Universalism and Particularism in Human Rights: Trade-Off or Productive Tension?
26 Pages Posted: 14 Mar 2012
Date Written: March 13, 2012
This paper re-examines the perennial tension between universal and particular arguments about the sources, forms and frontiers of our ethical commitments in the global development of human rights laws and institutions. It argues that the global age of late modernity has witnessed an unprecedented growth in both universalistic and particularistic arguments in support of rights claims. On the one hand, the basic modernist emphasis on individual equality and the importance of individual and collective agency in world–making, in contrast with the pre-modern emphasis on collective conformity with a pre-given order, is rights-generative both in its indication of the importance of uniform or equivalent standards for all individuals and in its justification of the local affirmation of difference. On the other hand, especially under the intensified conditions of material interconnectedness and mutual cultural exposure associated with the contemporary wave of globalization, these ideas of ‘universal’ equality and ‘particular’ difference also stand in significant tension in the contemporary construction and sustenance of national and transnational human rights regimes. The paper examines and rejects various ways in which this tension might be resolved, whether by according a dominant role to universalism, or to particularism, or through a minimalist compromise. Instead, it advances a series of normative, cultural and structural arguments which, while they carry their own dangers of rights imperialism or fragmentation, also allow the prospect of a more ‘productive’ tension between universal and particular dimensions in rights protection.
Keywords: Law, legal theory, human rights, universalism, particularism, difference, globalization, margin of appreciation
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