(Abdullahi Ahmed An-Na'im) Human Rights in Cross PDF
(Abdullahi Ahmed An-Na'im) Human Rights in Cross PDF
(Abdullahi Ahmed An-Na'im) Human Rights in Cross PDF
Cross-Cultural Perspectives
Edited by
Abdullahi Ahmed An-Nacim
Publication of this book has been aided by a grant from the College of Law,
University of Saskatchewan.
Library of Congress Cataloging-in-Publication Data
Human rights in cross-cultural perspectives: a quest for consensus / edited by Abdullahi
Ahmed An-Na'im.
p. cm. — (Pennsylvania studies in human rights)
Includes bibliographical references and index.
ISBN 0-8T22-3I04-X (cloth). - ISBN 0-8122-1568-0 (pbk.)
1. Human rights. I. Na'im, 'Abd Allah Ahmad, 1946– . II. Series.
K3240.6.H8767 1991
323—dc20 91-29297
CIP
First paperback printing 1995
Acknowledgments ix
Introduction
Abdullahi A. An-Nacim 1
Bibliography 437
Contributors 463
Index 469
Introduction
More than forty years after the adoption of the Universal Declaration of
Human Rights in 1948, persistent and gross violations of fundamental hu-
man rights continue to occur in most parts of the world. It would there-
fore be appropriate to celebrate the achievements of the past four decades
by reaffirming genuine global commitment to the ideal of the universality
of human rights, and by seeking a deeper understanding of the underlying
causes of the continuing discrepancy between the theory and practice of
these rights. This endeavor should enhance the credibility of national and
international human rights standards by developing more effective ap-
proaches to promoting and implementing those rights.
Both the ideal of universality and the objective of greater efficacy for
international human rights practice require a dynamic process of con-
stantly refining the concepts of recognized human rights, as well as devel-
oping new rights and mechanisms for enforcing and implementing them.
This vision is hampered by the limitations of traditional international law
and the cultural biases of various nations. In particular, competing cultural
perspectives tend to undermine each other's priorities and, in the process,
to diminish the prospects of developing truly universal standards of human
rights and more effective mechanisms for achieving them.
An international conference was convened in Saskatoon, Canada, by
the College of Law, University of Saskatchewan, on October 12—14, 1989,
to examine these issues and concerns. Speakers were invited to reflect on
the implications of global cultural diversity for the legitimacy and efficacy
of international standards of human rights, and to consider, inter alia: To
what extent is there cultural support and/or antagonism to human rights
standards and what does that mean? How can the discrepancy between the
theory and practice of these standards be understood? How can the credi-
bility of these standards be enhanced at the national and international lev-
els and strategies be identified to promote and implement them more
effectively? Thevon
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2 Introduction
It must first be noted that this exploratory book does not purport to present
an ultimate thesis about the cross-cultural legitimacy of human rights, or
the final resolution of real or perceived conflicts and tensions between the
ideal of their universality and the reality of cultural diversity. Despite some
efforts I shall mention briefly, which are more extensively considered in
some of the chapters in this volume, this theme has not yet received suffi-
cient scholarly attention to make it possible to present such a thesis or
resolution at this stage. Moreover, as indicated in the last section ol this
book, more work needs to be done on the methodology of internal and
cross-cultural analysis, as applied to human rights issues, before a credible
ultimate thesis or resolution of the issues can be proposed.
Some degree of concern with cultural legitimacy and genuine univer-
sality has clearly been present from the beginning of the modern interna-
tional human rights movement. For example, UNESCO has conducted
various surveys and seminars on the subject. Some human rights scholars
have also discussed similar questions in articles and chapters in edited
volumes of essays. Most of these works, however, are not particularly help-
ful for establishing universal cultural legitimacy for human rights. Some of
them tend to be apologetic and highly selective surveys of cultural tradi-
tions in support of human rights, which ignore problematic aspects of
the same traditions. Others assert a militant relativistic position with-
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Introduction 7
Although this volume docs not claim to cover all regions of the world
comprehensively, a brief explanation of its geographical scope is in order.
In particular, one may query whether there is too much emphasis on so-
called Western perspectives in a volume purporting to deal with the uni-
versality of human rights. First, comprehensive geographical coverage
is not possible in a single book if one wishes to avoid unsubstantiated
sweeping generalizations and platitudes. Second, this volume contains es-
says on a substantial part of the world, namely, North and South America,
Australia, China, and Northern Europe. It docs not contain any chapter
specifically on Africa because that part of the world was covered in the
volume Human Rights in Africa: Cross-Cultural Perspectives, cited earlier.
Moreover, several of the essays in the present collection present and dis-
cuss perspectives other than those of the dominant cultures in their re-
spective parts of the world. Third, the Islamic perspective discussed in the
first chapter is relevant to the Middle East and to significant parts of South
and Southeast Asia. Fourth, it is proper to give so much space to Western
theories, not only because of their formative impact on the human rights
field, but also because liberalism and Marxism arc, and will continue to be,
relevant and highly influential in many parts of the world. It should be
emphasized that one of the objectives of the project is to promote inter-
action and dialogue between Western and non-Western cultural perspec-
tives, not to replace the former by the latter as the foundation of the
universal legitimacy of human rights.
The collection of essays in this book is organized into four sections. Gen-
eral issues and fundamental problems of the proposed approach are dis-
cussed in the chapters of Section i. These include Howard's chapter, which
challenges the underlying assumption of the approach itself, and Alford's
chapter, which questions its feasibility. The chapters in Section 2 explore
the prospects and problems of cultural reconstruction within the liberal
and Marxist traditions. These chapters highlight the apparent antagonism
of prevailing interpretations of these traditions toward some of the pres-
ently recognized human rights. They also seek reconciliation or accom-
modation of these rights through an alternative interpretation of the
primary sources of these traditions and/or recxamination of their philo-
sophical and moral underpinnings. In part of Chapter 15 (in Section 4),
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Introduction 9
gion, and so on. He argues that the Anglo world must open up lines of
communication and hear Indian views on their substantive human rights
demands, as derived from their cultural values.
A similar but more specialized analysis is provided in Chapter 9 by
Allan McChesney, who discusses the human rights situation of Aborigines
in Canada. He examines the practical utility, from an aboriginal point of
view, of the mechanisms established in Canada to combat discrimination
and promote equal opportunity within the system, including the relevance
and importance of international human rights law in this respect. This
includes the implications of affirmative action policies on traditional abo-
riginal livelihoods, and the questions of collective and individual rights. In
an effort to apply aboriginal perspectives on human rights concretely, the
chapter concludes with some speculations as to the form human rights
protective systems might take within self-determined, self-governed abo-
riginal jurisdictions associated with Canada.
In Chapter 10, Hugo Fruhling discusses the relationship between
Latin American culture, and political violence and human rights in gen-
eral. He deals with the impact of an authoritarian political culture and the
role of the social process in producing massive violations of human rights
throughout the continent. His analysis suggests to him that gross human
rights violations are perhaps due more to the internal dynamics of the recur-
rence of episodes of political violence, leading to further violence, than to
the hegemony of a particular authoritarian tradition. He notes, however,
that it is good that liberal legalism and democratic values have remained a
part of Latin American culture and continue to set standards of legitimacy
for governments, even though their application has not been successful.
Fruhling is also encouraged by certain recent developments, such as the
emergence of a network of Latin American nongovernmental groups and
organizations dedicated to denouncing human rights violations, and the
growing positive role of the Inter-American System for the protection of
human rights.
Manuela Carnciro da Cunha then examines in Chapter n the human
rights situation of Brazilian Indians against the background of historical
and current serious governmental and other encroachments that threaten
the very survival of these people. After explaining the nature and magni-
tude of these encroachments and their rationale, she discusses Indian
rights under the new Constitution of Brazil and the prospects of reconcil-
ing local culture and customary law with universal human rights stan-
dards. She perceives the fundamental issue as one of acknowledging a
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Introduction 13
This volume seeks to advance the case for the universal legitimacy of
human rights by addressing some of the difficulties facing cross-cultural
analysis and by examining some of its specific implications. To the extent
that the search for universal legitimacy of human rights through cross-
cultural analysis and reinterpretation is accepted as a useful approach to
enhancing the credibility and efficacy of international standards, the re-
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Introduction 15
Notes
The general thesis of my approach is that, since people are more likely to
observe normative propositions if they believe them to be sanctioned by
their own cultural traditions, observance of human rights standards can be
improved through the enhancement of the cultural legitimacy of those
standards.2 The claim that all the existing human rights standards already
enjoy universal cultural legitimacy may be weak from a historical point of
view in the sense that many cultural traditions in the world have had little
sav in the formulation of those standards. Nevertheless, I believe not onlv
must be faced and generally describing the process that should be under-
taken. Neither concrete results nor guarantees of success can be offered
here, only a promising approach to resolving a real and serious issue.
Concern with the implications of cultural diversity has been present
since the earliest stages of the modern international human rights move-
ment. In 1947, UNESCO carried out an inquiry into the theoretical prob-
lems raised by the Universal Declaration of Human Rights. This was
accomplished by inviting the views of various thinkers and writers from
member states,3 and organizing subsequent conferences and seminars on
this theme. Other organizations have also taken the initiative in drawing
attention to the dangers of ethnocentricity and the need for sensitivity to
cultural diversity in the drafting of international human rights instru-
ments.4 Individual authors, too, have addressed these concerns.
My approach draws upon these earlier efforts and supplements them
with insights from non-Western perspectives. Some Western writers have
highlighted conflicts between international human rights standards and
certain non-Western cultural traditions, without suggesting ways of rec-
onciling them.5 Despite their claims or wishes to present a cross-cultural
approach, other Western writers have tended to confine their analysis to
Western perspectives. For example, one author emphasizes the challenge
of cultural diversity, saying that it would "be useful to try to rethink the
normative foundations of human rights and consider which rights have
the strongest normative support." 6 Yet, the philosophical perspectives he
actually covers in his discussion are exclusively Western. Another author
calls for taking cultural diversity seriously, yet presents arguments based
exclusively on Western philosophy and political theory.7
Alison Renteln is one of the few human rights scholars sensitive to
issues of cultural legitimacy. She suggests a cross-cultural understanding
that will shed light on a common core of acceptable rights.8 Her ap-
proach seems to be content with the existing least common denominator,
however, a standard I find inadequate to assure sufficient human rights
throughout the world. In my view, a constructive element is needed to
broaden and deepen cross-cultural consensus on a "common core of hu-
man rights." I believe that this can be accomplished through the internal
discourse and cross-cultural dialogue advocated here.
Although this statement is true, it does not fully answer the charge. Mo-
rality may be universal in the sense that all cultures have it, but that does
not in any way indicate the content of that morality, or provide criteria for
judgment or for action by members of that culture or other cultures. The
least common denominator of the universality of morality must include
some of its basic precepts and not be confined to the mere existence of
some form of morality. Moreover, in accordance with the logic of cultural
relativism, the shared moral values must be authentic and not imposed
from the outside. As indicated earlier, the existing least common denomi-
nator may not be enough to accommodate certain vital human rights. This
fact would suggest the need to broaden and deepen common values to
support these human rights. This process, however, must be culturally
legitimate with reference to the norms and mechanisms of change within
a particular culture.
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26 Abdullahi A. An-Nacim
In the intercourse between two nations, we are apt to rely too much on the
instrumental part. We lay too much weight on the formality of treaties and
compacts. . . . Men [and women] are not tied to one another by paper and
seals. They are led to associate by resemblances, by conformities, by sympa-
thies. It is with nations as with individuals. Nothing is so strong a tie of amity
between nation and nation as correspondence in laws, customs, manners and
habits of life. They are obligations written in the heart. They approximate
men [and women] to one another without their knowledge and sometimes
against their intentions. The secret, unseen, but irrefragable bond of habitual
intercourse holds them together even when their perverse and litigious nature
sets them to equivocate, scuffle, and fight about the terms of their written
obligations.2'1
firm foundation in truth. This docs not prevent me from being in agreement
on these practical convictions with people who are certain that their way of
justifying them, entirely different from mine or opposed to mine, in its theo-
retical dynamism, is equally the only way founded upon truth."
Some international human rights instruments stipulate that "no one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment."30 There is obvious overlap between the two main parts of
this right, that is to say, between protection against torture and protection
against inhuman or degrading treatment or punishment. For example,
torture has been described as constituting "an aggravated and deliberate
form of cruel, inhuman or degrading treatment or punishment."31 Never-
theless, there are differences between the two parts of the right. According
to the definition of torture adopted in United Nations instruments, it
"does not include pain or suffering arising only from, inherent in or in-
cidental to lawful sanctions."32 As explained below, this qualification is
not supposed to apply to the second part of the right. In other words,
lawful sanctions can constitute "cruel, inhuman or degrading treatment or
punishment."
The following discussion will focus on the meaning of the second part
of the right, that is to say, the meaning of the right not to be subjected to
cruel, inhuman or degrading treatment or punishment. In particular, I will
address the question of how to identify the criteria by which lawful sanc-
tions can be held to violate the prohibition of cruel, inhuman or degrading
treatment or punishment. The case of the Islamic punishments will be
used to illustrate the application of the cross-cultural perspective to this
question.
in the drafting process that the word "treatment" was broader in scope
than the word "punishment." It was also observed that the word "treat-
ment" should not apply to degrading situations that might be due to gen-
eral economic and social factors.37 In 1952, the Philippines suggested before
the Third Committee that the word "unusual" should be inserted between
the words "inhuman" and "or degrading." Some delegates supported the
addition of the word "unusual" because it might apply to certain actual
practices that, although not intentionally cruel, inhuman, or degrading,
nevertheless affected the physical or moral integrity of the human person.
Others opposed the term "unusual" as being vague: what was "unusual"
in one country, it was said, might not be so in other countries. The pro-
posal was withdrawn.38
It is remarkable that the: criticism of vagueness should be seen as ap-
plying to the word "unusual" and not as applying to the words "cruel,
inhuman or degrading." Surely, what may be seen as "cruel, inhuman or
degrading" in one culture may not be seen in the same light in another
culture. Do other U.N. sources provide guidance on the meaning of this
clause and criteria for resolving possible conflicts between one culture and
another regarding what is "cruel, inhuman or degrading treatment or
punishment?"
A commentary on Article 5 of the U.N. Code of Conduct for Law
Enforcement Officials of 1979 states: "The term 'cruel, inhuman or de-
grading treatment or punishment' has not been defined by the General
Assembly, but it should be interpreted so as to extend the widest possible
protection against abuses, whether physical or mental."39 Decisions of the
Human Rights Committee under the Optional Protocol provide examples
of treatment or punishment held to be in violation of Article 7 of the
covenant by an official organ of the U.N.40 Although these examples may
be useful in indicating the sort of treatment or punishment that is likely to
be held in violation of this human right, they do not provide an authori-
tative criteria of general application.41
When the Human Rights Committee attempted to provide some
general criteria, the result was both controversial and not particularly help-
ful. For example, the committee said of the scope of the protection against
cruel, inhuman, or degrading treatment or punishment:
[It] goes far beyond torture as normally understood. It may not be necessary
to make sharp distinctions between various forms of treatment and punish-
ment. These distinctions depend on the kind, purpose and severity of the
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32 Abdullah! A. An-Nacim
ground that they arc cruel, inhuman, or degrading? This question should
not be confused with the very important but distinct issue of whether
these punishments have been or are being applied legitimately and in ac-
cordance with all the general and specific requirements of Islamic law.
Islamic law requires the state to fulfill its obligation to secure social
and economic justice and to ensure decent standards of living for all its
citizens before it can enforce these punishments. The law also provides for
very narrow definitions of these offenses, makes an extensive range of de-
fenses against the charge available to the accused person, and requires
strict standards of proof. Moreover, Islamic law demands total fairness and
equality in law enforcement. In my view, the prerequisite conditions for
the enforcement of these punishments are extremely difficult to satisfy in
practice and arc certainly unlikely to materialize in any Muslim country in
the foreseeable future. Nevertheless, the question remains, can these pun-
ishments be abolished as a matter of Islamic law?
Sharica criminal law has been displaced by secular criminal law in
most Muslim countries. Countries like Saudi Arabia, however, have always
maintained Sharica as their official criminal law. Other countries, such as
Iran, Pakistan, and the Sudan, have recently reintroduced Sharica criminal
law. There is much controversy over many aspects of the criminal law of
Sharica that raise human rights concerns, including issues of religious dis-
crimination in the application of Shari'a criminal law to non-Muslims.45
To the vast majority of Muslims, however, Sharica criminal law is binding
and should be enforced today. Muslim political leaders and scholars may
debate whether general social, economic, and political conditions are
appropriate for the immediate application of Sharica, or whether there
should be a preparatory stage before the rcintroduction of Shari'a where
it has been displaced by secular law. None of them would dispute, at least
openly and publicly, that the application of Sharica criminal law should be
a high priority, if not an immediate reality.
Although these are important matters, they should not be confused
with what is being discussed here. For the sake of argument, the issue-
should be isolated from other possible sources of controversy. In particu-
lar, I wish to emphasize that I believe that the Qur'anic punishments
should not apply to non-Muslims because they are essentially religious in
nature. In the following discussion, I will use the example of amputation
of the right hand for theft when committed by a Muslim who does not
need to steal in order to survive, and who has been properly tried and
convicted by a competent court of law. This punishment is prescribed by
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Toward a Cross-Cultural Approach 35
the clear and definite text of verse 38 in chapter 5 of the Qur'an. Can this
punishment, when imposed under these circumstances, be condemned as
cruel, inhuman, or degrading?
The basic question here is one of interpretation and application of a
universally accepted human right. In terms of the principle Maritaiii sug-
gests—agreement on "practical conclusions" in spite of disagreement on
their justification—Muslims would accept the human right not to be sub-
jected to cruel, inhuman, or degrading treatment or punishment. Their
Islamic culture may indicate to them a different interpretation of this hu-
man right, however.
From a secular or humanist point of view, inflicting such a severe
permanent punishment for any offense, especially for theft, is obviously
cruel and inhuman, and probably also degrading. This may well be the
private intuitive reaction of many educated modernized Muslims. How-
ever, to the vast majority of Muslims, the matter is settled by the categori-
cal will of God as expressed in the Qur'an and, as such, is not open to
question by human beings. Even the educated modernized Muslim, who
may be privately repelled by this punishment, cannot risk the conse-
quences of openly questioning the will of God. In addition to the danger
of losing his or her faith and the probability of severe social chastisement,
a Muslim who disputes the binding authority of the Qur'an is liable to the
death penalty for apostasy (heresy) under Shari'a.
Thus, in all Muslim societies, the possibility of human judgment re-
garding the appropriateness or cruelty of a punishment decreed by God is
simply out of the question. Furthermore, this belief is supported by what
Muslims accept as rational arguments.46 From the religious point of view,
human life does not end at death, but extends beyond that to the next life.
In fact, religious sources strongly emphasize that the next life is the true
and ultimate reality, to which this life is merely a prelude. In the next
eternal life, ever}' human being will stand judgment and suffer the conse-
quences of his or her actions in this life. A religiously sanctioned punish-
ment, however, will absolve an offender from punishment in the next life
because God docs not punish twice for the same offense. According!}', a
thief who suffers the religiously sanctioned punishment of amputation of
the right hand in this life will not be liable to the much harsher punish-
ment in the next life. To people who hold this belief, however severe the
Qur'anic punishment may appear to be, it is in fact extremely lenient and
merciful in comparison to what the offender will suffer in the next life
should the religious punishment not be enforced in this life.
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?6 Abdullah! A. An-Na c im
these two traditions. Still, this has not always been the case in the past and
need not be so in the future In fact, the jurisprudence of each tradition
has borrowed heavily from the other in the past and may do so in the
future once the present conflict is resolved.
I believe that in the final analysis, the interpretation and practical ap-
plication of the protection against cruel, inhuman, or degrading treatment
or punishment in the context of a particular society should be determined
by the moral standards of that society. I also believe that there are many
legitimate ways of influencing and informing the moral standards of a
society. To dictate to a society is both unacceptable as a matter of principle
and unlikely to succeed in practice. Cross-cultural dialogue and mutual
influence, however, is acceptable in principle and continuously occurring
in practice. To harness the power of cultural legitimacy in support of hu-
man rights, we need to develop techniques for internal cultural discourse
and cross-cultural dialogue, and to work toward establishing general con-
ditions conducive to constructive discourse and dialogue.
It should be recalled that this approach assumes and relies on the
existence of internal struggle for cultural power within society. Certain
dominant classes or groups would normally hold the cultural advantage
and proclaim their view of the culture as valid, while others would chal-
lenge this view, or at least wish to be able to do so. In relation to Islamic
punishments, questions about the legitimate application of these punish-
ments—whether the state has fulfilled its obligations first and is acting in
accordance with the general and specific conditions referred to earlier—
are matters for internal struggle. This internal struggle cannot and should
not be settled by outsiders; but they may support one side or the other,
provided they do so with sufficient sensitivity and due consideration for
the legitimacy of the objectives and methods of the struggle within the
framework of the particular culture.
Notes
1. I am grateful to Prof. Wanda Wiegers and Dr. Tore Lindholm for their
helpful comments and suggestions on an earlier draft of this chapter. I am also
grateful to Shelley-Anne Cooper-Stephenson for editorial assistance with the final
draft.
2. See generally Abdullahi Ahmed An-Na c im, "Problems and Prospects of
Universal Cultural Legitimacy for1 Human Rights," in Human Rights in Africa:
Cross-Cultural Perspectives, ed. A. An-Na c im and F. Deng (Washington, D.C.:
Brookings Institution, 1990), 331—67.
3. For the results of this questionnaire see UNESCO, Human Rights: Com-
ments and Interpretations (London: Allan Wingate, 1949), Appendix I.
4. See, for example, Executive Board of the American Anthropological Asso-
ciation, "Statement on Human Rights," American Anthropologist 49 (1947): 539.
5. See, for example, Jack Donnelly, "Human Rights and Human Dignity: An
Analytic Critique of Non-Western Conceptions of Human Rights," American Po-
litical Science Review 76 (1982): 303; Rhoda Howard and Jack Donnelly, "Human
Dignity, Human Rights and Political Regimes," American Political Science Review
80 (1986): 801.
6. James W. Nickel, "Cultural Diversity and Human Rights," in International
Human Rights: Contemporary Issues, ed. Jack L. Nelson and Vera M. Green (Stan-
fordville, N.Y.: Human Rights Publishing Group, 1980), 43.
7. A.J.M. Milne, Human Rights and Human Diversity: An Essay in the Philoso-
phy of Human Rights (Albany, N.Y.: State University of New York Press, 1986).
8. Alison D. Renteln, "The Unanswered Challenge of Relativism and the
Consequences for Human Rights," Human Rights Quarterly 7 (1985): 514—40; and
"A Cross-Cultural Approach to Validating International Human Rights: The Case
of Retribution Tied to Proportionality," in Human Rights Theory and Measure-
ments, ed. D. L. Cingranelli (Basingstokc, Hampshire, and London: Macmillan,
1988), 7. See generally her recent book, International Human Rights: Universalism
Versus Relativism (Newbury Park, Calif., London, and New Delhi: Sage Publica-
tions, 1990).
9. See, for example, T. S. Eliot, Notes Toward the Definition of Culture (Lon-
don: Faber and Faber, 1948); Raymond Williams, Keywords: A Vocabulary of Cul-
ture and Society (New York: Oxford University Press, 1976), 76-82.
10. See generally, for example, A. L. Kroebcr and C. Kluckhohn, eds., Culture:
A Critical Review of Concepts and Definitions (New York: Vintage Books, 1963).
n. Roy Preiswcrk, "The Place of Intercultural Relations in the Study of In-
ternational Relations," The Tear Book of World Affairs 32 (1978)
12. Clifford Geertz, Interpretation of Culture (New York: Basic Books,
1973), 89.
13. I am grateful to Tore Lindholm for suggesting this useful analog)'.
14. Melville J. Herskovits, Cultural Dynamics (New York: Knopf, 1964), 54.
15. See generally, Ruth Benedict, Patterns of Culture (Boston: Houghton Mif-
flin, 1959) and Herskovits, Cultural Dynamics, chap. 4.
16. Melville Herskovits, Man and His Works (New York: Knopf, 1950), 76.
17. Elvin Hatch, Culture and Morality: The Relativity of Values in Anthropology
(New York: Columbia University Press, 1983), 12.
18. I. C. Jarvie, "Rationalism and Relativism," British Journal of Sociology 34
(1983): 46.
19. Rhoda E. Howard and Jack Donnelly, "Introduction," in International
Handbook of Human Rights, ed. R.E. Howard and J. Donnelly (Westport, Conn.
Greenwood Press, 1988), 20.
20. John Ladd, "The Poverty of Absolutism," Acta Philosophica Fennica (Hel-
sinki) 34 (1982): 158, 161.
These images of the human rights enterprise have been principally gener-
ated in the West, evolving over time from the Enlightenment mind-set,
including a confidence in the possibility of a rational social and political
order based on individual rights that, over time, could facilitate progress
and happiness for humankind as a whole.2 Underlying such convictions is
a belief in the sufficiency of human reason, especially as it is manifested in
science and technology, and a vestigial distaste for any intrusion on the
terrain of human rights by recourse to religion, tradition, and emotion.
The ideological foundations of this secularist approach are often implicit.
Nevertheless, it tended to generate a cult of modernization that has for
several centuries occupied center stage in the West. One result has been a
dualism between progress and backwardness that has been damaging to
nonmodcrnizing peoples.
On the other side of the debate, keeping in mind that these orienting
observations are deliberate oversimplifications, one finds cultural relativists
who take their cues from societal tradition, specific religious teachings,
and the primacy of cultural settings. Such a position, often oblivious to
plural and incompatible elements in cultural precept and practice, leads to
an endorsement of the view that cultural attitudes automatically deserve
deference and anything inconsistent that claims to derive from the inter-
national law of human rights has been either misinterpreted or can be
disregarded. This position may also be accompanied by the ideological
counterpoint in non-Western societies that alleged human rights standards
are more properly understood to be disguised hegemonic claims by the
West that, in a postcolonial era, arc no longer entitled to respect and
should more properly be repudiated.
As will be explained, both of these polar positions on the relevance of
culture should be rejected. If the field of the protection of human rights
continues to be controlled by these two interpretive perspectives in their
various forms, the most probable result is a demeaning encounter between
two forms of fundamentalism, the pitting of relentless secularists against
hardened traditionalists.
The position taken here is that, without mediating international hu-
man rights through the web of cultural circumstances, it will be impossible
for human rights norms and practices to take deep hold in non-Western
societies except to the partial, and often distorting, degree that these so-
cieties—or, more likely, their governing elites—have been to some extent
Westernized. At the same time, without cultural practices and traditions
being tested against the norms of international human rights, there will
be a regressive disposition toward the retention of cruel, brutal, and ex-
ploitative aspects of religious and cultural tradition. One objective of nor-
mative standards is the protection of vulnerable individuals and groups
from harsh forms of local prejudice that have hardened over time into
custom and tradition and thereby achieved a kind of provincial legitimacy.
These two standpoints taken together suggest an intermediating rele-
vance for both international law (standards, procedures, implementation)
and for cultural hcrmeneutics, above all seeking to reconcile cultural and
global sources of authority by reference to a core concern for the mini-
mum decencies of individual and group existence. An emphasis on suffer-
ing and victimization provides indispensable guidance both in relation to
gaps in international legal protection and to the task of distinguishing
acceptable cultural orientations from unacceptable ones.3 Of course, the
whole undertaking is complicated and contingent as different observers
and experts will often disagree. What is sought, and must be relied upon
in the end, is a dialogue about appropriate behavioral standards in an at-
mosphere of growing toleration for divergency arising from varying cul-
tural identities.4
One important consequence of the globalization of social, political,
and economic life which often goes unnoticed is cultural penetration and
overlapping, the coexistence in a given social space of several cultural tra-
ditions, as well as the more vivid intcrpenetration of cultural experience
and practice as a consequence of media and transportation technologies,
travel and tourism, cross-cultural education, and a logarithmic increase
in human interaction of all varieties. Such a reality posits its own distinc-
tive and opposing social demands: respect for difference (culture; to sus-
tain diversity), acknowledgment of sameness (international law of human
rights; to reestablish normative authority). The emergence and the imple-
mentation of international human rights embody both the opportunities
and obstacles arising from this always-shifting interplay between the valu-
ing of difference and the quest for sameness.
Such an interplay presupposes various interpreters and interpreta-
tions and, as such, has either produced controversy or led to the repression
of one or more lines of interpreters and interpretations by the other on the
basis of its greater power. A theme of this chapter is a bias in favor of
controversy—conversation or dialogue—that expresses itself in political
and social terms as a commitment to maximum political democracy. A
vibrant society, on a global scale, is needed to ensure that democracy both
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Cultural Foundations for Protection of Human Rights 47
engages the issues that affect lives and feelings and takes account of intcr-
dcpendcncies.5 In effect, human rights and political democracy are symbi-
otically bonded.
It would be helpful to illustrate concretely the working out of this
intermediation of culture and international law, and the reason why it
seems a necessary and desirable enterprise. Consider what happens when
intermediation is not undertaken. The neglect of the displacement and
destruction of indigenous peoples reveals both a glaring oversight in the
protection offered by the international law of human rights and the degree
to which this corpus of authoritative law dedicated to the protection of all
humans has itself been distorted by a modernization bias. The neglect of
indigenous peoples is what might be described as an area of "normative
blindness." It does not improve matters to contend that governments in
non-Western cultural space have given their assent to the human rights
framework embodied in an international law that is deficient in its treat-
ment of indigenous peoples.6 First of all, virtually every government of a
sovereign state, north or south, has adopted a modernization outlook that
regards prcmodern culture as a form of backwardness to be overcome for
the sake of the indigenous. Proceeding on this basis, the preferred nor-
mative response to the existence of indigenous peoples is not deference to
their cultural autonomy, but rather their orderly and equitable assimilation
into the more benevolent and promising cultural space of the modernizing
ethos.7 To the extent that international law offers any protection at all
to indigenous peoples, it does so in an oblique and obscure manner that
ineffectually purports to prohibit discrimination against individuals be-
longing to indigenous peoples and otherwise aims to remove those obsta-
cles that prevent assimilation.8
Such a deficiency in the protective framework, admittedly now being
nominally challenged by recent initiatives,9 adds a dimension to this analy-
sis—namely, that for governments inhabiting non-Western cultural space
there exists an important overlay derived from the reception of Western
ideas and influence about statecraft and progress. In the name of devel-
opment, indigenous peoples have been and are being destroyed and dis-
placed in many parts of the Third World. Of course, such a process of
displacement was virtually completed in the West by the middle of the last
century. Such a deficiency in normative protection has been contested by
countcrtraditions of thought within Western culture from the time of ini-
tial settlement in "the era of discovery,'1 but with little success. The attempt
to extend human rights protection to all individuals and groups within the
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48 Richard Falk
Walker cavalierly contends: "From the South Bronx to Beirut, from the
proliferation of refugee camps to the persistence of apartheid, the intol-
erable is always visible to those who would nevertheless celebrate the
achievements of the modern world."16
I doubt whether Walker's sense of the intolerable is as widely noticed
or as visible as he supposes. His far-reaching contention goes beyond
Moore's more intuitive enumeration in that much of what he would have
us call "intolerable" is a hidden consequence of an essentially capitalist
orientation toward nature and society that rests on the whole idea of mo-
dernity so central to the identity of and dominance by the West. In the
language of this chapter, Walker is closely associating "the intolerable"
with the historical negative consequences of what has been earlier referred
to here as "the cult of modernization." The broader point being made here
is not that this or that conception of the intolerable ought to be favored,
but that a series of discourses on the nature of the intolerable as a method
of deepening and extending discussion of human rights priorities and
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Cultural Foundations for Protection of Human Rights 51
The author submits, as a Muslim, that God communicates through the social
and physical environment as well as through the Qur'an, His literal and final
word, and through the Sunna, traditions of His final prophet, Mohammed
Ibn Abdillah. This Article contends that God's instructions must be under-
stood and applied in light of all social and material phenomena.1''
An-Nacim's insistence that "a legitimate and lasting" solution "must de-
velop from within Islam"20 places great responsibility on the scholarly ca-
pacity to interpret and persuade. As he acknowledges, the obstacles in real
world circumstances are formidable: "Most Muslim scholars are either si-
lent, in exile, or in prison."21 Elsewhere he confronts an even more difficult
question as to whether authoritative cultural practices that inflict "intol-
erable" results and are more or less resistant to techniques of interpretative
softening, can be overcome, or at least restricted in their application, by
relying upon cross-cultural and intracultural reinterpretation. 22
Other efforts to find an interpretative foundation upon which to rest
the basic quest for human rights deserve mention. These efforts, as with
those of An-Nacim, often draw upon an enlarged and an enriched concep-
tion of culture and tradition, as well as try to bring religious energy di-
rectly to bear in a constructive manner. A recent document issued by a
group of self-styled Third World Christians under the title "The Road to
Damascus: Kairos and Conversion" is a fascinating contribution to this
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52 Richard Falk
God is on the side of the poor, the oppressed, die persecuted. When this faith
is proclaimed and lived in a situation of political conflict between the rich
and the poor, and when the rich and the powerful reject this faith and con-
demn it as heresy, we can read the signs and discern something more than a
crisis. We are faced with a Kairos, a moment of truth, a time for decision, a
time for grace, a God-given opportunity for conversion and hope.23
Maybe we have lived with too much of them for too long. Mass death and
suffering, we, as a society are keen to exorcise quickly. How else do we ex-
plain the near absence of a civic and humanitarian response to either the
Bhopal disaster, or the subsequent governmental callousness? Nor are we, for
that matter, very bothered about the thousands of hungry who swarm around
vis as beggars.25
They conclude, "None of this augurs well for human rights conscious-
ness." In passing, it should be noted that cultural callousness is present in
the West as well—it does not take long to learn that in public places in the
United States it is best to avert one's eyes from the often horrific spectacle
of homelessness. By averting our eyes, we arc keeping "the intolerable"
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Cultural Foundations for Protection of Human Rights 53
India's cultural traditions, they argue, generate and arc responsible, in vari-
ous respects, for a significant portion of this oppressiveness; but the same
culture, as they remind us, is also diverse enough to generate liberatory
ethical and political possibilities. As with An-Nacirn's approach to Islam,
this Indian effort emphasizes a root cultural/religious possibility of work-
ing within the Hindu framework for peace and justice, a possibility given
historical plausibility by Gandhi's extraordinary exemplification of what
Hinduism, reconstructed, could mean for all forms of social relations in
the modern world. While An-Nacim emphasizes mainly doctrinal per-
spectives as a foundation for action, Kothari and Sethi (and their
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54 Richard Falk
the Christian message under the sway of ecofeminism, has been silenced
for a year by Cardinal Joseph Ratzinger, the chief Vatican guardian of
orthodoxy.34
My conclusion is that the prospects for human rights arc linked to
the prospects for cultural reconstruction and that these prospects depend
upon an open process of communication, free from dogmatic interfer-
ences. It is only from within the spiritual and humanistic core of civil
society that restorative energies can emerge to redress cultural imbalances.
History may move, but global circumstances are exceedingly uneven. The
core of human rights is one thing for the Kairos group, another for Soli-
darity in Poland, still another for Indians beset by menacing communal
violence, another for those seeking to perpetuate and protect the cultural
forms of indigenous peoples, and still another for the ecologically threat-
ened West. It is ironically appropriate that the birthplace of modernity
should also be most audibly in its death throes in this period. Europe 1992
is a continuation of the cult of modernization in a more efficient form of
larger aggregations of capital; but it is also a stimulus to ecological
consciousness, proceeding by way of reorienting territorially based geo-
politics. The electoral success of the Greens in Europe is, above all, an
indication of deep cultural ferment, including a very different fix on
what upholding human rights entails from the orientation implied in the
Enlightenment.
My closing self-indulgence is to offer a few comments on the affair of
Salman Rushdie that follow from the preceding analysis. Let me stake a
small personal claim. I am probably one of a very small number of wan-
derers on this planet that has had the experience of a personal meeting
with both Rushdie and his now deceased adversary, Khomeini. Reduced
to essentials, the turmoil generated by the publication of The Satanic Verses
cries out for careful reflection from many distinct angles. To begin with,
Khomeini's reaction was grounded in a widespread Islamic sense that
Rushdie's novel exceeded the boundaries of literary convention, that it was
deliberately provocative by scandalizing the Prophet Muhammad and his
associates.351 have discussed the book with several friends living in various
Islamic countries who are not themselves religious yet found the book
deeply offensive to their Muslim identity, leading them to regard Rush-
die's literary exploits as an almost pathological expression of creative tal-
ent.36 Of course, the glory of Western liberty is based on protecting
precisely those forms of expression thus castigated at the time of their
utterance; but such an achievement itself depends on what might be called
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58 Richard Falk
Notes
California Press, 1985); George Konrad, Anti-Politics (New York: Harcourt Brace
Jovanovich, 1984); Mary Kaldor, Gerard Holden, and Richard Falk, eds., The New
Detente (London: Verso, 1989).
29. Of course, casual inferences arc notoriously difficult to make. The situa-
tion in Eastern Europe was also deeply influenced by the changed role of Soviet
hegemony as a result of Gorbachev's "new thinking" in foreign policy.
30. Of course, adherence need not be explicit, or by way of a formal accep-
tance of international agreements; it is generally accepted by international law ex-
perts that most of the standards contained in the Universal Declaration and two
covenants arc part of general international law binding on all states.
31. To the extent that a state distances itself from geopolitics while still par-
ticipating on the normative side of international relations, it possesses greater
credibility on human rights issues. Sweden is an important positive case, although
it is arguable how far it has truly withdrawn from geopolitics,
32. I share the view that up until the time of this writing, October 1989, the
intifada has waged its struggle against Israeli occupying authorities by a reliance
on "relative nonviolence" of a generally principled character, typified both by the
ratio of casualties and by the use of stones as symbols of defiance (more than
weaponry) against Israeli occupying authorities armed with the latest versions of
automatic weaponry.
33. This repudiation is directed only at the excesses of modernization and is
not meant to imply a wholesale rejection of efforts to use science and technology
for human benefit. On the contrary, preserving these positive aspects of modern-
ization at this time in history requires a more careful and critical application of
Enlightenment ideas, possibly restructured around principles of wholeness and
planetary vulnerability.
34. See Matthew Eox, The Cosmic Christ (New York: Harper and Row, 1988);
cf. also Matthew Eox, "Is the Catholic Church Today a Dysfunctional Family? A
Pastoral Letter to Cardinal Ratzinger and the Whole Church," Creation 4 (1988):
23-28.
35. For one balanced, insightful assessment see Shiraz Dassa, "What Rushdie
Knew," Cross Currents ^f) (1989): 204-12.
36. Such an assessment would not have led them personally to favor any kind
of restrictions on the distribution of Rushdie's book; but it did lead them to a
more sympathetic understanding of the ruler's dilemma in such countries as Egypt,
Pakistan, Malaysia, and even India. Cf. the statement on the Rushdie incident that
was signed by more than seven hundred writers, including many of the most cele-
brated, published on the front page of the Times Literary Supplement, March 3-8,
1989. Rushdie's own view of Islam is evidently consistent with that proposed here
of conceiving of much space for intracultural dialogue and reconstruction. See
Rushdie, "An End to the Nightmare" [published prior to The Satanic Verses and
relating to Zia's fundamentalism in Pakistan] Seminar (Delhi, India), 351 (1988):
14—15.
37. Tentatively, there appears to be an analog}' to feminist efforts to prohibit
the publication of pornography on grounds of its abusive portrayal of women.
3. Making A Goddess
of Democracy from Loose Sand
Thoughts on Human Rights
in the People's Republic of China
China has always been called a loose sheet of sand. . . . [Absent the
Communist Party] China will retrogress into divisions and confusion
and will then be unable to accomplish modernization.
—Deng Xiaoping in 1980
The Beijing Spring1 of 1989 poses all too sharply the issue that lies at the
core of this volume of essays and of the work of many of its contributors:
To what extent are conceptions of human rights universal? Advocates of
universality can point to those Chinese students, workers, and other citi-
zens who at great sacrifice sought fundamental freedoms of assembly and
of the press while demanding that their voices be heard. Conversely,
scholars espousing the view that human rights arc culturally specific or
relative can argue that the Chinese leadership's brutal crushing of the pro-
democracy movement and the seeming acquiescence of the larger populace
therein demonstrate how foreign the ideas of human rights expressed in
major international conventions concerned with civil and political rights2
arc to Chinese civilization.
This chapter suggests that just as the mid-May portrayals of the tri-
umph of democracy in the People's Republic of China (PRC) and mid-
June characterizations of the inevitability of authoritarianism there were
overdrawn, so too, the dichotomy between universality and cultural speci-
ficity in the area of human rights is often overstated. The first part, "The
Pro-Democracy Movement and the Universality of Human Rights," ex-
amines the rhetoric and actions of the PRC's pro-democracy movement in
an effort to identify respects in which it may or may not affirm notions of
universality. The
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66 William P. Alford
declared that just as worldwide there was but one physics, so, too, could
there be but a single democracy encompassing the types of civil and po-
litical liberties set forth in the Universal Declaration of Human Rights.13
Although the students who formed the vanguard of the pro-democracy
movement chose not to echo Fang directly, from its inception the "Au-
tonomous Student Union of Beijing" called for freedom of the press,14
while also endeavoring to constitute itself democratically.15 And as in the
days prior to martial law the movement came to include rapidly increasing
number of teachers, journalists, bureaucrats, workers, and other citizens,
calls for "democracy and science"—in which were blended what were per-
ceived to be the essence of international human rights—became ever more
abundant. 16
Responses by demonstrators and others, prior to June 3, 1989, to the
declaration of martial law, drew even more heavily upon the language and
themes of international human rights. Students who had previously di-
rected their energies toward sincere, if unworkable, demands for televised
"dialogue" with the leadership now spoke of thoroughgoing democrati-
zation of China's political processes.17 A full third of the members of the
Standing Committee of the PRC's National People's Congress sought to
deal with the crisis by petitioning for a special meeting of the Committee
to review the legality of the martial law declaration,18 And notwithstand-
ing the government's reimposition of tight controls over the media, calls
for increased human rights continued.19
The brutality of the leadership's efforts to suppress the pro-democracy
movement from June 3, 1989, evidenced the futility of moral appeals to the
leadership and consequently had a radicalizing effect upon many involved
with or sympathetic to the movement. This, not surprisingly, led some to
shift their focus from goals to tactics, including calls for the use of violence
against both symbols of the Chinese leadership and foreigners viewed as
collaborating with the authorities. 20 Nonetheless, for many more, the
slaughter perpetrated by the ironically named People's Liberation Army
and the subsequent widespread purges have reaffirmed how important it
is that China move in a direction of greater respect for legality and for
what are understood to be international human rights.21
To move beyond the monolithic picture of the forces espousing
greater democratization presented in the United States media and to por-
tray its features inconsistent with international human rights is not to
denigrate that movement. Instead, it is to take seriously what the move-
ment had to say, rather than merely hearing one's own voice in its words.22
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68 William P. Alford
accorded these "hairy barbarians,"49 who they did not sec as fully human,
extraordinary privileges,50 by the mid-eighteenth century the Europeans
were distressed with what they construed as an absence in Chinese justice
of respect for fundamental human dignity.51 These differing visions came
to a head in the Opium War (1839-4.3)52 and the treaties flowing there-
from, pursuant to which the British—and later the United States and
other so-called Treaty Powers—provided that foreign nationals commit-
ting offenses against Chinese in China would be tried by foreign officials
pursuant to foreign law.53 So it was that, in the name of humanity and
legality, Britain fought a brutal war on behalf of opium sales that resulted
in the semicolonial imposition of a legal system that in. many respects rep-
licated what was supposedly most deficient in the Chinese system.54
Defeat in the Opium War and the imposition of a system of extrater-
ritoriality shocked Chinese thinkers, raising fundamental questions as to
how China might restore its earlier power and independence. Initially,
Chinese "self-strengtheners" assumed that the issue was simply one of ac-
quiring Western armaments and other items of advanced technology.55
When these early efforts proved incapable of appreciably altering the bal-
ance of power vis-a-vis the West, a second wave of intellectuals argued that
while society should essentially be preserved as it was, China needed to
emulate certain of the institutions and forms of the West.56 Some called
for the adoption of representative government and equality before the law,
but not as ends. Instead, these foreign ideas were seen as having been
instrumental in the West's rise to power and, as such, capable of strength-
ening China by enhancing the bond between ruler and people.57
The failure of such instruments—which the Qing dynasty (A.D.
164-4—1912) adopted only grudgingly and in limited form in its last
years58—persuaded yet other late nineteenth- and early twentieth-century
thinkers that more was needed if the challenges of the day were to be met.
China could only be saved as a state and, indeed, as a civilization, it was
felt, if the very core of traditional Chinese ways of thinking was revised to
take serious account of "modern" ideas of rights and democracy. While
advocates of these views did not necessarily address the definition of an
individual as such, implicit in the reordering for which they called was a
different notion of what it meant to be human. Eager to transcend the
hierarchical and other bonds imposed by Confucianism while preserving
its more worthy features, they spoke increasingly of equality as an objec-
tive, rather than merely an instrument. Most prominent among them was
Sun Yat-sen, who argued that only adoption of a hybrid system of
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72 William P. Alford
government that blended together what he saw as the best of East and
West could keep the "loose sand" that was China from falling into dis-
order.59 And yet even Sun—and other proponents of such reform—
evidenced something less than complete faith in their fellow Chinese, as
they advocated withholding the franchise from China's largely rural and
uneducated populace until it had undergone a period of "tutelage."
The popularity that the ideas of Sun and others of like mind gained
among Westernized intellectuals and foreign sympathizers masks their
relative ineffectual! ty.60 The models that they sought to emulate presumed
conditions that did not—and still do not—obtain in Chinese society, such
as political stability, an independent press, a professional bench and bar,
and, perhaps most tellingly, a leadership ultimately willing to share its
power with the populace.61 Even had these conditions obtained, it is un-
clear what effect the ideas in question might have had, given the degree to
which they ran counter to so many fundamental dimensions of Chinese
thought 62 —including its definition of what it meant to be human.
What is clear is that another Western import—albeit in such highly
sinicized form that its pregenitors63 and advocates outside of China64
would hardly have recognized it—did carry the day. As it swept to power,
Chinese Communism spoke of redefining and enhancing the humanity of
a wide range of persons essentially at the bottom of traditional Chinese
society. Both theoretically and concretely, Chinese Communism addressed
itself to the situation of the vast rural underclass, a much smaller urban
proletariat, and Chinese women in general. In theory, the new state was
said to be led by an alliance of peasants, workers, and others who had
historically been deemed unworthy of ruling.65 More concretely, the Peo-
ple's Republic in its early years engaged in social engineering on a scale
heretofore unknown, redistributing land,66 liberating women from im-
posed wedlock,67 tackling illiteracy and disease,6" and confronting other
enduring social problems.6y
Nonetheless, for all its differences in rhetoric and advances in material
conditions, Chinese Communism not only bore the imprint of many ele-
ments of earlier Chinese ideologies regarding what it means to be human,
but also may well have been successful because its mass appeal was cast
in such terms. Although rejecting Confucianism, Chinese Communism
shared with it—at least relative to Western liberalism—an emphasis upon
collective welfare and a sense that a morally superior elite was uniquely
positioned to prevent China's "loose sand . . . from retrogress [ing] into
divisions and confusion," as Deng Xiaoping put it in 1980, consciously
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Thoughts on Human Rights in China 73
borrowing Sun Yat-sen's words.70 The "rights" of which the PRC Consti-
tutions spoke were neither inherent nor inalienable by virtue of one's hu-
manity.71 Instead, as with Confucian relational bonds, they were a product
of one's status in society (with class replacing family) n meant to be exer-
cised with that end in mind and available, ultimately, for the purpose of
fostering collective welfare.73 And as with Confucianism, moral suasion,
rather than formal legality, was to be the means of prompting wayward
leaders properly to discharge their responsibilities to the populace—as evi-
denced by the absence in each PRC Constitution of any clear legal remedy
for unconstitutional acts.74
Given this heritage and context, it may be appropriate to understand
the pro-democracy movement of 1989 as much as an echo of the Chinese
past as a clarion call to a new future. In using a rhetoric of rights and
legality borrowed from abroad to try to coax a recalcitrant ruler to
abandon its corrupt ways and fulfill its responsibilities to the collective,
the student elite of 1989 bears more than a faint resemblance to the sclf-
strengthcncrs of the late nineteenth century, the eclectic reformers of the
early twentieth century and, for that matter, the Communist Party itself.
And even now the pro-democracy movement—for all its heroism—in
general seems more concerned with the acquisition of proper use of power
to attain the collective good than it does with the value of rights for indi-
viduals in and of themselves, apart from any instrumental function. In
short, as distinct as they may seem to be, these different Chinese schools
of thinking may be closer to one another in their definition of humanity
and concomitant conception of what fosters human dignity than they arc
to the assumptions that undergird those portions of the principal inter-
national conventions devoted to civil and political rights.
Notes
1. I use this term to refer to the events arising in the People's Republic of
China (PRO) between the death of former Chinese Communist Party General
Secretary Hu Yaobang on April 15, 1989, and the installation of Jiang Zemin as
Party General Secretary late in June 1989. It encompasses the so-called pro-democ-
racy movement, the PRC Army's attack on the occupiers of Tiananmen Square and
similar assaults launched elsewhere on June 3—4, and the trials and purges con-
ducted since that time of persons understood by the Chinese government to be
connected with that movement.
2. Here for example, I refer to the United Nations Charter, the Universal
Declaration of Human Rights, and the International Covenant on Civil and Po-
litical Rights. The PRC, although a member of the United Nations, has yet to
endorse the Declaration or ratify the Covenant.
3. See William P. Alford, '"Seek Truth from Facts'—Especially When They
Are Unpleasant: America's Understanding of China's Efforts at Law Reform,"
UCLA Pacific Basin Law Journal 8 (1990): 177.
4. J. K. Eairbank, The Great Chinese Revolution: 1800-108$ (New York: Harper
and Row, 1986), 342-68.
5. On the experience of the intelligentsia in modern times, see A. Thurston,
Enemies of the People: The Ordeal of the Intellectuals in China's Great Cultural Revo-
lution (Cambridge, Mass.: Harvard University Press, 1988), passim.
6. Ibid.
7. For a survey of the many restraints throughout even the best of these
times, see Y. L. Wu, F. Michael, J. Copper, T. L. Lcc, M. H. Chang, and A. J.
Gregor, Human Rights in the People's Republic of China (Boulder Colo.: Westvicw
Press, 1988).
8. See the example of Wei Jingsheng, who argued that the four moderniza-
tions advocated by the Chinese state (of industry, agriculture, technology and the
military) would be possible only if joined with a "fifth" (that is, political) modern-
ization. In 1979, Wei was convicted of "writing counterrevolutionary articles and
editing a counterrevolutionary magazine" (as well as passing materials to a for-
eigner about China's war in Vietnam) and sentenced to fifteen years' imprison-
ment. Timothy Gclatt, "The Bounds of Free Expression in China," Asian Wall
Street Journal (December 18, 1979), 6. For more on Wei, see Amnesty International,
Violations of Human Rights: Prisoners of Conscience and the Death Penalty in the
People's Republic of China (London, 1984), 24—27.
9. Orvillc Schell, "An Act of Defiance," New York Times, April 16, 1989, 27.
The PRC government has been slow to provide its people with news of the
changes underway in Eastern Europe.
10. See supra note 8. In the winter and spring of 1989 Chinese intellectuals
petitioned the government to release Wei. Ibid.
11. See the materials from Ren in Seeds of Fire, Chinese Voices of Conscience, ed.
G Barme and J. Minford (Hong Kong: Far Eastern Economic Review, 1986).
12. Fang Lizhi, Women zhengzai'xieli shi (Taipei: Taipei Reprint, 1987).
13. See the essays of Fang in O. Schell, Discoes and Democracy: China in the
Throes of Reform (New York: Pantheon, 1988). Also see William P. Alford and Fang
Lizhi, "The Image and the (Overrated) Influence," Chicago Tribune, September 21,
1990, 21.
14. "Students Present Demands," Agence France Presse, May 2, 1989, i.
15. For example, the students sought to assure representation from all major
Beijing institutions of higher learning. For a comprehensive compilation of the
views of those taking part in the spring 1989 demonstrations, see Han Minzhu, cd.,
Cries for Democracy (Princeton, N.J.: Princeton University Press, 1990).
16. "The Shattered Dream," Los Angeles Times, June 25, 1989, part I-A.
17. Ibid.
18. The issue of the legality of martial law was raised, for example, in an open
letter by PRC students in the United States to Wan Li, Chair of the National
People's Congress. Zhongguo liu Mei xueren (Chinese Scholars in North America),
"Zi Wan Li dc gongkai xin" (An Open Letter to Wan Li), reprinted in Minyun
zhuanzhi [TheQuest], no. 66 (June 1989): 26—27.
19. See supra note 16.
20. "Return of the Leftist Line," Asiaweek (August 4, 1989): 25; Cheung
Po-ling, "Clandestine Hit Squads Reportedly Forming," Hong Kong Standard,
July 19, 1989, 6; "The Hopes of China," Mother Jones (December 1989), 52.
21. Roderick MacFarquhar, "Outside Agitators for Democracy," U.S. News
& World Report (August 7, 1989), 34.
22. William P. Alford, "On the Limits of 'Grand Theory' in Comparative
Law," Washington Law Review 61 (1986): 945.
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78 William P. Alford
23. See, for example, Thomas Jefferson, Notes on the State of Virginia (New
York: Norton, 1972).
24. Helena Kolenda and Yvonne Chan, "Outsiders in China," Boston Globe,
January 31, 1989, 32.
25. Both the attack by the People's Liberation Army upon essentially un-
armed (if angry) civilians and the martial law imposed on Beijing had precedents
in Tibet. Indeed, the martial law decrees are, in their most important provisions,
virtually identical.
26. See, for example, E. Honig and G. Hershatter, Personal Voices: Chinese
Women in the 1980$ (Stanford, Calif.: Stanford University Press, 1988), 323-25.
27. Alford, supra note 3.
28. Sarah Lubman, "The Myth of Tiananmen Square: The Students Talked
of Democracy But They Didn't Practice It," Washington Post, July 30,1989, Cs.
29. See Article 13 of the Universal Declaration of Human Rights.
30. Ibid.
31. Ibid., Art. 18.
32. Ibid., Art. 23. The PRC has trade unions, but they are state-controlled—
which was a key objection of workers who participated in the pro-democracy
movement.
33. Ibid., Art. 16.
34. Ibid.
35. Ibid., Art. 9.
36. Ibid., Art. n.
37. These problems are discussed in Wu et al., supra note 7.
38. This basic idea was presented by James Feinerman in a talk on human
rights in China at Harvard Law School (April 1989).
39. See Rhoda E. Howard's Chapter 4 and Manuela Carneiro da Cunha's
Chapter n in this volume.
40. See Abdullahi A. An-Na'im's Chapter i in this volume. See also William P.
Alford, "The Inscrutable Occidental: Roberto Unger's Uses and Abuses of the
Chinese Past," Texas Law Review 64 (1986): 915.
41. Alford, ibid., passim.
42. Ibid.
43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. Ibid. Thus, for example, a son striking a father would be punished more
severely than a father striking a son. See "The Case of Hsu Chiing-wei," in
William P. Alford, Chinese Law (unpublished course materials, 1989, section 2),
113.
48. Ibid. Indeed as the case of Hsii Chiing-wci demonstrates, officials were,
in theory, to be punished for misfeasance, as well as malfeasance.
49. Edwards, "Ch'ing Legal Jurisdiction Over Foreigners," in Essays on
China's Legal Tradition, cd. J. Cohen, R. Edwards and F. Chang Chen (Princeton,
N.J.: Princeton University Press, 1980), 222.
50. Ibid.
51. Ibid.
52. Opium was virtually the only commodity the British were able to sell to
balance their earlier huge trading deficit with China. Although there was opium
usage in China prior to British sales, it was relatively modest.
53. G. Keeton, The Development of Extraterritoriality in China (New York re-
prim, 1969), 137-99-
54. W. Fischel, The End of Extraterritoriality in China (Berkeley and Los An-
geles: University of California Press, 1952). The consular legal system established
by the United Kingdom, the United States, and other Treaty Powers could be
faulted on the very grounds on which the West believed Chinese justice to be
deficient. Executive and judicial authority resided with a single official, who typi-
cally had no legal training. The laws were in a foreign language and frequently
inaccessible. And the procedures pursuant to which trials were to be conducted
were unfamiliar and ill-designed to produce a just result.
55. Fairbank, supra note 4, at 100-21.
56. M. Wright, The Last Stand of Chinese Conservatism (Stanford, Calif.: Stan-
ford University Press, 1957).
57. Ibid. '
58. A. Nathan, Chinese Democracy (Berkeley and Los Angeles: University of
California Press, 1985).
59. Sun Yat-sen, San Min Chu I: The Three Principles of the People (Shanghai:
Commercial Press, 1928).
60. E. Friedman, Backward Toward Revolution (Berkeley and Los Angeles:
University of California Press, 1974).
61. Ibid.
62. Andrew Nathan, "Sources of Chinese Rights Thinking," in Human
Rights in Contemporary China, ed. R. Edwards, L. Henkin and A. Nathan (New
York: Columbia University Press, 1986), 125.
63. Karl Marx, "Revolution in China and Europe," New York Daily Tribune,
June 14, 1953; reprinted in Karl Marx, On Colonialism (New York: International
Publishers, 1974), 19—26.
64. V. Lenin, "State and Revolution," reprinted in Essential Works of Marx-
ism, ed. A. Mendel (New York: Bantam Books, 1965), 103.
65. Zhongguo renmin gonghcguo xianfa (People's Republic of China, Pre-
amble to 1982 Constitution). Reprinted in both Chinese and English in Commerce
Clearing House, Collection of Laws and Regulations of China Concerning foreign
Economic and Trade Relations (Melbourne, Australia, 1983), 1-2.
66. Fairbank, supra note 4, at 277—83.
67. Ibid.
68. Ibid.
69. For example, relatively successful campaigns to eradicate opium smoking
and prostitution were launched.
70. "Text of Deng Xiaoping's Report on the Current Situation," quoted in
A. Nathan, supra note 62, at 159.
71. A, Nathan, supra note 58.
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8o William P. Alford
72. J. Cohen, The Criminal Process in the People's Republic of China, 1949-1963:
An Introduction (Cambridge, Mass.: Harvard University Press, 1968).
73. See, for example, the Preamble to the 1982 Constitution, supra note 65.
74. I know of no record of a successful constitutional challenge to any issue
in the forty-year history of the PRC. Nor are any of the PRC legal scholars I know
aware of any such challenges that were successful. For more on constitutions in a
Chinese setting, see Nathan, supra note 58.
75. For a sharp denunciation of the British government's refusal to provide
its non-Caucasian subjects resident in Hong Kong with a right of abode, see Edi-
torial, "Dialogue with the Deaf Produces No Answers," South China Morning Post,
July 5, 1989, 22.
76. For a detailed description of the program, see P. Kane, The Second Billion
(New York: Penguin, 1987).
77. Julie Jimmerson, "Female Infanticide in China: An Examination of Cul-
tural and Legal Norms," UCI-A Pacific Basin Law Journal 8 (1990): 47.
78. Jeffrey Wasserstrom, "Resistance to the One Child Policy," Modern China
10 (July 1984): 359-
79. See Kane, supra note 76.
80. J. Stacy, Patriarchy and Socialist Revolution in China (Berkeley and Los
Angeles: University of California Press, 1983).
81. See supra note 2. In speaking of "dignity," I do not endorse Rhoda E.
Howard's suggestion that dignity in traditional culture perforce entails acceptance
of hierarchy. See her Chapter 4 in this volume.
82. See Kane, supra note 76.
83. M. Whytc, Small Groups and Political Rituals in China (Berkeley and Los
Angeles: University of California Press, 1974).
84. See Richard Falk's Chapter 2 in this volume.
85. Toward that end, reference might be made to the example of Taiwan,
which appears increasingly to be appreciating the value of openness.
86. For example, one might endeavor to demonstrate the link between eco-
nomic development and a media not controlled by the state.
87. Alford, supra note 40.
88. Ann Joyce, "China: United States Withdrawal of Support from the
United Nations Fund for Population Activities," Harvard Human Rights Yearbook
i (1988): 213.
4. Dignity, Community,
and Human Rights
Introduction
In this chapter I argue that most known human societies did not and do
not have conceptions of human rights. Human rights are a moral good
that one can accept—on an ethical basis—and that: everyone ought to have
in the modern state-centric world. To seek an anthropologically based con-
sensus on rights by surveying all known human cultures, however, is to
confuse the concepts of rights, dignity, and justice. One can find affinities,
analogues, and precedents for the actual content of internationally ac-
cepted human rights in many religious and cultural (geographic and na-
tional) traditions;2 but the actual concept of human rights, as will be seen,
is particular and modern, arid representing a radical rupture from the
many status-based, nonegalitarian, and hierarchical societies of the past and
present. In many cultures, the social order stratifies "individuals" in ways
that enhance dignity for some categories of people but leave other cate-
gories dishonored, without dignity or respect. Furthermore, most indige-
nous cultures of the various regions of the world—such as those of North
America, Japan, and China—have privileged the community or the collec-
tivity over the individual.3
Human rights arc a modern concept now universally applicable in
principle because of the social evolution of the entire world toward state
societies. The concept of human rights springs from modern human
thought about the nature of justice; it does not spring from an anthropo-
logically based consensus about the values, needs, or desires of human
beings. As Jack Donnelly puts it, the concept of human rights is best in-
terpreted by constructivist theory:
Human rights aim to establish and guarantee the conditions necessary for
the development
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82 Rhoda E. Howard
underlying moral theory of human nature, thereby bringing into being that
type of person. . . . The evolution of particular conceptions or lists of human
rights is seen in the constructivist theory as the result of the reciprocal inter-
actions of moral conceptions and material conditions of life, mediated through
social institutions such as rights.'
HUMAN RIGHTS
Human rights adhere to the human being by virtue of being human, and
for no other reason. Every human being ought to have human rights, regardless
of status or achievement. In a rights-based political system, a person's human
rights can in principle be removed only under very restricted circum-
stances adjudicable by law (for example, a convicted criminal loses the
right to freedom of movement). Human rights are claims by the individual
against society and the state that, furthermore, "trump" other considerations
such as the legal (but not human) right of a corporation to property. Hu-
man rights are private, individual, and autonomous. They are private be-
cause they inhere in the human person him- or herself, unmediatcd by
social relations. They are consequently individual; an isolated human be-
ing can in principle exercise them. In addition, they are autonomous be-
cause again, in principle, no authority other than the individual is required
to make human rights claims.
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Dignity, Community, and Human Rights 83
This means that the human being who holds rights holds them not
only against the state, but also against "society," that is, against his or her
community or even family. This orientation is a radical departure from the
way most human societies in the past—and many in the present—have
been or are organized. For most human societies, insofar as "rights" might
be considered to be applicable at all, collective or communal rights would
be preferred to individual human rights. The stress on community as
against the individual is reflected in the current debate in international
legal circles over whether "human" rights should also include collective
rights. 7 But the claim for collective rights is a claim for something very
different from human rights; it is a claim that reasserts the value of the
traditional community over the individual. Human rights are an egali-
tarian means of allocating membership in a collectivity to all physical
persons, regardless of status. Collective or community rights imply per-
missible inegalitarian ranking of members in the interests of preservation
of "tradition."
DIGNITY
I define human dignity as the particular cultural understandings of the inner
moral worth of the human person and his or her proper political relations with
society.8 Dignity is not a claim that an individual asserts against a society;
it is not, for example, the claim that one is worthy of respect merely be-
cause one is a human being. Rather, dignity is something that is granted
at birth or on incorporation into the community as a concomitant of one's
particular ascribed status, or that accumulates and is earned during the life
of an adult who adheres to his or her society's values, customs, and norms:
the adult, that is, who accepts normative cultural constraints on his or her
particular behavior. In many prclitcrate societies, individuals who chose
not to earn such dignity, who consistently violated instead of obeying the
underlying social norms, were cast out through exile or through conver-
sion into slaver}'. As the sociologist Orlando Patterson explains, as slaves
they lost all honor (or dignity) and suffered "natal alienation"; that is, they
were literally cast out from their own family group and removed from the
networks of privileges and obligations that tied society together.9
Many indigenous groups (that is, the remnants of precapitalist soci-
eties destroyed—physically, culturally, or both—during the process of Eu-
ropean conquest and/or settlement) now make claims for the recognition
of their collective or communal rights. When they do so they are not pri-
marily interested in the human rights of the individual members of their
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84 Rhoda E. Howard
JUSTICE
Different societies have different conceptions of social justice. I define so-
cial justice as the means by which all members of a society are treated in a
fashion considered respectful of their (culturally defined) social station. Justice
consists of rules of appropriate social behavior and rules of fairness. Fair-
ness, in most societies, does not imply equality either of wealth or of social
status. What is fair varies according to whether one is young or old, male
or female, "citizen" or stranger, chief, freeman, or slave; and within these
summary categories, there arc: infinite gradations of status, such as can be
seen in the caste system of India.
There arc some indications of a cross-cultural, anthropologically
based consensus of what fairness ought to entail. Barrington Moore, Jr.,
for example, suggests that in almost all societies, everyone is expected to
work and there is a minimum level of subsistence that a working person
can rightfully expect from the society at large. There arc, he believes, "in-
dications of a widespread feeling that people, even the most humble mem-
bers of society, ought to have enough resources or facilities to do their job
in the social order."11 But as his reference to the "most humble" member
of society indicates, even if one is treated fairly, one is not necessarily
treated equally. Status differences mean differences in dignity, in the re-
spect to which one is entitled, and in the type of justice one can therefore
expect.
In modern liberal-democratic societies, the idea of different laws for
different categories of persons is anathema. All are subject to the same
rules. But in many past societies, laws varied depending on one's social
category, and such variation was considered "just" by the majority of citi-
zens socialized into that society. Thus, for example, if a European lord
exercised his droit du seigneur over a peasant woman (the right to have
sexual intercourse with her prior to marriage), that was not considered
rape, whereas a sexual advance by a peasant male to a noble's daughter
risked a severe penalty. For the same crimes, lords received more humane
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86 Rhoda E. Howard
This docs not mean that human rights arc not relevant, in the late
twentieth century, to those societies in the world that retain precapitalist,
nonindividualist notions of human dignity, honor, and the social order.
The rise of the centralized state makes human rights relevant the world
over. It does mean that to look for universalistic "roots" of human rights
in different social areas of the world (often crudely summarized in geo-
graphical terms as "Africa" or "Asia") or in different religious traditions,
is to abstract those societies and religions from culture and history. One
can find, in Judaism and Christianity for example, strong moral analogues
to the content—although not the concept—of contemporary human
rights. But one can also find moral precepts justifying inequality and de-
nial of what arc now considered fundamental human rights. In the words
of Arthur Schlesinger, Jr.:
left, men with cleanliness and women with dirt, and a host of other di-
chotomous interpretations of the obvious biological dichotomy of the hu-
man world, ensure that the sun will rise and set as it should, that the gods
will not suddenly destroy all. Anomaly and ambiguity, as Mary Douglas
has informed us, arc shunned; in the marginal interstices between orderly
categories danger lies:
The easiest and clearest social distinction to make is between men and
women; in many societies, as our own language reflects, the male is the
standard of humanncss and the female is the deviation. As Simone de
Bcauvoir put it in her classic feminist meditation, to be female is to be the
existential "Other."18 The female is the threat, in many cultures, to the
orderliness created by males. Her body alone violates order; she bleeds
though she is not wounded. The female possessed of knowledge threatens
the orderly acquisition and delimitation of society's cognitive symbols cre-
ated—in most cultures—by her male status superiors; thus from Eve to
medieval wise-women 19 and beyond, Judeo-Christian culture has pun-
ished the woman who exercises the human capacity for self-reflection with
its attendant threat of making claims upon society.
way of promoting social order. The new, relatively more "humane" guil-
lotine was extolled because "|t]he grandeur and elegance of the spectacle
will attract many more people to the place of execution; more people will
be impressed, and the rule of law will be more greatly respected."26 In
contemporary times, as the social order breaks down in countries such as
Nigeria, public executions have become very popular: when increasing
poverty tempts millions to theft, the execution of thieves validates the law-
abiding citizen's choice to stay "poor but honest."
Physical punishment, then, is not inhuman. It is a manifestly human
way of forcing deviant or recalcitrant individuals to reintegrate into so-
ciety, to become, again, conforming social being rather than threatening
individuals. Torture is used on actual deviants—and execution is displayed
to potential deviants—for lack of "better," less physical and more psycho-
logical means of enforcing conformity. Personal sadism is not at the root
of torture. Even the Nazi Gestapo, undoubtedly one of the cruelest orga-
nizations of torturers ever to exist, was interested in Soviet methods of
punishment. 27 Presumably this was because the Soviet secret police had
devised sophisticated psychological means of extracting confession, con-
formity, and acknowledgment of the legitimacy of the Stalinist moral
order that did not rely on physical torture.28 While some sadistic Nazis
enjoyed torture for its own sake, for others torture was merely a means in
an extreme situation to create the new Aryan community to which indi-
vidualism, privacy, and autonomy were a threat.
Before slavery people simply could not have conceived of the thing we call
freedom. Men and women in premodern, nonslavcholding societies did not,
could not, value the removal of restraint as an ideal. Individuals yearned only
for the security of being positively anchored in a network of power and au-
thority. Happiness was membership: being was belonging. . . . '6
any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
(a) killing members of the group
(b) causing serious bodily or mental harm . . .
(c) deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction . . .
(d) imposing measures intended to prevent births
(c) forcibly transferring children of the group to another group. 4 '
While the issue of intent could be debated in the Canadian context, all of
the above measures except possibly (d) — (assuming that the high rates of
sterilization of Native women have not been actual policy measures)—
have been inflicted upon Canada's Native peoples at various times since
contact with European settlers, including the present.
That the liberal principles of human rights continue to be violated in
practice in Canada and other liberal societies is not surprising. The con-
servative values of community and family still motivate many Canadians,
as for example, the establishment of the "REAL" (family-oriented)
Women of Canada movement, and the Christian Heritage Party in the
Hamilton, Ontario, area in the last few years testifies. The stress on com-
munity and patriarchal family is easily compatible with ethnocentrism. In
most societies, there are strong divisions between insiders and outsiders.
In preliterate societies, people not belonging to established ancestrally
based or patron-client networks are generally considered to be strangers,
and sometimes they are considered natural slaves.
In liberal societies, the only distinction that is supposed to be made is
between citizen and alien; hence the continued questions in Canada, for
example, of whether alien refugee claimants should be accorded the full
legal protections automatically available in principle to any Canadian citi-
zen. Citizenship is a legal category not intuitively recognizable by many
Canadians who continue to think in terms of cultural group membership,
and to acknowledge as their equals in practice only those who are co-
members of their same "racial" (phenotypical), ethnic, linguistic and/or
religious group. In 1981, for example, some 31 percent of Canadians said
they would support a whites-only Canada.42 Under such circumstances
"self-determination in the sphere of membership"43 (i.e., the right of a
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Dignity, Community, and Human Rights 97
community to decide who shall join it) can easily violate basic human
rights provisions for nondiscrimination. The demand for collective rights
can become a mask for conservative attempts to retain discriminatory
communities that deny equal and individual human rights.
(dress, demeanor) as well as through long hours of hard work. Finally, one's
spiritual health is now also one's own responsibility: "self-fulfillment" is
an individualized matter, depending on one's recognition and satisfaction
of one's own "potential," abstracted from family or community.
Such a culturally individualized society results in extreme strain for
many people, a strain that can be overcome by a return to "fundamental"
values of home, community, or church.51 Conservatism has its attractions
even in a liberal or social democratic society. Human rights can be com-
patible with a political conservatism that accepts the fundamental princi-
ples of rights even while, in the political marketplace, asking for more
attention to be paid to family and community. When conservatism denies
the fundamentally individual aspect of human rights, however, then it is
positing a radically different notion of human dignity and social justice.
It is in this sense that human (individual) rights and collective rights
are incompatible. Human rights is, to repeat, one particular conception of
human dignity and social justice. It is not synonymous, despite their join-
ing in the Universal Declaration of Human Rights, with human dignity.52
All societies and all social and political philosophies have conceptions of
human dignity. Some of these—especially those rooted in the view that
nation, "people," community, or family must take precedence over the
individual—are radically at odds with the idea of human rights. The recent
tendency to substitute collective rights for human rights in international
debate, or to assume that the two types of rights can exist compatibly, fails
to note this crucial difference.
Conclusion
Notes
1. I am most grateful to Susan Dicklich and Lisa Kowalchuk for their research
assistance on this chapter.
2. This point is made by Louis Henkin, "Human Rights and the Judeo-
Christian Tradition," a paper presented at a workshop on Cross-Cultural Perspec-
tives on Human Rights in Africa at the Woodrow Wilson International Center for
Scholars, Washington, D.C. (June 23-24, 1988), 4.
3. On China and Japan, see James D. Seymour, "China," and Lawrence W.
Beer, "Japan," in International Handbook of Human Rights, ed. Jack Donnelly and
Rhoda E. Howard (New York: Greenwood Press, 1987), 75—97 and 209—26. On
Canadian Indians, see Mcnno Boldt and J. Anthony Long, "Tribal Philosophies
and the Canadian Charter of Rights and Freedoms," Ethnic and Racial Studies 7
(1984): 478-93-
4. Jack Donnelly, The Concept of Human Rights (London: Croom Helm,
1985), 32, 35 (emphasis added).
5. For an extended discussion of what I mean by the term "liberalism," see
Rhoda E. Howard and Jack Donnelly, "Human Dignity, Human Rights and Po-
litical Regimes," American Political Science Review 80 (1986): 805—7; and Neil
Mitchell, Rhoda E. Howard, and Jack Donnelly, "liberalism, Human Rights and
Human Dignity" (a debate), American Political Science Review 81 (1987): 921—27.
6. See, for example, the discussion by Abdullahi A. An-Na c im on how the
religious precepts of Islam can buttress modern human rights ideals. "Religious
Minorities under Islamic Law and the Limits of Cultural Relativism," Human
Rights Quarterly 9 (1987): 14-18. See also Henkin, supra note 2.
7. For example, Koo VanderWal, "Collective Human Rights: A Western
View," in Human Rights in a Pluralist World: Individuals and Collectivities, cd. Jan
Bcrting et cd. (Westport, Conn.: Mecklcr, 1990), 83 — 98. See also Chapter 6, by
Michael McDonald, in this volume.
8. This is a revision of the definition I use in Howard and Donnelly, "Human
Dignity," supra note 5, at 802.
9. Orlando Patterson, Slavery and Social Death: A Comparative Study (Cam-
bridge Mass.: Harvard University Press, 1982), part i.
10. On this issue, see Boldt and Long, supra note 3, at 482—84.
11. Harrington Moore, Jr., Injustice: The Social Bases of Obedience and Revolt
(White Plains, N.Y.: M. E. Sharpe, 1978), 47.
12. Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), 26. See
also Susan Brownmiller, Femininity (New York: Fawcctt Columbine, 1984), 86.
13. Patterson, supra note 9.
14. George Herbert Mead, Mind, Self and Society (Chicago: University of
Chicago Press, 1962), 173—78.
15. Peter Bcrger, Brigitte Berger, and Hansfricd Kellner, The Homeless Mind:
Modernization and Consciousness (New York: Vintage Books, 1973), 86.
16. Arthur Schlesinger, Jr., "The Opening of the American Mind," New York
Times Book Review, July 23, 1989, 26 (emphasis added).
17. Mary Douglas, Purity and Danger: An Analysis of the Concepts of Pollution
and Taboo (London: Routledge arid Kegan Paul, 1966), 162.
18. Simonc de Bcauvoir, The SecondSex (New York: Modern Library, 1968), 51.
19. Mary Daly, GynlEcolqgy: The Metaethics of Radical Feminism (Boston:
Beacon Press, 1978), chap. 6, "European Witch Burnings: Purifying the Body of
Christ."
20. On the church and deviance, see Peter Laslett, The World We Have Lost—
Further Explored (London: Methuen, 1983), chap. 7, "Personal Discipline and So-
cial Survival."
21. Waterstone literary Diary 1989 (London: Waterstone and Company, 1988),
entry for August 6.
22. On shunning among the Amish, see the film Witness. For a sociological
analysis of the practices of shunning and ostracism, see Erving Goffman, Stigma
(Englewood Cliffs, N.J.: Prentice-Hall, 1963).
23. International Covenant on Civil and Political Rights, 1966, Article 7 (em-
phasis added).
24. For a brilliant fictional depiction of societies in which honor is a matter
of major concern, see the novel bv the Lebanese author Amin Maalouf, Leo Afri-
canus (New York: Norton, 1988).
25. Gcrda Lerncr, The Creation of Patriarchy (New York: Oxford University
Press, 1986), 116. See also Susan Brownmiller, Against Our Will: Men, Women and
Rape (New York: Simon and Schuster, 1975), 9.
26. From Voices of the French Revolution, cd. Richard Cobb and Colin Jones
(Topsficld, Mass.: Salem House, 1988), quoted in "Noted, with Pleasure," New York
Times Book Review, July 30,1989, 31.
27. Robert Jay Lifton, The Nazi Doctors: Medical Killing and the Psychology of
Genocide (New York: Basic Books, 1986), 290.
28. For the classic fictional account of Stalinist methods of social control, see
Arthur Koestler, Darkness at Noon (Harmondsworth: Penguin Books, 1971 [ist ed.,
1940]).
29. Erving Goffman, "The Nature of Deference and Demeanor," in Three
Sociological Traditions: Selected Readings, ed. Randall Collins (New York: Oxford
University Press, 1985), 215—32.
30. Vincent Crapanzano, Waiting: The Whites of South Africa (New York:
Vintage Books, 1986), 40—41.
31. Morris Davis and Joseph F. Krauter, The Other Canadians: Profiles of Six
Minorities (Toronto: Mcthucn, 1971), 45.
32. Max Weber, The Protestant Ethic and the Spirit of Capitalism (New York:
Charles Scribner's Sons, 1958).
33. Rhoda E. Howard, "Entrcprencurship and Economic Development: A
Critique of the Theory" M.A. thesis, Department of Sociology, McGill Univer-
sity, 1972.
fully conscious of the glaring disparity between wealth and poverty in the
world. Non-Westerners have also criticized the excessive individualist ori-
entation of Western rights theory, since "community" and the role of
groups are perceived as particularly important within many non-Western
cultures. In many parts of the world, the most egregious violations of
human dignity are the degrading poverty and inhumane conditions of life
of millions of individuals, giving rise to a growing conviction that any
conception of human rights must encompass economic and social rights.
Upendra Baxi, an Indian academic and activist, has expressed this percep-
tion well, paraphrasing Ronald Dworkin's work, Taking Rights Seriously,
by referring to the need to "take suffering seriously."8
The preoccupations evident in Mounier, Maritain, and Unger's theo-
ries of rights grow out of contemporary historical experiences and re-
semble the preoccupations expressed by many non-Western commentators
on rights. All three view human rights standards as evolving over time and
as reflecting particular historical circumstances. Thus, new standards may
evolve depending on newly perceived social needs; also, evolution is pos-
sible within particular cultural traditions. These basic perceptions indicate
an openness to evolution within the Western cultural tradition, an open-
ness that seems requisite to appreciating the approaches of other cultural
traditions.
To be a person is to transform the "one" into the "we." The person always
lives in a world peopled by other persons . . . the notion of person always
entails an elan which carries one beyond one's self.18
personalist . . . and communal, because it recognizes the fact that the person
tends naturally towards society and communion, in particular towards the
political community, and because, in the specifically political sphere and to
the extent that man is a part of political society, it considers the common
good superior to that of individuals."
Unger states that his whole program of "empowered democracy" can "be
read as a vision of the forms and conditions of human community."20 In
emphasizing the importance of personal relationship to the development
of the institutions of an empowered democracy he writes that "[a]t the
center of this revised approach to direct personal relations stands a concep-
tion of community as a zone in which the increased acceptance of mutual
vulnerability makes it possible to multiply ways of diminishing the conflict
between attachment to other people and the claims of self-consciousness
and self-possession."21
pluralist, because it assumes that the development of the human person nor-
mally requires a plurality of autonomous communities which have their own
rights, liberties and authority; among these communities there are some of a
rank inferior to the political state, which arise either from the fundamental
exigencies of nature (as in the case of the family community) or else from the
will of persons freely coming together to form diverse groups. Other com-
munities are of a rank superior to the State, a s . . . in the temporal realm, that
organized international community towards which we aspire today.22
[T]he assertion of the 'absolute value of the human person' was not simply
an abstract affirmation of human dignity but rather a movement of defence
against two antithetical threats. . . . It mirrored the desperate effort of intel-
lectuals in the early nineteen-thirties to navigate a 'third way' between capi-
talism and communism.23
Those whom, for want of a better name, I just called the advocates of a
liberal-individualist type of society, see the mark of human dignity first and
foremost in the power of each person to appropriate individually the goods
of nature in order to do freely whatever he wants; the advocates of a com-
munistic type of society see the mark of human dignity first and foremost in
the power to submit these same goods to the collective command of the
society body in order to 'free' human labor (by subduing it to the economic
community) and to gain the control of history; the advocates of a personal-
istic type of society see the mark of human dignity first and foremost in
the power to make these same goods of nature serve the common conquest
of intrinsically human, moral, and spiritual goods and of man's freedom of
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ii4 Virginia A. Lcary
A great source of consolation and hope for Mounier was the personalist com-
munity which he founded at Chatenay-Malabry. . . . Six or seven intellectuals
and their families could live comfortably in Les Murs Blancs. At first they all
ate meals in common but this was soon abandoned in favour of periodic,
optional, common meals. A happy balance was achieved between privacy and
community life, intellectual and spiritual collaboration, and the pursuit of
individual careers. . . . For several decades, some of France's leading intellec-
tual figures have lived in friendship and harmony at Chatenay-iMalabry, living
in community according to Mounier's inspiration. Self-conscious avant-garde
Christians, they have welcomed visitors from around the world and sought
to demonstrate by example that their pcrsonalism is more than an intellectual
position.-'"
The questions dealt with here belong to that section of philosophy which
Aristotle and St. Thomas called Practical, since in a general way it includes
the whole philosophy of human action. . . . Practical philosophy is still phi-
losophy and remains a mode of speculative knowledge; but, unlike meta-
physics or natural philosophy, it is from the outset directed to action as its
object, and however large a part verification of fact may play in it, however
much it must needs take historical necessities and conditions into account, it
is above all a science of freedom.-'2
Maritain wrote, among other things, on the relation between religious and
temporal concerns and between church and state, on the rights of workers,
on democracy, and on an international political order. While he did not
take an active role in political affairs, he expressed himself on current
political issues, protesting the bombing of Madrid and Guernica by the
Franco forces at a time when many of his fellow Catholics in France and
elsewhere were supporting Franco against the Loyalists, whom they re-
garded as persecutors of the Church. He became part of the French dele-
gation to the second Conference of UNESCO held in Mexico City and
participated actively in early discussions aimed at elaborating a truly in-
ternational conception of human rights. Particularly in his later books,
Maritain evidenced a continuing concern for the political and social impli-
cations of his philosophical orientation.
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n6 Virginia A. Lcary
The undersigned States recognize the authority over individuals and societies
of a certain number of rights attaching to the existence of the human com-
munity, not deriving either from the individual or the state, but having
double roots:
1. The good of persons
2. The life and normal development of persons within the natural com-
munities where they have been placed: families, nations, geographic and
linguistic groups, work communities, affinity groups and groups based on
particular beliefs. . . .
The proper function of the State is to actively assist both the independence
of persons and the life of communities: the first, against the menacing tyranny
of groups; the second, against the constantly reborn anarchy of individuals.
An organism independent of the State should be established to judge die
abuses of power by the State.37
resources necessary for "a life worthy of man," to necessary leisure, and to
social security. Each of the rights is spelled out in some detail. Civil and
political rights and economic and social rights are not divided into sepa-
rate categories.
Part 2 of the personalise declaration is labeled, "Rights of Communi-
ties." One of the most divisive issues in contemporary human rights theory
and practice is whether groups have rights as well as individuals. The issue
has great practical importance for indigenous peoples and ethnic groups.
Perceiving the existential need for a concept of group rights, a number of
theorists are endeavoring to fit a concept of group rights into liberal ide-
ology. Michael McDonald, for instance, has discussed the difficulty of do-
ing so.38 Group rights can be made to fit the liberal ideology, which is
fundamentally individualistic, only by stretching the concept of liberalism
until it snaps and is no longer recognizable as liberalism.39 A different
ideology is required. A concept of group rights is an essential aspect of
Mourner's personalist perspective. The personalist declaration also recog-
nizes individual rights and, as is apparent from the excerpt quoted above,
the personalist regards rights as a protection against the "tyranny of
groups" as well as against the tyranny of the state. In the 19405 in France,
the concept of rights for groups was supported not only by personal-
ists. The conviction of the importance of collectivities intermediate be-
tween the individual and the state had been "in the air" in Europe for a
long time.
Article 27 expresses the basic approach of the section of the declara-
tion on the rights of communities:
There exist natural communities. Born outside the State, they cannot be sub-
ject to it. Their spontaneous powers limit the power of the State. They should
be represented as such within the State.
Each nation possesses an absolute right to the independence of its culture, its
language, its spiritual life, but not to unconditional political sovereignty.
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Pcrsonalist-Communitarian Perspectives 119
Each nation must protect, within the limits of its cohesiveness, its regional
communities and ethnic, linguistic or religious groups.
Article 33 relates to the use of economic resources and presages the later
development of concepts of "the common heritage of mankind" and the
"new international economic order":
The human community is the beneficial owner of the totality of the riches of
the universe. Each nation has the right, within the general organization, to
receive its just share. Each worker has the right to emigrate, to the limit of
possibilities, so that his subsistence might be improved and his work more
fruitful.
Each person has the right to personal property and the vital space necessary
for the human person to constitute a milieu of liberty and autonomy, with
the reservation that this possession not be either a means of oppression or a
means of spoiling the legitimate results of the work of others.
positivist, and Marxist philosophers reject the natural law basis for human
rights; as rights have been progressively included in positive law, both
at the national and international level, references to "natural law" have
diminished.
In his writings on human rights, Maritain has elaborated a natural
law approach to rights that does not coincide entirely with eighteenth-
century conceptions and not at all with the conservative natural law ap-
proaches of the nineteenth- and early twentieth-century judiciary in the
United States. Considering that the term has been misused, he, neverthe-
less, finds no other phrase to replace "natural law":
Man is endowed with intelligence and determines his own ends but
those determinations are based on the human situation and "fh]uman si-
tuations are something existential."47 While there may be a fundamental
nature of man, there is "progress and relativity" regarding human aware-
ness of it.
Maritain's conception of natural law and rights includes an element
of "dynamic development" missing in eighteenth-century natural law phi-
losophy. Although crediting the eighteenth-century Enlightenment phi-
losophers for developing the concept of rights, he criticizes the resulting
catalogue of rights for its rationalism, individualism, and rigidity. It led to
a static written code and "ended up, after Rousseau and Kant, by treating
the individual as a god and making all the rights ascribed to him the
absolute and unlimited rights" of a god. It ignored the social nature of
the individual, allowing persons to unfold their "cherished possibilities at
the expense of all other beings."48 Maritain divides his own list of rights
into those pertaining to the rights of the human person, the civic person,
and the social or working person. He also refers to the rights of economic
and social groups to freedom and autonomy. Rights pertaining to the
human person include most of the traditional liberties and freedoms of the
liberal tradition. Within the category of civic rights, he includes the rights
to vote, to have political and legal equality before the law, to enjoy free-
dom of speech and expression, and to have access to professions without
racial or social discrimination. His recognition of social rights is the most
distinctive because the eighteenth-century natural-law-based conception
of rights has not been congenial to such rights.
Maritain makes a particular contribution to the natural law basis of
rights theory by his recognition of the evolutionary nature of concepts of
human rights. His listing of rights is based on his own period of time and
historical situation, as he emphasizes all catalogues of rights are, but it is
doubtful that he would have raised ideological objections to such modern
conceptions of rights as the "right to development" and "the right to a
clean environment." He writes,
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Pcrsonalist-Communitarian Perspectives 123
Maritain was convinced that his way of justifying belief in the "rights of
man and the ideal of freedom, equality, and fraternity is the only one which
is solidly based on truth." His openness to the possibility and even likeli-
hood of agreeing with others on practical action is thus especially striking.
In this regard, he underscores the importance of the sociological, rather
than the philosophical, point of view:
|FJrom a sociological point of view, the most important factor in the moral
progress of humanity is the experiential development of awareness which
takes place outside of systems and on another logical basis—at times facili-
tated by systems when they awaken consciousness to itself, at other times
thwarted by them when they obscure the apperceptions of spontaneous
reason.51
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124 Virginia A. Lcary
Unger does not draft a declaration of rights in the style of the Mou-
nier pcrsonalist declaration. His conception of rights is written in narrative
form as an integral aspect of the elaboration of his program of empowered
democracy. It is difficult to understand Ungcr's theory of rights without a
detailed understanding of his program of empowered democracy outlined
in 653 pages of False Necessity. The brief explanation of his conception of
rights in this chapter, separated from a lengthy discussion of empowered
democracy, risks being inadequate. Even a brief description of Ungcr's
conception of rights, however, will demonstrate how original that concep-
tion is, particularly in creating original terminology to refer to various
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Pcrsonalist-Communitarian Perspectives 125
market rights arc the rights employed for economic exchange in the trading
sector of the society. They come into their own within a fully realized version
of the reconstructed economy: the economy that allows teams of workers,
technicians, and entrepreneurs to gain conditional and temporary access to
portions of social capital and that thereby develops both the absolute degree
of economic decentralization and the extent of economic plasticity. . . .
Such [ market ] rights would have the basic operational features of contract
and property entitlements in current private law. . . . Property, to be sure,
would be desegregated, as it has been in so many periods of its history, into
a series of distinct powers assigned to different entities or rightholdcrs: cen-
tral representative bodies of the democracy, the competing investment funds,
and the capital takers who have access to the fund on explicitly temporary
and limited terms. 61
Conclusion
The central focus of this chapter has been the cross-cultural implications
of personalist perspectives on rights. Personalist-communitarian perspec-
tives on rights, which are becoming increasingly common in the West,
more closely approach non-Western conceptions of rights and the concep-
tion of rights in the International Bill of Rights.
The great contribution of the Enlightenment philosophers was their
concept of individual liberty. But the incorporation of that concept in the
French Declaration of the Rights of Man and in the American Declaration
of Independence was due as much to felt grievances of the time as to
philosophical theories. Today, in the West, the South, the North, and the
East, felt grievances continue to include deprivations of personal liberty;
but the grievances also relate to economic deprivation and deprivation of
the rights of cultural groups. Richard Falk has referred to "intolcrabili-
tics"—situations that violate elementary principles of humanity and which
we cannot accept.67 The response to such intolerabilities is a conception of
rights that relates to them, as the conception of rights of the eighteenth
century related to the intolerabilities of that period.
The concept of "rights" is an evolving paradigm. Westerners uphold-
ing the traditional liberal concept of "rights" find it conceptually inaccu-
rate to refer to "group rights" or to "economic and social rights." But, as
Maritain has pointed out when referring to the term democracy:
the choice of words in the practical domain is determined, not by the philo-
sophers, but the usage of men and by the common consciousness. And what
matters above all is rediscovering the genuine meaning and value of words
charged with great human hopes, and the tone given to their utterance by a
conviction based on truth.68
The term "human rights" is now used in non-Western cultures, and in-
creasingly in the West, with content that is not identical with that of West-
ern liberal rights. The political and practical force of human rights rhetoric
is available within a personalist perspective in support of contemporary
conceptions of human dignity.
This chapter has focused on Mounier, Maritain, and Unger, three
representatives of a personalist-communitarian approach, because they
have provided us with detailed explanations of their conception of rights,
which retains a strong emphasis on individual freedoms while including
economic rights and group rights. I consider them as representative of a
trend in Western rights theorizing. The Catholic bishops of the United
States, for example, have called for "a new cultural consensus that the basic
economic conditions of human welfare are essential to human dignity and
are due persons by right."69 Whether that consensus is referred to as a
"personalist-communitarian perspective" or by some other term is not im-
portant. But such a new cultural consensus in the West will have significant
cross-cultural implications.
Such a perception of rights has much in common with approaches to
rights in non-Western countries and the Third World. In addition, it is
more fully in harmony with international standards of human rights con-
tained in the Universal Declaration of Human Rights and the two Inter-
national Covenants on human rights. Mounier, Maritain, and Ungcr are
all contemporary thinkers; as such, they have been influenced by non-
Western cultural traditions. Maritain was forced to confront his own tra-
dition of rights with that of other cultural traditions during the drafting
of the Universal Declaration of Human Rights, and Unger has recognized
the influence of the Third World on his conception of politics and social
organization.70 They may be recognized as harbingers of a new theoretical
concept of rights, solidly grounded in Western cultural traditions and
guarding the best of that tradition, but open to a concept of rights cover-
ing the "intolcrabilities" of the present age.
Notes
and "Critical Legal Studies Symposium," Stanford Law Review 36 (1984): i. Persons
associated with the Critical Legal Studies movement have been particularly critica
of the liberal conception of rights and have emphasized communitarian ap-
proaches. While Unger is identified with the Critical Legal Studies movement, he
must be viewed as a unique scholar within the movement; his reformulated con-
ception of rights and his efforts to formulate a positive social theory distinguish
him from many of those writing from a critical perspective.
3. See text and bibliographical citations in Ian Shapiro, The Evolution of Rights
in Liberal Theory (Cambridge: Cambridge University Press, 1986) and literature on
the Critical Legal Studies movement, supra note 2.
4. Karl Marx, "On the Jewish Question" in The Marx-Engels Reader, ed.
Robert C. Tucker, 2nd ed. (New York: Norton, 1978).
5. Maurice Cranston, "Human Rights, Real and Supposed" in Political
Theory and the Rights of Man, cd. D. D. Raphael (Bloomington, Ind.: Indiana
University Press, 1967), 43.
6. See the following section of this essay for more detail concerning person-
alist perspectives.
7. See his Chapter i in this volume.
8. Baxi points out that "perhaps in a context like India's one may not take
rights seriously if one does not take suffering seriously." Upendra Baxi, "Taking
Suffering Seriously, Social Action Litigation in the Indian Supreme Court," Re-
view of the International Commission of Jurists 29 (1982): 37, 47, n. 35.
9. "Personalism," The Encyclopedia of Philosophy, vol. 6 (New York: Macmillan
and Free Press, 1967), 107.
10. Ibid, at 108.
11. Martin Luther King studied for his doctorate at Boston University be-
cause of his interest in personalist philosophy. He later stated that the personalist
idealism which he studied at Boston remained his basic philosophical position.
Kenneth L. Smith and Ira G. Zepp, Jr., Search for the Beloved Community: The
Thinking of Martin Luther King, Jr. (Valley Forge: Judson Press, 1974), 100.
It would be interesting to speculate on the relationship between American
personalism and Martin Luther King's conception of human rights, but we have
no evidence of explicit links other than King's statement of his basic philosophical
position. Smith and Zepp maintain that several themes in King's writings are trace-
able to personalism: "(i) the inherent worth of personality, (2) the personal God
of love and reason, (3) the moral law of the cosmos, and (4) the social nature of
human existence," (104). I am indebted to my colleague Stephanie Phillips for
informing me of the influence of American personalism on King.
12. The information in this chapter concerning Mounier is taken primarily
from the following sources: Eileen Cantin, Mounier, A Personalist View of History
(New York: Paulist Press, 1973); John Hellman, Emmanuel Mounier and the New
Catholic Left 1930-1950 (Toronto: University of Toronto Press, 1981); R. William
Rauch, Jr., Politics and Belief in Contemporary France, Emmanuel Mounier and Chris-
tian Democracy 1932-1950 (The Hague: Martinus Nijhoff, 1972).
13. Hellman, ibid, at 251.
14. See Roberto Mangabeira Unger, "The Critical Legal Studies Movement,"
Harvard Law Review 96 (1983): 561; Passion, An Essay on Personality (New York:
Free Press, 1984); and Unger, supra note i.
15. Stephen Frederiek Schneck, Person and Palis, Max Scheler's Personalism as
Political Theory (Albany, N.Y.: State University of New York Press, 1987), ix. For
Scheler's influence on Mounier, see Hcllman, supra note 12, at 80.
16. Hellman, ibid, at 82.
17. Ibid.
18. Jean Lacroix, Le Personnalisme (Lyon: Chronique Social, 1981); my
translation.
19. Jacques Maritain, The Rights of Man and Natural Law (London: Geoffrey
Bles, 1958), 14. This book was first published in 1944.
20. Unger, supra note i, at 24.
21. Ibid, at 518.
22. Maritain, supra note 19, at 15.
23. Hellman, supra note 12, at 5.
24. Schneck, Person and Palis, supra, note 15, at 153, n. 161.
25. Jacques Maritain, Man and the State (Chicago: University of Chicago
Press, 1951), 107.
26. Unger, "The Critical Legal Studies Movement," supra note 14, at 321.
27. Ibid.
28. Unger, supra note i, at 10.
29. Ibid, at 395.
30. Hcllman, supra note 12, at 253.
31. Ibid, at 4, quoting Jean-Marie Domenach.
32. Jacques Maritain, True Humanism (London: Geoffrey Bles, 1959) |first
ed., 1938], vii.
33. See Robert Pelloux, "Le Preambule de la Constitution du 27 octobre
1946," in Chronique Constitutionnellc, Revue du Droit Public 62, no. 347, 352-53.
34. Jean Rivcro, "The French Conception of Human Rights," in Human
Rights, France and the United States of America (New York: Center for the Study of
Human Rights at Columbia University, 1984), i.
35. See Pelloux, "Le Preambule dc la Constitution du 27 octobre 1946,"
352-53-
36. For the various drafts and discussions concerning the personalist decla-
ration see Esprit 13, n.s., nos. 1-6 (December 1944—May 1945), 119-27, 581-90,
696—708, 850—56.
37. Ibid, at 852. The translations of the articles of the personalist declaration
are mine.
38. See Michael McDonald's Chapter 6 in this volume.
39,. See, for example, ibid.; and Jack Donnelly, "Human Rights and Western
Liberalism," in Human Rights in Africa: Cross-Cultural Perspectives, ed. Abdullahi
An-Na'im and Francis Deng (Washington, D.C.: Brookings Institution, 1990), 31.
40. It should be recalled in considering these articles that the personalist
declaration was drafted in the form of an international treaty.
Collective Rights
Liberalism
POLITICAL THESES
Here I draw on Allen Buchanan's "Assessing the Communitarian Critique
of Liberalism" for his formulation of a basic liberal political thesis: "the
thesis that the state is to enforce the basic individual civil and political
liberties," including "rights to freedom of religion, expression, thought,
association, the right of legal due process."17 This I label the individual
rights thesis. The individual rights thesis might be interpreted either as an
absolute or as zprima facie normative thesis.18 That is, a liberal could hold
that it is always or nearly always the case that individual rights ought to
be respected; alternatively, a liberal might well believe that there are some
important real-life circumstances in which other values than individual
ones should be determinative. With the lexical priority of civil rights over
economic and social rights, John Rawls seems to endorse an absolute ver-
sion of the liberal political thesis. Ronald Dworkin also seems to take this
view with his assertion of a seemingly absolute insistence on the obligation
to treat all persons with equal concern and respect.19 On the other side,
Joseph Raz presents a version of liberalism that treats individual civil and
political rights as important but not as the sole determinants of political
action.20
There are two aspects to this main thesis of liberalism that will be
addressed later on. The first is that this is a thesis about rights—rights that
set limits on the actions of others, including the majority or any other de
jure or de facto holder of political power and authority. The second is that
such rights are seen as being vested in individuals.
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138 Michael McDonald
I will explore the implications of this neutral state thesis when I con-
sider the possibility that the liberal state might serve as a guarantor of le-
gally recognized collective rights. The nonvirtuous state thesis has been put
forward by Ronald Dworkin as a primary feature distinguishing liberalism
from conservatism.22 Dworkin takes the conservative's political thesis to
be that the state ought to promote virtue and, presumably, punish vice.23
JUSTIFICATIONS
My intention here is to identify liberal reasons for promoting and protect-
ing individual rights by means of an essentially neutral and non-virtue-
promoting state that protects individual self-determination. A variety of
formulations have been prominent. I will focus on the two that have the
best historical and conceptual claims to preeminence.
Utility-Centered Justifications
Utilitarian liberals appeal to the ultimate value of the welfare of individuals
as a ground for the three liberal political theses. Hence, liberal political
policies arc to be promoted on the basis of their effects on the utility or
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Reflections on Liberal Individualism 139
Respect-Centered Justifications
Particularly since the publication of John Rawls's Theory of Justice, au-
tonomy has been appealed to as a ground for liberal political measures.
Following Raz, I will cash out autonomy in terms of self-authorship.2S
Thus, one characteristically liberal justification of a position opposed t
censorship or in favor of the separation of church and state in public edu-
cation is that individuals ought to be free to be authors of their own lives.
The claim is that it is a good thing, either in itself or given certain back-
ground assumptions29 about the value of the choices being made, that
individuals be authors of their own lives. This claim is illustrated by the
emphasis placed in contractarian reconstructions of justice on the primacy
of free individual consent. In these ideal political justifications, consent is
often required to be unanimous between choosers in an original position30
or in a Lockean 31 or Hobbesian 32 state of nature.
I have already suggested that there is not much distance between the
utilitarian hypothesis that the sources of utility are interchangeable and
the Rawlsian notion of primary goods. This, of course, is important for
intercultural as well as intracultural bargaining. The assumption is made
that, after securing the physical necessities of existence, every bargainer,
regardless of culture, will seek as high a degree of individual freedom as
possible. In this regard, there is not as much of a gap between autonomy-
based and welfare-based justifications of politics as might first appear to
the observer of debates ewer the past several years in political philosophy.
While autonomists complain that utilitarians ignore the separateness of
persons, both have generally ignored the distinctness of cultures. Au-
tonomy may represent a more direct way of grounding liberal politics than
utilitarianism; both, however, have been strongly supportive of an abstract
or acultural individualism.
Now I turn to the main issue: "Can liberals endorse collective 'ghts?" Or,
to put this in the terms that I have set: How compatible are the liberal
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142 Michael McDonald
rights and minority rights stories? Can one envisage minority rights in a
liberal state?
First of all, liberalism is a theory about rights. These rights essentially
establish normative limits on the use of both state and private power for
the sake of members of the society in question. Simply as a thesis about
the establishment of such normative limits, there is no incompatibility be-
tween being a liberal and advocating collective rights. Nevertheless, there
is a salient feature of rights that has considerable practical importance for
collective and particularly minority rights. In a liberal state, rights-holders
must be more than merely passive beneficiaries of rights; rights-holders
must be active exercisers of their rights. Now recall here the story- within-
a-story metaphor that I used to describe collective and particularly mi-
nority rights. Two points need to be made.
The first is that .a group may not want to tell its story within the
context of what is essentially someone else's story. There just may be too
many confining circumstances of that larger story or narrative. A minority
may want in particular to break out of a context in which the larger nor-
mative context is determined essentially by the majority as a dominant
social group. This is how many within Quebec and growing numbers else-
where in Canada would describe their situation within Confederation in
the wake of the apparent failure to agree on the Meech Lake Accord.36
The second point is that to be a rights-holder contextually implies a
certain confrontational stance.37 There is a conflict, and in that conflict
one of the parties uses the normative weapon of rights to get its way. One
assumes that the parties are essentially possessive and territorial about
their rights. But what about groups that are not essentially possessive or
territorial, in particular those whose group-constituting understanding is
nonpossessivc and nonterritorial? Think, for example, of religious groups
that are committed to pacifism. Or—in my view a more dramatic
case—consider the understandings that are operative with indigenous
peoples as they have been confronted by aggressive, possessive, and tech-
nologically advanced societies.38 Can these peoples be true to their own
understandings of themselves; will their songs be heard in the cacopho-
nous surroundings of modern societies? It may well be that claiming and
then asserting collective rights will destroy the groups that the rights arc
meant to preserve.39
Now I move to the second and crucial part of the liberal political
thesis—the attribution of rights to individuals. As has been shown, indi-
vidualism is apparent in all three parts of liberalism's theoretical structure.
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Reflections on Liberal Individualism 143
OUTRIGHT HOSTILITY
One quote will suffice here. This is from Justice Deschencs' judgment in
Quebec Protestant School Boards:
The court is, to put it mildly, amazed to hear such an argument from a gov-
ernment which flatters itself that it is keeping alight in America the flame of
French civilization, with its promotion of spiritual values and its traditional
respect for freedom. The Quebec government in effect puts forward a totali-
tarian view of society to which the Court cannot subscribe. The human per-
son is the highest value we know and nothing should be allowed to diminish
the respect due to him. Other societies place the group above the individual.
They use the steamroller of the kolkhoz and see merit only in the collective
result, even if individuals are destroyed in the process.
This view of society has not yet taken root here—though close to it—and
this Court will not dignify it with its approval. In Canada, in Quebec, each
individual must enjoy his rights to the full, whether alone or as a member of
a group; and if the group has one hundred members, the hundredth member
is as much entitled to benefit from all his privileges as the other ninety-nine.
The alleged limitation of a collective right which would prevent the hun-
dredth member of the group from exercising the rights guaranteed by the
Charter constitutes a true denial of the rights of that hundredth member. He
cannot simply be regarded as the accidental wastage of a collective operation:
our concept of the individual cannot: be made to embrace this theory.4"
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144 Michael McDonald
MODERATE SKEPTICISM
Moving from a liberalism that is hostile to the very concept of collective
rights, I now want to consider liberal reasons for being skeptical about the
need for collective rights. I shall do this under four closely related head-
ings. Some of these headings may seem to point more to political practice
than theory, but I shall concentrate on the theoretical aspects.
One worry is that the attribution of group rights to significant groups
balkanizes the liberal state. It makes it difficult, if not impossible, to carry
out the liberal agenda, whether that agenda is the classical liberal agenda
of an open market for material and intellectual goods and services or the
welfare liberal agenda of ameliorating the condition of the most disadvan-
tagcd. I note here that the balkanization argument has been a central po-
sition of those who oppose the Meech Lake Accord in Canada. There is in
this position, it seems to me, a lingering attraction to the Hobbesian notion
of unlimited sovereignty, which I have described elsewhere as involving
at the level of normative practice a kind of monotheism of the state—
that for each political system there must be one and only one source of
legal and political authority.44 But this position, whatever its other attrac-
tions, runs afoul of individual as well as collective rights because all such
rights set limits on the state's authority, cither directly as rights against
the state or indirectly as rights against other persons which the state has
an obligation to enforce. To be sure, the liberal skeptic could offer the
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Reflections on Liberal Individualism 145
This argument sets the goods of community clearly within the limits
established by the basic liberal right of self-determination. Thus, the liberal
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Reflections on Liberal Individualism 147
I think too that Buchanan fails to appreciate the way in which a com-
munity depends on the existence of a shared understanding on the part of
that community's members.58 I would argue that if a minority within the
community disagrees deeply with the majority or the community's leaders
there exists to all intents and purposes a second community.59 That is, on
the view of collective rights-holders that I have advanced, it is unnecessary
to introduce individual rights to allow for the formation of new commu-
nities or the alteration of old communities. Instead, one can look to the
community-constituting understanding as a necessary condition for the
attribution of collective rights. Thus, if one takes seriously the idea of
understandings as essential to the attribution of collective rights, one is in
a position to provide adequately for new groups or dissident subgroups.60
Buchanan also argues that the state's recognition of individual rights
is a far more effective way of protecting a community's interests than col-
lective rights would be:
For if these rights arc ascribed to individuals, then all that is needed to trigger
official protective action is a violation of the rights of one member of that
community. In contrast, a group's right . . . would have to be invoked
through an official process involving a collective decision procedure of some
kind. The costs of exercising a group right might therefore be considerably
higher and the process of doing so more ponderous."
SYMPATHETIC LIBERALISM
I now want to ask if a liberal for liberal reasons could endorse at least some
significant collective rights. I will examine in turn a position sympathetic
to collective rights that could be taken by classical liberals and one that
could be taken by welfare liberals.
Classical liberals would not object in principle to individuals volun-
tarily pooling their rights. For example, two or more individuals might
pool certain of their assets to form a business. In thus pooling their assets,
they give up individual control of the assets to some sort of collective
decision procedure, say, as specified in articles of partnership or incorpo-
ration. In so associating themselves, the individuals in question voluntarily
give up certain rights of self-determination with respect to other members
of the group (say, with respect to corporate assets). Hence, it can be said
the association, partnership, or corporation has collective rights against its
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150 Michael McDonald
Kymlicka goes on to point out that prewar British liberals were able to
support minority rights on the basis of respect for autonomy.
As it stands, this welfare liberal argument is powerful and convincing.
Briefly, it is that becoming an autonomous person requires a social con-
text—a context in which one acquires an identity not just as an individual
but as a member of a community. Language and culture arc central to the
formation of an autonomous identity. If one's language and culture are
penalized or even marginalized, then the barriers to personal autonomy
arc likely to be high. But language and culture are paradigmatically collec-
tive assets; their protection is best vested in the community;75 hence the
need for collective rights to provide linguistic and cultural security of the
members of minority cultural, linguistic, religious, and other groups.76
Nonetheless, I see a downside to the welfare liberal defense of collec-
tive rights that needs to be examined. First, the only groups to which the
welfare liberal will extend collective rights are those whose cultures sup-
port the formation of autonomous individuals. I would suggest then there
is a strong thrust here to support only cultures that meet the liberal indi-
vidualist paradigm. If your personal identity is rooted in a collectively ori-
ented, nonindividualistic minority, then there is little reason to hope that
a liberal welfare state will grant collective rights against society at large to
your group. Beyond this, I would argue that the welfare liberal will not
only fail to encourage certain nonlibcral groups, but will also discourage
many of these societies.77 For insofar as social formation, including social-
ization and cnculturation, is crucial to individual autonomy, the welfare
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Reflections on Liberal Individualism 153
liberal has reasons for interfering in groups that hinder this goal, par-
ticularly by altering offending structural and substantive features of the
group's practices, including its decision-making struturcs and its basic ten-
ets. On this view, it would likely be the case that the liberal would describe
the U.S. case of Toiler as wrongly decided.78 The state of Wisconsin had
good reason then to insist that Amish children attend high school, for
without attending high school their social mobility would be disastrously
restricted. This not only threatens the existence of some groups, but it also
paradoxically diminishes individual choice while increasing it; for the cre-
ation of a new set of options for the child either eliminates the earlier
option of remaining within the traditional culture or dramatically raises its
costs. This is one of those cases in which it could be said that "You can't
go home anymore" or, in the words of the World War I song, "How can
you keep them down on the farm after they've seen Parec [Paris]?" What
I fear from a welfare liberal endorsement of group rights is the encourage-
ment of an undercurrent movement toward intervention in minority af-
fairs. Collective autonomy for the minority will be diminished in order to
advance the autonomy of individual members of the minority. The result
may well be that the existence of minority groups faces a greater threat
from an activist, welfare liberal state than from a more passive, night
watchman state, that of classical liberalism.
A further objection is that the welfare liberal's endorsement of group
rights essentially misses the point. The aim of group rights is collective
and not individual. Thus, in the case of autonomy, group rights essentially
protect group or collective autonomy. To be sure, meaningful participa-
tion in autonomous groups can be essential to individual autonomy; and
so one might, as Kymlicka does, defend group rights as an effective way
of enhancing individual autonomy. This position, however, should not
lead one to think that collective autonomy is valuable only as a means of
enhancing individual autonomy. In my view, collective autonomy, like in-
dividual autonomy, is valuable in its own right; hence one should not be
valued simply as a means to the other.
Welfare liberals may suggest this is but a small price to pay for the
benefits of individual self-determination, but I wonder; I am haunted by
the recollection of missionary schools for Natives, which, it will be re-
called, were provided in the name of civilization and for the benefit of the
individuals in question. Indeed, they were based on the belief that indi-
vidual Natives could benefit only if their "Indianness" was eradicated and
replaced by "white civilization." I fear the continued destruction of fragile
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154 Michael McDonald
Conclusion
Notes
31. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books,
1974), 9-12.
32. David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986),
158-60.
33. Joseph Raz, supra note 20, at 373.
34. Michael McDonald, "Ideology and Morality in Hard Times," in Contem-
porary Moral Issues, eci. Wes Cragg, 2nd ed. (Toronto: McGraw-Hill-Ryerson,
1987), 590.
35. See Jan Narveson, The Libertarian Idea (Philadelphia: Temple University
Press, 1988), chapters 2—8, for a discussion of these issues from a libertarian
perspective.
36. 1987 Constitutional Accord. See Kathcrinc Swinton and Carol Rogerson,
Competing Constitutional Visions: The Meech Lake Accord (Toronto: Carswell,
1988), 315.
37. Carl Wcllman says, "The very concept of a right presupposes some pos-
sible confrontation between the possessor of a right and one or more second par-
tics," C. Wcllman, A Theory of Rights: Persons under Laws, Institutions, and Morals
(Totowa, N.J.: Rowman and Allanheld, 1985), 194. Largely for this reason, Well-
man endorses a will-centered rather than an interest-centered concept of rights.
I would add here that one of the sad results of our cultural preoccupation
with rights is that there is a general blindness to the questions of when and where
it is appropriate to exercise or to press one's rights. Anglophone reactions to Bour-
assa's invocation of the notwithstanding provisions in the Ford case struck me as
displaying an almost boorish insensitivity to the relatively disadvantaged position
of francophones outside Quebec compared to the advantaged situation of anglo-
phones within Quebec (Ford v. Quebec, 54 D.L.R. [4th] 577).
38. Joseph Pesticau, Droits des pcrsonnes, des peuples, et des minorites, un-
published manuscript. Presented at the 1989 meeting of the Canadian Philosophi-
cal Association.
39. Linda Mcdcalfe, Law and Identity: Lawyers, Native Americans, and Legal
Practice (Beverly Hills, Calif.: Sage Publications, 1978).
40. 140 D.L.R. (3rd) 33 at 64. For a detailed discussion of this case, see my
paper, "Collective Rights and Tyranny," University of Ottawa Quarterly 56 (1986):
115—23.
41. Paul Sieghart, The Lawful Rights of Mankind; An Introduction to the Inter-
national Legal Code of Human Rights (Oxford: Oxford University Press, 1986), 164.
42. Kymlicka, supra note 19, at 903.
43. I would recall here that my earlier claim that there is more to being a
group than being a collection of similarly situated individuals; there must also be
a shared understanding. This has, I believe, important implications for selective
amelioration under s. 15(2). If a government is genuinely concerned with the wel-
fare of a group, such as a Native band, it must move to meet its collective needs
and not just the needs of individual members of the band.
44. Michael McDonald, supra note 4.
45. Ronald Dworkin, Taking Rights Seriously (London: Duckworth Press,
1977), 84-88, 123-30.
7. A Marxian Approach
to Human Rights
Introduction
Marx often scorned "rights talk" and other "nonsensical" normative chat-
ter about fairness, freedom, justice, duty, and so forth. Such remarks
should not be taken to mean that Marx was opposed in principle to nor-
mative evaluation, including the conception of universal human rights. In
fact, concern for human rights underlies Marx's whole project, his criti-
cisms of past and present societies and his vision of the future communist
society. He condemned the capitalist system for what many would now
call gross violations of fundamental human rights, the miserable living
conditions of the workers, their subjection to capitalist tyranny in the fac-
tory, and brutal state suppression of working-class protests.
The purpose of this chapter is to outline, in broad terms, a Marxian
approach to human rights. The focus is on the task of establishing an
international standard of human rights and applying this standard to
particular societies. For various reasons, Marx did not take up this task
himself; his work does not contain a developed theory of human rights.
The Marxian position I describe is formulated from principal elements
in Marx's philosophy and political and economic sociology. In my inter-
pretation I stress those elements in Marx's complex and not always consis-
tent thought that have the most to offer on questions of human rights.1
Given these key elements, I asked myself, what would be the Marxian
position on the human rights questions discussed herein? The rationale
for this essay is to see what can be learned from the Marxian theoretical
tradition.
Contrary to what many would contend, I argue that it docs make
sense from the Marxian perspective to try to construct an international
standard of human
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A Marxian Approach to Human Rights 163
parties. The principle of liberty was even used to help justify the prohibi-
tion of trade unions; unions were said to violate the free contractual rela-
tionship between employer and the individual employee and thus violate
"liberty."
Many of the political and moral philosophers who support these "rul-
ing" political ideas and articulate them in their writings are not, says Marx,
aware of the objective class role they play; they are not aware of the class-
biased meaning of the ideas with which they work. They have an unjusti-
fied belief in the autonomy of the concepts and principles, together with
a related unjustified belief in the power of abstract thinking to generate
practical conclusions from them. They do not see that the concepts and
principles—or, at least, their specific formulations—are tied to a particular
social order. They think that they arc; playing a disinterested role in pro-
moting a free, fair, or just society, that: society which is in accord with their
general principles.6
clearly, as they really arc. It undermines, for example, the belief that capi-
talist property ownership is a right derived from the principle of liberty
and should be protected despite all the destructive costs to working men
and women.
At this stage in the discussion, some brief remarks on Marx's social
ontology are necessary.7 According to Marx, it makes no sense to concep-
tualize the human being as apart from society, as outside of a given set of
social institutions. The individual is a zoon politikoon, a social animal. With
its complex of institutions and practices, society provides individuals with
means to satisfy their economic and social needs, and shapes them (espe-
cially important in this regard are the economic institutions) both by the
way it provides for these needs, and how well. To a significant extent their
social nature, needs, and values will reflect the nature of their society.
Though individuals are social beings in this sense, they are at the same
time particular individuals with their own distinct characteristics and in-
terests. Furthermore, they arc reflective, purposive beings who can act, in
concert with others, to change (within limits) the social institutions and
practices better to meet their needs. As old needs are met, new ones de-
velop, and thus new activities to satisfy the new needs. History is the
accumulated result of the productive/creative activities of purposive indi-
viduals (especially the economic activities). In the course of the histori-
cal transformation of institutions and practices, humans are themselves
changed in their social nature, values, and concrete needs.
Contrary to what many contend, Marx then did believe that there is
such a thing as "human nature." 8 Though people differ, often in funda-
mental ways, from society to society, they do share common features and
have common needs. As will be shown, the conception of universal human
needs provides the basis on which a Marxian theory of abstract human
rights can be constructed, rights to which all humans are entitled. Our
Marxian theorist would say that these generalizations and principles are
fundamentally different from those of the bourgeois theorists Marx criti-
cizes. They are truly general, not distorted reflections of the features of a
particular type of society, bourgeois society. They emerge out of the focus
on concrete historical situations and reflection on that historical praxis.
Being truly transhistorical and transcultural, they provide part of the nec-
essary theoretical framework for an analysis of particular societies, out of
which conclusions can be made regarding what concrete rights there-
should be in particular societies and judgments regarding whether these
human rights have been violated.
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A Marxian Approach to Human Rights 167
Implicit in Marx's work is the view that there are three types of fundamen-
tal needs that all humans have. Basic physical life needs, such as the need for
food, shelter, warmth, rest, arid fresh air, comprise the first type, and are
needs humans share with animals. For humans, though, unlike animals,
the satisfaction of these natural needs usually has a specific social form that
can vary from society to society. The second type, autonomy and freedom
needs, and the third type, community Isocial needs, are distinctive to the hu-
man species. Humans are by nature actors, creators: it is in their species-
nature to reflect on their needs and situation, to formulate goals, and to
attempt to realize their goals, especially through productive/creative ac-
tivity. Accordingly, people have needs for autonomy and freedom. They
need autonomy so as to be able to define their own goals and should have
meaningful opportunity to realize their goals, including the opportunity
to engage in productive/creative activity. Accordingly, forms of servitude,
like slavery or serfdom, are illegitimate. The need for personal autonomy
is also rooted in the distinctiveness of each individual.9
Because humans arc social beings by nature, they have community/
social needs, needs to belong, to share, to participate, to be recognized. A
basic theme running throughout Marx's oeuvre is that in a capitalist market
society most people have a difficult time in satisfying their social needs.
Relationships tend to be "utilitarian," competitive, and adversarial; au-
thoritarian work structures tend to isolate workers from one another and
the rich and the powerful get the lion's share of social recognition.10
In keeping with contemporary human rights language, one can say
that these three types of fundamental needs form the basis for three fun-
damental abstract rights that all humans have: first, the right to have their
basic physical-life needs met (according to the minimal standards agreed
upon in the society); second, the right to personal autonomy and free-
dom; and third, the right to have their community/social needs fulfilled.
The abstract right to freedom would include the right for a people to
control their own institutions, thus necessitating some form of democracy
and the concomitant liberties, such as freedom of discussion." The ab-
stract right to community could conceivably require governments in some
societies to help protect local communities from the disintegrating effects
of market pressures. All of these rights, of course, are contingent on the
availability of the necessary resources.
These rights can be conceptualized as entitlements to "goods" that
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i68 Richard Nordahl
are required in order for the basic human needs to be met. The society
collectively has the obligation to provide these goods or to sec that in-
dividuals have the opportunity to acquire them (resources permitting).
Marx's view of the individual as a zoon politikoon, as a being that cannot
exist outside of society, would provide the rationale for such an obligation.
Since no one can satisfy his or her needs outside of society, so that all
benefit from the contributions of others, all would have the obligation to
contribute to the society, including help in providing for (directly or in-
directly) the welfare of its members. The ties of fraternity that would exist
in a nonclass, nonexploitative society would naturally produce strong sen-
timents that the basic needs of all should be met.
Basic to the Marxian theory of human rights is a principle of equality.
Every individual is equally deserving of having his or her basic needs met;
thus all are equally entitled to these rights, regardless of sex, race, beliefs,
and so on. For Marx, this equality provision means that ideally the society
cannot be a class society.12 Significant socioeconomic inequalities will have
to be eliminated so that everyone will have roughly the same opportunity
to make use of their formal rights, such as the right to free speech.
This Marxian equality principle docs not mean that there should be
equal distribution of economic and other benefits, even in ideal condi-
tions. The overarching principle for a just society is that the fundamental
needs of the population be satisfied (resources permitting). What people
require to meet their needs, however, often differs. A large family requires
more resources than a small family. The costs of meeting the basic needs
of a disabled person will usually be considerably above average. Because
of their special needs, women can justifiably be given special concrete
rights, the Marxian theorist can easily argue, such as the right to shorter
more flexible working hours for women with babies to nurse. Marx's con-
cern is with benefiting in concrete ways the lives of every individual, not
with realizing some abstract principle of equality.13 Principles and rights
are means to this end, not ends in themselves. "Ideological" fixation on
the abstract principle of equality can result in blindness to the practical
grounds of the principle; such a fixation might well lead to policies not
conducive to the equal good of every individual, as would be the case if
men and women had exactly the same concrete rights.
According to the Marxian perspective, society's first obligation is to
provide for the basic physical-life needs. People first have to have goods
like food and shelter before goods like community and personal autonomy
can have much meaning. "[I]n general, people cannot be liberated as long
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A Marxian Approach to Human Rights 169
as they arc unable to obtain food and drink, housing and clothing in ade-
quate quality and quantity."14 Marx apparently believed that in most past
and present societies these basic physical-life needs have not been ade-
quately met for the majority of the population. In the case of most precap-
italist societies, insufficient productive capability is in large part the reason.
Also important, however, is the grossly unequal distribution of whatever
economic goods there arc due to the class system.
The productive capability of the society is also an important factor in
determining how well a society can provide for nonphysical needs. In most
preindustrialized societies, Marx believed, there are only sufficient eco-
nomic resources to allow a small minority of the population to satisfy most
of their nonphysical needs. For example, in ancient Greece, slaves and
women did not get to participate in the "good life" of the polis, and thus
their freedom and social needs went largely unmet; the society did not
have adequate economic resources to permit universal participation.15 The
conclusion that Marx made from such considerations is that economic de-
velopment, including industrialization, is necessary in order to provide
sufficient resources so that everyone's needs can be adequately met.16 In
effect, what Marx was saying is that there is a collective right to economic
development.
Rights, according to the Marxian perspective, can be possessed not
only by individuals, but also by communities, institutions, and groups. It
is the community as a whole that has the collective right to economic
development. Also, particular institutions within the society, for example,
unions and cooperatives in certain societies, might be given rights so that
they can be protected and strengthened and thus better meet the needs of
individuals. Such a right might require that adequate resources be directed
to the institution, or it might entail restrictions on certain activities that
could undermine the institution.
peasant community, the same abstract right would require the concrete
right to land; the right to a job would make little sense. In a highly in-
dustrialized society where production predominantly takes place in large
enterprises, there should also be some form of social ownership of the
means of production, including workplace democracy; in other words,
there would be no right to private ownership of large enterprises. Col-
lective ownership and control is necessary to ensure that all have access
to employment and thus to help ensure that their basic economic needs
are met. Workplace democracy is required to help meet the autonomy and
freedom needs of the workers within production; with workplace democ-
racy, workers would not be subordinated to the authoritarian dictates of
an unaccountable manager. In such a society, institutions of workplace
democracy would also be an important means for satisfying community/
social needs.
In the preindustrial peasant society the needs of autonomy, freedom,
and community would have to be met in other ways. Collective ownership
of productive resources would not in most cases be feasible or desirable.17
But in order to give real meaning to the right of political participation for
all, and to the sense of community that would develop out of such partici-
pation, there would probably have to be restrictions on how much land
any one person may own. Rights of political participation and community
would, in other words, preclude a personal right to accumulate large hold-
ings of land.18
Note how the Marxian approach to concrete rights is being applied.
The theorist does not start out with some abstract principle such as liberty
and then see whether or not the right to capitalist property or large tracts
of landed property flows from this abstract principle. She or he starts out
with the conception of needs and then after empirical investigation sees
what kind of liberties promote the good, that is, the satisfaction of the
needs, and which do not.
According to Marx, in the highly productive industrial societies in-
dividuals have the strong need to express their unique individual person-
alities; in other words, for these individuals "expressive individualism" is
an important part of what freedom entails. Various concrete rights would
see to it that these freedom needs could be met, for example, the right to
spend part of one's work time engaged in challenging work activity and
the right to sufficient time off from work to engage in various activities.
In preindustrial society, a much more socially cohesive society, a society in
which change usually occurs slowly and in which a great deal of the time
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A Marxian Approach to Human Rights 171
determining the relative priority of goods. Marx notes that much less
importance was placed on economic wealth in ancient Greek societies than
in the much more economically developed capitalist countries.21 Concerns
of community and what makes a good citizen had higher priority, at least
for nonslavcs. And in medieval Europe restrictions on certain economic
activities in order to preserve the community from disruptive change may
have reflected a similar belief in the relative importance of community
versus economic wealth, at least for the elite who already had their basic
physical-life needs met.
Differing cultural institutions and practices would no doubt provide
culturally specific means for satisfying the basic needs; they would even
help to shape some needs, particularly community/social needs. These
differences would undoubtedly be reflected in different concrete rights.
(Some of these rights could conceivably be grounded only in the specific
cultural traditions, and not also in the abstract rights; but they would be
weaker than those concrete rights also grounded in abstract rights.) A case
could perhaps be made that rights concerning religion should be very dif-
ferent in a devout Muslim country from those in the secular West. There
is little in Marx that helps us deal with such matters (note that the exam-
ples of concrete rights given hitherto were not of rights rooted in cultural
traditions). He might in fact be hostile to this part of our intellectual ex-
ercise, especially regarding religion. There is a tendency in his work to
view cultural factors as largely "supcrstructural," that is, as "reflections" of
more basic socioeconomic factors; they have, he often suggests, little au-
tonomy or importance in their own right. Furthermore, Marx believed
that in class societies cultural institutions and practices, especially reli-
gious, often serve as means of securing class and elite domination, so that
they tend not to be reflections of the genuine needs of the people. Marx's
relative neglect of culture reflects, in part, an inadequate philosophical an-
thropology; Marx underrates the importance of questions of self-identity
and the importance that cultural factors play in forming self-identity.22
This defect, I believe, can be remedied; the Marxian approach to human
rights outlined here is compatible with adequate attention to cultural
factors.
There would undoubtedly always be conflicts between rights and, in
man\' societies, a need for tradeoffs. Though Marx himself said nothing
about such matters, it should be clear from the preceding discussion that
the Marxian approach to such conflicts would be to shift the discussion
away from an abstract politico-philosophical inquiry into the relative mer-
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A Marxian Approach to Human Rights 173
This Marxian theory of needs and rights provides, our Marxian theorist
would say, an objective method for evaluating societies (or at least the
beginnings for constructing such a method). One can use the method to
determine the extent to which human rights are respected in any society.
The use of this method would involve different objective standards for
different societies, although all would have the common clement, and
thus the universal standards, provided by the theory of universal needs.
People in the West arc thus not in principle, because of social and cultural
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176 Richard Nordahl
for religion is a false need. Religion is like opium; it offers believers relief
from their suffering and illusions about the exploitative society that is the
cause of their suffering.30 As this last example suggests, the false needs of
the underprivileged are, according to Marx, products of a social system in
which their real needs are not adequately met. If people cannot adequately
meet their basic physical-life needs and/or have little control over their
social institutions, so that they have little opportunity to act as purposive
beings, they will, as a sort of compensation, develop false needs or, at least,
become fertile ground for the implanting of false needs by the dominant
class and political elites. These false needs and their "satisfaction" make it
more difficult, in turn, for these people to recognize their true needs. Of
course, to say that many people have false needs in many, if not most, class
societies is not to say that these same people cannot recognize many of
their true needs. According to Marx, the workers in nineteenth-century
England did recognize that they were ill-housed, undernourished, over-
worked, and subject to the unjust discipline of capitalist bosses.
This Marxian method of evaluation would obviously not be easy to
use. In coming up with the list of concrete needs and corresponding rights
for a particular society, it would often not be easy to separate out the
distorting ideological and class elements from what is genuine, especially
for the outside observer. An outside cvaluator with a Marxian perspective
could not simply survey the views of the common people (since many of
them might not recognize some of their true needs), nor could he or she
simply take as truth what the intelligentsia say. In an effort to apply the
Marxian approach, might not the evaluator's views of his or her own con-
crete needs (which naturally would partly reflect the nature and values of
his or her society) create their own distortions, despite determined effort
to view the matter from the particular sociohistorical perspective of the
society being evaluated? More fundamentally, might not there be biases
built right into the observer's Marxian approach and theory, biases that
reflect a particular Western intellectual tradition?
Many, of course, would argue along these lines. Some would contend
that Marx's view of religion as opium is pure dogma. Religious practices
and beliefs, they would say, do serve social needs in genuine ways (as well
as reflect the truth about the existence of God); and thus those Muslim
women who willingly accept the religiously ordained restrictions on their
"freedom" are not acting perversely. Some would make the more serious
charge that the freedom needs which Marx views as universal are not really
universal, but rather reflect the cultural prejudices of the Western Enlight-
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iy8 Richard Nordahl
cnmcnt. Some would question whether nearly all people in all, or even
most, societies are purposive beings in the strong sense that they are
"activist" by nature (and thus would be "activist" given the right social
conditions), and accordingly have freedom needs that require personal au-
tonomy, democratic institutions, and opportunity for change and devel-
opment. According to this view, it is not "unnatural" for women in many
traditional societies not to take part in governing their communities. Many
Western conservatives have long argued that most humans in all societies
are by nature rather passive beings who are not inquisitive, and who find
genuine comfort in being directed by their intellectual and moral super-
iors. Marx, these critics would conclude, is guilty of what he accused the
"bourgeois" theorists, presenting as universal what is really a particular
historical and cultural product, in this case a product of the Western
Enlightenment.
It is not my purpose here to argue for the validity of Marxian prem-
ises and interpretations. In partial defense, however, of this Marxian ap-
proach to evaluation, and the particular evaluations its application would
give, it should be stressed that Marx does not simply make assertions, for
instance, about which needs are genuine and which are false. In his work
there are arguments and explanatory theories, or at least rudiments of
theories, for example, regarding why these and not others arc the genuine
needs. Moreover, he offers an explanation, however incomplete, for why
people have the false needs he notes and not others, and how they come
to have these needs. The requirement for such explanations, and the sup-
porting empirical data, would provide some protection from abuse on the
part of the evaluator.31 Contemporary Marxian theorists should be ex-
pected to provide a more complete and adequate theoretical defense than
can be found in Marx's work; they have, after all, a greater amount of data
and many more theories to make use of. The result of this theoretical work
might be the rejection of some theories and views Marx held, such as his
views on what religion expresses. Such rejection need not necessarily affect
the fundamentals of Marxian theory. Furthermore, it should be kept in
mind that any approach that makes use of a transhistorical/transcultural
standard would face difficulties in applying the standard and in defending
it theoretically. Of course, the difficulties concerning the application of
the approach would not be as great for those approaches that do not oper-
ate with a conception of false needs. Though analysts who do not operate
with such a conception may have an easier time in coming up with an
answer of what the needs of a particular people arc, their answers, how-
ever, ma}7 not be as good. Because they do not have a conception of "false
needs," certain ways by which power can be exercised to control people
may be hidden from analysis.
Western Marxian theorists should also recognize that avoiding bias in
the analysis of human rights questions will take more than further empiri-
cal and theoretical work on their part. Marxian scholars have traditionally
understated the difficulties in achieving objective social analysis. It should
also be recognized that the difficulties are compounded once some con-
crete needs are admitted to have, partly or fully, cultural determinants. It
is doubtful that outside commentators can comprehend a different cultural
tradition well enough on their own to be able to make assured judgments,
at least in many cases, regarding which practices reflect class or elite domi-
nation and which genuinely reflect the needs of the populace. On the other
hand, an outside observer armed with Marxian theory would often, de-
pending on the issue, be more sensitive to the ways political power can be
exercised, and thus people manipulated, than many of those within the
society; cultural traditions can delude in more than one direction. Fur-
thermore, the democratic principle itself surely requires that the establish-
ment of human rights standards, and how they should be applied, must
be an international collaborative effort. Abdullahi An-Nacim is right in
emphasizing, in Chapter i, that there has to be international dialogue as
well as internal discussion. But—and this is what many of those other than
An-Na c im who advocate a multicultural approach to human rights fail to
recognize—it makes all the difference who the spokespeople are.
Dominant elites in nearly all societies have a vested interest in main-
taining their privileges, and thus in giving their own biased/self-interested
interpretations about what the international standards should be arid what
rights are required for their societies. In order for there to be genuine
dialogue, people from all sectors of society, especially those from the less
privileged sectors, should be involved in the discussions. Ideally, this
dialogue would be theoretically informed, including by Marxian theory.
Involvement in such discussion among nations and within particular coun-
tries would encourage people to begin discovering for themselves what is
genuine and false in their own cultures, thus making them more conscious
of what their true needs are and thereby helping them overcome whatever
illusions they have. Judgments by Western Marxists regarding what are
"false needs" will be vindicated, if correct, in the course of such dialogue.32
Marx did not himself believe that a great deal could be done to improve
the state of human rights within the existing structures of most societies.
Most societies arc class, and thus exploitative, societies, with repressive
state apparatuses; still-existing, though disintegrating, "primitive" soci-
eties arc presumably among the exceptions. For these societies, including
liberal capitalist societies, fundamental improvement in human rights re-
quires social revolution and the construction of fundamentally different
societies.
According to Marx, as we have seen, significant improvement in hu-
man rights for preindustrial societies also necessitates economic develop-
ment, but this economic development probably cannot take place in a
noncxploitative, noncoercive manner. This economic development would
presumably take many years. Furthermore, according to Marx, the indus-
trialization process would destroy many of the unique features of these
traditional societies and thus, according to the interpretation offered in
this essay, the basis for different concrete rights. Industrialization breaks
down national barriers and in time "internationalizes" culture.33 The so-
cialist revolution (which would occur after the societies have industrial-
ized) would further promote this "internationalization" process; workers,
Marx said, have no nation.
Marx did suggest that short of the necessary socialist revolution there
could be limited improvement in some human rights in capitalist societies.
Workers could achieve some improvement in their working and living con-
ditions through unions and political activity.34 Outright authoritarian re-
gimes, depending on the circumstances, could perhaps be replaced with
"liberal" regimes, similar to those in Britain and Holland, regimes that do
show some respect for civil liberties (but that still protect the property
interests of the exploiters). The focus for Marx, though, was not on reform
but on the necessary socialist revolution.
In his discussions of the socialist revolution, Marx stressed that revo-
lutionary success required determined and fierce class struggle on the part
of the workers and their supporters; capitalists and their allies will try their
utmost to defend their class privileges. Revolutionaries must not be de-
luded by false sentiments of universal brotherhood; the workers' class in-
terests are antithetical to the capitalists.3S If forced to by the violent
reactions of their class enemies, revolutionaries must even be prepared to
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i8z Richard Nordahl
violate the human rights of their class enemies. Marx did hope, however,
that revolutionary violence could be kept to a minimum; he also said that
in some countries the parliamentary road to socialism might be possible.36
Several important conclusions follow from these views of Marx. The
emphasis on the need for revolution, the stress on antagonistic class inter-
ests, and the accompanying "unsentimental" attitude, added to the convic-
tion that this revolution would lead to a society in which the fundamental
human rights for everyone will be present—all helped produce a disposi-
tion not especially conducive to working for the improvement of human
rights within existing capitalist countries.37 This traditional Marxist ori-
entation helps explain, I believe, why there has been so little work by
Western Marxian theorists on human rights questions. The second conclu-
sion is that, for Marx, societies in which human rights are in place to any
great extent would be basically all alike—industrialized, socialist, and
"cosmopolitan." Efforts to theorize about the particular concrete rights
that should be in place in nonindustrial societies, and practical efforts to
improve human rights in them, are largely a waste of time.
Marxian theorists interested in human rights obviously cannot accept
these "practical" conclusions. Fortunately, the conclusions can be severed
from Marxian philosophy and social science. One can adopt the project
of constructing concrete rights which arc grounded in both the abstract
rights and the particular features of a specific society, thus accepting key
postulates of Marxian philosophy and social science, while rejecting those
particular theories and views held by Marx that would render much of this
work largely meaningless.
Marx may have been wrong about the extent of economic deprivation
in most nonindustrialized societies and thus about the universal need for
industrialization. (Some anthropologists deny that in most "primitive so-
cieties" basic economic needs were not well provided for.) Or, as already
suggested, he might have been wrong in thinking that the industrializa-
tion process necessarily required exploitation and coercion. Alternatively,
it might be demonstrated that though exploitation and coercion arc nec-
essary, at least in most cases, they can be kept within bounds that would
be compatible with strengthened human rights. Further, Marx may have
been wrong about the homogenizing effect of industrialization; he did
underestimate, after all, the degree of autonomy cultural phenomena pos-
sess. Marx also underestimated the extent to which, in most capitalist and
precapitalist societies, significant improvements in human rights can be
made short of revolution. In advanced capitalist states a gradual extension
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A Marxian Approach to Human Rights 183
Conclusion
The following list summarizes the major elements of this Marxian ap-
proach to human rights:
1. There are abstract rights that all humans have: rights based on
universal human needs.
2. The concrete rights are grounded in these abstract rights and
in the particular features of the society in question. Consequently,
the concrete rights, and their priority ratings, may vary greatly
from society to society (because concrete needs differ).
3. Rights and concomitant principles, such as the equality principle,
should not be "fetishized"; they should be viewed as means to
underlying goods—goods to satisfy human needs.
4. Because concrete rights are grounded in concrete needs, there has
to be empirical analysis of these societies; a list of concrete rights
cannot be deduced from politicophilosophical principles.
5. In this empirical analysis, attention to class and economic factors
is crucial.
6. Rights do not entail (as some Marxists have argued) a society
of self-centered competitive individualists who live self-enclosed
lives. In fact, in such a society certain fundamental needs (com-
munity/social needs) would not be met; community/social rights
would be largely missing. 39
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184 Richard Nordahl
One can accept these fundamental Marxian elements but reject some
of Marx's specific theories and views and thus some of his "practical" con-
clusions concerning human rights. It is also possible to supplement this
Marxian approach with elements from other traditions, thereby helping to
overcome certain inadequacies, such as Marxism's relative neglect of cul-
tural factors.
Notes
note 8; and John McMurtry, The Structure of Marx's World-View (Princeton, N. ].:
Princeton University Press, 1978), chap. i.
n. For a discussion of Marx's commitment to democracy and political liberty
(in pre-communist and communist society), see Richard Hunt, The Political Ideas
of Marx anAEngds, 2 vols. (Pittsburgh: University of Pittsburgh Press, 1974,1984).
12. See infra for exceptions for practical reasons.
13. See Marx, "Critique of the Gotha Program," supra note 3, at 530-31. For
a somewhat different interpretation, see Richard Miller, Analyzing Marx (Prince-
ton, N.J.: Princeton University Press, 1984), especially 19-26; see also Nielsen, su-
pra note i, at chap. 9. In The German Ideology (supra note 4, at 306) Marx criticizes
Max Stirner for substituting abstractions like "freedom of Man" for concrete con-
cern for the "satisfaction of actual needs" of "actual individuals."
14. Ibid, at 38.
15. Marx, "Forced Emigration," vol. n, Collected Works, 530-31; and Engels,
Anti-Duhring (Moscow: Foreign Languages, 1954), 252. But Marx and Engels did
note that "primitive societies" were democratic; for this form of democracy there
were then apparently sufficient resources, perhaps because needs had not yet begun
to expand (see infra) and because the "cultural" level of these societies was at a low
level. For discussion (with citations), see Hunt, supra note 11, at chap. i.
16. Supra note 4, at 49.
17. See Marx's comments in ibid, at 354.
18. As will become evident below, because of his theory of economic devel-
opment, Marx would not himself have made this Rousseau-like argument.
19. See Mane, "The British Rule in India," in Surveys from Exile, ed. David
Fernbach (Harmondsworth: Penguin, 1974), 301-7.
20. Capital, supra note 4, at 275.
21. See, for example, Grundnsse, supra note 9, at 487.
22. For critical discussion of this defect by a contemporary Marxist, see G. A.
Cohen, History, Labour and freedom (Oxford: Clarendon Press, 1988), chap. 8.
23. Marx himself would apparently make an exception in the case of eco-
nomic development; see infra.
24. For a good description (with citations), see G. A. Cohen, Karl Marx's
Theory of History (Oxford: Clarendon Press, 1978), chap. 7.
25. G. A. Cohen, supra note 22, at 303—4.
26. On this question of tradeoffs between economic development and human
rights, see C. B. Macpherson, "Problems of Human Rights in the Late Twentieth
Century," in his The Rise and Fall of Economic Justice (Oxford: Oxford University
Press, 1987).
27. The relevant Marx writings can be found in Late Marx and the Russian
Road, ed. Theodor Shanin (New York: Monthly Review Press, 1983). For discus-
sion of Marx's views, see Hunt, supra note n, at chap. 9.
28. In his Class Struggles in France and The Eighteenth Brumaire, Marx makes
many references to the illusions of the small lanclholding French peasants. Both
can be found in David Fernbach, supra note 19.
29. See especially Economic. & Philosophic Manuscripts, in vol. 3, Collected
Works, supra note 4, at 306-26.
law: Indian affairs law has to do with non-Indian laws designed to regulate
Indians, and almost nothing to do with laws of Indians.5
The one-sided and imposed view is in human rights law as well. The
macrolcvel human right of genuine decolomalization through self-deter-
mination is not extended to Indian nations, tribes, bands, and groups.
This discussion also focuses upon microlevel human rights for Indians,
and legal protections in this area are recent and few as well.
National attitudes must change if Indians arc to become fully ac-
knowledged as "human" (or as the People).6 The United States speaks the
cant of "human rights" in international arenas without itself observing and
implementing them. There are twenty-one global human rights covenants
and instruments available for national ratification; the United States has
ratified only six, whereas Canada has ratified at least fifteen.7 Some look to
the United States as a model for its rule of law that individuals may invoke
international law human rights protections,8 but an American appellate
court has dismissed Indian international human rights claims in a foot-
note, essentially saying, "You dumb Indians. Don't you know you can't
have international law human rights, but only those rights the United
States Congress decides to allow you?" 9 While the United States has
historically been the home of Enlightenment-era laws enshrining "self-
evident truths" that are the basis for international human rights laws,
truths arc not self-evident to the dominant Anglo culture, which generally
rejects international law.10
Canada, though better in attitude, is ignorant in application when it
comes to human rights. Canada rightly prides itself on its international
activities and reputation in the field of human rights. The Canadian gov-
ernment, however, was unable to recognize obvious human rights when it
reacted to an embarrassing incident that tarnished Canada's reputation.
In Canada, an "Indian" is a person who fits national statutory quali-
fications. In 1951 Canada enacted a comprehensive Indian statute in the
form of the Indian Act, and section 12(1) (b) provided that a woman who
married a non-Indian, a non-status Indian, or a Metis would cease to be
an "Indian." Indian men who married members of those groups, in con-
trast, did not lose their status. 11 Unlike the situation in the United States,
where Indian tribes, bands, and groups define their own membership, the
Canadian system provided national, non-Indian, standards for enrollment,
group membership, and Indian status.
In 1973 the Canadian Supreme Court held that the equality provisions
of the Canadian Bill of Rights (1960) did not override the discriminatory
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North American Indian Perspectives 193
These foundations not only have little use for a definition of Indian
rights, but they also run contrary to Indian cultural perceptions. The focus
on the individual ignores the great importance of the group—of the
family (and normally the extended family), of extended relationships of
clan and religion, of the band or tribe, and even of "Indian-ness" itself.
A non-Indian analysis of human rights law that appears useful for the
formulation of a practical approach to Indian human rights is that of
Myres S. McDougal, Harold D. Lasswell, and Lung-Chu Chen.24 Their
method is sociological; and they start with a catalogue of "rising common
demands," through "representative value processes." There are eight val-
ues, with lists of specific areas of human rights, including positive rights
and protections against "nonfulfillments and deprivations." The values are
respect, power, enlightenment, well-being, wealth, skill, affection, and rec-
titude.25 Future studies of these questions should consider this method.
Another useful analysis is that of Paul Sieghart, who examined the
various international human rights instruments arid developed a classifi-
cation of thirteen areas of rights and freedoms. He discusses physical in-
tegrity, standard of living, health, family, work, social security, education,
property, legal integrity, mental and moral integrity, joint activities, poli-
tics and democracy, and collective rights.26
The approaches of the last two works are useful in the Indian context
because individual Indians need protection of their individual rights. The
Indian Law Resource Center, a leading advocate of Indian rights in inter-
national arenas, correctly notes, however:
Many Indians believe that the group rights of Indian peoples are the most
important and most endangered of all Indian rights. These rights would in-
clude the right to self-government and the right to maintain communal own-
ership of land and resources. As groups, peoples, communities, tribes and
nations—not just as individuals—Indians are asserting the right to self-
government, the right to determine their own relations with other nations
and other peoples, and the right to preserve their cultures, languages, and
religions.27
rights law. The second approach is to examine the common base values of
the Indians of North America.
SOCIAL CONDITIONS
The Indians of North America fall at the bottom of every indicator of
social and economic well-being. A starting point for their human rights
law is the census. The 1980 United States Census (which most agree un-
derenumerated Indians) shows there arc approximately 1.5 million Native
Americans there, about one-half of one percent of the national popula-
tion.28 About half of the Indian population lives in the American West,
mostly in the states of California, Oklahoma, Arizona, and New Mexico.
One-third to one-half of the Indian population lives in cities.29 The con-
clusions of the census are grim:
Native Americans, on a national average, have the shortest life span of any
ethnic group; the highest infant mortality rate; the highest suicide rate; the
highest unemployment; the highest school dropout rate; the poorest hous-
ing; and the most inadequate health care, with extensive diabetes, tubercu-
losis, high blood pressure, respiratory disease, and alcoholism. Many factors
account for these conditions: unproductive land; lack of capital; lack of edu-
cation; a cycle of poverty difficult to escape; and cultural dislocation and
depression caused from an existence as a conquered people within a histori-
cally alien culture.30
Indian legal issues, which are human rights issues as well, are well
documented in the 1977 Final Report of the American Indian Policy Re-
view Commission31 and in the 1981 report of the United States Commis-
sion on Civil Rights, Indian Tribes: A Continuing Quest For Survival?2
There are approximately 300,000 Indians and 25,000 Inuits in Can-
ada, about two percent of the national population.33 About 30 percent of
the Native population lives off-reserve, and there are 573 bands with re-
serves. Social and economic conditions of Natives in Canada are also poor:
For Indians in Canada, overall life expectancy is 10 years less than the national
average. Perinatal and neonatal Infant mortality is almost twice as high. Sui-
cides occur among Indians at more than six times the national rate. Indians
are jailed at more than three times the national rate. Over 50 percent of Indian
health problems are alcohol-related. One out of three Indian families lives in
crowded conditions. Only 50—60 percent of Indian housing has running wa-
ter and sewage disposal. Although participation in elementary schools has
recently approached the national level, secondary school participation is still
These conditions are well documented in the 1979 report, Indian Con-
ditions: A Survey .^ The legal and political issues are in the 1982 report of
the Canadian Parliament's Special Committee on Indian Self-Government,
Indian Self-Government in Canada*6 The governments of both the United
States and Canada have an agenda for effective change, as well as national
priorities, in these documents if only they would adhere to the fundamen-
tal human right of according dignity and true self-government to Native
groups.
INDIAN DEMANDS
The Indians of Canada arc much more sophisticated in the expression of
their demands for human rights than are the Indians of the United States.
The literature, reports, briefs, and position papers of Canadian Indians
and Indian groups are too plentiful for review here, but there is no short-
age of published positions.37
In contrast, American Indians have not ventured far into the field of
international human rights law, much less the domestic law of discrimi-
nation and civil rights. In 1968 Black and Hispanic groups dominated the
Poor Peoples Campaign, a dramatic march on Washington, D.C., to de-
mand basic civil and economic rights; and the small Indian contingent
there felt ignored, out of place, and voiceless.38 The American Indian po-
sition has been expressed by its Indian lawyers in several excellent works.39
Each year more than five hundred books and articles arc published on
Indian history in the United States.40 The fact that few such books and
articles are by Indian authors or represent the actual positions of Indian
groups is of itself evidence of the denial of a fundamental human right—
the right to participate in the process of education, persuasion, and
change. There are some Indian presses that publish valuable works, but
their resources are limited and very few genuinely Indian publications
reach the general American audience.
great diversity there are some; common base values which may be briefly
outlined as follows:
ships. In some areas there are elder shadow governments with traditional
bodies that advise or oversee the operations of the body established by the
national government.
Throughout, however, many bands, tribes, and groups simply refer
to themselves in their own language as "the People," showing their sense
of identity and divine destiny. While Indian governmental forms are not
always obvious, and despite imposed governmental forms, that sense of
belonging and group identity is strong.
There is another, wider, association from the individual and the
family to larger groups. That association is called "pan-Indianism." Indian
organizations combine a high degree of individualism with intimate rela-
tionships with others. Given facts of geography, distance, and isolation in
North America, Indian groups tend to be separate, with a group individu-
alism, yet there are very important intergroup ties. In history those ties
come from trade relations. The excavations of Anasazi sites in the Ameri-
can Southwest often turn up macaw or parrot feathers from Mexico,
scashells from the California coast, or obsidian from distant points, show-
ing extensive trade relations and group interaction. The horse intensified
trade relations; and Anglo explorers noted the presence of horses on the
plains of Saskatchewan and Alberta, bearing Spanish brands from Rio
Grande Valley ranches in New Mexico.52 Those relations persist in social
and governmental forms.
The national governments of Canada, the United States, and Mexico
must recognize the legitimacy of the Native American Church, one of the
fastest-growing religions in North America. The sacrament of the Church
is Peyote, a cactus from Texas and northern Mexico. The transmission of
the sacrament binds adherents and believers throughout Indian North
America, and formal associations of the Church involve Indians from the
Mexican border to the farthest reaches of Canadian Indian groups. While
the national governments of Canada and the United States declare offi-
cial positions of respect for the Church, ignorance and bigotry, coupled
with the international drug scare, manifest as widespread persecution of
Church members.53 The Native American Church is an important pan-
Indian institution that provides an international group identity for many
Indians.
Another such grouping is social, but it demonstrates both pan-
Indianism and the sense of Indian-ness that unites individual Indians. It is
the "Pow-Wow Circuit." Many tribes have different accounts for the rise
of the pow-wow, some insisting upon religious roots, others saying it is
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202 James W. Zion
simply a social gathering. There arc many variations in the dances, cos-
tumes, and practices of the pow-wow. Most tribal and band groups in the
United States and Canada begin the season in the late spring, however,
and some singers, drummers, and dancers spend the entire summer on the
circuit. The pow-wow brings Indians from widely scattered groups to-
gether, and it and associated religious ceremonials create very intimate and
very binding associations and relationships. The Indian rodeo circuit is
another important pan-Indian organization, and large numbers of Indians
throughout North America gather at the national Indian rodeo finals in
Albuquerque each year, which also has a huge indoor pow-wow. Indian
veterans' groups are another example of pan-Indian tics, and a continua-
tion of warrior traditions.
National Indian political patterns differ in the United States and Can-
ada, partly due to history and partly due to governmental funding. In
Canada there are strong provincial and national Indian organizations,
which come together to develop national agendas, goals, and strategies for
use in the political arena. The national organizations of the United States
are not so strong as in Canada and lack the unity of purpose that exists
there. Perhaps the Indians of the United States reflect a general pattern of
American isolationism; in fact, American Indian political strategies are
most often put forward by specialized groups.
The Indian concept of humanity, founded in religious belief and
group survival, is both highly individualistic and group-oriented. Group
bonds are strong on the family level, important in intermediate levels, and
have expression in the concept of being of "the People." Trade, religious,
and social relations are strong and grow stronger in the pan-Indian move-
ment, and modern sophistication, coupled with communications media,
tie many separate groups together.
The human rights perceptions that arise out of these circumstances
make child welfare law, religious freedom, international travel, access to
communications media, and resources for national and international gath-
erings very important needs.
THE INDIVIDUAL
It is difficult to avoid stereotyping when speaking of Indian concepts of
individualism. Religious beliefs such as the tradition of the vision quest,
powers acquired through ceremonials, and the cult of the warrior are
important, but sometimes it is difficult to trace them in modern ex-
pressions. Many individual Indians do speak of personal achievement and
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North American Indian Perspectives 203
RELIGION
The religions of the Indians of North America vary widely, as does reli-
gious thought.60 Indian religious belief is intense, very personal, and part
of every aspect of daily life. Many Indians cannot and do not separate
religious and secular functions in daily life, as does the Anglo world. An
American Cree woman stated it this way: "It is very hard being an Indian
because every day is one, long prayer ceremony."61
Indian religious belief is also eclectic. Many individuals belong to a
Christian sect, practice their traditional beliefs, and may also adhere to
emerging beliefs, such as those of the Native American Church.
Animism, the religious classification applied to many Indian religious
beliefs, is a very beautiful approach to understanding reality. As a general
matter, animism is a belief that accords dignity and meaning to every ma-
terial thing, living or nonliving. A Canadian Cree educator explained that
everything has a soul, and given that fact, one must respect everything.
Others explain that you must use everything for good purposes, making
offerings for resources such as trees and having a reason for using them.62
Through animism one is able to invoke powerful supernatural forces
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North American Indian Perspectives 205
for daily help. The individual and the group arc able to call upon resources
from a wider community, one of animate, inanimate, and supernatural
beings. Those community members act upon and interact with humans
as well.
American religious freedom law is destructive of Indian religion, and
the American Indian Religious Freedom Act of 1978 is a failure. 63 This is
due to a lack of understanding of the intimate relationship between hu-
mans and their environment and Anglo cthnocentrism. The Anglo "hea-
then savage" and "pagan" stereotype persists, and Indian religion is widely
persecuted. The Native American Church is a visible target, and perse-
cution of its members is intensifying. The United States Supreme Court
exhibits the cultural biases of its members in rulings which accord Indian
beliefs less dignity than other faiths. 64
Nineteenth-century persecution drove Indian religion underground;
and while there is greater tolerance for non-Christian belief today, Indian
religion largely stays underground. Religious intolerance continues, and
while the Thirty Years' War of the seventeenth century was the turning
point for the role of religion in Western society, the fact remains that free-
dom of religion depends upon belonging to a faith that is too strong in
numbers to be destroyed.65
As it is with the concept of individuals as members of an extended
family group, membership or identification with religious groups is very
important. Secular, nonreligious North America avoids public expres-
sions of religion owing to the competition of the major religions, while all
Navajo public meetings open with a prayer. Given the nature of Indian
religion, it is a powerful and important factor that must be acknowledged
in many areas of public concern, including resource development and
land use.
TREATIES
Sometimes it is difficult to understand the emotional value of Indian per-
ceptions of treaties and the treaty-making process. The Anglo world aban-
doned the original concept of treaty-making, which was a means of
securing large portions of Indian land without warfare. At the time many
of the Indian treaties were made, the Anglos did not have sufficient mili-
tary resources with which to take the land by force. North American co-
lonial policy came out of an emerging international law of treaties, and
while the original instruments were in fact intended to be arrangements
made with sovereign Indian nations, today international law has aban-
doned and trivialized the original process.66
A canon for the construction of treaties in both the United States and
Canada is that treaties must be interpreted as the Indians understood
them.67 That canon has not been followed in practice because of ethnocen-
trism and the inability of the legal system to accommodate Indian concepts
of evidence. Some wag has said that during the treaty-making process the
United States promised everything and delivered nothing, while the Brit-
ish Crown and Canada promised nothing and kept that promise. Despite
the frequent lack of specific content in treaties, Indians regard them highly
as fundamental instruments defining relations of Indian nations with the
Anglo governments. They are a symbol and a proof of the existence and
continuing right of Peoples to be Indians. Therefore, any principle of In-
dian human rights must acknowledge Indian autonomy and the treaties
that prove that autonomy. Treaties are essential to Indian-ness.
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North American Indian Perspectives 207
Substantive Rights
substantive human rights Indians demand. The more important rights are
defined below.
The denial of this right is a part of the ethnocide and even genocide which
an undeveloped human rights law for indigenous population causes.74
Schusky, in 1965,75 adds supporting sub elements. One of them is the right
not to assimilate76 or to be subjected to imposed assimilation through
tribal termination, assimilationist policies, poor economic conditions
which drive Indians from their land base, or even the imposition of assi-
milationist human rights law.
Family integrity and cultural integrity are important corollaries of the
right. Family integrity for Indians is in jeopardy because of imposed do-
mestic relations laws which do not accommodate Indian familial concepts
and because of the international child welfare scandal. Cultural integrity
is greatly endangered because of religious persecution, land grabs, land
use restrictions, language policies, and unresponsive education systems.
Indian-controlled education is essential to develop such integrity.
Ethnocide exists not only as a result of the affirmative imposition of
Anglo values but because of a refusal to acknowledge the right to be In-
dian. Genocide exists, and the United States very carefully denied private
enforcement in its ratification and implementation of the Genocide Con-
vention.77 The convention itself docs not serve Indian rights because it is
a criminal law requiring specific intent to destroy a group. Therefore, In-
dians must have group protection of their right to be Indian and effective
means to enforce it.
INDIAN LAND
Threats to Indian land bases, in the form of reservations and reserves,
continue. Where there arc Indian lands, they are inadequate, although the
restoration of illegally seized lands would greatly increase that land base.
Resource development and the extinction of aboriginal title are continuing
threats to Indian cultures, as are restrictions upon Indian land use off-
reservation or reserve. The simple point is that Indian groups need their
own lands for survival, and the taking or denying of such lands is a policy
of ethnocide in its effect.
TREATY RIGHTS
Although the current domestic law of Canada and the United States deals
with continuing disputes and claims over Indian treaties, international law
has not yet elevated the status of treaties to a protected group human
right. Treaty rights are human rights because they are intertwined with
the right to be Indian and the right of self-determination.
sovereignty for Indians in the United States, that does not explain why
poor socioeconomic conditions persist. The American self-determination
initiative is recent, poorly funded, and hampered by a continuing distrust
of the ability of Indians truly to manage their own affairs.
EMPOWERMENT
"Empowerment" is a useful concept for this area, and it is one in accord
with Indian beliefs. Many Indian religions speak to the concept of
"power," with ceremonials and disciplines to acquire it. Poverty is not
simply a lack of material goods, but a lack of access to power and decision-
making. The 1987 report of the World Commission on Environment and
Development, Our Common Future (also called the "Brundtland Report,"
after Gro Harlem Brundtland, the commission chair), specifically addresses
the needs of Aboriginal peoples in conjunction with population and hu-
man resource issues.82 That section of the report, appropriately entitled
"Empowering Vulnerable Groups," reinforced the recognition and pro-
tection of traditional land and resource rights and found that the disap-
pearance of indigenous or tribal peoples would be a loss to the larger
society.83 Empowerment requires both effective local control by Indians
and effective access to decision-making processes.
Notes
1. Many ideas and facts outlined in this chapter are the product of fifteen
years of practice of Indian affairs law and politics in the United States and Canada.
Native teachers from other parts of the world have augmented my education. I
hope that this piece says what many of the teachers would like me to say; and it is
my way of saying thanks to patient and generous Cree, Navajo, Pima, Maori, and
other teachers. Special thanks are due Geneva Stump of the Chippcwa Cree Tribe
of Montana, who introduced me to Indian affairs law in October 1974.
2. The term "Anglo" is used throughout this chapter to refer to the dominant
"Anglo-European" culture of North America. It is preferable to the use of the term
"White" to describe the major non-Indian ethnic group because it avoids racial
stereotyping and stresses culture. While there clearly have been significant French
and Hispanic cultural contributions in North America, the English language and
its cultural values still dominate.
There are excellent arguments for use of the term "Native American," but it
is best to call people by the term they normally refer to themselves. "Indian" still
seems to be the term the Peoples call themselves. But see, Robert F. Berkhofer,
Ir., The White Man's Indian: Images of the American Indian from Columbus to the
Present (New York: Vintage Books, 1979), xvi—xvii, 196. "Native American" con-
fuses some because Peoples such as Eskimos and Native Hawaiians have different
circumstances (telephone interview with Bureau of Indian Affairs "recognition"
regulation author [1977]).
While Mexico is a part of North America, this essay excludes discussion of
the special circumstances there. Mexico also has problems integrating European
and indigenous cultures. See Octavio Paz, The Labyrinth of Solitude: Life and
Thought in Mexico, trans. Sander Kemp (New York: Grove Press, 1966); and Oc-
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North American Indian Perspectives 213
tavio Paz, One Earth, Four or Five Worlds: Reflections on Contemporary History, trans.
Helen R. Lane (San Diego: Harcourt Brace Jovanovich, 1985), 100.
3. Lewis Hanke, Aristotle and the American Indians: A Study in Race Prejudice
in the Modern World (London: Hollis and Carter, 1959); Charles Gibson, "Spanish
Indian Policies," in History of Indian-White Relations, Handbook of North American
Indians, ed. Wilcomb E. Washburn, vol. 4 (Washington, D.C.: Smithsonian Insti-
tution, 1988), 96.
Good evidence of the fact that Native peoples were not considered quite
"human" in modern times is that, during the 1885 Battle of Batoche in Saskatche-
wan, a lover of the first machine gun, Lt. Arthur L. Howard of the Connecticut
National Guard, happily used a Catling Gun on Metis and Indian troops (Joseph
K. Howard, Strange Empire: Louis Riel and the Metis People [Toronto: James Lewis
and Samuel, 1952], 450-54). The machine gun was not used on Whites until World
War I, but was often used on Native peoples before then (John Ellis, Social History
of the Machine Gun [New York: Pantheon Books, 1975]). The current "dumb In-
dian" Anglo cultural perception is not quite so obvious, but it continues the
pattern.
4. Cole Duram, Jr., "Indian Law in the Continental United States," Law and
Anthropology 2 (1987): 93, 94—96; Douglas Sanders, "Aboriginal Rights in Canada,"
ibid, at 181—84, on assimilationist trends.
5. The leading American and Canadian Indian affairs law texts show this
quite clearly. D. Getches, D. Rosenfclt, and C. Wilkinson, Federal Indian Law
(1979); William Canby, American Indian Law in a Nutshell (St. Paul, Minn.: West
Publishing, 1981); Felix S. Cohen, Handbook of Federal Indian Law (Charlottesville,
Va.: Mitchie and Bobbs-Mcrrill, 1982); Native Rights in Canada, ed. Peter A.
Gumming and Neil H. Mickenberg (Toronto: Indian-Eskimo Association of
Canada, in association with General Publishing Co., 1972/1977). These texts discuss
Anglo rules of law applicable to Indians and seldom discuss Indian common (cus-
tomary) law.
6. While discussing things which should appear in this chapter, Lillie Roan-
horse (a Navajo professional) advised that it must relate the fact Navajos and most
other Indian Peoples refer to themselves in their own languages as "The People."
Indians arc not simply "humans" but "Peoples" in their own conceptualizations
(Vine Deloria, God is Red [New York: Dell Publishing Co., 1973], 365—66 [table]).
Gary Withcrspoon holds a contrary view, stating that the assertion tribal peoples
believe they are "the people" is a myth. He also says that the Navajo word "dine',"
meaning "Navajo," "includes all people" (Language and Art in the Navajo Uni-
verse [Ann Arbor: University of Michigan Press, 1977], 96-97. His linguistic con-
clusion may be correct, but many Indians translate their tribal name as "The
People."
7. The international human rights instruments are global, regional, or sub-
sidiary. See Paul Sieghart, The International Law of Human Rights (Oxford: Clar-
endon Press, 1983), xv—xvii, for a listing of forty such documents. The twenty-one
multilateral human rights instruments available for ratification as of July 1982, and
their treatment by the United States and Canada, are listed in Committee on For-
eign Affairs, Human Rights Documents (Washington, D.C.: United States Govern-
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2i4 James W. Zion
mcnt Printing Office, 1983), 609, 624—25, 612—13 (1983). Since then, the United
States has finally ratified the Convention on the Prevention and Punishment of
the Crime of Genocide in the Genocide Convention Implementation Act of 1987
(the Proxmirc Act), Pub. L. No. 100-606, 102 Stat. 3045 (codified at 18 U.S.C.
Ch. 5oA). While the United States Senate voted (83 to n) to give consent to the
convention on February 19, 1986, actual ratification was conditioned upon the en-
actment of implementing legislation in the form of the 1987 Act (1988 U.S. Code
Cong. & Admin. News fioo Stat. | 4156, 4157).
8. See Paquctte Habana, 175 U.S. 677, 700 (1900); Kansas v. Colorado, 206
U.S. 46, 79 (1907); United States v. Engcr, 472 F. Supp. 490, 504 (D.N.J. 1978);
Zenith Radio Corp. v. Matsushita Elc. Indus. Co., 494 F. Supp. 1161, 1179 (E.D.
Pa. 1980).
9. The court summarily dismissed international human rights claims that the
Secretary of the Interior had erred in refusing to apply the law of the Blackfeet
Tribe (of Montana) in the probate matter. The court rejected that claim by saying:
"Likewise, the claim that the proceedings violated international law files in the face
of overwhelming precedent to the effect that the type of sovereignty afforded to
Indians docs not diminish Congress' ability to legislate with respect to them even
to the extent of abrogating treaty rights." Kicking Women v. Hodcl, 878 F. 2d
1203, 1207 n. 10 (pth Cir. 1989) citations omitted.
10. While many nations, other than the United States, freely adopt interna-
tional human rights conventions, the non-American rule normally is that treaties
are not self-executing. (They arc to some extent in the United States.) See note 7.
This denies the human right of access to redress. The popular culture of the United
States is essentially xenophobic and isolationist, as international law is viewed as
alien.
n. Indian Act, R.S., c. 149, s. i.
12. Attorney General of Canada v. Lavello, [1974] S.C.R. 1349.
13. Lovelace v. Canada, (R. 6/24) H.R.C. 36, 166; 1982] i C.N.L.R. i.
14. Ibid. [1982 i C.N.L.R. at 8.
15. R.S., c. 1—6, amended by c. 10 (2nd Supp.) 1975—75—76, c. 48, 1978—19;
c. n; 1980—81 — 82—83, cc. 47, no; 1984, cc. 40, 41; 1985, c. 27.
16. Bradford W. Morse and Robert K. Groves, "Canada's Forgotten Peoples:
The Aboriginal Rights of Metis and Non-Status Indians," Law and. Anthropology
2(1987): 139, 150-51.
17. See "Minorities," Encyclopedia of Public International Law (Amsterdam,
N. Y.: North-Holland Publishing, 1985), 395, 389, 390.
18. "Discrimination Against Individuals and Groups," ibid, at 134, 136, 137.
19. Ibid, at 137.
20. J. Sigler, Minority Rights: A Comparative Analysis (Westport, Conn.:
Greenwood Press, 1983), 59—60.
21. James L. Brierly, The Law of Nations: An Introduction to the International
Law of Peace (New York: Oxford University Press, 1963), 293—99.
22. Ian Brownlie, Principles of Public International Law (Oxford: Clarendon,
1966), 463.
23. Leslie C. Green, Law and Society (Dobbs Ferry, N.Y.: Occana Publica-
tions, 1975), 304—05.
24. Myres S. McDougal, Harrold D. Lasswell and Lung-Chu Chen, Human
Rights and World Public Order: The Basic Policies of an International Law of Human
Dignity (New Haven, Conn.: Yale University Press, 1980).
25. Ibid, at 7—13.
26. Sieghart, supra, note 7, at 123—378.
27. Indian Law Resource Center, Indian Rights-Human Rights: Handbook for
Indians on International Human Rights Complaints Procedures (Washington, D.C.:
Indian Law Resource Center, 1988), 3.
28. Carl Waldman, Atlas of the North American Indian (New York: Facts on
File Publications, 1985), 201.
29. Ibid, at 200.
30. Ibid, at 201.
31. American Indian Policy Review Commission, Final Report (Washington
D.C.: United States Government Printing Office, 1977).
32. United States Commission on Civil Rights, Indian Tribes (Washington,
D.C.: United States Government Printing Office, 1981).
33. Waldman, supra note 28, at 209.
34. Ibid, at 209—10.
35. Minister of Indian and Northern Affairs Canada, Indian Conditions: A
Survey (Ottawa: Department of Indian Affairs and Northern Development, 1980).
36. Special Committee on Indian Self-Government, Indian Self-Government
in Canada, House of Commons Issue No. 40 (published under authority of the
Speaker of the House of Commons by the Queen's Printer for Canada, 1983).
37. The Federation of Saskatchewan Indian Nations, under the guidance of
its barrister and solicitor, Delia Opekokew (Cree), published some particularly
helpful Indian views on international law, including Delia Opekokew, The First
Nations: Indian Government and the Canadian Confederation (Saskatoon, Sask.: Fed-
eration of Saskatchewan Indian Nations, 1980); Delia Opekokew, The First Na-
tions: Indian Governments in the Community of Man (Regina, Sask.: Federation of
Saskatchewan Indian Nations, 1982); and World Assembly of First Nations, Round-
table on the Politics and Law of First Nations (Saskatoon, Sask.: Federation of Sas-
katechcwan Indian Nations, 1982), with useful model charters and covenants.
38. Interviews with Indian participants by the author (June—July, 1968).
39. See National Lawyers Guild, Committee on Native American Struggles,
Rethinking Indian Law (New York: National Lawyers Guild, Committee on Native
American Struggles, 1982); Rachel S. Kronowitz, Joanne Lichtman, Steven P.
McSloy and Matthew G. Olsen, "Toward Consent and Cooperation: Reconsider-
ing the Political Status of Indian Nations," Harvard Civil Rights-Civil Liberties Law
Review 22(1987): 22; Indian Law Resource Center, supra note 27.
40. New Directions in American Indian History, cA. C. Calloway (Norman,
Okla.: University of Oklahoma Press, 1988), ix.
41. Gordon Bennett, Aboriginal Rights in International Law (London: Royal
Anthropological Institute of Great Britain and Ireland, 1978).
4-2. Bernadette K. Roy and Dallas K. Miller, The Rights of Indigenous Peoples
in International Law: An Annotated Bibliography (Saskatoon, Sask.: Native Law
Centre, University of Saskatchewan, 1985); Ruth Thompson, The Rights of Indige-
nous Peoples in International Law: Workshop Report (Ottawa: International Confer-
ence on Aboriginal Rights and World Public Order, 1986).
43. Maureen Davies, "Aspects of Aboriginal Rights in International Law and
Aboriginal Rights in International Law: Human Rights," in Aboriginal Peoples and
the Law: Indian, Metis and Inuit Rights in Canada^ cd. B. Morse (Ottawa: Carleton
University Press, 1985), 16, 745.
44. Diane Bell and Pam Ditton, Law: The Old and the New (Canberra: Abo-
riginal History for Central Australian Aboriginal Legal Aid, 1980); P. Hanks and
B. Keon-Cohcn, eds., Aborigines & The Law: Essays in Memory of Elizabeth Eggles-
ton (London: Allen and Unwin, 1984).
45. See note 39.
46. See Reports of the Fourth Russell Tribunal, Conclusions; Selected Cases D
U.SA.; Non-Selected Cases A North America (Amsterdam: Workgroup Indian Proj-
ect/Projccto Indigena, 1980).
47. Daniel J. Boorstin, The Discoverers (New York: Random House, 1983),
480.
48. John F. Bryde, Modern Indian Psychology (Vermillion, S.D.:Institute of
Indian Studies, University of South Dakota, 1971), 39—51.
49. Clyde Kluckhohn and Dorothea Leighton, The Navajo (Cambridge,
Mass.: Harvard University Press, 1974), 100.
50. W. Denny, "The Great Words" (a one-page recitation of Cree "command-
ments," in both English and Crce [syllabuses], published by the Rocky Boy [Mon-
tana] High School. Among these are, "Young women should never kill an unborn
baby. Babies are the Great Holy's blessing to human beings").
51. Robert K. Thomas, "Pan-Indianism," in The American Indian Today, ed.
Stuart Levinc and Nancy O. Lurie (Baltimore: Penguin Books, 1968), 128.
52. James W. Zion, "Trade as an Aboriginal Indian Right in North America,"
November 14,1985, unpublished manuscript.
53. The drug scare increasingly chills the free exercise of religion by Native
American Church members. In 1988 the author spoke with an attorney of the Civil
Rights Division of the U.S. Justice Department to suggest a test case based upon
discrimination against Native American Church members in the state of Montana.
The attorney laughed and said, "With Nancy Reagan in the White House we
would have to 'just say no' to that kind of case." Many Church members have
related their stories of persecution to the author, and coupling these with increas-
ing newspaper articles about arrests of Native American Church members and talks
with various lawyers, the author can only conclude that such religious persecution
is increasing.
54. K. Gilbreath, Red Capitalism: An Analysis of the Navajo Economy (1973),
microfiche reprint.
55. Robert W. Young and William Morgan, The Navajo Language: A Gram-
mar and Colloquial Dictionary (Albuquerque, N.M.: University of New Mexico
Press, 1987), 8n.
Brown, The Spiritual Legacy of the American Indian (New York: Crossroad Publish-
ing Co., 1982).
61. Comment of an American Cree woman, 1982.
62. Comments of a Canadian Cree educator and an American Cree leader,
1984.
63. S. Gordon, "Indian Religious Freedom and Government Development
of Public Lands," Tale Law Journal 94(1985): 1447; R. Michaelson, "The Signifi-
cance of the American Indian Religious Freedom Act of 197%" Journal of the Ameri-
can Academy of Religion 52(1984): 104.
64. Bowen v. Roy, 106 S. Ct. 2147 (1986) and Employment Division Depart-
ment of Human Resources v. Smith, 108 S. Ct. 1444 (1988) particularly demon-
strate cultural insensitivity. In Roy the Supreme Court dealt with an asserted Indian
belief in the evil of using a Social Security number. The court, over a dissent
pointing out methods of accommodation and mootncss, held the weighty govern-
mental interest in using such numbers outweighed the religious belief. In Smith
the Court evaded the right of Indians to use Peyote for religious ceremonies in an
accommodation of religious beliefs. The overwhelming American precedent to
date was to the effect that Indian religious possession of Peyote is a protected right
and that the Court had previously accommodated Anglo religious beliefs in a simi-
lar situation. The Court's application of the "barbarity principle" demonstrates the
inability of Anglos to understand, appreciate, or tolerate Indian cultural beliefs.
Canadian and American case law is full of such intolerance.
65. Siglcr, supra note 20, at 55—56.
66. "Indigenous Populations, Treaties With," supra note 17, at 314—316.
67. Cohen, supra note 5, at 221—22; Cuming and Mickenberg, supra note 5, at
61-62.
68. Green, "Human Rights and the General Principles of Law," supra note
23 at 228.
69. Barre Toelken, "Seeing with a Native Eye: How Many Sheep Will It
Hold?" in Seeing With a Native Eye, supra note 60.
70. F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious
and Linguistic Minorities, U.N. E CN.4/Sub. 2/384/Rev. i (New York: United Na-
tions, 1979). The right to culture, if viewed with a native eye, has great potential.
71. Human rights have little relevance if they are unenforceable in national
bodies and the machinery of the state. Most international covenants and bilateral
treaties require or envision the enactment of domestic legislation to enforce them.
Too often that does not happen, and Indian rights are overlooked, or they are
implemented in strictly limited legislation. There should be an individual and
group human right to confront national governments in effective ways, including
international bodies.
72. See, for example, A. Dundes, ed., Every Man His Way (Englcwood Cliffs,
NJ. :Prentice Hall, 1968), 157, for a review of the definitional literature.
73. Canadian Commission for UNESCO, A Working Definition of Culture for
the Canadian Commission for UNESCO 6 (1977).
74. "Indigenous Populations, Protection," supra note 17, at 313.
75. E. Schusky, The Right to be Indian (San Francisco: The Indian Historical
Press, 1976).
76. Alexander Lesser, "The Right Not to Assimilate: The Case of the Ameri-
can Indian," in History, Evolution, and the Concept of Culture, ed. S. Mintz (New
York: Cambridge University Press, 1985), 108.
77. Genocide Convention Implementation Act of 1987.
78. Deloria, supra note 6.
79. Self-determination requires abandonment of the stereotype of the "dumb
Indian" as well as those of the "barbarism principle," "the White way is the right
way," and other destructive attitudes. See Robert F. Berkhofcr, Ir., supra note 2.
When the United States attempted to implement the concept through the Indian
Self-Dctermination Act of 1975, bureaucratic resistance within the Bureau of Indian
Affairs delayed its start. Indian tribal programs under the act are underfunded, and
tribes have not been given the resources to meet the need described by the demo-
graphics above. One of the worst barriers is institutionalized racism within the
linked States federal government, and it pervades the "Indian programs" of all
federal agencies. See "In Search of Pride," MacLean's (July 3, 1989), 40-41.
80. See Capotorti, supra note 70.
81. Anthropologists use the term "persistence of culture" to describe the phe-
nomenon of peoples who continue as groups despite destructive pressures from
the outside and even because of those pressures. Persistent Peoples: Cultural Enclaves
in Perspective, ed. George P. Castile and Gilbert Kushner (Tucson: University of
Arizona Press, 1981). The same theory describes the Indian situation. See Daniel
H. Levine, "The Survival of Indian Identity," in The American Indian Today, supra
note 51, at 9. The moral is, "If you can't beat them, join them."
82. World Commission on Environment and Development, Our Common
Future (New York: Oxford University Press, 1987).
83. Ibid., at 114-16.
84. See The Rockefeller Foundation, International Perspectives on Affirmative
Action (New York: Rockefeller Foundation, 1984), a survey of affirmative action
laws in nine countries, both developing and industrialized. Unlike the rubric of
international law mentioned, there is a great deal of room for cultural pluralism,
and such would strengthen any national body.
85. Morton v. Mancari, 417 U.S. 535 (1974).
86. There are two kinds of anti-Indian "hate groups" in the United States.
Some are composed of "Indian fighter" organizations of Anglo landowners who
are subject to tribal regulation. In the state of Montana, the groups All Citizens
Equal (ACE) and Citizens Rights Organization (CRO, from the Crown Reser-
vation area) are very active and very dangerous. See Minutes of the November 18,
1988, meeting of the Committee on Indian affairs, 5oth Montana Legislature. The
second category of anti-Indian hate groups is more subtle. These are the state
governments and governmental subdivisions. While they oppose Indians on
intellectual legal grounds, given the fighting of battles long settled in the favor of
Indian government, the veneer of legality thinly overlays a core of racism. See also
Robert F. Berkhofer, Ir., supra note 2, at 135 (on imposed White models).
The peoples who first inhabited the northern part of the North American
continent were more concerned with mutual responsibility for the survival
and well-being of the group than with concepts akin to individual human
rights. After five centuries of pressure from Europeans and their social
philosophies, communitarian views are still widely held by descendants of
the original peoples of what are now Canada and the United States.1 Yet,
just as some institutions of the now dominant society may have borrowed
ideas on democracy and diplomacy from the First Nations,2 the indige-
nous residents have not been immune to the political and social ideas sur-
rounding them over the past five hundred years. Just as the diverse tribes,
clans, and nations traded and learned from each other before white colo-
nizers arrived, Native peoples have sometimes chosen to adopt and adapt
ideas from their oppressors.3
Although there is a great diversity of religious, political, and social
beliefs and organizations among indigenous peoples, there is a strong and
wide current of shared ideals. This point is made by others in this book,
notably Patricia Hyndman and James W. Zion. There remain sufficient
differences, however, that, given the choices, some groups might opt for
the Canadian model of legislated and enforceable human rights, while oth-
ers would choose more traditional methods of ensuring dignity for all
members of their communities. A belief held universally by people who
consider themselves to be Aboriginal is that their communities have the
right to determine their own destiny, including forms of government and
modes of protection for human rights and/or human dignity. While many
groups, in Canada and elsewhere, would choose as much political sepa-
ration as possible from the dominant wider society, others might prefer a
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222 Allan McChcsney
For those few cases resolved through a hearing, in most Canadian juris-
dictions a "board of inquiry" or "tribunal" is appointed from a predeter-
mined list of decision-makers. This panel of adjudicators should also
reflect the cultural mosaic. In an area with a high proportion of Aboriginal
people, they should attain more than token representation among the po-
tential and actual adjudicators. They can bring a different evaluation of
what fair conduct means when applying the letter of the antidiscrimina-
tion law. Their contribution would be valuable in deciding what redress
might be appropriate for a justified complaint. It is wise to assemble re-
spected members of different communities so that no group senses bias.
In appointing a province-wide commission, one must at least be aware,
however, of elements who think that Natives already receive unfair
advantages.
6. To foster real and perceived fairness, particularly when one party
to a dispute is Aboriginal, it seems astute to follow the example set by the
Yukon in implementing its Human Rights Act. Although the option exists
to hold a hearing before a single person acting as a "panel of adjudication,"
this has never been done.33 By having two to five people joining in a de-
cision, a variety of views, including those of Native people, are repre-
sented. This approach also takes some pressure off an adjudicator who
must make a decision while living in a relatively small and close-knit
community.
7. To accommodate Aboriginal ways of resolving disputes, procedures
of a "panel of adjudication," or a body with a similar function, could be
made less formal. The widespread practice of Aboriginal communities, of
trying to reach decisions through consensus rather than through majority
voting practices, can be adopted by the adjudicating organ. Where both
parties have strenuous objections, the process could be modified to be
more legalistic. In essence, though its legislation docs not call for deciding
through consensus, that is the practice of boards of adjudication in the
Yukon Territory.34
8. Where a complaint of discrimination or unequal treatment does
not fit under local human rights legislation, a commission attuned to
the needs of Aboriginal peoples can assist to have the case dealt with
by the proper authority. This can involve simply referral to another human
rights commission in Canada, but could go further. If the appropriate
recourse appears to be constitutional litigation, the claimant could be
given some guidance about this possibility. Where the laws of Canada
cannot assist, the claimant could be helped to file a petition with the
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232 Allan McChcsney
proper body of the United Nations. The Yukon Human Rights Commis-
sion, as an example, has supported reference of two cases of significance
to Native people to the Human Rights Committee which oversees the
International Covenant on Civil and Political Rights.35 Thus, while at-
tending to the interests of individuals through the work of a human rights
statute, the supervisory body could also be facilitating the protection of
the rights of Aboriginal communities through international influence on
Canada.
9. Collective rights of communities can be promoted through public
statements from the directorship of a commission. For example, the chief
commissioner of the Canadian Human Rights Commission, as well as the
deputy chief have highlighted the need to protect group rights to help
improve the circumstances of Aboriginal peoples in Canada.36 The com-
mission's 1988 and 1989 Annual Reports underscored the failings of Cana-
dian society in this regard.37
One way to reinforce protection of rights for some Native persons is
to amend constricting legislation. The Canadian Human Rights Act stipu-
lates explicitly that the provisions of the Indian Act and actions pursuant
to it are not subject to the oversight of the Human Rights Act.38 This is
problematic from an individual rights perspective, because sometimes Na-
tive leaders arc thought to carry out discriminatory practices. The Human
Rights Act is not available to counteract what some, particularly women,
see as discrimination by the governments of Native communities. This
problem may arise when individuals are denied the benefits of membership
in an Indian band because of membership rules or the way they are
applied.39
This problem was exacerbated by changes to the Indian Act that per-
mitted many women and children to obtain or regain Indian status, with-
out adequate resources being conveyed to Indian communities by the
federal government to permit satisfactory absorption of the newcomers (or
returners) into education, housing, health, and community development
facilities. There have been discussions of possible amendments to the Ca-
nadian Human Rights Act to permit complaints by individuals against
their own Native organizations. The goals of gender equality and of en-
abling people to participate fully in their cultural community are worthy,
but there is a downside. The imposition of rulings from an external source
(a human rights commission or adjudicator}' tribunal) would weaken the
authority of the band and would give priority to individual aspirations
over group solidarity objectives. Even if a human rights commission at-
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Aboriginal Communities and Rights in Canada 233
tempts to operate like a council of elders (as in the Yukon), 40 it does not
spring from indigenous traditions.
In recent years, there have been efforts in the United States and Can-
ada to set up "tribal courts" or analogous institutions to dispense justice
within particular Aboriginal communities. The procedures and allowable
sentences or orders of the decision-makers often arc different from those
applied in similar circumstances in the general Canadian or American
court systems. If an internal court were serving an Aboriginal group or
region, that organ could assume some of the powers of a human rights
supervisory body. Alternatively, the latter function would be available
when problems arose between Aboriginal individuals or groups and
people from outside the community. A positive experience with the justice
dispensed by a distinct "tribal," "band," or "national" court might pro-
mote the idea that fair treatment and effective remedies might also be pos-
sible from a human rights commission in other circumstances.
For First Nations, the ultimate campaign for rights involves the group
rights of indigenous peoples, whose governing bodies are not explicitly
recognized by the Canadian Constitution. The focus of much recent
writing, and the area to be addressed here, is the perceived conflict be-
tween the rights of individuals and the collective rights of Aboriginal
communities.
While the Canadian Charter of Rights and Freedoms safeguards the
rights of individuals against the state, a number of its components are
protective of collective rights. There are provisions dealing with linguistic
rights for Canada's two major language groups (English and French), mi-
nority language education rights, multicultural rights, and equality rights
for disadvantaged groups.51 Most essential to our purposes is section 25,
which does not proclaim specific rights but states that the guarantee of
rights and freedoms within the Charter "shall not be construed so as to
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Aboriginal Communities and Rights in Canada 237
an immediate and large increase in the numbers of people who can call
upon the generally meager resources of Indian communities, and the fed-
eral government did not make adequate allowance for this with funding.55
Some Indian reserves and band communities have found it difficult to
bring everyone who wishes to participate into their midst. Women can
assert that though they desire to share in and support the Aboriginal
collectivity, their individual rights as members of that community must
take precedence, and Aboriginal communities oppose having rules of
membership imposed by the government. Litigation has been launched on
these issues.56
Because of the focus on tensions between the rights of women and
the right of Aboriginal communities to self-determine, it is sometimes
forgotten that other groups might wish to assert rights against an Ab-
original community. Just as concepts of equality and entitlement have
evolved concerning women's rights, so has thinking concerning other
types of rights. Leaders of Canada's First Peoples are aware of the human
rights standards contained in antidiscrimination statutes, the Canadian
Charter of Rights and Freedoms, and international human rights agree-
ments. They have sometimes turned to these instruments to defend the
interests of their communities, despite objections to the importation of
values. As self-government arrangements are put into place, governments
of Aboriginal jurisdictions will contemplate which human rights mecha-
nisms are appropriate for them. The next section deals with some issues
they will need to confront.
the culture(s) and pcoplc(s) it hopes to serve during a modern era of (re-
vived) self-determination, an Aboriginal human rights instrument would
need to cover both collective and individual rights, and to treat both as
fundamental.
Notes
Author's Note: The research and analysis in this chapter are current to the end
of May 1990.
The principal sources for this chapter are the individuals listed below. Some
advised on earlier drafts. All have contributed valuable insights. Some may disagree
with particular statements or approaches in the chapter, though it is inspired by
their expertise and their reasoning: Dan Ennis, Darlene Johnston, Roger Kim-
merly, Carol Montagnes, Wendy Moss, Graydon Nicholas, William Pentney, Dave
Porter, Nancy Recollet, Dan Russell, Joanne St. Lewis, and Marty Schreiter.
1. See e.g., M. Boldt and J. A. Long, eds., The Quest for Justice: Aboriginal
Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985), 166,169.
2. "The government structure of the Six Nations greatly influenced the think-
ing of the Founding Fathers of the United States as they sought to develop an
independent government prior to the Revolution. There are striking parallels be-
tween the Iroquois confederacy and the government of the United States" (R.
Gonyea, "Introduction: The Foundation of the Iroquois Confederacy," in Onon-
da0a-Portrait of ablative People [Syracuse: Syracuse University Press, 1986], 14—15).
See also M. Jackson, "Edited Transcript of Proceedings, Consultative Conference
on Discrimination Against Natives and Blacks in the Criminal Justice System and
the Role of the Attorney General," Report of the Royal Commission on the Donald
Marshall, Jr. Prosecution, vol. 7 (1988), 7.
3. See R. Gonyea, ibid, at 13—14. It can also be said that the Metis culture is
formed from the fusing of elements of both First Nations and European traditions.
4. Principles 2, 6, and 7, Declaration of Principles, World Council of Indigenous
Peoples (WCIP IV General Assembly, Panama, 1984).
5. See, for example, ]. L. Tobias, "Indian Reserves in Western Canada: Indian
Homelands or Devices for Assimilation?" in Native People, Native Lands—
Canadian Indians, Inuit and Metis ed. B. A. Cox, (Ottawa: Carleton University
Press, 1988), 148-57.
6. W. S. Tarnopolsky and W. F. Pentney, Discrimination (Toronto: DC Boo,
1985), chap, i and 2; Canadian Human Rights Reporter, Volume of Legislation and
Regulations.
7. Saskatchewan Human Rights Code S. S. 1979, sections 4—8; Quebec Charter
of Human Rights and Freedoms R.S.Q., 1977, sections 1—9; Tukon Territory Human
Rights Act, S. Y. 1987, sections 3—5.
8. Quebec Charter of Human Rights and freedoms, R.S.Q. 1977, sections
39-48.
Status of Disabled Persons of the House of Commons, Issue No. n (October 3,1989),
11:56.
In the early 1970$, the federal government began to turn away from a pro-
assimilation policy. Since 1973 Canada has negotiated with various Aboriginal
nations concerning rights claims, with respect to political rights, "property" and
"compensation." By 1989 three comprehensive land claims settlements were com-
pleted: the 1975 James Bay Agreement with the Cree and Inuit of Quebec; the 1978
accord with the Naskapi of Scheffervillc, Quebec; and the 1984 COPE (Committee
for Original Peoples Entitlement) pact with the Inuvialuit of the Western Arctic.
An "Agreement in Principle," expected to lead to formal agreement, was made in
1988 with the Dene and Metis of the MacKenzie River Valley (M. Asch, "Wildlife:
Defining the Animals the Dene Hunt and the Settlement of Aboriginal Land
Claims," Canadian Public Policy, 15 [1989]: 205).
20. Some communities use customary methods (including consensus) to
govern most of their affairs. Some use elected governments for certain decisions
and traditional institutions for others: E Cassidy and R. L. Bish, Indian Govern-
ment: Its Meaning in Practice (Montreal: Oolichan Books and Institute for Re-
search in Public Policy, 1989), 74-79. There are localities with strong tensions
between power groups adhering to opposing forms of decision-making. This is
evident among the Mohawk in the border areas of Ontario, Quebec, and the state
of New York. See, for example, "Tribe members vote to storm band office," The
Gazette (Montreal), February 16, 1990.
21. While cross-cultural communication and good race relations are as im-
portant to Aboriginal peoples as to other groups, it is inaccurate to equate Native
communities to ethnocultural immigrant minorities. This view was affirmed by
Nancy Recollet. See supra note 18
22. Those listed in the acknowledgments to this chapter.
23. Consultation Paper: Proposed Human Rights Code for the Northwest Terri-
tories (Yellowknife: Government of the Northwest Territories, 1984). I was re-
searcher and codrafter of this document.
24. Tukon Territory Human Rights Act, S.Y., 1987, c. 3. I was consulted on a
few occasions during the legislative development process.
25. Draft Northwest Territories Human Rights Code (see supra note 23), sections
11(2) and 15(4); ibid, at section 1(2).
26. Interviews of Dan Innes, Native complaints officer (1989 and 1990).
27. The involvement of Native communities in the selection and assessment
of designated staff must not be so extensive as to cast aspersions on the indepen-
dence and credibility of the selected personnel.
28. Interview of Marty Schreiter, former director of Yukon Human Rights
Commission (December ro, 1989).
29. Ibid.
30. Clearly, the Native communities affected will be in the best position to
judge what is the best mix of "traditional" and "industrialized society" pursuits for
them. For fuller discussions of related issues, see Makivik Corporation, "Northern
Neglect"; D. Drache and D. Cameron, The Other MacDonald Report (Toronto:
James Lorimer, 1985), no—18; B. A. Cox, supra note 5, at chap. 14, 16, and 17; M.
Asch, supra, note 19, at 205-19; F. Wein, Rebuilding the Economic Ease of Indian
Communities: The Micmac in Nova Scotia, (Montreal: Institute for Research on Pub-
lic Policy, 1986), 132—35, 140—61; R. Robertson, "The Right to Food—Canada's
Broken Covenant," Canadian Human Rights Yearbook 6 (1989): 35—46 of manu-
script.
31. Programs to improve learning and teaching opportunities for Native
people have been instituted by some human rights commissions, notably in Sas-
katchewan and Yukon (consultations with Commission personnel, 1984—89). It is
important to impart traditional values and skills to Native children, yet prepare
them for dealing with the dominant society. Aboriginal teachers provide lessons as
instructors and as role models.
32. Funding was provided to an Aboriginal group by Canada's Court Chal-
lenges Program (an institution largely independent of government but having fed-
eral financing) to consider constitutional litigation against such policies in federal
prisons (Canadian Human Rights Advocate |i989|:9-io).
33. Schreiter, supra note 28; D. Porter, then Director of Yukon Human
Rights Commission (consultations, October 12 and 13, 1989, and December 15,
1989); R. Kimmerly, former minister of justice, Yukon Territory (consultations,
December n, 1989).
34. Ibid.
35. One concerned education equity for Native pupils; the other related to
trapping rights. Ibid.
36. See, for example, the speech given by M. Yalden, chief commissioner, to
the International Conference on Human Rights in Cross-Cultural Perspectives,
Saskatoon, October 12, 1989, and the address of Michelle Falardeau-Ramsay,
deputy chief commissioner, to the Northwest Territories Bar Association, October
14, 1989, entitled, "Do Human Rights Codes, with their emphasis on individual
rights, threaten the collective rights of a people or a community?"
37. Canadian Human Rights Commission Annual Report (1988): 19—21;
(I989):i4-i7-
38. Canadian Human Rights Act, R.S.C. 1985, c. H-6, section 67: "Nothing
in this Act affects any provision of the Indian Act or any provision made under or
pursuant to that Act."
39. Concerning this problem, see the succeeding paragraph, as well as infra,
note 52, and accompanying text.
40. See text at supra, notes 32 and 33.
41. Section 15(1) guarantees equality rights and freedom from discrimination
on die basis of race, sex, and so on. Section 15(2) states: "Subsection (i) does not
preclude any law, program or activity that has as its object the amelioration of
conditions of disadvantaged individuals or groups including those that are disad-
vantaged because of race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability."
42. Section 25 states: "The guarantee in this Charter of certain rights and
freedoms shall not be construed so as to abrogate or derogate from any aborig-
inal, treaty or other rights or freedoms that pertain to the aboriginal peoples of
Canada . . ' . . "
Section 35(1) states: "The existing aboriginal and treaty rights of the aborigi-
nal peoples of Canada are hereby recognized and affirmed."
Section 35(4) states: " . . . the aboriginal and treaty rights referred to in sub-
section (i) are guaranteed equally to male and female persons."
43. This and the next paragraph are based on my experience as director of
legal aid in the Northwest Territories (1981-83), as codrafter of the Draft Northwest
Territories Human Rights Code (see supra note 23) and as coauthor of Background
Research on an Aboriginal Human Rights Instrument (prepared in 1987 for the Na-
tive Women's Association of Canada).
44. Ibid.
45. Ibid., and consultations referred to at supra, note 33.
46. M. I. Asch, "Capital and Economic Development: A Critical Appraisal
of the Recommendations of the MacKenzie Valley Pipeline Commission," in B. A.
Cox, supra note 5, at 232-40.
47. Ibid. The calamities that can arise from insensitivity to communitarian
customs were brought home by ill-advised oil exploitation legislation that permit-
ted selling of indigenous land rights by Alaskan Natives, rather than retention
for community benefit. Consultations with Alaskan officials, December 1984; and
D. Johnston, "Native Rights as Collective Rights: A Question of Group Self-
Preservation," Canadian Journal of Law and Jurisprudence 2(1989): 34, n. 113, where
she says: "The failure of the Alaska Native Claims Settlement Act, 1971, which treats
native land as a corporate asset susceptible to taxation and alienation, stands as a
stark reminder of the hazards of imposing foreign concepts upon the traditional
Native life-style." For a discussion of the disintegrative effects of ANCSA Johnston
recommends Thomas R. Berger, Village Journey: The Report of the Alaska Native
Review Commission (New York: Hill and Wang, 1985), at 45.
48. Apsit v. Manitoba Rice Farmers (1986), 7 C.H.R.R. 0/3315 (Q.B.).
49. Ibid, and consultation, September 21, 1989, with law professor William
Black, expert witness at the trial.
50. Andrews v. Law Society of British Columbia (1989), 10 C.H.R.R. 0/5719
(S.C.C.); S. Day, "Equality Seekers Troubled by Affirmative Action Rulings," Ca-
nadian Human Rights Advocate 6, no. i (January 1990).
On the other side, the sensitivity shown by the Supreme Court of Canada in
two recent decisions on Aboriginal rights demonstrates the merit of seeing liti-
gation as one of the strategies for reinforcement of these rights. In R. v. Sioui,
May 24,1990, the court applied a 1760 treaty in acknowledging the right of Hurons
to practice certain customary activities or religious rites, regardless of whether in
this instance they conflicted with regulations under die Quebec Parks Act. In R.
v. Sparrow, May 31, 1990, the Court gave primacy to Aboriginal fishing rights that
were impeded by fisher)' laws in British Columbia.
51. See R. A. McChesney, supra note u, at 36—39.
52. Section 12(1) (b) of the Indian Act, R.S.C. 1985, c. 1—5, amended by S.C.
1985, c. 27 (Bill C-?i); S.C. 1986, c. 35; S.C. 1988, c. 23; S.C. 1988, c. 52.
53. W. Moss, Indigenous Self-Government in Canada and Sexual Equality
Under the Indian Act: Resolving Conflicts Between Collective and Individual
Rights (unpublished manuscript, February 21, 1990); D. Sanders, "Indian Status:
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250 Allan McChcsncy
Introduction
Human rights violations were on the increase during the 19705 and part
of the 19808 in Latin America. Government violence intensified in Latin
America, where military regimes ruled Chile, Argentina, Brazil, and Uru-
guay. During the 19805 Central America took center stage as the focus of
political violence in the Western hemisphere.
Political violence has always played a key role in the evolution of Latin
American societies. Some authors have interpreted the recurrence of hu-
man rights violations as the by-product of a prevailing cultural tradition
antagonistic to democracy.' They perceive human rights violations as ex-
pressing some form of monism, that is, "support for the unification of
groups at all levels of society: an attempt to eliminate competition among
groups in their pursuit of wealth, power, prestige. . . ,"2 This, in turn, is
said to reflect the influence of an Ibero-American cultural tradition.
This interpretation of Latin America's social evolution is not the only
one that has been used in analyses of the recurrence of authoritarianism
and repression. Research on Latin America has also criticized the univer-
sality of some assumptions on political change in attempts to specify the
characteristics of the situation. Examples of this type of analysis can be
found in some explanations for the rise of bureaucratic authoritarianism
in Brazil, Argentina, Uruguay, and Chile during the sixties and seventies.
Guillermo O'DonnclPs theory on the rise of authoritarianism in the most
advanced Latin American countries stresses the impact of socioeconomic
modernization on the relations among social classes. He argues that once
the initial phase of industrialization was over, the coalitions in power had
to accelerate that process by manufacturing intermediate and capital goods
domestically.
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254 Hugo Fruhling
difficult feat in recent years? The variety of factors involved make the an-
swer to this question very complex. Moreover, the differences among na-
tional realities are too great to allow only one answer for Latin America as
a whole. The recent history of Latin American societies, however, suggests
a few hypotheses:
The process that I have sketched out further polarized the perceptions
of the contending forces. Political compromise and negotiation were aban-
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256 Hugo Fruhling
strong centralism.14 When the colonial system collapsed, its centralist and
authoritarian tradition was passed on to the newborn republics. Thus, the
institutional custom of compromise between alternative centers of political
power never became part of the Latin American tradition. Political cen-
tralism was reinforced by the lack of religious dissent. The religious au-
thority of the Catholic Church has never been challenged from within. 15
Finally, in Latin America political and religious centralism were coupled
with economic centralism.
AJthough Glenn Dcaly approaches the Latin American tradition from
quite a different angle, he reaches coincident conclusions. His basic prem-
ise is that for more than a century and a half the Latin American ideal of
government has not been that of liberal democracy.16 Latin Americans did
not simply borrow a constitutional and political tradition from the United
States and continental Europe and then fail to implant it for an assortment
of reasons. Rather, there is a Spanish American tradition that is reflected
in the political practice of Latin American societies.17
Spanish American constitutions did not make a distinction between
external conduct and internal morality. The internal morality of the citi-
zens was prerequisite for the achievement of the common good. The com-
mon good was identified with the Spanish American natural law tradition.
Thus, it is understandable that most early nineteenth-century constitutions
established Roman Catholicism as the state religion. Even today, Dcaly
asserts, constitutional rights are subject to several limitations that legiti-
mize undemocratic processes and propagate the authoritarian tradition.18
The conclusions of these authors are certainly pessimistic regarding
the prospects of improved human rights conditions in Latin America. If
the authoritarian tradition equally pervades all societies of the region and
has lasted for so long, then changing the current human rights situation
would seem to be extremely difficult.
tion of state power is indeed a feature of Latin American life. The reasons
provided by Veliz, however, are not very persuasive in themselves.
It is true that feudalism never existed in Latin America, but this was
also the case for North America. The lack of a tradition of compromise
between alternative power centers might be a consequence of this fact.
This probably played a major role in the factional civil wars that took place
after independence, and which ended up putting strong men and repres-
sive governments in power. 19 Liberalization, however, has indeed taken
place for king periods of time in some countries that have experienced the
same tradition already depicted. Besides, could centralism be blamed for
such different episodes as the mid-nineteenth-ccntury civil wars or the
present Central American situation, in which so many other factors arc
at play?
According to Veliz, the fact that Catholicism has continued to be the
official religion of Latin America has reinforced political centralism. The
weight of Catholic influence has supported existing social and political
arrangements, but this is neither a necessary nor a permanent relationship.
To begin with, the Church's influence is not very great in Mexico or Uru-
guay. Secondly, since Vatican Council II, the Church has redefined its
relationship with political ideologies. This redefinition has inspired grow-
ing concern for social change, popular participation, and human rights.
While these changes have had no impact on the Church's political stance
in Colombia or Argentina, they have certainly reversed more traditional
attitudes in Central and South America. 20 Furthermore, the opposition to
the military and to human rights violations has been strongly backed by
the Church in Chile, Brazil, and El Salvador. While Catholicism continues
to be the most influential religion of the region, its weight in political
events varies from one country to the next. It becomes difficult to say that
gross human rights violations arc the consequences of a Catholic-inspired
authoritarian tradition. Finally, Veliz asserts that Latin America has re-
mained economically centralized. The state's role in promoting industri-
alization has not been altogether undemocratic, however. On the contrary,
it has often reflected the concern of the elites for the prevailing social
situation, and in some countries meant the fostering of the welfare state.
In fact, military regimes have been the ones to promote free market poli-
cies that have cut into the state's economic role.
Glenn Deary's approach puts utmost emphasis on the argument that
there is only one distinct tradition in Latin America. One of his main
contentions is that the natural law concepts of the elite who fought the
wars of independence were radically different from the concepts of natural
law prevailing at that time in Europe and the United States. Thus, he
dismisses the argument that the new republics borrowed the principles of
Western constitutionalism from Europe and the United States, but lacked
the preparation to implement them. According to Dealy, the new repub-
lics merely put into practice the principles that they believed in, which arc
antagonistic to pluralism. This position seems to me to exaggerate the
influence of one distinct tradition over a period of two centuries and to
create a misleading impression that no other competing ideologies have
expounded and defended—sometimes with success—opposing ideologi-
cal claims. In considering the influence of the Spanish authoritarian tra-
dition, one should not forget that wars of independence and subsequent
civil and international wars destroyed what was left of Spanish colonial
institutions. 21
The Chilean case clearly shows that, despite obvious sociological dif-
ferences, by the end of the nineteenth century the legal system in many
aspects resembled the legal systems of Western Europe. 22 It is true that
during the first half of the nineteenth century liberal constitutional provi-
sions were contradicted by the hegemony of authoritarian governments
that held complete political control. By 1874, however, constitutional
amendments enlarged the catalogue of fundamental freedoms to be pro-
tected, presidential power was limited, and political parties gained in or-
ganization and leverage. The Chilean institutional evolution, which could
be very favorably compared in democratic terms with that of some Euro-
pean countries, proves at least the following proposition: whatever the
initial influence of medieval natural law concepts may have been, they were
no obstacle to the liberalization of the institutional system in the case of
Chile.
Uruguay is another case in point. Its first seven decades of indepen-
dent life were chaotic and violent. However, by the end of the nineteenth
century, it was developing an institutionalized political mechanism for lim-
iting political conflict. The 1903 civil war won by Jose Battle y Ordonez
put an end to armed civil strife for six decades.23 Although the constitu-
tional government system suffered two interruptions during this period,
the full enjoyment of civil liberties by Uruguayan citizens reaffirmed Uru-
guay's claim that it was the most democratic country in Latin America. It
might very well be that the judicial system was not as efficient or assertive
Latin America's history shows not so much the prevalence of only one
cultural tradition, but rather the coexistence of different ideological pat-
terns that have evolved outside the region and are assumed in accordance
with local realities. Therefore, modern ideological conceptions are "rein-
terpreted" by societies whose cleavages, class divisions, and national prob-
lems are unlike those of the most developed countries of the world. 24
Modernizing ideologies were, in fact, assumed in Latin America by
intellectual elites immediately before, during, and after the wars of inde-
pendence. Their impact and application, however, varied in relation to the
particular social context. The concept of republicanism, the rule of law,
and the independence of the judiciary could hardly be applied in societies
like Peru that lack a national identity. The absence of a national state ca-
pable of gaining the loyalty of the masses there made a gradual evolution
toward political pluralism impossible. However, democratic liberalism
continued—even in Peru—to set the standards of legitimacy against
which any state could be judged. This fact explains why authoritarianism,
personalism, and unequal application of the law have survived together
with republican constitutional forms. It also explains the tendency to os-
cillate between limited democracy and authoritarian regimes that is re-
flected in most Latin American countries. When tensions arise within the
coalition in power, the question of democracy usually surfaces, bringing
with it an improvement of the human rights situation. 2S When political
and social domination is threatened by social mobilization or by other
factors, however, some form (if authoritarian rule is imposed again.
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Human Rights Violations in Latin America 261
In the Chilean case, the evolution toward more liberal forms of gov-
ernment took place in part because the ruling elite was able to consolidate
a legitimate central authority. The consolidation facilitated a gradual ac-
ceptance of a political opposition. This liberalism, however, was developed
in a social context that differed radically from the one present in Europe
and the United States. The economic system was much weaker, industri-
alism came much later than in Europe, and very large segments of the
population remained isolated from the political and social system. Never-
theless, by 1945, Chileans could claim that their democratic political tradi-
tion was older than that of Italy and Germany.
Marxism has also had an important influence in Latin America; it
shaped the actions of leftist parties, trade unions, intellectuals, and guer-
rilla movements. Yet, as Zapata points out, Marxism has faced the reality
that capitalism has developed in Latin America in quite specific ways.26
What are the differences between this and European capitalist evolution?
A brief sketch of events that have taken place in South America in recent
years will illustrate the consequences of this interplay between ideology
and context for the human rights situation.
Gross and systematic human rights violations have taken place in Brazil,
Chile, Argentina, Uruguay, Peru, and Colombia in recent years. In the
case of the Southern Cone countries, this occurred after military rule took
over. In Peru and Colombia, human rights abuses have taken place despite
the existence of democratic political systems. As has already been noted,
prior to these violations, Chile and Uruguay had become stable political
democracies in which the use of political violence was unusual, but Argen-
tina and Peru had been characterized by political instability. Colombia had
returned to civilian rule after the massive Violenda of the forties and the
resulting military government of General Rojas Pinilla. 2y Colombia had
already experienced long periods of political violence during the nine-
teenth and mid-twentieth centuries. Thus, political violence and human
rights abuses were not alien to the political culture of sonic of these coun-
tries and the likelihood of further violence was high.
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Human Rights Violations in Latin America 263
following refers only to Chile, Argentina, Brazil, and Uruguay. The socio-
economic context created conditions for social mobilization in a poorly
performing economic system. The upper middle classes felt that income
distribution and social reform did not secure sustained economic growth,
but rather threatened the subsistence of the capitalist system. Moreover,
social reform, far from preempting mobilization, accelerated it. During
the 19605, revolution became the central theme of the political intellectual
debate in South America.34 The influence of the Cuban revolution on
Latin American intellectuals radicalized their views on the social situation
and meant the emergence of newly radicalized leftist groups. In Uruguay
and Argentina urban guerrilla groups were formed that utilized terrorist
tactics against their enemies, whether military officers, rival union leaders,
or representatives of "imperialist powers."35 The common feature of all
these situations is that political negotiations between government and op-
position political forces were unsuccessful and that violence in the streets
escalated.
It is hard to judge whether the breakdown of these democratic sys-
tems could have been avoided. What is clear, though, is that the installa-
tion of these authoritarian systems was preceded by strife and competition
over state power among ideologically opposing forces. Conservative and
revolutionary forces were, in fact, involved in a power struggle to replace
the socioeconomic system. Ideological influences also shaped the thinking
of conservative forces who felt that the only way to restore order was by
imposing military rule in the country. The influence of orthodox economic
thought on technocrats working for the new authoritarian administration
meant a strong emphasis on economic stabilization programs and on the
demobilization of leftist parties and unions.36
Military rule and subsequent repression were justified by the "na-
tional security doctrine," which, as Margaret E. Crahan puts it, "is a sys-
tcmatization of concepts of the state, war, national power, and national
goals that places national security above personal security, the needs of the
state before individual rights, and the judgment of a governing elite over
the rule of law."37 This national security doctrine justifies the elimination
of dissent, the dissolution of political parties and labor unions. It is not
the cause of the repressive process, however. The reasons for gross human
rights violations can be found in the social crisis and political polarization
process just described.
These were not traditional military coups engineered to put a new
leader in power. The military participated as institutions; only in the case
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Human Rights Violations in Latin America 265
of Chile was power personalized in just one general. Moreover, even the
aims of these new rulers were revolutionary. Their goals entailed a trans-
formation of economic and social structures in an effort to smother any
potential threat to economic and social systems.
The intensity of the repression, as well as the tactics it utilized, de-
pended on a number of factors: first, belief that the very nature of the
threat itself (suppression of guerrilla groups) required particular brutality;
second, belief that implementing the desired socioeconomic changes need
repressive measures; and third, the variety of political and social influences
having an impact on the government coalition. External pressures to mod-
erate security policies, as well as internal calls for reconciliation emanating
from the Church, also had an important effect in some cases. In addition,
repression sometimes led to infighting within the military and to disputes
between the security establishment and more professionally oriented offi-
cers. 38 Thus, the evolution of the human rights situation in each of the
countries was a result of a variety of forces affecting repressive policies.
Most assuredly, authoritarian policies gained legitimacy through au-
thoritarian concepts. National security notions gave shape to a set of val-
ues that inspired the social exclusion of the left, as well as a tremendous
distrust for democratic politics. A market ideology supported the criticism
of governmental economic intervention and the welfare state.39 Thus,
a new authoritarian concept of the world emerged, one that bore little
resemblance to the Ibero-Amcrican culture and the Catholic concept
depicted by some of the authors mentioned earlier. This new vision ad-
vocated economic competition, consumerism, and a limited role for the
state in the protection of weaker sectors of the population. In terms of
economic values, nothing was absolute and the "common good" did not
exist.
As we are aware today, all of these countries began a process of tran-
sition to a democratic system. In fact, authoritarian regimes were never
fully able to create an air of legitimacy around themselves, and as tension
within the governing coalitions mounted, the calls for a return to democ-
racy multiplied. A closer look at this process of redemocratization shows
that it faces impending dangers. Civilian authorities have not been able to
completely assert their authority over the military. Human rights viola-
tions have gone unpunished, and the economy requires drastic changes
that would demand a high social cost and provoke further turmoil. How-
ever, the struggle against authoritarian domination has expressed cultural
traits that arc beneficial to the stabilization of democracy. But, since no
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266 Hugo Fruhling
rise of leftist movements working within the legal system pushed it to the
sidelines during the 19705, by the end of that decade the movement re-
vived, partially due to the repression unleashed by President Turbay Ayala,
and new groups were formed. 43 Today, Colombia is experiencing a wave
of terror in which state institutions (police and armed forces) seem to be
deeply involved, at least in terms of abdicating the responsibility to inves-
tigate and punish the perpetrators of politically inspired crimes.44
In the case of Peru, guerrilla groups were also created during the
19605, but were finally defeated. Today the major threat to social peace is
the "Communist Party of Peru—Sendero Luminoso" (Shining Path). Its
origins can be found in a Maoist splinter group of the Communist Party
that emerged in Ayacucho, possibly the poorest administrative district of
Peru. In this region the state exercised extremely little control, and a domi-
nant class capable of preserving existing social structures did not exist. In
1980, Sendero Luminoso began its offensive against the state with a series
of terrorist actions. Up to now, though, it has been unable to gather
enough support in urban areas.45 In their struggle against Sendero Lumi-
noso, which to date has been unsuccessful, the armed forces and the police
have committed countless human rights violations; hundreds of people-
have disappeared. While at the very beginning of his term President Garcia
seemed willing to restrain illegal repression, he later found himself acqui-
escing to it in the face of a situation that was out of control.46
The comparison just made between the Southern Cone countries and
Peru and Colombia proves that, beyond general characteristics such as au-
thoritarian political culture, major differences remain. To begin with, in
the case of Southern Cone, human rights violations were associated with
the rise of an authoritarian regime. While it is difficult to predict the evo-
lution of the present democratic structures, the human rights situation has
improved considerably. The situation of Colombia and Peru is much more
difficult since the state is generally unable to assert its authority over dif-
ferent social actors.
Second, in the case of the Southern Cone countries, human rights
violations were curtailed as a result of the economic and political failures
of military regimes and because the political elites slightly moderated their
views, thereby reducing political polarization. Thus, conflict management
was more effective in easing political and social conflicts.
The cases of Peru and Colombia are much less manageable. Political
violence has become a part of social life in Colombian society and past
peace initiatives have failed. Moreover, the authority of the civilian gov-
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268 Hugo Fruhling
crnmcnt over the armed forces remains weak. In the Peruvian case,
Sendero Luminoso ideology cannot be tamed by any peace initiative.
Moreover, any reduction of political violence requires a social investment
in depressed regions and in the cities at a time when Peru faces a tremen-
dous economic crisis.
Despite the grim outlook faced by Colombia and Peru, Latin America
is turning to democracy. This is partly the result of a human rights struggle
that took place during the harshest repressive period. I will now consider
the impact that this struggle might have on the political culture.
that views repression as serving its best interest. The regional system alone
cannot effectively handle situations in which gross human rights violations
take place, for OAS political organs have been reluctant to consider sanc-
tions or other measures against states that violate human rights.50 More-
over, situations in which gross human rights violations occur create a
dynamic of their own. The armed forces develop corporatist autonomy
and refuse to simply go back to the barracks. The security apparatus that
served the repressive aims of previous authorities so well is rarely dis-
banded as transitions to democracy usually demand cautious negotiations
between the civilian opposition and senior army officers.
Latin America is facing the tremendous challenge of building up a
democratic culture. Social, cultural, and even ethnic heterogeneity are to
be integrated into a common democratic culture. Yet here the process of
unequal development takes place in mass societies that cannot wait a long
time to see a solution to their social problems. The gradual process by
which the masses acquired the full rights of citizenship in Europe is more-
difficult to follow here. Social mobilization will usually be accompanied
by additional conflicts.
As Jose Joaquin Brunner notes, the dilemma is to create a political
culture capable of integrating all these traits of cultural, economic, and
social heterogeneity despite high levels of social conflict.51 A consensus on
shared values will be more difficult to attain in Latin America than has
been the case in Europe and North America. Therefore, emphasis should
be placed on establishing institutions and mechanisms capable of settling
these conflicts and gaining legitimacy in Latin America despite the weak-
nesses inherent in the prevalent civic culture and the lack of fundamental
shared beliefs. Only the acceptance of social conflicts by all political actors
involved and a shared willingness to solve them peacefully will be capable
of reducing present levels of political violence.
Conclusions
Political violence, in the form of gross human rights abuses, has become
part of the historical evolution of Latin American societies. Yet, it has been
more prevalent in some countries in contrast to others that have enjoyed
long periods of democratic stability. The conflicts that preceded these per-
iods in which extensive human rights abuses took place have had different
connotations. Thus, their roots cannot be traced back to the hegemony of
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Human Rights Violations in Latin America 271
Notes
12. Howard J. Wiarda, "Social Change, Political Development and the Latin
American Tradition," in Howard J. Wiarda, supra note i, at 23.
13. Claudio Veliz, "Centralism and Nationalism in Latin America," in ibid, at
211—25.
14. Ibid, at 212—15.
15. Ibid, at 214.
16. Glen Dealy, supra, note i, at 163.
17. Ibid, at 165.
18. Ibid, at 172—73.
19. A sample of books dealing with the violence that preceded the formation
of modern states in Latin America is James R. Scobie, Argentina: A City and a
Nation (New York: Oxford University Press, 1971); and Frederick B. Pike, The
Modern History of Peru (New York: Frederick A. Praeger, 1967), 56—90.
20. Emilio F. Mignone, Iglesia y Dictadura (Buenos Aires: Ediciones del
Pensamiento Nacional, 1986); Brian H. Smith, The Church and Politics in Chile
(Princeton: Princeton University Press, 1982); Enrique Correa y Jose Antonio
Viera-Gallo, Iglesia y Dictadura (Santiago: CESOC-Ediciones Chile y America,
1986); Daniel H. Levine, "Continuities in Colombia," in Journal of Latin American
Studies 17 (1985): 295-317; Margaret E. Crahan, "A Multitude of Voices. Religion
and the Central American Crisis," mimeo on file at the Program on Human Rights
of the Academy of Christian Humanism, 1987.
21. Martin Weinstein, Uruguay, Democracy at the Crossroads (Boulder: West-
view Press, 1988); Charles Gillespie et al., eds., Uruguay y la Democracia, 3 vols.
(Montevideo: The Wilson Center Latin American Program/Ediciones dc la Banda
Oriental, 1985); Milton I. Vanger, Jose Battle y Ordonez of Uruguay. The Creator of
His Times (Cambridge, Mass.: Harvard University Press, 1963).
22. Hugo Fruhling, "Liberalismo y Derecho en Chile," in Ensayes (Santiago:
Editorial Debates, 1978), 746.
23. Martin Weinstein, supra, note 21; Charles Gillespie, in ibid.; Milton I. Van-
ger, in ibid. (Cambridge, Mass.: Harvard University Press, 1963).
24. Jose Joaquin Brunner, "Los Debates Sobre la Modernidad y el Futuro de
America Latina," Documento de Trabajo FLACSO No. 293 (April 1986).
25. Guillermo O'Donnell, "Tensions in the Bureaucratic-Authoritarian State
and the Question of Democracy," in David Collier, supra note 3, at 285—318.
26. Francisco Zapata, supra note 8.
27. Julio Cotler, "State and Regime: Comparative Notes on the Southern
Cone and the 'Enclave Societies,'" in David Collier, supra note 3, at 265.
28. Francisco Zapata, supra note 8, at 88-91.
29. Mauricio Solaun, "Colombian Politics: Historical Characteristics and
Problems," in Albert Berry, Ronald G. Hellman, and Mauricio Solaun, eds., Poli-
tics of Compromise Coalition Government in Colombia (New Brunswick, N.J.: Trans-
action Books, 1980), 1—57.
30. Martin Weinstein, supra note 21, at 36—38.
31. Jorge F. Sabato and Jorge Schwarzcr, "Funcionamento da Economia c
Poder Politico na Argentina: Empedlhos Para a Democracia," in Como Renascent
For five hundred years, from the very beginning, Indian rights have been
considered in Hispanic and Portuguese legal thought both as collective
rights and as individual human rights. Two broad questions were consid-
ered: the first was whether Indians had any collective titles to their lands;
the second was whether or under what conditions Indians would be sub-
ject to enslavement. The question of customary law also arose, since dis-
cussions went along on the topic of the right of the Indians to remain
heathen, to retain polygamy, and even to practice cannibalism.
The issue of enslavement is now forgone, yet what is called nowadays
"the right to difference" is very much alive. Such rights, as well as rights
to land and to its natural resources, constitute the core of Indian rights
discussion in Brazil. It has been claimed by native Brazilian leaders that
both issues arc fundamental human rights, a status that entails a collective
as well as an individual dimension to these rights.
This position is consistent with sociological thought, at least since
Emilc Durkheim: the concept of the individual is historically Western; it
gained hegemony around the eighteenth century and was enshrined two
hundred years ago by the French Revolution. Yet such an equality of in-
dividuals is a highly abstract idea. No concrete individual can be thought
of outside his or her context, which encompasses modes of perceiving the
world, social values, and institutions, since to be human is also to have
what is commonly called culture. Hence, in order to ensure the protection
of fundamental individual rights, one must also protect its social condi-
tions. And therefore, equality in rights as is claimed by Article i of the
Universal Declaration of Human Rights of 1948 rates recognition not only
for individuals but for societies as a whole.
Clearly, land rights stand foremost among the preconditions of social
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Reflections on the Brazilian Indian Case 277
rights in that connection in Brazil, for which the state must bear a heavy
responsibility.1
area between the state of Roraima and then British Guiana was fought on
the grounds of establishing the presence of certain Indian groups in the
area and their alliance to one of the two parties or their predecessors in
the region—the Portuguese and the Dutch, respectively.
Dismissing Indians as occupants of borderline regions is also uncon-
stitutional. Indians have exclusive rights of possession (though not of
dominion) and topsoil exploitation of their lands, and the federal govern-
ment is obliged to have their lands demarcated. Such demarcation, initi-
ated long ago, was to have been completed, by law, in 1978; but it was not.
Although the new constitution, promulgated in 1988, contains provisions
for a new five-year period during which to achieve demarcation, this plan
has yet to be carried out.
What seems to be under suspicion is the actual "Brazilianness" of the
Indians, on the one hand, and their ability to resist or avoid manipulation
by foreign interests, on the other. Actually, in the introductory document
to the Calha Norte Program, there is an explicit reference to the potential
threat of Yanomami separatism under the manipulation of unspecified for-
eign interests, as these Indians span the border of Brazil and Venezuela.
The invasion of Yanomami land by gold prospectors is but a symptom
of more extensive strategies. In 1986, the Air Force dislodged a group of
gold prospectors who forcibly invaded Yanomami land disguised as army
troops, but failed to take any action against subsequent encroachments.
The very first landing strips were built by the Air Force allegedly to sup-
port the government Indian Agency (the ill-famed FUNAI, or Fundacao
Nacional do Indio) to give medical and other assistance to the Yanomami.
But FUNAI lacks any sort of airplanes in Roraima, where gold prospec-
tors rely on a fleet of small airplanes which, in 1989, had turned Boa Vista
airport into the second busiest airport in the country. I visited the area in
June 1989, as part of a team from the "Action for Citizenship" movement,
an association of major Brazilian professional organizations, the National
Council of Bishops, and some members of congress. Gold prospectors had
not only occupied Air Force—built air strips but also opened more than a
hundred new clandestine airstrips themselves. These are euphemistically
described by the military as "non-homologated." All these airstrips could
be located through satellite photos, and one of them was just five minutes
away by plane from a border military post. They could hardly have gone
unnoticed by the authorities.
As to the role of FUNAI, this agency's post at Paapiu, which we
visited, had been abandoned for at least five months; drugs and syringes
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280 Manucla Carneiro da Cunha
were lying on the floor and the radio device had been ripped apart. Those
Yanomami who still lived in a beautiful round communal house at one end
of the airstrip were mostly ill, and subsequent visits by medical teams
showed alarming malaria and mortality rates. The official report of a medi-
cal team that returned from the area in February 1990 indicated that in
Paapiu 91 percent of the members of some communities were affected by
malaria. Surucucus, a region that until 1987 had been totally free of ma-
laria, registered a malaria rate of 78 percent of its population. Sixty-eight
percent of the members of one community, and 53 percent of another, died
in 1989. On the whole, it is estimated that 13 percent of the Yanomami have
died in the last two years.
It became clear to our team that the invasion could not have occurred
without the knowledge, and therefore acquiescence, of the Brazilian army
and the air force. Why did they choose to allow it? As the Air Force com-
mander who was our host explained, gold prospectors were bold but
rather unruly people, desperadoes unsuited for relocation to the cities. Yet,
and rather inconsistently, he added that they could perfectly well mix with
the Yanomami, with whom they were on very friendly terms. Many of
these prospectors seemed to be originally northeastern peasants, but a
great number had previously held small jobs in southeastern towns. A lot
of gold smuggling was known to be going on, and therefore national reve-
nue had little profit coming out of this business. Although it is difficult to
know with certainty why the military favored this invasion of Indian land,
one can speculate as to the reasons.
My own guess is as follows: I do not think the military held the gold
prospectors in great esteem as those best-suited to be a buffer at the fron-
tier, but they were the ones who could and would penetrate the forest and
face the Indian threat. Also, they caused irreversible destruction of the
forest and of the Indians themselves. It is entirely possible that the military
hoped to replace the prospectors by mining companies. In previous years,
there had been a close alliance between Brazilian-owned mining compa-
nies and the military, resulting, among other things, in barring foreign-
owned mining companies from the Amazon under the new Constitution.
Moreover, for a number of years the military has been trying to persuade
public opinion that mining companies, in Indian lands or elsewhere, were
better than individual gold prospectors since they were more organized
and more disciplined, so that they can control their workers. In 1987, the
mining companies were actually able to secure contracts in Tukano Indian
lands (in the state of Amazonas, near the Colombian border) with the help
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Reflections on the Brazilian Indian Case 281
of the then National Security Council (CSN). That deal provided for the
company's control and expulsion of the encroaching prospectors.
Another clue is the military's attempt to divide Yanomami territory
(at the very moment when the issue of Indian land was being decided in
the Constituent Assembly) into an archipelago of isolated subunits with
intervening National Forests. According to this plan, the Indians would
not retain exclusive but solely preferential rights of use, and mining would
be permitted, in these isolated subunits. From all these facts, it is at least
reasonable to suppose that the military was not unhappy to see the Yano-
mami area being invaded because that could prove helpful in disputing
Yanomami occupation of the territory or in supporting the claims of Bra-
zilian mining companies to exploit the underground resources. An orderly
colonization would also come in handy. This was explicitly expected to
happen around military borderline posts, notwithstanding the fact that
they were in Indian land. Such an outcome would at last provide a
"proper" human frontier in the area.
One might muse as to why the military seems to back local elites
rather than worry about them, since local elites are clearly resentful of the
use of their region to provide energy or iron to southern-owned compa-
nies. In fact, there seems to be a growing chauvinism among dominant
classes in the Amazon that are trying to establish "horizontal links" among
themselves. There arc strong attempts by the ruling class to establish Ama-
zonian identity and even pan-Amazonian cooperation treaties reaching
other South American countries.
What is interesting is that at the dominant class level, a strong region-
alism has evolved. Regional elites claim exclusive local competence on
what has been otherwise a universal concern, while at the bottom level,
rubber-tappers and Indians have shown a tendency to universalize local
claims.
The National Security Council (CSN), later renamed as Strategic Af-
fairs Bureau (Sccretaria de Assuntos Estratcgicos, SAE) a kind of military
intelligentsia, expanded its influence on federal policies not only during
the military regime but particularly during the rule of President Jose Sar-
ney, who came to rely on the CSN to a great extent as his civilian support
diminished. Thus since the early 19808, Amazonian affairs, which encom-
passed Indian affairs, have fallen into the ever-broadening category of
National Security Issues. Indian issues, even outside the Amazon, have
become subject to military scrutiny and interference.
On the other hand, radical jargon such as the insistence on the term
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282 Manuela Carnciro da Cunha
that Indians are entitled to special rights only as long as they are vulnerable
to and not cognizant of other people's malice. This perspective fails to
acknowledge Indian rights to their land as rights of primary occupancy of
the land, even though this had been the Portuguese and Brazilian tradition
prior to the early twentieth century.4 When the Civil Code was drafted in
1916, the Indians were included, for their protection, among the "relatively
capable," and were thus lumped together with people from sixteen to
twenty-one years of age and married women. They became wards of the
federal government, which in turn delegated its duties to a special bureau
(the Service of Indian Protection [SPI] from 1910 to 1967, FUNAI from
1967 to 1991, and the recently renamed Institute Nacional do Indio [INI]
in a very special case of tutelage over which no control was exercised. The
SPI was abolished on serious charges of corruption; and FUNAI has been
subject to ongoing criticism.
Although wardship has not been a very good solution, Indians and
their supporters cling to it because it seems nowadays to provide the only
basis for special rights. The recognition of Indian rights as historical rather
than as special protection rights might open the way to an alternative legal
basis for Indian rights.
The second major progress relates to the definition of Indian land.
There has been much litigation in recent years about the subject, with
judges ruling alternatively in favor of a restricted interpretation of Indian
land as inhabited and cultivated land or upholding its broad definition as
a territory. The definition provided in the new constitution (article 231,
paragraph i) is the broadest possible.
The last achievement I would like to stress is the recognition of Indian
judicial capacity. This again was something judges did not necessarily rec-
ognize. Since FUNAI, for the reasons stated earlier, did not necessarily
take judicial initiatives, there were serious limitations to Indian enforce-
ment of the law. In the new constitution, not only is such judicial capacity
explicitly stated but the Public Ministry is now also obliged to provide
mandatory judiciary assistance in these matters. In less than two years'
time, this has proven to be a most powerful change. The Public Ministry,
which previously acted as the defender of the federal government, now has
the functions of a collective ombudsman, as a defender of diffused rights.
Its action in the case of the Yanomami, for example, has set new standards
for the legal handling of Indian affairs.
On the initiative of the Public Ministry in December 1989, Justice
Reis and Justice Aguiar ruled for the interdiction of airstrips and the re-
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286 Manucla Carnciro da Cunha
moval of the gold prospectors from the Yanomami area. The Air Force
protested that the task was not feasible. The Minister for Justice himself
and the Federal Police Chief went to the area but, instead of enforcing the
judicial order, they drafted an agreement relocating the gold prospectors
in another part of Yanomami territory. For the first time in Brazilian his-
tory, officials of such high rank were threatened with imprisonment. Then,
in February 1990, the Public Ministry issued an unprecedented accusation
against President Sarncy and four of his ministers for noncompliancc with
judicial orders and "crimes of responsibility," that is, criminal failure to
comply with their responsibility to enforce the law.
not know how to solve it. But I think that this is not the way the issue
presents itself. One important reason for that is, I suspect, a prevailing
misconception about what exactly "culture" and "customary law" are.
What I see as the fundamental problem is the tendency to reify the notions
of "culture" and "customary law," and to deprive them of all their political
content. This tendency is identifiable in the very use of these expressions.
Thus one hears, for instance, about the incorporation of customary law
through reference or replication.8 Implicit in such terms is the assumption
that one is speaking of an identifiable set of categories and legal norms
with three characteristics:
result being that it appeared as if traditions were stronger than ever when
in exile. In short, cultural traits of ethnic groups did not derive solely from
an autonomous elaboration. Rather, they were also externally manipulated
to form systems of contrast with cultural traits of other ethnic groups,' l
or of the dominant nation within the state.12
These perceptions reinforce what was mentioned above, namely the
conditions in which the cultural production of a society takes place, and
which assume other societies or social groups' existence and interaction. It
is as if the emphasis had passed from the analogy of societies with living
organisms, considered in their irreducible singularity, to the analogy with
communication systems. Thus the anthropological classical fiction that
societies could be observed in perfect isolation and untouched by time—
for many years a sort of private anthropological poetic license—was
repudiated.
This being so, neither the priority nor the autonomy from the state
of customary law can be held anymore. The former only exists in relation
to the latter and requires its presence in a double fashion: First, because
one can speak of customary law only in opposition to positive law which
assumes the existence of a state; second, because the very content of cus-
tomary law, as has been shown, is partially and by contrast determined by
the existence of the state. Thus, both the notion and the specific content of
customary law are tributaries to the existence of a state which it confronts.
Finally, writing is a difference bctwcn positive law and customary law
which should not be underestimated. The importance of writing in this
context has been emphasized since Max Weber. More recently, anthro-
pologist Jack Goody has called our attention to the implications of writing
and its diffusion in the transformation of societies of oral tradition.13
Without entering into the considerations Goody makes on the impact
of this new means of communication on cognitive processes, it seems cer-
tain that written and oral law lend themselves to different logical opera-
tions and social use. I have attempted to show elsewhere the significance
of nineteenth-century Brazilian positive law having deliberately omitted
largely practiced rules of customary law on slave manumission.14 Such si-
lence was a key element in the building up of personal links of dependency
necessary to the system.
I would only emphasize here that positive and customary law, though
they may easily coexist, arc of a different nature and social use, and cannot
be reduced to a single system. As a consequence it is absurd to replicate,
in an explicit and substantive way, a system of customary law into positive
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Reflections on the Brazilian Indian Case 291
law, and a fortiori some of its fragments, which can only make sense within
the system.
The implications of this discussion for our debate about how to adjust gen-
erally recognized human rights to customary law are clear: the content of
customary law—and for that matter, the content of what are considered
"universal human rights" as well—are continually being modified. There-
fore, what has to be acknowledged for other people is not a substantive set
of norms that might be incompatible with our present standards of human
rights. Rather, what has to be acknowledged is other people's authority over
the ever-changing content of customary law. Ethnicity, which defines one's
relationship to proximate neighbors, constitutes one of the factors affect-
ing the content of customary law. Another factor that modifies the content
of customary law is the relationship of a minority to the rest of the world.
It is probable that there will be a tendency toward an internally conducted
adjustment to current international human rights standards. For one thing,
most minorities are largely dependent: for political support on public opin-
ion, be it national or international, and they have proved highly capable of
translating their claims into general issues. In Brazil, for instance, the rub-
ber-tappers' (seringueiros) movement in the state of Acre started in the 19708
as a labor movement. It was organized into labor unions and phrased its
claims mainly in terms of the injustice characterizing labor relations on
rubber estates. Also, to defend rubber-tappers' access to hevea trees that
produce latex, they opposed, through sit-ins, the deforestation promoted
by cattle-ranchers in the Amazon. The interesting thing to observe is that
it was not the Greens who first recognized the ecological dimension of the
serinijueiros movement, but rather serinfjueiros leaders, among them Chico
Mendes (winner of the United Nations Global Prize for ecology in 1987),
who was murdered in December 1988. Kaiapo Indian leaders of the south-
ern state of Para were able to make a similar connection in early 1989, in
which their struggle for land matched a more widely ranging campaign
against the building of dams on the Xingu River; in addition to flooding
their lands, these clams had far-reaching negative effects on the ecology.
What is amazing (for Brazil at least) is that Kaiapo Indians became the
leaders of a very general movement: they gained support not merely
because they were struggling for land but also because they were champi-
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292 Manucla Carnciro da Cunha
political and shamanic leader Davi Yanomami explained that should the
Yanomami shabori (shamans) die as they arc indeed dying, their attendant
spirits would, in anger, cut the ropes which sustain the present-day heaven.
Since there would be no more living shamans left to stop them, which is
one of their tasks, heaven would fall on earth, pushing the trees and the
mountains into the subterranean world, "thecee!" People would fall in
fear, "aaaaaa." The sun and the spirits of the night would fall as well.16
Thus, the death of the Yanomami literally entails the end of the world.
"You have to tell those who do not look ahead, who do not dream," said
Davi, "that the earth is one. You have to teach your children to look ahead,
and they have in turn to teach their children. This is important not just for
us Indians, but also for whites, blacks, yellows, reds. You say that the earth
is a ball. It is. The earth is one, the moon is one, the sun is one alone. This
is why all of us need the shabori \shaman\. It is he who sustains the world.
We are the people of Omam, this is why we are called yanomami."
I wish to conclude with a historical example which I particularly like
because it points out how relative and historically based our own values
arc. In the sixteenth century, Portuguese colonial authorities blamed the
Tupi Indians along the Brazilian coast for ceremonially killing and eating
their enemies instead of killing them on the battlefield or enslaving them
"or all civilized countries do." Consequently, they enforced a rule that all
Indian wars should not be conducted without the prior authorization of
the governor, and that captives should be killed on the spot or, better, sold
as slaves to the colonists. Since the colonists badly needed slaves, they
encouraged wars for their own ends, and wars raged as never before.
Ritual killing and cannibalism had been central to the Tupi social system:
a prerequisite for a youth who wanted to marry and, for adults, for gaining
political prestige and even immortality. Yet eventually the Tupi abandoned
ritual killing and cannibalism for attenuated forms of it (for instance,
breaking skulls of already dead enemies) which were more palatable to the
Portuguese. Such is Realpolitik.
Notes
3. For these and other significant gains for Indians, see Articles 20, 22, 26, 49,
115, 135, 182, 210, 215, 231, and 232 of the Brazilian Constitution of 1988.
4. See, for instance, Joao Mendcs, Jr., Os indigenas do Rrasil, seus direitos in-
dividuaes epoliticos (Sao Paulo: Comissao Pro-Indio, 1912).
5. See E. Viveiros de Castro and L. Andrade, "Hidreletricas do Xingu: o Es-
tado Contra as Sociedades Indigenas," in L. Santos and L. Andrade, eds., As hi-
dreletricas do Xingu e os Povos Indigenas (Sao Paulo: Comissao Pro-Indio de Sao
Paulo, 1988).
6. See Abdullahi A. An-Na c im's Chapter i in this volume.
7. This is the conclusion of a recent forum on ecology. See Harper's Magazine
(April 1990).
8. B. R. Morse and G. R. Woodman, "Introductory Essay: The State's Op-
tions," in Indigenous Law and the State, ed. B. R. Morse and G. R. Woodman
(Dordrecht and Providence, R.I.: Foris Publications, 1988), 5—23.
9. See A. R. Radcliffe-Brown, "Patrilineal and Matrilineal Succession," in
Structure and Function in Primitive Society (New York: Free Press, 1952), 32-48;
A. R. Radcliffe-Brown, "On Social Structure," in ibid, at 188-204.
10. Thus, Radcliffe-Brown was able to describe, in 1930, the Australian hord
as a local patrilincal group, with collective rights over a territory and its products.
In other words, a political unit with rules of citizenship and of rights over per-
sons and things (A. R. Radcliffe-Brown, "The Social Organization of Australian
Tribes," Oceania, i [1930] .'34—63).
n. See F. Barth, "Introduction," in Ethnic Groups and Boundaries, ed. F. Barth
(Bergen/Oslo: Universitets Forlaget, 1969); A. Cohen, Custom and Politics in Urban
Africa (London: Routledge and Kegan Paul, 1969); Manuela Carneiro da Cunha,
"Ethnicidade: da cultura, residual mas irredutivel," \nAntropologia doBrasil: Mito,
Historia, Etniddade. (Sao Paulo: Brasiliense, 1986), 97—108; Manucla Carneiro da
Cunha, Negros, Estrangeiros: Os Escravos Eibertos e sua Volta a Africa (Sao Paulo:
Brasiliense, 1985), 231.
12. This being so, one can hardly think of the possibility of a culture being
untrue to itself, as Michael McDonald has suggested. (See Chapter 6 in this vol-
ume.) Since cultures respond to each other in a multiethnic situation, they have to
speak a common language.
13. See Literacy in Traditional Societies, ed. ]. Goody (Cambridge: Cambridge
University Press, 1968); J. Goody, The Domestication of the Savage Mind (Cam-
bridge: Cambridge University Press, 1977).
14. See M. Carneiro da Cunha, "Silences of the Law: Customary Law and
Positive Law on the Manumission of Slaves in Nineteenth-Century Brazil," The
Discourse of Law, History and Anthropology i, no. 2 (1985): 427-44.
15. See Gyorgy Lukacs, "Class Consciousness" and "Reification and the Con-
sciousness of the Proletariat," in History and Class Consciousness: Studies in Marxist
Dialectics (Cambridge, Mass.: MIT Press, 1973), 46—82 and 83—222, respectively.
16. Bruce Albert, "Mitos ianomami explican leis do cosmo," Folha. de Sao
Paulo, 5 de Maio (1990), letras F-5.
Introduction
A Demographic Outline
There are two indigenous populations of Australia, the Torres Strait Is-
landers (from the Torres Strait Islands, a part of Queensland) and the
larger group of indigenous peoples (from the rest of Australia) known as
the Aboriginal people. In the 1981 census, the first group was numbered at
15,232 and the second at 144,665—making an indigenous population of
159,897—or i.i percent of the total population of Australia.2 The Ab-
original proportion of the overall population in Australia's States and Ter-
ritories is distributed as follows: in New South Wales (NSW) and the
Australian Capital Territory (ACT), 0.68 percent; in Victoria, 0.16 per-
cent; in Queensland, 1.95 percent; in South Australia, 0.76 percent; in
Western Australia, 2.46 percent; in Tasmania, 0.64 percent; and in the
Northern Territory, 23.59 percent.3 Both the lifestyle and the geographic
distribution of the indigenous population vary considerably in different
parts of the country.4
From the outset of British settlement of Australia two hundred years
ago, the aim of the Imperial government was to populate the continent
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Cultural Legitimacy in Law and Policy in Australia 297
During 1987, 130,000 migrants arrived in Australia; and during 1988, the
figure was 143,200. In these two periods immigration accounted for more
than half of the country's increase in population. The rate of immigration
per head of population is two or three times higher than that for Canada
or the United States—the only two other developed nations still maintain-
ing a significant level of immigration.'' Australia has a higher percentage
of people born overseas in its population (21 percent) than does either
Canada (16 percent) or the United States (6.0 percent).12 As a consequence
of all these factors, cultural legitimacy in the formulation of the country's
law and policies assumes a particular significance.
In the same case Blackburn J. described the legal system of the Aboriginal
people whose land was the subject of the matter before him in the follow-
ing terms:
A subtle and elaborate system highly adapted to the country in which the
people led their lives, which provided a stable order of society, and was re-
markably free from the vagaries of personal whim or influence. If ever a sys-
tem could be called "a government of laws, and not of men" it is that shown
in the evidence [here]. . . .-"
make laws for the "peace, order and good government" of the state—
whereas the grant to the Commonwealth parliament is comprised in spe-
cific enumerated heads of power. To be valid, Commonwealth legislation
must fall within one, or within a combination, of these heads of power.
Where the constitution gives legislative power to the Commonwealth par-
liament, generally speaking, the state parliaments remain competent to
pass legislation in the same field34 and any state legislation which is en-
acted will be valid, notwithstanding the existence of a federal head of leg-
islative power on that topic, unless or until conflicting Commonwealth
legislation is enacted. Where legislative conflict occurs, section 109 of the
Constitution provides that the Commonwealth legislation is to prevail.
The main basis of the power of the Commonwealth parliament to
legislate in relation to Aboriginal matters is found now in section 51(26) of
the federal Constitution. In its original form, section 51(26) prohibited the
Commonwealth parliament from enacting special laws for the Aboriginal
people in any state. In a referendum held in 1967, a vast majority of the
population approved a constitutional amendment that empowered the
Commonwealth parliament to enact special legislation for Aboriginal
people in the states.35 In addition, the Commonwealth parliament is able
to pass legislation concerning Aboriginal issues whenever the subject
matter falls within one of the other federal legislative heads of power
contained in the Constitution (for example, the power to legislate for Ab-
origines in relation to social security matters).
known, the earliest estimates (of approximately 300,000) were made some
time after initial settlement and may have reflected the numbers only after
the population had been decimated by introduced diseases.
During the first hundred years after initial British settlement, the im-
pact of the settlers on Aboriginal culture, traditions, and way of life, and
on the people themselves, was disastrous. Introduced diseases took a tre-
mendous toll; there were, for example, epidemics of smallpox in 1789 and
1829, and of influenza in 1820 and 1838. Aboriginal communities were dis-
placed from the more fertile lands and lost access to their traditional food
sources. Many were killed in conflicts with the settlers.38
It has been estimated that between 1824 and 1908 at least 10,000 Ab-
origines died violently in Queensland.39 Throughout the first half of the
nineteenth century, with the increase in settlement and continuing clashes
between the settlers and the indigenous people, reprisals and punitive ex-
peditions were common. Martial law was sometimes declared (for ex-
ample, in Tasmania from 1828 to 1832 and in New South Wales in 1824),
and a number of massacres took place. It is estimated that the indigenous
population was reduced to one-fifth—perhaps even less—of its original
numbers. Indeed, in the state of Tasmania, at one stage the Aboriginal
population was thought to have been exterminated entirely.40 Those who
survived physically frequently saw their way of life changed completely.
By the early 19308, the number of Aboriginal people in Australia had de-
creased to approximately 70.000. At that time il: was generally expected
that these people would either become absorbed within the majority
population or die out completely.
Aboriginal people are thought to have occupied Australia for 40,000
to 50,000 years.41 Sites of Aboriginal habitation dated more than 40,000
years ago have been found in both Western and Eastern Australia.42 Al-
though the indigenous people had their own laws, languages, customs,
traditions, and social structures, none of these received any recognition
under early British rule.
The decision as to whose law—that of the settlers (or conquerors) or
the original inhabitants—would form the basis of the legal system of any
British possession after its acquisition was determined according to
whether the colony was categorized as "settled" or "conquered or
ceded."43 Colonies were said to be "settled" if, prior to the arrival of the
British, they were "desert and uninhabited" or had no settled inhabitants
with a recognizable system of laws of their own. If this were the case the
British settlers upon arrival notionally brought with them, along with
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304 Patricia Hyndman
their other possessions, all the English law, common and statutory, in ex-
istence at the time, leaving behind them only that law that would be in-
applicable to the circumstances of"the colony.44 Such English law was then
immediately in force, and was said to apply by reception. It, not the law
of the earlier inhabitants, formed the basis of the colony's legal system.
Colonies were said to be "conquered or ceded," on the other hand,
when acquired from people "that have already laws of their own."45 In this
case, the established legal system did continue in existence and it, rather
than English law, formed the basis of the new possession's laws, although
of course the local legal system might be subjected to considerable amend-
ment by the Imperial parliament as time went on.46
Once a colony had been attributed to one of the two categories, the
classification became settled as a matter of law, even though subsequent
research may show that, on the historical facts, the colony should have
been attributed to the other class (because, for example, it could be shown
that at the date of acquisition of the territory there had been a legal system
in existence, whereas this proposition had earlier been denied). It has been
said that this discovery will not serve to reopen the question of the colony's
correct classification.47 It was decided early on that the Australian colonies
were settled;48 hence the basis of their legal system became English and
not Aboriginal law.
The question of the correctness of this categorization of the Austra-
lian colonies as settled territories has been raised recently, however. In Coe
v. The Commonwealth^' (a case of a claim on behalf of an Aboriginal com-
munity alleging, among other things, wrongful proclamation of sover-
eignty by Captains Cook and Phillip over the eastern part of Australia) it
was argued that Australia had been acquired by conquest, not by settle-
ment. Mason J. at first instance dismissed this claim, holding that the ac-
cepted legal foundation was that Australia was settled,50 and this judgment
was upheld on appeal to the Full Court of the High Court.51 Of the four
judges who heard the appeal, however, two disagreed. Jacobs J. said that
although the view has generally been taken that the Australian colonies
were settled there is no actual decision of the High Court or the Privy
Council to that effect.52 Murphy J. observed that there is a wealth of his-
torical material to support the claim that the Aboriginal people had
occupied Australia for many thousands of years, and that they did not give
up their lands peacefully but were killed or removed forcibly in what
amounted to attempted genocide.53 He went on to state that the question
whether Australia was settled was still open to argument. The views of the
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Cultural Legitimacy in Law and Policy in Australia 305
two judges, Jacobs and Murphy, suggest that the question is more open
than had been thought previously, but the case was nevertheless decided
on the basis that Australia was settled. As the High Court was evenly
divided, the view of the trial judge prevailed.54
Consequent upon this approach, Aboriginal institutions, traditions,
and customs were ignored and no place was made for them in the legal
system of the dominant majority. Nonrecognition applied both in the civil
and in the criminal law sphere and resulted, among other things, in the
denial of land rights,55 the failure to accord legitimacy to traditional mar-
riages,56 and the failure to acknowledge customary Aboriginal laws and
defenses to English law crimes.57
In contrast to the position in Canada, the United States, and New
Zealand, in Australia no treaties were concluded with any of the Aborigi-
nal groups. The Aboriginal people were not regarded by British law as
sovereign peoples, as nations, or as identifiable communities. Instead,
Aborigines were regarded as individual British subjects governed by Brit-
ish law. Although it was recognized in some quarters that this was unjust
(for example, in a House of Commons Parliamentary Paper of 1837),58 and
also unrealistic (since the Aboriginal people continued to act in accordance
with their own laws and customs and had no knowledge or understanding
of the imposed legal system), this remained the prevailing policy;59 and it
totally failed to provide equality before the law. Such equality can occur
only where all people share a similar knowledge and comprehension of the
law and have equal access to its protection. This was certainly not the
position of the Aboriginal people. Further, since Aborigines were not
Christians, they were unable to testify when they were involved in pro-
ceedings before the courts. Although in 1843 the Imperial parliament
passed "An Act to authorize the legislatures of certain of Her Majesty's
Colonies to pass laws for the admission in certain cases, of unsworn Tes-
timony in Civil and Criminal Proceedings"6" (allowing for unsworn evi-
dence to be given by members of "Tribes of barbarous and uncivilized
peoples, destitute of the knowledge of God and religious belief"), the
Australian colonies were slow to utilize their new power and to enact ap-
propriate amendments to their legislation.61 At the time of federation in
1901, no agreement to the new Constitution was sought from the indige-
nous populations. Further, sections 24 and 127 provided that Aborigines
could not be counted in reckoning the size of electorates for the House of
Representatives. It was assumed they would not vote, and most were in-
eligible to do so anyway.
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3o6 Patricia Hyndman
The policy of assimilation means that all Aborigines and part-Aborigines arc
expected to attain the same manner of living as other Australians and to live
as members of a single Australian community, enjoying the same rights and
privileges, accepting the same customs and influenced by the same beliefs as
other Australians. 66
Programs of education, health, and housing were developed with the pur-
pose of ensuring that Aboriginal Australians achieved a standard (and
hopefully a mode) of living identical to that of their white Australian
counterparts. 67
In the 19608 and 19705 this aim. of assimilation was replaced in turn.
It came to be regarded as paternalistic and arrogant, and in its stead a
new aim was developed, that of integration—a term used by the critics
of the assimilation policy to denote a policy that recognized the value of
the preservation of Aboriginal culture and identity.68 Provision began to
be made for the granting of land rights to the indigenous population,
measures were adopted to increase funding for Aboriginal community
projects, and emphasis was placed on improved programs whose aim
was to ensure that formal equality was in reality accompanied by definite
social and economic advances. The right to vote was conferred on all
indigenous people. This period—the extension of rights—is considered
in the next section. More recently, Commonwealth government policy
has been founded on "the fundamental right of Aboriginals to retain
their racial identity and traditional lifestyle or, where desired, to adopt
wholly or partially a European lifestyle."69 Under this policy Aboriginal
participation in local or community government has been encouraged.
Government-supported programs, managed by Aboriginal organizations,
have been introduced. The policy is described as one of self-government
or self-management. It will be discussed as "the Third Phase" in a later
subsection.
Land Rights Act 1981 and the Maralinga. Tjarutja Land Rights Act 1984 fol-
lowed a similar pattern to that of the Northern Territory legislation. The
acts transferred inalienable freehold title (to 102,630 and 50,000 square
kilometers, respectively) to corporate bodies. These bodies also repre-
sented the traditional owners in negotiations concerning matters such as
resource development agreements. To a lesser extent, legislative provision
has been made for land rights in New South Wales, Victoria, and Queens-
land. Western Australia and Tasmania still have no legislation recognizing
land rights. In the case of Western Australia, this is a particularly serious
omission in view of the large number of Aboriginal groups with potential
claims on the basis of traditional affiliation with the land.75 All state parlia-
ments, as well as the federal parliament, have enacted legislation dealing
with sacred sites;76 and in the legislation of several states exemptions have
been made from conservation, fishing, and wildlife laws in order that Ab-
original people might continue to pursue their traditional hunting and
fishing rights.77
In relation to other issues, in some matters recognition has been
granted to Aboriginal laws, customs, and traditions without any support
from legislative provisions. As noted above, law-enforcement agencies,
judges, and magistrates, over a long period, have quite often taken this
approach in matters of sentencing78 whether or not supported by legisla-
tion; and courts have been willing to consider customary laws when de-
termining the intent of the accused in criminal cases and when considering
the availability of specific defenses.79 In several instances courts have held
that loss of traditional status, which may result from brain damage or
other incapacity, can be taken into account in the assessment of damages
in road accident cases.80 Judicial recognition has been granted in a North-
ern Territory case in which a traditional Aboriginal marriage was recog-
nized in relation to an adoption.81
In a number of other areas federal, state, and territory legislation now
gives recognition to aspects of Aboriginal customary laws and tradi-
tions—for instance: in recent initiatives recognizing Aboriginal child-care
practices (for example, the Community Welfare Act 1983 [ Northern Terri-
tory], section 69); in allowing a distribution of property on death which
is more in accordance with Aboriginal family and kin relationships (for
example, Aboriginal Affairs Planning Authority Act 1972 [Western Australia],
section 35), and in establishing local courts or other implementation me-
chanisms staffed by Aboriginal personnel. The purpose of this last measure
is to set up bodies with an awareness of local circumstances and hence
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3io Patricia Hyndman
gitimatcly covers provisions for the recognition of matters such as the cul-
ture and identity of minority communities.90
In 1988 the High Court handed down its decision in Mabo v. State of
Queensland91 and there built on the position reached in Gerhardy v. Brown.
In Mabo the legislation was a special measure of a detrimental, not of a
benevolent, kind. Briefly, the facts of the case were that the plaintiffs, de-
scendants of the indigenous inhabitants of an island in the Torres Strait
and residents of that island, sought, among other things, a declaration as
to their rights concerning the land, its seas, seabeds, and reefs. After com-
mencement of the proceedings, but before the action was heard, the
Queensland Parliament enacted legislation92 with the purpose of extin-
guishing, retrospectively, any traditional right to the island and its sur-
rounds which the claimants may have possessed. (For the purposes of the
judgment it was assumed that the Islanders did possess traditional rights
and claims to the land that were recognized by the common law.) The
court held that legislation that singled out Torres Strait Islander people
specifically in order to abrogate land rights claimed by them was discrimi-
natory, inconsistent with section 10 of the Racial Discrimination Act 1975,
and invalid.1"
Mabo has significant potential for Aboriginal rights in the future. It
may have the effect that henceforth retrogressive legislation affecting Ab-
origines or Islanders can be validly enacted only by the Commonwealth
parliament and not by the states.94
To summarize: in Australia today the recognition of Aboriginal laws
and customs is in no way either systematic and consistent, or comprehen-
sive. Any recognition that does exist is piecemeal and spasmodic, remain-
ing largely an ad hoc exercise of discretion which is particular rather than
general. Although this approach has some advantages and can achieve
flexibility and the potential for ready adaptability to differing circum-
stances, it also carries with it accompanying disadvantages: too much dis-
cretion in the hands of officials and judicial officers can produce a
confusing inconsistency; also, not infrequently, it leads both to disap-
pointments and to impermissible distortions of legal principle.
When provisions to benefit Aboriginal groups are challenged and jus-
tification is provided, that justification tends to be in terms that indicate
that the special provisions are intended to be of merely temporary dura-
tion, to be phased out when no longer necessary. Such an approach
suggests no acknowledgment of the necessity for a real settlement of griev-
ances. Australian government Aboriginal policy has been based on a prem-
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312 Patricia Hyndman
If we arc in fact Aboriginal Australians, then our whole aim is to get the best
deal we can for our people within the Australian society. If we are in fact
Australian Aborigines^ what we are really aiming for is to get the best deal
possible from the world which includes the nation of Australia to which we
are not subordinate.105
mcnts, for instance in the Preamble to The Aboriginal and Torres Strait
Islander Rill (the lynchpin of current federal government policy on Aborig-
inal issues). Despite these references the bill goes on to establish precisely
the kind of institutional arrangement that has proved inadequate in the past
and that, in light of the words quoted above, is manifestly inappropriate
today. The elected body established—the Aboriginal and Torres Strait Is-
lander Commission (ATSIC)—if it retains its presently projected form, will
be chaired by a nominee of the minister and thus be subject to his or her gen-
eral direction.1()7 Again, autonomy and the possibility for self-management
arc denied. The Minister for Aboriginal Affairs, on the introduction of
the bill into Parliament in December 1987, said that the government must
be satisfied that the proposals have been endorsed by the people they will
directly affect. 108 As a consequence, there was consultation:
The Committee asked virtually every witness who appeared before it in the
latter part of 1988 whether they wished the Bill to proeeed given their current
level of knowledge. With very few exceptions their answer was "no." Support
for the immediate passage of the Bill tended to come from well funded or-
ganizations which had supported A.T.S.I.C. from the outset, for example the
Northern and Central Land Councils.109
not be the final preferred solution. What is vital is that the government
make adequate provision to ensure that Aboriginal and non-Aboriginal
consultations are held that canvass a broad spectrum of opinions, and par-
ticularly that the solutions desired by the indigenous populations be clari-
fied. In ManselFs words: "|w)c . . . have to determine for ourselves in
which direction we move. Then it makes it easier for non-Aboriginal
people to be able to respond appropriately from their side."120
If a total impasse is to be avoided, attempts at solutions need to be
addressed thoroughly, negotiations and consultations need to be designed
carefully, and adequate financial support for this process needs to be pro-
vided. It is imperative that the discussion be conducted with a flexibility
and open-mindedness that will permit the development of some com-
pletely innovative approach, if, after thorough consideration and consul-
tation, this is what appears to be appropriate.
impacted on their way of life, their culture, and their traditions in a dev-
astating manner.122
nity Act. In 1984 the Victorian legislation was amended to deal with dis-
crimination on the grounds of race as well as other grounds. In 1985
Western Australia enacted an Equal Opportunities Act. Under arrangements
made between the Commonwealth and some states, the antidiscrimination
agencies of those states have been given power to administer the federal
legislation. Unfortunately, federal and state antidiscrimination legislation
has proved a fertile field for important constitutional cases, a factor that,
in many cases, has impeded the effectiveness of the protection that the
legislation should have provided.136
Equal opportunity legislation is "complaint-oriented"; that is, gener-
ally, in order for an act of discrimination to come to the attention of the
relevant antidiscriminatory body, a specific complaint must be made. Usu-
ally the complaint will be made either by, or on behalf of, the victim of the
alleged discrimination. The experience of the antidiscrimination bodies
suggests that people from non-English-speaking backgrounds who are
likely to be suffering the most from discriminatory practices and policies
are not coming forward to lodge complaints. Female migrant blue-collar
workers, for example, are substantially undcrrepresented in complaints.137
Nonetheless, since the coming into force of these provisions, and conse-
quent upon the activities of the bodies set up to administer them (for
example, in New South Wales the Anti-Discrimination Board and the
Equal Opportunity Tribunal), there is evidence that the Australian com-
munity has become more sensitive to issues of discrimination as issues of
general law, particularly in relation to racial discrimination and discrimi-
nation against women.138
Other, general, legislative steps have been taken with the aim of
providing better protection for the rights and interests of all residents
of Australia: since the mid-1970s there has been considerable statutory
reform in the field of Australian administrative law. The changes have
been designed to ensure the right of the individual to obtain fairness at
the hands of administrative authorities, government departments, and
public bodies. The changes include the establishment, at both state and
federal level, of an Office of Ombudsman.139 The ombudsman is given
power to investigate, report, and make recommendations concerning mal-
administration by government departments, but has no coercive powers
to ensure that these recommendations will be implemented. At the federal
level (and in the state of Victoria) the Administrative Appeals Tribunal
has been set up to bring consistency and efficiency to the matter of appeals
concerning administrative decisions affecting citizens and residents. This
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Cultural Legitimacy in Law and Policy in Australia 321
It is a fundamental tenet of the Australian legal system that all people should
be equal before the law. . . . At the heart of much of our law are concepts
about "reasonable" and "normal" behaviour. They require judgments which of
their nature cannot be absolute and fixed, but relate to an ever-changing so-
cial context. The application of these concepts in multi-cultural Australia is a
particularly complex and difficult matter, demanding considerable social
awareness and sensitivity on the part of the legal system.153
The requisite social awareness on the part of those administering the sys-
tem remains, for the most part, something still to be developed.
Nonetheless, awareness is growing and, concomitantly, attitudes are
changing. As a consequence, some appropriate legislative and administra-
tive changes have been made. In some situations provisions arc now avail-
able to deal with language difficulties: for instance, language instruction
for migrants and interpreter services are available in a variety of situations;
in some circumstances notices are now exhibited in different languages
and provision is made for translations of documents. Educational pro-
grams are broadcast on radio and television, and some programs in either
medium are designed specifically for ethnic communities. Community
education programs have also been designed to assist migrants in compre-
hending the legal system: for example, in Victoria the Ethnic Affairs Com-
mission, the Equal Opportunity Commission, the Victoria Law Institute,
and community legal services now incorporate community education into
their programs, while the Police Department has appointed ethnic liaison
officers with the task, among others, of educating the community about
the role of the police force.154
The provision of equality of opportunity and fair dealing for all is
necessarily a complex task. The disadvantages and inequalities which some
of Australia's migrant groups have suffered have existed over a long period,
and attitudes change slowly—even when appropriate legislative and ad-
ministrative amendments are made. The disadvantages cannot be removed
overnight. Over the last decade the process has begun. There is, however,
still a long way to go.
A Regional Perspective:
The Draft Pacific Charter of Human Rights
encourage the idea both of a Charter of Human Rights for the Pacific
region and the establishment of regional mechanisms there for the pro-
motion and protection of these rights. In April 1985, LAWASIA convened
a meeting in Fiji at which these ideas were given consideration. All sixty-
three delegates were keenly interested in human rights; they included
lawyers, nongovernmental representatives, social workers, church and
community leaders, academics, representatives of minority ethnic groups
(including indigenous ones), and government representatives. Another re-
gional human rights body, the European Human Rights Commission,
also furnished representation and input. 155
Having received a mandate from this initial meeting to pursue the
idea, LAWASIA established and organized meetings of first, a Drafting
Committee and, later, a Working Party comprised of representatives from
the region. These bodies collaborated to draw up a Draft Charter of Hu-
man Rights for the Pacific region. Then in May 1989, in Apia, Western
Samoa, LAWASIA convened a further meeting, this time primarily of rep-
resentatives of governments of different island entities, to consider this
Draft.
One matter that has emerged clearly from the discussions held so
far is that, in order for a charter to be acceptable in this part of the
word, it is essential that the customs and traditions of the peoples of the
Pacific islands be accorded significance in the charter's terms, both in its
interpretation and in its implementation. During his keynote address to
the most recent Apia meeting, the minister of justice of Western Samoa
observed:
. . . in many Pacific cultures our human rights still rest on collective as-
sets—our title, our dignities, our land, and our security—and every one of
them must still be matched by obligations. If we are led to think of individual
rights and freedoms as due vis by some wealthy government, we may unthink-
ingly tear our culture apart. How will we feel when it lets us down? Very
lonely and deprived, at the bottom of someone else's world. . . . 156
may take into account include the "traditional standards, values and
practices . . . of Tuvalu" (section 15(4)).
At the Apia meeting the delegates agreed that the Preamble to the
Draft Charter should state, among other things:
. . . the need to promote and to protect those rights and characteristics which
stem from Pacific peoples' history, philosophy of life, traditions and social
structures, especially those tied to those territories of the earth which these
peoples have traditionally occupied . . .
Acknowledging the need for minimum acceptable standards taking into ac-
count the diverse relations of peoples in all parts of the Pacific . . .
Concerned that persons, having duties to their families and communities, and
to other persons, are under an obligation to observe the rights and duties in
the present Charter, have agreed . . .
Later articles in the charter give effect to these ideas. For instance, Article
29(3) includes the words "to preserve and strengthen positive Pacific cul-
tural values," and Article 6iA states:
The Parties recognize the customs and traditions of the diverse communities
of this region. The rights freedoms and duties recognized in this Charter shall
be interpreted and understood by the Parties and the Commission in the light
of these customs and traditions. 157
Hence, here is an instance where there has been, from the outset, a clear
determination to ensure cultural legitimacy in the formulation of a pro-
posed human rights instrument.
Conclusion
An essay such as this inevitably leaves out much that could be said on each
of the issues considered. Moreover, each of these areas tends to intersect
with, and even to impede progress in, other areas. Nonetheless, some
progress, however hesitant, halting, and inadequate, has been achieved
over the last few years. Australia has ratified several relevant international
instruments; I58 and important consequent legislative changes have been
made—for example, the enactment of the Racial Discrimination Act and of
Notes
This is even more true of the international human rights instruments drawn up
and adopted since that date.
2. Some consider these figures to have been underestimated by as much as
16,500. See, for example, A. Gray and L. Smith, "The Size of the Aboriginal Popu-
lation," Australian Aboriginal Studies i (1983): 2; D. Jordan, "Census Categories,"
Australian Aboriginal Studies i (1985): 28.
3. 1981 Census.
4. G. Nettheim, "Australian Aborigines and the Law," Law and Anthropology
2 (1987): 372.
5. See, for example, Empire Settlement Act, 1922 (Imp.).
6. See M. J. Salter, Studies in the Immigration of the Highly Skilled (Canberra:
Australian National University Press, 1978), 15—61, for a useful historical outline of
assigned passage policies throughout Australian history.
7. For a comprehensive discussion of the White Australia Policy, see M. Wil-
lard, History of the White Australia Policy to 1920, 2nd ed. (Melbourne: Melbourne
University Press, 1967). The assumption underlying the White Australia policy was
articulated by one Member of Parliament as follows: "We are here upon a conti-
nent set apart by the Creator exclusively for a Southern Empire—for a Southern
nation—and it is our duty to preserve this island continent for all eternity to the
white race . . . " (K. O'Malley, Commonwealth of Australia, Senate and House of
Reps. [1901], Parl. Debates, Session 1901-02, vol. 4 at 4639 [6 September 1901]).
Although this rationale totally ignored the fact that the original inhabitants
of Australia are nonwhite Aboriginal people, it was nevertheless a widely ac-
cepted view.
8. See the debates at the time on the proposed Immigration Restriction Bill,
Senate and House of Representatives, Parl. Debates, Session 1901-02, vol. 4 at
4265-4666 (6 September 1901) (2nd Reading), Session 1901-02, vol. 5 at 5801-5828
(9 October 1901) (3rd Reading).
9. For example, in 1952 it was decided to admit Japanese wives of Australian
servicemen under permits initially valid for five years.
10. C. Young, "Australia's Population: A Long-Term View," Current Affairs
Bulletin (Sydney), 65 (1989): 4.
u. Ibid.
12. Ibid.
13. Of course, the legal protection of rights, whether by ordinary legislation
or under a constitution is, in itself, not necessarily a guarantee that those rights
will be implemented. Within Australia's immediate geographical region, funda-
mental rights are incorporated in the constitutional documents of many states.
(This situation holds in all independent island states of the Pacific except Australia
and New Zealand and in many Asian states. New Zealand, however, now has a
legislative bill of rights.) In Asia, two particular ways of detracting from the effec-
tiveness of constitutional human rights guarantees have been very evident in recent
years: first, the excessive use (and abuse) of the concept of states of emergency and
of the arrogation of powers to the executive body and/or military forces there-
under; and second, a not infrequent tendency to interfere with the independence
of the judiciary. The reality is that guarantees of fundamental rights, however im-
pressive their appearance, will be only as effective as those wielding real power
allow them to be.
14. For example, the basic rule in the Bill of Rights 1688 that the Crown may
not dispense with laws or the execution of laws without parliamentary authority.
15. I. Harden and N. Lewis, The Noble Lie: The British Constitution and the
Rule of Law (London: Hutchinson, 1986). It is certainly a myth, in the sense of a
value that both is axiomatic and that may bear no particular relationship to reality;
but then law often depends on myths, especially in its ultimate foundations.
16. In a relatively large number of cases, the European Court has found the
United Kingdom to be in breach of its obligations under the European Conven-
tion. Some of these decisions, particularly the Northern Inland Case Ser. A vol. 24
(1977), and the Sunday Times Case i E.H.R.R. (1979), have had a particular impact,
resulting in some instances in both legislative amendment and in the enactment of
some legal provisions that protect rights.
17. See generally Constitutional Commission, Committee on Individual and
Democratic Rights, Report (Canberra: Australian Government Publishing Service,
1987).
18. See, for example, the summary of interpretation of s. 92 in PH Lane, A
Manual of Australian Constitutional Law, 4th ed. (Sydney: Law Book Co., 1987),
375-409; Clark King & Co. Pty. Ltd. v. Australian Wheat Board (1978) 140 C.L.R.
120; Uebergang v. Australian Wheat Board (1980) 145 C.L.R. 266; Cole v. Whit-
field (1988) 78 O.L.R. 42; Bath v. Alstin Holdings Pty. Ltd. (1988) 78 A.L.R. 669;
Henry v. Boehm (1973) 128 C.L.R. 482.
19. Ss. 7 and 24.
20. Australian Constitution s. 51 (zjA); s. 51 (31); s. 80; s. 116; s. 74; s. 103.
21. Most recently, the Australian Bill of Rights Bill, 1985 (Cth), which was
withdrawn after passing through the House of Representatives.
22. There is legislation at federal and state levels protecting some specific
individual rights, especially in the area of antidiscrimination. This is outlined in
section 5. See further I. Moss and M. Newton, "The Anti-Discrimination Board of
NSW: Eight Years of Achievement," Australian Law Journal 60 (1986): 162; ]. Ma-
thews, "Protection of Minorities and Equal Opportunities," University of New
South Wales Law Journal n (1988): i. At the federal level see, for example, Racial
Discrimination Act 1975, Sex Discrimination Act 1984; Committee on Individual
and Democratic Rights, Report (1987), 4—6. There is also a nonbinding human
rights complaints procedure under the Human Rights and Equal Opportunity
Commission Act 1986 (Cth). Partly for constitutional reasons and partly because
of the absence of a domestic bill of rights, all three acts are based on the relevant
international human rights treaties.
23. See, for example, G. Ncttheim, "The Relevance of International Law," in
Aborigines and the Law, cd. P. Hanks and B. Keon-Cohcn (Sydney: George Allen
and Unwin, 1984), 50.
24. for example, in discussions in the United Nations Human Rights Com-
mission and in the United Nations Working Group on Indigenous Peoples.
25. Parts of this subsection are taken from a paper presented by the author
Commission, Report 31, The Recognition of Aboriginal Customary Laws, vol. i (Can-
berra, 1986), para. 109 (hereafter A.L.R.C. 31).
37. See further on this point N. G. Butlin, Our Original Aggression: Aboriginal
Populations of South-Eastern Australia 1788-1850 (Sydney: Allen and Unwin, 1983).
Today it is not infrequently argued that special measures must now be taken to
redress these wrongs. See, for example, D. Partlett, "Benign Racial Discrimination:
Equality and Aborigines," F.L.R. 10 (1979): 254—56.
38. R.H.W. Reece, Aborigines and Colonists: Aborigines and Colonial Society in
New South Wales in the iSjos and 19405 (Sydney: Sydney University Press, 1974), 3.
39. R. Evans, K. Sanders, and K. Cronin, Exclusion, Exploitation, and Ex-
termination: Race Relations in Colonial Queensland (Sydney: A.N.Z. Book Co.,
1973), 128.
40. In recent years Aborigines in Tasmania have come forward and identified
themselves. The 1986 Census figures record 6,500 Aborigines in Tasmania.
41. D. J. Mulvaney, The Prehistory of Australia, rev. ed. (Ringwood: Penguin,
1975), 52-
42. For example, on the Upper Swan River in Western Australia and in the
Willandra lakes region in New South Wales. For further information see D. J.
Mulvaney, The Prehistory of Australia, supra note 41.
43. International law also drew a distinction between land acquired by settle-
ment and land taken by conquest or settlement, but its purpose was different. For
English law, the purpose was to decide which system of law (that of the earlier
inhabitants or English law) would prevail in the territory. In international law, the
purpose of the distinction was either to allocate state responsibility for territory
where there were claims for damage done to foreigners (see further }. Crawford,
The Creation of States in International Law [Oxford: Clarendon Press, 1979],
182—83) °r to resolve disputed claims between states for the control of territory.
Because of this difference in focus, territory classified as settled for the purposes of
English law could be classified as acquired by conquest or cession for the purposes
of international law. This happened, for example, in the case of New Zealand. See
further, A.L.R.C., supra note 36, at chap. 5.
44. W. Blackstone, Commentaries on the Laws of England, Tucker, ed. (Phila-
delphia: Par, Birch and Small, 1803), 108; W. Forsythe, Cases and Opinions on Con-
stitutional Law (London: Stevens and Haynes, 1869), i.
45. W. Blackstone, Commentaries on the Laws of England, vol. i (Oxford: Clar-
endon Press, 1966), 105.
46. Ibid.
47. Milirrpum and others v. Nabalco Pty. Ltd. (1971) 17 F.L.R. 141, 242.
48. As far as New South Wales is concerned, the Privy Council stated
in Cooper v. Stuart (1889) 14 App. Cas. 286 that acquisition had been by set-
tlement. Opinions to the contrary had been expressed earlier, but in any case,
the Australia Courts Act 1828 provides that all the laws of England in force on
July 25, 1828, apply in New South Wales and Van Dieman's Land (Tasmania), as
long as they were applicable to the circumstances of those colonies at that date.
New South Wales at that stage included Queensland and Victoria. The other
two colonies were also considered to be settled. Statutes fix the date of reception
of English laws for South Australia and for Western Australia at December 28, 1836
(s. 48 Acts Interpretation Act 1915 [S.A.] for the former), and at June i, 1829 (S. 43
Interpretation Act 1918 fWA. for the latter). See further, P. Hyndman, Constitu-
tional Law and Government (Canberra: Canberra Series of Administrative Studies,
1987), 9-13.
49. (1979) 53 A.L.J.R. 403.
50. (1978) 52 A.L.J.R. 334.
51. By Gibbs and Aickin JJ. (1979) 53 A.L.J.R. 408, 412. Both held that the
Australian colonies were settled.
52. Ibid, at 411.
53. Ibid, at 412.
54. Judiciary Act 1903 (Cth) s. 23. In South Australia an early attempt had
been made to adopt a different policy, but it had failed in the face of Colonial
Office treatment of the colony as previously uninhabited. See further H. Reynolds,
The Law of the Land (Ringwood: Penguin, 1987), chaps. 5-6.
55. Milirrpum v. Nabalco Pty. Ltd. ([971) 17 F.L.R. 141.
56. For example, R. v. Cobby (1883) 4 L.R. (N.S.W.) 355, 356.
57. See B. Bridges, The Extension of English Law to the Aborigines for Offences
Committed Inter Se, 1829-1842, J.R.A.H.S., vol. 59 (1973), 264.
58. Paper No. 425, 1837, 84.
59. See, for example, the report by Captain George Grey, "The Method for
Promoting the Civilization of Aborigines, Enclosure, Lord John Russell to Sir
George Gripps, 8 October 1840," Historical Records of Australia, vol. 21 (Series i), 35.
60. 6 and 7 Viet. No. xxii.
61. Changes were enacted in 1848 in South Australia, in 1854 in Victoria, in
1876 in New South Wales, and in 1884 in Queensland. (In Western Australia, a
similar law had been in force since 1841.)
62. A.L.R.C., supra, note 36, at paras. 52,56.
63. Ibid, at paras. 52, 53, 55. Today most of these provisions no longer exist.
Recognition tends to depend on the exercise of discretion and continues to be
ad hoc and spasmodic. See }. Crawford, Legal Pluralism and the Indigenous People
of Australia (1989), 5 (mimeo).
64. Similar legislation was enacted in Western Australia in 1886, Queensland
in 1897, New South Wales in 1909, South Australia and the Northern Territory in
1910—ir.
65. M. Christie, Aborigines in Colonial Victoria 1835-1886 (Sydney: Sydney
University Press, 1979), 164—65, 172, see A.L.R.C., supra note 36, at para. 25.
66. Cited in H. Reynolds, Aborigines and Settlers: The Australian Experience
1788-1939 (Sydney: Cassell Australia, 1972), 175.
67. See further A.L.R.C., supra note 36, at para. 26.
68. See A.L.R.C., ibid, at para. 26.
69. Hon. R. I. Viner M.H.R , Minister for Aboriginal Affairs, Common-
wealth of Australia 112 Parl. Debates (H of R) (24 November 1978) 3442.
70. See generally Aboriginal Tenure and Land Population (Canberra: Depart-
ment of Aboriginal Affairs, 1986).
71. Australian courts have not recognized continuity of Aboriginal title. In
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332 Patricia Hyndman
Gerhardy v. Brown (1985) 57 A.L.R. 472 at 552, Dcane J. said: "If that view of the
law be correet, and I do not suggest that it is not, the common law of this land
has still not reached the stage of retreat from injustice which the law of Illinois and
Virginia had reached in 1823 when Marshall C.J. in Johnson v. Mclntosh (1823) 8
Wheaton 543 at 574 . . . accepted that, subject to the assertion of ultimate dominion
(including the power to convey title by grant) by the State, the 'original inhabi-
tants' should be recognized as having 'a legal as well as just claim' to retain the
occupancy of their traditional lands."
72. "As at January 1986, 458,100 sq. kms constituting 34.02% of the Northern
Territory were held by Aboriginal people in freehold title. Much of this land is
poor quality in non-Aboriginal terms, which is why it has remained unalienatcd.
It should also be noted that Aboriginal people represent some 64% of the Terri-
tory's non-urban population" (G. Nettheim, supra note 4, at 378).
73. F. Brennan and J. Crawford, "Aboriginality, Recognition and Australian
Law: Where to go from Here?" Paper presented at Twenty-Sixth Australian Legal
Convention, Sydney (August 1989), 12, 13 (mimeo).
74. By February 1986, it was 27,056 hectares. G. Nettheim, supra note 4.
75. See the Aboriginal Land Bill (1985) (W.A.) and (1985) 12 A.L.B. 6.
76. For example, Aboriginal and Torres Strait Islanders Heritage Act (1985)
(Cth). See further A.L.R. C., supra note 36, at para 78.
77. See, for example, Fisheries Act 1905 (W.A.) s. 56(3), Aboriginal Land Rights
Act 1983 (N.S.W.) s. 4(1). See further A.L.R. C., ibid, at para. 79, 9060—69.
78. For example, R. v. Sydney Williams (1976) 14 S.A.S.R. i; R. v. Moses
Mamarika (1982) 42 A.L.R. 94. See also E. Eggleston, Fear, Favour or Affection
(Canberra: Australia National University Press, 1976), 287-88.
79. See on provocation R. v. Muddarubba [1956] N.T.J. 317.
80. For example, Napaluma v. Baker (1982) 29 S.A.S.R. 192.
81. R. v. Pilimapitjimiri, ex parte Gananggu (1965) N.T.J. 776, 785 (Bridge J.).
See A.L.R.C., supra note 36, at para. 276. Some recognition has been granted by
legislation:/or example, statutes of the Commonwealth, of South Australia, and of
the Northern Territory recognize traditional marriages for some limited purposes.
See further A.L.R. C., ibid, at para. 80, 237-40.
Aboriginal traditional marriages arc given little recognition in Australian law.
This can lead to both social and legal problems. Accurate statistics are not available,
but it has been estimated that at least 90 percent of the marriages of Aborigines
who live a traditional lifestyle are not contracted in accordance with the require-
ments of the Marriage Act 1061 (Cth). H. Dagmar, Aborigines and Poverty: A Study
of Inter-ethnic Relations and Culture Conflict in a WA. Town (Nijmegen: Katholicke
Univcrsiteit, 1978), 101, cited in A.L.R.C., ibid, at para. 233.
82. For elaboration see A.L.R.C., ibid, at chap. 6.
83. 1983 (N.S.W.).
84. See N.S.W. Land Council v. Minister Administering the Land Rights
Act, N.S.W. Sup. Ct. (Bryson J., unreporred, 13 May 1988).
85. 1981 (S.A.).
86. (1985) 57 A.L.R. 472.
87. This act has been significantly amended by the Human Rights and Equal
As long as the special treatment can be tied rationally to the fulfillment of Con-
gress' unique obligation toward the Indians, such legislative judgments will not be
distributed. Here, where the preference is reasonable and rationally designed to
further Indian self-government, we cannot say that Congress' classification violates
due process." For similar statements by judges of the Canadian Supreme Court,
see, for example, Attorney General for Canada v. Canard (1975) 52 D.L.R. (3rd) 548,
Maitland J. at 560—61, Bcetz J. at 575,578.
127. See, for example, Yildiz v. R. (1983) H A. Crim. Rep. 115 on the question
of the admissibility of expert evidence concerning Turkish approaches and cus-
toms; Re Qazaz (1984) S.S.R. 219; Moffra v. R. (1977) 13, A.L.R. 225.
128. See, for example, Australian Law Reform Commission, para. 164. None-
theless, the commission in making its recommendations applied guidelines in-
tended to ensure that any proposals made would not be discriminatory or unequal
as between Aboriginal and non-Aboriginal Australians generally, or in relation to
specific groups, including immigrant groups. See also D. Partlct, supra note 37, at
238; J. Crawford, "International Law and the Recognition of Aboriginal Custom-
ary Laws," in B. Hocking, International Law and Aboriginal Human Rights (Syd-
ney: Law Book, 1988), 43.
129. Australian Institute of Multicultural Affairs, Multicultumlism for All Aus-
tralians (Canberra: Australian Government Publishing Service, 1982), 4, 15, 21, 24,
30-31.
130. See, for example, T. Rowse, "Liberalising the Frontier: Aborigines and
Australian Pluralism," Meanjin 42 (1983): 71, 83; M. B. Hooker, Legal 'Pluralism:
An Introduction to Colonial andNeo-Colonial Laws (Oxford: Clarendon Press, 1975),
vi—viii.
131. Some of the writings include: Migrants and the Legal System (Canberra:
Australian Government Publishing Service, 1978); and more generally supra note
129; G. Bird, The Process of Law in Australia: Intercultuml Perspectives (Sydney:
Butterworths, 1988).
132. Of course much of this section has application also to the indigenous
people of Australia—they are not specifically mentioned here since they have been
the subject of discussions elsewhere in the paper.
133. 1975 (Cth).
134. The Human Rights and Equal Opportunity Commission Act 1086 (Cth).
135. The first federal Human Rights Commission had been set up for a five-
year period beginning in December 1981.
136. See, for example, Viskauskas v. Niland (1983) 153 C.L.R. 280; University
of Wollongong v. Mctwally (1984) 158 C.L.R. 447.
137. J. Mathews, "Protection of Minorities and Equal Opportunities," Uni-
versity of New South Wales Law Journal n (1988): 23.
138. I. Moss and M. Newton, "The Anti-Discrimination Board of NSW:
Eight Years of Achievement in a New Area of Law," A.L.J. 60 (1986): 162,168, 169.
139. See, for example, Ombudsman Act 1976 (Cth).
140. The tribunal may hear such appeals as are prescribed—either in the
Schedule of its Act or as set out in legislation concerning other administrative
decision-makers.
tions that underpin Australia's obligations in the area of human rights arc
established.
These conventions intersect in a myriad of ways and, in themselves,
might be considered competent to protect the rights of indigenous per-
sons and women, and therefore of Aboriginal women. In the absence of
an Australian Bill of Rights,5 the provisions of human rights conventions
are particularly important in protecting individuals against abuses of state
power. Article i of both the Civil and Political Rights and the Economic,
Social and Cultural Rights Covenants declares: "All persons have the right
of self-determination." Under Article 27 of the Civil and Political Rights
Covenant,6 which addresses the needs of ethnic groups, it could be argued
that the rights of Aborigines to enjoy their own culture are protected. This
may not be acceptable, however, as Aborigines have often resisted being
included under the rubric "ethnic." Erica Deas, looking for ways to in-
crease the protection Aborigines could enjoy under these conventions,
urged Australia to ratify the Optional Protocol to the Covenant on Civil
and Political Rights, and to make a declaration under Article 14 of the
Racial Discrimination Convention so as, among other things, "to recog-
nize the rights of Aboriginal and non-Aboriginal individuals to bring their
communications to the respective treaty-bodies for international review."7
With respect to the provisions concerning women, we find that the
ground is less secure. Articles 27 and 23(3) of the Civil and Political Rights
Covenant 8 appear to be in tension with one another, as do Articles 10(1)
and 15(1)(a) of the other covenant.9 On the one hand, the culture is sup-
posed to be preserved but, on the other, "arranged marriages," for ex-
ample, are considered a violation. Further, the Western assumption of the
universality of the family as the "natural and fundamental group unit of
society" with an entitlement to protection "by society and the State," puts
Aboriginal social structure under threat and denies ways in which women
maneuver within plural and arranged marriages.10 For Aboriginal women,
the most fundamental and "natural" configuration may be a grouping of
other women. This is so for the women with whom I have worked in
Central Australia. In terms of residence, ritual, economic, social, and po-
litical life, women spend most of their time and energy in all-women
camps." To expect that a husband, wife, and children constitute the basic
unit is to severely limit the political, economic, and civic responsibilities
of Aboriginal women. It is also to promote a unit that may itself be the
locus of violence and oppression for many women and that is a normative,
rather than actual, patterning of residential units in Australia. The nuclear
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342 Diane Bell
family is not the experience of the majority of white Australians, let alone
Aboriginal peoples.
As kin networks are fractured and transformed by the intrusion of the
state in ways that redefine their place in their own society and limit the
spaces they may occupy in the broader Australian society, Aboriginal
women have become increasingly vulnerable. 12 The ratification of inter-
national instruments does not mean that the content of the conventions,
or the reporting procedures or censures of the nation-state in the United
Nations are common knowledge for those groups the conventions purport
to protect, nor does it mean that persons, believing themselves to be in-
jured by a transgression of one of these international instruments, have
standing in the United Nations.
very much a product of that: era. In Geneva in June 1989, however, the
Conference of the ILO agreed on a revised text. No doubt there will now
be renewed, frustrating, and inconclusive debate regarding the need for
this convention.18 It is interesting here to note that the United States,
Canada, New Zealand, and the Union of Soviet Socialist Republics, like
Australia, all developed states with Fourth World populations, have also
failed to ratify ILO No. 107.
izcd structure through which they could be contacted that was the con-
straint. The Adelaide conference was for many their first opportunity to
forge links with other indigenous women on the basis of their shared con-
cerns as women, to extend invitations to visit, and to build networks.21
Men have enjoyed state and organizational support in establishing, main-
taining, and institutionalizing similar links at the local, national, and inter-
national level for several decades.
Here I am suggesting that we ground our critique of human rights
in an understanding of ways in which the colonization of indigenous
peoples has created a niche for the consolidation of male power in the
emerging political structures established by the state to "represent" the
interests of the colonized. In framing their analysis of the impact of
changes on indigenous peoples, historians and anthropologists have de-
veloped more and more sophisticated models of colonial relations. But in
writing of "internal colonization," "welfare colonization," and "the nation
within" they have, for the most part, paid scant attention to the different
impact of colonial practices on men and women. The work of Eleanor
Leacock is a significant and insightful exception.22 Drawing on the work
of Fricdrich Engcls, Leacock argued that it was the emergence of private
property that transformed the egalitarian relations between women and
men in band society to the hierarchies of class society. In the process
women move from being autonomous, independent producers to depen-
dents within patriarchal structures and a new sexual division of labor was
born. Women constitute a different colonial "subject" from men; and de-
spite their cozy integration in certain domestic regimes, they arc located
at the margins of the new political order. The most consistent outcome
appears to be that while men assume the political spokesperson role, the
women run the welfare structures. From this I am inclined to conclude
that self-determination movements serve the political interests of men but
do little to assist and, in fact, do much to undermine women's power.
One counter to my analysis is to argue that foregrounding gender is
divisive, irrelevant, a middle-class feminist plot to divide and demean in-
digenes—in fact, a form of gender imperialism. Racism, such analysts and
activists argue, is more fundamental than sexism. These arguments, raised
in the name of self-determination, serve to mask the power that the new
elites enjoy in decision-making, in negotiations, and in their interactions
with the instruments of the state. Not surprisingly, a feminist analysis is
threatening both to the colonizer and the colonized. But, I would suggest,
The United Nations faces a tall order in trying to give form to such diverse
and often contradictory notions of what it is to be human and what it is
to enjoy rights. We all have dearly held common-sense notions of abstract
concepts such as justice, human rights, and equality that build on our
understanding of what it is to be human and to have rights. For Anglo-
Australians, this would include notions of fair dealings, dignity, health,
happiness, noninterference by the state in certain domains and regulation
in others. There is no requirement that these be consistent; indeed, we
often hold contradictory beliefs without ever confronting the conflict. To
drafted or have simply evolved, the urgency and the specificity of its con-
ception constitute both a strength and a weakness. The moment ensured
that there would be a document and that there was the will to sustain the
parties through the process of negotiation in drafting the declaration. But
the impetus to universalize glossed over differences in a way that, it could
be argued, has been an impediment to its realization, and that partly ex-
plains the reluctance of certain states to implement it or, once they have
adopted it, explains the lack of success in achieving its goals.
Informing the concept of person enshrined in the Universal Declara-
tion is the post-Enlightenment rights-holder, exquisitely individuated
from fellow persons. One piece of cultural baggage this individual carries,
however, is gender; "man" designates not the generic member of the hu-
man race but the male. Furthermore, he is the rational man differentiated
from woman, who constitutes the Other in this scheme. His canvas is the
world of political rights; hers, the moral domain of family. Although Ar-
ticle 2 speaks of the entitlements of "everyone, without distinction . . .
race, colour, sex, language, religion . . . ," and so forth, by Article 10 the
declaration reads "his rights," and Article 13, "his country." Now those
who have a copy of the Interpretation Act by their bedside as a constant
and intimate reminder, can read that "he" embraces/incorporates/sub-
sumes "she," and should be read to mean "he and she": in short, they may
recognize or interpret this as the generic use of the pronoun. But what arc
we to make of Article 12, which speaks of "his privacy, family, home or
correspondence . . . his honour and reputation"; Article 17, which speaks
of "his property"; and Article 23, which appears to secure equal, just wages
for "everyone" and then bestows the remuneration on "himself and his
family"? When we can observe that women customarily do not occupy
certain positions, own less land, and work longer hours, we could be for-
given for thinking that this person to be endowed with rights is gender-
specific "man." Since Article 16(3) establishes the family as the basic unit,
we could well conclude that is where women should be located, in "his
home." The declaration, which was drafted before the days of inclusive
language guidelines, provides a clear example of why those reforms were
necessary. There is a significant slippage between the apparent inclusive-
ness of the use of "everyone" and the characteristics which "person"
possesses.
The context within which the Convention on the Elimination of all
Forms of Discrimination Against Women was forged in the late 19708 was
shaped dramatically by the International Women's Year and the World
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348 Diane Bell
address the unequal position from which women might attempt to estab-
lish their interpretation of marriage as binding.
In struggling to come to terms with "tradition," "marriage," "group
rights," and "individual rights," the Law Reform Commission confronted
this tangle of individual, cultural, and human rights. The discussion has
tended to focus on human rights for minority groups versus individual
rights, and the meaning of "discrimination" in respect of special laws. This
is much more agreeable terrain than the power plays of men and women
to privilege one interpretation of culture over another. Unlike Article 4 of
the Racial Discrimination Convention, which permits "special measures,"
if women wish to have "special privileges," they must look to the specific
provisions and seek exemptions. It was in this way that Aboriginal women
who wished to restrict attendance at a dance performance at the Adelaide
Arts Festival were able to exclude men, without acting in a discriminatory
fashion. The company had received Commonwealth monies and therefore
came under the jurisdiction of the legislation.28
Currently several moves to enfranchise Aboriginal women, to ensure
they have a place in certain decision-making fora, have been contested on
the basis of tradition. If Aboriginal women were to be made aware of the
provisions of the Convention on the Elimination of All Forms of Dis-
crimination Against Women and of the position adopted by Australia in
its first report under this convention, the onus of proof that under custom-
ary law they enjoyed rights in land and responsibilities for the protection
of sacred sites would not weigh so heavily on their shoulders.
The role and status of women and men in traditional Aboriginal society were
well defined and complementary. They had clear roles and duties which, al-
though defined by sex, were equally important. . . . The exclusion of women
from decision-making has been reinforced by governments' self-management
policies and programs. . . . One effect of lack of consultation with women has
been that women's role as traditional owners and custodians of land and sa-
cred sites has not always been taken into account in the preparation of land
claims under States' land rights legislation. 29
only.35 The converse, for "male eyes only," had presented no problem. It
was "woman" who was the anomaly, who had to make submissions re-
questing that she be heard. It was a problem to be solved by a special
provision, while the experience of the male was normative.
But the gains of all the hard work of myself and others in giving
expert testimony in the courts, of sensitizing learned men (and women)
on the law reform commission of issues of gender, were quickly shuffled
into an academic backwater. The bureaucrats charged with implementa-
tion of nondiscriminatory policies, together with the all-male organiza-
tions put in place to represent Aboriginal interests, constituted an almost
insurmountable barrier. Thus, in common with other women, Aboriginal
women may have political rights (they can vote), but they do not enjoy
the same access to arenas of power—they are a different sort of citizen.
What they experience is considered personal, and thus removed from the
political agenda. Reforms concerning women have come to be identified
or associated with the "personal," whereas the ones concerning men arc-
perceived as addressing grander questions of criminal justice and civil
rights.
While the impact of international conventions per se may have been
minimal, the existence of an arena wherein the conduct of the nation-state
toward its indigenous people may be publicized has been extremely im-
portant for the Aboriginal campaigns to secure land rights. Aboriginal
spokespersons continue to look to the international court of justice, the
World Council of Indigenous Peoples (WCIP), and the subcommission
on indigenous peoples for support in their local campaigns. The politics
of embarrassment, which Aborigines have used so effectively to bring their
claims before the international community, grant indigenes a different sort
of leverage from that which women may exploit. In respect to the atten-
tion their claims of mistreatment will attract, Aborigines fare better than
women. It is a racist slur to call an Aborigine a "coon" and refuse him
service in a hotel, yet it is not as deeply offensive at law for an Aboriginal
woman to be called a "black slut."36 By focusing on women, and more
specifically on Aboriginal women, it becomes patent that the characteris-
tics of race and gender occupy different space in the hierarchy of sympathy,
and that there is a greater quotient of shame available to be exploited by
indigenes than there is for women. If Aborigines are neglected in a First
World country, that is a crime against humanity: if women are denied
access to all important decision-making fora, that is culture.
On the basis of case material from Kenya, Iran, India, and socialist
societies, Moore argues that women and men do not have the same rcla-
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356 Diane Bell
tionship to the state.48 "The modern state is predicated upon gender dif-
ference, and this difference is inscribed into the political process."49
I have explored certain dimensions of the processes of incorporation
of Aboriginal practices within the ambit of the state, and demonstrated
that this has the consequence of consolidating power in the hands of men.
A common criticism of anthropology is its neglect of larger structures and
contexts within which people operate. I have suggested that a study of
kinship and marriage need not only address traditional practices, but can
also inform our models of colonial relations. Moreover, a study of gender
relations will inform our understanding of the working of the state.
Anthropologists in the 19705 struggled with their relationship to co-
lonialism and pondered whether they were the "handmaidens of imperi-
alism." This critique has been further elaborated by James Clifford; but
unfortunately, gender is not a salient category for him.so His is, in fact, a
very old-fashioned reworking of a set of questions which feminist anthro-
pologists have approached with greater subtlety in their analyses of the
intersections of gender, race, class, age, and so on. None of this has been
easy.51 Anthropologists have been dismissed as "bleeding hearts"—advo-
cates, not experts, sentimental traditionalists, not rigorous scientists. But,
in trying to make explicit the position from which they speak, they have
begun an analysis of their own power in the construction of culture and
persons.52
I was not universally cheered for this critique of law as implicated in the
ordering of power relations. Still, it was no less than I would ask of my
own discipline, and no less than I demand of myself in making plain the
conditions of my practice. It may make us more susceptible to challenges
of subjectivity if we begin to scrutinize our own power as actors in the
situations we analyze, but it also allows us to begin to account for the
failure of law alone to restructure the relations between indigenes and
the colonizer, and to reorder relations within the patriarchy.
Law, in my mind, remains opaque to its own source of instrumenta-
tion. In so doing, the power of the state, of the law, and of ideological
components of the constructs of the person, of women, of culture are not
scrutinized. Without recognizing the power of the law and the state as
constitutive of the person, of women, of the indigene, there can be no
systematic analysis: there are texts, but no context. In such a framework,
law cannot have a theory of power. Power will always be oblique to itself
and represented in other ways, such as the specification of equality at law.
The exercise of power is too raw to be disclosed in legal discourse, and
needs to be mediated for the law, the nation-state, and the international
community to operate.
It is well to remember that it was international law that legitimated
the original disposession of Aborigines, and that it was the legal fiction of
terra nullius that for almost two hundred years remained unchallenged by
lawyers. Law also operates in concert with imperialism. It could be sug-
gested that human rights have become an area of colonization for the law,
a means by which the First World can impose its standards on Third World
countries, and contain decolonization movements by Fourth World
peoples within the nation-state. Since a number of Third World countries
have begun to look to the United Nations for support in framing their
own resolutions, the United States has been notable for not paying its bills
there. A deflection of purpose is evident; instead of pursuing human
rights, for example, women's rights are being curtailed by a focus on the
rights of the unborn.
The institutional framework for the international promotion and pro-
tection of human rights for some is an impressive and extensive infrastruc-
ture. To me, it is a labyrinth with much pretension, few sanctions, and
many obstacles. I find it interesting that when lawyers and diplomats, nor-
mally pragmatists, speak of human rights, they speak of possibilities, of
how standards might be set; they look forward, not backward. They rarely
analyze why there has been a need for more and more fine-grained speci-
fications of what constitutes human and what is a right. 53
The human rights instruments to which Australia is a party appear to
constitute a triumph of good will, good sense, and a commitment to ex-
tend dignity, equality, and opportunity to all, regardless of creed or color,
gender, or generation. But the beneficiaries have little access to, or knowl-
edge of, the machinery. At the most cynical level, it could be suggested
that the conventions provide a screen through which those nations that
might interfere in "domestic affairs" must now peer. In short, one consid-
eration in signing a human rights convention is the creation of a protective
mechanism for the nation-state. Given that it is those nations most in need
of standing in the international community that have signed most prolifi-
cally, this cynical thesis appears to have some merit. While it may inform
the initial impulse to sign, however, the process is more complex.
Beginning with conditions under which human rights documents arc-
drafted, it is necessary to note that in order to achieve a consensus the
convention moves as close to the lowest common denominator as is pos-
sible without entirely compromising its purpose. This process of negotia-
tion continues through the ratification process; as the convention passes
into domestic law, it must accommodate and balance diverse, often con-
tradictory interests of the nation-state. Australia reserves on certain articles
of conventions, if these are considered to come into conflict with the con-
stitution, or with federalism. Then, as the machinery for implementation
evolves locally, the convention must once again be rendered amenable to
local conditions. As the laws and policies are tested, interpreted, and
amended, a further accommodation to customary practice occurs. It is, I
suggest, this scries of funnels and filters through which the language and
intent of the international conventions must pass that constitutes a formi-
dable constraint on the capacity of conventions to succeed, and that ac-
counts for the gap between theory and practice, between the ideals of
world justice, and the reality of local law.
Are the efforts to secure human rights through promulgation of con-
ventions at the international level misguided? I think not. They arc a nec-
essary but insufficient step in the attainment of human rights. It is only
those who believe that law is applied in a cultural vacuum who harbor
expectations that the law may restructure relations between the state and
the individual. In a sense, if lawyers were to recognize law as an instrument
of state control or of male privilege in any wholesale fashion, their practice
would be severely jeopardized. They rely on the person as the rights-holder
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Arc Human Rights for Women, Too? 359
Notes
to the Analytical Issues," in Indigenous Peoples and the Nation State: Fourth World
Politics in Canada, Australia and Norway, cd. Noel Dyck (Saint John's, Nfld.: Insti-
tute of Social and Economic Research, 1985), 1—26 and 236—241, argues that by
taking their claims to the international community, Fourth World peoples create a
point of leverage at the local level but that their lives constantly hang in the
balance.
14. See in particular the positions presented to the Working Group on In-
digenous Populations by the National Federation of Land Councils, "Australian
Government is merely perpetuating past colonial practices," in Land Rights Now:
The Aboriginal Fight for Land in Australia (Copenhagen: IWGIA Document 54,
1985), 120-34; and Charles Perkins, head of the Department of Aboriginal Affairs,
regarding the negotiations over the proposals for national land rights in 1985, "The
Australian Government has done much to recognize and meet the needs of its
Aboriginal citizens," in ibid, at 107—19.
15. See Gerry Hand, "Foreword," in International Law and Aboriginal Human
Rights, cd. Barbara Hocking (Sydney: Law Book Company, 1988), v; Marcia Lang-
ton, "The United Nations and Indigenous Minorities: A Report on the United
Nations Working Group on Indigenous Populations," ibid, at 90—91; Erica
LA. Deas, supra note 4, at para. 6; T. Simpson, "Geneva-Indigenous Rights in
International Forums," Aboriginal Law Bulletin 2, no. 34 (1988): 10.
16. Australian Law Reform Commission, The Recognition of Aboriginal Cus-
tomary Laws, vol. i (Canberra: Australian Government Publishing Service, 1986),
128-30.
17. Gough Whitlam, "Australia's International Obligations," in Human
Rights for Aboriginal People in the 'Sos, ed. Grath Netthcim (Sydney: Legal Books,
1983), 12—22.
18. See Geoff" Clark, "Statement During the ILO Conference 1988," Aborigi-
nal Law Bulletin 2 (1988): 13; Garth Nettheim, "Geneva: Revision of ILO Conven-
tion No. 107,1988," Aboriginal Law Bulletin 2 (1988): 12—13; T. Simpson, supra note
15, at 10—ii.
19. Diane Bell, supra note n, at 94—106.
20. I have been asked not to disclose the identities of the parties involved in
this incident.
21. See Jackie Huggins, "International Indigenous Women's Conference,"
Australian Feminist Studies, no. n (1990): 113—14.
22. Mona Etienne and Eleanor Leacock, supra note 10, at 12—16.
23. Henrietta Moore, Feminism and Anthropology (Minneapolis: University
of Minnesota Press, 1988), 134.
24. Ibid, at 196.
25. Alison Jagger, Feminist Politics and Human Nature (Sussex: Harvester
Press, 1988), 385-89.
26. The decision of H. B. Higgins, president of the Australian Court of Con-
ciliation and Arbitration set the parameters of a "fair and reasonable wage." It was
set at a level that allowed the working man to support himself and dependents.
Women's wages were set for the needs of a single woman. This ignored the number
of women "breadwinners," and the judgment was a considerable obstacle to worn-
en's gaining equal wages. See Edna Ryan and Anne Conlon, Gender Invaders: Aus-
tralian Women at Work 1788-1974 (Melbourne: Nelson, 1974).
27. See Diane Bell, supra note ro.
28. Law Reform Commission, supra note 16, at 490.
29. Commonwealth of Australia, 1986 Report of Australia under the Convention
on the Elimination of Discrimination Against Women (Canberra: Australian Govern-
ment Publishing Service, 1986), 6-7.
30. See Elizabeth Evatt, "Discrimination Against Women: The United
Nations and CEDAW," in Human Rights: The Australian Debate, ed. Lynne Spen-
der, supra note 5, at 27—38.
31. Ibid., at 32—36.
32. Marian Sawcr, "Human Rights: Women Need Not Apply," Australian
Society (September 1988), 9.
33. Diane Bell with Topsy Napurrala Nelson, "Speaking About Rape is Ev-
eryone's Business," Women's Studies International Forum 12 (1989): 411-14.
34. Diane Bell and Pam Ditton, Law: the Old and the New (Canberra: Ab-
original History, :98o).
35. Diane Bell, "Aboriginal Women and Land: Learning From the Northern
Territory Experience" Anthropological Forum 5, no. 2 (1984): 357-58.
36. Diane Bell, "Exercising Discretion: Sentencing and Customary Law in
the Northern Territory," in B. W. Morse and G. R. Woodman, eds., supra note 12,
at 372.
37. Diane Bell, "Choose Your Mission Wisely: Christian Colonials and Ab-
original Marital Arrangements on the Northern Frontier," in Aboriginal Austra-
lians and Christianity, ed. D. B. Rose and T. Swain (Adelaide: Australian
Association for the Study of Religions, 1988), 338—52.
38. Diane Bell, supra note 35.
39. Diane Bell and Pam Ditton, supra note 34.
40. Diane Bell, supra note 33.
41. Diane Bell, supra note 35.
42. Llenrictta Moore, supra note 23, at 129.
43. See Diane Bell and Pam Ditton, supra, note 34, at 94-96.
44. Diane Bell, supra note 37, at 348—50.
45. Marian Sawer, Sisters in Suits: Women and Public Policy in Australia (Syd-
ney: Allen and Unwin, 1990), 22—23, 2278"
46. Phyllis Daylight and Mary Johnstonc, Women's Business: Report of the
Aboriginal Women's Task Force (Canberra: Australian Government Publishing Ser-
vice, 1986), 11-19.
47. As quoted in Henrietta Moore, supra note 23, at 183. See also Catharine
A. MacKinnon, Toward A Feminist Theory of the State (Cambridge, Mass.: Harvard
University Press, 1989).
48. Ibid, at 136-78.
49. Ibid, at 183.
50. James Clifford, The Predicament of Culture: Twentieth-Century Ethnogra-
phy, Literature and Art (Cambridge, Mass.: Harvard University Press, 1988).
51. Francis E. Mascia-Less, Patricia Sharpe, and Colleen Ballerino Cohen,
Introduction
The question of cultural survival has become a growing concern for encap-
sulated minorities in ethnically plural situations. In the relationship be-
tween relatively powerless indigenous minorities and the nation-state,
cultural survival is not only a matter of culture per se. It can also be re-
garded as a human rights issue based on political rights and land rights,
the two predominant elements contained in what is referred to as "Abo-
riginal rights." Political rights refer to self-determination, whereas land
rights can be either territorial rights to land and water, or rights and
ability to develop traditional natural resources, such as sovereignty over a
land base sufficient to maintain a particular way of life.
How then can a particular culture survive? It can be sustained only
by the common action of many people whose main concern is to maintain
and develop their basic and culturally defined characteristics. These people
share fundamental interests and values, as well as a distinct identity, which
make them readily recognizable and different vis-a-vis the outside world.
Cultural survival, therefore, is primarily a collective objective and should
be viewed in contrast to individual physical survival.
If one assumes this connection between culture and human rights to
be a significant legal property according to international law and uses it as
a fruitful point of departure in attempts at clarification of human rights in
general terms, the somewhat unnecessary debate between liberal and non-
liberal positions and the controversy as to whether human rights are indi-
vidual or collective
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564 Tom G. Svcnsson
case. Similar levels of engagement are found in Stockholm and other big
urban areas.
second, to impose the human rights perspective upon the working Sami
Rights Committee.
In other words, the Sami chose to define the contest in their own
way, laying extra emphasis on a holistic perspective. The Aha case gave
them an opportunity to broaden the legal argument, thus transforming
the trial into an Aboriginal rights contest in which sociocultural implica-
tions of the ecological change were joined with fundamental human rights
principles embedded in international law. To argue their cause, the Sami
were allowed to include the human rights perspective; unfortunately, how-
ever, they were not given sufficient time to prepare their plea regarding
this complicated matter. The Norwegian authorities wanted to have the
controversy settled as soon as possible in order not to delay the process of
development; accordingly, they took certain measures to speed up the le-
gal procedure. Consequently, it was decided that the case should go di-
rectly from the District Court to the Supreme Court for final decision,
thus omitting the Court of Appeal, which plays a significant role as the
intermediary that scrutinizes new evidence. This ruling of procedure,
which reflects the uneven distribution of relative power between the two
contesting parties, was a noticeable drawback for the Sami, a state of af-
fairs they could only protest in vain.
Important to note is the fact that the lawyer acting on behalf of the
Sami is a Sami himself with background in reindeer pastoralism. This gave
him particular authority to argue the case, especially as the link between
legal intricacies and culture came to predominate in his plea. In this respect
Article 27 of the United Nations Covenant on Civil and Political Rights
(1966) formed a leading theme. As Article 27 is considered the break-
through for collective rights, it was important on this opportunity to point
to the general international development regarding a broadening of the
interpretation of its content and system of ideas. And in this respect pro-
tection of culture seems to be a critical point, mainly because culture is not
a juridical concept. To support this connection of ideas, expert insight
from the field of anthropology supplemented evidence given by experts of
human rights and international law.9
The work of the Human Rights Committee in Geneva was also
brought forth, mainly because Norwegian delegates had recently been so
active in the forefront advocating improvements and clarifications of the
legal concepts. One issue worth noting in this respect was that regarding
material preconditions for cultural protection; here the question of land
rights prevails. The elucidation of certain ambiguities of the 1966 Cove-
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The Case of the Sami 373
nant with reference to its protective power was considered absolutely rele-
vant in a contest like the Alta case, the primary controversy of which dealt
with rights to land and water.
In addition, the Sami pointed to the fact that Norwegian authorities
had acquired an outstanding international reputation and respect for their
activities and explicit dedication to the continuous process of making hu-
man rights principles more precise in the international arena. The Sami in
Norway, therefore, could readily expect a sincere understanding for their
claims as presented at the trial.
How, then, did the Supreme Court respond to this legal strategy? In
their argumentation the Sami party spelled out very strongly how crucial
it is for them to distinguish between individual and collective rights and
that collective rights by far predominate over individual rights. The Su-
preme Court had no difficulty in approving this contention. Another le-
gally valid clarification was made in the verdict. According to the Supreme
Court, it is undeniable that the Sami represent an ethnic minority within
the Norwegian state and, consequently, it is protected by Article 27 of the
covenant, that is, on the bases of human rights principles.10 This is the first
time that the highest court in Norway acknowledged the Sami as a distinct
people entitled to special rights. The Sami's introduction of the ideas con-
tained in international law aimed at such authoritative statements upon
which future confrontations can be built.
As to the particular conflict, however, the Sami lost the case. The
previous decision by the Norwegian authorities to proceed with the
hydropower development of the Alta River was approved. The decisive
reason for this conclusion was the size and scale of the encroachment. In
the court's view the implications and detrimental consequences to the
local Sami were not large enough to implement Article 27 and to justify
preventing the proposed exploitation. In its decision the Supreme Court
maintained that
carefully estimated and judged in each specific case. And this is exactly
what the Sami asked for when they decided to argue their case from the
perspective of international law. This approval by the Supreme Court was
considered by the Sami to be a partial victory; at last they had succeeded
in making international law legitimate for decisions in Norwegian national
law. From now on, there are no restrictions on Norwegian courts in ex-
amining and testing the validity of administrative decisions concerning,
for example, hydropower development projects and the extent to which
they may violate prescriptions and rules embedded in international law.12
As the Norwegian expert on international law, Professor Carstcn
Smith, former chairman of the Sami Rights Committee has said, the ver-
dict is not precedent for the proposition that international law is superior
to national law in cases of conflict in which cultural difference is the is-
sue.13 It is primarily a declaration of principle that opens up new vistas in
legal practice, that is to say, from now on international law is considered
relevant; furthermore, the authority of this declaration is strengthened
considerably by the fact that the entire Supreme Court in full assembly
(eighteen justices) reached this conclusion. This proves that it was abso-
lutely worthwhile and expedient to introduce international law and its
human rights principles in court, and that the Supreme Court responded
in a rather constructive way to this meta-argument as an essential part of
the legal strategy of the Sami.
In order to meet the Sami demands articulated during the Alta con-
troversy, the Norwegian government in 1980 appointed a broadly com-
posed Sami Rights Committee, which included Sami participation and
had as its main purpose an inquiry into the extensive issue of Sami rights.
As the terms of reference for this inquiry involved a thorough examination
of Sami rights in relation to international law, especially in regard to what-
ever significance such legal principles might have for any proposals ad-
vanced by the committee, the committee followed the Alta court case and
its outcome very closely. The guiding ideas on this point echoed the gen-
eral debate about Sami rights that emanated from the Alta conflict and, in
particular, the emphasis the Sami laid on this perspective in the court case.
The Sami Rights Committee chose to take this part of its inquiry quite
seriously, urging the Department of Justice to appoint a separate group of
experts on international law to prepare a statement for its final report. The
report of this expert group constitutes one third of the entire text (192
pages) of the first report from the committee to the government in 1984,14
In this way new ideas and legally valid reasoning break into new are-
nas. The intent and purpose of Article 27, giving extra weight to protec-
tion of culture, should, in the views of the Sami Rights Committee, guide
any legal interpretation in future conflicts of interest. The Sami Rights
Committee goes one step further in its conclusion that the Norwegian state
is obligated to work for positive discrimination (or affirmative action) to-
ward the Sami to the degree this may be required for maintaining their
culture. This means not only diverse expressions of ideal culture in a nar-
row sense, such as, for example, language, aesthetics, folklore, belief sys-
tems, and so on, but—far more important—also its material base. The
foundation for such active policy rests heavily on Article 27.
After a hearing process, the proposals of a parliamentary inquiry
were eventually worked out into formal legislation. The proposition of the
government built on both the verdict of the Supreme Court and the report
of the Sami Rights Committee. First of all, the Department of Justice
agreed that legal principles that are contained in international law and that
The listed improvements are based in part on a special Sami Act and in
part on a constitutional enactment that firmly recognizes the Sami as an
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The Case of the Sami 379
the Sami a definite say in their own affairs, evidently reflects an official
approval of the signification and implications of international law.
Conclusion
law, in the Alta Case that of administrative law, in the Taxed Mountains
Case that of property law. In both eases the strategy for the Sami acting in
the legal arena was based on a clever combination of several legal proper-
tics which are referred to in their legitimate argumentation and used effec-
tively to plead their cause. International law, with its particular focus on
human rights, and customary law were skillfully woven into a strictly legal
argument, a strategy that usually forces the courts to respond unconven-
tionally, possibly laying new grounds for precedential assertions. The two
court cases presented illustrate this point. In later years it has become a
common strategy among Native peoples to complicate essentially narrow
legal issues, such as those dealing with land rights, thus broadening the
foundation on which decisions are made. International law and customary
law appear as legal cornerstones in Native claims for improved land rights,
Aboriginal rights, and so on. National law will thereby be revised and ad-
justed to better suit Native demands and needs in order to secure cultural
continuity. This legal strategy has become part of Native culture in many
areas of the Fourth World and aims at legally appropriated gains which
can readily be transferred to political gains.
The two court cases discussed above also support an argument for the
predominance c^f collective human rights in Fourth World situations. The
strong focus on the cultural dimension of human rights makes such an
emphasis obvious. I do not take a stand against the importance of indi-
vidual human rights in cross-cultural perspectives, however, and, as I hav
maintained, such controversy of fictitious polarization is not very fruitful.
In this respect, my general thesis should be viewed as support for very
accurately determining the context in which human rights are to be dis-
cussed. Rights within their context are what one should be concerned with
and the link between anthropology and human rights helps to achieve
such methodological clarification. 27
The meaning of human rights may vary considerably; all cases in
which a reinforcement of human rights contributes to cultural survival
rights are loaded with meaning. The right to cultural diversity is sanc-
tioned by means of increasing acknowledgment of the relevance of human
rights. From my anthropological horizon, I am convinced that the con-
nection between anthropology and various legal disciplines in observing
human rights in cross-cultural perspectives will grow in importance. From
a methodological point of view, actual fieldwork in the courtrooms, incor-
porating thorough observations of behavior and views expressed outside
Notes
1. See for example, chapters 4—6 in this volume, by Rhoda Howard, Virginia
Leary, and Michael McDonald.
2. See the chapter by Richard Falk in this volume.
3. As discussed by Roxanne Dunbar Ortiz in her paper, "Cultural Legitimacy
of Human Rights in Latin American Indigenous Perspectives," given at the Inter-
national Conference on Human Rights in Cross-Cultural Perspectives, Saskatoon,
Canada, October 12—14, 1989.
4. SOU: 41, Sameratt och Sameting (Stockholm: Justiticdepartcmentet, 1989).
5. See Chapter 6 by Michael McDonald in this volume.
6. See, for example, Ethnic Groups and Boundaries, ed. F. Barth (Bergen: Univ-
crsitcsforlaget, 1969; London: Allen, 1969); Abner G. Cohen, Customs and Politics
in Urban Africa (London: Routlcdge and Kegan Paul, 1969); Ethnicity and Resource.
Competition in Plural Societies, ed. L. Despres (The Hague: Mouton, 1975).
7. See Chapter u by Manuela Carnciro da Cunha in this volume.
8. Ibid.
9. R. Paine, Dam a River, Damn a People? (Copenhagen: IWGIA Document
45, 1982); D. Sanders, "Indigenous Rights and the Alta-Kautokeino Project," in
Samene-Urbefolknin0 og Minoritet, ed. Trond Thucn (Tromso: Universitesforlaget,
1980), 175-86.
jo. H. R. 1982, 103.
u. Ibid, at 119.
12. Ibid, at 35—36.
13. C. Smith, "Altadomcn og Pr0velserettcn," in Norsk Rett og Polkeretten, ed.
C. and L. Smith (Oslo: Universitesforlaget, 1982), 229.
14. NOU: 18, Om SamenesRettdige Stilling (Oslo: Universitesforlaget, 1984).
15. Ibid, at 243.
16. Ot., prop. no. 33 (1987): 37.
17. Ibid, at 123.
18. HD-verdict DT 2 (Stockholm, 29 January, 1981).
19. For further information, see T. Svensson, "Local Communities in the
South Sami Region," in The Sami National Minority in Sweden, ed. B. Jahreskog,
(Stockholm: Almqvist & Wiksell, 1982), 102—16; Svensson, "The Land Claims Is-
sue and the Sami—Reflections on Contemporary Legal Struggle," Geographica
Helvetia 4 (1988): 184—93. (A monograph concerning the entire case is forthcoming
shortly.)
20. SOU: 36, Samernas Folkrattslya Stallning (Stockholm: Justitiedepartc-
mentet, 1986).
21. SOU: 41, SamerdttochSameting (Stockholm: Justitiedepartementet, 1989).
22. See supra note 20, at 16.
Introduction
of race, sex, language or religion . . . not only because there are no fun-
damental differences among men, but also because the great society
and community of all men has become a real and effective power, and
the interdependent nature of that community is beginning at last to be
recognized."4
Also in 1947, the American Anthropological Association issued its
well-known words of warning, authored by Melville Hcrskovits:
Standards and values arc relative to the culture from which they derive so that
any attempt to formulate postulates that grow out of the beliefs or moral
codes of one culture must to that extent detract from the applicability of any
Declaration of Human Rights to mankind as a whole. . . . The rights of Man
in the Twentieth Century cannot be circumscribed by the standards of any
single culture, or be dictated by the aspirations of any single people. Such a
document will lead to frustration, not realization of the personalities of vast
numbers of human beings.5
Typically, the first kind of studies arc pursued by social scientists, while
the latter come naturally to philosophers and perhaps to students of intel-
lectual history. No sharp division of labor should be required, however;
both kinds of studies must be informed by a modicum of juridical knowl-
edge; and interdisciplinary cooperation may often be highly desirable.10 A
practical aim of such inquiries, particularly when conducted along the lines
proposed by An-Na c im, is to facilitate ways of enhancing the legitimacy of
the full range of contemporary human rights standards in the culture or
doctrine being studied, and preferably in ways congenial to it.
The questions to be asked when conducting research on the cultural
legitimacy of human rights will vary, of course, depending on the subject
matter and the kind of study undertaken. I shall now indicate three broad
categories of questions: empirical, exegetical, and practical questions about
the specific "cultural objects" being studied; theoretical and more general
questions about the project of establishing a global human rights regime;
and self-critical questions about currently recognized human rights stan-
dards. Within the first category there are three subgroups of questions.
When one studies the human rights proficiency of a specific culture,
a tradition, or a doctrine, it is natural (again following An-Na c im) to ask:
The)' include, but they arc not exhausted by, an evolving system of
positive norms in international law that is legally binding on states,
though to various degrees, depending on the accession of individual
states to international human rights instruments.
To some degree, this system informs and is bolstered (and at times
questioned) by what at present appears to be a growing and deep-
ening global human rights culture—to which the U.N., ILO and
a growing number of international organizations, many govern-
ments, a variety of activist nongovernmental organizations (NGOs),
and a multitude of minority, opposition, and mass movements all
contribute, in various ways and degrees. One baseline of this in-
cipient global human rights culture is, I think, that it is now taken
for granted that people, individuals as well as groups, are entitled
to deference by the state to their human rights, whenever circum-
stances permit.
As a matter of abstract presumption, the system of human rights in
international law (or at least its core) is widely supposed to have
adequate theoretical backing normativcly (in justifiable moral or po-
litical principles) and descriptively (in tenable diagnoses of global
societal circumstances).
But it is contestable in what specific way modern human rights
should be provided with adequate theoretical foundations, so as to
make them—one would hope—intelligible and reasonably defen-
sible from within the differing, and often rival, political and juridi-
cal perspectives intrinsic to major contemporary cultural traditions.
From the preceding points, one important corollary seems to follow: that
the modern, internationally acknowledged system of human rights is be-
coming a touchstone for the moral and political legitimacy of any culture,
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394 Tore Lindholm
The point of culling these ten features is to provide us with a schedule for
the appraisal of cultures and doctrines. In the section on "The Legitimacy
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The Cases of Liberalism and Marxism 395
man beings in terms of inherent freedom and equal dignity is, on this
reading of the Universal Declaration, the minimal common normative
grounds for universal human rights. But, since the concepts of freedom
and dignity are largely left unexplicated, as are the characteristics of human
beings by virtue of which they owe each other such moral recognition, the
more fundamental questions are left open to various interpretations and
specifications, which may conflict among themselves, without affront to
the Universal Declaration. The leeway of interpretation is nevertheless
constrained, not least by the system of human rights provisions that is
contained in the declaration as a whole. Thus "all human beings arc born
free and equal in dignity" cannot be interpreted so that it is not, in some
way, an essential normative premise for this system. But Article i docs not,
by itself, answer the further questions as to how and why such a manda-
tory commitment to freedom and to equal dignity helps prescribe a system
of inalienable human rights—as spelled out in the rest of the declaration.
Nevertheless, the declaration as a whole clearly indicates a preferred an-
swer to this further question.
To begin with, if we consult the discussion, and voting, of the Third
Committee of the General Assembly in the Fall of 1948, it becomes clear
what the "official" United Nations answer to this further question is not:
the answer is not assumptions about God, or about Nature, or about Hu-
man Nature, or about Reason—although none of these answers were out-
lawed, and each of them welcomed, as it were, as optional rationales of
human rights (along with other admissible rationales).
In a more positive vein, the second sentence of Article r ("Endowed
with reason and conscience . . . ") posits human reason and human con-
science as foundations of certain duties on all humans endowed with rea-
son and conscience: such duties are implied by the phrase "they should act
toward one another in a spirit of brotherhood," and these duties are made
explicit in Article 29 of the declaration. From Article i, however, it is not
clear what job, if any, "reason" and "conscience" arc meant to accomplish
in justifying human rights. I think that, strictly, they are not intended to
justify rights at all, but perhaps to indicate that it takes reason and con-
science to respect and to justify rights (but not to hold rights). And even
if they should be intended as characteristics in virtue of which human
beings are entitled to rights,23 this is arguably not the main thrust of the
doctrine of justification for human rights in UDHR.
Drawing now also on the text of and the discussions devoted by
the Third Committee to the UDHR Preamble, the "official" positive
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The Cases of Liberalism and Marxism 397
docs challenge what has become a standard view of the philosophy behind
the UDHR, recently spelled out by Jack Donnelly and by Johannes Mor-
sink, 26 1 shall briefly explain why I hold such a natural rights interpretation
of the declaration to be wrongheaded.
Donnelly and Morsink are doubtless correct in claiming that, accord-
ing to the international founding fathers and mothers of human rights,
human rights arc "logically antecedent to the rights spelled out in various
systems of positive law" and "are seen as inherent and inalienable, and thus
as held independent of the state."27 Thus the philosophy of the Universal
Declaration contradicts the view that only positive rights are binding and
the view that human rights derive solely from man's legal and political
status in society: straightforward "positivism" in legal philosophy is out,
as is, apparently, the "Marxist" position voiced to the Third Committee
by Soviet delegate Bogomolov, who made it clear that "[t]he USSR dele-
gation . . . did not recognize the principle that a man possessed individual
rights independently of his status as a citizen of a given State."28
But, as we have seen, the international founders also excluded from
the instrument the specifically natural law doctrines that humans have hu-
man rights by virtue of their human nature or their natural, or divinely
given, endowment.
Defenders of a natural rights intcpretation of UDHR might claim that
any moral or legal doctrine which advocates prc-statc, or pre-positively
valid, human rights is a natural rights doctrine, by (their) definition. But, I
will now argue, this would be an excessively watered-down version of a
genuine natural rights doctrine. On a natural rights doctrine, I submit, the
binding character of basic rights must be shown to be conclusions of an
argument, the premises of which propound pertinent aspects of God, na-
ture, reason or human nature, and whose cogency does not depend essen-
tially on interpretations of sociohistorically evolving circumstances.29
Other arguments pertaining to a natural rights interpretation of
UDHR must be set aside for now. 30 1 shall round off my methodological
exercise by marshaling the virtues of the justificatory strategy I have im-
puted to the Universal Declaration, virtues at least as regards the cross-
cultural legitimacy of human rights.
INTRODUCTION
In this part I single out Ronald Dworkin and Hermann Klenner as repre-
sentatives, respectively, of a liberal and a Marxist doctrine about human
rights. I also turn to John Locke and Karl Marx for guidance, since these
founding fathers nourished ideas about "the rights of man" that in part
eclipse the conceptions of these latter-day heirs. (Recall that we have
adopted the maxim to seek to overcome resistance and indifference to hu-
man rights in ways that are congenial to the traditions under scrutiny.)
Dealing with the works of individual writers enables me to quote chapter
and verse as evidence for my interpretation. Thus it helps ward off self-
tailored constructs on my part.
Why select Dworkin and Klenner? My reasons arc not quite symmet-
rical: As for Dworkin, it implies dealing only with the egalitarian variety
of political liberalism. Among prominent liberal theorists of law, Dworkin
appears promising, owing to his cgalitarianism and his incorporation of
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4O2 Tore Lindholm
the business of laws is not to provide for the truth of opinions, but for the
safety and security of the commonwealth, and of every particular man's goods
and person. And so it ought to be.40
This Lockcan moral "ought" springs not from pluralism as a political ideal
but from the recognition of a pluralist political predicament. Later I shall
suggest that Locke's reasons for using the public/private distinction to
separate the political from the religious spheres of human action and com-
mitment may be generalized and transferred to the contemporary inter-
national level of political and moral reconciliation, between rivaling
religions and ideologies, cultures and states. In particular we shall make
constructive use of the Lockcan idea of a moral modus vivendi when deal-
ing with certain objections to Dworkin.
Of course, Locke's theology and his metaphysical theory of natural
rights, long since "principles in dispute," cannot provide a globally bind-
ing normative justification for human rights.41 Contemporary liberalism
must rely on specifically "modern" answers, and below I discuss how far
Dworkin's justification for rights squares with the justificatory scheme for
international human rights outlined in part i.
"A constitutive position" is a political position valued for its own sake:
. . . such that any failure fully to secure that position, or any decline in the
degree to which it is secured, is pro tanto a loss in the value of the overall
political arrangement."
The first supposes that government must be neutral in what might be called
the question of the good life. The second supposes that government cannot
be neutral on that question, because it cannot treat its citizens as equal human
beings without a theory of what human beings ought to be. . . . This distinc-
tion is very abstract, but it is also very important. I shall now argue that liber-
alism takes, as its constitutive political morality, the first conception of equality.43
Individuals have rights when, for some reason, a collective goal is not a suf-
ficient justification for denying them what they wish, as individuals, to have
or to do, or not a sufficient justification for imposing some loss or injury
upon them.44
Anyone who professes to take rights seriously . . . must accept, at the mini-
mum, one or both of two important ideas. The first is the vague but powerful
idea of human dignity . . . associated with Kant . . . [which] supposes that
there are ways of treating a man that are inconsistent with recognizing him
as a full member of the human community, and holds that such treatment is
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406 Tore Lindholm
profoundly unjust. The second is the more familiar idea of political equality.
This supposes that the weaker members of a political community are entitled
to the same concern and respect of their government as the more powerful
members have secured for themselves . . . I do not want to defend or elabo-
rate these ideas here, but only to insist that anyone who claims that citizens
have rights must accept ideas very close to these.50
tion of) dignity and equality and yet claiming moral neutrality for the
resulting system.
A liberal's own ideals of the person may of course be inspired by
Kantian autonomy, or by the experimental lifestyle advocated by Mill, or
by moral skepticism, or by seeing people as choosers and constructors of
options (to mention some familiar alternatives).55 No such ideal of the
person is prescribed by a regime of human rights, but is it prescribed by
its minimal liberal rationale? Is, accordingly, "uncritical" acceptance of the
system of basic rights, by people in the hold of tradition, convention, or
authority, necessarily suspect to liberals?
Such a basis for accepting rights cannot be reconciled with a Kantian
conception of the grounds for human dignity (individual rational self-
determination, or autonomy, in a strong, individualist sense), nor with
Mill, nor with moral skepticism. My hunch is that it is therefore suspect
to Dworkin as to many other latter-day liberals. Limitations of space pro-
hibit further discussion. But liberals, I now submit, could draw on Locke
for relief from excess foundational burdens, as I will here outline. A mini-
mal moral substance, from which a liberal political defense for rights
might proceed, is the practice of talcing seriously as a moral person, the
other fellow, who disagrees with us on fundamental ideals of the person
or the good life, in line with the principle of reciprocity implicit in Ar-
ticle i of UDHR. Of course we take our own moral commitments seri-
ously, and we expect the same from him. When confronted with deep
moral conflict a liberal—provided she is informed, that is, by a Lockcan
conception of moral modus vivendi—calls neither for moral warfare nor for
relativist surrender, but for serious dialogue and negotiation about the
terms of political intercourse. I leave aside the question why such discourse
would terminate in the joint construction of a system of rights.
The Lockcan move here is to abstract from, but not abandon, prin-
ciples in dispute between us, in order to reach for common grounds for
the limited, but important, societal domain of human rights. This train of
thought suggests that it doesn't require a commitment to Kantian dignity-
as-individual-autonomy "to take rights seriously." Perhaps the liberal need
not even legislate what it takes, beyond a willingness to serious talk among
political adversaries?
The issue at stake is how to decide what constitutes the proper kind
of support for a global system of human rights. Not any lip service will
do; the danger of delusive apologctism, on behalf of various religions and
recalcitrant fact, there exist deep disagreements about the proper purpose
and meaning of individual and collective life. Such disagreements are very
unlikely to disappear soon; no party can reasonably demand that they be
dissolved by the global adoption of one master conception; and every
party must come to terms with them morally. Second, what is more, in
modern societies—and in contemporary world society at large—there ex-
ist a multiplicity of functionally separate channels of communication that
may allow for more or less untrarnpled social pursuit of nonpolitical ends
in the spheres of economy, science, arts, religion, familial life, professions,
and so on.
If we acknowledge that there is no reasonable escape from this doubly
pluralist character of our social orders, we are further absolved, I believe,
from the dilemma of having either to contradict ourselves morally (phony
liberal tolerance) or to subjugate others politically (liberal intolerance): we
are brought to see further pertinent rationales for Lockean moral modus
vivendi for the domains of civil rights, democratic politics, minority pro-
tection, basic welfare for all, and so on.
In order to work out a system of basic rights that facilitates a suitable
modus vivendi between adherents of competing conceptions of the good
life, and that simultaneously safeguards social channels for reasonably in-
dependent nonpolitical pursuits, we cannot do without empirical analyses
of those historically specific circumstances that make specific human rights
arrangements morally mandatory or preferable. Moral principles, whether
in isolation or in tandem with tacit sociological common sense, arc not
enough.
Recognizing the importance of sociological input into the founda-
tions of rights theory is, I would think, not foreign to Dworkin; Marxist
criticisms for eternalist and transhistorical illusions about the foundations
of rights would be off-target. Yet, there are few explicit historical and so-
ciological considerations in his argument. That is a major area of neglect,
if it takes analyses of historically shifting societal circumstances not only
to delineate a system of rights but also to establish its foundations. I shall
proceed to discuss one such neglect.
the benefit of concerns with the world market, international terms of trade,
debt crisis and hunger, refugees and asylum-seekers, people's control over
resources, the production and affliction of transnational pollution, or war
and peace. Dworkin's theoretical isolationism, with respect to the moral
problem of grounding a domestic system of basic human rights, parallels
John Foster Dulles's consequential policy of keeping the United States
aloof from internationally binding human rights instruments from the
19505 onward. (The United States has never reversed this policy.)
This objection to Dworkin's liberal doctrine hinges on his claim that,
to take rights seriously, we must accept Kantian human dignity or political
equality or both. Of course, Dworkin would not argue that non-U.S., or
non-U.K. citizens, or stateless persons, are not fully human. As for the
idea of political equality, he may hold that it pertains to the citizenry of
single national states taken in isolation, that for his part he studies (say)
the United States and the United Kingdom, and that similar principles
would be applicable, when differences in legal traditions and so forth arc
provided for, to questions of law and basic rights in any modern state.
I do not here question Dworkin's choice of subject matter, nor do I
say that he ought to work out a justificatory and critical theory for inter-
national human rights (though that would be fine, and in the end perhaps
required for his own purpose). My complaint is different: Dworkin pro-
ceeds as if it were feasible to erect a morally adequate theory of basic rights
for domestic systems, while ignoring, morally and intellectually, the im-
pact of international relations. How can he claim to contemplate basic
human rights from a universalistic moral point of view in the contem-
porary world and yet close his eyes to the global order (and the global
disorder) of interdependent, interpenetrating, externality-inflicting and
externality-ridden societies ?
Dworkin's liberalism does not face the problem of the proper scope
and scale of morally pertinent societal relations among human beings in
contemporary world society. By omission it inflicts upon itself a measure
of parochial, self-congratulatory rich man's ideology.
to be but instruments, and not for the protection of people's freedom and
diginity in any modern social order—in particular against those who claim
to act in the name of the emancipatory "historical calling of the modern
proletariat."67 The objection to relying on TE for construing a Marxist
conception of human rights is, to put it simply, that it bars that conception
from being a conception of a system of rights as opposed to a system of
policy.68 Perhaps acceptance of, and propagation of, TE as true can be
squared with belief in and respect for human rights. But then the pre-
sumed "historical calling of the modern proletariat . . . to lead humanity"
must yield, within the relevant societal domain, to a morally and legally
binding system of (genuine) human rights: heed of people's human rights
must never be outweighed by stratagems for the "total new mode of pro-
duction, appropriation and life."
Perhaps not so surprisingly, Klenner makes no attempt to argue for
his TE. Neither arc there references to such arguments produced by oth-
ers, beyond invoking Marx (and Engels and Lenin). And if we study the
most promising source among these classics of Marxism, Capital, we shall
look in vain for the requisite sociological, economic, and historical (or
other varieties of reasonable) "proofs" for anything approaching the Marx-
ian conception and prediction of Communism.69
In his polemics against those who propound bourgeois human rights
doctrines, Klenner repeatedly invokes "social science" and "scientific analy-
sis," he calls for "verification" and "falsification." Such calls are hardly con-
vincing, considering that he bases his own conception of human rights on
a Gesdlschaftstvissenschaft predicated upon the unquestioned acceptance of
Historical Necessity, the Calling of the Proletariat and impending Total
Emancipation in Communism. It is hard to think of a doctrine more fit
for Marxian critique of power-holder ideology than the one called upon
by Klenner to certify his conception of human rights.
One disturbing aspect of Klenner's theory of international human
rights is that in relying essentially on TE he is asking us to take seriously
a doctrine which he, on his own standards of scicntificness, could not take
seriously himself. He must be well aware that TE (when not simply
laughed at or joked about) is extremely controversial, that it is held, by the
appropriate scholarly communities, to be intellectually suspect. Yet Klen-
ner claims to stand up to scientific standards—and ridicules others who
admit they do not (such as Martin Kriele, who concedes that his commit-
ment to human dignity is metaphysical).
rights perspective the doctrine, as such, is not the problem; the trouble is
the weight and paramount status accorded to it by Klenncr, as compared
with more reasonable approaches open to Marxists who take a serious
interest in cross-ideological dialogue and negotiations about human
rights. Here the unreformed Marxist still can learn from liberalism and
Lockean modus vivendi: we do not have to agree on the good society to
agree on the system of rights, without which any modern society is de-
structive of equal dignity and freedom.
Liberated from the straightjacket of monolithic moral futurism,
Marxism might still contribute to the cross-cultural dialogue about a glob-
ally binding conception of human rights. It may also bring itself to defend
human rights in unexpected ways. Hopefully, Marxists will find good
Marxist reasons for reconsidering the case for human rights.79 I should
like to add that, whereas traditional Marxist political regimes are collaps-
ing in Eastern Europe and are losing ground worldwide, the Marxian
legacy of critical social theory is too powerful, and too valuable, to be
discarded.
Reading An-Nacim's fine study on "Religious Minorities under Is-
lamic Law and the Limits of Cultural Relativism"80 aroused my interest in
the general problematics of inquiring into the legitimacy—the support,
rejection, indifference, and so forth—for human rights in various cultures
and traditions. And, soon, it set me off on the project of investigating the
human rights proficiency of two hegemonic political traditions close to
(my Western) home: liberalism and Marxism. The main focus in the pres-
ent chapter has been on methodological and agenda-setting issues. Hope-
fully it will motivate or provoke others to contribute to the study of the
cross-cultural, and global, legitimacy of human rights.81
Notes
3. Ibid, at 8.
4. Ibid, at 268 and 287.
5. American Anthropologist 4.9, no. 4 (1947): 539-43.
6. In Human Rights in Africa: Cross-Cultural Perspectives, ed. A. An-Na c im
and F. Deng (Washington D.C.: Brookings Institution, 1990). See also his "Reli-
gious Minorities under Islamic Law and the Limits of Cultural Relativism," Hu-
man Rights Quarterly 9 (1987): r and "Islamic Law, International Relations and
Human Rights: Challenge and Response," Cornell International Law Journal 20
(1987): 317.
7. This assumption does not, of course, imply that other types of causes of
human rights violations are not important, among these structural impediments
and sheer ignorance. Note also that this assumption leaves open the question of
the relative weight of cultural, as opposed to structural and other, factors. And
there is of course no denying here the obvious and important fact that a variety of
different cultural factors are supportive of human rights to various, and shifting,
degrees.
8. For instance, Alex P. Schmid, Research on Gross Human Rights Violations:
A Programme, 2nd enlarged ed. (Leiden: Center for the Study of Social Conflicts,
1989), proposes a pertinent and promising research agenda for identifying and
explaining human rights violations by state-actors and state-supported actors.
9. The real existierende Sozialismus of the German Democratic Republic,
which is the backdrop of my specimen of Marxism, seerns, at the time of revising
this paper (February 1990), to be a doomed enterprise; my object of diagnosis may
well vanish before I publish!
10. Colleagues have suggested that research on the cultural legitimacy of hu-
man rights require that we elaborate very precise conceptions of culture and of
legitimacy. I tend to think we arc best served by a commonsensical approach, at
the programmatic level. I see no serious obstacle arising from rival theories of
culture (for which I have consulted Roger M. Keesing, "Theories of Culture,"
Annual Review of Anthropology (1974): 73—97). The term "legitimacy" I shall em-
ploy, depending on the context, in the descriptive anthropological sense, indicat-
ing factual support, or in the critical philosophical sense, indicating normative
validity.
n. See also supra note 8.
12. The somber appraisals, quoted by Shestack, of the state of affairs in the
theory of human rights are still apposite. See his "The Jurisprudence of Human
Rights" in Theodor Meron, ed., Human Rights in International Law: Legal and
Policy Issues (Oxford: Clarendon Press 1983), 69.
13. I do not question the truth of the formula in quotes, only its analytical
pertinence for the purpose of cross-cultural studies. See infra section on Donnelly
and Morsink.
14. This is a simplification, since some human rights are due only to certain
"human rights-acceptable" subcategories of all human beings, such as children and
citizens.
15. I here use "universal" to denote universal applicability, and "global" to
denote universality of recognition and obligation.
16. Among human rights principles that are binding de hge lata are those
that are found valid as customary law, binding resolutions of international organs,
and general principles of law.
17. The system of human rights contains norms that may conflict with
each other. For such cases it requires, internal principles of priority, which it
provides via jurisprudence. By the same token, very few human rights can be
absolute, that is, without legitimate limitations, exceptions, and derogations.
This does no violence to the point that human rights are inviolable as a norma-
tive system.
18. On UDHR, its Article i and Preamble, see my "Article One: A New Be-
ginning" in Asbjorn Eide and Goran Melander, eds., The Universal Declaration of
Human Rights, A Commentary Article by Article (Oslo: The Norwegian Institute
of Human Rights, 1991).
19. See text to supra, note 5.
20. By justificatory protothcory, I mean a sketch of a justificatory argument
that points the way toward a fully elaborated theory without itself being one.
Incidentally, I do not think that the authors of the Universal Declaration conceived
of their project as theory construction. The eminently political character of their
project, in this case, may be part of the explanation of why they succeeded even at
producing interesting contributions to theory.
21. The following reconstruction and appraisal is borrowed, in part, from
Lindholm, supra, note 18.
22. See Philip Alston, "Making Space for New Rights: The Case of the Right
to Development," Harvard Human Rights Yearbook i (1988): 24—38.
23. See, recently, Jon Wctlesen, "Inherent Dignity as a Ground for Human
Rights, A Dialogical Approach," Archiv fur Rechts- und Sozialphilosopbie, Beiheft
41 (Stuttgart: Franz Steiner Verlag, 1990). I am happy to be able to divorce the
Universal Declaration from the justificatory doctrine referred to in the text. In
opposition to Wetlesen I find this doctrine unpalatable, as it either involves one
in the muddy waters of. essential potentiality, or jeopardizes the human rights of
foetuses, infants, the elemented, the mentally handicapped, or other humans who
cannot safely be said to be capable of reason or conscience.
24. For more on the justificatory protothcory of human rights imputed to
UDHR see Lindholm, supra note 18.
25. See also the justificatory reasoning indicated in the UNESGO statement
quoted in supra note 4.
26. See Jack Donnelly, "Human Rights and Human Dignity: An Analytic
Critique of Non-Western Conceptions of Human Rights," The American Political
Science Review 76 (1982): 303—16; his "Human Rights as Natural Rights," Human
Rights Quarterly 4 (1982): 391-405; and Johannes Morsink, "The Philosophy of the
Universal Declaration," Human Rights Quarterly 6 (1984): 309—34.
27. Morsink, ibid, at 333-34.
28. Third Committee Records for 1948, 775. "Marxist" here is in scare quotes,
since on this point Klenner is the better Marxist; see part 2, below.
29. In particular, I hold Donnelly's view to be a diluted natural rights doc-
trine. Maybe Donnelly wants to have it both ways, as it were: "A natural rights
theory attributes human rights solely on the basis of one's humanity, that is human
nature," he asserts (Donnelly, "Human Rights as Natural Rights," supra note 26,
at 398). On the other hand, he recommends "the idea of human rights . . . to be
an approach particularly suited to contemporary social, political, and economic
circumstances" (Donnelly, "Human Rights and Human Dignity," supra note 26,
at 303). Our disagreement might boil down to whether such circumstances are
held, and rightly, by the authors of the Universal Declaration to be an essential
part of the justification of human rights. For further discussion of these matters, I
refer to Lindholm, supra note 18.
30. I have much sympathy with Philip Alston's discussion of these questions
in supra note 22, at 24—38.
31. See John Humphrey, Human Rights and the United Nations: A Great Ad-
venture (Dobbs Ferry: Transnational Publishers, 1984), 44. Humphrey holds that
Article i of the UDHR contains "philosophical assertions which [do] not enunci-
ate justiciable rights" and thus "weakens the case for saying that . . . the Declara-
tion . . . is now part of positive customary law and therefore binding on all states."
3?.. John Rawls, "The Idea of an Overlapping Consensus," Oxford Journal of
Legal Studies 7, no i (1987): 1—25.
33. The analysis of overlapping consensus is informed, I believe, by discov-
eries in the philosophy of science originating with Raymond Pomcare and Pierre
Duhem and further developed by Arne Naess and W. V. Quine. I am referring to
the thesis of "theory pluralism," which says, simply, that many rivaling scientific
theories may explain the same set of data equally well, although, for logical rea-
sons, at the most one of these theories could be true, and the one reasonable
persons would want to accept. The last point does not carry over into the political
domain, for moral and epistemological reasons. Epistemological reasons would
include the following: In the global human rights-predicament outlined above, the
conflicting basic principles are by general knowledge much harder to defend by
generally convincing arguments than is the overlapping consensus on human
rights that can be erected upon such principles; heed of universal human rights is
also a practical precondition for getting nearer to a reasonable global consensus on
controversial basic principles.
34. See my discussion of Lockean moral modus vivendi in part 2 following.
Here I only want to add that in the deliberations of the Third Committee as well
as in the Report by UNESCO (referred to in supra note 2), similar ideas were
advanced.
35. See the corollary from part i.
36. Karl Marx, vol. i, Theories of Surplus Value (Moscow: Progress Publishers,
1956), 367.
37. John Locke, A Letter Concerning Toleration (Indianapolis: Bobbs-Merrill,
I955-)
38. By Charles Larmore, Patterns of Moral Complexity (Cambridge: Cam-
bridge University Press, 1987), 76.
39. Ibid, at 130.
40. Locke, supra note 37, at 45.
41. See also part I, supra.
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424 Tore Lindholm
60. Ibid, at 102-3 and the discussion of Marx's internal criticism of bourgeois
rights infra.
61. Elsewhere I have shown that Marx's analysis of the rights of man in his
"On the Jewish Question" is deficient and much inferior to the economic analysis
of rights in Capital; see my Why Marx Scorns Civil and Political Rights (Bergen:
Chr. Michelsens Institutt. Publikasjoner, 1989 fin Norwegian]).
62. Ibid, at 61 and loiff.
63. Ibid, at 104.
64. The above passage might, more profitably, be read to reflect the basic
(but mostly nonexplicit) Marxist commitment to the value of human freedom in-
terpreted as solitary self-realization of all members of global human society,
65. Ibid, at 105.
66. Steven Lukes, Marxism and Morality (Oxford: Oxford University Press,
1985), 61-70.
67. See Lindholm, supra, note 61, at chaps. 3 and 4.
68. In Dworkin's sense; see text to supra notes 44 and 45.
69. I do not expect Klenner or any orthodox Marxist to agree with my rejec-
tion of the Marxian "negation of the negation." But as far as I can see this is empty
verbiage, from the beginning. I hold the intellectual undermining of the Marxian
theory of Communism to be finished business. See Alec Move, The Economics of
Feasible Socialism (London: Allen & Unwin 1983), Leszek Kolakowski, Main Cur-
rents of Marxism, 3 vols. (Oxford: Clarendon Press, 1978), and supra note 57. Marx
himself never developed his political theories to anything near the level of his eco-
nomic diagnosis of capitalism.
70. Klenner, supra note 57 at 146.
71. Ibid, at 109.
72. Ibid, at 126 and 157.
73. Ibid, at 91.
74. Ibid, at 136 and 138. Klenner invokes the "Statuten und Reglemcnt des
Internationalen Arbeiterassoziatiori," ["Statutes and Rules of the International As-
sociation of Workers"] written by Marx, as indicating Marx's support for the "so-
cialist" both-rights-and-duty doctrine, (at 145, his note 386). Klenner knows better.
In his note 210 (at 84) he, correctly, uses the same reference to Marx (in volume 16
at 15 of Marx-Engels Werke; Berlin: Dietz Verlag, 1970) to clinch the point that
Marx, who to his dismay had to write laudatory of "justice," "morality," "duty,"
and "rights" in the said statute, was himself allergic to such a "Ruckfall in die
vorwissenschaftliche Zeit des Sozialismus."
75. Klenner supra note 57, at 2D, 179, 183 and 199.
76. For an excellent reconstruction of Marx's analysis of "social forms" (in
contrast to their "material carriers"), see A. G. Cohen, Karl Marx's Theory of His-
tory: A Defense (Oxford: Oxford University Press, 1978), chap. 4. Marx's develop-
ment of the phusis/nomos distinction for social critique is fertile.
77. In line with Marx in The German Ideology (Marx-Engcls Werke, vol. 3,
1970), 394.
78. See Lindholm, supra note 61, at chap. 3. The main sociological points are
addressed in part 2, supra.
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426 Tore Lindholm
79. The section on Marxist doctrines on human rights in this chapter, written
well before the revolutionary upheavals in GDR in Fall 1989, was inspired by the
following comment made by a GDR professor of international law (not Klenner!)
when asked, in December 1988, about the novel theoretical departures in this area
in the U.S.S.R., Poland, and Hungary: "Wir haben kein Grand gefunden, um-
zudenken." ["We have found no reason to rethink."] Subsequently such rea-
sons—knock-down arguments, as it were—seem to have found their way to the
non-rethinking.
80. See supra, note 6.
81. Thanks are due to those who generously contributed comments and
suggestions on an earlier draft: Bard-Anders Andrcassen, Krzysztof Drzewicki,
Stener Ekern, Donna Gomien, Rhoda Howard, Kjell Madsen, Ines Vargas, Jon
Wctlesen, and above all, Abdullahi An-Na'im.
Conclusion
universality may be, at best, more potential than actual, in view of the
obvious conflicts and tensions between the current standards and specific
cultural traditions. To the extent that culture significantly influences indi-
vidual and institutional or collective behavior, such cultural antagonisms
will hamper the practical implementation of those human rights not pres-
ently accepted by the particular culture.
Yet to note this discrepancy and to argue for the need to promote the
cultural legitimacy of human rights in relation to specific cultural tradi-
tions is commonly taken by univcrsalists to be an effort to undermine the
efficacy of human rights. Apparently, universalists tend to assume that
whoever speaks of actual or potential conflict between the presumed (or
desirable) universality of human rights and the relativity of the concept
and its content, in relation to specific culturc(s), is either deliberately seek-
ing to justify violation of human rights, or naively undermining their
global efficacy. Cultural relativists, on the other hand, seem to interpret
efforts which point out this discrepancy, and to argue for the need for the
cultural legitimacy of human rights as a total repudiation of the univer-
sality of the present international standards. It seems to me, however, that
either characterization of the issues is too simplistic and absolutist. I sug-
gest a balanced, or middle-ground, position between these two extremes:
the reality of relativity does not mean, in my view, that an acceptable de-
gree of genuine universality cannot be achieved.
and content. The almost mystical appeal of the idea of human rights may
even be partly due to its ambiguity, in that it lends itself effectively to
support different, sometimes even diametrically opposed, positions. While
each person or group assumes that the concept denotes only what its pro-
ponents respectively understand or wish it to mean, they can use it to
support their specific claims or demands; and governments can utilize it
to legitimize their powers and policies, without serious fear of contradic-
tion. No one needs to risk incurring the adverse consequences of rejecting
the concept or openly refusing to comply with its dictates as long as its
ambiguity allows them to retain their own views or objectives while ap-
pearing to comply with shared standards.
Ironically, the same ambiguity that makes the idea so useful and effec-
tive now is bound to reduce its moral authority and political force, hence
diminishing its practical utility, in the long run. In fact, this may already
be happening as the target constituencies become increasingly skeptical,
because of the contradictions and double-standards exhibited by those
who employ the term in national and international political discourse. It
is therefore in the best interest of all those who take human rights seri-
ously to clarify the concept and its content in order to improve practical
implementation.
As I have briefly stated in my Introduction and have also argued in
the first chapter, I believe that universal cultural legitimacy is essential for
international standards of human rights. If international standards of hu-
man rights are to be implemented in a manner consistent with their own
rationale, the people (who arc to implement these standards) must per-
ceive the concept of human rights and its content as their own. To be
committed to carrying out human rights standards, people must hold
these standards as emanating from their worldvicw and values, not im-
posed on them by outsiders. It would therefore necessarily follow that if,
or to the extent that, the present concept and its content are not universally
valid, we must try to make them so. Otherwise, those standards that arc
not accepted as culturally legitimate will remain ineffective unless we are
prepared to contemplate attempts to impose these standards on people
against their will!
It can be argued that there are two possible approaches to defining a
universal concept of human rights that will be accepted and respected by
all the peoples of the world. One approach is to extrapolate a universal
concept through the interpretative reading of the existing international
standards, on the assumption that these standards have already been ac-
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432 Conclusion
lation to the question of the status and rights of women in the Mus-
lim context, how do internal and external factors influence the internal
struggle in favor of an authentically Islamic position that will be at the
same time more consistent with the present international standards of
human rights?
Finally, there is the question of what is to be done when both pro-
cesses of extrapolation from the international standards and internal cul-
tural change fail to produce total agreement on a given issue, such as the
matter of cruel, inhuman, or degrading treatment or punishment dis-
cussed in Chapter i. Assuming that international agreement on the mean-
ing of this human right is achieved among all except Muslim nations,
should Muslims accept that meaning or insist on their irreducible cultural
position? Should this choice vary from one issue to another; that is, should
a society concede to international consensus on more or on less fundamen-
tal issues? What criteria should be applied to determine what is more or
less fundamental?
Many further questions can be drawn from, or added to, the agenda
I have set forth. My final recommendation is that, in view of the unac-
ceptable discrepancy between the theory and practice of human rights to-
day, every effort should be made to understand and redress the underlying
reasons for the discrepancy. I believe that the proposed approach to pro-
moting the cultural legitimacy of human rights has sufficient plausibility
to warrant further investigation and consideration by scholars and activists
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Young, Robert W., and William Morgan. The Navajo Language: A Grammar and
William P. Alford is professor of law and director of the East Asian Legal
Studies Program at Harvard Law School. He holds a Master's degree in
Chinese studies and another Master's in Chinese history, both from Yale
University, together with law degrees from the universities of Cambridge
and Harvard. Professor Alford is a specialist in Chinese and East Asian
law, on which he has published extensively in legal journals. He served for
several years as executive director of the China Center for American Law
Study in Beijing, and serves as consultant to several bodies, including the
World Bank's International Advisory Board, the Eord Foundation, and
Asia Watch.
problems. She has written many papers and reports and participated in
commissions and committees in Australia.
Richard Falk has been professor of international law and practice, Prince-
ton University, since 1961. He holds degrees in economics from the Uni-
versity of Pennsylvania and in law from Yale University. His doctorate
in law is from Harvard University. He is the author of eighteen books
and editor or coeditor of another thirteen books. His books include the
edited four-volume collection, The Vietnam War and International Law
(1968-1976), and Human Rights and State Sovereignty (1981). Since 1959,
Professor Falk has published many chapters and articles in edited volumes
and in scholarly journals, in addition to countless contributions to other
publications. His publications range from international law and interna-
tional relations to environmental and peace issues.
Tom G. Svensson holds a Fil. Dr. degree in social anthropology from the
University of Stockholm. He is associate professor at the Department of
Anthropology (Ethnographic Museum), University of Oslo, Norway. His
special interest is devoted to the Sami indigenous minority in northern
Fenno-Scandia and other northern Fourth World peoples, focusing on eth-
nicity, political movements as well as esthetic manifestations. Dr. Svensson
has published numerous articles in this field in addition to the monograph:
Ethnicity and Mobilization in Sami Politics (1976). He has lectured exten-
sively on Sami issues in Norway and Sweden, and participated in work of
official committees and international conferences dealing with northern
indigenous peoples. From 1983 to 1984, Dr. Svensson was research associ-
ate at McGill University, Montreal.
Assimilation, 136, 194, 342, 366; attitudes to- Bennett, Gordon, 198
ward, 221, 222, 239; of Australian Abori- Boston University, 109
ginals, 307, 308, 317, 354; ot Brazilian Brazil, no, 114; authoritarianism in and op-
Indians, 284; of North American indige- position to, 253, 255, 258, 261, 268; consti-
nous peoples, 84, 191, 193, 208, 225, tution^) of, 280, 282-83, 284, 285, 287;
24711.19; of the Sami, 376 government Amazonian policies, 278—82,
Australia: approach to legal rights, 298— human rights violations as social process
300, 301 — 2, 303 — 6; constitutional change in, 262, 263, 264; and Indian issues, 277-
in, 299, 302, 305, 308, 312, 320; domestic 86, 287; role of multilateral banks in, 277,
human rights legislation, 299, 307-23, 286—87. See also Indians of Brazil
347—53; historical development of, 296— Brazilian Anthropological Association
98, 302, 303 — 5; and international human (ABA), 283
rights standards, 198, 295, 300, 313, 318, Brazilian Association of Professional Geolo-
325, 340-41, 358; multiculturalism of, 296, gists (ONAGK), 283
297—98, 316—23, 326, 346; ratification of Brcnnan, F., 315
human rights covenants, 310, 319, 324—25, Bnerly, J. R., 194
338 11.158; status of women in, 341, 342, Brownlie, Ian, 194
346, 348-49. See also Australian Brundtland, Gro Harlem, 210
Aboriginals Brunner, Jose Joaquin, 270
Australian Aboriginals: assimilation of, 307, Buchanan, Allen, 137, 146, 147, 148—49
308, 317, 354; and Australian law, 302, Burke, Edmund, 26
303—6, 308, 309—11, 313, 351—52; culture
of, 303, 305, 307, 317; customary laws of, Canada, 89, 191, 196—97, 198, 202, 221; and
301, 304-5, 306, 307, 309—10, 311, 315, 316, Aboriginal self-determination, 239-45,
318; definition of, 300-301; government 300; affirmative action policy, 210, 223, 233-
policy toward, 311 — 12, 314—16; popula- 36; antidiscrimination law in, 222—33, as-
tion, 296, 302—3, 318, 346; rights of, 300, similationist policies of, 222; constitution
302—17, 326; and self-government, 307, and Aboriginal rights, 236-39, 315, 317;
312, 313, 314; status of women, 341—45, human rights record of, 95 — 97, 192, 343;
348-59 minority rights in, 84, 95, 133, 142. See also
Australian Capital Territory, 296 Aboriginal peoples (Canada); Indigenous
Australian Council on Population and Eth- peoples; North American Indians
nic Affairs, 317—18 Canadian Bill of Rights (1960), 192-93
Australian Law Reform Commission, 315, Canadian Charter of Rights and Freedoms,
349, 350, 3.52, 353 144, 149, 236-37, 238, 239, 240, 241, 242
Authoritarianism, 60, 173, 174, 180, 181, 340; Canadian Human Rights Act, 232, 243, 244
in Latin America, 253-54, 255, 256-62, Canadian Human Rights Commission, 232;
264—68, 269—70, 271 Annual Report: (1988), 232; (1989), 232
Autonomy, 93, 94; and indigenous peoples, Capital (Marx), 411, 412, 413, 415, 416
204, 206, 225, 312, 314, 333 11.95, 367 — 68, Capitalism, 92, 93, 261; in Marxist theory.
381; in liberalism, 95, 140, 141, 152—53, 173 — 74, 175, 183, 412, 413—14; and person-
406—8; in Marxism, 167, 168, 170, 171, 178, alism, 119, 120
182, 187 11.32 Capital punishment, 89-90
Ayala, Turbay, 267 Catholicism, 59, 60, 109, no, 129; in Latin
America, 257, 258, 265, 268, 277, 282, 287
Balkans, the, 146 Central America, 253, 258
Battle y Ordonez, Jose, 259 Charter of Human Rights for the Pacific
Baxi, Upendra, 108 (Draft), 324-25
de Bcauvoir, Simone, 88 Children, rights ot, 199—200
Beijing Spring, 65, 68 Chile, 415; authoritarianism in, 253, 254, 255,
Bell, Diane, 13 264, 265; evolution toward liberalism in.
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Index 471
Discrimination, 234, 243, 346, 350, 388, 417; Equal Rights Amendment (United States),
against indigenous peoples, 210, 219 n.86, 203, 340
224, 227, 241; in Australia, 316, 319, 320, Esprit, 105, 109, no, 113, 114, 115, 117
326; countering of, 230-33; systemic, 223, Ethnic minorities, 68, 96-97, 296, 297, 318-
224, 226, 227, 235, 236. See also Antidiscri- 23, 326, 363, 367. See also Minorities
mination law; Racism; various indige- Ethnoccntnsm, 38; and cultural relativism,
nous groups 24, 25; definition of, 23—24; and indige-
Domestic law, 346, 358, 394, 404, 409—10, nous peoples, 205, 206; influence of, 24,
415; and international law, 374, 375—76, 39, 75, 95, 96
378, 380-81, 382 Ethnocide, 193, 208, 209
Donnelly, Jack, 41 11.25, 81, 396, 411, 418, 419 Europe, 89, 269
Douglas, Mary, 88, 98 European Convention on the Protection of
Dulles, John Foster, 408 Human Rights and Fundamental Free-
Durkhcim, Emile, 276, 289 doms, 30
Dworkin, Ronald, 108, 137, 138, 145; and lib- European Human Rights Commission, 324
eral theory, 401-10, 418, 419 Evatt, Justice Elizabeth, 351
Economic and social rights, 7,388,394; from Falk, Richard, 9, 75, 128, 364-65; and "intol-
a liberal perspective, 137, 404; from a crabilities," 128, 129, 155
Marxist perspective, 163, 166, 169, 170, 171, False Necessity, 124
172, 173, 174, 183, 184; from a personalist Fang Lizhi, 66, 67
perspective, 105, 107, 108, 120, 122, 126, 129 Fein, Helen, 95
Economic development, and Marxist Feminist Politics and Human Nature, 345
theory, 173—75, 180, 181, 184, 417. See also Fennoscandia, 364
Economic and social rights Finland, 365, 370
Einfield, Justice Marcus, 351 First International Indigenous Women's
El Salvador, 258 Conference (1989), 343—44
Empowered democracy. See Unger, First Nations. See Aboriginal peoples (Can-
Roberto ada); Indigenous peoples; North Ameri-
Empowerment, of indigenous peoples, 210, can Indians
356 First Peoples. See Aboriginal peoples (Can-
The Encyclopedia of Philosophy, 108, loy, in ada); Indigenous peoples; North Ameri-
Engcls, Fricdrich, 173, 174,344, 411 can Indians
Enlightenment, philosophy of: as basis for Fortes, Meyer, 288
human rights standards, 45,57,58, 84, 192, Fourth Russell Tribunal (1980, Rotterdam),
193, 211; as basis of liberalism, 106, 122, 198
128; and Western cultural prejudices, 177- Fox, Matthew, 56
78 France, 105, 109, 114-15
Environmcntalism, 122, 243, 286, 287, 291, Freedom, concept of: in human rights
292, 410 theory, 396, 397, 399, 400; in liberalism,
Equality, principle of, 94—95, 168, 183, 193, 139, 406, 408, 411; in Marxism, 167, 170,
210—n, 345; in Australia, 299, 305, 318, 319, 171, 173, 177—78, 184, 413, 417, 419, 420
323, 326; and liberalism, 404, 405, 406, Frei, Ecluardo, 263
407, 410, 419; and Marxism, 419. See also French Declaration of Rights (1946), 116,
Gender equality 117, I2O
Equal Opportunities Act (1985, Western Aus- French Declaration of the Rights of Man
tralia), 320 and Citizen (1789), 116, 117, 120, 128
Equal Opportunity Act (1977, Victoria, Aus- Fruhhng, Hugo, 12
tralia), 320 Fuller, Lon, 145
Equal Opportunity Act (1984, South Austra- Fundamentalism, 45,58,59. See also Islamic
lia), 319 law
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Index 473
Human rights law (continued) Individual rights, 107, 126, 145; as basis of
44—45, 46, 393—94. See also Antidiscrimi- human rights, 82, 89, 94—95, 364, 365,
nation law; Customary law; Domestic 367, 393; in China, 70, 72, 75; cross-cul-
law; Islamic law tural perspectives on, 382, 428—29; liberal
Humphrey, John, 387 theory of, 137—55, 404—5; from a pcrson-
Huttcritcs, the, 89, 151 alist perspective, 116—28; versus collective
Hyndman, Patricia, 13, 221 rights, 83, 99, 122, 143—54, 171, 349—50,
366, 373, 404, 405. See also Aboriginal
Idealistic pcrsonalism. See Pcrsonalism peoples (Canada); Australian Aborigin-
ILO (International Labor Organization), als; Indians of Brazil; Indigenous
391; Convention No. 107, 342—43; Con- peoples; North American Indians; the
vention 169, 239 Sami
Immigration Restriction Act jyoi (Australia), Inter-American Commission on Human
297 Rights, 268-69
India, 53,54,57, 85, 171, 355 Inter-American Court on Human Rights,
Indian Act (1951, Canada; amended, 1985), 269
192-93, 200, 232, 237, 238, 241 Inter-American Development Bank, 287
Indian affairs law, 191 — 92 Inter-American System for Protection of
Indian Claims Commission Act (1946, Human Rights, 268
United States), 205 International Bill of Human Rights, 106,
Indian Conditions: A Survey, 197 128, 352, 4.11, 418, 419; as foundation of in-
Indian Law Resource Center (Washington, ternational human rights standards, 392-
D.C.), 195 401
Indian Nations Union (Brazil), 277, 283 International Commission on Folk Law and
Indian Reorganization Act (1934, United Legal Pluralism (1986), 356—57
States), 200 International Conventions on the Elimina-
Indians. See North American Indians tion of All Forms (if Racial Discrimina-
Indian Self-Government in Canada, 197 tion (1966/1975), 310-11, 319, 340, 341, 350
Indian Statute (1973, Brazil), 283 International Covenants on Civil and Politi-
Indians of Brazil: discrimination against, cal Rights, 7, 30, 31, 193, 232, 238, 340, 341;
276-77, 278, 282, 284; government colo- Article 27 of, 372, 373, 375, 376, 378
nization policy toward, 278-82; rights of, International Covenants on Economic, So-
276, 279, 280-86; and relationship with cial and Cultural Rights (1966/1975), 7,
military, 278—82; Yanomami, 277, 279—82, 340, 341
285, 286, 292—93 International human rights movement, 5, 6,
Indian Tribes: A Continuing Quest For Sur- 22-23, 38
vival, 196 International standards of human rights: in
Indigenous peoples, 48, 221; cultural sur- China, 74-76; cross-cultural approach to,
vival of, 57, 286, 363, 365 — 69, 375, 377, 378, 5—6, 15, 38—40, 179—80, 352—53; cultural
381; and international standards of human legitimacy of, 2-6, 22—23, 75, 295, 385,
rights, 47-48, 292, 342-43, 345, 353, 372- 389-93, 395-401, 427-31, 433, 435i and
76; rights of, 81, 83 — 84, 97, 118, 324, 364, democracy, 46-47, 179; implementation
366, 369, 371-81; rights of in a multicul- of, i, 55—56,59—60, 155, 295, 300, 395; im-
tural society, 296, 316, 317. See also Abo- provement of, i, 108, 181 — 83; interpreta-
riginal peoples (Canada); Australian tions of, no, 129, 394—95, 404—5, 414—15;
Aboriginals; Indians of Brazil; North and Marxism, 162-63, 165-73, 179-80;
American Indians; the Sami and rights of ethnic minorities, 300, 341;
Individualism, 93, 106, 183, 366; concepts of, and rights of indigenous peoples, 207,
98—99, 222, 276; indigenous concepts of, 232, 239, 240-45, 287, 341, 342-43, 345;
199, 202-4, 276; Marxist theory of, 170- and rights of women, 341. See also
71 Culture
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Index 475
128; versus liberalism and Marxism, 113— Resistance movements, 54,56, 264, 265,
14, 119 266—67. See also Pro-democracy move-
Personalist and communitarian revolution. ment (China)
See Mounicr, Emmanuel Rethinking Human Rights, 52
Peru: and authoritarianism, 255, 260, 261; Richstone, Jeff, 244
and human rights violations as social pro- The Rights of Man and Natural Law, no
cess, 262, 263, 266 — 68 Rivcro, Jean, 116, 120
Pinilla, General Rojas, 262 "The Road to Damascus: Kairos and Con-
Pitjantiajara Land Rights Act lySi (Austra- version," 51—52, 53
lia), 308—9, 310 Rushdie, Salman, 57—58
Pluralism, 397; in Latin America, 257, 259;
and liberalism, 141, 143, 151, 403, 409 Sabato, Jorge R, 263
Poland, 54,57, 60 Said, Edward, 59
Political humanism. See Maritain, Jacques Sami, the (Norway), 364, 365, 369, 376; and
Political violence, in Latin America, 253, the Alta Case, 371 — 76; culture of, 365—66,
254, 255, 259, 262, 264, 266—68, 270—71 370—71; land and resource development,
Positive law, 44, 120-21, 288, 289, 290-91, 369, 370, 371 — 76; rights of, 365, 369, 370,
398 371 — 76; and the Sami Association, 370—
Private property, 125, 173, 174 71; and the Sami Rights Committee, 365,
Pro-democracy movement (China), 65, 66— 372, 374, 575, 376, 377-78
69 Sami, the (Sweden): cultural survival of,
Prohibition of Discrimination Act (1966, 378; land and resource claims, 376—77,
South Australia), 319 380; rights of, 377, 378, 379, 380, 381; and
Property rights: in Marxism, 164, 170, 173, the Sami Rights Committee, 377—78, 379,
174; in personalism, 106, 09, 120, 125, 126 380; and the Taxed Mountains Case, 376—
81
Quebec, 142, 143, 147 Sami Act (Norway), 376
Quebec Protestant School Boards, 143 Sami Act (Sweden), 378—79
Queensland, 296, 303, 309, 311, 312, 319 Sanders, Douglas, 237
Sarney, Jose, 281, 286
Racial Discrimination Act 197$ (Australia), Saskatchewan, 234
310, 319, 325 Saudi Arabia, 34
Racial Discrimination Act (1976, South Aus- Sawer, Marian, 355
tralia), 319 Schcler, Max, in, 113
Racism, 95—97, 320. See also Discrimination Schlesingcr, Arthur, Jr., 87
Radcliffe-Brown, A. R., 288-89 Schusky, E., 208
Ratzingcr, Cardinal Joseph, 57 Schwarzcr, Jorge, 263
Rawls, John, and liberal theory, 137, 139, Scorsese, Martin, 59
140, 152, 155, 400, 405, 419 Secularism, 44—45
Raz, Joseph, 137, 140 Self-determination, 415, 4.17; of Australian
Realistic personalism. See Personalism Aboriginals, 312, 343—45, 351—54; and cul-
REAL Women of Canada, 96 tural survival of indigenous peoples, 222,
Reciprocity, principle of, 28, 396, 407 225, 245, 363—82; liberal thesis of, 138—55;
Reindeer Management Act (1971, Sweden; re- of North American Indians, 192, 204,
vised 1979), 379 207, 209—10. See also Self-government
Religion, 177, 178, 212, 324, 355; and indige- Self-government: for Australian aboriginals,
nous peoples, 204—5, 208—9, 230. See also 312, 313, 314, 354; for North American In-
Catholicism; Native American Church dians, 195, 204, 207, 209—10; for indige-
Rcnteln, Alison, 22 nous peoples, 225, 238, 239—45
Ren Wending, 66 Self-identification, 136; for indigenous
Repression. See Authoritarianism peoples, 237-38, 300
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478 Index
United Nations Working Group on Indige- 184; underlying causes of, 19-20. See also
nous Peoples, 312-13 Discrimination; Social justice-
United Nations Working Group on Indige- Virginia Bill of Rights, 120
nous Populations, 318, 340, 342 Volkisch ideology, 98
United States, 198, 348, 357, 402; and inter- Voluntary Fund for Indigenous Popula-
national human rights covenants, 192, tions, 342
340, 343, 410; and relationship with in-
digenous peoples, 3, 191, 196, 197, 201, Walker, R. B. J., 49,50
202, 205, 300, 315, 317 War Measures Act (1970, Canada), 134
Universal Declaration of Human Rights, Weaver, Sally, 237
1948 (UDHR), I, 7, 74, 194, 339, 340, 348, Weber, Max, 290
352; Article i of, 276, 395—97, 398, 399, Wei Jinshcng, 66, 77 n.8
406, 407; and cultural diversity, 22, no, Welfare, of the individual, 138—39
387, 395, 399-401; as embodiment of fun- Western Australia, 296, 306, 309, 310, 320
damental human rights, 67, 75, 84, 99, Western constitutionalism, 259
346, 347, 393, 396, 399-401; 411; Preamble Western democracy, 70, 340
of, 398, 399 Western influence: on China, 70—72, 73—
Universalists, 44, 154—55, 436 74; on human rights theory, 39, 45,50,
Universality of human rights, i, 6, 81, 207; 60 11.2, 75, 99, 106, 107-8, 177, 428, 429;
concept of, 5, 8, 44, 69, 87, 99—100, 431 — on international human rights covenants,
32; cross-cultural perspectives on, 3, 7, 348; on international human rights stan-
20—23, 25—26, 65, 73—76, 91, 93, 163, 169, dards, 8, 22, 75, 295, 341; on non-Western
364, 432—34; and human rights theory, cultures, 47, 175—76. See also Liberalism;
399—401; and liberalism, 155, 407—8, Modernization
409—11; and Marxism, 162—63, '66, 167— Western theological tradition, 108, 109
73, 175 — 81, 182, 183, 414—15, 420; and pro- White Australia policy, 297, 326
democracy movement (China), 66-69; Wiarda, Howard, 256
revision of, 6, 291, 432-33 Women. See Gender equality; Status of
Universal suffrage, 95 women
Utilitarianism, 120—21, 138—39, 140, 143, 155 World Bank, 287, 292
Uruguay, and authoritarianism, 253, 255, 258, World Council of Indigenous Peoples, 222
259-60; and human rights violations as World War II, 397
social process, 262, 263, 264
Yanomami, Davi, 292, 293
Valenzucla, Arturo, 254 Yanomami Indians (Brazil), 277, 279—82,
Vatican Council II, 258 285, 286, 292—93
Veliz, Claudio, 256, 257—58 Yugoslavia, 133
Victoria (Australia), 296, 306, 309, 314, 320 Yukon, the, 228, 229, 231, 232, 233, 234, 241
Violations of human rights, i, 55-56, 89- Yukon Human Rights Act, 228, 231
90, 155, 391, 415; in Canada, 95—97; and Yukon Human Rights Commission, 232;
cultural relativity, 3, 49, 180, 430; of in- Annual Report of (1988), 229
digenous peoples, 96-97, 198, 207; and
"intolerable practices," 49—51; in Latin Zapata, Francisco, 261
America, 253, 254, 255, 258, 262—68, 270— Zion, James W., n, 221
71; and Marxist theory, 162, 166, 181-82,