Human Rights, Culture and the Rule of Law. By Jessica Almqvist

Elena: This is an important book for me. For US. The reviewer's questions are important but the author's impulse is much more.

http://www.globallawbooks.org/reviews/detail.asp?id=199

Human Rights, Culture and the Rule of Law. By Jessica Almqvist. Oxford and Portland, Oregon: Hart Publishing, 2005. Pp.XIII+242. £40.00

Reviewed by Manuel Núñez, Ph.D., Professor of Constitutional Law at School of Law, Universidad Católica del Norte, Chile.

 

At first glance it seems to be another book about an insipid topic for lawyers and practitioners. Concepts like culture, right to culture, approaches to culture or cultural equipment are often discussed with darkness and vagueness. What usually appears clear and useful for legal sociologists, may also give the impression of being not too practical for those who are looking for more answers than theoretical questions. But, fortunately, it is not the case: Almqvist’s doctoral thesis looks at the relationship between culture and human rights in multicultural societies from an unusual, fresh and useful angle. From a lot of possible viewpoints, Almqvist chose to deepen the linkage found between individual’s cultural background (in particular newcomers who are social or cultural foreigners) and the legal recognition of diversity in modern societies. Therefore, the book’s value lies on the fresh attempt to systematize the main theoretical and practical issues involved on that relationship.

 

The core of the book is contained in chapters 3-6. The book’s starting point is at chapter three. After a brief introduction about the current situation of right to culture and right to enjoy one’s own cultural identity in international law (chapter two), Almqvist criticizes what she identifies as the four variants of current human rights approach to culture: avoidance, idealism, simplicity and particularism. From the Author’s perspective the current human rights approach avoids addressing critical questions about law and policy connected with “the reality of cultural difference as a source of disagreement, conflict, ignorance and alienation”.

 

Avoidance means refusal to discuss about deep values underlying human rights (reminiscent of Bobbio’s suggestion, in order to abandon the philosophical discussion about rights in favour to strengthen the legal protection). The variant known asparticularism is identified with those approaches that denies or conceal the minimum of universalism required for human rights claim. Idealism deals with aspirationalist features that characterize several liberties of last waves of human rights. Lastly, the excessively court-centered approach of human rights, which considers the realm of rights outside political process, is branded as simplicity. From this viewpoint, certain issues are more suitably dealt within legislative process than in legal adjudication; therefore, here lies an enrichment of court-centered conception of Rule of Law (see pages 47 and 136). This call for political intervention is deepened in chapters five and seven, where the reader can find several pages devoted to the importance of being possessor of legal tools (provided by legislative branch) qualified to overcome barriers derived from deficient “cultural equipment”. Access to law and public institutions, participation in political or economic life, and the right to allege ignorance of the Law are the most important devices developed by the Author. On the other side, in chapter seven the liberal and democratic are examined as frameworks of political process to respond to cultural conflicts in multicultural polities.

 

Chapter three finishes with an explanation about the meaning and context of the right to culture. This description is far of the aspirational language common to some international treaties and recent studies (in fact, Almqvist does not argue for more codified rights). With a fresh and well balanced battery of concepts, the Author suggests and defends an original human rights approach to culture, an approach not necessarily grounded on Law. From a cosmopolitan background (which also criticizes the nation based approach to human rights), the Author presents a key trilogy that supports the most important duties of States and other public entities (the question about non-state actors is deliberately left aside as a choice of research) regarding the cultural diversity and its impact on human rights issues. The trilogy is composed of skills, norms (adiaphora) and ideologies that we learn or acquire as determining factors of our rights, inside and outside our native cultural system. Each of these components plays an important role in order to justify a special treatment (translated into legal and political duties) to eccentric behaviours based on cultural “infrastructure”.

 

As it has been said, the book offers a well balanced theoretical framework in order to clarify the meaning of right to culture. Unfortunately, the Author misses a good opportunity to place rightly the question about human rights in a universal context. Although she acknowledges the focus on liberal theories and liberal democratic societies as an important limitation of the research (see page 3), the reasons provided to justify this option does not seem to be enough to explain why the language of rights itself must be understood as a universal legal tool. In fact, one thing is to talk about theuniversality of human rights claims and other, quite different, is to talk about theuniversality of human rights. In the first case, we are talking about demands of justice, in the second we are implicitly granting the feature of universality to a truly particular language (a conquest of western modernity). In fact, the universality of the human rights language (diritti dell’Uomo, derechos humanos, Menschenrechte, droit de l’homme) is often taken for granted. However, comparative law and western law history (before the middle age, following Villey’s or Tierney’s thesis) demonstrates that the human rights language is also a particular language, namely, a particular discourse with its own grammar, speakers and ‑paraphrasing Wittgenstein‑ limits. In other words, it is not as universal as we can believe.