Hegel, Human Rights, and Particularism

AuthorRichard Mullender
Publication Date01 Dec 2003
DOIhttp://doi.org/10.1111/j.1467-6478.2003.00270.x
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 4, DECEMBER 2003
ISSN: 0263-323X, pp. 554±74
Hegel, Human Rights, and Particularism
Richard Mullender*
Hegel's political philosophy gives prominence to the theme that human
beings have a need for recognition of those qualities, characteristics,
and attributes that make them distinctive. Hegel thus speaks to the
question whether human rights law should recognize and accom-
modate the nuances of individual make-up. Likewise, he speaks to the
question whether human rights law should be applied in ways that are
sensitive to the cultural contexts in which it operates. But Hegel's
political philosophy evaluates norms and practices within particular
cultures by reference to the higher-order and universal criterion of
abstract right. In light of this point and the inadequacies of political
philosophy that privileges local norms and practices, a third approach
to the protection of human rights is canvassed. This approach
prioritizes neither universal nor local norms. Its aim is to ensure that
both human rights and the cultures in which they are applied are taken
seriously.
G.W.F. Hegel's political philosophy speaks to a wide range of questions
addressed by lawyers.
1
One such question is whether human rights law
should be applied in ways that are sensitive to the cultural contexts in which
it operates. And another is the extent to which human rights law should be
554
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350 Main Street, Malden, MA 02148, USA
*Newcastle Law School, University of Newcastle upon Tyne, 21±24 Windsor
Terrace, Newcastle upon Tyne NE1 7RU, England
Thanks are due to John Alder, Roger Brownsword, William Lucy, Catherine Phuong, Ian
Ward, and the Journal's three anonymous referees for their criticisms of and comments
on earlier drafts of this essay.
1 For applications of Hegelian political philosophy to, among other things, contract
law, property law, public law, and tort law, see D. Cornell, M. Rosenfeld, and D.
Gray Carlson (eds.), Hegel and Legal Philosophy (1991) in which some of the
papers from the conference on `Hegel and Legal Theory' held in the Cardozo Law
School in 1988 are published. The proceedings of the conference are published in
(1988) 10 Cardozo Law Rev. 847±1931. See, also, M. Salter (ed.), Hegel and Law
(2002).
sensitive to the particular characteristics of the individuals whose interests it
is supposed to protect. These questions arise since talk of `human rights'
sounds a distinctly universalist note.
2
For human rights are intended to
protect a range of fundamental interests that all people have in common.
3
But the universalism of human rights can be, and regularly is, the subject of
particularist criticisms. These criticisms typically take a form that can be
labelled `cultural particularism'. This form of criticism usually pursues the
theme that human rights law should be developed in ways that are sensitive
to the distinctiveness of particular cultures.
4
Particularist critique of human
rights law can, however, take a second and intensely individualistic form.
Criticism of this second sort advances the argument that human rights law
should be highly sensitive to and accommodate the particularities of
individuals
This essay examines both of these forms of criticism. We begin with a
critique of human rights law that provides an example of individualistic
particularism. This critique is advanced by Costas Douzinas. He finds
support in Hegel's political philosophy for the conclusion that human rights
are only adequately protected where the nuances of each individual's make-
up are recognized and accommodated.
5
For reasons given below, Douzinas's
individually-oriented critique is identified as exhib iting a number of
significant weakn esses. Hegelian po litical philosoph y does, however,
strongly support the argument that human rights law can and should
accommodate cultural particularity in a wide variety of forms. One reason
for such accommodation is that culture plays a part in the formation of
individual identity. This being so, in accommodating particular cultures,
human rights law can go some way towards recognizing (generic) aspects of
individual identity.
But while Hegelian political philosophy provides support for these
arguments, it is, itself, open to a strong form of particularist critique. This is
because Hegel's political philosophy is top-down in orientation. The
acceptability (or otherwise) of legal and other practical arrangements in
particular societies is judged by reference to a higher-order and universal
criterion. This criterion is the ideal of abstract right which specifies that
practical institutions should adequately accommodate the interests of all
those affected by their operations.
6
But while Hegel's political philosophy is
vulnerable to the criticism of being top-down in orientation, the alternative
555
2 See M. Freeden, Rights (1991) 37.
3 id., p. 7.
4 See H.J. Steiner and P. Alston, International Human Rights In Context: Law,
Politics, Morals (2000, 2nd edn.) 366.
5 See C. Douzinas, `Identity, Recognition, Rights or What Can Hegel Teach Us About
Human Rights?' (2002) 29 J. of Law and Society 379, at 402 and 384; C. Douzinas,
The End of Human Rights: Critical Legal Thought at the Turn of the Century (2000)
ch. 10.
6 G.W.F. Hegel, The Philosophy of Right (1991, ed. A.W. Wood) paras. 34±40.
ßBlackwell Publishing Ltd 2003

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