GAO Lijie*

 

Abstract: The key difficulties in human rights theory and practice are as follows: On the one hand, the multiple human rights concepts of fait accompli are bound to conflict, but it is necessary to resort to some identity of human rights concepts in the real political life; on the other hand, the thought of human rights proof with moral judgment at the core cannot provide such identity, and people have no agreement on the premise and result of moral proof. The way out of the dilemma lies in returning to the starting point and the emotional function of human rights. The human rights narrative thinking with emotional appreciation at the core is helpful to enhance the understanding and tolerance among multiple human rights concepts and to dispel the universality versus relativity of human rights. Therefore, the transformation of thinking from proof to narration, which bases the concept of human rights on intercession rather than reasoning, provides resilient reconciliation for the conflict of human rights concepts.

 

Keywords: human rights · narrative · discourse · interpretation

 

This is a bad time for human rights because the original purpose of human rights has been gradually undermined by Western governments, which have turned human rights into a means for enforcing and expanding Western power.¹ The voice of human rights is monopolized by a few countries, and human rights ideas are subject to arbitrary interpretation and abuse — sometimes as a weapon of political interference, sometimes as an excuse not to get involved when they should. On a personal level, most human beings do still not enjoy human rights, which are still the privilege of relatively few.²

 

But it is also a good time for human rights, although some say that there are still blatant kidnappings, arbitrary arrests and torture, and the suppression of individual freedoms, including in the United States and the United Kingdom and other developed countries, human rights have been asserted more broadly in the field of international affairs.³ The strong moral appeal of the concept of human rights and the vision of a better life expressed by the concept of human rights have made it an important part of the political discourse since World War II.

 

It can be said that the frequent emergence of human rights concepts and the growing prominence of the discourse on human rights has heralded the arrival of the era of human rights. However, human rights have always been in state of tension. Human rights scholar Michael Goodhart analyzes the difficulties in the field of human rights and believes that the reason for the mixed praise of human rights in practice and theory is that although human rights have become a powerful normative discourse in global politics, there is little consensus on their foundation or legitimacy.⁴ In other words, the core of the problem is the inability of people to find an effective identity in the conflict of multiple human rights ideas or the lack of effective ways to reach an accommodation. The problems are manifested as the unclear boundary between human rights and sovereignty, the unclear conflict between different human rights, the inconsistent standards of human rights, the different opinions on the nature of human rights, and so on. The author believes that the crux lies in the moral proof, that is, seeking identity through the search for a unified moral foundation for human rights. This kind of thinking only transforms the multi-dimensional conflict of human rights into a multi-moral or multi-value conflict, which cannot solve the problem. A more appropriate idea is to replace the proof of “reason” with the narrative of “intercession,” and replace the “rigid” identity with a “flexible” identity.

 

 

Goodhart argues that human rights are expected to play a normative role, yet people cannot agree on the norms themselves. On the one hand, people expect the functional universalism of human rights. On the other hand, they advocate its relativism in content. It could be argued that the continuing acrimony between universalism and relativism demonstrates the importance of this issue.⁵

 

Since the development of human rights theory, there are roughly four types of arguments on the identity of the human rights concept. The first is to base human rights on ontological metaphysics. At its core is the self-evident universality endowed with philosophical anthropology. It was born in Europe under the background of the Reformation and Renaissance and during the historical transition period of the two Greek civilizations. In Europe at that time, the only alternative left after the retreat of the legitimacy of religion and the state was the “human” itself. Human has self-contained value and does not need any other source of justification. Human values are further equated with freedom and rationality. This reasoning process regards particular philosophical anthropology as a self-evident universal idea, so its explanatory power is not sufficient to cover the whole history of civilization and the whole world.

 

The second type of view is to base the identity of the human rights concept on formal legitimacy. Habermas believes that subjective legitimacy based on “self” will inevitably be rejected by others. Subjects are plural and pluralistic. Moral questions are completely incompatible with egocentric theories, and there is no internal connection between reason and will.⁶ Any monologue identity always implies violence. So, Habermas put forward communication ethics as a way of rejecting monologue.⁷ Its essence is a set of formal rules that are insensitive to the subject but must be followed by any communication and negotiation. He thinks that anyone who uses natural language to reach an understanding of something in the world with his interlocutor must adopt an attitude of action and must commit to certain premises.⁸ Participants in a conversation must agree on the rules of linguistic validity, just as participants in chess must master the rules of the game. Chess games can vary, but the rules of the game must be the same. Therefore, in Habermas’s view, the essence of human rights lies in the formal condition that the process of deliberative opinion formation and will formation can be institutionalized by law.⁹ The identity of the concept of human rights lies in the basic preconditions to guarantee the negotiation of specific rights. This is the formal justification of human rights.

 

Yet the most obvious problem with Habermas’s formal strategy is that a pure form does not exist. Would one agree that human rights concepts have a specific set of “formal conditions”? Habermas does not address this issue. Some people think that the core of formal conditions is the equality of political status of the subject of negotiation. Some argue that the key is economic equality; others argue that human rights as they were previously understood are civil rights, not human rights,¹⁰ so the “formal condition” of human rights is the right to identity. In other words, the “formal condition” of human rights is difficult to distinguish from its “substance.”

 

The third type of perspective is to base the identity of human rights ideas on usefulness. Joseph Raz argues that the universality of human rights is necessary and possible.¹¹ However, the key point is that the identity of human rights should be a practical issue, which is judged by pragmatism, rather than some kind of moral metaphysics. John Rawls put it more clearly. While rejecting the human rights identity of moral metaphysics, he proposed that basic human rights express the minimum standard of an organized political system for all people.¹²

 

Here, human rights are an instrument to some other end. This view doesn’t solve the problem either. First of all, as a tool to pursue a certain purpose or good, the identity of human rights depends on a common purpose or common good. So the problem comes back to the problem of sorting values. Secondly, even if the views on the goal or good are consistent, it does not necessarily follow that the concept of human rights as a tool must have a consistent identity.

 

The fourth type of view is to base the identity of human rights concepts on specific activities such as power games and phronesis. The essence of this view is to use the consequences of human rights practices to serve as the basis for the identity of human rights ideas. Some scholars argue that since it is difficult to prove the legitimacy of human rights theoretically, it may be better to focus on practice and reality because the main tension of human rights is that when it is impossible to prove their legitimacy, they are precisely of political meaning.¹³ Onuma Yasuaki, a Japanese scholar, believes that the universalist view of human rights and the relativism view of human rights… are impossible to have a uniform solution, so we can only find a tentative solution from a practical and pragmatic perspective and gradually explore through criticism and feedback on the solution.¹⁴ Griffin also agrees that we do not have a fully established meaning for the concept of human rights. Law can make a greater contribution to this certainty, for it is particularly good at deriving a more general understanding of key issues from the study of specific cases¹⁵.

 

This view is more consistent with the “practical turn” of philosophy in recent years and represents a relatively new approach. To some extent, there is a tradition of preference for speculation and theory in the West, but in contrast, from Aristotle to Marx, the empirical approach has stronger explanatory power on many issues. When the results are displayed in front of people, it is more persuasive than the theory. However, the question is exactly how will the concept of human rights with identity on specific issues rise from an individual “practical wisdom” to a universal right applicable to general issues. In terms of human rights function, it is necessary to conclude a set of human rights norms. To “let theory die for us”¹⁶ is better than to hit the wall again and again in real life. Moreover, universalizing morality and norms is not only a need but also a necessity.¹⁷ However, abstracting the general understanding and identification of human rights from the “conflict between good and good” and “conflict between rights and rights” is precisely the key problem to be solved urgently. Both Onuma and Griffin see the benefits of extricating universal human rights norms from the results of human rights practices, but neither further discusses how this step can be accomplished.

 

The four ideas above of seeking the identity of the human rights concept still fail to jump out of the contradiction between universality and pluralism. They all see the opposite nature of the contradiction and intend to take some middle way, but the result is often reversed to one aspect of the contradiction.

 

The reason why the above schemes cannot effectively get rid of this outdated contradiction is that the understanding of human rights identity is too narrow. The identity as they understand is the identity that is proven by “reasoning.” The aim is to provide exclusive proof of a certain idea of human rights, to judge whether it is right or wrong. On the one hand, because we lack the moral authority that can be accepted by all — God, reason, and “human” is no longer self-evident — then deductive proof must fail. On the other hand, due to the widespread existence of human rights conflicts, it is also not feasible to prove the normative human rights concept with high probability through induction.

 

 

Understandably, people’s persistent pursuit of human rights identity is to reasonably resolve the conflict of human rights concepts. It is generally believed that only by reaching a consensus on a certain concept of human rights can the realistic problem of human rights conflict be “the only correct solution,” human rights can have the “final power of judgment,” and human rights discourse can have a practical effect. Only when a certain concept of human rights with identity has the attribute of truth can human rights manifest its lofty status and universal value and assume the responsibility 

of settling disputes.

 

But the philosophy of science and hermeneutics since the 20th century have redefined truth: This endless process of contemporary research and past understanding can be called truth… But the field revealed by various truths cannot.¹⁸ Therefore, the identity of human rights does not mean that human rights have some kind of universal truth. On the contrary, the pluralism of human rights does not necessarily run counter to the universal truth. Both universality and pluralism can be interpreted at other levels. Since several paths for proof have come to a dead end in the dilemma of “pluralistic universality,” it may be useful to reconsider the problem differently.

 

Eleanor Roosevelt liked to say that no document expressing ideas had any weight unless people knew them, understood them, and needed them in real life¹⁹, Rousseau emphasized that humanity must be touched by the heart, not just printed on books²⁰. Without the value community behind the legal documents and the understandable narrative of value identification, the legal documents themselves are just waste paper. Only by guiding the imagination of common life experiences through narrative, and forming identification with common experiences shared in history and reality²¹ can social community and shared value be constructed. Thus, in the 18th century, the Declaration of Independence and the Declaration of the Rights of Man were not universally binding as legal, rather than literary, texts. However, Robinson Crusoe, Rama’s Nephew, and Gulliver’s Travels universally resonated as Enlightenment literature. These texts also highlight the value of human nature and have enlightenment significance, but they are not consistent in effectiveness.

 

In the 19th century, social contradictions broke out, and the difference between the rich and the poor was huge. People began to reflect on the problem of human alienation. However, The Communist Manifesto as a political platform is not universal and normative. However, works reflecting social reality and human nature such as Oliver Twist and Walden can generally arouse people’s emotions and prompt reflection. From the 20th century to today, the world situation has changed, and multiple cultures have emerged on the world stage. The implementation of any normative document will encounter compromises and reservations making sporadic achievements, and it is difficult to achieve a universal code of conduct. On the other hand, Hollywood movies favored by the United States and entertainment products of Korean taste are popular all over the world, while aesthetic interests full of oriental intention such as Red Sorghum, Snow Country: Ancient Capital of Thousand Cranes are recognized by the world. It can be seen that even though the conceptual connotation is similar, the universal effect of normative texts does not correspond to that of literary works.

 

The reason for this difference is that the universal validity of literary and artistic works is not intended to provide some universally justified moral standard. Universal moral standards are exclusive because if they are not unique and there is no superior standard to determine which one should be adopted, then there is no standard. As a result, moral standards have very limited flexibility. On the contrary, the universal effectiveness of literary and artistic works is rooted not in the narrative ethics of the text, but its emotional commonality and the “understanding” of it.

 

Take the cultural clash between the United States and Japan to see how a general understanding of the amoral sense is possible. With 2,000 years of Christian tradition, Westerners have very different standards of conduct than the Japanese. On the question of whether suicide violates human rights, for example, Americans with a Christian background would not consider the Japanese standard universal, or vice versa. There is no identity in the question of whether suicide can be a human right. Americans of religious background may deny interpreting the human right to life as one that includes the right to suicide, while Japanese who do not believe in Christianity will not agree to take Christian morality as the standard of human rights regulation, so they think that suicide culture violates human rights. However, while the two nations may disagree on whether suicide is morally desirable and is included in the basic concept of human rights, this fact does not prevent them from understanding Japanese samurai culture, Osamu Dazai, and the beauty of life falling in Kawabata Yasunari’s works on the level of reading and appreciating, as well as further generating a kind of emotional resonance.

 

People with a particular view of human rights may disagree with the legalization of homosexuality, oppose abortion, or be uncomfortable with the legal possession of guns by others. One may not even be able to imagine why people can legally dispose of their bodies, including euthanasia and abortion, or why gay marriage is legally recognized in some areas, even as a basic human right. But none of such things prevents people from understanding the view of human rights that they reject as the claim of another kind of person. They can understand that it comes from the constant demands of other people for a say over their lives. The process is full of moving plots, unremitting efforts, and long explorations, even if they do not agree with the so-called picture of the good life.

 

This way of thinking, namely, taking emotional commonality as the source of human rights identity, gives up the justification of the human rights concept and considers how the human rights concept is understood and recognized instead. This way of questioning emphasizes that a certain pluralistic conception of human rights precedes the use of a human rights discourse. The process of forming a human rights discourse and human rights concept is a process of understanding. If human rights identity is based on understanding and emotional resonance, there is no need to discuss whether an abstract right is justified or universal. We only need to discuss where the rights come from, what the context is, and what kind of problems are to be solved. That is to say, the human rights identity, which aims at understanding and emotional commonality, does not examine the value basis of the human rights list and justifies it. It’s about putting it into context and understanding it. The object of understanding is not an abstract category, but a flesh-and-blood concrete environment, which is the recurrence of actions in a specific time and space. And this recurrence, this “imitation of action”²² is what we call the plot. Narrating a story, that is, narrative integrates scattered plots into a complete story with a structure of origin, transition and combination, antecedent cause and effect content.²³ Thus, the understanding of human rights, the emotional commonality of human rights, is reached through narrative, through “intercession.”

 

 

Some scholars believe that we are now in an era of “narrative turn” because narratives grasp facts and experience in a way that statistics, description, generalization, and reasoning through abstract concepts, and other modes of interpretation and analysis cannot.²⁴ The reason is that moral reasoning must be based on solid moral judgment, but moral judgment is at the moment stubborn and pious at the individual level and irreconcilable between people. On the contrary, literature encourages suspicion of habitual piety and forces people into often painful confrontations with their thoughts and goals… Literature punctures the schemes of self-protection, forcing us to observe and perceive many things that may be difficult to face.²⁵ Therefore, based on the narrative, the public conflict has the possibility of being flexibly resolved.

 

On this understanding, the universality of human rights does not come from some random moral dogma. It comes from the immensity of the French Revolution and the American Revolution, from the Universal Declaration of Human Rights, the International Convention on Human Rights, and the Vienna Declaration of Human Rights, from Auschwitz and Nanjing Massacre in museums and documentaries, and from the racial and gender discrimination reflected in literature… The universal emotional resonance generated by these human rights events comes from people’s telling and understanding of these specific events.

 

The human rights narratives approach connects successfully solved human rights conflicts, widely recognized international treaty declarations, typical cases with profound influence, and traditional stories passed down from generation to generation as events and plots. Specifically, the emotional commonality of the narrative needs to be developed at the following levels.

 

The first is the diversity of human rights narrators and narrative perspectives. Narrative discourse is not philosophical discourse, scientific discourse, or logical discourse. The narratologist Prince pointed out that The Three Musketeers, Spy, or History of the Peloponnesian War fit our definition of narrative, and they are generally considered narratives. On the contrary, neither Language, Truth and Logic nor Tractatus Logico-Philosophicus fits our definition, and they would not be considered narratives.²⁶ From this comparison, it can be seen that the characteristics of narrative discourse lie in the diversity and three-dimensional character of its expression methods. Philosophical works (excluding the dialogical philosophical works of Plato, Nietzsche, etc.), natural or social science theses, chronicles, and other historical texts, and activities such as topic argumentation, weather forecasts, debates, and commentaries, all use language that is not narrative. The reason is that the function of these words is to express facts and reach a conclusion. And the argument of a great deal of length is to support its conclusion, in other words, the argument is contained in the conclusion. Therefore, the expression of this discourse is planar. From premise to proof to conclusion, they contain each other, forming a closed-meaning entity. Narrative discourse, however, is not closed; it is full of tension. It is the narrative of at least two real or fictional practices and states in a time series, while neither presupposes or contains the other.²⁷ Narrative discourse has a variety of perspectives, and a narrative may include the narrative of the author, the narrative of the narrator, the narrative of various roles, and other perspectives. In this sense, different from thesis discourse and commentary discourse, the function of narrative discourse is not to demonstrate opinions linearly, but to provide readers with a multi-dimensional “field,” so that readers can combine their own “vision” to form a variety of explanations about the story.

 

If human rights discourse is to meet the requirements of narrative, it must use a variety of narrative means to connect a variety of different plots to form an open expression of meaning. This is an effective way to promote understanding and remove the tension between different opinions. Zhang Pengchun pointed out when participating in the formulation of the Universal Declaration of Human Rights that the Declaration should be sufficiently ambiguous to enable each culture to complement the document with its own philosophical basis for human rights.²⁸ The discourse of deductive reasoning can provide normative advice, but cannot provide the ambiguity of literary language.

 

The legitimacy of the concept of human rights cannot come from the arguments of a certain code or a certain school of theory, which paints an unquestionable picture. Human rights discourse is elaborated only through an omniscient perspective. But if people with different backgrounds disagree with this single dimension, the argument for the foundation of human rights fails.

 

Narratives of human rights from multiple perspectives may include “witness”, “participant”, “practitioner”, “beneficiary”, “victim” and even “opponent”, and may also include the grand state human rights narratives, national human rights narratives, female human rights narratives, or smaller narratives about specific cases and specific policies and regulations, and so on. The narrative ethics expressed by the narrative is constituted by the combined force of multiple perspectives. Each of these perspectives plays a role in the narrative. Even if it does not agree with narrative ethics, it does not prevent readers from starting from the perspective that they can understand. Moreover, its foundation is not intended to make readers identify with a specific human rights ethic. It is due to the existence of multiple perspectives that value conflicts are possible and human rights stories are possible. Everything in the story depends on tension and relief,²⁹ and it is precisely the conflict of perspectives and values that makes the dramatic conflict in the story possible.

 

The second is the rhetorical approach to expression. Realists and nihilists regard human rights concepts and human rights language only as rhetoric to meet some unspecified purpose. But efforts to establish a foundation for human rights need not reject rhetoric. The purpose of the foundation is to understand, and understanding should focus on the relationship between the narrator, the narrative content, and the narrated. In this sense, a narrative for understanding is necessarily rhetorical, for rhetoric is concerned with precisely all three points of a rhetorical triangle, namely, the role of the author, the text, and the reader in the process of making sense of the narrative.³⁰ Thus, rhetoric is a technique by which the storyteller communicates with the reader³¹.

 

Unlike chronicles, journals, and logical proofs, stories have continuity in meaning but do not have continuity and completeness. Scientific journals must list all the events in the time chain and spatial transfer in great detail according to the chronological order, while logical arguments should have the premise of size and conclusion consequences. Each link in the chain of arguments is equally important, so its meaning is presented linearly and uniformly. Stories are different. Through the rhetoric of expression, the meaning of the story is presented in a nonlinear and three-dimensional way. For example, the content of the story can be withheld to form “white space” in meaning. There is always a trade-off in the telling of the story, either detailed or brief. It always presents the most engaging and dramatic content, unlike a paper that must cover all aspects. Experienced narrators also deliberately hide important content to form “foreshadowing” or “suspense”. Readers are allowed to find it by themselves, so as to obtain extreme aesthetic pleasure such as “curiosity” and “surprise”.

 

The novel, I Killed Him, by Japanese mystery novelist Keigo Higashino, for example, does not even identify the murderer. In this way, the reader cannot obtain an accurate or inaccurate description of the object from the text, so he has to construct an object by himself, based on the world he is familiar with, which is evoked by the text³². Also, story time and space can be rearranged rhetorically. The rhetorical devices of “time rearrangement” such as flashback, interlude, and pre-statement are commonly used in novels and movies. At the very beginning, the narrator places the most powerful plot in front of the reader/audience, attracting them to think about the characters, so as to generate stronger expectations for the whole story. Along with the break of time, the break of space is also common in narratives, such as director Ning Hao’s “Crazy” series of movies. Through the continuous transformation of several narrative spaces, the film makes its viewers full of imagination about the encounter in several spaces.

 

Accordingly, considering the purpose of understanding, human rights narratives must be rhetoricalized. “Human rights legislation” is a typical linearized means of meaning presentation. From legal norms to specific facts to trial results, from case filing to court debate to sentencing, the law follows a strict system of formal logic. However, it has been shown above that the linear single structure is not conducive to the construction of human rights foundations for understanding. Amartya Sen proposed that the legalization of human rights should be supplemented by many forms such as recognition, publicity, and observation under public rationality³³. It is to see the problem of legalization. In his view, the justification of human rights lies in the general recognition of open and accessible public rationality. But the legalization of human rights does not promote this recognition, because its linear form and relatively closed system are not well compatible with people in different situations. But what Sen fails to see is that there are more than just a few ways in which public reasoning can be formed. The problem is that he also looks at the foundation of human rights from the perspective of proof, so he cannot see that the rhetoric of human rights can better bridge the contradiction between the universal and the relative.

 

The third is the emplotment of human rights events. In addition to the diversification of human rights perspectives, the emplotment of human rights events is also one of the core issues of narrativization. Paul Ricoeur even believed that the narrative was nothing else but the so-called “muthos” (emplotment) proposed by Aristotle, or the organization of events.³⁴ The advantage of contextualizing events is that it helps people to understand different events and related concepts. “It is through the success of making stories out of pure chronicles that history obtains part of its explanatory effect; the story, in turn, is made out of the chronicle by a process of operation I call ‘plot weaving’ elsewhere… when the reader realizes what type of story he is reading, he feels that the events in the story are explained. At this point, he not only succeeded in following the story, but also grasped the point of the story, and thus understood it.”³⁵ The plot of the story provides unlimited space for interpretation. The development of the story and the direction of the plot can be logical, emotional, and even unconscious. Through the emplotment of events, strange events become familiar patterns in the eyes of readers and interpreters, such as drama, tragedy, comedy, satire, advocacy, derogation, and so on. In this way, the reader makes sense of an unfamiliar event.

 

The emplotment of human rights events has the same function. Readers in developed countries are unfamiliar with economic rights as human rights, while poor countries regard economic rights as important rights to guarantee the right to live. The narrative of this concept of human rights combines famine, displaced people, malnourished children, defects in the international order, mismatching of aid, and other events, and presents them to readers in the form of historical tragedies. The Western world has its historical tragedies, so readers can match their familiar elements of misery, helplessness, and good intentions to do bad things with human rights stories in other countries. They can then understand that economic rights in poor countries, and citizenship for Jews, are just like equality for people of color, and free speech in a democracy.

 

The basic premise of emplotment is eventualization. From the perspective of narrative, human rights legal texts should first be regarded as human rights events. The Universal Declaration of Human Rights, the Vienna Declaration, and other texts as legal texts are of course very ambiguous and not very actionable, so many legal experts believe that the validity of these texts is very limited. However, if the signing, recognition, and accession of these legal texts are regarded as events, then it has the meaning of narrative identity. The signing, formal recognition, or denial of such texts becomes part of a country’s human rights story. They shape a country’s concept of human rights. By retracing this story, one can understand why a country’s current view of human rights is so. Second, traditional ethics related to human rights should also be seen as events. No nation or country is born with an ultimate ethical system, and its ethics are always changing. The current concept of human rights is an era slice of the changing ethics, and it will gain its complete meaning only when the narrative becomes a condition of instantaneous existence.³⁶ In other words, only by incorporating the current view of human rights into the whole history of human rights ethics can it be fully understood.

 

Legal texts, ethical traditions, and judicial and political practices are all regarded as human rights events and organized to form an unfinished human rights story. To the reader, the story expresses a different view of human rights. They may be the result of a dramatic struggle, a helpless temporary choice, or a carefully measured order of values — as long as the story is sincere to the idea of the human rights concept itself, then it is understandable that it has different content. Conversely, if the plot is full of contempt and abuse of human rights, then the well-worded concept is just a fig leaf of hypocrisy.

 

 

To some extent, the narrative identity of human rights combines the requirements of both normative and practical human rights views, so it reasonably resolves the long-standing dilemmas in the fundamental research on human rights.

 

 

Everyone grows up with a completely different story, and even if everyone were told the same story, there would still be a thousand views of Hamlet in a thousand people’s eyes. Therefore, each individual may differ in value content and order. Some may think that Hamlet is a hero of justice, while others may think that his revenge leads to the death of his mother, wife (girlfriend), and finally, himself, and consider him reckless and unwise. Similarly, each person, each social group, and each community have different understandings of the meaning and value of human rights. The liberal human rights discourse in the Western world is just a specific human rights narrative and a regional “dialect” of rights. The liberal human rights discourse comes from specific Western historical narratives, but this is only an empirical fact. We cannot infer from the birthplace of human rights that this “dialect” of human rights is naturally superior, just as we cannot naturally believe that the Chinese national football team should be the best in the world if China is the origin of football.

 

But the problematic point is that every indigenous conception of human rights, consciously or unconsciously, claims universality. The conflict in the concept of human rights arises from this point. The claim of universality is an inevitable extension of the idea of human rights proof. Each theory of human rights proof thinks it has found a self-evident and certainly correct foundation stone. Through the necessarily correct logical deduction, the result is also necessarily correct. The subtext of this approach is that since the premise of the theory is not only true but universally true, the conclusion, by inference, must be not only true but also universally true. How can we claim our universality forms a subjective and indigenous standpoint while avoiding conflicts between human rights? Zhao Tingyang pointed out, “To be considered a universally valid concept, human rights must be theoretically open and culturally unrestricted. The failure of the theoretical legitimacy of the gifted human right is particularly manifested by the self-destructive logic it contains.”³⁷ That is, since an interpretive view of human rights is inevitable and universality is urgently needed, the only way is to be open to reasonable criticism while asserting the universality of a certain interpretive view of human rights. In other words, openness is a logical necessity of universality.

 

The foundation of proven human rights has no place for openness, as it is by its very nature. A just ethic of respect for human dignity will not be embraced by people unless they can imagine themselves in the world of the other and feelings of participation are aroused.³⁸

 

This kind of emotional connection and communication can be achieved by telling stories. Emotions can enter other people’s strong ethical world, while also opening up their ethical world. Since there is no exclusive ethical authority here, the public discussion, concept, and legal conflict will be aimed at persuasion and convincing by rhetorical methods, and will no longer be rigidly based on logical inferences or one-sided suppression by power.³⁹ As the foundation of human rights, the narrative is open to different understandings, thus effectively dispelling the suppression of power based on moral and political arbitrariness.

 

 

The narrative identity of human rights is an open identity, which can avoid the monopoly interpretation of universal human rights on value, but it will not fall into nihilism. The foundation of narrative human rights seeks emotional commonality, which provides certainty to human rights concepts from two dimensions. First of all, the foundation provides a conceptual identity in the dimension of history. Human rights nihilists believe that the concept of human rights is unconditionally open, so it does not have certainty and can change anytime and anywhere. Conclusions aside, what the nihilists describe is undoubtedly correct. The concept of human rights is indeed in the process of development and change, and it cannot be regarded as a finished concept. However, nihilists fail to see the effective convergence of narrative to narrative content and fail to see that the identity that guarantees the certainty of human rights concept has multiple types.

 

Ronald Dworkin believes that narrative has the special function of “narrative constraint,” and that the understanding of the meaning or function of law will include or contain the concept of legal integration or coherence as a system.⁴⁰ He also likened the “consistency of statements” to a chain novel that needs to be written by future generations. The narrative of the concept of human rights is to put in front of others an unfinished story that needs to be interpreted. It can be seen that on the one hand, the foundation of understanding human rights is open, allowing others to write stories. On the other hand, it is binding, and the delusional plots of “Guan Yu fighting Qin Qiong” and “Sun Wukong traversing the Grand View Garden” are not allowed without reason. The risk of moral nihilism can be effectively reduced.

 

Ricoeur proposed that the dilemma of identity is often caused by people’s failure to distinguish two types of “identity”⁴¹. It has two main meanings: the first is identity as similarity (l’identité comme mêmeté); the second is identity as Selbstheit (l’identité comme ipséité)⁴². The former is based on some sort of similarity, while the latter is the plot. As long as the plot can be understood and the plot twist can justify itself, the elements in the story cannot be similar to each other or even have conflict and contradiction.Second, the narrative identity of human rights can trace back to a common sentiment of “goodness.” As noted earlier, scholars such as Rawls, Habermas, and Amartya Sen have recognized that human rights cannot be founded on a particular “holistic” moral philosophy. But their formal solutions are not distinguishable from substantive moral claims. So, their improvement plan is difficult to be accomplished. The narrative identity of human rights provides human rights with an emotion of universality and basic goodness. What ethics stories generally have in common is that they are social stories, they are stories of getting along with other people. According to Levinas and Ricoeur, others have ethical primacy. Ethics and human rights are completely worthless without others. So the good life, Ricoeur says, is nothing but living with others in a system of justice.⁴³ This is an explanation of the basic “good” from existing stories. And this explanation is nothing else but human emotional “tendencies.” Although there are many kinds of narrative human rights, each concept of human rights that is sufficient to be universally understood must be based on the common emotions of human beings. This is of course a relatively broad certainty, but it still excludes the so-called concept of human rights that is anti-human, racist, and patriarchal along with other common emotions against humanity. It should be noted, however, that the basic good emotions found in the narrative are not static. As the human story continues, the sentiments of the basic good change. But this fact does not prevent the basic good emotion in the current political and legal practice of certainty.

 

 

When the Western concept of human rights developed into the 20th century, it not only abandoned the concept of God and state but also abandoned the value priority of rationality. As a result, human rights discourse has lost its threshold, and any seemingly valuable individual desire can be transformed into a specific human right with universal appeal. As a result, human rights are reduced to the publicity or legalization of individual desires.⁴⁴ Human desires are always endless, and the list of human rights becomes more and more bloated with the growth of human desires, turning into a kind of “inflation” of human rights.⁴⁵

 

Yet the expansion of the human rights list is not a good thing for human rights in itself. One part of the problem is that the more rights are introduced, the more pressure there is to legislate, and the more laws are needed to implement the rights better. Man becomes an insatiable collector of rights, and human nature becomes a never-ending expanding jigsaw of laws.⁴⁶ Social public goods are limited, and the increase of rights and the extension of rights will inevitably lead to the squeezing of the buffer space in the public sphere and increase the friction and conflicts of rights between people. The list of human rights extends from an individual’s fundamental right to life to the right to social development, which greatly reduces the scope for political maneuvering, increases the chances of multilateral frictions, and even threatens the recycling of Earth’s resources and the right of other living things to live. 

 

The other side of the problem may be more serious. The equivalence of rights and obligations is a fundamental principle recognized by moral philosophy and jurisprudence. The practical consequence of the unilateral growth of the list of human rights is the asymmetry of rights and obligations, and rights lose corresponding bearers and enforcers. As a result, the human rights list, which looks pretty and detailed, turns out to be a blank check, promising the best but often delivering the worst⁴⁷.

 

From a practical point of view, human rights are human rights, not rhetoric to cover up desire. The key is to indicate clearly who should bear the obligation. The reason why people in the 18th century felt emboldened to withdraw the bankbook of rights from God was that starting in the 16th century, the rise of the nation-state replaced God’s promise of rights. Hobbes and Locke further told people that the state is the creation of man, and the ultimate legitimacy of human rights falls on the man himself and his essence. However, if human rights are only based on the abstract nature of humans, but there is no definite object of rights to undertake the payment of rights, then human rights discourse resembles the form and language of the organizations and declarations of the society for the prevention of cruelty to animals.⁴⁸ Discussing the metaphysical foundations of human rights does nothing to protect or enforce human rights. On the contrary, such abstract foundations weaken the real foundations of human rights, so that for refugees, exiles, and the disempowered, the abstract and naked existence of human beings is their greatest danger.⁴⁹ To this end, Arendt pointed out that the primary cause of human relations tragedies in the 20th century was that natural rights replaced historical rights as the basis of human rights identity. As a historical right, the core problem of human rights is not the extravagant legitimate source of human rights, or the legitimacy and universality of the sources of human rights, but the “right to obtain various rights.” In other words, the key to historic human rights is how rights are promised and secured. It is clear that the nation-state is the most powerful unit in contemporary political life, so this guarantee has evolved in contemporary political life into civic rights and citizenship guaranteed in the name of the state — a basic prerequisite for the enjoyment of any kind of human right.⁵⁰

 

Human rights presuppose citizenship, but not the abstract nature of humans or the basic rules of social cooperation. This is contrary to the idea of the proven identity of human rights. To exclude the interference of diversity, human rights proof seeks universality as much as possible by abstracting from people. Universal human rights based on this identity treat people as anonymous and fungible objects. But Arendt has shown that abstract human rights provide very little protection for human beings. The situation is particularly dire for those who do not have the realities of human rights. The normative proof of human rights is always trying to find conceptual and logical legitimization while forgetting that there is a disconnect between the legitimization of language (word) and the validity of action (deed).

 

The narrative foundation of human rights ensures the connection between language (narration) and action (event) by telling human rights stories. In the story, human rights have a clear source, and the promisors and bearers of rights are identified. The human rights story of the Jewish people in the 20th century can be seen as consisting of several main plots. First, Jews were denied citizenship and civil rights by the German Nazis and became second-class citizens.

 

The Jewish refugees lost their rights to property and equality and were presented to the world as poor and chaotic, thus losing their chance to be recognized by other countries. Jews were not born barbarians. They were made to be barbarians when they were disenfranchised. Then Jews were further cast as inhuman and human scum, deprived of the minimum right to live. The gas, the concentration camps, the slaughter, and the silence of the world, all constitute the most intense dramatic conflict of this tragedy. Finally, the survivors re-established the nation-state of the Jewish people, and the Jewish human rights tragedy was temporarily closed. Throughout the story, the subject responsible for Jewish human rights is obvious: at the beginning of the story was Germany, during the development of the story was Europe, until the establishment of the State of Israel and the restoration of human rights⁵¹.

 

 

There is a legal saying that “win the case and lose your life,” which means that the normative treatment of contradictions by law may not be socially effective. The one-size-fits-all approach that believes in black or white may overlook the complexity of human society and human emotions. The movie The Story of Qiu Ju can be explained as a conflict between rational logic and emotion. The logical reasoning proof of law and right does not necessarily form the identity, and bringing an end to the dispute can only stay in form. Therefore, in practice, we have a mediation system represented by the experience of Fengqiao, which can be understood as the exploration of identity in the sense of narrative “intercession.”

 

 

Human rights should not only be a place for reason but also a place for emotion. The current human rights theory focuses more on the search for scientific truth from the rational level. In contrast, this line of thinking is more human, has a stronger sociological orientation, and pays more attention to the social effects of theory and action. This is precisely what matters. Human rights practice today often speaks of “dialogue” and “consensus.” The emotional bond between the two sides of the dialogue can significantly affect the outcome of the dialogue and the scope of consensus. The conflict of human rights concepts has led to the sluggish operation of human rights practice, which needs to be buffered and lubricated by the human rights emotion in the narrative.

 

It can be predicted that the immature idea of resolving human rights conflicts by narrative rather than non-proven human rights identity may lead to the following criticism. The first is the elitist tendency of the narrative approach. Posner says that, as a literary technique, the narrative is a double-edged sword, and literary devices are not egalitarian just as we saw in the previous chapter.⁵² Admittedly, different from the natural egalitarianism of the innate view of human rights, the narrative concept of human rights is largely influenced by education level, rhetoric level, discourse power, ideology, and other aspects, so it is very unlikely to be equal. This is the reason for the greater explanatory power of this theory as well as its necessary flaw.

 

In this regard, we must emphasize that the narrative identity of human rights is not exclusive, and it expects to absorb the achievements of the theory of proven human rights. The second is the nihilistic tendency of narrative human rights. Storytelling is about intercepting and ordering history and using rhetorical devices to achieve specific ends. A story is a story, and reality is reality, and the greatest danger of storytelling as a method is becoming a lie.⁵³ To this end, human rights in stories cannot endorse human rights in reality. There is certainly some truth to this view. However, it is important to note that the difference between real or historical reality and a story is more about degree than substance. In this sense, “lies are very close to the essence of truth.”⁵⁴ The key to the problem is to transform the understanding of “truth.” The truth in the story is hermeneutic, not a scientific truth. In this way, the question of authenticity can be resolved, because stories and the rhetoric they use speak not only of beauty but of the search for truth and the acquisition of goodness.⁵⁵ The third is the standardization problem of the narrative human rights foundation. Indeed, the narrative identity of human rights is not very clear about where human rights come from, and what moral claims they should follow, so one can reasonably question what value such a theory has. However, we believe that the narrative identity of human rights can at least provide a flexible solution to the conflict of human rights concepts. They do not reject the justification proposition of human rights and even argue that people’s exploration of the foundation of proven human rights has enriched the narrative of human rights. The unique gentleness and compatibility of this narrative method as well as its emotional care for people make it necessary to introduce this method into human rights research and human rights practice.

 

 (Translated by LI Donglin)

 

* GAO Lijie ( 高礼杰 ), Researcher at the Marxist Legal Philosophy Research Center of Southwest University of Political Science and Law and Wen Xueping Studio of Chongqing Key Research Base of Humanities and Social Sciences. Doctor of Laws. This paper is sponsored by the Youth Project of Ministry of Education “An Empirical Study on the Influence of Judges’ Cognitive Styles on Trial” (Project Approval Number: 2017YJC820009), and Chongqing Education Commission Base Project “Research on China’s Voice, China’s Meaning and China’s Contributions to the Common Value of Mankind” (Project Approval Number: 22SKJD015).

 

1. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism, translated by Xin Hengfu (Nanjing: Jiangsu People’s Publishing House, 2009), Introduction of the Chinese version, 2.

 

2. Andrew Fagan, Human Rights: Confronting Myths and Misunderstandings (Cheltenham, Massachusetts: Edward Elgar Publishing, 2009), 1.

 

3. Joseph Raz, “Human Rights Without Foundations,” Peking University Law Journal 3 (2010).

 

4. George Thomas Kurian, The Encyclopedia of Political Science (Washington: CQ Press, 2010), 747.

 

5. Costas Douzinas, “Six Theses on the End(s) of Human Rights,” The Jurist 2 (2009).

 

6. Habermas, Justification and Application: Remarks on Discourse Ethics, translated by Ciaran Cronin (Cambridge: The MIT Press, 1994), 11.

 

7. Habermas, Moral Consciousness and Communicative Action, translated by Christian Lenhardt and Shierry Weber Nicholsen (Cambridge: The MIT Press, 1990), 203.

 

8. Jürgen Habermas, Between Facts and Norms, translated by Tong Shijun (Beijing: Joint Publishing Press, 2003), 4.

 

9. Ibid., 121.

 

10. Serena Parekh, Hannah Arendt and the Challenge of Modernity: Phenomenology of Human Rights, translated by Zhang Yunlong (Nanjing: Jiangsu People’s Publishing House, 2012), 29.

 

11. Joseph Raz, “Human Rights Without Foundations,” Peking University Law Journal 3 (2010). 

 

12. John Rawls, The Law of Peoples, translated by Chen Xiaosheng (Changchun: Jinlin Publishing Group, 2013), 31.

 

13. Serena Parekh, Hannah Arendt and the Challenge of Modernity: Phenomenology of Human Rights, 1.

 

14. Onuma Yasuaki, Human Rights, States and Civilizations, translated by Wang Zhi’an (Beijing: Joint Publishing Press, 2014), 317.

 

15. James Griffin, On Human Rights, translated by Xu Xiangdong and Liu Ming (Nanjing: Yilin Press, 2015) 7.

 

16. Karl Popper, After the Open Society, edited by Jeremy Shearmur and Piers Norris Turner (London: Routledge, 2008), 285.

 

17. Paul Ricoeur, Reflections on the Just, translated by David Pellauer (Chicago: The University of Chicago Press, 2007), 3.

 

18. Paul Ricoeur, History and Truth, translated by Jiang Zhihui (Shanghai: Shanghai Translation Publishing House, 2004), 38.

 

19. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, translated by Liu Yisheng (Beijing: China University of Political Science and Law Press, 2016), Introduction, 12.

 

20. Lynn Hunt, Inventing Human Rights: A History, translated by Shen Zhanchun (Beijing: The Commercial Press, 2011), 94.

 

21. Li Sheng, “Legal Rhetoric and A Technology to Construct the Social Community,” The Jurist 3 (2020).

 

22. Aristotle, The Poetics, translated by Luo Niansheng (Shanghai: Shanghai People’s Publishing House, 2005), 30. 

 

23. Shen Dan and Wang Liya, Western Narratology: Classical and Postclassical (Beijing: Peking University Press, 2010), 2.

 

24. Robert Scholes, James Phelan and Robert Kellogg, The Nature of Narrative (Nanjing: Nanjing University Press, 2015), 298.

 

25. Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life, translated by Ding Xiaodong (Beijing: Peking University Press, 2010), 4.

 

26. Jerald Prince, Narratology: The Form and Function of Narrative, translated by Xu Qiang (Beijing: China Renmin University Press, 2013), 3.

 

27. Ibid., 4.

 

28. Quote from Serena Parekh, Hannah Arendt and the Challenge of Modernity: Phenomenology of Human Rights, translated by Zhang Yunlong (Nanjing: Jiangsu People’s Publishing House, 2012), 154, note 4.

 

29. Robert Scholes, James Phelan and Robert Kellogg, The Nature of Narrative (Beijing: Nanjing University Press, 2015), 224.

 

30. Ibid., 311. 

 

31. Wayne Booth, The Rhetoric of Fiction Second Edition (Chicago: The University of Chicago Press, 1983), 403.

 

32. Wolfgang Iser, The Act of Reading (London: Routledge & Kegan Paul, 1978), 109.

 

33. Amartya Sen, “Elements of a Theory of Human Rights,” Blackwell Publishing, 32 Philosophy & Public Affairs 4 (2004).

 

34. Paul Ricoeur, Time and Narrative Vol. I, translated by Kathleen Mclaughlin and David Pellauer (Chicago: The University of Chicago Press, 1984), 36.

 

35. Hayden White, Tropics of Discourse: Essays in Cultural Criticism, translated by Dong Lihe (Richmond: Elephant Press, 2011), 91 and 94.

 

36. Paul Ricoeur, Time and Narrative, vol. I, translated by Kathleen Mclaughlin and David Pellauer (Chicago: The University of Chicago Press, 1984), 52.

 

37. Zhao Tingyang, “Credit Human Rights: A Non-Western Theory of Universal Human Rights,” Social Sciences in China 4 (2006).

 

38. Martha Nussbaum, Poetic Justice: The Literary Imagination and Public Life, 7.

 

39. Chen Jinzhao, “On the Meaning of Legal Rhetoric Method to the Construction of the Rule of Law Ideology,”Journal of Hangzhou Normal University (Humanities and Social Sciences) 6 (2014).

 

40. Ronald Dworkin, A Matter of Principle, translated by Zhang Guoqing (Nanjing: Jiangsu People’s Publishing House, 2004), 210.

 

41. Paul Ricoeur, “Narrative Identity,” 35 Philosophy Today 1 (1991): 73.

 

42. Paul Ricoeur, Soi-meme comme un autre (Paris: Ed. Du Seuil, 1990), 140.

 

43. Ibid., 202.

 

44. Costas Douzinas, “Six Theses on the End(s) of Human Rights,” The Jurist 2 (2009).

 

45. Onuma Yasuaki, Human Rights, States and Civilizations, translated by Wang Zhi’an (Beijing: Joint Publishing Press, 2014), 327.

 

46. Costas Douzinas, “Six Theses on the End(s) of Human Rights,” The Jurist 2 (2009).

 

47. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism, Introduction of the Chinese version. 

 

48. Hannah Arendt, The Origins of Totalitarianism, translated by Lin Xianghua (Beijing: Joint Publishing Press, 2008), 384.

 

49. Ibid., 393.

 

50. Gong Qun, “Human Rights: From Abstraction to Specification,” Journal of Jishou University (Social Sciences) 1 (2016).

 

51. Hannah Arendt, The Origins of Totalitarianism, translated by Lin Xianghua (Beijing: Joint Publishing Press, 2008), 392.

 

52. Richard Posner, Law and Literature, translated by Li Guoqing (Beijing: China University of Political Science and Law Press, 2002), 466.

 

53. Mac Kinnon, “Law, s Stories as Reality and Politics,” in Law’s Stories: Narrative and Rhetoric in the Law, edit by Peter Brooks and Paul Gewirtz (Newhaven: Yale University Press, 1996), 232.

 

54. Paul Ricoeur, History and Truth, translated by Jiang Zhihui (Shanghai: Shanghai Translation Publishing House, 2004), 151.

 

55. Hong Handing, “Hermeneutics and Rhetoric,” Journal of Shandong University (Philosophy and Social Sciences) 4 (2003).