Yash Ghais “New Orthodox View” of Human Rights


The poet Rudyard Kipling wrote, “Oh, East is East and West is West and never the twain shall meet.” But Yash Ghai’s “new orthodox view” of rights  might just prove Kipling wrong. If universalists represent the West and relativists, the East,  they can actually shake hands but only  within the parameters of  this paradigm.

Yash Ghai  reconciles universalism with relativism, neither of which seems to trust the other. He posits that  the “East’s”  opposition to universalism stems from the assumption that in pushing for a homogeneity in the appreciation  of rights,  universalism   promotes  a global world order the ultimate goal  of which is to   alienate the periphery states (East)  from their cultures and force them to assimilate into the culture of the core (West).This culminates in the loss of their access to wealth and power in the world system, if not their identity.  On the other hand, the “East” is accused, rightly or wrongly, of invoking cultural relativism to legitimize certain practices condemned as  human rights violations   by the international community.

Using the oxymoron  “new orthodox”  to describe the  compromise, Yash Ghai   attempts to wind down the never-ending  debate between the advocates  of    the two perspectives. In their  absolute forms,  both are  orthodox and diametrically opposed to each other. But they metamorphose into the “new orthodox view” when they interbreed, giving birth to a new species of  human rights paradigm –one that  not only affirms the  existence of universal natural precepts of right and wrong  but, no less significantly,  respects the autonomy of the myriad cultures to  interpret these precepts within the latitude of their prevailing material realities. It may bear semblance to a  marriage of convenience, but a happy one nonetheless. The downstreamed genes of universalism  are shorn  of  the  propositions that a human right has only one shape and thus must be interpreted  in a consistent manner all over the globe and that the human rights records of societies should be scrutinized in the light of a singular benchmark. Relativism bequeaths  a new eye  that  recognizes   the existence of the  human nature that is universal, fathomable by reason, and which achieves its highest worth through rights. This eclectic  perspective pays tribute to the immutability of this human nature and the dynamism  of culture.  Under it, the East-West dichotomy appears more mythical than real, and the debate anchored on the conviction that it does exist is no more or less than an exercise in futility.

The Philippines, one of the states that drafted the Universal Declaration of Human Rights,  is predominantly a Catholic country with a strong  public policy against divorce expressed in its laws. Upholding the  inviolability of marriage, the Supreme Court refused to acknowledge the validity of foreign divorce decrees by Filipinos. The  rule  of “lex nationalii” gave the Supreme Court no option, either way. Like a guardian angel, a person’s national law concerning his or her  capacity to marry follows  him/her everywhere.

But the policy also extended to cases of foreign divorce sought at the instance of former Filipinos  or even by foreigners. This created preposterous if not unjust   cases of  Filipinos  married to  foreigners who were not married to them! Such people whose marital statuses were in legal limbo contracted subsequent marriages that were likewise thrust in the same limbo. Moreover, this gave rise to property issues, as in one case where a foreigner divorced from his Filipino spouse staked his claim on her properties as her legal husband, even if she was married to someone else.[i] Yet the State remained rigid on its policy against the recognition of divorce. When Corazon Aquino was catapulted into the presidency by the People Power Revolution in 1986, one of her  official acts as a dictator under the transition Freedom Constitution was to enact a new family law which provides that “where  a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.”[ii] But the law still suffers from a congenital defect. For the divorced Filipino to be capacitated to remarry,  the marriage must be “mixed” from the very beginning and does not contemplate a situation where the one who obtained divorce was a Filipino who subsequently became a foreigner. However, in a recent case, the Supreme  Court abandoned  its former doctrine that stuck to the letter of the law and impressed it with a liberal interpretation.[iii] 

The Philippine experience, although  by no means ideal,   demonstrates how universalism and cultural relativism can amalgamate  in a “new orthodox” form, delivering some form of happiness to  people who would have otherwise been deprived of a right  enshrined in the UDHR.    


[i] Van Dorn v. Romillo, Jr., 139 SCRA 139. The decision was a stray one as it squarely went  against the   law.
[ii] Art. 26, Family Code of the Philippines
[iii] Republic v. Orbecido, GR No. 154380, 5 October 2005

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