Hong Kong on Women, Asian Values, and the Law

I. Introduction

The aim of this article is to look at the relationship between women and the law and to consider the way in which arguments surrounding Chinese culture and Asian values have affected legal developments relating to women. Hong Kong is the main focus of the article, although it will also highlight developments in other East Asian states where appropriate. The article describes the universalist and relativist positions on human rights, as well as the position taken by those who are proponents of “Asian Values.” ² The relevance of this debate to the development of women’s international human rights will be in the context of women’s issues in Hong Kong. The article emphasizes the importance of universal human rights as a method of critiquing states’ policies toward women and as a way of giving a voice to those marginalized by the mainstream. On the other hand, it also acknowledges the importance of taking culture into account when applying human rights principles. Doing so identifies issues unique to local situations, allows problems to be tackled in a culturally sensitive way, and, most importantly, enables human rights to take root in local communities. Yet, this article argues that culture should not be allowed to subsume or excuse human rights violations and that the most effective way to promote human rights for women within a society is to understand the society’s cultural context and develop strategies to harmonize cultural values and human rights.

II. Universalism, Cultural Relativism, and Asian Values

A. Universalism and Cultural Relativism

The debate on Asian values is part of a larger discourse within the human rights movement between the universalist and relativist schools of thought. ³ Universalism generally refers to the theory that human rights are universal and capable of application in all cultures. It assumes that all societies have certain shared values and that rights are inherent and inalienable. The Universal Declaration of Human Rights (UDHR) ⁴ and the human rights covenants that followed are regarded as statements of shared values and ethics by the world community. States can be measured against these standards and failure to uphold human rights standards may lead to condemnation in the international arena.

Cultural relativism occupies the opposing viewpoint in this debate. The universality of human rights has been questioned by those who identify themselves as relativists. Relativists argue that the UDHR reflects Western concepts and culture and does not reflect cross-cultural values. Indeed, some of the earliest criticisms of human rights came from anthropologists who argued that there are few shared values and that the attempt to develop a global ethic is misguided. ⁵ The relativists also draw strength from the postmodern skepticism of the enlightenment’s attempts to create universal and overarching theories. Relativists argue that, in developing countries, there is a need to emphasize collective and social rights rather than individual rights, which has led to the right to development being recognized in international law. ⁶

There are many different schools of thought within the broad categories of universalism and relativism. Jack Donnelly attempts to identify some of the dominant strands ⁷ and distinguishes between various degrees of cultural relativism and universalism. ⁸ He identifies two extreme positions and states that “[r]adical cultural relativism would hold that culture is the sole source of the validity of a moral right or rule. Radical universalism would hold that culture is irrelevant to the validity of moral rights and rules, which are universally valid.” ⁹ He identifies these views as occupying opposite ends of a continuum and then goes on to identify positions he refers to as strong and weak cultural relativism. ¹⁰ Strong cultural relativism sees culture as the principal source of a moral right or rule and accepts only a few rights as having universal application. In comparison, weak cultural relativism presumes the universality of rights, “but the relativity of human nature, communities, and rights serves as a check on potential excesses of universalism.” ¹¹ He then goes on to defend a weak cultural relativist position. ¹² Many East Asian states could be considered strong...