"; listening is the moment of "You", of the "Other". Each person entering into dialogue, has to be ready, from the very beginning, to satisfy both moments, that is, each person entering into dialogue needs the original disposal to interchange the double position of talking and listening, of the "I" and of the "Other", of "You". Even at the moment of talking, of "I", each participant has to talk having the disposal of listening, of being "You". The disposal of listening has always to be present even when "I" talk; if "I" talk without the original disposal of listening, of being "You", "I" am not ready to enter into dialogue and I will fall into the temptation of controlling and dominating you.
I want to point out the right or better the duty to mutually listen, completely forgotten by Rawls. For Rawls, the liberal-democratic nations that belong to the first rank circle of the Society of Nations have only the right to talk and to propose human rights that must be accepted by the well-ordered hierarchical societies, but not the duty to listen and to accept others' human rights. The non-liberal-democratic nations, on the contrary, have only the duty to listen and to accept other's human rights but not the right to talk and to make proposals. The duty to listen implies the disposal to open oneself to other's world and to other's values, that is, to otherness. The disposal to listen means to be open to other's cultural world and to other's personal world. And to be open to other's world implies on the part of the persons entering into dialogue: 1) a deep conviction of each participant on the fact that each culture is a partial and imperfect expression or manifestation of humanity and, therefore, that no participant has the only truth or the whole truth but only a truth or something of the truth. 2) each participant, conscious of his partial or imperfect truth, will not intend to impose his truth to other participants as if his truth were the only truth. 3) each participant, conscious of his partial or imperfect truth, has the disposal to open himself to others in order to profit and to accept that part of the truth or something of the truth others may have so that he can complete and improve his own partial and imperfect truth.
Western-liberal-nations, in Rawls' project, have not disposal to enter into a true dialogue with non-western and non-liberal nations. Western nations have no disposal to interchange their roles, they accept only to be "I" and refuse the possibility of becoming "You". At the same time, they accept that the others, the non-western, be only "You" and do not consider the possibility for the non-westerns to become "I". Western nations are not ready to be "You", to listen, that is, they are not ready to open themselves to the truths, values and proposals coming from the non-western non-liberal nations. Western-liberal-nations are not ready to listen because they do not satisfy the previous quoted requirements to be able to enter into a true dialogue. In fact, western-liberal-nations are conscious -as always before- that their culture is the most perfect expression of humanity and, therefore, they do have the whole and the only possible truth; that is why they want to share and, even, to impose that truth to other cultures and other peoples. Since they are proud of possesing the whole and only possible truth, they do not need any disposal to open themselves to others' truths, values and proposals because these non-western cultures have no truth, no values and no proposal to make and share.
The only possible relation, according to Rawls project, between the western-liberal-democratic nations and the rest of nations, qualified as well-organized-hierarchical societies, is the relation of western nations offering and sharing only their truths, the human rights, and of the well-organized-hierarchical societis only accepting those western truths, the western human rights. And that relation, according to Rawls, is not etnocentric or eurocentric.
The only procedure to attain a proper and contractual foundation for the universal validity of human rights will be, when the authentical representatives of all peoples and nations, all with the same rights and the same duties, all with the same disposal for interchanging their roles and for being "I" and "You", sit around a table ready to build up a true and real dialogue on human rights. Only then, the rights coming from that true and real intercultural dialogue will become true human rights acceptable to all of them. In those human rights, as a part of them, will, of course, be the western rights: the right to life and to personal security, the right to personal property, the right to the requirements of a legal rule, the right to a certain amount of liberty of conscience and association, and finally the right of emigration.
(1) With respect to the philosophical foundations that underlie human rights we recommend: Haarscher, Guy, Philosophie des Droits de l'Homme, Editions de l'Université de Bruxelles, 1989; and Sabine, G.H., A History of political Theory, Hunsdale (Illinois), Dryden Press, 1973.
(2) Habermas, Jürgen, "Kants Idee des ewigen Friedens -aus dem historischen Abstand von 200 Jahren", Kritische Justiz, Frankfurt am Main, 1995 (3), pp. 293-319.
(3) John Rawls main works are: The Theory of Justice, Cambridge, Mass., paperback,1973 y Political Liberalism, New York, 1993.
(4) Rawls, John, "The Law of Peoples", Critical Inquiry, Autum 1993, p.36, note 2.
(5) Rawls John, "The Law of the Peoples", p. 45.
(6) Rawls John, "The Law of the Peoples", pp.50-53.
(7) Rawls John, "The Law of the Peoples", p. 57.
(8) Rawls John, A Theory of Justice, p. 19: it seems reasonable to suppose that the parties in the original position are equal. That is, all have the same rights in the procedure for choosing principles; each can make pro-posals, submit reasons for their acceptance, and so on.
(9) To be objective, John Rawls does accept the possibility of working out a law of peoples, human rights being a part of such law of peoples, by starting with an all inclusive original position with representatives of all the individual persons of the world, such as Brian Barry does in his Theories of Justice, Berkeley, 1989. Rawls thinks that both ways should lead to the same law of peoples ("The Law of Peoples", p. 54-55).