Importance of culture and law in human rights
Cultural practices and law in human rights projects are important because they lead to realizing human rights by dictating the “know how to go on” to the citizens. However cultural practices are faced with various weaknesses like subject to criticism, controversies and are contentious. On the other hand, the law is important because it acts out of authority rather than a moral norm. Law is also subject to coincidence, conformity, compliance, and obedience.
Cultural or practical approaches to social justice lead to an intersubjective realization of an understanding of human rights. Intersubjectivity, in this case, is a form of agreement among people on what is right. Human rights culture marks out a fairly well-established understanding that culture is crucial to fostering the realization of human rights in practice. In particular, the state leads a nation to realize these rights by defining terms within its territories of what is believed to be right. In an international setting, the state is also responsible for setting the right path for people’s behaviors and punishments (Nash, 2012). However, the state’s rights come up with must-win the minds and hearts of people to be accepted. The practices have to comprise many social or cultural practices that determine how citizens “know how to go on” daily (Nash, 2012). A good example of such a cultural practice is a language defined as a communication system by a particular communication or country.
The cultural practices play an important role in human rights through having a kernel of agreement. It states that every person must be respected and treated as an individual human being with entitlements, regardless of their gender, racial, ethnic, or religious background. The agreement has made it difficult for anyone to against it due to the dire consequences experienced. Human rights are cultural hence influence political decisions. Cultural practices do not just follow human rights; rather, they are indeed cultural. Practices of the state have no much difference from civil society because they are interrelated. The state cannot function with society so as a society. As Jeffrey Alexander describes it, culture ‘is not a thing but a dimension, not an object to be studied as a dependent variable but a thread that runs through, one that can be teased out of, every conceivable social form’ (Nash, 2012). Therefore, Cultural practices are important in creating a link between the state and the society; a term referred to as cultural politics. Cultural politics is believed to be responsible for protecting and upholding existing human rights.
Further, cultural practices support three important pillars of human rights; natural, equal, and universal. The pillars are put into practice through political involvement (Hunt, n.d.). Politics are responsible for incorporating natural, universal, and equal rights into society. Once the rights have been accepted by society, it’s when they gain value. Natural human rights are directed by moral, religious, and biological practices of people within a state. These rights are derived from a traditional belief that has existed since decades ago. They are led by empathy and autonomy- from an interior feeling that produces the deepest conviction. Leal traditions had to have these deeper emotions for human rights to be self-evident.
Autonomy in human rights encouraged equality. People who have human rights are perceived differently as being capable of exercising independent moral judgment. To exercise such judgment, individuals ought to be empathetic towards each other by perceiving each other alike. Through this, equality is instilled in society (Hunt, n.d.). Some cultural belief inequality states that all normal individuals can live together in the morality of self-governance. Such beliefs in our cultural setting promote the protection of human rights.
Despite its importance, cultural practices in human rights have been found to have some weaknesses, including; culture is not stable, coherent, and enduring, it brings torture, and it is contentious, subject to controversy, and criticism. Culture is by a greater chance of prone to change. Any change that happens in an institution, society, or state brings with it a culture change. If we rely so much on cultural practices to shape our human rights, they might experience inconsistency (Nash, 2012). Culture cannot also endure difficulty when there is a way out. It is, therefore, an unreliable means to fight human rights violations.
Cultural practices are prone to judicial torture. The courts have used cultural torture in making a suspect confess or another person related to the case to confess. They use a psychological approach meant to instill pain in the suspect, which is a means of torture for information (Hunt, n.d.). Cultural practices have supported torture, which is not a good thing to do to an individual despite their criminal nature.
Additionally, cultural practices are subject to controversies, criticism and are contentious. Criticism occurs by the claims that they are traditional means that have to be eradicated. The claims are specially to eradicate some traditional practices, especially of torture to the criminals. They are also contentious in the sense that they are learned through apprenticeship (Donnelly, 2016). You do what you have seen someone else do; hence they are unreliable. They are also built under false controversies due to their dynamic nature, making them unworthy of protecting human rights.
The importance of using the law in projects of human rights and social justice
Law is a system of rules that a country or community recognizes and uses to regulate its members’ actions. It is, therefore, important in projects of human resource and justice, as explained by Donnelly. He argues that law has made all human rights universal, indivisible, and interdependent, and interrelated. The universality of rights is depicted where principles and rules governing human beings’ conduct are universal in their acceptability, applicability, translation, and philosophical basis are considered most legitimate. Indivisibility is seen where human rights laws cannot be separated because their institution considers political, civil, social, cultural, and political perspectives (Donnelly, 2016). Human rights laws are also interdependent and interrelated in that one right cannot be fully enjoyed without another.
Law also makes human rights to have political legitimacy. A government is legitimate to the extent that it implements and protects the human rights of citizens (Donnelly, 2016). Although other legitimacy issues like sovereignty and national interest continually compete, human rights laws have made another favorable for citizens’ sake.
Additionally, law plays an important role in social values and practices with a distinctive character and normative force. It is not watered down by morality nor dressed up by self-interest (Donnelly, 2016). It works under the condition of ‘that’s illegal’ rather than ‘I don’t like that,’ which is an important factor in dealing with human rights issues. Also, law in human rights is important because it represents a matter of authority. It is not just led by power or self-interest; rather acts out of the authority of right. Human rights are prone to selfish drives as a result of moral and religious norms (Donnelly, 2016). Law is therefore important in dealing with such cases of selfish interests by acting with authority, leading to the right decisions.
A legal right is separate from and only partially overlaps with moral right, which has made it ideal for dealing with human rights. Legal norms and moral norms operate in different domains and have different normative forces. Therefore, the law does not act under moral norms, rather acts under legal actions. Human rights deserve to be dealt with legally, which law permits (Donnelly, 2016). Therefore, the legalization of human rights remains an irreplaceable resource for national and international human rights advocates.
Koh and Nash have also talked in length on the law in human rights projects, although their views differ from Donnelly’s’ in that they believe that law in human rights depends on how we understand law works. Nash claims that law works due to social movements and human rights are imagined concerning international law.
Social movements are central to the inter-disciplinary and approach to human rights and law. Social movements are divided into global constitutionalism- the view that there is a single human rights movement creating international law and subaltern cosmopolitanism- states that what is important is the diversity of movements and law for progressive human rights. Global constitutionalism seems to be especially relevant when human rights are in question beyond the advanced industrial capitalist societies where they became part of political culture (Nash, 2012). For subaltern cosmopolitans, legal pluralism opens up the possibility of alternative forms of legality developed by marginalized and oppressed peoples against hegemonic globalization.
Human rights are imagined concerning international law. People imagine that bureaucratic elites and professional legal experts create human rights (Nash, 2012). The rights created are nevertheless democratic because they involve universality needs rather than a nation’s needs. Human needs tend to differ in different states; hence as much as we have the international perspective of human rights, we should also have national rights.
On the other hand, Koh adds that law is enforced through a transnational legal process of institutional interaction, interpretation of legal norms, and attempts to internalize those norms into domestic legal systems (Koh, 1999). Additionally, he adds that law is a result of coincidence, conformity, compliance, and obedience. It is coincidental how people in a country might follow a certain path as others follow another. Through the legalization of law, conformity is realized as people adapt but are not obliged to do so at all times (Koh, 1999). Compliance with the law is experienced when rewards are offered to those who conform to the law. Obedience is when people develop a notion to adopt a behavior that is prescribed by the rule because they have internalized that rule.
In a nutshell, human rights projects benefit a lot from law and some cultural practices that are accepted universally. Culture supports human rights through its pillars of nature, equality, and universality. It also subjects to criticism, controversies, and its contentious. Law is important in that it acts with authority, and it is not affected, not self-interests. Therefore, the legalization of human rights is affected by coincidence, conformity, compliance, and obedience.
References
Donnelly, J. (2016). The virtues of legalization.
Hunt, L. (n.d.). Inventing Human Rights.
Koh, H.H. (1999). How Is International Human Rights Law Enforced? Indiana Law Journal.
Nash, K. (2012). Human Rights, Movements and Law: On Not Researching Legitimacy. Goldsmiths University, UK. Sage Pub.
