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Human Rights: Universalism and Cultural Relativism

2003; Taylor & Francis; Volume: 6; Issue: 3 Linguagem: Inglês

10.1080/1369823032000233564

1743-8772

Richard Mullender,

International Law and Human Rights

Click to increase image sizeClick to decrease image size Acknowledgements A particular debt of thanks is owed to Peter Jones and Simon Caney for their criticisms of and comments on an earlier draft of this essay. Thanks are also due to John Alder and Ian Ward for their comments on earlier drafts. Notes For an influential example of the sort of ‘mainstream’ literature mentioned in the text, see Steiner & Alston (2000 Stein, E. 1986. ‘History against free speech: the new German law against the “Auschwitz” – and other “lies”’. Michigan Law Review, 85: 277–324. [Crossref], [Web of Science ®] , [Google Scholar]: 366ff). See also Tesón (1985 Tesón, FR. 1985. ‘International human rights and cultural relativism’. Virginia Journal of International Law, 25: 869–98. [Google Scholar]: 877, 898), where a sharp contrast is drawn between the supporters of cultural relativism and those who seek to advance the process of universalising human rights. Compare Harris‐Short (2001 Harris‐Short, S. 2001. ‘Listening to “the other”? The Convention on the Rights of the Child’. Melbourne Journal of International Law, 2: 304–50. [Google Scholar]: 310–16), arguing that the relationship between universalism and cultural relativism should be understood as complementary and that human rights lawyers should (in particular contexts) pursue the end of a ‘culturally legitimate universalism’. Harris‐Bailey finds support for this view in Donnelly (1989 Davies P Freedland M 1993 Labour Legislation and Public Policy Oxford: Clarendon Press [Google Scholar]: 109). On the universalism of Marxism and its characterisation of fundamental rights as irredeemably ‘bourgeois’ see Barry (2001 Barry B 2001 Culture and Equality: An Egalitarian Critique of Multiculturalism Cambridge: Polity Press [Google Scholar]:4, 13–14) and on the universalism of Roman Catholicism and its equivocal attitude towards human rights see Scruton (1996 Scruton R 1996 A Dictionary of Political Thought 2nd ed. London: Macmillan [Google Scholar]: 486). ‘Strong protection’ of human rights of the sort mentioned in the text can take a variety of forms. A particular right may, for example, be identified as absolute: e.g., the right to freedom from inhuman or degrading treatment or punishment enunciated in the European Convention on Human Rights, Article 3. The protection given to a right is also strong in circumstances where only a narrowly specified range of grounds can be invoked to override or limit it. This latter form of protection can, again, be exemplified by reference to the European Convention on Human Rights. Article 10(1) establishes a right to freedom of expression. But article 10(2) specifies that this right can be restricted or overridden where, inter alia, a limited range of public interest grounds would be served and where a test of proportionality could be satisfied. Thus Article 10 treats the right to freedom of expression as qualified or, to put the same point another way, as an ultimately defeasible exclusionary reason for action. The statement noted in the text can be interpreted in at least three ways: first, as setting out, as an empirical matter, the view that transcendent or transcultural standards cannot be found; second, as setting out the epistemological claim that we lack the means by which to identify transcendent or transcultural standards; third, as advancing the ontological claim that transcendent or transcultural standards are not part of the fabric of the universe. Compare Fish (1989 Fish SE 1989 Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies Oxford: Oxford University Press [Crossref] , [Google Scholar]: ch 1), arguing that participants in practices are in the grip of normative commitments that they cannot (at least for as long as they remain committed to the practice) transcend. The relevance of Fish’s view to disagreement between universalists and cultural relativists (as described in mainstream legal discourse) is easily explained. Fish would lend support to the view that those in each camp are participants in practices (defending a culture or seeking to secure interests common to humankind) that they cannot (or (perhaps) refuse to) transcend. In this essay, the question whether it is possible to assume a perspective that is, in some ontological sense, universal is bracketed. Hence the use of phrases such as ‘perspectives that (at least) aspire to be universal’. Likewise, the question whether it is possible to articulate universally applicable norms is bracketed. This explains the use of phrases such as ‘norms that are assumed to have universal applicability’. See, for example, Gardbaum (1992 Gardbaum, SA. 1992. ‘Law, politics, and the claims of community’. Michigan Law Review, 90: 685–760. [Crossref], [Web of Science ®] , [Google Scholar]: 689), where it is argued that liberalism is compatible with, inter alia, the communitarian claim that communities are, and should be regarded as being, significant sources of practically significant, action‐guiding, and positive value. See also Caney (1992 Caney, S. 1992. ‘Liberalism and communitarianism: a misconceived debate’. Political Studies, 40: 273–89. [Crossref], [Web of Science ®] , [Google Scholar]: 289). A ‘composite’ position of the sort referred to in the text embraces both a local perspective and one that at least aspires to be (or is assumed to be) universal. This being so, those who adopt such a perspective cannot be classified as proponents of unrelieved universalism or cultural particularism (as described by, for example, Steiner & Alston). Hegel is only one of many political philosophers by reference to whom the top‐down approach to human rights law could be explained and supported. Another such political philosopher is Immanuel Kant. See Kant (1991 Kant I 1991 Political Writings H. Reiss, ed. and H.B Nisbet, trans. 2nd ed.Cambridge: Cambridge University Press [Google Scholar]: 41–53, 73ff). See also Habermas (1998 Habermas J 1998 The Inclusion of the Other: Studies in Political Theory C. Cronin and P. De Grieff, eds. Cambridge: Polity Press [Google Scholar]: 180) on Kant’s ‘founding of law in general [e.g., on the municipal plane] on human rights’. See also Habermas (1998 Habermas J 1998 The Inclusion of the Other: Studies in Political Theory C. Cronin and P. De Grieff, eds. Cambridge: Polity Press [Google Scholar]: 192). The choice of Hegel for the purposes of exposition in this essay is prompted by his recognition of actually‐existing forms of life as highly salient to practical deliberation on the question as to how fundamental human interests should be secured. ‘Abstract right … is right abstracted from any historical circumstances that might clothe it’ (Hampsher‐Monk 1992 Hampsher‐Monk I 1992 A History of Modern Political Philosophy: Major Political Thinkers from Hobbes to Marx Oxford: Blackwell [Google Scholar]: 428). The ideal of abstract right also does work of the sort described in the text in Kant’s political philosophy (see Kant 1991 Kant I 1991 Political Writings H. Reiss, ed. and H.B Nisbet, trans. 2nd ed.Cambridge: Cambridge University Press [Google Scholar]: 132 ff). Support for the claim made in the text can be found in human rights law (and associated discourse) on the public international, regional, and domestic legal planes. See (on the plane of public international law) the United Nations Charter (1946) and the Universal Declaration of Human Rights (1948), article 28, (on the plane of regional law) the European Convention on Human Rights, and (on the plane of domestic law), the Human Rights Act 1998. See also Habermas (1998 Habermas J 1998 The Inclusion of the Other: Studies in Political Theory C. Cronin and P. De Grieff, eds. Cambridge: Polity Press [Google Scholar]: 189–93) and Pogge (2002 Pogge T 2002 World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms Cambridge: Polity Press [Google Scholar]: 46). Support for this reading of Hegel in the text can be found in Douzinas (2000 Douzinas C 2000 The End of Human Rights: Critical Legal Thought at the Turn of the Century Oxford: Hart Publishing [Crossref] , [Google Scholar]: ch.10); see also Rawls (2000 2000 Lectures on the History of Moral Philosophy B. Herman, ed. London: Harvard University Press [Google Scholar]: 330, 348, 352, 364) on ‘the liberalism of freedom’ (as articulated by, inter alios, Kant, Hegel and Mill) and human rights. See English Administrative Court (2001 English Administrative Court 2001 R (Farrakhan) v. Home Secretary EWHC 781 [Google Scholar]) for a (comparatively) broad conception of tolerance and English Court of Appeal (2002 English Court of Appeal 1996 Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants 4 All. ER 385 [Google Scholar]) for a (comparatively) narrow understanding of the same concept. Support for the view expressed in the text can be found in the jurisprudence of the ECtHR See, for example, ECtHR (1976 ECtHR 1976 Handyside v. United Kingdom Series A no.24 [Google Scholar]: sec.49), where pluralism, tolerance, and broadmindedness are identified as being protected and/or promoted by the right to freedom of expression. See also Douzinas (2000 Douzinas C 2000 The End of Human Rights: Critical Legal Thought at the Turn of the Century Oxford: Hart Publishing [Crossref] , [Google Scholar]: 19). Compare Berlin (1969 Berlin I 1969 Four Essays On Liberty Oxford: Oxford University Press [Google Scholar]: iv), arguing that, in circumstances where the problem of uncombinability arises (e.g., where two rights stand in a relationship of zero‐sum conflict), it is ‘rational to follow the course of conduct that least obstructs the general pattern of life’ in the relevant community. While the ECHR gives priority to the qualified rights it protects, ‘community’ and ‘social values’ are treated as important countervailing considerations; see Feldman (2002 Feinberg J 1985 The Moral Limits of the Criminal Law, Volume Two, Offense to Others Oxford: Oxford University Press [Google Scholar]: 110–12). Use of local norms in the way described bears obvious similarities to the modus operandi of Hegelian political philosophy. On the tension between the right and the good in Hegel’s political philosophy see Taylor (1991 Taylor C 1991 ‘Hegel’s ambiguous legacy for modern liberalism’ Cornell et al. 1991: ch.2 [Google Scholar]: 73). We might detect in the ‘vital forces’ accommodated by the ECtHR in Otto‐Preminger the stirrings of ultramontanism (the doctrine that state, law, and society should serve the ends of Roman Catholicism). Barry (2001 Barry B 2001 Culture and Equality: An Egalitarian Critique of Multiculturalism Cambridge: Polity Press [Google Scholar]: ch.4), for criticisms of the multiculturalist arguments advanced by, inter alios, W. Kymlicka, W. Galston, C. Kukathas and B. Parekh. On Barry’s universalist and egalitarian liberal view, the state cannot legitimately abridge the rights guaranteed by liberal principles in order to penalise beliefs or actions that a particular group regards with disapproval. On US law see Dworkin 1978 Draft Treaty 2003 Draft Treat Establishing a Constitution For Europe, Giscard d’Estaing, President of the European Convention Brussels: CONV 820/03 [Google Scholar]: 198–9, 274–5; on Canadian law see Grabham 2002 Grabham, E. 2002. ‘Laws v. Canada: new directions for equality under the Canadian Charter’. Oxford Journal of Legal Studies, 22: 641–61. [Crossref] , [Google Scholar]: 643; on German law see Richards 1999 Richards DA 1999 Free Speech and the Politics of Identity Oxford: Oxford University Press [Google Scholar]: 30–34. On the clear and present danger doctrine, see US Supreme Court 1968 US Supreme Court 1968 Brandenburg v. Ohio 395 US 444 p.447 [Google Scholar]: 447. Among the doctrines that give strong expression to free expression in the United States may be numbered those that require content and viewpoint neutrality. See Barendt (1985 Barendt E 1985 Freedom of Speech Oxford: Clarendon Press [Google Scholar]: 96–7) and authorities discussed therein. See the discussion of Mill’s political philosophy in Barry (2001 Barry B 2001 Culture and Equality: An Egalitarian Critique of Multiculturalism Cambridge: Polity Press [Google Scholar]: 118–19); see also Bloom (1988 Bloom A 1988 The Closing of the American Mind: How Higher Education has Failed Democracy and Impoverished the Souls of Today’s Students London: Penguin Books [Google Scholar]: 26) on openness as a ‘moral virtue’ in the United States; also Fish (1991: 129, 232). ‘Perfectionism’ involves the promotion of ways of life that are considered valuable and, hence, fall within the category of the good. Moreover, perfectionism may involve the penalisation of ways of life considered to be at odds with the pursuit of human perfection: see Kymlicka (2002 2002 Contemporary Political Philosophy: an Introduction 2nd ed. Oxford: Oxford University Press [Google Scholar]: 190–95). ‘Bottom‐up thinking’ (as used in this essay) refers, among other things, to a cast of practical thought that gives expression to (and positively values) local perspectives and local practices (and associated institutions). Only a subset of bottom‐up thought tends in the direction of human rights. Support for this claim can be found in the discussion of Carl Schmitt’s political philosophy in Habermas (1998 Habermas J 1998 The Inclusion of the Other: Studies in Political Theory C. Cronin and P. De Grieff, eds. Cambridge: Polity Press [Google Scholar]: 188) and in the discussion of Joseph De Maistre’s thinking in Berlin (2002 2002 Freedom and Its Betrayal: Six Enemies of Human Liberty H. Hardy, ed. London: Pimlico [Google Scholar]: 131–54). On the local significance of ideals, see Smith 2002 Smith NH 2002 Charles Taylor: Meaning, Morals and Modernity Cambridge: Polity Press [Google Scholar]: 3. Walzer 1994 Walzer M 1994 Thick and Thin: Moral Argument at Home and Abroad London: University of Notre Dame Press [Crossref] , [Google Scholar]: 10 (emphasis added), where minimalism is associated with ‘a set of standards to which all societies can be held’. See also Walzer 1980 Booth, C and du Plessis, M. 2003. ‘Common wealth’. Modern Law Review, 66: 837–51. [Crossref] , [Google Scholar]: 210–12, where genocide and enslavement are identified as unacceptable in all circumstances. In describing minimalism as (typically) an ‘invitation to further work’, Walzer recognises that it is afflicted by the problem of underdeterminacy, which (as we have already noted) also afflicts the ideal of abstract right and the general aim of human rights law. In placing emphasis on maximalism, Walzer sounds a (cultural) particularist note reminiscent of Herder (1969 Herder JG 1969 Herder on Social and Political Culture F.M. Barnard, ed. London: Cambridge University Press [Google Scholar]). See Ward 2003 Ward, I. 2003a. ‘The end of sovereignty and the new humanism’. Stanford Law Review, 55: 2091–112. [Web of Science ®] , [Google Scholar]a: 2100 (emphasis added), where the Charter of Rights is identified as ‘integration only go[ing] one way’ (i.e., from top to bottom). See also Ward 2003 2003b ‘A decade of Europe? Some reflections on an aspiration’ Journal of Law and Society 30 236 57 [Crossref], [Web of Science ®] , [Google Scholar]b: 246ff. The problem of denarration is anticipated in Nietzsche 1990 Nietzsche F 1990 Beyond Good And Evil: Prelude to a Philosophy of the Future R.J. Hollingdale, trans. London: Penguin Books [Google Scholar]: Part 8 (‘Peoples and Fatherlands’). As used in the text, denarration might be described as posing a threat of alienation. Individuals find their sense of Heimatgefühl (feeling for home) being described in terms that threaten (or appear to threaten) its integrity. On Heimatgefühl, see Herf 1984 Herf J 1984 Reactionary Modernism: Technology, Culture, and Politics in Weimar and the Third Reich Cambridge: Cambridge University Press [Google Scholar]: 191. Feelings of alienation (and an associated sense of denarration) may be particularly intense where the administration of a society or community proceeds in a language other than that of the indigenous people. See Mahatma Gandhi’s comments on the use of English in the Raj in Bragg 2003 Bragg M 2003 The Adventure of English 500 AD to 2000: The Biography of a Language London: Hodder & Stoughton [Google Scholar]: 262–3. See Barry 2001 Barry B 2001 Culture and Equality: An Egalitarian Critique of Multiculturalism Cambridge: Polity Press [Google Scholar]: 120–21 (discussing Young 1990 Young I 1990 Justice and the Politics of Difference Princeton, NJ: Princeton University Press) [Google Scholar]: 158); also MacCormick 1999 1999 Questioning Sovereignty Oxford: Oxford University Press [Crossref] , [Google Scholar]: 74. Support for the claim made in the text can be found in Holmes 1897 Holmes, OW. 1897. ‘The path of the law’. Harvard Law Review, 10: 457–78. [Crossref] , [Google Scholar]: 459, where ‘the law’ is described as ‘the witness and external deposit of our moral life’. See also p.472, where Holmes identifies practical principles that are rooted in ‘tradition’, and p.478, where he describes ‘abstract’ ideas (that aspire to universal status) as ‘a practical force’ that often controls human conduct. These two statements place Holmes in a position that resists categorisation as either bottom‐up or top‐down in orientation. Compare Eagleton (2000 Eagleton T 2000 The Idea of Culture Oxford: Blackwell [Google Scholar]) where an (overstated) contrast is drawn between ‘an empty universalism and a blind particularism’. See Bhagwati 2003 Bhagwati J 2003 ‘Borders beyond control’ Foreign Affairs 98 [Google Scholar]; on distributive justice at the global level, see Rawls 1999 1999 The Law of Peoples London: Harvard University Press [Google Scholar]: 113–20, discussing the writing of, inter alios, Charles Beitz and Thomas Pogge. As an ensemble, the goods described in the text have positive value since they make personal autonomy (for a large number of people) a live possibility. On personal autonomy, see Raz 1986 Raz J 1986 The Morality of Freedom Oxford: Clarendon Press [Google Scholar]: 154, where the autonomous person is described as being able to ‘shape [her] life and determine its course’. To this end, she needs an adequate range of valuable options (including economic opportunities) (see ibid.: 155), independence (freedom from the arbitrary will of others, as secured by, inter alia, the rule of law, democratic institutions, and rights‐based protections) (see ibid.), and adequate capacity (as fostered by, inter alia, formal education) (see ibid.). Access to health care also conduces to the enjoyment of an autonomous life and, hence, might be classified as a ‘social primary good’ as described in Rawls 1971 Rawls J 1971 A Theory of Justice Oxford: Oxford University Press [Crossref] , [Google Scholar]: 62. On the public provision of education, see Stevens 2004 Stevens R 2004 University to Uni: the Politics of Higher Education in England since 1944 London: Politico’s [Google Scholar]: 10 (discussing, inter alia, the Education Act 1870, by operation of which the state assumed responsibility for elementary education). See also Barbalet 1988 Barbalet JM 1988 Citizenship: Rights, Struggle and Class Inequality Milton Keynes: Open University Press [Google Scholar]: 62 (discussing, inter alia, the Old Age Pensions Act 1908). And see Marr 1995 Marr A 1995 Ruling Britannia: the Failure and Future of British Democracy London: Penguin Books [Google Scholar]: 86–7 (on the National Health Service). Co‐operative activity of the sort referred to in the text has been co‐ordinated in a political community that has (and continues to be) fraught with tension on grounds of, inter alia, ideology and class. See Cannadine 2000 Caney, S. 1992. ‘Liberalism and communitarianism: a misconceived debate’. Political Studies, 40: 273–89. [Crossref], [Web of Science ®] , [Google Scholar]. See Davies & Freedland 1993 Davies P Freedland M 1993 Labour Legislation and Public Policy Oxford: Clarendon Press [Google Scholar]: ch.10; also Mullender 1998 Mullender, R. 1998. ‘Parliamentary sovereignty, the constitution, and the judiciary’. Northern Ireland Legal Quarterly, 49: 138–66. [Google Scholar]: 148. (The co‐operative activities mentioned in the text have been something of a mixed blessing when viewed from the standpoint of distributive justice. For they have worked to produce valuable economic opportunities. But they have been attended by reductions in, inter alia, welfare provision that have undercut pursuit of distributive justice.) To extract a commitment to distributive justice out of a lengthy historical process such as the one under discussion is something of an exercise in rational reconstruction. This is because it involves explanation of a range of institutions and practices by reference to a posited organising norm. On rational reconstruction, see MacCormick 1990 MacCormick, DN. 1990. ‘Reconstruction after deconstruction: a response to CLS’. Oxford Journal of Legal Studies, 10: 539[Crossref] , [Google Scholar]: 556. On reciprocity and its relationship to distributive justice, see Goodin 1992 Goodin RE 1992 Motivating Political Morality Oxford: Blackwell [Google Scholar]: ch.2, 63; also Rawls 1971 Rawls J 1971 A Theory of Justice Oxford: Oxford University Press [Crossref] , [Google Scholar]: 499. See Hurley 1989 Hurley SL 1989 Natural Reasons: Personality and Polity Oxford: Oxford University Press [Google Scholar]: 218, canvassing the possibility that the pursuit of reflective equilibrium may work to ‘enlarge and develop’ the ‘imaginative, sympathetic, and theoretical capacities’ of those who engage in it. Hegel could be invoked in support of such an argument. See Hegel 1991 1991 The Philosophy of Right A.W. Wood, ed. and H.B. Nisbet, trans. Cambridge: Cambridge University Press [Google Scholar], where ‘reason’ is described as ‘the rose in the cross of the present’. By this Hegel means that presently‐existing practical arrangements imperfectly instantiate institutions that meet the requirements of abstract right (see Hegel 1991 1991 The Philosophy of Right A.W. Wood, ed. and H.B. Nisbet, trans. Cambridge: Cambridge University Press [Google Scholar]: 20). Even in circumstances where the transparency‐related claim made in this text cannot be supported, a positive response may be more likely to be secured at the local level. Some support for this view can be found in, for example, Hume (1975 Hume D 1975 Enquiries Concerning Human Understanding and Concerning the Principles of Human Morals L.A. Selby‐Bigge, ed. Oxford: Clarendon Press [Crossref] , [Google Scholar]: 176–88), arguing that ‘we are … naturally partial’ to those who populate our immediate environment. See also Smith (1984 Turpin C 1995 British Government and Constitution: Text, Cases and Materials 3rd ed. London: Weidenfeld and Nicolson [Google Scholar]: 166) and Besson (2003 Besson, S. 2003. ‘Human rights, institutional duties and cosmopolitan responsibilities’. Oxford Journal of Legal Studies, 23: 507–23. [Crossref] , [Google Scholar]: 515–16). On use of (the rhetoric of) human rights for the purposes of grandstanding see Kundera (1984 Kundera M 1984 The Unbearable Lightness of Being New York: Harper & Row [Google Scholar]: 246–53), where the (post‐Second World War) human rights movement is associated with an egalitarian ‘Grand March’ that is expected to issue in the end‐state of a ‘smiling brotherhood’. See also the discussion of Kundera in Walzer (1994 Walzer M 1994 Thick and Thin: Moral Argument at Home and Abroad London: University of Notre Dame Press [Crossref] , [Google Scholar]: 9). And see Kennedy (2001 Kennedy, D. 2001. ‘The international human rights movement: part of the problem?’. European Human Rights Law Review, 6: 245–67. [Google Scholar]: 262, 264). On complacency (in the British context) of the sort described in the text, see Simpson (2001 Simpson AWB 2001 Human Rights and the End of Empire: Britain at the Genesis of the European Convention Oxford: Oxford University Press [Google Scholar]: ch.1, and esp. p.45ff). See Booth & du Plessis 2003 Booth, C and du Plessis, M. 2003. ‘Common wealth’. Modern Law Review, 66: 837–51. [Crossref] , [Google Scholar]: 838–40 discussing human rights‐related adjudication and argumentation in, inter alia, Australia, Canada, India, New Zealand, the United Kingdom and Zimbabwe. For a defence of the view that hate speech is broad enough to embrace this type of expressive activity see Matsuda (1989 Matsuda, M. 1989. ‘Public response to racist speech: considering the victim’s story’. Michigan Law Review, 87: 2320–81. [Crossref], [Web of Science ®] , [Google Scholar]: 2331–48). See Douzinas (2000 Douzinas C 2000 The End of Human Rights: Critical Legal Thought at the Turn of the Century Oxford: Hart Publishing [Crossref] , [Google Scholar]: ch.13) on human rights and receptivity to the other. See also Ignatieff (2001 Ignatieff, M. 2001. ‘Challenges for the future’. Canadian Bar Review, 80: 209 [Google Scholar]: 211ff) arguing that greater sensitivity to the interests of historically disadvantaged minorities (in Canada) and vulnerable groups across the globe has been encouraged by the Canadian Charter of Rights and Freedoms 1982 and associated litigation and discourse, and Sacks (2003 Sacks J 2003 The Dignity of Difference: How to Avoid the Clash of Civilisations 2nd ed. London: Continuum [Google Scholar]: 45) and material cited therein. Compare Fish (1994 1994 There’s No Such Thing as Free Speech and It’s A Good Thing Too New York: Oxford University Press [Google Scholar]: 251): ‘openness’ is not a capacity that individuals can ‘determinedly and self‐consciously cultivate’. On the human rights movement (before, during, and after the Second World War), see Simpson 2004 Simpson, AWB. 2004. ‘Hersch Lauterpacht and the genesis of the age of human rights’. Law Quarterly Review, 120: 49–80. [Google Scholar]. Some support for making the assumption described in the text can be found in Nagel. See Nagel (1991 1991 Equality and Partiality Oxford: Oxford University Press [Google Scholar]: 14), where he states that the personal standpoint ‘often … involves strong personal allegiance to particular communities of interest or … emotional identification, larger than those defined by family or friendship, but still far less than universal’. See Nagel (1991 1991 Equality and Partiality Oxford: Oxford University Press [Google Scholar]: 54), canvassing the possibility of ‘balancing’ the claims of the impersonal and personal standpoints. Nagel’s reason for doing so is that ‘the demands of impartiality’ (issuing from the impersonal standpoint) may ‘require an inordinate takeover of the individual’s [or, we might add, the particular community’s form of] life’. Compare the (broadly) similar interpretative questions addressed by those who offer deconstructive analyses of legal institutions. Where, in the law, can we locate (pairs of) values that stand (relative to one another) in relations of binary opposition? What moral significance is and/or should be attached to the relevant values? On these questions, see Balkin (1994 Balkin, JM. 1994. ‘Being just with deconstruction’. Social & Legal Studies, 3: 393–403. [Crossref] , [Google Scholar]: 394‐396, 402). Comparing the interpretative difficulties that attend use of the reflective equilibrium‐based approach with those encountered by deconstructionists may, at first blush, seem questionable. For deconstruction places emphasis on pairs of values (and other normative impulses) that stand in relations of binary opposition. This emphasis on opposition might be seen as providing a basis on which to distinguish deconstruction sharply from the ‘composite’ approach to human rights under discussion. Such a view is, however, too crude. For deconstruction identifies the binary oppositions it scrutinises as standing in complex relations of mutual differentiation and dependence. See Balkin (1994 Balkin, JM. 1994. ‘Being just with deconstruction’. Social & Legal Studies, 3: 393–403. [Crossref] , [Google Scholar]: 401). A contrast of the sort described in the text is drawn in Wright 2001 Wright J 2001 Tort Law and Human Rights Oxford: Hart Publishing [Google Scholar]: 1‐14, where the European Convention on Human Rights (a regional human rights instrument) is compared favourably with English tort law. See Walzer 1980 Walzer, M. 1980. ‘The moral standing of states: a response to four critics’. Philosophy & Public Affairs, 9: 209–25. [Web of Science ®] , [Google Scholar]: 210–12, where genocide and enslavement are identified as grounds that rebut the presumption that practical arrangments at the level of the nation‐state are defensible. As described in the text, pursuit of the good has the sort of (all‐encompassing) phenomenological ‘feel’ captured in the account of commitment to Roman Catholicism described in Waugh (1951 Waugh E 1951 Brideshead Revisited: the Sacred and Profane Memories of Captain Charles Ryder London: Penguin Books [Google Scholar]: 107–108). Compare Rawls (1993 1993 Political Liberalism New York: Columbia University Press [Google Scholar]: 13), where a distinction is drawn between ‘fully comprehensive’ and ‘partially comprehensive’ (moral) conceptions of justice. ‘A conception is fully comprehensive if it covers all recognised values and virtues within one rather precisely articulated system’. By contrast, ‘a conception is only partially comprehensive when it comprises a number of, but by no means all, non‐political values and virtues and is rather loosely articulated’ (ibid.). The ends comprehended by the non‐comprehensive good must be ones that cohere with pursuit of the right. This requirement would, for example, rule out a non‐comprehensive conception of the good such as that which (on some accounts) found expression in the slave‐holdng (antebellum) southern US states. In these states, a distinct ‘Southern identity’ was said to find expression in, inter alia, paternalist concern for African‐American slaves. Thus, whites were expected not to take advantage of African Americans. But, at the same time, they were expected (contrary to the requirements of justice) not to elevate them to the status of equals. See Naipaul (1988 Naipaul VS 1988 A Turn in the South London: Picador [Google Scholar]: 99, 105). On the moralities of duty and aspiration, see Fuller 1969 Fuller L 1969 The Morality of Law Rev. ed. New Haven, CT: Yale University Press [Google Scholar]: 5 ff. The morality of duty enjoins us to meet ‘the most obvious demands of social living’ (Fuller 1969 Fuller L 1969 The Morality of Law Rev. ed. New Haven, CT: Yale University Press [Google Scholar]: 9). The morality of aspiration, by contrast, ‘extends upward to the highest reaches of human aspiration’ (Fuller 1969 Fuller L 1969 The Morality of Law Rev. ed. New Haven, CT: Yale University Press [Google Scholar]: 10). See also Rawls 1993 1993 Political Liberalism New York: Columbia University Press [Google Scholar]: 13, where the mention made of ‘virtues’ lends some support to the view that pursuit of ‘the right’ is, in some circumstances, connected (quite intimately) with pursuit of some (more or less tightly circumscribed) conception of the good. ‘Social capital’ may be defined as a stock of (co‐operative/co‐ordination producing) values shared by the members of a particular society or community. See Coleman (1988: 375ff). The non‐comprehensive good may generate social capital by providing a common (and positively valued) reference point and object of concerted action in the relevant society. And this reference point may work to encourage the sense, among citizens, that they share a common home. On the sense of being at home (bei sich) in a society, see the discussion of Hegelian political philosophy in Rawls (2000: 336).