Cultural the limits of freedom of speech

            Cultural factors should only be
allowed to determine what human rights should be implemented to a certain
extent. An extent to which the factors not only cause harm, but cause offence
too should they then be ruled out from affecting the implementation of rights. Joel
Feinberg, legal and political philosopher, wrote about the offence principle.
He stated that ‘an act of offence should be considered a good enough reason to
interfere with the liberty of a citizen in a democratic state.’14
By following both principles, accepted conduct is well in the limits of freedom
of speech and freedom of discrimination which are two rights that often
conflict. With this conclusion, fundamental human rights are protected, yet
there is an opportunity for other cultures such as those within ‘the orient’ to
practice their traditions more freely without impacting on others human rights.

        It is often argued
that human rights are just another way for the more developed countries to gain
power over the less developed countries. Whereas before, power used to be gained
through use of military actions and gaining territory, it is thought that in recent
times it is gained using human rights and termed neo-colonialism. One major example
is the pre-emptive strikes on Iraq by the United States under false pretences of
Saddam Hussein building weapons of mass destruction. The States claimed to be protecting
the rights and lives of civilians, however there was no weapons of mass destruction
and the country happened to be rich in oil resources. Another example is the assassination
of the Libyan leader Gaddafi by the United States. They then left Libya with a temporary
western-style government which did not work and allowed the rise and progress of
various extremist groups such as the Islamist State. These examples combined provide
reason for cultural factors to influence what rights are applied to prevent neo-colonialism.

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          If cultural factors
were allowed to determine which human rights can be implemented, agreeing on
which cultural factors would cause many issues. Taking a single country, for
example China, the culture, customs and traditions differ by geography and
ethnicity as it inhabits over one billion people and at least 56 ethnic
minority groups. It would be impossible to agree on a set of ‘cultural factors’
as in the modern-day multiculturalism is at its highest. For this reason,
cultural factors should not be allowed to determine rights as it is impossible
to represent every culture and it would be unjust.

            Article 27 (I) states that
‘everyone has the right freely to participate in the cultural life of the
community.’ Essentially, this means that nobody can govern or eliminate culture,
nor impose their culture on another. There are two views which can be taken
from this article. Firstly, this right means everybody is free to participate
in their culture, therefore it would not be necessary to make cultural factors
a determinant in which human rights are implemented as they already have the
freedom to practice their culture. On the other hand, they are only free to
participate up until the point where the cultural tradition conflicts with one
or more human rights. For example, child labour in India and Ethiopia. It is a
cultural value to encourage children to work and develop skills to be an asset
at time of poverty or an extra source of income.12
Article 4 of the European Convention on Human Rights states every individual is
entitled to freedom of slavery and forced labour.13
The majority of child labour cases are forced labour through slavery,
trafficking or debt bondage, thus violating rights.

           Traditions of this form date back to
over two thousand years ago, where, apart from any ties to natural law, human
rights were non-existent.11
Certain aspects of cultures from this time which would not have accounted for
human rights, are still practiced today. Many issues arise from this, such as
the mistreatment of women, as men were the superior sex at the time of origin
of the cultures and traditions. Consequently, human rights aid those who are
historically disadvantaged, mainly women and children, endorsing equality thus
promoting justice. Allowing cultural factors to determine which human rights
should be implemented would be taking a step back in time, as fundamental
rights could be lost, segregating particular parts of certain societies.
Keeping human rights universal would endorse equality and promote justice.

            The ‘Harm Principle’ founded by
British Philosopher John Stuart Mill is argued contrary to this. ‘On Liberty’,
written by Mill, contains the definition of the harm principle in depth; it
states that actions can only be prevented providing they cause harm. Mill would
argue that unless the cultural factors were causing harm, human rights should
not be enforced on them. Accordingly, the Saudi Arabian male guardianship
culture should not be interfered with by human rights so long as the women were
not being harmed. Practices such as female genital mutilation, a social
convention in multiple cultures (near enough universal in Egypt, Sierra Leone
and Guinea)10,
should be prevented. Mill, however, does not extend to the definition of harm
in his book, although from his references to ‘injury’ and ‘hurt’, it can be
inferred that he implied harm meant a physical pain. As the outcome of female
genital mutilation could be infections, need for further surgery, health
complications and/or death, the practice clearly constitutes harm. Such
practices would prevent cultural factors affecting the implementation of human
rights as it involves a party being harmed.

Loss of culture, as previously discussed, is in contrast often used by
authoritarian governments and regimes to actually violate human rights, with
women and children being most vulnerable. Saudi Arabia requires every female to
have a male legal guardian who gives her permission to access rights in which
she is already entitled to.8
A key example is the necessity for permission if the female wishes to travel, a
clear violation of article 13 of the Universal Declaration of Human Rights.9
Females must also have permission to get married, which violates article 16 of
the declaration, and permission to work, despite article 23 affirming ‘everyone
has the right to work and free choice of employment.’ For this reason, cultural
factors should not be allowed to determine which human rights are implemented
because as it stands, leaders could be prosecuted for their violations, whereas
if these cultures and traditions could affect the implementation of rights, then
individuals will lose protection of their basic needs and freedoms.

            The philosophy of Orientalism was
written in a book by Edward Said, who defined it as ‘providing a
rationalisation for European colonialism based on self-serving history in which
‘the West’ constructed ‘the East’ as extremely different and inferior, and
therefore in need of Western intervention or ‘rescue.”7
The definition provided by Said is used to argue, by many cultural
relativists,  that not allowing cultural
factors to determine which rights can be implemented is cultural imperialism.
This becomes apparent in instances such as the International Criminal Court
2002 and ad hoc post conflict tribunals constructed to ‘rescue’ countries like
Rwanda and Former Yugoslavia, as well as trialling war criminals for human
rights abuses. The International Criminal Court, for the first decade mainly
trialled African leaders, not Western leaders who had committed crimes which is
a clear illustration of the virtually patronising attitudes of the West, thus,
orientalism. Putting the traditionally western justice system into practice in
other countries can cause civil unrest. The preferred option would be to bring
about justice using their own cultural traditions and systems, however the
universal validity of human rights is restraining this from being foreseeable,
therefore cultural factors should be allowed to determine which rights are

             Although the principles of the
Universal Declaration of Human Rights can be traced back to Western history,
the drafting committee consisted of members from a variety of backgrounds and
cultures. The committee included representatives of France, Lebanon, China,
United States, and then broadened to include those of Chile, Australia, the
United Kingdom and the Soviet Union; the majority of which, are not Western
This brings into question the statement from philosopher Thomas Hobbes ‘there
is nothing in this world universal but names6’
when discussing how universal concepts can bear to exist, as including
representatives for a diverse range of cultures would ensure advocates for the
main values when deciding on the content of the draft, in which case it would
be fair and just to make them universal. This point negates the need for
cultural factors to further determine what rights should be implemented, as
they were drafted by a varied assembly of representatives who would have taken
culture into consideration at the time of drafting.

            The Declaration was inspired by
numerous principles resulting from Western History; namely the Magna Carter
1215 (granted by King John of England), the American Bill of Rights 1791 and
the French Revolution 1789. Subsequently, it can be argued that colonial bias
is entrenched in the declaration, thus refusing cultural factors to affect the
implementation of the rights would be Westernisation in one of its purest
forms. To impose these Western values on other countries allowing no discretion
for cultural factors conflicting with rights has resulted in loss of culture, and
suppression of indigenous people.4
 Human rights regularly fail to protect
indigenous people creating a ‘cultural genocide’, for instance Australia’s
‘Stolen Generation’ in which the Government systematically separated Aboriginal
and Torres Strait Islander children from their families as they did not believe
in a future for the indigenous peoples. This is likely to cause rebellion
against western ideals, especially human rights as they currently allow no room
for cultural diversity to that extent.

           Under Article 2 of the Universal
Declaration of Human Rights, it states ‘everyone is entitled to all the rights and
freedoms set forth in this declaration, without discrimination.’3
This statement is proof of the universal validity status the rights have,
therefore to allow culture to determine what rights should be implemented would
be contradicting the text. Such contradiction would be a mitigating factor for
those on trial for other breaches of human rights.

The United Nations defines human
rights as ‘universal legal guarantees protecting individuals and groups against
actions which interfere with fundamental freedoms and human dignity.1’
World War 2 served as the catalyst, manifesting human rights into the Universal
Declaration of Human Rights 1948, and the adoption of such by the United
Nations General Assembly the same year. The Declaration was drafted as ‘a
common standard of achievement for all peoples and nations.’2
The proclamation emphasises the universality of the rights regardless of
culture. This essay will provide a focus determining whether or not cultural
factors should be able to affect which rights are implemented, discussing
philosophies such as Mills harm principle, Said’s Orientalism and the origins
of rights to conclude that there is only a certain extent to which cultural
factors should affect the implementation of rights.