The myth of flexible universality: Human rights and the limits of comparative naturalism

Abstract

Many writers reject the notion of universal human rights, insisting on their historically recent, Western-secular character. Other theorists emphasise mutual exchange between human rights and systems such as Confucianism, Buddhism and Islam. They celebrate a common ground that would appear, moreover, to enhance the case for universality. This article acknowledges that common ground but rejects the view that it can strengthen the case for universality. Any such ‘exchange’, far from being mutual, turns out to be dictated entirely by human rights. Familiar rhetoric about the supposed flexibility of human rights law, which would suggest genuinely interactive relationships between it and other belief systems, flatly contradicts its higher-law claims. Genuinely flexible human rights could only ever arise either (i) in the trivial sense that any broadly formulated legal rule ends up applied to a range of situations or (ii) in the untenable sense that human rights law would accommodate serious violations.