1.2 CURRENT APPROACHES: INSIGHTS AND LIMITATIONS

The second problem I have with MacIntyre’s account is that his theo­retical understanding of traditions is too static. As I will elaborate below, even when his historical studies reveal important dynamism, his theo­retical account has no real role for the dynamic, mutually influencing nature of traditions, and yet it is in such dynamism, I believe, that the real opportunities for community formation and consensus-building lie. MacIntyre’s stress on internal criticism - on seeing the strengths and weaknesses of other traditions from the inside - is important, but we are never comparing two unchanging entities.

The other theorist whose views I want to mention here is Richard Rorty. To say that Rorty is a pluralist is not to say that he believes in no one set of values. Rorty is deeply committed to liberal values, but he sees these values as his through the contingencies of history rather than through the necessities of Reason. Rorty writes that

moral philosophy takes the form of an answer to the question “Who are ‘we’, how did we come to be what we are, and what might we become?” rather than an answer to the question “What rules should dictate my actions?” In other words, moral philosophy takes the form of historical narration and utopian speculation rather than a search for general principles. [1989, p. 60]

As will become apparent below, I am sympathetic to Rorty’s emphasis on seeing moralities as historically grounded, contingent sets of values.

A second problem with Rorty’s account is his implication that “we” are unanimous in our commitments and univocal in our meanings. I have already suggested that the moral discourses of communities typically are much more complex, and so we need a subtler account of the relation between communities and morality. To sum up, then, this look at Mac­Intyre and Rorty has suggested that a satisfactory account will have to allow for a continuum of conceptual differences, for dynamic and inter­active moral traditions, for values and standards that push us toward a wider consensus, and for an understanding of “us” that acknowledges internal differences.

1.2.2 Universalism

Many who have written on human rights believe that human rights are universal. Here I want to canvass three reasons that have been given for this tenet.

Natural Rights. The idea of natural rights has a long history in Euro­pean thought, and it also played an important role in early American political thinking. In early contexts, natural rights were widely accepted to be the result of God’s will. Today, few would accept that grounding for natural rights, however, and alternative attempts to say what rights humans have because of their “natures” are fraught with difficulties. Human nature is now understood to be quite plastic, our needs and values heavily influenced by the cultures within which we mature.^[13] Without the premises that belief in a particular understanding of God made available, contemporary accounts of natural rights can seem forced or arbitrary.

This is not to say that justifying human rights as natural rights has no attraction. If the problematic link between nature and culture is either refuted or ignored, natural rights can seem firmer than any competing foundation for human rights. They are equally applicable to all humans, regardless of nationality. Natural rights can thus appear to be the best basis for criticism of the human rights practices of other groups - after all, we all are human, and if human rights accrue to us simply by virtue of our human nature, then surely they are universal.

International Law. A second justification for the universal application of human rights standards is the international legal consensus that has developed since World War II, as represented in United Nations docu­ments like the Universal Declaration of Human Rights (UDHR), which was passed by the United Nations General Assembly in 1948. In addi­tion to the UDHR and its attendant covenants, the international human rights regime is made up of numerous regional and bilateral treaties and declarations, as well as a variety of international legal institutions and their respective bodies of case law.^[15]

Despite the real successes these documents represent, there are several reasons for thinking that international proclamations like these are not ideal bases for human rights discourse - or at the very least, that they cannot stand alone. We would be mistaken to think that because these documents have been signed by so many countries, there now exists a genuine legal or moral consensus in the world. The UDHR itself is not a legally binding document. The covenants and similar treaties are legally binding, but they have no more institutionalization, particularity, or enforceability than other aspects of international law.

To say that the UDHR, the covenants, and so on are not ideal is cer­tainly not to deny that they are tremendous accomplishments. Nor do I want to deny that they can and should have important roles in the future of international human rights discourse. They offer excellent starting points for discussion, especially in light of the fact that often-heard charges about their completely Western origin are exaggerations.^[16] Working from these documents can help us to build a more genuine moral consensus on human rights issues.

A Changing World. Modernity has brought with it many things, among them the techniques and ideologies of control that have made the modern state possible, as well as the changes wrought upon traditional social structures by the international market economy. These same tech­nological and economic changes have brought people around the globe closer together: We can both see one another more easily (thanks to television, movies, and the Internet) and influence one another more often (thanks to global markets, multinational corporations, and the ease of travel).

Some scholars have seen these changes as grounding universal human rights.

Mary Midgely has seized on another aspect of modernity - the way in which it has brought people closer together - to urge that we embrace our new neighbors with a broadened moral vision. She says that “the sheer increase in the number of humans,... the wide diffusion of infor­mation about them, and... the dramatic increase in our own techno­logical power” have made possible an “immense enlargement of our moral scene” [Midgely 1999, p. 161]. Midgely believes that the wide­spread acceptance of human rights by peoples around the world, despite uncertainties that academics have about their meaning and scope, follows from enlargement of the moral scene: People have found talk of human rights useful for dealing with modern moral questions. She acknowledges that there remain some conceptual puzzles about rights and human rights, but encourages academics to take their lead from the public and deal constructively with these problems in ways that will not undermine our continuing abilities to speak and judge in terms of human rights [ibid., p. 173].

I think that Donnelly and Midgely are correct to insist that our moral­ity fit with our times. We cannot ignore political and economic realities; nor should we close our eyes to those we can now see and influence.^[17] The limitation of Donnelly’s approach is his insistence that the current human rights regime is the only possible, or at any rate the only practi­cal, solution to the challenges posed by the modern state. He provides little argument for the negative side of this claim - that is, that no other system of values (and institutions) could do the job. The most he does is to express skepticism about the “political naivete” of those who promote such alternatives, or else about their motives [Donnelly 1997]. It is possible that a broad, cross-cultural consensus might reach Donnelly’s conclusion, but I believe it is premature to assume that this is the only possible solution.

Midgely’s point is easier to accept without qualification. The world is increasingly small, and the pressures on us (whoever “we” are) to include others within our moral compass are both real and compelling. These pressures certainly are not the only ones that globalization has brought upon us; global capitalism has at best an ambiguous relation to human rights [Santoro 2000]. Still, human rights have played important roles in the efforts of different peoples to deal with their broader moral scenes. Academics like myself cannot work in isolation from these facts. Midgely does not go as far as Donnelly and claim that the current United Nations-based understanding of human rights is the only acceptable one, but in appealing to academics to deal “constructively” with the problems they uncover, she is nonetheless asking that we keep in mind the practi­cal effects of our work. There is always a danger that a defense of moral pluralism - even of the modest kind that I develop in Chapters 2 and 3 - can be turned into a legitimization of authoritarian politics. I am alive to that danger; in fact, I believe that my approach has the potential to strengthen, rather than weaken, the position of human rights activists in China and elsewhere.

1.2.3 Thick and Thin

The modern world has not just brought us closer together; it has also made us more aware of our differences. Although modern political and economic forces have the tendency to strip people of their distinctive identities, this process has been strenuously resisted at both theore­tical and practical levels. Liberal politics has for the most part been a willing partner in this resistance to uniformity, since tolerance is one of its central values.^[18] Toleration of differences, however, might seem to sit uncomfortably alongside an insistence on universal human rights. Several theorists have sought to avoid this tension by positing that uni­versal and particular values can exist simultaneously on different levels. As Michael Walzer has put it, we can share “thin” values - like human rights - very widely, while confining our “thick” values to smaller communities.^[19]

Walzer writes that thin morality is based on a rough overlap or “reit­eration” of values like “truth” and “justice.” This overlap is enough to get certain kinds of criticism and certain amounts of solidarity off the ground, but these have distinct limits; real criticism, he argues, is inter­nal to thick, grounded-in-cultural-meanings moralities. This is not to say that a minimal, roughly overlapping morality is a bad or unreal thing: It explains the fellowship we feel with demonstrators in Beijing or in Prague. But if we listen to what they say for very long, we begin to dis­cover the distances between us and them. Using the demonstrations from 1989 as an example, Walzer notes that “when we criticize Czech com­munism in ways that suggest an alternative, we move quickly beyond the minimum, knowing that some of what we say will echo positively in Prague (or in this or that part of Prague) and some, perhaps, won’t” [1994, p. 10].

We see here Walzer’s recognition of the potential for internal com­plexity or contestation within the community of Prague protestors: some may have built their commitments to “justice” on grounds that resonate well with our more specific critiques, while others may not have. I will have much more to say in later chapters about the importance of this sort of inner complexity. For the time being, let us also note that Walzer does not aim at identification of a single, unchanging code of thin values. He says that thin values are embedded within thick moralities. Thin values are

liberated... and appear independently, in varying degrees of thin­ness, only in the course of a... social crisis or a political confronta­tion - as, in the Czech case, with communist tyranny. Because (most of) the rest of us have some sense of what tyranny is and why it is wrong, the words used by the demonstrators shed whatever partic­ular meanings they may have in the Czech language; they become widely, perhaps universally accessible. [1994, p. 3]

To make this even more concrete, he says that “what they meant by the ‘Justice’ inscribed on their signs... was simple enough: an end to arbi­trary arrests, equal and impartial law enforcement, the abolition of the privileges and prerogatives of the party elite - common, garden variety justice” [1994, p. 2].

Walzer clearly is not advocating a one-size-fits-all theory of thin, uni­versal values. Different words and concepts, in different situations, can be understood more or less thinly and can appeal more or less widely. His goal is to explain phenomena like our feeling of solidarity with protestors like those in Prague, while insisting that full-fledged criticism must take place from within. A common variation on Walzer’s approach is to seek to identify a fixed set of thin values by uncovering all those values actually shared by everyone.^[20] This least-common-denominator approach, though, is inadequate for at least two reasons, the second of which is a problem for Walzer as well. First, if we require universal agree­ment, we are likely to be confined to very vague or general notions - things like “unjustified killing is wrong.” But what exactly would justify killing? Considerable diversity surely lurks behind the facade of univer­sality. A least-common-denominator consensus risks superficiality, which of course Walzer explicitly recognizes.

The second problem is that if the values are indeed shared by every­one, the values can have only a limited critical function: They can allow criticism of practices, but not of values themselves. Whenever there is a gap between values and actual practice, there will be room for this kind of criticism. Activists seeking to ensure that their values will be institu­tionalized or enforced in their societies might draw encouragement from the successes of other groups in institutionalizing such values - as positive models to follow or as proof that such institutionalization is pos­sible. If we want more than this - if we want to be able to tell others that they ought to be committed to human rights, even when they are not - then we will need something more than a least-common-denominator approach. In fact, no version of a least-common-denominator theory, Walzer’s included, lets us criticize something that we couldn’t have crit­icized even without recognizing the theory’s (superficial) universalities. This is because the kind of criticism considered in this paragraph seems available even when values are not shared. Can’t I criticize you for failing to live up to your values, whether or not I share them? Exactly how to understand such a case is admittedly rather complicated, and I will take it up in detail in Chapter 3.

John Rawls has developed a framework for what he calls “the law of peoples” that takes a different approach to determining a set of thin values. Unlike the least-common-denominator idea, Rawls starts from home. He begins, that is, by asking to what set of thin values a liberal, democratic state should be committed as its norms for international law. He then demonstrates that a certain kind of “well-ordered” but non­liberal state would also be committed to this same set of values, which he dubs the “law of peoples.” Since his law of peoples includes the com­mitment to basic human rights, this leads him to conclude that “although any society must honor basic human rights, it need not be liberal” [1993, p. 43]. Rawls avoids the problems mentioned earlier for least-common- denominator understandings of thin values:The law of peoples is not uni­versally adhered to already, so it has a wide critical function, and since it is derived from a fairly clear set of values, it should be adequately detailed.

That is not to say that I find Rawls’s account ultimately successful. The central failing of his attempt to extend the law of peoples beyond liberal regimes lies in his notion of a “well-ordered” non-liberal society, which he also calls a “hierarchical society” [1993, p. 61]. It is here that the law of peoples derives its specific critical force: Although he is not prepared to say that non-liberal societies should be liberal, he is prepared to demand that they be well-ordered in their own way. The problem is that Rawls’s understanding of what it takes for a non-liberal society to be well-ordered is extremely specific. It would be more perspicuous to say that his requirement is for non-liberal societies to be “legally well- ordered,” since the crucial part of his definition of “well-ordered” - from which all of the important conclusions follow, including that such soci­eties will endorse basic human rights - is having a legal system that meets

certain criteria. He says that these criteria are necessary for the regime to have “legitimacy in the eyes of its own people” [1993, p. 61], but he makes no attempt to substantiate this by showing why other criteria of legitimacy are unacceptable. His conception of well-ordered, therefore, rules out any number of regimes in which order and legitimacy are estab­lished through means other than a modern legal system. Since it is far from clear that the rulers or people of China, in particular, take legitimacy to rest on the legal norms that Rawls describes, I believe that his particular version of the thick-thin distinction cannot help with our problem.

Let me summarize what I think we should learn from this discussion of thick and thin values. If we are ever to take ourselves to be justified in criticizing others’ values, as opposed to their mere failures to live up to their values, we need a substantive account of thin values. Least­common-denominator approaches cannot deliver such an account: It will have to start from our own thick values, in something like the way Rawls describes.^[21] The process of building out from thick to thin, though, can never be completed once and for all; moralities and cultures are too dynamic for that. Distinctions of thick and thin should thus be tools in our kit, rather than providing a stand-alone solution.

1.2.4 Dialogue and Transformation

Thin values can insulate us from one another - or at least insulate our fully specified selves, complete with rich conceptions of the good, from one another. By distinguishing between thick and thin, we seem to have solved the dilemma of international cooperation in a pluralistic world, suggesting that there need be no uncomfortable rubbing-up of one set of thick values against another. In many situations this kind of insulation is a good thing. Whereas one of the reasons we articulate thin values is to give us the means to criticize egregious moral violations on the part of others, another of their functions can be to keep us from getting too involved in others’ affairs. Still, such a static understanding of values is unsatisfactory. It is unrealistic, since values at both levels do change, often because of interaction with values at the other level or interaction with the thick values of another group. The static picture is also morally inferior, because dynamism can emerge from morally praiseworthy dia­logue between groups, or from constructive reflection on the relation between thick and thin within one’s own values. As Allan Gibbard has explained, many situations in which one deals with other groups on a thin basis are understood within one’s group as second-best solutions: better than conflict, but worse than consensus and agreement [Gibbard 1990, pp. 242-3]. This is not to deny that we sometimes celebrate differ­ences, in which case an ongoing disagreement may actually be preferred to consensus. Nor is it to deny that we can learn from others, which learn­ing may continue over an extended period of time: To say that we want to work for consensus is very different from saying that we want to assim­ilate the others.^[22] Still, one must always be ready to review the basis on which one is settling for a second-best; in many such circumstances it makes sense to work for a better solution. In Chapter 3,1 will build on Gibbard’s work in order to show how these stimuli to dialogue and dynamism operate.

Before moving on, it is important that I forestall a possible misunder­standing that could arise from my talk of “consensus.” I do not believe that consensus is an inevitable result of conversation, even under ideal circumstances. Neither do I believe that the possibility of consensus or agreement is presupposed when we strive to communicate with one another.^[23] We start from different positions, live different lives, and may never see things the same way. Despite this, we often arrive at what I will follow Gibbard in calling “norms of accommodation”: These are values to which we and you commit ourselves in order to interact with one another, despite their being more shallow, or more limited, than our respective full-fledged sets of values. Thin values are an excellent example. From within each of our perspectives, it would be better if all of us lived in accord with our richer, thicker values. This is the sense in which thin values are second-best, and the sense in which we will have reason to continue to work for consensus. I will have more to say about these matters in later chapters.

Some authors have specifically argued that dialogue, rather than crit­icism, should be the main mode of international human rights discourse. Bhikhu Parekh, for instance, has written: “If universal values are to enjoy widespread support and democratic validation and be free of ethnocen­tric biases, they should arise out of an open and uncoerced cross-cultural dialogue” [1999, p. 139]. Parekh says that this universality should “arise” out of the dialogue, rather than be discovered, because he imagines that a certain amount of transformation will take place in the process of rea­soning out a body of values that all parties agree is the most “ratio­nally defensible.” In particular, Parekh insists that he is not advocating “teasing out the lowest common denominator of different cultural tra­ditions”; instead, he imagines that through a process of collective rea­soning we will arrive at “human universals” that all cultures can be shown to presuppose [ibid., p. 142].

Parekh’s approach sounds very appealing, particularly the notion that the commitments of all parties to a conversation might be transformed through the process of dialogue. I will pursue this idea in subsequent chapters. As it stands, though, Parekh’s proposal is open to some serious objections. First, other philosophers have argued that not only can cul­tures’ moral values differ, but their standards of reasoning can differ as well.^[24] This undermines the idea that a process of reasoning can be arrived at that will allow a “rationally defensible” consensus to emerge. Second, it must be admitted that Parekh’s “open and uncoerced” dia­logue, involving “every culture with a point of view to express,” sounds a bit starry-eyed. It is perhaps revealing that while Parekh makes several proposals for human universals in the balance of his essay, he does so without the help of any cross-cultural dialogue whatsoever. Finally, Parekh seems to assume that each culture can be treated as a single unit, with a single set of values and presuppositions. To the contrary, I believe that recognition of the internal complexity of cultures and traditions must be central to a successful account of cross-cultural dialogue; these complexities can make dialogue more difficult, but they also can give us one of the keys to fruitful dialogue.

The potential rewards of recognizing internal complexity can be seen in another approach that emphasizes developing a transformative dialogue. David Hall and Roger Ames have argued that a specific strand of the Western tradition - American pragmatism - is the best point of departure for “our” side in discussing human rights with the Chinese [Hall & Ames 1999]. They believe that pragmatism both is superior to other strands of the Western tradition and comes closer than other ele­ments of Western thought to the strongest elements within the Chinese intellectual tradition. They are certainly engaged in criticism here - crit­icizing aspects of both Western and Chinese cultures - but they do so in the service of a dialogue which they hope will lead to stronger moral consensuses both within and between the East and the West.

Hall and Ames’s interpretation of the Confucianism is controversial, but I do not want to dwell on that here.^[25] More relevant is criticism they have received for ignoring the impact that power relationships have on human rights dialogue: According to one critic, their efforts to show that China does have a distinctive understanding of human rights amounts to “ignoring dictators,” since the claim that China has its own notion of rights has been used by the Chinese government to justify various forms of repression [Donnelly 1997]. While it is certainly true that power rela­tions must form a part of any complete understanding of cross-cultural dialogue or criticism, I reject the idea that scholarly work revealing and explaining moral pluralism must necessarily benefit the dictators. If, as I believe, there are kernels of truth in the assertions of the Chinese gov­ernment, then ignoring these truths while redoubling the volume of our claims about universal values is illegitimate and imperialistic - exactly as our Chinese critics claim. If, on the other hand, we can develop an account of moral pluralism both in general and as it applies to human rights in China, an account that nonetheless provides firm ground for critics of repression and for those who want to develop a stronger inter­national consensus, then the dictators will have lost an important weapon in their arsenal, and we will have lost nothing.

In sum, we might do well to look for ways that dialogue, rather than bald criticism, can lead to transformed values and perhaps to consensus. In so doing, though, we must be careful not to ignore power relations nor to forget that standards of reasoning, like moral values, may vary from culture to culture. Most important, we should try to make use of the many different voices that can enter into the multiple, overlapping, sometimes conflicting dialogues that together make up contemporary rights discourse. Activists and dissidents, politicians and bureaucrats, scholars and students, workers and CEOs: They all count. It is no simple matter to take all these voices into account, but a model of rights dis­course that gives voice only to one group is clearly inadequate.

1.2.5 History and Confucianisms

Many of the approaches I have examined so far are distinctly ahistori- cal: They see values, thick or thin, as grounded in current realities. Other scholars have sought to look at Chinese human rights discourse in his­torical perspective, or to compare human rights concepts with the ideas found in traditional Confucianism. I believe that there are important insights within each of these perspectives. If one rejects the idea that there is a single (thick) morality for all humans - based on either Reason or human nature - then it is natural to think that culture and history have a great deal to do with morality. As I discussed earlier in the context of Richard Rorty’s writings, moralities can be seen as the dynamic prod­ucts of traditions of moral discourse in particular social and physical con­texts. If it is true that moralities are dynamic, then even if we can identify a thick or thin universal morality today, its universality must be, in a certain sense, a coincidence. Its universality must be owed to the partic­ular set of circumstances in which peoples around the globe find them­selves, and to the ways in which their traditions of moral discourse have adapted to these circumstances.^[26] If this is all true, our hypothesized uni­versal consensus may be very fragile. We would do well to understand what has brought it about and how we might maintain it. To the extent that we have not yet achieved such a moral consensus, a historical con­sciousness might help us to see why this is so and might help us to see where and how such a consensus might be reached. In particular, a his­torical perspective may be needed to fully assess the first of Liu Huaqiu’s claims, namely that China has a different concept of human rights than those of other countries. It makes sense to look at the history of rights discourse in China to see whether this is true, and if so, why. Research­ing this history is also helpful for two other reasons. First, we will see that the Chinese rights tradition has rich resources that thinkers today can call upon: Over the last hundred and more years, rights have been discussed and conceptualized in a variety of ways, opening up a range of “Chinese” perspectives on rights. Second, reviewing the history of Chinese rights discourse helps us to appreciate the wisdom of seeing moral traditions as contingent and rooted in historical particularity.

The range and diversity of Chinese rights discourse have been little appreciated by contemporary scholars, nor by the wider public, both within China and without.^[27] Even those scholars who have paid atten­tion to this earlier rights discourse have tended to give it either brief or narrow treatment. Ann Kent, for instance, spends only seven pages of her Between Freedom and Subsistence on the years from 1860 to 1949 and writes so as to minimize the creative aspects of the discourse [Kent 1993, pp. 37-42]. The views of Liang Qichao (1873-1929) on rights and democracy inform an important part of Andrew Nathan’s Chinese Democracy, but Nathan pays little attention to Liang’s contemporaries and to later pre-communist thinkers [Nathan 1985]. In addition, the con­nections that have been drawn between rights discourse and native traditions have tended to be of a negative, restricting variety. Nathan believes that the two forces motivating intellectual change in early- twentieth-century China were (1) deep concern with the plight of China and (2) a sense that Western nations had better - more successful - political and moral values. Since the changes that followed from those motivations were limited by what Kent calls a “Chinese filter” [Kent 1993, p. 37], however, the Western ideas were transplanted imperfectly onto Chinese soil, and ideas like democracy and human rights did not put down deep roots.^[28]

I believe that such interpretations are of significant importance in understanding Chinese concepts of rights, but they also distort our view by leaving out an important side of the picture. It is crucial to add that the Chinese tradition has also played a positive, constructive role in motivating thinkers to develop rights (quanli) concepts. To see this, one needs to appreciate some of the important differences that existed within Confucianism as it developed into the tradition now called neo­Confucianism. Like all traditions, neo-Confucianism was internally diverse, with a number of adherents emphasizing the importance of

Current Approaches: Insights and Limitations fulfilling people’s desires, as I will show in Chapter 4. Some Chinese rights thinkers in both the nineteenth and early twentieth centuries quite consciously drew on, and were motivated by, this strand of the neo­Confucian tradition. Only when we give this link to tradition its due can we begin to understand the world the way Chinese thinkers did; only then can we see them as creative and critical, rather than merely passive, reactive, and constrained.^[29]

While little work has been done on the relationship between the neo­Confucian tradition and rights discourse,^[30] a number of scholars have argued that the values of classical Confucianism - that is, the earlier Con­fucian tradition dating from the fifth through third centuries b.c.e. - are compatible with, or even actively promote, human rights. One problem with much of this work is that it implies an equation of classical Confu­cianism with the whole of Chinese tradition and seems to assume that Chinese moral discourse is static. A recent essay, for example, argues that each and every provision of the UDHR is either positively endorsed by, or at least compatible with, classical Confucianism [Chen 1999]. So what if this is true? There are no classical Confucians alive today, nor have there been for centuries. If the question of whether Chinese culture is compatible with human rights is to be relevant, we need to look to more recent Chinese culture, in all its complexity. A second major problem with claims that a concern for rights can be found in classical Confu­cianism is that they interpret both Confucian texts and ideas of rights very loosely. Rights have a distinctive conceptual structure that sets them apart from other moral commitments, like duties or ideals. The human­istic ideals found in the populist chapters of the Analects certainly res­onate with some of the ideals expressed in the more general assertions of the UDHR, but this is very different from finding “rights” in the A nalects.^[31] There is one perspective, though, from which I see these kinds of comparisons as potentially important. To the extent that contemporary Chinese thinkers are attempting to construct a new

Chinese moral discourse on top of the ruins of communism, reacquain­tance with the Analects and other classical works, together with the rediscovery of rights discourse from earlier in this century, may be very healthy.^[32]