The government and its media supporters are currently at war with “wokeness.” An awareness of cultural sensitivities is regarded as “cultural relativism,” and it would seem that is to be disdained. But the simplistic attack ignores real problems with the imposition of laws on others with different understandings of the rules that should govern a society.
So familiar are we with acts of parliament and clickable terms and conditions that it can be difficult to realise how exceptional written laws are in the story of our species. For a good deal of human history, oral and customary laws were sufficient, and today many communities continue to be regulated by passed-down rules and word-of-mouth commands. Even in modern societies, a greater part of what we think of as law is based on what we have heard from others.
When the first written codes were compiled, they were merely records of laws already existing in a particular society. Only later did there come the radical notion that laws had effect because they were set out formally in writing—an innovation as significant in its way as the domestication of any beast.
And once laws are written down, codes do tend to become more ambitious in scope. Records of laws become solemn instruments, and solemn instruments become grand charters. And now there is even “international law” and a sense of “universal human rights.” In a short period of human history—just a few hundred years—we have developed the idea that there are written laws so great that they bind all nations and rulers.
This is a welcome development—at least in principle. That all human beings have certain fundamental rights that those with power must respect is a glory of post-Enlightenment thinking. For example, any person, wherever they are in the world, not only has a moral right not be tortured but also—in theory—a legal entitlement as well.
But against this liberal universalism are the subversive claims of cultural relativism. If every person should have equal legal protections, what happens when a community has very different conceptions of human dignity and autonomy? The conceit is that somebody outside the community knows better than the community itself. And while one may—rightly—say that such extraneous impositions are valid, they are impositions all the same.
When one looks at religious and cultural variations of property and contract law, legal universalism can soon seem on an especially shaky footing: think of the casual appropriation of lands and artefacts of other peoples under a flimsy cover of law. Here it is not only heady European Enlightenment values about the rights of mankind that are engaged but also more mundane, even sordid, concepts underpinning European colonialism and trade.
These western views on commerce and property do not have universal purchase. The relationship of certain aboriginal groups with their own land and its natural features does not fit easily into categories of property carried over from Europe’s somewhat peculiar history. Similarly, the idea of interest on debt is rejected by systems of commerce just as enduring and complex as that in the west, where it is regarded as a foundation of economic life.
What we have, then, is not a single, inherently superior system of law, but a number of competing legal systems. Some will be established by legal codes, some will be only recorded in writing, and some will not have any written trace: but all will be law, or at least will be sincerely regarded as law by someone involved.
In multicultural societies, such multiple systems co-exist in a single time and place, creating tensions. A cultural or religious practice may entail mutilation or manipulation of those without any choice or power, but the question of whether universal law can have force against it is now contested. For just as companies can agree to private arbitration, and contractual parties can agree for their respective rights to be created or extinguished, then it should presumably follow that a community should be able to regulate its own affairs?
The dilemmas here are deep and difficult. Neither simple western legal absolutism nor simple cultural relativism provide fully satisfactory answers. If persons are legally autonomous then they can agree as they wish—but what happens when such autonomous agreement leads to systemic discrimination and inequalities within a community which is, in some collective way, deemed to consent?
On what sound basis does one then pick and choose which practices are impermissible? How does one decide where there is an outside law which should take precedence, either at home—or in faraway lands of which you know little? This forces the old paradox of liberalism: if liberalism is imposed, is that imposition itself not illiberal?
There is no easy solution. But the starting point is to accept there are many forms of law—and that the western model is just one among others. This is not to deny that certain values are fundamental—but instead to realise that they are not necessarily universal, or indeed better, because they happen to be written down in grand declarations. The claims of liberal universalism need a more compelling basis than mere assertions in any charter.
