6
The Convention in a particularist light
How can the proposed Declaration be applicable to all human beings, and not be a
statement of rights conceived only in terms of the values prevalent in the countries of
Western Europe and America? (Herskovits)
Cultural relativism is widely recognized as the doctrine which stands opposed to
the idea, central to the human rights credo, that human rights are universal. It is
generally understood as asserting that each culture nurtures its own values and
ways of being and doing; is understandable and must be understood within its
own terms; and should not be morally assessed by a culture external to it, even in
the name of human rights. The doctrine tends to result in a denunciation of
human rights as an expression of imperialism.
Discussions about human rights and relativism typically involve references to
Asia, Africa and/or the Middle East.
1
This is because the debate between univers-
alism and relativism tends to be conducted as if it were concerned with how the rest
of the world should react to something which originated in the West. This chapter
springs from the view that this is not the most fruitful way to conceive of it.
The chapter shows that the debate is inescapable even within the confines of
Europe, i.e. internally to the fairly homogeneous region from which human rights
are said to have originated. In concrete terms, it examines the doctrine of the
margin of appreciation developed in the Strasbourg case law as an expression of
relativism, and it disputes the claim that the prohibition of torture and inhuman
and degrading treatment contained in Article 3 of the Convention can mean-
ingfully be said to be absolute when what is being prohibited is in fact culturally
shaped. Human rights cannot be said to be ‘inherent’ to human nature.
The problem of the applicability of human rights in a relativist perspective
need not be about the standing of one region of the world as against another.
What relativism highlights is that minimal common standards are never entirely
common: they always stand in the way of more peculiar, or particular, norms. The

The Statement opens by stressing that a human rights Declaration would need
to seek respect for the individual both as individual and as member of ‘his’ society
(in a disregard, still typical in the 1940s, of any feminist concerns). It hammers
home the point about the importance of guaranteeing ‘respect for the cultures of
differing human groups’, clearly having in mind the destruction of cultures which
colonialism, imperialism and the very establishment of the United States had
heralded.
5
Shifting the emphasis slightly, it asserts that the Declaration must ‘take
into full account the individual as a member of the social group of which he is a
part, whose sanctioned modes of life shape his behavior, and with whose fate his
own is thus inextricably bound’. It asks the question posed at the head of this
chapter: ‘How can the proposed Declaration be applicable to all human beings,
and not be a statement of rights conceived only in terms of the values prevalent in
the countries of Western Europe and America?’
6
The Statement identifies three core propositions:
1 The individual realizes his personality through his culture, hence respect for indivi-
dual differences entails a respect for cultural differences;
2 Respect for differences between cultures is validated by the scientific fact that no
technique of qualitatively evaluating cultures has been discovered;
156 Who Believes in Human Rights?
3Standardsandvaluesarerelativetotheculturefromwhichtheyderivesothatany
attempttoformulatepostulatesthatgrowoutofthebeliefsormoralcodesofone
culturemusttothatextentdetractfromtheapplicabilityofanyDeclarationof
HumanRightstomankindasawhole.
7
Interestingly,thegreatmajorityofanthropologistswouldfirmlyobjecttodayto
eachofthesepropositions.Tousethecurrentsocialsciencesjargon,thefirst
proposition‘essentializes’or‘reifies’culture.Inotherwordsittreatscultureasa

Melville Herskovits is recognized to have been the primary author of the 1947
AAA Statement. Alongside Ruth Benedict, Herskovits was a student of Franz
Boas. Boas, Benedict and Herskovits, three key figures in American anthropology,
successfully challenged the doctrine of cultural evolutionism which had domi-
nated anthropological thinking since the birth of the discipline in the late nine-
teenth century. Cultural evolutionism sought to rank human societies according
to their stage of development along a progression conceived of as linear. Boas
and his disciples insisted that cultures travel in different directions, propelled both
by different values and by fortuitous circumstances, making the hierarchical
evaluation of cultures invalid. Under the influence of these scholars, cultural
relativism became a core tenet of anthropology in the 1920s and 1930s, especially
Particularist light 157
in the United States. The doctrine is commonly – though perhaps wrongly –
understood as entailing tolerance for all culturally embedded moral systems. After
World War II shook the assumption that external value judgments on what a
particular culture produces are unwarranted, cultural relativism lost its hold on
the discipline of anthropology. Though the AAA Executive Committee endorsed
the Statement Herskovits had prepared, the Statement immediately elicited cri-
tiques from within the anthropological ranks.
13
By the 1970s, anthropologists
avoided any reference to the doctrine, as if they were embarrassed by it.
14
What is in the doctrine which warrants such embarrassment? The question of
what exactly cultural relativism entails is highly disputed. What is not contested is
that it derives from the empirical observation that moral systems are embedded in
culture and that different cultures produce different moral systems. However, the
recording of an uncontested empirical observation hardly warrants the label of
doctrine.
15

20
Obviously, such denunciation was
a major motivation for Herskovits who repeatedly stressed that the ‘values of the
ways of life of [peoples under western hegemony had] been consistently mis-
understood and decried’.
21
In a remark which could be said to anticipate the
Foucauldian concept of discourse, Herskovits observed that ‘eternal verities only
seem so because we have been taught to regard them as such’.
22
Returning once more to the 1947 Statement on Human Rights, my own view is
that, whatever its shortcomings, it was right to suggest that the formulation of so-
called human rights criteria cannot but derive from a particular culture with the
158 Who Believes in Human Rights?
consequencethattheapplicabilityofanyDeclarationofHumanRightsto
humankindisadelusion:theconceptofhumanrightsisnotincontrovertiblein
humankind’srepertoire.
Handyside: The margin of appreciation as – seemingly – an
expression of cultural relativism
WehavealreadyseenthatHandysidev.UnitedKingdom,decidedon4November
1976,
23
wasthefirstcasewherethedoctrineofthemarginofappreciationwas
usedbytheCourt.Theappearanceofthedoctrineintherulingwaslinkedtothe
observationthatthereisnouniformconceptofmoralsinEurope.Considering
thattheabsenceofauniversalmoralityispreciselythepremiseonwhichcultural
relativismisbased,Handysidecanbeexpectedtobehighlyrelevanttoour
discussion.Itisthereforediscussedinsomedetailinthissection.Ifitispossible
toconnecttheappearanceofthedoctrineofthemarginofappreciationin
Handysidewithculturalrelativism,itshouldnonethelessbesaidattheoutset

On the face of it, he seemed to have a strong case. How could it be argued that
action against the book was ‘necessary in a democratic society’ when most
societies in Europe were happy for the book to be in free circulation? The answer
is: by stressing that each society has its own views on what morals require and by
letting national authorities determine in great part these moral requirements.
The Court reasoned:
[I]t is not possible to find in the domestic law of the various Contracting States a
uniform European conception of morals. The view taken by their respective laws of
the requirements of morals varies from time to time and from place to place,
especially in our era which is characterised by a rapid and far-reaching evolution of
opinions on the subject. By reason of their direct and continuous contact with the
vital forces of their countries, State authorities are in principle in a better position
than the international judge to give an opinion on the exact content of these
requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to
meet them . . . Consequently, Article 10 para. 2 . . . leaves to the Contracting States a
margin of appreciation.
Nevertheless, Article 10 para. 2 . . . does not give the Contracting States an
unlimited power of appreciation. The Court, which ...isresponsible for ensuring
the observance of those States’ engagements . . . is empowered to give the final ruling
on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as
protected by Article 10 . . . The domestic margin of appreciation thus goes hand in
hand with a European supervision . . .
26
The reasoning of the Court holds in four steps, which can be summarized as
follows:
1 Europe does not enjoy a uniform concept of morality;
2 The Court may therefore not be in a very good position to assess moral requirements;
3 Hence the Convention must be understood as granting member states a margin of
appreciation;
4 Ultimate assessment on whether the Convention has been violated or not nonetheless

judges were entitled, in the exercise of their discretion, to think . . . that the
Schoolbook would have pernicious effects on the morals of many of the children
and adolescents who would read it’.
29
The Court rejected the argument that the lack of action against the book by
other authorities (both in other Member states and in other parts of the UK)
indicated that the course adopted in England was not ‘necessary in a democratic
society’. Like the English, these authorities had acted within the sphere of their
margin of appreciation.
30
They had simply come to a different assessment of
the requirements of morals in their jurisdiction. One can see why Richard
Clayton and Hugh Tomlinson have written that, in one form, the margin of
appreciation amounts to ‘an interpretative obligation to respect domestic cul-
tural traditions and values when considering the meaning and scope of human
rights’.
31
The reasoning of the Court implicitly suggested that Handyside was about the
protection of English moral values. This is highly disputable, however. What
arguably lay at the heart of the case was the crisis surrounding respect for
authority in Europe in the late 1960s (particularly evident in the French May
1968 movement). Interestingly, this was not readily apparent in the judgment,
except indirectly when the Court quoted passages from the Schoolbook. In this
light, the reference by the Court to the absence of ‘a uniform European concep-
tion of morals’ appears as a strategy which allows it not to identify the issue at the
centre of the case. The next section argues that the reference to a doctrine of the
margin of appreciation in the ruling is hardly a genuine expression of cultural
relativism, though the way the doctrine is presented as being about the respect of
local morality (culture) is typical of many arguments that claim to be cultural
relativist.

the elites’.
33
She thus perceptively calls for the modern state to be incorporated as
a significant player in the dialogue between universalists and cultural relativists.
34
It has long been noted that those in power may be tempted to abuse the concept
of culture, for example by objecting to the application of universal human rights
norms by reference to cultural motivations which in fact have nothing to do with
culture.
35
Jack Donnelly gives a number of examples of such ‘cynical manipula-
tion’, including the trial of two political opponents of President Banda of
Malawi before a ‘traditional court’ which did not have the ‘slightest connection
with authentic traditional practices’.
36
But we do not need to go to other con-
tinents to grasp the potential for the cultural card to be played in bad faith.
37
Mr
Handyside alluded to it before the Strasbourg Court. He argued that the action of
the English authorities under the ‘protection of morals’ was a pretext to muzzle a
small-scale publisher who had published works by Che Guevara and Fidel Castro,
related to the Congolese Revolution and emerging from the Women’s Liberation
Movement.
38
He thus obliquely accused the authorities of abusing the concept of
162 Who Believes in Human Rights?
the protection of morals to pursue an objective which had nothing to do with
morals
39

acknowledged that cultural relativism tends to suggest that culture is a thing
which is shared, i.e. to use the sociological jargon, to reify culture (i.e. to make it
into a thing, from the Latin res)
42
and to obliterate the dissent around cultural
issues which exists in society. To this extent, it lends itself to be used in a
counterfeit rather than a genuine manner.
The real problem with cultural relativism: The tolerance of the
intolerable – T v. United Kingdom
The other thing which cultural relativism fails to do is to highlight the idea that
culture as such can be oppressive. In the nineteenth century John Stuart Mill had
already talked of the ‘despotism of culture’.
43
When culture is abusive, cultural
relativism is particularly problematic for it seems to allow for the abandonment of
the common rule, and thus, for inaction when action is required. This amounts to
what R. J. Vincent has aptly termed ‘cowardice of moral abstention’.
44
Particularist light 163
One wonders whether the Court could not be said to be guilty of such cow-
ardice when it concludes that there has been no violation of the Convention after
having stressed that there is no common standard between the states parties. The
example of T v. United Kingdom, decided on 16 December 1999,
45
comes to mind.
The applicant was one of the two children who, aged 10, dragged a toddler - James
Bulger – from a shopping mall to an abandoned railway and killed him.
46
The
applicant child complained at Strasbourg, among other things, that his trial in

other European States. The Court concludes that the attribution of criminal respon-
sibility to the applicant does not in itself give rise to a breach of Article 3 of the
Convention.
51
The reasoning of the Court could perhaps be summarized as follows: given the
absence of a common age of criminal responsibility in Europe, we accept that
virtually anything goes. (Though there would clearly be a limit to this: an age of
two could not be acceptable.)
If relativism is understood as entailing tolerance of culturally embedded values
and practices, it leads to ‘moral neutrality and inaction in situations that are
intolerable’.
52
This argument was made by Hatch by reference to gross violations
of human rights (‘political executions, genocide, genital mutilations, honor kill-
ings, and the like’
53
). T v. United Kingdom presents us with a more benign
164 Who Believes in Human Rights?
illustration of the argument, at least if we accept that a low age of responsibility is
part of British ‘culture’. (The practice is contestable in the eyes of many a British
academic and practitioner and, presumably, a part of the general public,
54
but, as
said above, it is in the nature of culture to be contested.) The five dissenting
judges objected to the verdict of non-violation by saying: ‘It seems to us that the
authorities’ principal reason for bringing these proceedings against children of
eleven years of age was retribution . . . However, vengeance is not a form of justice
and in particular vengeance against children in a civilised society should be
completely excluded’.
55

assess which side of the coin one is dealing with: the good or the bad side of
cultural relativism – or, conversely, the bad or the good side of universalism. The
exercise is not necessarily easy to conduct and it may lead to controversial
conclusions, but it cannot be avoided.
For example, some will feel that T v. United Kingdom is a manifestation of the
good side of relativism. Instead of having said ‘we know what the treatment of
children in a criminal court requires’, the Court indicated that it did not feel
competent to rule and impose one view as to the relevant requirements: to some
extent, the UK was allowed to develop its own response to crimes committed by
children. Of course, not everyone will approve of the solution adopted by the
Particularist light 165
Court. Many will regret, along with the dissenting judges, that the common
standards emerging in international law were disregarded.
In any concrete manifestation of the debate between universalism and relati-
vism, what some regard as an expression of the good side of relativism (inaction
when no action is required) is regarded by others as an expression of its bad side
(inaction when action is required). The two sides exactly mirror each other. On
the one hand, the so-called common rule may be an undue imposition by the
powerful on the less powerful. On the other hand, the particular norm which
constitutes an exception to this rule may be oppressive and morally wrong. The
central difficulty is to identify which is which. The merit of the debate between
cultural relativism and universalism is to point out this difficulty.
Whenever common standards are predicated, the tension between universal-
ism and relativism inevitably arises. Because of this, wishing cultural relativism
away will not do. There is no point in dismissing the doctrine as untenable in the
face of (universal) human rights, for we cannot live without it, even though it is
not clear how to avoid the scepticism which underlies it.
60
In consequence, the
Strasbourg Court could not function without something which allows it to bring

ruling of the Court in Delcourt v. Belgium, dating back to 1970.
62
The case concerned the participation of a member of the Procureur Ge
´
ne
´
ral’s
department at the deliberations of the Court of Cassation. In Belgian law, the role
of this person was understood to be limited to providing advice of a doctrinal and
scientific nature to the Belgian Supreme Court, which explained his presence at
the Court’s deliberations. Even though he was formally part of the Prosecution
Service, he was not considered to be a party to the proceedings. Mr Delcourt
argued that his presence violated the principle of equality of arms and was
therefore in violation of Article 6 of the Convention. The Court disagreed,
stressing both the peculiar and the historically entrenched character of the con-
tested Belgian system.
63
The Court remarked that the at-first-sight ‘unusual’ Belgian way of proceeding
‘[did] not seem to have any equivalent today in the other member States of the
Council of Europe, at least in criminal cases’.
64
It was satisfied, however, that ‘the
Procureur Ge
´
ne
´
ral’s department at the Court of Cassation functions wholly
independently of the Minister of Justice’, that its members are ‘bound to serve
the public interest in all objectivity’ and are not a real party to the proceedings
before the Court of Cassation.

rights of the defence and the principle of equality of arms, had ‘undergone a
considerable evolution in [its] case-law, notably in respect of the importance
attached to appearances and to the increased sensitivity of the public to the fair
Particularist light 167