Is the granting of group rights to cultural minorities defensible? Why/why not?
When members of minority cultures claim their cultural preservation is under threat, necessitating additional rights for their members, qua their group membership, to protect their culture, our initial reaction might receptive. We think that cultural participation and identity is an important individual right, so it plausibly follows that cultures struggling to maintain themselves have important claims to protections. But in this essay I dispute that culture should necessarily be protected, and I argue that where culture should be protected it can be done so by securing individual rights. Firstly I seek to challenge any intuition that changes to, or loss of cultural practices is necessarily bad. Secondly I consider some reasonable concerns we might have about threats to culture, and show that they are actually concerns about individual human rights violations. Thirdly I discuss more worrying types of claims some groups make, that their culture can only be protected by suspending individual legal rights of their members. I argue this is not tolerable. I contrast this to an example where the law is adapted to the needs of a religious group, to actually strengthen a human and moral right. Then I shift to a discussion of Indigenous groups who have a powerful group rights claim. I consider how this claim may be fulfilled in concert with human rights concerns, including some thoughts on how human rights risks of new sovereign Indigenous governments might be mitigated.
We should resist any prima facie intuition that threatened minority cultures necessarily should be protected, because change to or loss of culture is not intrinsically bad. There are some traditional cultural practices that are deeply rooted in sexism or that violently subordinate the human rights of their members (such as female circumcision – or, for that matter, male circumcision). If indefensibly problematic practices are lost, it is not intrinsically bad. Other, non problematic cultural practices will simply fall out of favour, as the views and needs of their members change. Cultures are fluid and evolve over time, responding to internal and external reform and stimuli (Donnelly 2006:86) which again, is not intrinsically bad. Even at a static point of time, there is frequently dispute within members of a culture about their beliefs and practices. In contemporary Islam, some women believe it’s an absolute requirement they wear the burqa, while others believe it is entirely optional to wear the radically less modest hajib. Indefensibly problematic practices and the very nature of culture as a non static entity show us that change and loss of culture does not intrinsically warrant protections.
But we should be concerned if members of a minority culture want to engage in certain practices and mainstream society obstructs them doing so. If the mainstream community is hostile or discriminatory towards members of that group, if the group are prevented from congregating in public spaces or is harassed by members of the police, then these are threats we really should be worried by. These worries remind us that individual human rights of the group’s members, rights like freedom of association, freedom of religion, and freedom from discrimination are violated by this mainstream activity. Individual human rights impose very important duties for nation states to adequately protect them, and members whose individual rights are being violated on grounds of their group membership have very strong claims against the government. In Chandran Kukathas’ view, freedom of association is a right that governments need to particularly strengthen to ensure other human rights are fulfilled (Kukathas 1992), a plausible claim when you consider it is the most socially unpopular associations (like fundamentalist religious groups or racial hatred groups) who are likely to attract hostility and discrimination from majority community. We are reasonable to be concerned by some discriminatory threats to minority cultures, but these threats can be understood as violations of individual human rights.
Some groups insist that their individual members’ legally implemented rights must be suspended or waived to maintain their cultural practices, and this is usually not tolerable. They may wish that their children’s educational rights be suspended so they can work instead, or be home schooled without government approval of the curriculum and oversight of its delivery. They may wish to actually restrict their members’ right to leave their land, or force the members’ to participate in religious practices against their will. These types of requests cannot be tolerated because they clearly interfere with the autonomy and opportunity to live a minimally decent life that human rights protect. But liberal states are responsive to claims that flexibility and exceptions must be introduced to their law making to strengthen individual human rights protections, and we can see this in examples like motorbike helmet laws in the UK. Helmet laws are utilitarian policy to reduce the threat of injury to citizens, but religious Sikhs are required to wear a turban which cannot be worn with a helmet. The laws have been amended to exempt Sikhs from the helmet requirement. We might classify this a group right, in so far as any individual Sikh would lose the right to the exemption if he left the religion, but what is more relevant here is the way the exemption is being used to strengthen the individual right to freedom of religion without compromising other human rights. Removing protections such that individual rights will be infringed cannot usually be justified by any minority culture’s claim to preservation.
The most powerful group right claim is that made by Indigenous peoples. Indigenous peoples may claim that mainstream society discriminates against them and obstructs their practice in certain ways. They may also reasonably claim that systematic tensions exist between their traditional ways of living and western state structures, which makes those practices untenable. . But we have seen these concerns are not a prima facie successful case for group rights, because it is not always bad that some practices don’t persist, and claims against discrimination and obstruction are issues addressed by individual human rights. So how is it that that Indigenous people have a powerful claim to group rights? Some Indigenous cultures have claims to self government: they have claims to sovereignty and land rights as a matter of justice. In many cases, Indigenous sovereignty and land was seized by colonial occupiers who have subsequently imposed their rule, methods and belief systems. Aboriginal Australians had made their living off the land and were no longer able to, yet their religious beliefs and cultural practices were deeply connected to their methods of living off the land. For the next two hundred years they were exploited and discriminated against without legal recognition of their moral rights, and in many cases families were torn apart by the government removing children from the care of parents and communities. So returning sovereignty and land, granting self government, to Australian Indigenous people seems simply to be a matter of justice.
But we cannot assess this case for Indigenous justice independently of human rights concerns, both of the Indigenous peoples and the peoples of the existing sovereign. If granting self government would obviously result in significant human rights violations to Aboriginal Australians or other Australians, this would obstruct the case for self government. However I do not think this is so, and the burden of making a case for this is against those who disagree with me. However there is a concern with any new sovereign state, because we cannot have much insight into what future developments regarding human rights might occur. Once Australian Aboriginals have self government, the relationship between sovereign Australia and the sovereign indigenous state is similar to the relationship between any two sovereign states. One sovereign state’s practices might degenerate in areas like gender discrimination, prohibiting political participating in group decision making (I am highlighting the most probable areas to worsen in an Indigenous culture previously denied opportunity to engage in internal reforms) and the other sovereign state could take no coercive action against those violations. Yes, the other sovereign state and international community could criticize these behaviours, and attempt to persuade the government to change, but only the most egregious “intolerable” violations of basic rights, like genocide warrant coercive intervention from other sovereign states (Kymlicka 1996).
I think we can make reasonable efforts to satisfy Indigenous rights to self government in concert with human rights concerns, and increase the chances that the future of an Indigenous sovereign state will be rights respecting. Firstly, In the case of Australian Aborigines, Indigenous leaders have long shown enthusiasm for establishing a sovereign-to-sovereign treaty with Australia. Creating this treaty is an opportunity for consultation and debate between the Australian government and Indigenous leaders, as well as the public and the broader international community. It is also a terrific opportunity to establish and maintain friendly relations with Australia which could promote future trade and tourism opportunities, powerful ways to facilitate ongoing respect for human rights in the new state. Secondly, we should not assume indigenous leaders are not concerned about human rights protection or resistant to the idea of international accountability (Kymlicka 1996). On the contrary, we should expect that human rights are an important concern of theirs, and that the international community is poised to assist them. The 2007 United Nations Declaration on the Rights of Indigenous Peoples has been developed over 20 years of consultation and reflects a wealth of collaboration between Indigenous communities and external parties, and should be taken as a strong encouragement that the international community and Indigenous sovereign states can assist each other.
In this essay I have shown that minority cultures need not necessarily be protected, and that when they should be protected this can be achieved by securing individual rights. I have done this by demonstrating that changes to culture is not intrinsically bad then assessing different types of claims that groups have made for protection. Finally, because Indigenous groups do have powerful claims to rights of self government I have examined their claim and proposed ways we could mitigate human rights concerns of a new Indigenous state.
References
Jack Donnelly, Universal human rights in theory and practice, 2nd Edition, (Cornell University Press, 2006).
Chandran Kukathas, “Are There Any Cultural Rights?” Political Theory, Vol. 20, No. 1, (February 1992), pp. 105-139.
Will Kymlicka, “The Good, the Bad and the Intolerable: Minority Group Rights,” Dissent, Summer, Vol. 43, No. 3 (1996), pp. 22-30.
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