At the outset, however, let me put out two disclaimers. First, I don't wish to defend any vague culturalist notion of Asian values or African-ness to criticize the hegemonic discourse of rights. Second, although the moral reasoning and semantics at work in this global discourse are poorly worked out, I readily acknowledge that all proponents of universal human rights need not have sinister motives.
So what's right (or wrong) about rights then? The answer, I believe, lies in probing the origins of contemporary rights discourse in the social contract theories of early modern Europe, most notably those of Hobbes and Locke. These brilliant men, who lived in an age of social ferment and religious violence, sought to produce a secular justification for what has come to be known as the modern state. By doing so, they hoped that differences of opinion regarding religious doctrine, the causa prima of the wars of religion, could be reconciled under the paramountcy of a secular, impartial authority. To achieve this laudable goal, they produced a fictional narrative based on an Edenic state of nature, in which all men and women were endowed by God with perfect liberty or rights, so much so that they could freely impinge on each other's rights. It hardly needs pointing out that this rationalization of the Book of Genesis, particularly the Garden of Eden story, is only superficially secular since anything else couldn't have been acceptance then. At any rate, Hobbes and Locke reasoned that men and women sought to escape the primeval state of nature by giving up certain God-given rights to erect an authority above them and thus preserve security, order, and peace. Doing so entailed a Biblical-style covenant or a "social contract" in which the duties of the sovereign and the rights of subjects were clearly articulated. (To be fair, both Hobbes and Locke argued that, if the contract were ever broken by the sovereign, subjects could rightfully rebel and replace it with a new one after drawing up a new contract.)
As the secularization of Western society produced apace over the next couple of centuries, social contract theories lost their theological moorings and simply became liberal justifications for the status quo. By the early 19th century, one finds the greatest theorist of modern liberalism, John Stuart Mill, calling for the state to be a benevolent despotism to achieve the greatest good for the greatest number. Mill's state was no longer an impartial umpire, but a calculating maximizer of utility in society. There was no longer the theoretical possibility of rebelling and redrawing a contract in the manner suggested by Hobbes and Locke. Most ironically, therefore, the language of liberalism had come to serve the conservative status quo represented by the dominance of the state.
This ironic conservatism is particularly apparent when the language of rights came to be used as an excuse for imperialism, most notably by J.S. Mill himself. Those outside the North Atlantic world were treated as simply inferior on a scale of civilization, and thus, in need of emancipation externally. A number of scholars, most notably Uday Mehta and Jennifer Pitts, have called this phenomenon "imperial liberalism." Undoubtedly, these secularized "liberal" theories found eager takers among collaborators in colonized societies who saw them, for good reason too, as terrific opportunities for personal advancement and upward social mobility. Quite obviously, however, most of the world remained unconvinced about the liberalism of their colonizers who claimed to be defending their rights against Oriental and African despotisms. There is no "cultural" resistance here; globally, people just don't attribute good intentions to their oppressors! The grandiose talk of rights in the ex-colonial world is forever tainted for that reason. A very thin veil indeed to cloak the underlying will to power.
Today, we can justifiably ask whether a secular doctrine of rights makes any sense. Logically, it is "nonsense on stilts," in Bentham's words. How can I claim a priori to possess rights when, in fact, I am campaigning to incorporate those very rights for women, minorities, refugees or whichever oppressed/marginalized group into the law books? It makes no sense. Either I have the rights already or I wish to have them in future. Both cannot be simultaneously true. It doesn't take a genius to figure out that this logical confusion in today's rights discourse is due to the loss of its original theological underpinnings. As the philosopher Alasdair MacIntyre puts it, "rights exist [a priori] as much as unicorns do."
But that is not all. There is an inherent conservatism in contemporary rights discourse, owing to its tendency to justify power and domination, which seeks to undermine the older, pre-modern sense of fighting for rights. In this sense, rights are things to be won after sustained struggles in a given society, and once they're won and enter the books of law, the state is then obliged to respect them. In other words, rights are always negotiated between the rulers and the ruled. The regime type doesn't matter. The competing pursuits of legitimacy and liberty are to be found universally. The origins of the state are irrelevant. No fictional or Biblical story is needed in the manner of Hobbes and Locke. In the most secular or worldly sense, every ruler, democratic, oligarchic or kingly, must negotiate the terms of his/its legitimate authority with his/its subjects. Constitutions and laws reflect the outcomes of those negotiations, though only the vigilance of subjects to keep the ruler to his/its word.
It follows, therefore, that insofar as there is no world state or global authority with which men and women can negotiate their liberties in exchange for legitimacy, the notion of universal rights is devoid of meaning. Therefore, to say, as Obama did, that the ideals of the American republic are in fact universal is a meaningless speech act whose illocutionary force is nonetheless likely to irk Chinese authorities. Perhaps that is only to be expected in the complicated real politik between the two largest global powers today. The Chinese tell the Americans to raise interest rates and be thrifty; the Americans tell the Chinese to stop fixing their currency exchange rates. The game goes on. And perhaps, so it should. But it should not be obscured by mindless talk about universal human rights and the like. Let's just cut the crap and be a bit clear-sighted, can we?
To sum up, the secularization of rights talk have stripped it of any logical sense today. Likewise, universal human rights, as represented in the UN Charter, are meaningless speech acts. The latent purpose of these pseudo-liberal speech acts is, however, often to produce post-hoc justifications of tyranny domestically or abroad. Modern imperialism essentially depends on such pseudo-liberal talk, and even though the age of empires is formally over, a kind of inertia leads the old mentalities and rhetoric to linger on past their expiry dates. The rhetoric of democratization in US policymaking and academic circles provides the finest example of this inertia. There is, however, a proper way to talk about rights in the past or present. That is, as concessions sought by subjects from the ruler/state in the form of laws. Social movements seeking the emancipation of subjugated or oppressed groups (the poor, women, sexual, cultural and religious minorities, etc) seek to do precisely that. These are quests for dignity that entail much struggle and heartbreak for the protagonists and their allies. To the extent that states or state-like authorities have existed throughout human history and look poised to continue, it is pointless to imagine otherwise. Rights do not, therefore, exist a priori or universally, but in specific contexts in which power is sought to be appropriated by ordinary men and women after protracted struggles, if necessary with the barrel of the gun.
