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The Pathway to Legitimacy and Universality of Human Rights from a Cross-Cultural Perspective —A Brief review of An-na’im’s Theory of Human rights Legitimacy and Dialogue
August 25,2021   By:CSHRS
The Pathway to Legitimacy and Universality of Human Rights from a Cross-Cultural Perspective
—A Brief review of An-na’im’s Theory of Human rights Legitimacy and Dialogue
 
HUANG Jinrong * & YANG Liu **
 
Abstract: Within the international human rights circle, Abduliahi Ahmed An-na’im is regarded as a representative of “Southern voices.” Under such a circumstance that the confrontation between the West and non-Western countries on human rights has become a routine reality, An-na’im advocates a contingent universality of human rights or “contingent universality of human rights,” and insists that the universality of human rights be based on the cultural legitimacy of human rights. While he sees the internal dialogue of human rights in all non-Western countries, including Islamic ones, as a basic way to ensure the international human rights standards be accepted gradually, he also believes the cross-cultural dialogue among different societies can eventually lead to the reconstruction of the legitimacy of international human rights standards or even the standards themselves. An-na’im’s theory of moderate cultural relativism points a way to achieve universality of human rights for developing countries, but there are a few questions that need to be further addressed.
 
Keywords: An-Na’im     human rights     legitimacy     cultural relativism
 
Since the 1970s, Western countries have intensified their human rights diplomacy, while the Islamic world has witnessed an Islamic revival. It has led to innumerable conflicts between the Islamic world and the West over human rights issues. In this context, the issue of how to reconcile Sharia, which prescribes all human conduct for Muslims, with modern international human rights has become unavoidable for all Muslims, while the challenge posed by Islam has become a tough issue which the universal human rights theory must respond to. Many Muslim scholars have undertaken theoretical explorations in this regard. Abduliahi Ahmed An-Na’im, a scholar from Sudan, has been regarded as a significant leader in contemporary Islamic human rights theory, and to a considerable extent considered as a representative scholar who defends all notions of human rights in the non-Western world. An-Na’im’s ideas on human rights have been to a considerable degree influenced by the Sudanese Islamist reformist thinker Mahmoud Mohamed Taha. He acknowledges the positive role of the international concept of human rights and advocates the reform and creative interpretation of the Sharia to bring it as close as possible to the international human rights standards. However, at the same time, he has opposed the absolutization of international human rights standards. Even more, he opposes the imposition of the Western concept of human rights on non-Western countries and peoples. To this end, he proposes a contingent universality of human rights and argues for the gradual achievement of universal human rights through creative interpretation of internal traditions and cross-cultural dialogue.
 
I. International Human Rights Conflicts and the Contingent Universality of Human Rights
 
In the human rights discourse of mainstream Western scholars, human rights have been unquestioningly regarded as “the idea of our time, the only political-moral idea that has received universal acceptance,” 1 and even as “the ideology of the ‘end of history’,” 2 while many international human rights instruments are seen as “the holy writ within the human rights movement.” 3 However, in developing countries, many see the human rights movement as an “imperialist phenomenon” and that the international human rights corpus has an “‘alienage’ to it that smacks of the colonial project” 4 for Asian and African countries. However, An-Na’im’s position is not as extreme as theirs. While he is usually seen as holding a distinctly cultural relativist position on human rights in the spectrum of human rights theory, he considers himself a human rights universalist, except that he believes in a contingent universality of human rights.
 
A. Insistence on the functional universality of human rights
 
The conflict between Western and Islamic concepts of human rights has been a source of clashes between the West and the Islamic world, and a major obstacle to the realization of the UN international human rights system with the Western concept of human rights at its core in most Islamic countries. The frequent sharp confrontation over religious-related human rights has led to numerous incidents of violent clashes between the two concepts of human rights. Such incidents have often led to violent political conflicts between the West and the Islamic world. The Salman Rushdie affair of 1989 has been seen in the eyes of the West as a complete assault on freedom of expression. However, in the Islamic world, the blasphemous statements against the Prophet Mohammed in Rushdie’s novel are generally considered to be in no way within the realm of freedom of expression. For this, Iran even went so far as to directly announce the death penalty for Rushdie and to protest by severing its diplomatic relations with the UK. The 2005 cartoons in the Danish media that vilified Mohammed also triggered widespread protests in the Islamic world, while the West showed its support for the cartoonist by publishing more similar cartoons. These intermittent clashes of concepts about human rights between the Islamic world and the West are what motivated An-Na’im’s exploration of the universality of human rights.
 
For An-Na’im, human rights should indeed be universal by their very concept. He maintains that “human rights ought, by definition, to be universal in concept, scope, and content as well as in application: a globally accepted set of rights or claims to which all human beings are entitled by their humanity and without distinction on grounds such as race, gender or religion.” 5 He acknowledges that the most direct origin of the concept of human rights comes from the West in the 18 th century and that the Universal Declaration of Human rights is to a considerable extent a product of the “universalization” of constitutional rights in the Western developed countries. 6 However, he maintains that the fact that the current concept and content of human rights originated mainly in the West does not in itself prove that human rights are not universal, nor does it mean that the current set of international human rights standards should not be accepted as a valid expression of such a universality. The reason why An-Na’im is in favor of the universality of human rights is that he believes that the concept of human rights, regardless of their origin, can play a great role in safeguarding human dignity and promoting the well-being of all human beings, that it has some universal value base enabling it to be seen as the result of the joint efforts of all human beings, and that therefore the principle of human rights and its international legitimacy should be upheld in the face of any challenges. 7
 
An-Na’im recognizes that all non-Western societies now live under the Western model of the nation-state, whether based on colonial imposition or the result of post-colonial autonomous choices. To this end, he argues that “unless and until those societies develop either an alternative model of the state or better safeguards against the abuse and manipulation of its extensive powers, they are better advised to also adopt Western concepts and mechanisms that have already succeeded in providing effective limitations on those powers in the Western experience.” 8 He argues that it is wise to acknowledge the effectiveness of current international human rights standards precisely because they reflect, to a large extent, the common experience accumulated by countries around the world today in the face of the reality of expanding state power and globalization. For this reason, although there are still many countries that have not signed or ratified the relevant international human rights conventions, few countries, even Muslim ones, have publicly denied their effectiveness. 9
 
An-Na’im’s view reveals that although he insists on the universality of human rights as the starting point for his own elaboration on human rights, he does not take the due universality implied by the concept of human rights as a reality taken for granted, let alone sanctify international human rights standards.The universality of human rights that An-Na’im advocates is primarily what Jack Donnelly calls functional universality, rather than a conceptual or ontological universality. 10 He sees the universal value of human rights primarily in terms of his acceptance of their function as a resistance to oppression and a limitation of power, but he does not exclude the possibility of developing countries establishing alternative human rights standards to the existing international human rights system. As a result, from the general, An-Na’im’s insistence on the universality of human rights holds reservations.
 
B. Contingent universality of human rights
 
An-Na’im identifies with the universal value of human rights, but he does not take this universality for granted. In his view, this universality of human rights in a cross-cultural context requires certain contingent elements to be truly realized. As a result, if human rights are universal, it is “a contingent universality of human rights.” According to An-Na’im’s logic, since the legitimacy of human rights cannot be separated from the agreement by the major global cultures, the universality of human rights is in doubt until the major global cultures can agree on them. Until the current international human rights standards are shared by the world’s major cultures, their universality is bound to be greatly diminished. 

According to An-Na’im, the universality of human rights has two meanings, one being universal effectiveness and the other referring to universal application. Universal effectiveness means that human rights are valid within all human societies or all major cultural, philosophical and religious traditions, i.e. they can be shared by all human societies. The second sense of universality is that a norm applies to anyone anywhere. 11 He argues that the two meanings are mutually inclusive and mutually supportive, that the universal validity of human rights necessarily facilitates universal application, and that in the absence of universal validity it is difficult to achieve the universal application of human rights. In cases where there is massive public resistance or strong governmental resistance to a human right, the universal application can only be achieved through some form of external coercion. 12 For An-Na’im, the main problem with existing international human rights standards lies in the fact that some of them have problems of universal effectiveness, which prevents them from being universally applied.
 
Taking freedom of expression as an example, An-Na’im shows that for human rights to be truly universal, not only does a consensus need to be reached among people from different cultures, but also certain conditions need to be in place for its realization. Arguing that the limitation of freedom of expression in international human rights law to the justiciable negative individual freedom in the Western sense is flawed, Anaim argues that for many poor developing countries, it is vital to ensure that individuals and collectives who are unable to express themselves can express themselves in society and that it is therefore important to ensure that all children receive adequate education and that extra-judicial means of implementation to encourage individual and collective expression are also fully developed. In other words, for many human rights to be truly guaranteed universally, they need to be based on certain spiritual and material conditions. It is not a fact that international human rights law is fully and universally implemented as soon as it is established.
 
An-Na’im’s view of the contingent universality of human rights implies that the relevant human rights standards, even if effective, do not necessarily have to be implemented or be capable of being implemented immediately. As a result, An- Na’im’s insistence on the universality of human rights is more like what Marina Svensson calls the “potential applicability” 13 of human rights than to their immediate applicability. As a result, although An-Na’im is in favor of the universality of human rights, the universality he advocates is only a weak universality of human rights. It is quite different from the claim of strong universality that international human rights standards should instantly have a morally or legally binding effect on all people in all countries and societies. For the strong universality theorists, what An-Na’im calls contingent universality is not universality, but a cultural relativism that denies objective standards in its complete sense. However, in the eyes of An-Na’im, cultural relativism is not necessarily a negative phenomenon about human rights; it at least suggests that cultural identity is significant for the effectiveness of human rights and that the view of Jack Donnelly that “where traditional practices conflict irreconcilably with internationally recognized human rights, traditional practices usually must give way” 14 is hardly acceptable. For An-Na’im, it is the culture and values of each country that should determine the legitimacy of human rights and not the other way around.
 
II. Cultural Legitimacy of Human Rights and Moderate Cultural Relativism
 
A. Cultural legitimacy of human rights
 
While not denying the formal universality of the current UN human rights system, An-Na’im argues that the adoption of the Universal Declaration of Human rights and the corresponding human rights covenants is not in itself enough to prove that human rights are truly universal. To achieve that, they must be truly accepted by all cultures of the world. Only in this way can they have a firm basis in reality for their legitimacy and effectiveness. This is the meaning of the “cultural legitimacy of human rights” proposed by An-Na’im. He takes a broad understanding of the “culture” mentioned here. It refers broadly to “the sum of values, institutions, and patterns of behavior transmitted in a society.” It is a broad concept encompassing “worldviews, ideologies and cognitive behaviors.” 15 According to this cultural concept, the issue of the legitimacy of human rights refers to the issue of whether they can be recognized by the mainstream values and ideologies of society.
 
The issue of the cultural legitimacy of international human rights standards was raised by An-Na’im because he found that the clashes between international human rights standards and the mainstream culture of certain societies are relatively common. As a Muslim human rights advocate, he first felt intensely about the conflicts between international human rights standards and Sharia, which is designed to regulate the private and public lives of all Muslims. Later, he further discovered that the issue of the cultural legitimacy of human rights is not in reality confined to the Islamic world alone, as almost all major cultural traditions in the world (including Western culture) would reject or at least oppose rights affirmed by some of these international human rights instruments. For example, the Second World countries have generally insisted on recognizing individual economic and social rights and collective rights, while supporters of the Western liberal tradition have opposed the granting of human rights status to these rights or have always refused to cooperate in implementing these rights. It is exemplified by the refusal of the United States which claims itself to be the world’s champion of human rights to ratify the International Covenant on Economic, Social and Cultural rights. The existence of such conflicts has led to the recognition of not only the need to increase the legitimacy of international human rights standards in the Muslim world but also the urgent need to promote the cultural legitimacy of human rights around the globe.
 
Unlike the universalists of human rights like Jack Donnelly, who see the traditional culture of nations, especially developing countries, as an object to be judged and even transformed in accordance with international human rights standards, An-Na’im sees this culture not only as a foundation of the survival and dignity of people across the world but also as a basis in judging the legitimacy of the human rights culture. An-Na’im does not deny the mutability of culture, but he advocates that such a culture should be changed primarily through internal changes according to the will of the people in a country. He argues that massive coerced enforcement by a government, against its population, is neither consistent with the nature and justification of human rights in general, nor likely to succeed in practice. Although he also acknowledges the necessity and usefulness of applying a degree of external pressure on governments that fail to meet their international obligations, he believes that to make external pressure the primary instrument of local implementation will not only be seen as an infringement on national sovereignty and a violation of the people’s human rights to self-determination but would also be expensive and difficult to maintain. “The use of coercion as the primary means of enforcement at either the national or international level is neither desirable as a matter of principle nor likely to materialize and be sustained in practice.” 16
 
For An-Na’im, the underlying reason why international human rights standards clash so strongly with the cultures of non-Western societies lies both in their predominant Western origins and in the West’s politically, economically, and culturally powerful positions. He argues that the currently accepted international standards for human rights were conceived, developed, and established primarily by the West; that the main reason why existing international human rights instruments have not well reflected the cultures of the world is the lack of the Second World representation at the time they were formulated and the weakness of non-Western countries in human rights discourse. In this respect, An-Na’im is in full agreement with Makau Mutua, a representative of the “Second World Approach to International Law” school of thought, who argues that African, Asian, Muslim, Hindu, and other traditions were heavily absent from the formulation of the Universal Declaration of Human rights, thus leading to the idea of “the failure of multiculturalism at the start of the movement.” 17 However, An-Na’im goes further than Makau Mutua in pointing out that the actual influence of Second World countries, even when they subsequently had the opportunity to participate in formulating some international human rights instruments, has remained rather limited. The underlying reason is that, in addition to being influenced by West-dominated international power relations, representatives of Second World countries have a serious “dependency syndrome” on Western countries in terms of the human rights discourse. Since most Second World countries were just emerging from centuries of Western colonial domination when these international instruments were formulated, and continue to have various forms of dependence on the West till now. The ruling elites, scholars, and activists in developing countries have not yet had the opportunities to develop their own thinking on many fundamental philosophical and practical issues. As a result, they are often not able to fully represent the public in their countries and utter a voice that truly reflects the public thought. 18 It is such destitution and dependency in terms of the human rights discourse that makes it so difficult to change the image 19 of the people in developing countries as victims in need of Western saviors to save them from the “tyranny of their countries, traditions, and cultures.” In the eyes of An-Na’im, the recognition of the legitimacy of cultural relativism is a good weapon to change such a destitution of the human rights discourse in developing countries.
 
B. Rationality of cultural relativism
 
An-Na’im sees the cultural legitimacy of human rights as an important means of correcting the historical deficiencies of the existing international human rights system, but the problem is that cultural relativism itself is also somewhat problematic, which, if not handled properly, could also lead to the disintegration of the concept of human rights. The basic argument of cultural relativism is that cultures in different societies can be highly different from each other and therefore inevitably lead to differences in values. It means that it is highly difficult to have completely consistent values among different cultures and therefore to have a view of human rights featuring a universally shared value. In addition to that, cultural relativism can also lead to an inability to effectively criticize other cultures and therefore to an unprincipled tolerance of such ugly phenomena as “slavery, cannibalism, Nazism,” among others. 20 One of the inevitable negative political consequences of cultural relativism is that it often serves as an excuse for human rights violations by certain governments.
 
However, in An-Na’im’s view, only extreme cultural relativism would lead to the conclusion that human beings do not share universal values. He believes despite their apparent peculiarities and diversity, human beings and societies share certain fundamental interests, concerns, qualities, traits, and values that can be identified and articulated as the framework for a common “culture” of universal human rights. 21 What An-Na’im questions through cultural relativism is simply the view that the universality of current international human rights standards is already a fact taken for granted. In response to the view that these international human rights standards and implementation mechanisms are universal simply on the basis that most governments have participated in the process of drafting international human rights law or that most countries have subsequently ratified these international instruments and the assertion that the simple notion of cultural relativism is an attempt to justify human rights violations. An-Na’im argues that they only reflect excessive formalism or naive idealism. 22
 
Makau Mutua, also from Africa, views international human rights as “an instrument of global domination by imperialist states” to free the human rights movement “from European cultural centrism and its habitual alliance with the West” and thus to make the human rights movement “culturally legitimate” and truly “a weapon of struggle in the hands of the powerless,” 23 Similarly, An-Na’im’s advocacy of cultural relativism aims to challenge the “rigid and exclusive ethnocentricity,” so that human rights could be genuinely recognized by people from different cultural traditions and to promote worldwide adherence to human rights standards. 24 He argues that the allegation that a cultural relativism of human rights might lead to tolerance of injustice was also a serious issue. In the eyes of these accusers, cultural relativism takes human rights norms, which originally occupied the moral high ground, off the sacred altar, while values that might otherwise be negatively judged by human rights norms are rationalized. This practice neutralizes moral judgments that are otherwise superior or inferior, thereby undermining acts against injustice. But in An-Na’im’s eyes, the accusations of cultural relativism of human rights are mostly exaggerated. He maintains that the logic of cultural relativism emphasizes that shared moral values must be real and not imposed from the outside. It does not deny that there may be the least common denominator universality of morality among cultures. 25 In this sense, he prefers to agree with the anthropologist Clifford Geertz that relativist discourse in anthropology should be seen to indicate that there is no absolute criterion of value or morals. 26 In the words of Alison Dundes Renteln, another cultural relativist of human rights whom An-Na’im himself admires, “the major contribution of relativism is not its advocacy of tolerance but instead its focus on enculturation. By calling attention to the power of enculturation, relativism might be used to alleviate but not obliterate prejudice.” 27 As a result, cultural relativism is more of a warning and a rebellion against the absolutist tendencies that can arise from universalists, rather than denying the existence of any shared values.
 
III. Human Rights Consensus and Cross-cultural Dialogue
 
A. Non-forced global consensus on human rights through cross-cultural dialogue
 
In the spectrum of human rights theories, An-Na’im belongs to the human rights consensus theorists who regard human rights as a global universal consensus, rather than the traditional natural human rights theorists who believe in the existence of a set of objective human rights standards that are not predicated on various cultural identities. Human rights consensus theory witnesses its most typical expression in Charles Taylor’s statement that human rights should be a “genuine, non-forced international consensus” 28 reached globally, or, as Rawls put it, an “overlapping consensus” among groups, nations, religious communities, and civilizations. 29 An-Na’im argues that the universality of human rights requires a global agreement and a consensus among societies and cultures. However, this universality should not be a set of standards arising from the culture of a particular society applied to all other societies. He holds that the many clashes that currently exist between international human rights standards and regional cultures suggest that many international human rights standards are not a global consensus. As a result, it should be frankly acknowledged that some standards are ineffective for certain cultures. The fundamental reason for this phenomenon is that the existing international human rights standards are based on the culture of Western democratic counties. However, there are still many parts of the world where Western notions of democracy and human rights have not taken root. 30
 
How then should the formation of a global consensus on human rights be promoted in the absence of a comprehensive consensus on international human rights standards? According to An-Na’im, the question of whether and to what extent irreconcilable differences exist between a particular international human rights standard and the norms, values, and institutions of any other culture can be addressed through internal cultural dialogue and cross-cultural dialogue. On the issue of internal cultural dialogue, An-Na’im also shares Stephen C. Angle’s view that every society essentially has “divided communities” 31 within itself, arguing that there will always be diverse voices within a society and that the popular interpretations and perceptions of each cultural tradition will support some human rights and disagree with or even completely rejected some other human rights. He argues that while a particular interpretation or perception of certain cultural norms and institutions may appear to be in fundamental conflict with existing international human rights standards, this does not make it impossible to articulate an alternative interpretation that may begin to resolve the conflict. 32 Cross-cultural dialogue should be aimed at broadening and deepening international (or rather intercultural) consensus. This direction may include support for the proponents of enlightened perceptions and interpretations within a culture. This effort, however, must be sensitive to the internal nature of the struggle, endeavoring to emphasize internal values and norms rather than external ones, so that it is not easy to provide pretexts for the attacks from conservative cultural interpreters. 33 In this way, An-Na’im believed that, even if the nature and substance of culture itself made it impossible for human rights advocates to achieve complete success, it would at least significantly improve the culture clash situation. 34 For An-Na’im, it is clear that internal cultural dialogue in societies where human rights are to a considerable extent an alien concept is not value-neutral, but rather has a strong goal orientation of striving to accept international human rights standards. This internal human rights dialogue effort is neither a negative strategy of “ignoring”, treating the problem as non-existent, as Stephen C. Angle said about cross-cultural encounters, nor a “forced” approach that could destroy “valuable respect,” but rather a positive “adaptive” approach that helps to reduce conflicts. 35
 
In the context of cross-cultural dialogue on human rights, An-Na’im argues that if the dialogue is to broaden and deepen global consensus it must be undertaken in good faith, with mutual respect for, and sensitivity to, the integrity and fundamental concerns of respective cultures, with an open mind. 36 This process must be mutual among cultures. Some people in one cultural tradition who wish to bring about a change in the attitudes of people in another culture must be open to the possibility that their attitudes may also need to change; this dialogue must be based on mutual respect and neither party should try to impose its values on the other culture. 37 While An-Na’im is more in line with Charles Taylor and Stephen C. Angle in ensuring the “non-forced” and egalitarian nature of cross-cultural dialogue, An-Na’im would have preferred Charles Taylor’s view on how to deal with the human rights criticism that inevitably arises in intercultural dialogue. While advocating for mutual respect in human rights dialogue, Stephen C. Angle particularly emphasizes the positive role of mutual human rights criticism in the exchange of human rights discourse and rejects the view of developing countries that human rights dialogue rather than human rights confrontation is required. 38 However, Charles Taylor argues that the Western world’s confrontation with human rights in the developing countries is often counterproductive because “world consensus will not always be reached through the abandonment or denial of tradition. However, through the creative iterations of different groups in their spiritual heritage, they move by different routes towards a common goal.” He asserted that the fundamental reason why the mutual understanding required for normative convergence on human rights issues between developing and Western countries is often not achieved is that “many Westerners are unable to recognize that their culture is only one of many” and are therefore unable to truly and fully respect non-Western cultures. 39 An-Na’im also points out that existing international power relations must be considered in terms of the equal respect for each other that is essential for an effective intercultural human rights dialogue. As a result, in any case, the West which is in a powerful position, clearly has a greater responsibility in this regard. 40 It is thus clear that An-Na’im would hardly be opposed to human rights criticism from the West without discrimination; he is simply concerned that, with the Western world in a powerful position, if the West fails to respect the non-Western world, such human rights criticism, rather than contributing to human rights in the non-Western world, will impede the progress of the global human rights cause by provoking emotional confrontation among both sides.
 
B. Considering existing international human rights standards as a starting point rather than a destination for cross-cultural dialogue
 
A common problem that all theories emphasizing the legitimacy and cross-cultural dialogue of human rights are bound to face is how to approach existing international human rights standards that are primarily seen as a reflection of Western culture. One of the extremes of the theories in this respect is one like that of A.J.M. Milne, which advocates a complete departure from the existing international human rights system and rebuilding the global consensus on human rights based on the existing major world cultures, to establish minimum but truly universal human rights standards. 41 At the other end of the spectrum is the one like that of Tom Zwart, who argues that in promoting the domestic implementation of international human rights standards, we should strive to adopt and endorse localized approaches to implementation in line with local cultural traditions. However, in no case should the belief in the legitimacy of the international human rights standards themselves be shaken. 42 However, An-Na’im neither argues that the promotion of intercultural dialogue on human rights requires a complete rejection of existing international human rights standards nor categorically acknowledges their unquestionable authority. He maintains that, despite the problems of cultural legitimacy and practical effectiveness of existing international human rights standards, if they were to be rejected comprehensively today, we might never regain the status that the international human rights movement has achieved to date. In his view, there are at least two reasons why existing standards are needed in the process of internal cultural dialogue and cross-cultural dialogue. First, the existing framework of human rights standards can serve as a point of reference for debate or revision until we strive to refine the concept and better elaborate on standards for truly universal human rights; second, the existing human rights standards and mechanisms can provide some protection for human rights scholars and activists, thus contributing to their efforts to develop and implement more culturally justifiable human rights standards in their respective societies. 43
 
In response to Makau Mutua’s question of “whether international action on human rights should move from setting standards or norms, to implementing existing standards” as the central question to be answered by human rights theorists, 44 An-Na’im’s practical answer is that existing international human rights standards can be applied for the time being, but it must be acknowledged that the existing human rights norms may change or be abolished. 45 The justification is simple: the purpose of cross-cultural dialogue is to seek a human rights consensus that will not necessarily be compatible with existing international human rights standards. A corollary to the cross-cultural approach is therefore that it may amend the existing international standards. “While I would not lightly suggest such a revision or reformulation, I must acknowledge that it is possible to reach this conclusion if a truly universal cultural legitimacy is sought for human rights.” 46 An-Na’im refers to the process of reclaiming human rights consensus through cross-cultural dialogue as a “retrospective legitimization process” of existing international human rights standards. In other words, “existing international human rights standards are not a done deal, and their universality is subject to constant re-verification and proof. This process is likely, if not necessarily quite likely, to lead to the revision and, if necessary, reformulation of existing human rights standards.” 47
 
It is clear from An-Na’im’s attitude toward international human rights standards that while his theory of cultural legitimacy and cross-cultural dialogue of human rights sees human rights as a consensus reached among different cultures, he has not slipped into a position that some scholars have taken which ignores existing international human rights standards takes the lowest common denominator of cross- cultural dialogue. He does not share the view that “in a multicultural world, a true human rights table has to be a thin one,” 48 as David Miller has argued. Although he considers the existing relatively substantial international human rights system as deeply flawed, he still sees it as a major achievement of the international human rights movement. An-Na’im argues that “Instead of being contented with the existing lowest common denominator, I propose to broaden and deepen universal consensus on the formulation and implementation of human rights through the internal reinterpretation of, and cross-cultural dialogue about, the meaning and implications of basic human values and norms.” 49 It is clear that, despite his dissatisfaction with many existing international human rights standards and his advocacy of reshaping the international human rights system based on internal and cross-cultural consensus, An-Na’im still expects the international community to create a substantial list of international human rights that would be more conducive to guaranteeing the dignity of all people.
 
IV. The Path to Universal Human Rights in the Islamic World
 
The guarantee of human rights in the Islamic world is the starting point and destination for An-Na’im’s theory of the legitimacy of human rights and the theory of cross-cultural dialogue. As a Muslim, An-Na’im is, on the one hand, outraged by the aggressive human rights criticism often targeted at the Islamic world by the West, but on the other hand, deeply concerned by the many violations of international human rights that exist in the Islamic world. To this end, he seeks to address the conflicts between the Islamic view of human rights and international human rights through Sharia reform, and proposed to “promote mediation rather than confrontation.” 50 An-Na’im sees the possible negative consequences of a confrontation between the Islamic world and the West in terms of human rights. He argues that the Islamic world has adopted an entirely reactive mode of defense and response to the ongoing attacks on human rights from the West. “Following the failure of secular liberalism or national socialism in the post-independence era, Muslims are now channeling their frustration and powerlessness into radical and militant Islamic revivalism as an assertion of their right to self-determination.” 51 This radical response to the Western world has led to more difficult advocacy of universal human rights within the Islamic world.
 
Like many Islamic human rights scholars who believe that “the fundamentals of human rights” are “sacredly enshrined in the qur’an,” 52 An-Na’im prides himself on the existence of a large number of aspects of Islamic tradition that are consistent with the existing international human rights standards, but his focus is on the conflicts between the two in terms of women’s rights, non-Muslim rights, freedom of worship, torture, among others. From the perspective of the cultural legitimacy of human rights, he argues that to reconcile these conflicts, human rights must be viewed from the internal perspective of Muslims towards Islamic culture, otherwise it would be impossible for Muslims to understand modern international human rights. 53 An-Na’im questions the validity of an international human rights advocacy movement initiated by the West, with an agenda and priorities set by the West, and a heavy reliance on the West for resources. He argues that while the world, including the Islamic world, has strong supporters of universal human rights, “The course of the international advocacy of human rights will never be secure and consistent with its own rationale as long as ‘Rushdie Defense Committees’ are only set up in the North to pressure governments in the South.” 54 Therefore, in An-Na’im’s view, the key to the universalization of human rights in the Islamic world is to seek Muslims’ acceptance of international human rights standards from within the culture of Islam.
 
However, it will not be easy to achieve full recognition of existing international human rights standards in the Islamic world. In 1990, the largest intergovernmental organization in the Islamic world, the Organization of the Islamic Conference (OIC)(renamed the Organization of Islamic Cooperation (OIC) in 2011) adopted the highly Islamic Cairo Declaration on Human rights in Islam because it was dissatisfied with existing international human rights standards. The Declaration has comprehensively abridged and revised international human rights standards based on the supremacy of Sharia. Such attempts to amend international human rights law in the Islamic world are similarly reflected in the Arab Charter on Human rights, adopted by the Arab League in 1994, and the gCC Human rights Declaration, adopted by the Gulf Cooperation Council (GCC), a group of six Arab states of the Persian Gulf, in 2014. It is for this reason that An-Na’im is clearly conscious of the supremacy of the Islamic faith for Muslims and of the fact that there is no alternative to their choice of that faith. “If I, as a Muslim, am faced with a stark choice between Islam and human rights, I will certainly opt for Islam.” 55 In the case of the Qur’anic provision for the punishment of beheading the son of a thief, although such a punishment constitutes cruel, inhuman, or degrading torture under existing human rights standards, An-Na’im argues that “however, to the vast majority of Muslims, the matter is settled by the categorical will of God as expressed in the qur’an and, as such, is not open to question by human beings. Even the educated modernized Muslim, who may be privately repelled by this punishment, cannot risk the consequences of openly questioning the will of God.” 56 In An-Na’im’s view, scientific arguments are often inadequate to be taken as evidence in the face of the Islamic faith, and the arguments traditionally used to argue against torture can often appear powerless.
 
Of course, this does not mean that the conflicts between Islam and international human rights standards are irreconcilable. An-Na’im believes that these conflicts can be mediated through appropriate Islamic reform. He argues that both authoritative conservative and authoritative liberal discourses can be found in the qur’an and the Sunnah and that the question depends on what choice Muslims make in their own historical context and how they struggle for that choice. 57 To this end, he advocates that human rights advocates in the Muslim world should strive to reinterpret traditional Islamic teachings to suit today’s world. According to An-Na’im’s understanding, the various traditional interpretations of the qur’an and the Sunnah are inevitable products of the historical contexts of Muslim society at particular times and places. Since the political, social, and economic contexts of Islamic society have now changed dramatically, the methodology of interpretation at present must also reflect current realities. This approach mentioned by An-Na’im calls is in fact what Hambemas calls “a historic-hermeneutical approach to the understanding of Qur’anic teachings” that the Islamic world must adopt to complete modernity. It is a “secular self-understanding position of modernity” that needs to be consciously adopted within the Islamic world.” 58
 
However, against the realistic backdrop of Western power politics, the Islamic world’s attempts to achieve a modern transformation of the Islamic tradition in this way, and thus bridge its conflicts with international human rights standards, will not be easy. The reason for this is that the Islamic world will inevitably take a considerable amount of time to truly complete its modern transformation, which means that it will also require a considerable degree of tolerance and understanding from the outside world concerning the concept of human rights in the course of its long transformation. However, the point is that this is precisely what the Western world, dominated by a strong universality of human rights, finds difficult to grant. An-Na’im places his hopes for resolving these conflicts on internal and cross-cultural dialogue. However, such a dialogue will not only take a long time but also does not necessarily eliminate the conflicts between Sharia and international human rights standards in all ways. For example, the conflicts between Sharia’s provision on apostasy and the freedom of religion affirmed by international human rights law can be bridged by a liberal interpretation of the Qur’anic statement that “Let there be no compulsion in religion,” according to An-Na’im. However, in fact, “even the constitutions of democratic Muslim countries rarely affirm that the freedom of religion includes the freedom of Muslims to convert to other religions.” 59 For this very reason, in the vast majority of Islamic countries, “the debate on apostasy centers on the severity of the punishment rather than on the illegality of the act.” 60 This means that it is highly unlikely that proselytism can be justified in complete accordance with existing human rights standards. The same logic applies to the issue of torture described by An-Na’im. Where a Qur’anic provision exists for the punishment of beheading for theft, while certain positive elements present in the Sharia (such as the requirement of complete justice and equality in law enforcement) can still be used by the Islamic society to limit how it is applied in practice, An-Na’im himself has to admit that “neither internal Islamic reinterpretation nor cross-cultural dialogue is likely to lead to the total abolition of this punishment as a matter of Islamic law.” 61 As a result, while the conflict between Sharia and international human rights standards can be mitigated to some extent by “creative transformation” within a culture and by external cross-cultural dialogue, it is highly difficult to eliminate such conflicts in their entirety, even in a permissive external environment, not to mention the fact that such an ideal external environment does not exist.
 
V. Significance and Limitations of An-Na’im’s Theory of Human Rights
 
In the international human rights theory community, An-Na’im has been a representative human rights scholar of “Southern voices.” 62 Since the 1990s, he has been working to develop a theory of the cultural legitimacy of human rights from the perspective of developing countries, particularly Islamic countries. The starting point for his theory is an issue common to most developing countries to varying degrees: they both see human rights as a noble value worth pursuing but are unable to tolerate the highly politicized and oppressive human rights criticism and interventions from the West. The core concern of An-Na’im is primarily how the universality of international human rights standards and their realization in non-Western developing countries should be perceived, to try to find a realistic path that is both conforming to the wishes of developing countries and conducive to the realization of the universality of human rights.
 
The solution proposed by An-Na’im is to adopt a moderate cultural relativist position that favors the universality of human rights but at the same time argues that it should be based on cultural legitimacy. 63 This position does not disregard existing international human rights standards. On the contrary, it sees them as standards and goals for the progressive improvement of the human rights situation in a society. Meanwhile, he is not blindly convinced of the absolute correctness of these standards and therefore advocates that each country and region should be allowed to assert itself on certain human rights issues with internal cultural legitimacy, and that we should allow for the revision of certain international human rights standards in the context of a new consensus on cross-cultural dialogue. It should be noted that this moderate relativism is highly in line with Article 8 of the 1993 Bangkok Declaration which “Recognizes that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds,” and the Organization of Islamic Cooperation’s resolution in 2015 that human rights “are of a universal character and must be perceived within the framework of a dynamic non-static process for the evolvement of international standards with due consideration to national and regional specificities and to the diverse historic, cultural, and religious backgrounds.” 64 It is also highly consistent with Article 8 of the ASEAn Human rights Declaration in 2012, which states “the human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely to secure due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.” In this sense, An-Na’im’s moderate cultural relativism can indeed be said to reflect, to a large extent, the common position of most developing countries. Its sophisticated elaboration on the issue of the cultural legitimacy of human rights can certainly serve as a powerful defense of this common position.
 
It should be noted that the cultural relativism of human rights is not a new theory per se, but that An-Na’im’s main contribution is that he has developed this theory to a large extent. The cultural relativism of human rights originated in the process of universalization of human rights that began after World War II, and the universalization also brought with it the problem of the contradiction between universality and particularity and the potential abuse of the concept of universality. In 1947, when the United Nations was drafting the Universal Declaration of Human rights, the American Anthropological Association presented a famous document to the United Nations Commission on Human Rights (the present-day Human Rights Council), the Statement on Human rights. The spirit of the statement is to question the universal applicability of the draft of the Universal Declaration of Human rights, which is based on Western notions of culture and rights, and to warn of the potentially oppressive consequences of such universality in practice for non-Western countries. The statement notes that Western colonizers have always stressed the absoluteness and correctness of their own values and have been in the habit of denying the colonies under their control “religious beliefs that for untold ages have carried conviction, and permitted adjustment to the Universe,” asserting that “the history of the expansion of the western world has been marked by the demoralization of human personality and the disintegration of human rights among the peoples over whom hegemony has been established.” 65 This statement is often regarded as the beginning of the idea of cultural relativism in human rights. Although the extreme relativist tendency it embodies, which denies the existence of universal human rights, has been rejected by the academic community, the subsequent difficulties in the implementation of international human rights treaties and the practice of international human rights struggles have repeatedly proved that its proposition that human rights should have a cultural legitimacy and that the concept of the universality of human rights may become a tool of the powerful Western countries to oppress non-Western countries is highly prescient. It is on this basis that An-Na’im has developed his theory of the cultural legitimacy and the dialogue of human rights, and attempted to use the proposition of the cultural legitimacy of human rights to construct a theoretical barrier for developing countries against human rights oppression by Western countries in the name of universality.
 
Although this position of moderate cultural relativism was denounced by the US government delegates at the World Conference on Human Rights in 1993 as a “screen behind which authoritarian governments can perpetrate abuses.” 66 However, An-Na’im discovered that almost all countries in the world (including the West) would reject or at least oppose some of these international human rights recognized by international human rights instruments. Cultural relativism is always seen by Western countries as the preserve of developing countries that seek to suppress human rights. However, almost all Western countries adopt this position of cultural relativism to varying degrees in terms of the implementation of international human rights standards. Some Western countries have not acceded to all the international human rights conventions, or if they have, they have made reservations to certain human rights provisions. Besides, they are more likely to be lax in implementing certain types of rights that they do not genuinely recognize (such as economic, social, and cultural rights, which are placed with a greater emphasis by developing countries). In this regard, no country is more typical than the United States, which prides itself on being a beacon of human rights in the world. The United States has ratified only three of the six core UN human rights conventions. It has not acceded to the most central one titled the International Covenant on Economic, Social and Cultural rights. What’s more, it has not yet ratified the Convention on the rights of the Child, which is the most universal human rights convention, making it a rare exception among over 190 UN members. In addition to that, even the International Covenant on Civil and Political rights, with which the United States is most closely identified, was acceded to by it with extensive reservations. The United States is arguably more relativistic than most developing countries about the “universal human rights” recognized in international human rights conventions. It is also in this sense that An-Na’im’s view of the theory of cultural relativism being applicable not only to developing countries but also to developed Western countries is highly insightful.
 
An-Na’im identifies intracultural and cross-cultural dialogue as the basic approaches to resolving the conundrum of conflicting human rights concepts, and argues for the replacement of human rights confrontation by human rights dialogue in cross-cultural human rights exchanges, to ensure the effectiveness of human rights exchanges. It could be said that this core view of An-Na’im is also consistent with the basic position of most developing countries. For example, the Bangkok Declaration states that “recognizing that the promotion of human rights should be encouraged by cooperation and consensus, and not through confrontation and the imposition of incompatible values,” the ASEAn Human rights Declaration explicitly upholds the principles of “non-confrontation” and “non-politicization,” and the resolutions adopted by the Organization of Islamic Cooperation emphasize “the importance of consolidating and protecting these rights through cooperation and consensus rather than through a confrontational approach and attempts to impose divisive, alien and incohesive values.” 67 The key to the issue is simply whether this idealistic model of dialogue is feasible in real life.
 
Recognizing that human rights dialogue requires certain conditions to be effectively carried out, An-Na’im argues that “to harness the power of cultural legitimacy in support of human rights, we need to develop techniques for internal cultural discourse and cross-cultural dialogue, and to work towards establishing general conditions conducive to constructive discourse and dialogue.” 68 The ideal conditions for dialogue as expected by An-Na’im require that the interlocutors must respect each other on an equal footing and be sensitive to each other’s cultures and positions. An ideal dialogue is as Habermas depicts. The participants in a rational interaction would establish “relations of mutual recognition, mutual role-taking, a shared willingness to consider one’s tradition with the eyes of the stranger and to learn from one another, and so forth” and ultimately “build a consensus based on conviction.” 69
 
However, the reality of international human rights politics between the West and developing countries makes it difficult to achieve this ideal model of dialogue. Despite repeated calls in regional international documents of developing countries to oppose the politicization of human rights and the imposition of incompatible values in a confrontational manner, Western countries are still only accustomed to using their political, economic, cultural, public opinion, and other advantages to deal with their human rights conflicts with developing countries in a highly politicized and confrontational manner. It is often not only unhelpful to the development of human rights in developing countries, but can also lead to the “vicious circle” that Charles Taylor saw in the West’s relations with many Islamic countries and that An-Na’im tried so hard to escape: “Condemnation from outside fuels extreme reactions of resistance, which in turn invite further condemnation, followed by more violent reactions.” 70 An-Na’im’s efforts to resolve the conflict between developing countries and international human rights standards through internal cultural dialogue and cross-cultural dialogue reflect a well-intentioned and constructive attitude. However, it is also evident from the recent practice of sanctions and public opinion siege by Western countries, encouraged by the United States, against China over so-called human rights issues in Xinjiang that highly politicized and instrumentalized human rights and human rights confrontation are still the basic ways in which Western countries treat human rights in developing countries (especially developing countries like China that they consider as rivals). The American Anthropological Association’s warning more than 70 years ago, based on the colonial history of the West, that the concept of the universality of human rights could be used by the West as a tool to suppress non-Western countries still holds true. However, while the West engaged in colonialism “driven by despicable motives” in the past, it now wields the whip of human rights as the noblest of “human ideals.” 71 In this context, developing countries have no other choice but to engage in a determined international struggle for human rights.
 
Moreover, we must also see that although An-Na’im’s theory of the cultural legitimacy of human rights and theory of human rights dialogue provide a strong defense or elaboration of the cultural legitimacy of human rights, the justification of cultural relativism, the specific ways in which human rights dialogue can be conducted, and others, he has not explored in-depth many of the finer theoretical issues that these topics may involve. For example, on the issue of the cultural legitimacy of human rights, he argues that only those human rights that are recognized by the culture of a given society are legitimate. However, as he himself acknowledges, there are always internal divisions in every society, so there is always the issue of the divide between dominant and non-dominant cultures in general. In such cases, if a human right is only recognized by a non-dominant culture, does it not have legitimacy? If it is assumed that only human rights shared by the majority of a given society are culturally legitimate, how should the human rights of those minorities be safeguarded? An-Na’im did not follow-up and answer these questions. In terms of the theory of human rights dialogue, although he sees the drawbacks of the West’s politicized and confrontational approach to human rights, An-Na’im also fails to discuss in depth the possible value of this confrontational approach and the conditions under which it might work, as well as how developing countries should face the confrontation of human rights. In this sense, although An-Na’im, as a representative of moderate cultural relativism, has shown the way to the realization of universal human rights in developing countries, his theory itself leaves much to be perfected.
 
(Translated by PAN Yingzhao)
 
 
* HUANG Jinrong ( 黄金荣 ), Associate Researcher, Institute of Law, Chinese Academy of Social Sciences.
 
** YANG Liu ( 杨柳 ), Lecturer, Law School of Jingdezhen Ceramic Institute. This paper is funded by “Research on the Universality and Subjectivity of Human Rights” (Research Subject Grant No. 14BFX141), a general project of the National Social Science Fund of China.
 
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