Can Culture Have Rights, and if so, Can They Conflict with Human Rights - Research Paper Example

"Can cultures have rights, and if so, can they conflict with human rights" The concept of human rights, equality and the respect for the rights of the cultural minority stands as one of the most pervasive liberal ideal. Liberalists have not only proliferated these ideals during the previous century, proponents of the discipline have also witnessed the flourishing of liberal principles enshrined in various UN conventions especially in the Universal Declaration of Human Rights, setting forth the principles which call for the respect for the rights and the preservation of cultures of minority groups. In the previous decades however, cultural relativists and some liberals asserted that the human rights ideals put forward by the liberalists are too individualistic and could eventually lead to the disintegration of cultural minority groups, which, ironically, the liberals 'wish' to protect. As these principles aim to universalise the concept of 'human rights' under Western-centred traditions, many contend that these ideals do not bestow rights to cultural minorities at all to practice their own customs and traditions especially when some aspects of their culture 'violate' the principles of the 'universality of rights.' The supposed 'maltreatment' of women in some Islamic cultures for instance, especially those that practice 'fundamentalism' and view women as 'unequal' with men, becomes a predicament for the proponents of liberalism and its underlying dogma as this violates its egalitarian principles with regards gender. Other liberalists contend that human rights are universal and its ideals are evident in the cultures of the minority. Still, cultural relativists have criticised the UN Declaration as too ethnocentric - one which only strives to perpetuate Western democratic ideas of human rights and equality, focusing mainly on individuality. In addition, various cultural norms and practices violate the principles of international human rights while the UN Declaration equally conflicts with some religious and cultural practices of several cultural groups. Hence, a reassertion of these liberal principles is significant in order to clarify if, indeed, under the liberalists thought, cultures are afforded and can be endowed rights and if these rights conflict with the universal ideals of human rights. The most notable assertion with regards this issue was introduced by Will Kymlicka who contends that the fundamental principles of liberalism obliges for the recognition of the rights of a group to protect cultural minorities.1 Kymlicka asserts that these principles do not violate the doctrines of liberalism; rather, he believes that liberals have to come to the defence of the minority cultures within the multicultural state. This does not project a nationalist belief but rather a reassertion of the minority rights within the larger context of the society; yet, Kymlicka also shares the view that cultures must be afforded rights to public expression. This view partly constitutes a liberal view as he argues that that cultural minority groups require protection from decisions of the prevailing majority culture and adds that the minority has to make decisions on certain issues that affect or threaten some aspect of their culture. For the author, it is not discrimination when governments afford special rights to individuals and groups base on their ethnicity as these show consistency in the practices and ideals of liberalism.2 Kymlicka goes on to assert that we have to equalise the rights and the specific compensation for the disadvantages suffered by the cultural minority. In one instance, the author uses the Aborigines minority in Australia to illustrate his point affirming that the rights the government bestow to the majority of the Australians should not be similar to the rights afforded to the aborigines minority as 'they suffer different kinds of disadvantage' and thus, different 'kinds' of rights are needed in order to achieve equality.3 Kymlicka strongly argues that any contention, which fails to accord sufficient civil rights to individuals who belong to the minority culture 'is seriously deficient from a liberal point of view.'4 The author also calls for the identification of the liberal view on minority cultures consistent with the principles of the discipline. Moreover, Kymlicka queries if the liberalists can interfere in some instances to promote liberalists conceptions on minority cultures, which do not adhere to these ideals.5 Still, problems arise in these contentions as it seems that liberal principles with regards the treatment of minority culture have not been clearly defined. This is apparent on various literature written about the discipline in which majority of the proponents of the liberal ideals are divided on how minority cultures should be treated. Even Kymlicka himself cannot define the fundamental principles of liberalism especially with regards the issue of minority cultures.6 Nevertheless, other liberalists like Chandran Kukathas contends that the underlying principles of liberalism do not need reassessment7 although he affirms Kymlicka's assertions that minority culture should be conferred protection. Even if the liberalists put into consideration the well being of minority culture, there are no satisfactory reasons to 'abandon, modify or reinterpret' liberalists principles just like what Kymlicka asserts. For Kukathas, a reassertion of the significance of individual liberty and the rights of the individuals is a more important requisite; thus, liberals must question the idea which argues that cultural minorities have rights as 'a collective group'. Kukathas agrees that minorities have legitimate concerns which need to be dealt with 'as a matter of justice,' yet, the main considerations that liberals must bring forward are not that 'groups do not matter' but there is no obligation to desert the fundamental liberal principle of individualism 'to do justice to them.' 8 The emphasis on individual and equal treatment advances the concept that it is improper even to reflect on the disparities of race unless one aims to combat discrimination and 'promote' racial 'blindness in order to achieve a 'homogeneous' society. 9 Kukathas illustrates this by stating that liberal equality does not endorse a certain disadvantaged group to invoke their rights, say on cultural protection, but refuses the same to other groups. To make his contentions clear, Kukathas declares that if under the principles of liberal equality, the Aborigines are bestowed special privileges and 'claim cultural support,' the rules similarly apply, for instance, to Vietnamese immigrants who assert their rights to cultural support. The author states that Kymlicka refuses to acknowledge the similarity of the two cultural minorities by arguing that it holds particular significance 'to distinguish the case of voluntary immigrants and minority culture'.10 However, Kukathas argues that making this distinction is a violation of the principles of liberal equality.11 The author admits also that there is a 'clear distinction' between his views and Kymlicka's which springs from the two disparate views of liberalism. Kukathas explains that Kymlicka's view is founded on the philosophy of Kant, Mill and Rawls, which asserts autonomy and individuality in a liberal society. On the other hand, Kukathas holds the ideal that a liberal society is not necessarily composed of liberal communities as this proffers solutions to the 'political problem of pluralism and social conflicts' which the universal moral ideal fails to resolve.12 For Levey however, there is no need for what Kymlicka calls 'special protection' of minority cultures as there subsist sufficient rights given to individuals to practice their cultural traditions. 13 Levey adds that 'personal cultural rights' may beget respect since it is based on liberalism's fundamental dogma - individual autonomy. 14 Still, a considerable confusion ensues, as inconsistency exists with regards the issue. First, no apparent distinction subsists between safeguarding the rights of an individual against the interference of a state or other entities and the individual as a part of a cultural group whose customs and traditions need 'special protection'.15 The only way to resolve the issue if for the proponents of liberal philosophy to give specific answers as to whether individuals can hold both rights at the same time, or whether some individuals or groups are entitled to a more defined protection more than the others and if this protection is unjust. Liberal ideologists will only be able to answer these queries if reforms take place on the fundamental frameworks of liberal ideology.16 Aiming to preserve and shield culture, language, beliefs and other traditions, the liberal approach to the rights of the minority, for instance, as exemplified in the provisions in various UN conventions, has not been put into a test. Any novel principles of human rights framework must address basic assumptions upon which the rights of the cultural minorities rest. One of these assumptions is that, in most instances, a majority group always holds dominance over other cultures in a multicultural setting.17 However, there is no considerable justification why the aforesaid obligation should not be imposed both ways. The argument here is that, why would liberalists protect groups in terms of relative size rather than for, let's say, moral behaviour of certain groups18 It could be remembered that Kukathas has put forward parallel contentions with regards equal treatment of cultures whether they constitute big or small groups. Another consideration here is that, a bigger cultural group does not purportedly lean towards ruling over or exploiting other smaller groups. It can also be said that the promotion of minority culture results to constraints on the culture of the majority resulting to the alteration and constrictions on the cultural pattern of the majority - actions not expected from the minority. Thus, in determining whether minority cultures or cultures as a whole can be bestowed rights under the liberal discipline, there is a need to cease assuming that all dominant majority cultures in a certain society practice hegemony over other cultures just as there is a need to contend that the cultures of the minority do need evaluation.19 This springs from the observation that every culture has a proclivity to discriminate other cultures and the field of anthropology and genetics might have answers as to why this happens. These explanations however, transcend the scope of this paper. The point to consider here is that all cultures, whether dominant or not, should be subjected to adjudication and investigation whether they adversely impinge change on another or necessitate the conferment of rights. This only shows that cultural rights of the minority conflict with the prevailing liberal principles of human rights since these ideals do not have a clear direction with regards the treatment of cultures. Similar confusion lingers as to which aspects of the universal human rights should be applied and affected onto the minority cultural groups. Furthermore, there exists also an argument as to which of the particular aspect of the principles of human rights should be considered universal and could be applied regardless of culture. Charney observes that universal human rights can be identified through 'transcending cultural particularity' and one of these is 'the basic principles of a liberal democratic regime.' These specifically include 'democracy and civil rights' reminiscent of 'American-style civil and political liberties.' 20 Charney suggests that these principles are universal since non-Western critics of society adhere to the ideals of civil and political rights in instances where they oppose their own governments. For Charney, these actions can be attributed to the adherence of non-Westerners to the principles of human rights as well as 'to express their political aspirations.'21 However, Bielefeldt argues that these contentions cannot be completely true as observed, for instance in the Cairo Declaration which emphasizes human rights in its provisions. The Declaration stipulates that 'all human beings are equal in terms of basic dignity' and thus, 'discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations' is not encouraged. Nonetheless it is quite confounding that the author sees the statement in the Cairo Declaration which asserts that 'the husband is responsible for the support and welfare of the family' as supportive of the traditional view of the distinctive roles of men and women. For the author, this is an example of 'Islamization of human rights.'22 Yet, the author argues that 'there is no such thing as the Western or Islamic conception of human rights' as these are political and not cultural issues.23 This results to cultural essentialism in which the concept of human rights24 is deemed Western or Islamic. This is not to imply that culture does not hold considerable weight in the advancement of human rights ideals. The author believes that culture and religion are powerful motivations on the achievement of universal human rights. Hence, the principles of universal human rights should not be seen to replace the ethical conduct which springs from cultural traditions and various religious belief.25 Heiner Bielefeldt warns that separating human rights into Western and Islamic concepts signals 'the end of human rights.' Liberalists must be wary against turning the debate on human rights as 'a rhetorical weapon for intercultural competition.' The author advances the idea that a 'critical defence of universal human rights' in such a way that it paves the way for various cultural and religious convergence of ideas on the issue so as to avoid cultural essentialism.26 However, it is apparent that cultural rights conflict with human rights. On the issue of gender equality for example, For instance Deveaux, asserts that many cultural minorities prefer to retain their traditional gender roles and 'social arrangements' which effect restrictions and subordination on female members. Yet liberalists show reluctance in affording state protection to the kinds of practices, such as 'sex-segregated schooling' in some cultures, polygamous marriages where only the males are allowed to have multiple wives and some conventions which restrict women from working outside the house. 27 The liberal response to these arrangements which do not conform to liberalist principles is to 'restrict those customs and arrangements.' Other liberals argue that cultural minorities must accept liberal ideals with regards gender equality 'within the private or domestic realm.' 28 Similarly, Van Dyke argues that the liberal ideology - 'an individualist conception' - is unjustifiably limited. To harbour assumption with regards rights, merely drawing on two-level correlations, the individual as one aspect and the state as another shows insufficiency of the liberal ideology. Van Dyke contends that human beings are too heterogeneous to think only of the individual and the state. Hence, it is imperative to involve ethnic communities and other minority groups which 'meet certain criteria' and decide whether 'legal status and rights' be afforded on them.29The author furthermore argues that the liberal emphasis on individualism 'precludes a proper theory of the state' which apparently proposes that liberalism cannot be depended on with regards the status and the rights of cultural minority groups as its principles and practices utilized in the its treatment of ethnic minorities are inadequate. In most instances, the liberalists' dogma on the rights of nations or the states and the rights of groups to self-determination and as individual entities is confounding and fails to endow 'clear basis.'30 Van Dyke observes that in some instances, the rights bestowed to a group can be reduced to 'individual rights' which constitutes liberal principles. The author adds that there is no difference in treating groups and communities as single units or 'individuals' - units bearing rights and duties.31 Moreover, the emphasis of the liberal political theorists on individuals caused the failures of the proponents of liberalism to come up with a 'proper theory of the state.' Van Dyke argues that even Hobbes and Locke merely spoke of a 'multitude of men' or 'any number of men' but never any mention of the rest of the individuals which constituted the state. Although the term 'unanimous consent' propped up in some instances, the aforementioned philosophers failed to clarify how unanimous consent can be acquired without the sanction of a group.32 Yet, even with the proliferation of the liberal theories of individualism, international agreements, conventions and treaties provide for the respect of the rights of groups, cultures and communities. This only illustrates that under the principles of justice, equality stipulated under the dogma of liberalism cultural minority, ethnic and indigenous groups are not 'justifiably' endowed with rights, although may liberal theorists contend that respect for cultural rights exist under the discipline. But what is clear in these arguments is that, liberal principles, though marred by confusion and disagreements, strive to bestow rights to cultures and individuals alike except that these Declarations have not been fully evaluated. Conflicts subsist in every aspect of the Declaration and for many, this imply that liberalists want cultures to adhere to its ideas of human rights amidst the universalisation of its underlying theory and ideals. This in turn brings impingements on many cultures all over the world whose traditions do not conform to this 'universalisation'and this results to the clashing of cultures and traditions. This brings to mind the primary purpose of liberalism which is to change cultural traditions and customs that do not adhere to its standards, 'standards that are highly suspect because, with the United Nations as its major propagator, we have seen these principles - emphasized in its programs and policies - fail in countless instances. We have also observed the pitting and clashing of these two principles, cultural rights on one hand and human rights on the other, create greater constraints on governments and states all over the world. Clearly, the principles of liberalism exemplified in UN conventions, declarations and other various doctrines are not sufficient to address and explain the issue of cultural rights or human rights as a whole. What is apparent here is that cultures can and should have rights, though often vague and undefined under the ideals of liberalism, tarnished by disunity and incoherence as these rights conflict with the 'universal' principles of human rights. Hence, in the conferment of rights to minority, ethnic and indigenous cultures, alternative principles and theories must be brought forward - theories which can create unity and foster understanding. BIBLIOGRAPHY Bell, Daniel. "Review: The Limits of Liberal Justice." Political Theory Volume 26, no. No. 4 (1998): 557-582. Bell, Daniel. "Which Rights Are Universal." Political Theory Volume 27, no. No. 6 (1999): 849-856. Bielefeldt, Heiner. ""Western" versus "Islamic" Human Rights Conceptions: A Critique of CulturalEssentialism in the Discussion on Human Rights." Political Theory Volume 28, no. No. 1 (2000): 90-121. Charney, Evan. "Cultural Interpretation and Universal Human Rights: A Response to Daniel A. Bell." Political Theory Volume 27, no. No. 6 (1999): 840-848. Deveaux, Monique. "Conflicting Equalities Cultural Group Rights and Sex Equality." Political Studies Volume 48, no. (2000): 522-539. Gaetano Pentassuglia, Minorities in International Law p. 57 (2002) Gillian Triggs, The Rights of "Peoples" and Individual Rights: Conflict or Harmony, in The Rights of Peoples p. 141 (James Crawford ed., 1988). Gregory H. Fox & George Nolte, Intolerant Democracies, in Democratic Governance and International Law p. 389 (Gregory H. Fox & Brad Roth eds., 2000). Gutmann, Amy. "The Challenge of Multiculturalism in Political Ethics." Philosophy and Public Affairs Volume 22, no. No. 3 (1993): 171-206. Kukathas, Chandran (a). "Cultural Rights Again: A Rejoinder to Kymlicka." Political Theory Volume 20, no. No. 4 (1992): 674-680. Kukathas, Chandran (b). "Are There Any Cultural Rights." Political Theory Volume 20, no. No. 1 (1992): 105-139. Kymlicka, Will . "The Rights of Minority Cultures: Reply to Kukathas." Political Theory Volume 20, no. No. 1 (1992): 140-146. Levey, Geoffrey. "Equality, Autonomy, and Cultural Rights." Political Theory Volume 25, no. No. 2 (1997): 215-248. Sachar, Ayelet. "On Citizenship and Multicultural Vulnerability." Political Theory Volume 28, no. No. 1 (2000): 64-89. Tomasi, John. "Kymlicka, Liberalism, and Respect for Cultural Minorities." Ethics Volume 105, no. No. 3 (1995): 580-603. Van Dyke, Vernon. "The Individual, the State, and Ethnic Communities in Political Theory." World Politics Volume 29, no. No. 3 (1977): 343-369. Vernon Van Dyke, The Individual, the State, and Ethnic Communities in Political Theory, in The Rights of Minority Cultures p. 31 (Will Kymlicka ed., 1995) Read More