The Unique and International and the Imperative of Discourse

I. BETWEEN INTERNATIONALISM AND PARTICULARISM When we consider the dynamics between international law and the paradigms of cultural and moral uniqueness or particularity, we ought to think about two distinct aspects of this relationship or dynamic. On the one hand, there is the issue of whether international law ought to care about unique and particular manifestations of culture and morality. This is especially so when talking about the relationship of international law to religion. International law-in particular the human rights tradition within international law-represents a set of normative claims about the way that human beings ought to act, behave, and even, at times, think. As such, international law makes intrusive demands upon the moral space in which human beings function. But this is the same moral space for which claims of moral particularity or religion compete, and the pertinent question is: should the proponents of international law defer, in any fashion, to the competing claims for moral space that are made by the proponents of moral particularity or religion? On the flip side of this equation is the equally compelling consideration: whether particular or unique religious systems or cultural paradigms ought to care about or defer to the competing claims of international law? In essence, the question can be posed with equal force to both paradigms: the paradigm of internationalism and the paradigm of moral uniqueness. I will be arguing that in fact both paradigms have no alternative but to be concerned with what the other has to offer, and I will do so on the basis of a theoretical exposition. Coherent theoretical stands are often the only safeguard against result-oriented activism. When human rights activists and religious activists act without the restraint of reflective and self-critical pauses, they often end up violating the moral space in which human beings function. Instead of presenting claims that could be evaluated and negotiated, their behavior starts to resemble an arrogant and self-absorbed invasion of the moral space of the "other." But, as we encounter in the doctrine of humanitarian intervention, intrusive invasions of the moral space of others is at times well justified and clearly warranted, but it ought not to be done lightly. At a minimum, any act of moral interventionism, in which internationalists challenge and attempt to deny more particular visions of the right or good life, must be justified in coherent and accountable terms-otherwise, moral interventionism starts appearing whimsical and despotic. I should note that my own expertise comes primarily in the Islamic context and so much of what I am going to say will relate to the context of Islamic law and Islamic tradition, and their interaction with the international context. II. INTERNATIONALISM, CONSENT, AND FAILURES OF PROCESS Returning to the main issue on hand, the question this Article poses is in two parts: (i) should international law be concerned with what the paradigm of uniqueness-sometimes referred to as cultural relativism or cultural specificity-has to say; and (ii) should the cultarally relative be concerned with what international law has to say? As to the first part, international law is, by its very structure, an amorphous and rather negotiable construct. While it is possible to pretend that international law can be reduced to a positive and particularized set of commands, often what we observe taking place in international law is an implementation of particular commands, within a certain hierarchal structure of priorities, that are based on moral imperatives. These moral imperatives-if international law is to mean anything at all-are supposed to transcend the particular and the unique to reach the general and universal. It would not make any sense if international law created imperatives that simply were bound to each specific context because then, logically, each specific context, if given its full extent, would completely negate international law. …