International Human Rites: A Response to Professor Weinberger

Seth has finished his very successful tenure as a guest-blogger here at Opinio Juris and his legacy goes on. One of his posts on the potential for universal human rights deeply intrigued a colleague of mine at Hofstra, Bernard Jacobs, a professor of constitutional law and a classics scholar. His thoughtful and interesting response to Seth’s post is below:

I read with interest Professor Weinberger’s piece marveling at the possibility of conflict between International Human Rights and ‘local practice, custom and tradition in the developing worlds.’ Since I live in one of those developing worlds, the United States, I am very much aware of these conflicts.

So here’s an answer to Professor Weinberger’s challenge. It is not yet time for definitive codes of international law or international human rights. There is such a good chance that applying such codes hinders rather than helps. At some point international human rights may become international human rites.

I say that because local customs may, in fact, be necessarily local and, more than that, they may be a better social solution than the one that seems, due to your local customs, more reasonable. This is not a relativistic argument, but one that grows out of the contestedness of morality. Believe me, our local customs are constantly – even here in the backward U.S. – under great and continuing pressure from our striving with other rules and ways of doing things. I am amazed, not so much of different ways of living, but from my sense that so many of them may be right, but inaccessible or wrong, but all too accessible.

The rules we live by have not yet achieved the clarified status of ‘rights.’ The few simplistic rules-of-thumb that merit that status do not begin to deal with the real world, either local or universal. Unfortunately, the process by which, like sausage, human rights are turned out and let loose on the world, does not take that into consideration. There should be no ‘moral force’ in documents containing vague, flatfooted rules that are supposed to replace moral judgment. I eschew the rhetoric of human rights and of international human rights.

So the United States is out of step? Maybe that is so. But with what? The march of history has been a little discredited, and the paper-world of human rights is not a feasible substitute.

International Human Rights, my international law colleagues tell me, is too big a reality on the international scene to be dismissed. I certainly have to admit that the themes it provides are here to stay because they are too tempting to each nation or region or group as a stick with which to beat their rival nations, regions and groups over the head. Every kettle needs to call some pot black. That is what is behind so much of the fecund stew of U.N. conventions.

More than that I suspect that, to some degree, the many international organizations, multi-billion dollar NGO’s, State Department plums and self-congratulatory Institutes, Centers and Foundations at or near law schools all over the country, are united in only one thing. They are united in a rhetorical device, so that they may reduce the discussion of morality and of the careful, prudent management of foreign affairs, to a set of slogans or the unthinking affirmation of some fashionable theme.

Over the past thirty years Mrs. Roosevelt’s well-intentioned gift to the world has transmogrified into a vast structure, an industry, a complex set of careers. As always, institutional structures and dynamics take over. On one level they have become particular political programs and agendas. On another level they have devolved into ritual celebrations of a new personality. The embodiment of that personality I have never met, but it is one which many people the world over, and certainly many bureaucrats, deeply believe in. That mythical being — I dare not give the being a gender, for it does not itself know its gender —- is the international human. This great being was never born nor raised, speaks no particular language, and has neither kith nor kin.

None of us, not even the International Human’s most impassioned followers, can achieve this wonderful – this immaculate — status. The poor followers do come from particular worlds, have particular needs and desires, and push particular agendas – especially, push agendas. So it is that I find it helpful to recall the friars of the late medieval world who wandered penniless offering solace and salvation. With them, one had to puzzle – sometimes – about whether what they offered was a genuine relic, was truly the toe bone of St. Thomas. I urge you to view claims of rules of international human rights in just that way; good relics are desirable, but are you, good friar or good Amnesty Internationalist, offering a real one. Let’s discuss that and postpone the celebration of international human rites.