Lesek Kolakowski, Modernity on Endless Trial (The University of Chicago Press 1990, 1997 ed.) 0-226-45046-5 Chapter 1.2 ‘Looking for the Barbarians: The Illusions of Cultural Universalism.’
Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation Of The Inequality (Kindle version)
Martin Heidegger, Being and Time (Tr. John Macquarrie & Edward Robinson, Blackwell Publishing 1962) 0-631-19770-2
H Arendt Between Past and Future: Eight Exercises in Political Thought (Penguin Books, 2006 Edition)
In any work the question as to approach or method carries with it the question of the point at which one begins. In terms of LGBT rights, there are several points of origin – Leviticus and Mosaic law; the legal history of Sodomy as a criminal offence (covered in my undergraduate essay); with the creation of the identity itself (Ulrichs, 1864); the jurisprudence of the human rights system that has covered these issues most thoroughly (covered in my Master’s thesis); with the holocaust (the pink triangle) or with the ‘modern’ fascination with liberation (Wittman, Amerika).
The main part of my question is about the method and consequences of the Yogyakarta conference that led to the passage of the Yogyakarta Principles in 2007 – the consequences clearly mean that the main sources of law or political consequences must occur after 2007; the evidence for this work can only be found in the recent past.
LGBT rights as human rights in international law means the origin question moves wider – to the creation of international law on human rights; the Yogyakarta Principles derive from rulings or precedent set from the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights; the settlement reached under the auspices of the United Nations after the second world war.
The origins of those codified human rights moves wider still; and the answer lies within the enlightenment that framed the concepts of the rights of man and the codified Constitutions that included those rights within the law of nations – to Rousseau and the French Constitution and les droits de l’homme et Citizen and the US Constitution and the Bill of Rights, including the well documented disagreements between Burke and Paine and the criminalisation of possession of the pamphlet ‘On the Rights of Man’ in England.
While the Yogyakarta Principles can only be addressed in the time since their declaration, the rights of man in the context of Constitutional law is much wider; yet again we can return to Arendt as having examined those issues and concepts deeply within her work, in particular the Constitutional settlement of the United States in her political theories and the concept of rights within the Origins of Totalitarianism.
The illusion of cultural universals, stemming either from a misunderstanding or misrepresentation of ‘Western’ philosophy (as discussed by Sen) as a category or ‘Eurocentrism’ (as discussed by Kolakowski ) seems to set LGBT rights as human rights in direct conflict with cultural values – those values described in Uganda or Nigeria as ‘African’ in nature or in the middle-east as those values described as ‘Islamic.’
That the category of ‘African’ or ‘Islamic’ in context is as wrong as ‘Western’ or ‘European’ since there is no possible way we can isolate and distinguish between Christianity and Islam (having the same Abrahamic roots) or between versions of Anglican Protestantism of English or Ugandan origin, is not in question. However, since the discourse of cultural relativism has been allowed to develop in the discussion of belief; especially as it relates to homosexuality and the apparent rejection of it through interpretation of Leviticus; in addition to the protection of faith and belief through human rights then the apparent conflict cannot simply be dismissed as irrelevant or rejected as an illusion – the purpose of the creation of a narrative within the collective is to allow or to frame expression in such a way that all perspectives can be given purpose.
It is no more an answer to ‘African identity’ to state that such a thing cannot exist since ‘European identity’ does not than it would be to dismiss ‘African identity’ as being culturally inferior or barbaric as compared to ‘European identity.’ We could argue that neither concept should exist, but that would be utopianism – creating a world with ideal conditions in which to examine the question rather than pragmatically handling the problems we have been given through the formation of identity whether we consider that formation to have been right or wrong.
The pretention to universality is indeed a problem; but it is one inherent in the system of international law and normative treaty law. Any examination of LGBT rights outside the domestic system of each individual state must recognise the problems as they exist and attempt an answer that can assist not just in creating a mechanism for legal protection of LGBT persons, but one that goes beyond fixing category errors of the past (should they be found to exist) in creating a system of rights under law that can lead to greater recognition and protection for individuals than the current system of human rights law created after world war two.
