Do Human Rights Apply to China?

A Normative Analysis of Cultural Difference

I am pursuing a modest philosophical goal. I want to work out how we can talk about this issue in a way that does justice to two conflicting intuitions prevalent in Hong Kong: 1) that human rights clearly do apply to China and 2) the appeal to Chinese tradition in resisting emphasis on individual rights has some normative force. I characterize it as modest because it is intended mainly to give us a perspective on the problem of human rights in China, not to solve the puzzle. It will be of interest mainly those who share both intuitions.

I start with John Rawls' two principles of justice, first enunciated during the Cultural revolution in China. They now rank among the most familiar words of contemporary philosophy.

The first statement of the two principles reads as follows.

First: each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
Second: social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all.

The principles were not revolutionary, but, at the time he formulated them, thinking in a disciplined way about normative issues was. Before Rawls, the accepted philosophical view was that normative ethics was only a marginally respectable enterprise--more suitable for advice columnists than for serious philosophers. Rawls was revolutionary in part because he offered not only a substantive theory of justice, but a seemingly powerful new form of argument for normative theory--reflective equilibrium:

In searching for the most favored description of this situation we work from both ends. . . . . By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. It is an equilibrium because at last our principles and judgments coincide and it is reflective since we know to what principles our judgments conform and the premises of their derivation.

Rawls' argument form was compelling because the technique of reflective equilibrium coincided vaguely with the emerging post-positivist view of scientific reasoning. It undermined the view of science as "absolute empirical proof." The insight that reasoning in science and ethics were essentially similar ushered in a heyday of moral objectivism in metaethics. Rawls found a way to combine theory with data or facts for the theory to explain. We can reason in ethics in a way that is similar to the way we reason in science.

There is a definite if limited class of facts against which conjectured principles can be checked, namely, our considered judgments in reflective equilibrium.

Rawls argued that the two principles brought our considered judgments about liberty and equality into coherent harmony. He thus defended a theoretical perspective that we have come to know as "deontological individualism"--an heir of Kantian "respect for the individual" and Christian "worth of the individual soul." Rawls argued that utilitarianism failed similarly to harmonize our judgments. It was a form of reasoning more appropriate to individual prudential calculation than to a moral theory. It did not take the differences among individuals as seriously as our moral intuitions do.

First statement of the problem: intuitions and reflective equilibrium

The idea gripped me at the time that an idealized Chinese critic of injustice might share the "considered judgments" reflected in Rawls' second principle. The philosophical roots of Chinese "intuitions" about equality seem as strong as or stronger than those in the Western tradition -- a central point of Don Munro's analysis of the Chinese concept of person. Professor Munro argued that all the classical schools shared an assumption that humans have an equal moral potential. The principle of maximizing liberty, however, which for Rawls was "lexically prior" to the distributive principle, hardly figured in the rhetoric of political reform whether in traditional or in modern Maoist China.

Many Western scholars of China have called attention go these differences between the historically dominant Confucian communalism and Rawlsian individualism. We assume both are expressions of a broadly shared moral orientation. Rawlsian individualism draws on Greek, Judaeo-Christian and Kantian roots as Confucian tradition draws on its classical sources of Daoism, Legalism and Mohism. Theodore DeBary and Roger Ames, draw special attention to the historical context of the emergence of individualism. Other social changes accompanying the rise of industrial capitalism, science, the conflict of church and state and so forth, are all crucial to telling the story of the emergence of individualist moral values in Europe and America. Such historicist reflection on the question of human rights in China raises worries about our implicit ideal of objectivity in normative judgment. It suggests that while the value of equality in the distributive justice might be a plausible cultural universal, the priority of liberty could turn out to be a Western peculiarity.

Historicity and Objectivity

These worries about the historicity of Rawls' "moral facts" dovetail with an obvious temptation to the rulers and governments of Asian states. They can appeal to a respectable intellectual line of thought to condone their resistance to international pressure for human rights. The 1993 "Bangkok Declaration" exemplifies this response. I reproduce part of it here as an approximate model of what I want to call the Bangkok attitude or Bangkok objection to human rights.

8. Recognize that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds;

My initial proposal is to take a Bangkok-like objection at face value. It is a normative claim that draws on implications from comparative philosophy. The internal political debates in Hong Kong and in greater China reverberate with this practical, normative tone. The question here is whether we (speaking within the Hong Kong community) should adopt a system of basic liberties or rights. That question is the internal counterpart of my topic question: "Do human rights apply to China?" I suggest we can make progress in analyzing and evaluating the Bangkok objection to human rights if we treat the two questions as intimately related. One is formulated between cultures and one from within a culture.

The external question perplexes Westerners partly because it seems difficult to find a neutral way to formulate it. A "scholarly" sensitivity to formulations that suggest arrogant moral superiority inhibits reflective thinkers. The otherwise tempting answer to the question, "do human rights apply to China?" would be "Of course they do." The population of China is human. The fact that Chinese tradition did not or does not value liberty is irrelevant to the normative issue. It simply confuses epistemology and metaphysics. Moral objectivists should treat a culture's rejection of rights as scientists do the beliefs of flat-earth societies and we all do the practices of cannibals. That a group of people believes something fervently does not make it true. Simply put, people may have rights of which they are not aware. They may have rights they do not claim or do not believe they have. They may even have rights they could not justify using the community's forms of discourse.

That answer to a Bangkok attitude is both simple and theoretically sound. However, if we have felt any normative pull from the objection, it is obviously unsatisfying. It feels as if we have brushed the Bangkok objection off. The declaration demands a kind of respect for traditional moral attitudes that our dismissive analogy to cannibalism or flat-earth societies rules out. It suggests we have to give a higher normative status for conventional beliefs and practices than moral realism allows. The problem, as usual, is the coherence of the relativist appeal. It has to treat normative respect, like other normative attitudes, as being relative to some moral perspective. From our Rawlsian perspective, we appear to have little reason to resist the quick response.

If comparative philosophy has any significant role to play in answering these cross cultural questions, then an adequate comparative account should explain why an ostensibly correct answer is normatively inadequate in this specific cross-cultural context. Why do we sense that an otherwise philosophically sound answer has missed something of normative importance? Can we find a description of the situation that accounts for the appearance of a conflict of moral judgments?

One normative approach is to attack the Rawlsian theory itself--say from a communitarian perspective. Henry Rosemont exemplifies this comparative approach. He has argued that our "taste" for ethical individualism is not merely a cultural peculiarity; it is a cultural bias that is morally dubious. It rests, he thinks, on a seriously flawed conception of the individual--flawed because it is unrealistically abstract. Confucianism, he argues, has a more realistic conception of human nature--one that recognizes the inherent involvement of social relations in the characterizations of persons.

For the early Confucians there can be no me in isolation, to be considered abstractly: I am the totality of roles I live in relation to specific others. I do not play or perform these roles; I am these roles. When they have all been specified I have been defined uniquely, fully and altogether, with no remainder with which to piece together a free, autonomous self.

Other comparative scholars confine their discussion to formally descriptive, historicist claims about Chinese thought. They avoid formulating the repressed normative conclusion. Rosemont's approach has the advantage that it is explicitly normative and clearly targets the question: "Do (or should) human rights apply to China?" However, it does not help with the broader question. Is comparative philosophy relevant to this normative issue and if so, why?

The problem with the communitarian attack for my purposes is this. If it succeeds, then comparative philosophy will play no role in settling the normative issue. We will not have any new explanation of the relevance of different moral traditions. If the attack is sound, then it's sound whether Confucius took that position or not. If it succeeds then there are no human rights . . . period. It tells us nothing in particular about China or any difference in the status of rights there. Confucius' philosophy becomes irreverent and technically the Bangkok position is false. Conversely, if the criticism fails, we would simply revert to the Rawlsian conclusion "Chinese moral beliefs are wrong."

I propose, paradoxically, that we seek our statement of the relevance of comparative philosophy and the moral pull of the Bangkok objection within the Rawlsian perspective and in Rawlsian language.

  1. I suspect Rawls is right that his principles harmonize the intuitions of most Western liberals. (Technically, communitarians might disagree.) These warring intuitions arise in Rawlsian perspective when we reflect on Chinese ethical theory. It, so to speak, owes us a solution.
  2. Second, if the communitarian attack on Rawls does fail, my intuition is that the Bangkok attitude will continue to have normative pull.
  3. Reflective equilibrium already has helped us clarify the problem. If Chinese moral thinkers start from different intuitions, a reflective equilibrium might bring them to different conclusions. We should see what other resources the analysis can bring to deeper insights into the comparativist's puzzle.
  4. Rawls is the most frequent foil for traditionalist arguments. In the absence of some neutral "view from nowhere," showing that we can account for the normative force of the Bangkok attitude from within the "opposite" moral point of view may be the best we can do. We will have an agreed conclusion even if we reach it from different starting points.

Rawls' position, however, did come with the hint of ethical objectivism that underlies the earlier unsatisfying response. The Bangkok attitude, by contrast, strongly suggests ethical relativism. We may join them in being skeptical about the claim that metaphysically independent moral facts make our moral claims true the way physical facts make our physical theory true. Abandoning this still-live philosophical posture would give us some common ground. I do this here for the sake of argument. It may be possible to pursue the line of argument I am about to give even if there are metaphysically straightforward, independent moral facts but I will not attempt to do so here.

I propose this to open ourselves to the focus on social traditions inherent in the Bangkok view. We represent morality as the standards that justify our society's shared evaluations--our praising, blaming, excusing, feeling guilty or angry and so on. This is not to confuse them with idealized descriptions of actual social behavior or actual moral beliefs. We characterize neither Chinese nor our own morality by their respective behaviors nor by the claims of its current political rulers nor even by the moral beliefs of the broad population. We can maintain the distinction between philosophy and sociology and still formulate intelligibly the claim that different cultures may have a different morality.

Morality is the idealized standards governing evaluation of behavior. We accept the hypothesis that these standards are the evolutionary outcome of normative discussion within moral communities. Such evaluations, we will acknowledge, may be more alike within any moral community than across different ones. We reason with our neighbors about ways (daos) to evaluate, guide and harmonize our actions. We can here follow Gibbard and speak of "dialectical equilibrium" in the place of Rawls' "reflective equilibrium." It is still reflective, but we carry on moral reflection in groups and naturally adjust our attitudes to harmonize with those of others in our community. The purpose of moral discussion and communication is the harmonization of attitudes that facilitates social cooperation.

This is, admittedly, a perspective shift in Western moral reflection that brings it closer to Chinese moral framework. We can illustrate the traditional difference in perspective at the separate "originating moments" of ethical reflection. Socrates doubted traditional attitudes (hearsay, popular beliefs) and formulates the task of ethics as "know thyself." Given my community's possibly wrong attitudes, what should I do really? Mozi, starting with the same skeptical insight about social attitudes, asks instead, how should we change society's moral discourse. Socrates' view can generalize to "what should we do" but Mozi's still has the more explicit recognition that philosophical discourse about daos asks how we should modify the community's guiding discourse. He reflects on moral issues to engineer changes in social attitudes while Socrates reflects to free himself from social attitudes.

This difference is mainly in emphasis. The two intellectual projects are closely linked. Mozi surely has to decide independently of existing attitudes what the attitudes ought to be. Socrates assumes that the moral truth would be true for everyone so, ideally, they should also reason as he does.

Traditionally Western moral theory has resisted the social emphasis because it invites the threat of relativism and that threat undermines the implicit goal of eventual rational agreement. We can, on the other hand, locate part of our sense of morality's objectivity within this social conception. Morality is not simply how I feel, but how the standards and a language of evaluation shared by my linguistic-moral community guide my feeling. We expect the norms guiding moral intuitions to gather wide support and yield agreement in attitudes and reactions. We characterize as 'moral' only those normative reactions that we expect others in our community to take as seriously regulative.

This means we still distinguish morality from conventional mores. Morality retains its reflective character. Moral reasoners in a community do not simply agree on evaluative attitudes. They also discuss and share second-level standards for justifying those attitudes and on deeper reasons for those standards and so forth. Our social standards "supervene" on the facts so moral judgments are world-guided and constant. Still we give up the hint of straightforward moral facts in our earlier "abrupt" reply. The role of moral discourse is guiding and coordinating our evaluative attitudes and reactions, not merely expressing attitudes or describing normative facts.

Confucius may be a borderline case, but from Mozi on, Chinese moral reasoning, like Western reasoning, accepts that morality applies objectively to all people whether or not they know or understand it. The standards of justification, are themselves social, but, again, neither Western nor Chinese philosophy justifies second-level norms simply on the ground that society uses them. We understand right and wrong as depending on justified action, not by how people actually act. So this conception of morality should neither abandon serious normative reasoning nor substitute sociology or history for reflective normative thinking. It does accept that "reasonable" as applied to moral attitudes, is a public, shared concept which may differ in different moral communities. Provisionally, we can allow that those differences reflect the effects of history and tradition.

One of Rosemont's formulations now links up with our social discourse conception of the development of moral attitudes. He observes that Western arguments for rights, which seem compelling to Western reasoners, would not have convinced Confucius. Ames suggests that the very concept of "rights" is unintelligible to someone within a genuinely Chinese moral-conceptual framework. Would any argument for human rights "work" internally? Could we make conceptual sense of and justify to someone culturally Chinese (given their first-level intuitions and second-level norms) a political morality that maximizes equal liberty and freedom from state coercion? Could we imagine that conclusion emerging from discussion within a Chinese community of moral reasoners given their initial shared attitudes, first and second level norms of judgment?

This question has normative content because we accept a higher-level epistemic norm--reflective equilibrium. People should make moral judgments in accord with the standards of reasoning that best justify their existing, considered moral judgments. A Westerner's own commitment to this version of rational autonomy requires her to respect different moral points of view as long as they are seriously and sincerely reflective. She still has room to say the other community is wrong. She must, however, grant they have reasoned rightly by their own lights and further grant that so reasoning was precisely what they ought to do. By our lights, they would get the wrong answer, but our moral epistemology should hold them blameless. Western reasoners should conclude that Chinese reflective moral reasoners would be wrong internally to simply accept Western standards.

So we can appreciate and identify the normative force of the Bangkok attitude while still judging that moral human rights apply in China. The normative force falls in the realm of excuses. We may simultaneously judge that something is objectively morally wrong yet subjectively right. What the Bangkok attitude invites us to notice is that, guided by their best lights and reasons, the Chinese moral community has reached a different dialectical equilibrium from the West. We can simultaneously say subjectively it is right while objectively it is wrong. They make a mistake but reason correctly and responsibly--just as they should.

As we saw, the mere fact that someone else disagrees had little relevance to the truth of the disputed claim. It is not mere disagreement that justifies our normative respect, but our acknowledgment that it is reflective, wise, cultivated disagreement. A reflective community who disagrees might still be wrong, but when we encounter such disagreement, it does and should give us pause. That pause is the mark of normative respect. Comparative philosophy grounds that respect by exhibiting it as a rich tradition that is not merely different, but reflective and self-critical.

The relativism of this result is not theoretically problematic. It is the familiar result of a single principle producing different judgments in different conditions. A common, shared norm of warrant produces, when applied according to the varying epistemic norms of different cultures, different moral attitudes. It would be unacceptable from within a Rawlsian moral perspective to regard Chinese moral reasoning as deficient simply because it reaches a different conclusion from ours. It demands of Rawlsian reasoners a plausible story explaining why the disagreement is there.

Locating the normative force in the realm of excuses (subjective epistemic rightness) captures some of our sense that Bangkok claims are relevant while still regarding them as non-conclusive on the substance. The remaining problem for comparative philosophy, however, is that this line of respect puts a burden on the apologists alleging that rights do not apply to China. It is not enough to show that the actual attitudes are different. Apologetic comparativists need to show that the alleged judgment is valid--warranted by the higher norms of Chinese reasoning. We should demonstrate that it is the outcome of a dialectical equilibrium within the moral community--not merely a conclusion of which political authorities approve. Lee Kwan Yiu cannot carry on his debate with Hillary Clinton and Chris Patten. He needs to prove his claims to the likes of Wei Jingsheng, Fang Lizhi, Wang Dan, Christine Loh and Gladys Li.

I will not survey Chinese moral philosophy at any great depth here. We have already noted one important point. It is not enough for this conception of subjective rightness merely to describe what moral attitudes people actually do have. For our purposes, any survey should show what attitudes are best warranted from that moral perspective. It is therefore strictly irrelevant whether China actually had a tradition of human rights prior to the Qing dynasty.

Even a consensus of actual moral judgments of the existing community is irrelevant. We can see this if we imagine it as a response to a Chinese rights activist. Her goal is to convince her community to exchange its historically basic institutions in the direction of a democratic rule of law. It would be simply obtuse to argue against her that the community is not already convinced. Finally, we are engaging in sociological predictions about what rights will survive in Hong Kong or eventually be adopted in China. Our question is a practical, ethical one-what should we (the Hong Kong community) now do?

Common academic apologists for the Bangkok attitude, usually carefully limit their scope to Confucianism, and in particular, to classical Confucianism. For a normative assertion of subjective rightness, however, those interpretive analyses, even if sound, would be irrelevant. The practical question arises today in Hong Kong, not two-thousand years ago in LoYang or Chang An. "Chinese tradition" is a rich concept of which Confucianism is only a part--however important a part. Hong Kong now has a tradition of abiding by the rule of law that is about as old as the abolition of slavery in America. It may suit Chinese authoritarians to accuse dissidents of being tainted by Western ideas, but it is a red herring in the internal debate.

By itself, therefore, Rosemont's observation that we could not convince Confucius of human rights has exactly the normative status as does that the observation that we could not persuade the Pope to accept abortion. It does nothing to show the judgment is an ideally coherent product of the higher level norms of Chinese reasoning. If we put Confucius on a sacred pedestal as a sage (religious authority) and ignore the objections made by Mohists, Daoists, and Legalists, we would undermine the basis for the respect we justified above. Other members of the Chinese moral community made those objections and all accepted that they were legitimate (whether or not answerable) objections. It is not enough for either Sinologists or Chinese authorities to characterize them as "foreign."

Don Munro drew our attention to the shared Chinese assumption of essential equality of humans. Dworkin argues that the core of Rawls' argument for liberty is an assumption that we should show people equal concern and respect. It would be hard to show that a tradition with such a view about human equality could not get a justification of equal liberty off the ground. The normative conclusion that a wide scope of decision and action should be free from governmental control is one that different Chinese thinkers reached repeatedly throughout their history.

I will not attempt a more detailed analysis of the philosophical tradition here. I tend (more than most comparative scholars) to find the justification of Confucian piety to be weak by indigenous Chinese philosophical grounds. The analogy with Christianity in the West seems apt. Both are the single largest religion and both have influenced the moral attitudes of almost everyone in their respective communities, but philosophers would still find ample grounds for skepticism. A complete account would probably support the idea that reasonable moral reflection from the assumptions and norms of a Chinese community would lead to some different results, but it probably would not show that Chinese should fail to value a system of equal liberty. That result, of course, should surprise no one since reflective and thoughtful Chinese moral thinkers have advocated greater liberty-going all the way back to Zhuangzi.

One correct way to show respect for Chinese tradition of this type would be to give greater weight to the integrity of the discussion internal to the Chinese community. We should not contribute to short-circuiting this internal debate by confusing it with a China-West debate or by treating human rights as some kind of international demand to which the Chinese community must bow because of the superior status of an international consensus. We hand the rulers an irrelevant, but effective way to impugn the integrity of their internal critics. Politically, in urging that these are either international standards to which Chinese must conform or parochial Western attitudes that do not fit China, we give intellectual cover to the authoritarian fallacy within the internal discourse.

Another way of showing this respect, however, appears to pull in the opposite direction. To credit another community with competent moral authority is to justify including them within the circle of moral discourse. This means openly addressing our judgments, criticisms, attitudes and arguments to them. If we think the members of the other community are competent moral judges capable of reflective adjustment of moral attitudes, we should engage them in moral discourse as we do each other. We would naturally should seek to enlarge our community of moral agreement. To shield them or exclude them from the normal assumptions of our moral discourse would signal a lack of respect for their competence as moral judges and reasoners.

The balance for this tension between lies in being clear about the tone of our open discourse. Clearly a lecturing tone is wrong but a direct, even combative, critical tone may show more respect than apologetics. We not only openly expressing our disagreement but also give and expect reasons. We should address the reasons, and seek a common ground of attitudes. Ironically, taking refuge in a communitarian's or comparativist's attitude of accepting differences as warranted simply because the community holds them suggests we do not credit the other community with reflective normative authority. An excessively protective or paternalistic valuing of Chinese culture suggests some insecurity that it cannot interact on an equal footing with full-blown robust normative discourse.

I worry when comparative philosophy tends toward this condescension. When rational objections to a Chinese philosophical or moral view are offered, it responds too often with an attack on the narrowness or prejudice of the questioner. It avoids the reasons given Western philosophers give for their views and fails to produce similarly strong reasons for the rival view they defend. It tends too easily to become anti-Western in its own attitudes and celebrate irrationally the "quaintness" of Chinese thought. We should be doing more to uncover the rationality and coherence of Chinese thought not merely to use it as a "relativisitic" stick with which to "beat" Western liberal individualism.

Western apologists sometimes mimic the biologist arguing for preserving species or the anthropologist arguing for preserving unique cultures. Ethically such an attitude is paternalistic in a way inconsistent with our justification for giving respect to the Bangkok attitude. There may be reasons for preserving all the Neolithic cultures we discover, but they would be incompatible with a recognition of them as fully equal reflective communities.

Another consequence of the normative respect warranted by Bangkok considerations explains why we should avoid this paternalistic preservationist attitude. Widening our moral community means engaging in moral discourse. We risk the possibility the widening may come from our "extinction." The knowledge that a fully reflective moral community has a different moral structure should upset our own reflective equilibrium of normative attitudes. Similarly, given the Chinese conception of morality as "natural intuitions," acknowledging a rich, reflective but divergent Western morality should equally upset their moral equilibrium. The consequence of respect should first be that each reflective tradition would have a lower confidence in their inherited attitudes. We have to add to our moral beliefs this one -- a fully competent reflective moral community has reached a different dialectical equilibrium. We now have to bring that belief into harmony with our other moral beliefs and our faith in the method of reflective equilibrium.

This result emerges from a distinguishing feature of moral reasoning. We reach our moral views in discourse governed by appeal to higher norms and reasons. So we are likely to (and in both cultures do) operate under a "one right answer" assumption. That is, communities with highly developed second and third level discursive appeals and supports for moral attitudes are likely to regard them as adequate for objectively settling moral issues. Neither treats the answers to moral questions as relativistic historical prejudices.

Both are likely, therefore, to be objectivists about moral inquiry. Both accept the value and importance of moral debate. Both assume such open discussion has a point-tends to the improvement of the community's moral discourse (dao). Prima facie, both would be inclined to suppose that if a moral position could capture the sound normative insights of both, it would have a strong claim to be a more correct morality than either taken alone. This explains the perennial mutual interest in a still unrealized synthesis of East and West.

This synthesis will not be the intellectual product of comparative philosophers, but of the two communities interacting. Beyond mere coherence, any synthesis must work in practice and attract wide community agreement. Comparative philosophy can and should supply the appreciation of the coherence and workability of the other viewpoint to its home culture. Ordinary normative discourse and debate will test the coherence of any emerging synthesis.