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Universal Human Dignity: Some Reflections in the Asian Context

Published online by Cambridge University Press:  16 April 2015

Man Yee Karen Lee*
Affiliation:
University of Hong Kong
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Abstract

The idea of “human dignity” is accorded a prominent status in domestic constitutions and international human rights law. Its symbolism as a universal ground of human rights sits awkwardly with the absence of a precise definition. The concept has evolved over history and has been interpreted in various ways by people holding different worldviews. The elusive nature of human dignity creates challenges when it is evaluated across cultures. Despite its common association with the concept of liberal democracy, the idea of human worthiness is not necessarily absent in Asian societies, many of which function under alternative political systems.

A cross-cultural perspective requires putting aside ethnocentrism and exploring the convergence of views from different belief systems. Examples from Confucianism and Islam may provide insights on how human dignity is understood and realized in various Asian contexts.

Type
Research Article
Copyright
Copyright © Faculty of Law, National University of Singapore 2008

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References

1 The so-called “Declaration of Philadelphia” is Annex to the Constitution of the International Labour Organization, namely “Declaration concerning the aims and purposes of the International Labour Organization” (adopted in the General Conference of International Labour Organization Meeting in its 26th Session in Philadelphia on 10 May 1944). Part II (a) of the Annex refers to “dignity”: “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”.

2 Preamble, Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.

3 The word “dignity” appears five times in the Universal Declaration of Human Rights, GA Res 217(III), UN GAOR, 3d Sess, Supp No 13, UN Doc A/810 (1948). Not only is it mentioned twice in the Preamble and in Art 1, but it is also referred to as the UDHR affirms the right to “social security” in Art 22 and the right to “work” in Art 23.

4 Both the ICCPR (19 December 1966, 999 UNTS 171, arts 9-14) and the ICESCR (adopted by General Assembly resolution 2200A (XXI) of 16 December 1966) re-affirm the values of “inherent dignity” of people twice in the Preamble.

5 Preamble to the Charter of the Organization of African Unity (1963). (adopted by the Conference of the Heads of African and Malagasy States and Governments in Addis Ababa, Ethiopia on 25 May 1963).

6 Art 5, African [Banjul] Charter on Human and Peoples' Rights (adopted on 27 June 1981, entered into force on 21 Oct 1986, O.A.U. Doc. CAB/LEG/67/3 Rev.5 (1981)).

7 Charter of Fundamental Rights of the European Union (2000/C 364/01, Official Journal of the European Communities, 18 Dec 2000).The Preamble refers to “human dignity” - along with freedom, equality and liberty - as one of the indivisible and universal values upon which the EU was founded. Art 1 declares “human dignity is “inviolable”; Art 25 refers to the dignity of the elderly; Art 31 protects one's dignity at work.

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9 S 54(1), Constitution of the Republic of Hungary (Act XX of 1949). Available: official website of the Hungarian National Assembly <http://net.iogtar.hu/ir/gen/getdoc.cgi?docid=94900020.tv&dbnum=62>.

10 Israel's Basic Law: Human Dignity and Liberty, passed by the Knesset on 17 March 1992 and amended on 9 March 1994, has “protecting human dignity” as its main purpose. Art 1a, translated from the Hebrew, stipulates: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” Arts 2 and 4 go on to denounce “violation of the life, body or dignity” and guarantee a positive right to be so protected. Available online: <http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm>.

11 In Art 1(a) of the Constitution of the Republic of South Africa Act 1996, (no. 108 of 1996, date of promulgation: 18 Dec 1996, date of commencement: 4 Feb 1997), “human dignity” is proclaimed as one of the founding values underlying the state of South Africa.

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29 William, supra note 21 at 204.

30 Ibid at 215.

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43 [2005] 2 WLR 431 [General Medical Council].

44 Catherine Dupre, “Human Dignity and the Withdrawal of Medical Treatment: A Missed Opportunity” (2006) Issue 6 Eur HRL Rev at 678 [Dupre].

45 General Medical Council, supra note 43 at 450.

46 Ibid at 464.

47 R. (on the application of Burke) v General Medical Council [2006] QB 273 (CA (Civ Div)) [General Medical Council (CA)] at 296.

48 Ibid at 297.

49 Burke v United Kingdom (ECHR, Fourth Section, Application no 19807/06) (Declared inadmissible on 11 July 2006).

50 Dupre, supra note 44 at 686-687.

51 Like the situation in Re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33 (CA) where the court decided that it would be better to relieve the incompetent patient from the suffering caused by aggressive treatment in the event the medical condition reached a crisis.

52 General Medical Council (CA), supra note 47 at 302.

53 See Feldman, supra note 40 at 688.

54 See Feldman, supra note 40 at 697.

55 Cases of different scenarios have arisen from the patient's refusal to have a blood transfusion when he is in a critical condition. In 1998, a French court held that medically appropriate treatment for preserving life did not violate the Jehovah's Witness patient's freedom under the Eur Conv HR. See [Feldman] supra note 40 at 700-701. In Cruzan v Director, Missouri Department of Health 497 US 261 (1990), the majority of the US Supreme Court denied the request made by the parents of a “vegetative” patient to withdraw life-sustaining treatment without clear and convincing evidence. Even though the majority decided on “due process”, “dignity” was briefly mentioned in Rehnquist CJ's judgment. Brennan J in his dissenting judgment joined by Marshall and Blackmun JJ, wrote that the patient, whose life was being sustained by artificial nutrition and hydration, was entitled “to choose to die with dignity”.

56 A French court in 1995 endorsed the ban on dwarf-throwing competitions in the cities of Versailles and Marseilles despite the dwarfs' keenness to take part for financial gain and the safety measures taken by their employers, because human dignity demanded that no one should be exposed to exploitation in such a way by reason of the physical handicap they suffered. See Feldman, supra note 40 at 701. Courts in Germany have reached similar conclusion. See Eskart Klein, “Human Dignity in German Law” in Kretzmer & Klein (supra note 20) 145 at 158.

57 David N Weisstub, “Honor, Dignity, and the Framing of Multiculturalist Values” in Kretzmer & Klein (supra note 20) 263 at 288-289 [Weisstub].

58 S 8 of the 1994 version of the Israel's Basic Law: Human Dignity and Liberty, supra note 10, reads, “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.”

59 David Kretzmer, “Human Dignity in Israeli Jurisprudence” in Kretzmer & Klein (supra note 20) 161 at 170.

60 Weisstub, supra note 57 at 275-277. As for the human dignity for those who lack the minimal human capacity to act, Gewirth put forward the Principle of Proportionality. As a fundamental feature of the traditional doctrine of distributive justice, this principle entails that the possessing of rights is proportional to the degree to which human beings and other entities have the ability to act. See Gewirth, Alan, Reason and Morality (Chicago: The University of Chicago Press, 1978) at 120128 Google Scholar.

61 Eckart Klein, “Human Dignity in German Law” in Kretzmer & Klein (supra note 20) 145 at 159. The same question was put to the students of a human rights course (Master-level) at the Law Faculty of the University of Hong Kong in 2004. As one of the students, the writer records that there was no consensus in the class as to whether torture should be used on “one” terrorist suspect to save “the whole town”.

62 Rhoda E Howard & Jack Donnelly, “Human Dignity, Human Rights, And Political Regimes” (Sept 1986)(Vol 80, No 3) American Political Science Review 801-817 at 802.

63 Barr criticized Howard and Donnelly's claim as “exceptionally cavalier” in their blunt assumption that human rights are synonymous with liberal values of equality and autonomy. See Barr, Michael D, Cultural Politics and Asian Values: The tepid war (London: Routledge, 2002) at 88 [Barr]Google Scholar.

64 Kretzmer, supra note 59 at 167 (per Shamgar J).

65 See supra note 62.

66 Ibid.

67 Peerenboom, Randall, “Beyond Universalism and Relativism: The Evolving Debates about ‘Values in Asia’” (2003) 14 Ind Int'l & Comp L Rev 1 [Peerenboom]Google Scholar.

68 Sen, Amartya, “Human Rights and Asian ValuesThe New Republic (14-21 July, 1997) (Vol 217, Iss. 2-3) (Washington, ABI/INFORM Global) 33 Google Scholar.

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70 Parekh, supra note 39 at 139.

71 For example, former Singapore Prime Minister Lee Kuan Yew spoke of building a “tightly-knitted” society after the city-state became independent in 1965. See Barr, supra note 63 at 32.

72 Peerenboom, supra note 67 at 50-51.

73 Barr, supra note 63 at 25-26.

74 The case law of the ECHR reflects a strong influence of this assumption as it takes “striking the right balance between the individual and the community” as an important guiding principle in adjudicating constitutional rights claims. See Cali, Basak, “Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions” (2007) 29 Hum Rts Q 251 at 259 CrossRefGoogle Scholar.

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77 Ibid at 131.

78 Donnelly, Jack, Universal Human Rights in Theory and Practice, 2d ed (Ithaca: Cornell University Press, 2003) at 11 Google Scholar.

79 Jack Donnelly, “Social Construction of International Human Rights” in Dunne & Wheeler (supra note 75) 71 at 79-80.

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81 Parekh, supra note 39 at 135.

82 Ching, Julia, “Human Rights: A Valid Chinese Concept?” [Ching] in de Bary, Wm Theodore & Weiming, Tu, eds, Confucianism and Human Rights (New York: Columbia University Press, 1998) 67 at 7071 Google Scholar [de Bary & Tu]; Irene Bloom, “Fundamental Intuitions and Consensus Statements: Mencian Confucianism and Human Rights” [Bloom] in de Bary & Tu at 94,104. While the present discussion focuses on Confucius and Mencius, it seems that another Confucian disciple, Xunzi, has also referred to something akin to “human dignity” in his teachings, as appears in an English translation work. Xunzi said, to be a teacher, one must be “majestic in manner”, among other things. See Knoblock, John, Xunzi: A Translation and Study of the Complete Works (Stanford: Stanford University Press, 1990) vol 2 at 209 Google Scholar.

83 Former Singapore Prime Minister Lee Kuan Yew was among the most fervent advocates of Confucianism for governing the tiny yet vigorous island state in the early years of economic development. He has attributed Singapore's miraculous success to the adoption of Confucian traits such as work ethic, social discipline and zeal for learning. See Wm Theodore de Bary, “Preface” in de Bary & Tu (supra note 82) ix at x.

84 The word ren appears in the Analects 105 times, which makes it the most prominent idea of Confucius's philosophy. See, Confucius: The Analects, trans by Lau, DC (England: Penguin Books, 1979)Google Scholar [Analects]. See also, Ni, Peimin, On Confucius (California: Wadsworth, 2002) at 27 [Ni]Google Scholar.

85 Ibid at 2.

86 Ibid at 27-28.

87 Ibid at 28, 31-33.

88 Ibid at 29-31, Analects 12:2.

89 Ibid at 33-37.

90 Analects 15:39.

91 Yet Confucius and Mencius have never committed to equal treatment for all, as they bore in mind the differences in people's social roles, surroundings and moral practices …, and above all, in the context of a relationship-based society. See Chan, Joseph, “A Confucian Perspective on Human Rights for Contemporary China” [Chan] in Bauer, Joanne R & Bell, Daniel A, eds, The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press, 1999) 212 at 217 Google Scholar.

92 Wm Theodore de Bary, “Introduction” in de Bary & Tu, supra note 82 at 1.

93 Bloom, supra note 82 at 96.

94 Ibid at 99.

95 Mencius 1A:7 trans by DC Lau (England: Penguin Books, 1970)[Mencius].

96 Mencius 2A:6; Bloom, supra note 82 at 101.

97 Mencius 6A:6; Bloom, supra note 82 at 102.

98 Ching, supra note 82 at 71.

99 Confucius was an agnostic in the realms of religion and spirituality. When one of his disciples asked about life and death, he gave his famous reply, “If you do not yet understand life, how can you understand death?” Analects 11:12; Ni, supra note 84 at 11-12.

100 Mencius 7A:15; Bloom, supra note 82 at 103.

101 As Confucian said, one need not worry about death when he has not sorted out things about life. Bloom, supra note 82 at 106; Ni, supra note 84 at 11-12.

102 Mencius 6A:16.

103 Mencius 6A:10.

104 Ibid.

105 See supra note 97.

106 Bloom, supra note 82 at 109.

107 Ibid.

108 Mencius 4B:3.

109 The last two Policy Addresses by the Chief Executive of the Hong Kong SAR Government instantly came to mind. The Policy Address for the year 2006-07 was titled “Proactive, Pragmatic, Always People First”; while that for the year 2005-06 read “Strong Governance for the People”, available online: <http://www.policyaddress.gov.hk/06-07/eng/archives.html>.

110 Joseph Chan argued that many key elements of Confucianism are compatible with the idea of human rights, despite the different conceptual route taken by Confucianism. While its teachings hinged on the web of social relationships, its foundation was built on humans being essentially moral agents capable of caring for and sympathizing with others. See Chan, supra note 91 at 215-219.

111 Supra note 3.

112 Glendon, supra note 13 at 1, 4.

113 Sumner B Twiss, “A Constructive Framework for Discussing Confucianism and Human Rights” in de Bary & Tu (supra note 82) 27 at 41.

114 Chang, Peng-Chun, China at the Crossroads: The Chinese Situation in Perspective (London: Evans Brothers Ltd, 1936) at 124125 Google Scholar. Indeed, there are many routes to the same destination for the development of human rights. In relation to the present discussion, Joseph Chan argued, “Confucianism may provide a justification for human rights, but this justification differs from the dominant strand in Western liberalism.”: see Chan, supra note 91 at 215.

115 Rozman, Gilbert, “The East Asian Region in Comparative Perspective” in Rozman, Gilbert, ed, The East Asian Region: Confucian Heritage and Its Modern Adaptation (Princeton: Princeton University Press, 1991) 3 at 1316 Google Scholar.

116 Weiming, Tu, “Towards a Global Ethics: Spiritual Implications of the Islam-Confucianism Dialogue” in Bakar, Osman & Nai, Cheng Gek, eds, Islam and Confucianism: A Civilizational Dialogue (Kuala Lumpur: University of Malaya Press, 1997) 19 at 28 Google Scholar.

117 The Cairo Declaration on Human Rights in Islam (Signed by the member states of the Organization of the Islamic Conference during the Nineteenth Islamic Conference of Foreign Ministers (Session of Peace, Interdependence and Development), Cairo, Egypt, 31 July - 5 August 1990). Online: <http://www.oicun.org/articles/54/1/Cairo-Declaration-on-Human-Rights-in-Islam/1.html>.

118 Art 18(a) assures everyone of his right “to live with security for himself, his religion, his dependents, his honour and his property”. Art 18(b) guarantees the right to privacy in the conduct of his private affairs so as to protect one's honour: “It is not permitted to spy on him, to place him under surveillance or to besmirch his good name.” Art 9 emphasizes the obligations of the state and society to promote knowledge and education.

119 Sheikholeslami, Reza, “The Creation and the Dignity of Man in Islam” in Vöneky, Silja & Wolfrum, Rüdiger, Human Dignity and Human Cloning (Leiden: Martinus Nijhoff Publishers, 2004) at 3 CrossRefGoogle Scholar.

120 Ibid at 5.

121 Arberry, Arthur J, The Koran Interpreted, Vol 1 (London: George Allen & Unwin Ltd, 1955), Ch 15, Verses 24-25 [Arberry]Google Scholar.

122 Ibid Vol 2, Ch 40, Verse 66.

123 Ibid Vol 1 Ch 17, Verse 72.

124 Muzaffar, Chandra, Rights, Religion and Reform: Enhancing human dignity through spiritual and moral transformation (London: Routledge Curzon, 2002) at 4647 Google Scholar.

125 Ibid at 34-35.

126 Ibid.

127 See the Constitution of India (adopted by the Constituent Assembly on 26th November 1949, online: Ministry of Law and Justice website” <http://indiacode.nic.in/coiweb/welcome.html>.

128 State of Karnataka v Krishnappa [2000] 3 LRI 998 at para 14 (concerning the rape of an eight-year old girl); State of Himachal Pradesh v Lekhraj & Anor [2000] 3 LRI 68 at para 7 (concerning the rape of a 55-year old woman); both cases cite State of Punjab v Gurmeet Singh & Ors (1996) 2 SCC 384.

129 Mohamad Bin Senik v Public Prosecution [2005] 4 MLJ 164 at para 6.

130 See the Federal Constitution of Malaysia (adopted on 31st August 1957, online: United Nations Refugee Agency (UNHCR) Refworld <http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b5e40>. See also the Constitution of India, supra note 127

131 Lembaga Tatatertib Perkhidmatan Awam, Hospital Besar Pulau Pinang v Utra Badi A/L K Perumal [2000] 3 MLJ 281 [Utra Badi A/L K Perumal].

132 Citing Board of Trustees of the Port of Bombay v Dilipkumar AIR [1983] SCC 114.

133 Francis Coralie Mullin v The Administrator, Union Territory of Delhi & Ors [1981] 2 SCR 516.

135 Ibid at 528-529, per Bhagwati J.

135 Utra Badi A/L K Perumal, supra note 131 at 294.

136 Kanawagi A/L Seperumaniam v Dato ‘Abdul Hamid Bin Mohamad [2004] 5 MLJ 495.

137 Danial Latifi & Anor v Union of India and Other Petitions [2002] 4 LRI 36 [Latifi].

138 Maneka Gandhi v Union of India [1978] 1 SCC 248.

139 Latifi, supra note 137at para 21.

140 Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.

141 Ibid at 287, citing Bandhua Mukti Morcha v Union of India & Ors AIR [1984] SCC 802, at 811-812.

142 McCrudden, supra note 19 at 32.

143 Alston, Philip, “The Universal Declaration at 35: Western and Passé or Alive and Universal” (1983) 31 Int'l Comm Jur Rev 60-70 at 69 Google Scholar. See UDHR, supra note 3.

144 Arberry, supra note 121, Vol 2, Ch 24, Verse 31, “And say to the believing women, that they cast down their eyes and guard their private parts, and reveal not their adornment save such as is outward; and let them cast their veils over their bosoms…”

145 Munir, Lily Zakiyah, “Islam and Gender: Reading Equality and Patriarchy” in Nathan, KS & Kamali, Mohammad Hashim, eds, Islam in Southeast Asia: Political, Social and Strategic Challenges for the 21st Century (Singapore: Institute of Southeast Asian Studies, 2005) 191 at 201 Google Scholar.

146 Ibid.

147 Ibid at 202.

148 Ibid at 203.

149 Martin Asser, “Why Muslim women wear the veil” BBC News (5 October 2006), online: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/middle_east/5411320.stm> (Visited on 17 July 2007).

150 Paula Dear, “Women vow to protect Muslim hijab” BBC News (14 June 2004), online: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/3805733.stm> (Visited on 17 July 2007).

151 “Lawyers ‘can wear veils in court’” BBC News (10 November 2006), online: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk news/6134804.stm>.

152 “Muslim veil ‘allowed in courts’” BBC News (24 April 2007), online: <http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/england/staffordshire/6588157.stm>.

153 Even the court of a predominately Muslim nation like Turkey seems to agree. A Muslim country which has remained secular for the past 80 years, Islamic headscarves have been banned from tertiary institutions since 1982. In 1989, after the government made it compulsory for students to wear “modern dress” while exempted headscarves “covering the neck and hair” for a minimal symbol of religious conviction, the Constitution Court struck down the exemption declaring that only “scarf-less” institutions could protect the kind of sexual equality that a religious dress code would sought to undermine. See Khan, Ali, “Suppressive rulings (Turkey's anti-scarf secularism)The National Law Journal (24 July 2006), online: <http://find.galegroup.com/itx/start.do?prodId=ITOF>Google Scholar.

See similar views of the ECHR in Dahlab v Switzerland (ECHR, Second Section, Application no 42393/98) (Declared inadmissible on 15 Feb 2001) (Referred to in Sahin v Turkey infra note 157 at 105) [Dahlab]: where the court stressed the “powerful external symbol” given by wearing a headscarf and questioned its possible proselytizing effect on women might run against the principle of gender equality, as well as the fact that it is not easy to reconcile wearing of the scarf with notions of equality and non-discrimination that all teachers in a democratic society should convey to their students.

154 Schooley, Kimberly Younce, “Cultural Sovereignty, Islam, and Human Rights - Toward A Communitarian Revision” (1995) 25:3 Cumb L Rev 651 at 676 Google Scholar.

155 Ibid at 675-676.

156 Ibid at 677.

157 Sahin v Turkey (2007) 44 EHRR 5 at 105, 108 [Sahin]; See also Kalac v Turkey (1999) 27 EHRR 552.

158 Karaduman v Turkey (Application No 16278/90, 3 May 1993) (Referred to in Sahin, ibid at 105)

159 Dahlab, supra note 153.

160 Sahin, supra note 157 at 126.

161 Ibid at 143, per Tulkens J.

162 Ibid. A joint dissenting opinion in another ECHR decision gave a similar point. In Hatton v United Kingdom (2003) 37 EHRR 28, a case concerning noise from night flights which allegedly violated the applicants' private family life under Art 8, the five dissenting judges jointly wrote, “We do not find it persuasive to engage in the balancing exercise employing the proportionality doctrine in order to show that the abstract majority's interest outweighs the concrete 'subjective element of the small minority of people’…Indeed, one of the important functions of human rights protection is to protect ‘small minorities’ whose 'subjective element’ makes them different from the majority.”

163 Smith, Adam, The Theory of Moral Sentiments, rev ed (Oxford: Clarendon Press, 1976), at 109 Google Scholar.

164 Ibid at 110.

165 Ibid.

166 Glendon, supra note 13 at 3. For UDHR, see supra note 3.

167 Ibid at 4.

168 Ibid at 10.

169 Michael Novak, “Human Dignity, Human Rights” (Nov 1999) First Things: A Monthly Journal of Religion and Public Life (Institute on Religion and Public Life, New York) 39, online: <http://find.galegroup.com/itx/start.do?prodId=ITOF>.

170 Ibid.

171 Maritain, Jacques, “Introduction” [Maritain] in Human Rights: Comments and Interpretations (A Symposium edited by UNESCO, July 1948) (London: Allan Wingate, 1950) 9 at 16 Google Scholar.

172 Shultziner, Doron, “Human Dignity - Functions and Meanings” (2003) 3 Global Jurist Topics, Iss 3, Art 3 at 5, online: < > [Shultziner]Google Scholar.

173 African [Banjul] Charter on Human and Peoples' Rights (1981), supra note 6; The Cairo Declaration on Human Rights in Islam, supra note 117; Constitution of India, supra note 127; Israeli Basic Law: Human Dignity and Liberty, supra note 10.

174 Henkin, Louis, “Dignity and Constitutional Rights” in Meyer, Michael J & Parent, William A, eds, The Constitution of Rights: Human Dignity and American Values (Ithaca: Cornell University Press, 1992) 210 at 227 Google Scholar.

175 Beitz, Charles R, “Human Rights as a Common Concern” (June 2001) 95 American Political Science Review 269 at 280 [Beitz]CrossRefGoogle Scholar.

176 Shultziner, supra note 172 at 6.

177 Beitz, supra note 175 at 280.

178 The writer disagrees with Howard and Donnelly that liberalism provides the only venue for human dignity to be realized and communitarian societies are necessarily anti-human rights.

179 Shultziner, supra note 172 at 7.

180 Sen, Amartya, “Elements of a Theory of Human Rights” (2004) 32 Philosophy and Public Affairs 315 at 353 CrossRefGoogle Scholar.

181 Supra note 3.

182 Maritain, supra note 171 at 17.