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28 Donnelly on Concept vs Conception of Human Rights

 Jack Donnelly, Universal Human Rights in Theory and Practice, Second Edition (Cornell University Press, 2003)

 2. Interpretation vs Substance

“The Universal Declaration generally formulates rights at the level of what I will call the concept, an
abstract general statement of an orienting value. ‘Everyone has the right to work, to free choice of
employment, to just and favorable conditions of work, and to protection against unemployment’ (Art. 23). Only at this level do I claim that there is a consensus on the right of the Universal Declaration, and at this level, most appeals to cultural relativism fail” (Universal Human Rights in Theory and Practice, Second Edition, p. 94).

When Donnelly talked to Iranians and asked them “Which rights in the Universal Declaration ... does
your society or culture reject?” he says they accepted the concept of freedom of religion, but disagreed with particular conceptions of freedom of religion (and of its limits).

“We must remember that every society places some limits on religious liberty. In the United States, for example, recent court cases have dealt with forced medical treatment for the children of Christian
Scientists, live animal sacrifice by practitioners of santaria, and the rights of Jehovah’s Witnesses to
evangelize at private residences” (95).

“We just be careful, however not to read too much into this consensus at the level of the concept, which may obscure important disagreements concerning definitions and implicit limitations. Consider Article 5 of the Universal Declaration: ‘No one shall be subject to torture or to cruel, inhuman, or degrading treatment or punishment.’ The real controversy comes over definitions of terms such as ‘cruel.’ Is the death penalty cruel, inhuman, or degrading? Most European states consider it to be. The United States does not. We must recognize and address such differences without overstating their importance or misrepresenting their character” (95).

“My argument is only at the level of concept. The Universal Declaration insists that all states share a
limited but important range of obligations. It is, in its own words, ‘a common standard of achievement for all peoples and all nations.’ the ways in which these rights are implemented, however, so long as they fall within the range of variation consistent with the overarching concept, are matters of legitimate variation (compare §7./7). This is particularly important because most of the ‘hot button’ issues in recent discussions have occurred at the level of implementation. For example, debates about pornography are about the limits–interpretation or implementation–of freedom of expression. ...” (97-98).

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