Freewheeling and Provocative: Why Using Pre-established Criteria for Settling Culturally-based Human Rights Disputes Is Impracticable

While human rights reclaim universalism, the concrete expectations arising from them are in many cases determined by the cultural specificity of the people concerned. The fact of trying – to the extent possible – to meet these expectations is an imperative inherent in human rights, for the reason that the main aspiration of the latter is to guarantee their own effectiveness, which translates into a requirement that they are guaranteed on the basis of effective equality. But effective equality inescapably requires that different situations are treated differently. This is the reason why the search for objective pre-determined criteria aimed at settling culturally-determined human rights controversies, as well as at establishing whether a given cultural practice is compatible with human rights standards, is impracticable. In fact, in such cases the solution may only be determined on a case-by-case basis, through balancing the different rights at stake with each other and ascertaining (to the extent possible) which of them is to be attributed more weight in each concrete case.