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Citation: 30 Colum. Hum. Rts. L. Rev. 305 1998-1999

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HOW TO ARGUE FOR A UNIVERSAL CLAIM

by Jeremy Waldron*

In the controversy about universality versus relativism, there are

three strategies to which defenders of universal human rights commonly
resort. Two of them involve the use of examples.
I.
In the first strategy, we try to identify a form of oppression which
horrifies us and which we have reason to expect would horrify anyone from
any social or cultural background. Torture-particularly in its extreme
form-is perhaps the most common example. The example of torture works
well for this purpose because, although we are aware that torture remains
standard government practice in many societies, we are also aware that it is
known and intended to horrify those who hear about it, even in the cultures
and societies in which it is common. That is how it is intended by its
perpetrators-as a form of terror. It is not hard, therefore, to argue from the
standard, predictable abhorrence of torture in every culture and every society
to its condemnation as a universal moral evil. Everyone fears torture and
every torturer or authorizer of torture expects and hopes to be feared by
victims and potential victims in his society. No one is going to accuse
opponents of torture of applying their own parochial sentiments to societies
in which those sentiments are not widely shared.
Moreover, although moral and political arguments which might
justify torture in extreme situations are imaginable-i.e., the famous
hypothetical of the terrorist who has planted a nuclear device in a large city
and refuses to tell us where it is-the reasoning that is used in those
examples is familiar in all societies.' And the defects in that reasoning are

*
Maurice and Hilda Friedman Professor of Law, Columbia University. B.A, Otago
University, New Zealand (1974); LL.B., Otago University, New Zealand (1978); D.Phil.,
Oxford University (1986).
1.
See e.g., Alan Gewirth, Are There Any Absolute Rights?, in Theories of Rights
91, 99 (Jeremy Waldron ed., 1984) (considering hypothetical of terrorists threatening to
detonate nuclear bomb in large city). See also Jeremy Waldron, The Law (1990) (discussing
real-world justifications for torture).

COLUMBIA HUMAN RIGHTS LA W REVIEW

[30:305

well known to lawyers, politicians, activists, and ordinary citizens of every

creed and culture, and every ethical and political tradition.'
H.
The second sort of example is intended to be equally horrifying, but
to address a somewhat different problem. This is the example of female
genital mutilation. Unlike torture, female genital mutilation is not usually
cited as a practice that is universally abhorred, but rather as a practice that
is part of the cultural tradition of some societies (e.g., some societies in
Saharan and Sub-Saharan Africa), but which is nevertheless abhorred and,
according to the argument, rightly abhorred by people viewing those
societies or cultures from the outside. Unlike torture, the example of female
genital mutilation is supposed to address the relativists on their own ground.
It accepts the relativist's anthropological point that sensibilities, moral ideas,
and ideas of respect for persons and minimally decent treatment vary from
society to society. But this particular cultural practice so excites our
sympathies (for those who suffer it) and so offends our sensibilities, that the
example invites us to condemn the practice notwithstanding its establishment
in a culture. This example therefore helps to stiffen the confidence of people
like us in our ability to criticize foreign practices, and in the legitimacy of
our own human rights ideals, even in the face of relativist objections. It
invites us to trust our intuition that certain practices are vile, even when we
know that there are people or whole societies who regard those practices as
morally acceptable.
III.
The third strategy is more philosophical than the other two. It is
more than the simple production of an example together with an appeal to
the intuitions of the audience. The third strategy involves philosophical
argument about the abstract possibility of culturally transcendent and
genuinely universal moral standards. It aims to show how such arguments
are possible, notwithstanding cultural diversity, notwithstanding moral
disagreement, notwithstanding even the lack of objective truth or falsity for

2.

See Henry Shue, Torture, 7 Phil. & Pub. Aft. 124 (1978).

1999]

ARGUING A UNIVERSAL CLAIM

elementary logical
moral standards (for it is, of course, an error-and a fairly
3
anti-realism.)
moral
from
relativism
infer
error-to
The third strategy, therefore, seeks to cut off, at the philosophical
pass, any generalrelativist attempt to discredit the intuitions conjured up by
examples of the kind I have just mentioned. The relativist may say:
Of course the psychological intensity of your particular parochial
abhorrence of things like torture and clitoridectomy will lead you
to project those sentiments even beyond the bounds of the culture
that nurtured them. But that is a mistake. Social, moral or ethical
standards are not just culturally rooted: they are culture-bound.
Any attempt to apply them beyond the culture of their
provenance is incoherent.
That is what the relativist will say, and the universalist's third response is to
discredit this in general as philosophy. The universalist will say: There is
nothing about the way in which moral judgments are formed or generated or
nurtured which restricts the range of their appropriate application. Just as
penicillin kills bacteria in Cambodia even though it was discovered and first
tested by a Scotsman, so the categorical imperative may explain why it is
wrong for one Nigerian to tell lies to another even though the categorical
imperative was first formulated and theorized in East Prussia.
Of course, the universalist philosopher will concede that various
moral judgements (indeed various judgments in other objective realms as
well) may have presuppositions that are not satisfied in every social or
cultural setting. The claim that a lowering of unemployment tends to raise
the rate of inflation may be known to hold only in societies where there is
something like a labor market; it may not hold in cases where the level of
productive employment depends, say, on tradition-bound responses to cycles
of drought and fertility, etc. Similarly, the political or legal claim that people
have a right to trial by jury may make sense only in a society which has an
organized system of criminal law, and it may be acceptable only in a society
which has developed its criminal law institutions in a certain way. Also, in
a slightly different way, statements like "adultery is wrong" or "theft is
wrong" may make implicit reference to the matrimonial and property

3.

See Jeremy Waldron, Law and Disagreement 172 (1999).

COLUMBIA HUMAN RIGHTS LAW REVIEW

[30:305

institutions of a particular society. You cannot know what counts as theft,

until you become acquainted with the local rules of property.
But this sort of relativity-of norms to social presuppositions or of
norms to institutional settlements-is well-understood. It has to be
established case by case, that is, norm by norm; it cannot form the
foundation of a generalrelativism of norms to societies or cultures; and it
certainly cannot be used to discredit our practice of critically evaluating the
very institutional settlements and social presuppositions which are
themselves referred to in this more limited, acceptable form of
presuppositional relativism.
There are various philosophical arguments along these lines,
distinguishing respectable from disreputable forms of relativism. Here is
another example. Bernard Williams talks helpfully in his book Ethics and
the Limits of Philosophy about the "relativism of distance"-which he
regards as a useful reminder that not all cultures and ways of life present
themselves as members of a single choice set, among which a trans-cultural
evaluation might usefully guide us.4 For instance, the life of a samurai
warrior is simply not available to me as a law professor in the United States
at the end of the twentieth century; hence any ethical comparison of these
two ways of life by me is purely notional. If I say, "The way of life of an
American law professor is morally superior to that of a samurai warrior," I
come close to incoherence: the prescriptive implications ofmy statement are
simply unclear, given that one of the things being compared is simply not an
option for the person making the comparison. But Williams also
argues-and equally cogently-that knee-jerk cultural relativism (ofthe sort
that used to be espoused by philosophy students who had also taken
anthropology courses) is "possibly the most absurd view to have been
advanced even in moral philosophy."5 If action pursuant to moral judgment
is possible, ifdifferent cultures and societies interact with and are in a
position to learn from each other-and the overwhelming majority of
societies are in this position, and have been, throughout history, eager to
study, evaluate and if possible adapt the views and cultures of their
neighbors, enemies, and trading partners-then there is nothing but
absurdity in the claim that each society's standards are right by their own
lights, but cannot be extended beyond their boundaries. So once again we

4.
5.

Bernard Williams, Ethics and the Limits of Philosophy 65-68 (1985).

Bernard Williams, Morality: An Introduction to Ethics 34 (1972).

1999]

ARGUING A UNIVERSAL CLAIM

have a philosophical distinction between reputable and disreputable forms

of relativism.
What the defender of human rights needs to do, then, is to show that
the kinds of universal claims that are made in the human rights industry do
not fall under any of the disrespectable forms of relativism, and that any
relativist critiques of human rights doctrine are of the second, disreputable
sort.
IV.
Now, it may be thought that of all the moral claims we make, human
rights claims sometimes come pretty close to succumbing to the (respectable)
relativism of distance, in Bernard Williams's sense. Consider again the
example of female genital mutilation. It is probably unthinkable for a
feminist law professor or political science professor in the United States to
imagine herself adopting the life and culture of a Muslim girl living in
conditions of peasant subsistence in a sub-Saharan village. And so there is
something fatuous about the simple claim that the situation of the former is
morally superior to that of the latter. The American professor simply does
not face the choices that an evaluation of that kind appears to prescriptively
address. Similarly, we do not use human rights doctrine to condemn things
like cannibalism or human sacrifice, because we know that the ways of life
of, say, Maori cannibal warriors or Mesoamerican sacrifice cults, are distant
from us-mainly in time, in history-in a way that puts them beyond the
reach of the choices that current human rights theories aim to guide.
But female genital mutilation is not quite beyond the realm of
current choice in this way. On the one hand, there are things we can do to
influence what takes place in Somalia, for example. There may not be a lot
(as the United States found to its cost and humiliation some years ago), but
there are choices that we have to make or that people we know (like aid
workers) have to make, which involve a meaningful evaluation of female
genital mutilation. Not least among these choices are our responses to
asylum pleas from girls and young women seeking to escape this practice.6
On the other hand, and we should never forget this, female genital
mutilation is not just intended as a tribal mark or tattoo (say, like male

6.
See Layli Miller Bashir, Female Genital Mutilation in the United States: An
Examination ofCriminal and Asylum Law, 4 Am. U. J. Gender & L. 415, 424-25 (1996).

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circumcision in the Jewish world). The doctrine behind it contains an

implicit reproach to some of our Western views about women and sexuality.!
It may not be a valid or convincing reproach, but certainly there is
disagreement or competition between the views about women and sexuality
that these practices represent and the views about women and sexuality that
are presupposed when we make our criticism of these practices.' And even
if no one is proposing to extend the practice of clitorectomy to the West,
these opposing views cannot be treated relativistically. They have to be seen
as confronting one another, each on the other's turf, and they cannot both be
right. I will return to this point in a page or two. But let me first reinforce the
anti-relativist position.
V.
Overall, I suspect that culture-boundedness is the exception not the
rule in ordinary human moral discourse. Most of the time when people state
moral positions, they do so without reference (either explicit or implicit) to
the boundaries of their culture. They say, "Murder is wrong," not just that
it is regardedas wrong around here, or they say, "The subordination of
children to fathers is the right way for families to be organized," not just that
this is the way their culture has chosen to organize the family structure. They
may be aware that other cultures do things differently, but that is an
awareness of opposition or disagreement, not merely cultural difference.
Thus, when we say, "All humans are created equal," or "Slavery is wrong,"
we do not intend to qualify or limit that with a cultural reference such as,
"This is just what we in the West happen to think." We intend the
categorical and universal character of these utterances to be taken at face
value. 9
7.
For useful critical discussions, see Doriane Lambelet Coleman, The Seattle
Compromise: MulticulturalSensitivity and Americanization,47 Duke L.J. 717, 725 (1998),
and Micere Githae Mugo, Elitist Anti-circumcision Discourse as Mutilating and
Anti-feminist, 47 Case W. Res. L. Rev. 461 (1997).
8.
See the excellent discussion in Yael Tamir, Hands Off Clitoridectomy, Boston
Rev., Summer 1996, at 21. This article can be accessed on the Internet at the following
address: http://bostonreview.mit.edu/BR21.3/Tamir.html. There are also some responses to
Tamir's analysis, and a final reply by her, in a subsequent issue of the Boston Review,
accessible at http://bostonreview.mit.edu/BR21.5/.
9.
See Jeremy Waldron, Values and CriticalMorality, in Jeremy Waldron, Liberal
Rights: Collected Papers 1981-1991 168, 183-88 (1993).

1999]

ARGUING A UNIVERSAL CLAIM

The same applies to most of the moral or ethical views that we hear
coming out of societies other than our own. They too are phrased
categorically and universally. And members of those societies intend that
phrasing to be taken at face value, even when they know their claims conflict
with our own. So, when an Iranian cleric says something like, "Pornography
is inherently degrading and any society which tolerates it as a matter of
principle is irredeemably corrupt," he intends that to apply to us, to apply to
us every bit as much as we intend our high-minded strictures about civil and
political freedom to apply to him.
True, our first response may be to say that religiously based views
like that have no place in public discourse. But that is something he is likely
to disagree with, and once his disagreement is expressed, we can no longer
regard our own tortured settlement of the boundaries between church and
state as something which is self-evident. That settlement, too, is now under
pressure, and we must respond to that pressure, intellectually, the best way
we can.
VI.
This brings us to a couple of very important points, which together
I intend as the moral of my remarks. The first is this: if we take a human
rights norm and try to apply it to another society, and we find that it is
resisted on the grounds of a contrary evaluation which is, let us suppose,
common in, and typical of, that society, then that contrary evaluation should
not be regarded simply as an objection to the universality of our human
rights claim. It will usually amount to an objection to the content of our
claim even on its home ground, even to the extent that we apply it
comfortably among ourselves.
The pornography case I mentioned a moment ago provides a clear
example. Suppose we object to some interference with ordinary people's
access to the Internet in Iran, and we do so on grounds of the human right to
free speech and freedom of communication. We say that this interference is
censorship, a violation of human rights. The Iranian authorities will no doubt
reply, justifying their interference on the ground that the restriction is
necessary to suppress the influence of pornography, which they have reason
to believe would be a common use that people would make of the Internet
if it were available. We, then, will say-as one would expect human rights
theorists from the United States to say-that even pornography ought to be
protected under the principle of free speech, which human rights doctrines
enshrine.

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To this, the Iranian clerics might make either of two replies. First,
they might make a silly relativist reply, something like, "We organize our
society differently; pornography is not tolerable for us in the way that it is
tolerable for you." Or second, they might make the following reasonable,
though undoubtedly contestable, response. They might say, what I imagined
them saying a moment ago: "Pornography is inherently degrading, and any
society which tolerates it as a matter of principle (let alone as a matter of
human rights) is irredeemably corrupt." Now, the second option is a
response that addresses the content of our human rights claim, and we have
to be able to answer it. Theirs is not now a relativist objection to human
rights universalism; it is a direct objection to the corruption and decadence
embodied in our standard. And if we cannot answer it, and answer it
adequately, then we are not entitled to regard our toleration of pornography
as valid even for us, let alone as a standard to be inflicted on everyone else.
We know this anyway because in our own Western debates about
human rights, the toleration of pornography is controversial on something
like the Iranian cleric's grounds-even among those who are not Iranian
locals or Muslims or anything foreign to our tradition at all. Many in the
West-many feminists, many Christians-believe that our culture has
become appallingly pornographic, with frightful consequences for respect
for human life, human relationships, and human sexuality.' And some of
them may want to agree also with the Iranian clerics-again, directly against
the content of human rights orthodoxy-that such harms cannot be
understood except from a religious perspective, and that human rights
theories have impoverished themselves by ruling out such perspectives a
priori. I am not saying they are right about that. " But since we cannot
dismiss these worries in our own culture by throwing the label of
"relativism" at them, so similarly we cannot use that label dismissively when
the criticisms of human rights doctrine come from abroad.
My point, then, is that we are not entitled to sanitize the Muslim
response to our toleration of pornography as nothing but relativist resistance
to the universalization of our standards. It is much more important than that.
Precisely because relativism is for the most part silly and misconceived as
a philosophical position, any resistance to our universalization of human
rights doctrine should be read charitably as a direct challenge to the
10.
See, e.g., Ronald Dworkin, Freedom's Law: The Moral Reading of the American
Constitution 227-43 (1996); Catherine MacKinnon, Only Words (1993).
11.
But see Jeremy Waldron, Religious Contributions to Political
Deliberation, 30 San Diego L. Rev. 817-48 (1993).

1999]

ARGUING A UNIVERSAL CLAIM

substance of the doctrine. With the exceptions I outlined earlier in section

II, it should not be taken as a resistance to universalization as such. It has
to be addressed as substance.
VII.
And then a second point follows quite quickly. If we are going to
strut around the world announcing, and where possible enforcing, universal
human rights claims, the only thing that can possibly entitle us to do that is
that we have carefully considered everything that might be relevant to the
moral and political assessment of such claims. It is not enough that we have
considered what Kant said to Fichte, or what Bruce Ackerman said to John
Rawls. The price of legitimizing our universalist moral posturing is that we
make a good faith attempt to address whatever reservations, doubts, and
objections there are about our positions out there, in the world, no matter
what society or culture or religious tradition they come from. Apart from that
discipline and that responsibility, we have no more right to be confident in
the universal validity of our intuitions than our opponents in another culture
have to be confident in theirs. And that is a difficult assignment, because
such doubts and reservations and objections will often challenge not just the
content of our conclusions, but our whole way of thinking about the issues
that we address in our human rights concerns.
VIII.
I am not a relativist, I am a cosmopolitan. 2 I believe some human
rights standards can be arrived at and ought to be upheld everywhere in the
world. But precisely because relativism in general is false, we are not
entitled to assume the right to enforce whatever tentative conclusions happen
to have emerged from our particular inbred set of debates about free speech,
the division of church and state, or individual autonomy. Until those debates
are enriched, in a cosmopolitan way, with an awareness of what is to be said
about them and around them and against them, from all the variety of
cultural and religious and ethical perspectives that there are in the world,
they remain parochial; and we should stand accused of the stupidest, most
12.
See Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U.
Mich. J.L. Reform 751 (1992).

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COLUMBIA HUMAN RIGHTS LA W REVIEW

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arrogant form of moral imperialism if we were to swagger around trying to

impose our way of life without sensitively confronting the basis of other
people's and other cultures' resistance to it. Certainly if we try to dismiss all
such resistance as relativism, we will end up consigning human rights
discourse to a rather unpleasant, obtuse, and morally impervious relativism
of its own.