Part or chapter of a book
A Cultural Reluctance to Rights
Searching for Contemporary Legal Thought
ASSIER ANDRIEU Louis - Ecole de Droit (Author)
DESAUTELS-STEIN Justin - University of Colorado Law School (Publishing director)
KENNEDY Duncan - Harvard Law School X (Publishing director)
TOMLINS Christopher - (Publishing director)
DESAUTELS-STEIN Justin - (Publishing director)
New York : Cambridge University Press
Legal thought, Cultural Reluctance, Rights
Human rights doctrine is criticized because of its Western origin. It is suspected of being a powerful instrument of domination over non-Western societies. The key concept in this struggle is the concept of culture. The ideology of rights pretends to be a culture; the counterattack on Western imperialism is in turn mainly structured by reference to culture. When a migrant commits an act that is recommended or mandatory in his or her culture of origin and prohibited in Western law, then a situation appears on which practical minds build the idea of the cultural excuse or defense. A paradoxical consequence of multiculturalism is to carve in marble cultural features that positive law would disregard simply as wrongdoings and that the original cultures would embed in the cosmological order, not in law. The term rights covers a variety of entitlements, prerogatives, and obligations asserted in legal domestic and international instruments giving voice to their universal character. Rights are a generic concept, meaning not a separate universal legal essence but the result of what Ulpian named suum cuique tribuere (Digesta: I, 1, 1), the process of distribution to men and women of what is theirs, the mere idea of justice. The global time is the time when, by its own growth, the progress of the rights ideal hits upon the resilience of alternative conceptions imputable to culture, including legal culture. In this chapter I wish to identify and stress the logics of the theoretical relationship between the concept of culture, its legal version as legal culture, and the difficulty with which it is reconciled with rights universality. In the puzzling interplay of law and culture, I emphasize the definitional issues of basic concepts that serve commonly as fuzzy notions to express no less fuzzy realities. I attempt to outline the complex abstract processes that lead the metaphorical use of culture for human affairs to become a central idea in contemporary perception of groups’ normative relativity and of rights universality. (author's abstract)