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When Rights Clash with Cultures
ABSTRACT
Civilizations offer a range of rights: freedom or religion,freedom of press, fair trials, privacy, equality of treatment for individuals. food, transportation, shelter, clothing and health care. No society provides these rights.
Many cultures require or endorse practices that other cultures consider repugnant: creation of degrees of subservience based on birth; classification by gender, sexual orientation, religion, mutilation of the flesh; torture, while offering art, thought, and a context for expression. In some cultures, one value is the acceptance and recognition of cultural diversity.
There is an obvious clash of rights and cultural values in certain societies. Should we tolerate the practice of intolerance when considered religious, political, or cultural? What are the factors to be considered and weighed? Is there a means of reconciliation in a particular society or in general?
This article explores these questions in detail to offer an answer. After considering the nature of culture and rights, the exploration of practices focuses of four factors for resolution of the conflict between culture and rights: Irreversibility, Consent, Functionality, and Enforcement. Does the practice change individuals so that they can not choose to return to a previous condition? Is there real consent to the practice or is it coerced? Does the practice affect the
ability of individuals to function as they may want. Is it possible to enforce the practice, and, if so, what are the collateral consequences. Various examples are considered including circumcision of both sexes. Principles for appropriate resolution are then both presented and justified to resolve the examples then to give general guidance concerning how to resolve this clash when it occurs.
WHEN RIGHTS CLASH WITH CULTURES
By Jonathan A.Weiss (copyright 2004)
February 2010
Many actions personal, societal, and governmental are considered to further, diminish (even extinguish), or establish rights. In the international setting, international tribunals claim the right to prosecute for violation of human rights (without some of the normal indicia of prosecution for crimes by a state - specific notice of what is forbidden and a sovereign with direct ties to the individual prosecuted.) When Russian and the United States representatives, as ships passing in the black cold night, debated on rights, the Russians claimed they honored rights the United States did not - making sure food, transportation, shelter, education, and appropriate health care were available to all; and the United States, mainly relying on the Bill of Rights (regardless of how carefully and completely it was effectuated) argued for free speech, free assembly, due process, a “democratic” process, freedom to contract, and equal protection among others. Both can be considered rights.
I
Cultures.
It can be acknowledged that cultures (often backed by the sovereign, particularly in a theocratic state) constitute an important aspect in all individuals’ lives. (Even Monks and nun need some intercourse with the society in which they live, at least for buildings (including shelter), language for their thoughts, food, and transportation, etc.). Wars have been fought over cultural differences often with the claims that one culture was superior to another in terms of “rights”.Culture viewed in a minimal way can be seen as manifested in language, architecture, other arts, a set of beliefs, and actions and rituals associated with them. Socrates took the hemlock rather than reject the culture which nurtured him.
Rights, particularly when backed by the State, are characteristics of cultures, manifested in what is forbidden and required in dealing with others and sometimes the State. We judge other societies, historical and contemporary, by their recognition and enforcement of rights, and which rights are enforced. There are international covenant (multi-nation treaties) which purport to require recognition of rights for many groups, children, minorities, women, labor forces, sexual preferences, and the like.
It can be argued that there are no inherent or innate rights but only what is established by a state or culture as what can and can not be done, can and not be done to others with a counterbalance of a duty to the State or culture based on what they provide in these protections as human rights. The former Pope, for example in his evangelical letter on life maintained that the moral law always takes precedence over the civil law and even claims of freedom found in that law. Some contemporary and historical situations, however, seem immediately to most human beings as wrong - for example the sacrifice of virgins with their hearts ripped out into volcanos as the Aztecs are claimed to have done.
Some would put culture and the state in such a position and recognize the difference in values to deny we can judge a situation in another culture and condemn it. Rather, the argument would be that in part that it is our perception based on our culture which condemns others and the fact of our historical perspective or victory in combat (MacArthur, of course, made the Emperor of Japan publicly deny his divinity sending shock waves through that conquered country) does not give us either inherent rights we should demand apply or an understanding beyond our own culture. We, therefore, are not in a position to condemn anything that occurred or is to occur in another culture but rather respect it as having a different perspective.
A principled position, however, must be at the same time rooted in human reality, the recognition of a plurality of cultures for everyone, and state the criteria for judging something to be a right. The question of enforcement of that right, although mainly practical, must take into account the importance of its denial, and enter into any final formulation. (Integration in the United States after years of slavery illustrates some of the difficulties in this are. “All deliberate speed” a phrase the Supreme court reportedly required in order to have a remedy for segregation led often to too much deliberation and not enough speed leading. Joseph Goldstein to claimed that both practically and Constitutionally that integration should have been ordered overnight. It might also be argued that some of the Court imposed remedies caused rather than avoided so much difficulty and resentment: - “affirmative action” and bussing might not have met the opposition they did if the deliberation and effectuation had not taken so long (or at least the remedies imposed might have been obviated or diminished in extent avoiding the degree of resulting furor in correcting the historical and tragic injustice.)
On the one hand, every society seems to grant some individuals some rights (be it the divine right to rule) yet in their perpetuation required the participation of individuals to protect or further those rights. (In this regard, Hegel’s analysis of Master and Slave is particularly germane. On the other hand, there is the claim that all of us are created “equal” which would entail common rights by nature to all human beings, along with their right to certain expectation from the State and Society with which they have implicit or explicit social Contracts. (Freedom from arbitrary murder, torture, or imprisonment would exemplify the first; the Constitution, particularly with the Bill of Rights and many subsequent Amendments, could be considered a contract between the state and all in it, and between all individuals who are governed by it. The language in the Ninth and Tenth Amendments so indicate.)
Two considerations can found a discussion of rights. The first is how each individual affirms his identity and what it implies. The second is the recognition that none of us live in one culture but rather many. As individuals, we make many claims for ourselves and demands in order to satisfy these claims. We make them on other individuals, the sovereign, and the general culture prevailing where we are situated.
The most simple claim we make on others is that they recognize us as human beings, as both we and they are, and expect properly that they will treat us specially as having value that nothing else has and guide their behavior accordingly. To assert this claim against others entails its reciprocal. Those whom we recognize as human (and here we avoid for the moment, those who deny humanity to other humans) have the right to make similar demands on us (often in practice these demands may be modified by the societal status of the parties.). Each individual can therefore be seen as having rights and corresponding obligations to others like him who implicitly or even explicitly make the claims on him that he makes on them - establish a beginning and perhaps an inchoate system of rights.
We all live in different cultures. Each individual is unique. The first different culture we live in is what we establish by our actions, advocacy, and beliefs. Important thinkers, as Keynes pointed out, change what a culture or society is. Everyone has a distinctive style to which others must attend if they want to establish or maintain a connection or induce an action or statement. In this sense, every individual not only has rights but expresses them distinctively so that we can characterize that individual as having an “individual culture”. Of course, we must acknowledge that some of these characteristics are at least influenced by the cultures in which the individual expresses and expects. In particular, we also must, in practice, distinguish between custom and culture. Etiquette is made up of customs, for example, while a culture commands respecting others some of which may be etiquette, some of which may be practical for a community or State to implement (“conventional” laws as Aristotle defined them - stopping at a red light, driving on the right; Robert’s Rules of Order and the like.) We need to look to each culture for what is considered customary (defined in part by what is disapproved rather than officially sanctioned) and what is considered essential to that culture.
The first cultural entity, probably historically as well as conceptually, is the family. Each family has its own characteristics and interconnections. As psychoanalysts and others argue often what an individual is and does relates to early childhood and a subconscious partially created by it. There are rules and expectations in a family. In the traditional nuclear family (even when there is polygamy and polyandry) and in some societies, the extended family which may vary some from what might be called its nucleus. There is a wide range of constraints, encouragements, recognitions and denials, rewards, and deprivation that are inculcated and either continued in part or in whole for the child when adult some of which must be followed by the individual to remain an “official” member of the family. It should be noted that practically every culture uses names to indicate family connections linguistically (hence the Russian second names and the Spanish penultimate names in he West). Orphans may have institutional families or foster families ( often with a hunger to find the biological parents if unknown) and those in war torn states fleeing death often make up entities similar to families if the families are fragmented against the desire by members of a family to remain together in fulfillment of their familial cultural connection. Many aspects of human behavior are implanted by family activities and values expressed or lived, from etiquette to inclinations to choices of careers and associations - some, it must be recognized come from reaction to those values which still recognizes them by denial. In short, no matter how a family is defined, the nuclear and even extended family constitute a culture apart from the individual and non-family in which duties, rights, and the feeling of obligation occur.
There are cultures of associations. Religion furnishes the first example. Bound by certain beliefs about the world, nature and morality, people identify themselves as followers of a religion which categorizes, refers to beliefs and commands actions outside of the individual and family yet generally commands particular actions and beliefs to be expressed by those individuals and a family. In most societies where people are held to belong together, there are distinctive institutions to which people belong. This forms a range of second examples. People belong to voluntary associations such as clubs. People work in various enterprises with their rules, expectation, and demands which may or may not be formally formulated, but the individual knows by the association what is accepted, demanded, and what is not. People also belong to societies in which there are common assumptions even in the absence of an explicit State. Tribes, pace Hobbes, furnish a prime example where there is a culture that may endure for centuries. The Jewish and Chinese calendars are thousands of years old and cultural feuds (Irish v. English; Serbs v. Croats) can count back hundreds of years so that the animosity really can be judged to be part of the culture (if rejected, with or without personal consequences by pacifists, conscientious objectors, and others who eschew violence or dismissing people because of their backgrounds).
There are linguistic groupings. As anyone who speaks many languages or translators can attest, the meaning of words used by a group of people defines them often in many subtle ways
(This causes, in no small measure, the animosity between the Basques and the Spanish, the Walloons and Flemish, the Franco phone Canadians and the English Speakers there). We all appear think in a particular language, and surely articulate those thoughts in one language (perhaps peppered with others that should be understood by the audience) sometimes learning ourselves what our thoughts are when we express them. When we dream we dream not only in words but in language spoken.
We can generalize this proposition about language and thought.
Communication is found not only in language but in music, art, architecture, sculpture, movies, plays, parks, traffic, and the like which are distinctive to a particular group. The recognition of this fact is what led slavers to make the captured slaves walk around the tree of forgetfulness yet the slaves and even those defined by ancestry of oppression to create new musical forms, dialects, and the rest - some of which are absorbed without the origins in a broader number of people - in the United States one only has to think of tap dancing, jazz, blues, and rap music (let alone the claim of Eubonics) to find such examples.
Finally, there may be a sovereign. That sovereign’s domain is often geographical (although complicated for the reasons indicated above, in conquered territories where again some mutual cultural accommodation must take place.) Each State may have a plurality of the cultures described above while recognizing individuals as a culture, with impact on those belonging to one of those cultures, or further (as in a theocracy) one of those cultures over another - or make specific demands that infringe upon others (the “divine right” of kings. People in the state learn about it through the filter of these other cultures and may often learn it formally in schools and through means of mass communication such as the media and peer group pressure. The sovereign normally comes with the ability to imposes sanctions which lead to modifications of behavior for the individuals and in other cultures and creates a culture based on expectation of rewards, punishment, and also what “rights” that State seeks to establish, fulfill, or even deny. (We should note that after the Enlightenment an evolving sense of right to a participatory government has arisen as an ideal - at the minimum the selected leaders, it can be argued, should be visible and accountable. In the United States, many believe the Constitution and Bill of Rights protect such a right as fundamental with an implication of other rights.)
Related to these is also the right to belong to a society (while some freedoms may be diminished in that society if transgressions by the individual are sufficiently grave.). Society provides the occasion for the other associational rights and allows a means of establishing them. Patriotism is considered by many among the highest virtue. Societies generally provide governments which establish principles by which people can live more in harmony. It is true, of course, that there is the tension which this essay addresses, often found of societal claims conflicting with the assertion of other rights but that does not imply that a right to belong to a society as creating a context for other rights and human harmony is not one of the many rights cherished and important.
ii
Rights.
As suggested above, different states and different societies accept and protect different rights (albeit with a range of meaning in practice or enforcement by sanctions.) If we base our ethics on the mutual affirmation of humanity, it follows that the right to life should be universal. (For those who transgress the norms, states and societies have a right, to isolate them in such a way that they will not repeat such transgressions. I discuss this theory at length in my Philosophy of Punishment). But mere existence without anything more should not and is not considered sufficient in any known society or state (although the “untouchables” and Tibetan Buddhist burial “untouchables” come the closest to such a state.) Since the right to culture is one of the rights, a compendium of rights must not only include it, but we must also have, as a result, criteria which allow us to condemn, reform, and reject what states and societies impose as violative of the meaning of human life. (Of course, purposeful murder, execution, and sacrifice are easily condemned from this point of view.) To the task of defining what those rights are, we now turn, trying to keep in mind how hard it is to penetrate to other individuals’ belief systems and the rationale of societies’ values - a task made easier in part if the practice can be characterized and is accepted as a custom not a value.
Rights, beyond that of life, can be grouped in two different ways suggested by the USSR -USA debates mentioned earlier. We can understand the first set of rights as those which are essential to conduct a life so that other rights can be exercised. Someone who is starving or without clothing, and often without health care and transportation is either unable to exercise any rights or affirm his human identity or much handicapped in this effort. The family unit, the various social units, and others we have described above can supply these needs. That these needs must be supplied is a natural consequence of the sanctity of life since existence may be either extinguished or rendered so marginal that other rights may not be exercised or enjoyed. In a broad sense they may be considered pre-suppositional rights. To this grouping we can add slavery or employment that approaches involuntary servitude and thereby prevents the person from affirming his identity through the use of other rights. There are, unfortunately, societies in which bare subsistence is the rule. What this illustrates is that the loss of rights is not only caused by human actions (although some human actions may ameliorate or completely resolve this deprivation) but by nature and environment. In an analogous way, we consider handicapped people as limited in their exercise of rights in the dimensions in which most people do not have their limitations. A society no matter how conceived should serve the function (particularly if there are differences in the wealth of groups) by providing these minimum rights necessary for a person to be able to live not only a decent life but a life when choices about the non-subsistence questions are not dominant but somewhat fulfilled. (This thought has been expressed as “To each according to his need; from each according to his ability.”) We affirm a duty to the “unfortunate” in our charities, in our immediate response to those in need we see in emergencies, and by working with a State or Societal leaders to provide those necessities required (or presupposed) for a person to affirm his humanity freely and participate in the various institutions where the context may be supplied for further freedom, self-fulfillment and creativity. In this imperfect world, many do not have these rights and lead lives of misery with limited pleasures and possibilities - if any at all. In this sense, the ideals (if not always realized in practice and often elevated over other rights to justify actions) of Marxist doctrines as invoked indicate a range of essential rights requiring recognition as a pre-condition of freedom and other rights.
On the other hand, there are spheres of activities in any grouping which can act as a sovereign which may create a means where these rights are universally or almost universally available- when people have the necessities to life as well as the right to life. The enlightment thinkers whose principles helped form the principles of the United States Constitution and Bill of Rights (thought by some to be implicit in the Constitution itself - and traceable in part to the British document in 1689 of William and Mary)). One right which directly reflects the mutual acceptance of human demands by humans is in the creation of the State itself. Democracy is rooted in Article I, Section 10 where the right to vote is guaranteed. (That to the American shame, democracy was denied women and blacks, the grievous error was based on the erroneous proposition that neither group were really fully human. - We do know that children grow and reach maturity at ages for which the earliest is the late teens in most societies and therefore deny them the franchise - but there we operate on common knowledge rather that prejudice as to what characteristics are essential for voting.)
For the purposes of this exploration we need not engage in a list of all Constitutional rights and perhaps add others that should be included but recognize them as falling into two groupings (to which further Amendments might and have added such as woman’s suffrage.) They are (1) freedom from (2) freedom to.
In the first group (from which Justice Douglas found a “penumbra” which would have been better expressed as - implicit in their combination) which includes but is not limited to the right not to quarter troops, the right to bear arms (properly defined and with sanctions for any involvement in a crime), the rights to due process and equal protection, the protection from (unwarranted) search and seizure, and the right to bail to allow freedom before a finding of guilty, etc. More recently it has become necessary to add Amendments to overcome Judicial and legislative restrictions on the definition of human and enfranchise blacks and women. Finally, the 9th and 10th Amendment rarely invoked (although ably discussed by Justices Murphy, Douglas Rutledge, and Black - assert that there are rights which must be protected that are not explicitly formulated but inherent and implicit by their nature for all individuals -and in the American system some reserved for lesser sovereigns like the State).. For the purpose of this analysis, we can say, at the minimum these individual rights are the rights people require in order to function, and that the rights accorded to the States are those not pre-empted by the Constitution or its amendments but deemed essential to the enjoyment of freedom from restraints (unless as we have suggested above, the person interferes in the rights of others, justifying restraint probably by incarceration.)
The rights to are expressed in clear language. (Although the First amendment refers to Congress as circumscribed, a reading of it with the 9th and 10 leads to its relevant to the subsidiary sovereign on the individual States.) They include freedom of speech, religion (when it is not used to limit other peoples rights as I analyzed it in my Police, Privacy, and Protection “Religion” in the law, and of assembly. The right to vote, protected by later Amendments, falls within this group.
It is in these American Constitutionally protected areas (among others) that people have freedom for artistic and political expression, meeting to exchange and enjoy arts and ideas, practice with others the activity of the faithful, and participate in a democracy (the eligibility of candidates in general accepting that certain qualifications are necessary so the person can work on behalf of others as well as work for his own political convictions and commitments). For those of us in the privileged class who are neither oppressed nor deprived of essential conditions for fulfilling ourselves, these rights take on great importance so that many organizations devote their time in defending the “Bill of Rights” and other connected concepts. Equal Protection not only protects from unjust imprisonment or exclusion as does due process and bail as stated in the Bill or Rights, but also creates an affirmative duty (now clearly explicit in the 13th- 15th Amendments and associated Statutes 42 USC 1983 et seq) in many areas such as employment and education particularly if there is state involvement (even in the enforcement of apparently individual rights when the Courts are employed as stated in Shelly v. Kramer. We need not enter into a general exposition and defense of the Amendments individually, collectively (or what they imply or suggest as Court, legislative, or administrative “law” but state their existence creates contexts in which people are free to fulfill themselves and their potential. Just as we started by the mutual affirmation of human value we can assert that as people who are subject to a State or Sovereign have “duties”, the reciprocity on a societal level is these rights to be free of inhibitions and free to fulfill what individuals seek. (Again with the caveat of not interfering in other rights of equal worth that all others in the grouping enjoy). This summary of the American structure is somewhat paradigmatic and in any event can serve as partial model for analogous formal and written frameworks in which individuals act, express, and have recognized rights
The reader need not accept all elements as stated as rights but merely acknowledge the existence of this grouping of rights: freedom from debilitating physical conditions; freedom from restraints which deny human freedom or punish for its past exercises, and freedom to have public discourse and private creativity publicly available if an audience is sought and can be found protected from outside interference in private or public display. What we now must focus on after this condensed survey is how these categories of rights may not be denied in principle although the history of humanity contains an almost infinite exhibition of how they have been trampled upon.
iii
Irreversibility
The cliche “You can’t turn back the clock” (even with a return to standard time) can be applied to those practices which have a permanent effect upon the individual who undergoes them. As stated above, the extinction of a life is one of them. From here the rights the Communists used to urge as to minimum rights, food, clothing, shelter, and transportation at an adequate level come into play as necessary for a life with the possibility of action and acceptance of other human beings.
The right to have a culture entails as the description of culture implies, the right to associate with other human beings in various groupings with various characteristics. It further implies that the role of a State in part is to protect the individuals so they can exercise these rights and protect these rights by various mechanisms.
Once a culture establishes or recognizes the range of rights which must, at the minimum, include these characteristic, it is clear that individuals have a right to a range of freedom to enjoy those rights, contribute to society, and fulfill themselves if possible. Because of this, the State may limit the right of freedom by restraints, as indicated above, (and discussed in my article on the Philosophy of Punishment) in order that others may have these freedoms, and with those restraints, accept the responsibility of attempts “rehabilitation” so the individual, if possible, can return to the society and state without posing a threat to the rights of others (with a high degree of certainty). This of course is the obverse of the original proposition that ethics if founded on the mutual acceptance of humanity between individuals. It also recognizes the implicit limitations of “punishment”, of the malleability and possibility of improvement in the vast majority of individuals. (Further, it invokes the necessity of “due process” - in the United States which indicate the necessity for presuming innocence and proof of “guilt” beyond a reasonable doubt since freedoms and participation in society are being denied or curtailed.) Of course as the Slavers and Nazis demonstrated, it is possible to deny humanity to those who are human. Some of course affirm humanity for fetuses at some stage of creation or development.
There are also cases of people who lack the characteristic of normal functioning human beings through some lack of capacity or deformity. Although these considerations may dull the edges of the classification as human, we need not get into precise definition at this time although the issue of enforcement will arise - rather we can suggest that humans are characterized by a biological commonality as revealed in DNA and responses to human beings in ways that other humans respond to each other - in affection and rejection, in emotions and expressions, in immediate appeal to other human beings as one of them. (It is here, of course, that the right of fetuses and expectant fathers becomes so difficult with women who undergo transformations psychological and physical in child bearing. Perhaps the stage at which we assign rights are at the time in development, if possible, of those non-DNA characteristics, to the degree that the fetus can survive with proper treatment outside the womb- I only suggest this solution in an area so difficult to resolve.)
But society, tribes, cultures may engage in acts which rather that recognizing and even strengthening the bonds of associations or the foundation of rights, impose certain conditions or use of human bodies which are irreversible. Here is where we may judge others as violating rights or the society in general of denial of rights by what is done to the human beings - an area where distinction between customs and asserted societal prerogatives can become crucial and is often a subject of intense debate - which we need not answer but leave to the particular societies and states which included them. (Of course, here enters the problem of minority society in states and their insistence on individuality and individual rights which may clash. The Bill of Rights and other sections of the American Constitution, particularly as interpreted by Justices Black, Murphy, and Douglas form a starting point for the recognition of such individual and group protections from the majority norms.
Properly enforced, as I have argued elsewhere in Posture, Privilege, and Protection: ‘Religion’ in The Law - and other related articles, such enforcement will only resist rather than impose consequences on those whose enforcement is denied. Viewed from this perspective, freedom to fulfill oneself without infringing the similar rights of others with whom we have varying degrees of mutual affirmation of humanity becomes a right. Because such a freedom exists for individuals, it is crucial that such freedom becomes protected - serving as one of the reasons for forming a state with powers to protect, enforce, and to some degree inculcate the value of freedom and respect for others.
Viewed in this light, the right to life, already mentioned is fundamental. The freedoms associated, however, are not necessarily so clear. Even if we include participatory democracy, as can be argued, as one of the freedoms, it does not dictate the form in which people can effect the State. The inclusion of participatory democracy (with its American implication of “equal protection” functions to enable not only the existential act of affirmation of belonging to a society and a state but also as a means of safeguarding individuals from the arbitrary actions of those in power - invoking the ideal of accountability and visibility for those who can effectively control, limit, or effect the actions and rights of others. Yet. the voting in of a theocratic state can result in many consequences where outsiders perceive those who are under such a sovereign would perceive rights as violated - a clear contemporary example is the restrictions imposed upon women in Moslem states from exclusion from regular learning, regular movement, and imposing dress clothes. (Here, of course, is where a distinction between custom and culture could come into play. Yet most such impositions are justified by reference to sacred scriptures interpreted from one perspective or by one or more individuals in power.) The line must be drawn between the required (or forbidden) practice and the enforcement of sanctions. If the sanction is irreversible, be it maiming, torturing, or stoning to death, we may condemn it as a violation of human rights.
Yet there is another range of imposition which may be considered essential and not customary which is not a response to an action or statement but rather instead a mark that the individual belongs to that society and perhaps the sovereign which supports and sanctions it.
Here we also get into the issue of subcultures (the 1960s offering one historical example of “counter culture” particularly in the United States.) For in theocratic societies conditions can be imposed to which minorities object on the grounds of human rights and freedom, viewing what the majority does and seeks to impose as an intrusion of what should be a custom. It is here that irreversibility enters and where the argument that “escape routes” or even “tolerance” of non-compliance must be offered. (Yet as orthodox Jews demonstrate in Israel by stoning those who are also Israelis not violating any law or prevailing practice, such an ideal may be easier to formulate abstractly rather than to require in practice. Perhaps one should arrest and imprison those who injure the non-orthodox Jew who enters the neighborhood, perhaps integration should have been immediate rather than with all “deliberate speed” (too often with too much deliberation and not enough speed) but there were and are countervailing considerations of the effects on those involved and perhaps on the society as a whole at such actions.
Dress codes are reversible (although the argument still may remain about the rights of minorities to violate them.) Other changes of appearance are not. Yet, many are not customs, but signs of belonging to a tribe, society, or religion. So Native Americans scar themselves in religious ceremonies and dances; tribes insert neck bands to elongate necks, tongue plugs, piercing etc. Some also engage in extensive tattooing. (It is some of these practices which in fact become part of a “counter culture” in a democracy with an emphasis on individual freedom, but such a factor need not be determinative as we shall see.). Others resist what a society and state offers in the way of medical treatment (sometimes with better results than medicine may have provided) and in some states euthanasia is forbidden on many grounds (including the “slippery slope” of related medical ignorance).Some religions circumcise males, and some females in varying degrees of deformation. These decorations and circumcisions (with results usually unseen) are often defended as central to a religion and therefore accepted even by those outside the religion. Irreversibility is therefore only one factor to be considered. Its justification that it protects the individual from external deprivation for all time of what individuals may consider a freedom, possibility, or essential to their own identity (at some time in their life) is therefore not yet enough to counter religious or societal claims since they are often considered a requisite of belonging (imprisonment offering an example of a non-permanent irreversible facet as freedoms are lost which may never be available again.)
It must finally be noted that there are times when the culture is one in which denying rights is interwoven so that the denial is justified as cultural with nothing else. Such was the case when the Civil Rights Movement exposed the racist (and anti-woman) basis of much of Southern “Culture” (more than “tradition.”) It was brought to its head by the Mississippi Freedom Democratic Parties refusal to give in to the “culture” of politics staging a sit-in and refusing compromise pressed on them from the President, the would-be President Hubert Humphrey, creating a symbol that continued to resonate as their demands liberated others. If anything can be said to be morally pure, the insistence on integrated equality is just that. The fact that it tore asunder the tapestry of southern culture and the political culture of accommodation did not and could not justify any compromise. Perhaps the Civil War was evil in ways beyond its carnage; but the non-violent assertion of rights, in this instance (and others) properly overrode cultural claims.
iv.
Consent
As indicated above by references to “counter culture” some activities concerning the body or appearance are done voluntarily. One form of masochism involves cutting or putting pins or other objects in the body, and other transformations from biological nature. Plastic Surgeons make a fortune. Make up and fashion are often crucial and even obsessively pursued. Tattoo parlors in some countries do a thriving business. Many tribes are characterized by uniform different appearances permanently in place by nature or by continuation of the practice that created those appearances - often to distinguish them from other individuals outside the tribe. (Let us not forget that the acts that created “marks of servitude” invaded human rights.)
We should assume for this discussion that the changes are not minor, not customs, but objectionable to some of those who may view or manifest them. Societies, through the State generally, forbid a number of these practices: tattooing, scarring, piercing, maiming (including circumcision), and some other mutilations, nudity full or partial, as well as sexually suggestive appearances, expressions, and associations. It is a this point that the question of consent becomes crucial in both our condemnation and the use of the State to “protect” individuals.
It may be difficult in practice to distinguish between imposition, coercion, and enforcement over actual or potential involvement. The age and capacity of the individual whose appearance or body will be irreversibly changed musts come into play. (There is, of course, the associated change and formation -indoctrination often called “brain washing” by those opposed to various religions, cults, and groupings. These require an analysis of how crucial it is to the family particularly in a pluralistic society and one in which alternate means of rearing are accepted in the range of beliefs.) Certainly, fetuses, infants, children, and even adolescents often are not capable of consenting to what will change their appearance. This category, therefore, includes what can be accepted or done voluntarily by children or adolescents but upon careful analysis can be shown to be coerced by external forces requiring a sophisticated analysis.
Consent is often invoked. Children say “you promised”; lawyers and Judges try to enforce contracts as an exchange of “promises” (sometimes in the form of “goods” to be delivered, etc.) while membership in various groups. There are formal statements of consent and informal actions or statements of consent. Sometimes consent is considered “objective” as in the law and certain religions, societies, industries, as a condition of belonging. Sometimes it is an informal consent which is understood by others as consent (The Brothers Karamazov explores layers of such consent to the patricide starting with wishes, continuing past Ivan’s receiving a wink, the various involvements of the brothers with each other and the father.) Understanding what is subjective consent that founds reliance or action/forbearance (and the extent of what is covered by formal consent) must be examined as practical issue. The acceptance of a State, for example, need not made as a formal but rather implied consent. The enjoyment of families, institutions, societies, language, and the receipt of the necessities of life often are used to imply informal consent. Yet, on the other hand, there are ages beneath which consent is deemed impossible, and gradations in what full participation in a society can require what level of consent. (If one is incompetent to understand right and wrong, we deem that individual outside the criminal law with its implicit commands implicitly accepted in order to confine the incompetent as a protection for others’ freedoms while recognizing the inapplicability of criminal law.) Some countries deny the right to drink at an age later than the age threshold for the army or voting assuming the rights and consents can be treated separately and balanced against other social necessities. It is clear, however, that infants and even children, and up the scale may not be capable of consenting to actions that effect their rights both to subsist in an adequate fashion, to be free from constraints or changes that do not inhibit similar rights of others, and freedom to associate, participate, and create. Any deprivation of right without consent no matter how the categories are filled is, at best, highly suspect and requires justification as central and crucial to the freedoms received and accepted - and such deprivation must be commensurate in scope and meaning in order that we can maintain the highest degree of mutual affirmation of humanity, and mutual cooperation between the State and the Individual.
v.
Functionality
In assessing the impact on someone of a restriction or loss of a potentiality, the importance even in some instances of consent must be assessed if it is irreversible. Irreversibility, of course, need not be permanent. Someone who is chained, has an ankle bracelet, is in a dungeon, or behind barbed wires and bars as we normally cage animals loses, during the period of restraint some freedoms which may not become available again, as we have remarked above. The governing question here is whether the punishment protects society from acts which destroy freedoms, whether the person’s treatment is humane, and if possible, rehabilitative, Legal issue of due process and equal protection also enter.
An analysis of imprisonment on a comparative social basis, however, need not be entertained here. For even in an occupation rather than a normal sovereign, the criminal law is an internal operation when justified as protection. If torture and capital punishment, however, are part of that system, we may judge them both as wrong in their denial of the essential humanity on those suffering (going beyond the need to protect others) and even extinguishing life which is a presumptive state for making any moral claims. (Other goals - retaliation, retribution, spectacle as creating fear to prevent other acts are adduced sometimes to justify capital punishment and torture.). Here we deal not with the criminal codes of societies or states (although punishment may result for non-compliance) but rather those irreversible, non-consensual, impositions on individuals which effect their nature and appearance.
There are those changes in appearance to which there is consent but which are essentially irreversible. Tattooing (although sometimes removable in societies at the expense for laser treatment) furnishes a ready example. In many societies and subcultures, Tattooing is considered an essential part of decoration and may be done by an individual mature enough to make such a decision. In these cases, peer pressure also comes into play as individuals are expected to embroider themselves with such markings so that the existence of consent need be evaluated. The most that may be said, in this connection, is that such irreversible changes should be carefully scrutinized to make sure they are entered into consensually. A state or society certainly should be able (and perhaps encouraged by others outside the governing entity as protecting individuals from adverse judgement when they enter a world much broader than they inhabit.) Tattooing, although decorative, does affect the way the others view the individual and the individual himself to merit careful scrutiny. It should only be countenanced when truly voluntary.
Beyond tattoos are similar acts which effect the individual permanently. The tradition among the Chinese of binding feet to make tiny “flower feet” which are painful and distorted furnishes an ancient practice now forbidden and we may note that it starts before any reasonable age of consent. Certain tribes engage in practices of scarring, of neck elongation, of plugs in the tongue (it should be noted that some individuals undertake these deformations voluntarily in ,many countries where it is not imposed by the society.) It is possible on the grounds of non-consent and irreversibility to judge such practices as wrong and even have the sovereign forbid them. But here is where the two alone may not be sufficient. For, it is here where functionality enters. If the decorative change forever prevents the individual bearing such changes from doing something that all unless deformed by birth can do, then we may say it should be forbidden - as in the case of Chinese foot binding.
This leads naturally to the topic of self-mutilation by adults who have normal mental capacities. Oedipus ripped out his eyes; individuals seek and receive sex changes, lovers may castrate themselves as a love offering. Surely these are all irreversible but since they are voluntary and not even imposed, the question is whether they should be accepted or sanctioned and if so by whom on what grounds. Functionality enters at this point. If the mutilation is so extensive that it makes the individual unable to carry out the normal activities of at least part of mankind such as chopping off hands, feet, destroying a sense (eyes, ears) etc. then it should be condemned. For that person has not only limited himself in what he can do, he has voluntarily limited his normal humanity in such a way as to adverse effect his reliance on the mutual claim of humanity made upon each other. (Those born with afflictions, we know are still human and when they need more, they make that claim upon us in varying degrees and possibilities - our empathy may even be more stirred). Moreover, individuals as we have remarked make claims upon society and states for many benefits including the rights we have outlined as freedom from and freedom to - with an implicit commitment to contribute to that society. By voluntarily decreasing their ability to function irreversibly, they make a demand that they can not justify since it is neither a right to or a right from but diminishes their functionality in the world.
Each self-mutilation must then be examined in these terms. Oedipus may have made a dramatic gesture but he imposed himself upon others. On the other hand, those who are clearly mature enough to decide upon their sexuality which affects their personal character but does not affect what they may do elsewhere in the world (except indirectly by the drastic change in their human nature as a sexual being) is not per se condemnable. In the case of irreversibility of the activity it must be clear that the person can knowingly consent, really himself wants such a change, does it himself, or clearly consents to others doing it to him. Decorative self-mutilation when irreversible may be acceptable if it does not impose burdens on others or interfere with the person’s normal functioning with all rights granted by nature and context and important obligations, indirect and direct. As we suggested above these considerations enter this category even when the society condones it, as every member of mankind is a member and there may be instances where the decoration by self-mutilation will prevent entering into another society, fulfilling obligations to families or other associations or leaving the one where the self-mutilation occurred. The degree of change is also crucial and is the question of whether some such as scarring may be covered up for all but ceremonial purposes. Each act’s consequences must be examined in the light not only of consent and irreversibility but also that degree of difference and effect on functioning in diverse societies.
Another counterbalance exists. In a society which protects freedoms, there may be diverse acts which bother others and even do damage to the person engaging in the activity. Smoking may harm all with whom the smoke comes into contact. Other drugs may only harm the individual himself. Dress can distinguish individuals in society as can decoration with adverse consequences. (In these latter two instances, the activity can be changed and reversed) In a society which protects freedoms to the act as long as if affects no one else’s freedom from (as, for example, secondary smoke may) such activities should not be forbidden. That in part is the function of the rights we outlined particularly those contained in the Constitution and the Bill of Rights. At this juncture the conflict of rights - that of a subculture and of the family may enter - as in required modes of dress in public and in school, involving not only the invocation of consent, and functionality, when there is reversibility when an individual may be of age to consent or not to consent. Here it is on the sovereign to show that the difference effects the growth of the individual so negatively and excludes the individual so thoroughly from engaging in the society that it may condemn them. We allow nudists in groupings but prevent them from parading because of the effect upon others in a society and their ensuing separation - other changes may also be condemned. Yet, in all analyzed we must be alert to all rights, individual, societal, citizenship, and familial. These may clash and therefore must be subject to a complete analysis and attempted reconciliation to the greatest degree so that reversible rights receive the maximum recognition yet not necessarily permitted.
In this context, an argument against capital punishment may be made. But it has been made so often and ably that we need not repeat it but note that it is irreversible, almost universally done without consent, and destroys any functioning.
Without consent irreversible consequences of acts should be condemned as changing to the nature of the individual. Thus we may affirm that children should be fed properly as a right because otherwise they will not mature properly. The denial of free expression will wrongfully prevent someone from fulfilling himself. The rights outlined above should not therefore be curtailed except by consent even in choice of life style. Yet, as we pointed out some rights may clash with societal values and norms. What we argue here is that the lack of consent to irreversible consequences must be condemned until the individual(s) effected can accept or reject.
It is not only death, starvation, and repression which effect functioning but also mutilation. Among the most controversial is male and female circumcision. In the case of Jews circumcision comes at infancy, in certain tribes like the Masai the sawing off of the foreskin is a test of manhood and done at the onset of puberty. Circumcision is then done not at the age of consent. It also effects sexual functioning (as well as physical appearance - something taken note of by the Nazis) by removing a protection to the penis diminishing the sensation and control over ejaculation. With voluntary self-mutilation, consent serves as an important factor without it. This irreversible loss of functioning may be forbidden by the state or society. (It should be noted that many Jews during the holocaust did not circumcise their male children on the eighth day after birth in order that they would better escape detection and execution recognizing the primacy of the appropriate time -survival based- as underlying the other rights claimed by individuals, society, and families, cultures and other sources of rights and obligations.)
The similar argument can be made for female circumcision which can run a large range from extensive mutilation and closure of aperture to much less alteration of the female genitalia and their ability to form a source of pleasure and potential of parenthood. Here too we do normally not have the consent of the individual so that the governing body can step in to prevent such practices. It is often common to distinguish between male circumcision in societies where it is prevalent and female circumcision where it prevalent with those who practice the former condemning the latter but the same analysis obtains for both, irreversibility, lack of consent, and loss of functionality. But such a distinction can not overcome the fatal flaws of lack of consent and irreversibility so they should be equally condemned as wrong although rights claimed as part of a culture or religion.
vi.
Enforcement
There remains one practical obstacle to the complete implementation of these principles which offer factors and condemnation based upon irreversibility, lack of consent, and loss of functionality. In certain religious groups, for example, circumcision is a religious ritual or rite of passage. In certain cultures, certain decorative practices are universal and expected. Certain families hold to certain principles.(The United States Supreme Court allowed the Amish to take their children out of school at an early age to engage in agriculture.) Confronted with these insistencies from groups which form the sources of rights, can the state or society condemn them on their characteristics when use is widespread (and even accepted by other groups, even authorities or majorities as expressions of freedom and diversity)?
Complicating this matter subtly is the vast extent of horror promulgated in the name of various rights. At I write, the United States justifies mass slaughter and occupation of Iraq as bringing them the honor of democracy. Four crusades in the past resulted in mass exterminations of culture and people as the Christian sword cut deep. These examples needless to say can be multiplied. All invasions and occupations no matter how just result in the loss of life and destructions of ways of life. What deprivation of rights justifies such activities where armed forces act against claimed rights to impose the “rights” that the conquerors hold superior? Condemnation need not predicate action against a people. Perhaps the extreme point of denying life such as the Aztecs murder of virgins or forcible castration of humans preventing the possibility of life (with no implication as to the debate on abortion) could justify the country with superior force from imposing restrictions from outside the culture even by force - a limit point to be justified very carefully from the general proposition that war itself is a crime and claims of superior values only excuses for murders and profiteering.
Allowing individual groups’ practices condemned by others for the reasons we have stated has many problems even when widespread. The sacrificing of humans, the binding of feet, the early mutilation of infants may even be at the heart of some family and religious structures but that would not seem to exempt them morally or prevent the governing body from allowing such non-consensual practices to prevail. Thus societies can pass laws preventing any infant mutilation or even early teen mutilation, be it male or female. We may judge the practices in other countries try to put pressure against those practices. That is one of the functions of the International Covenants for rights generally offered. Multi-culturists, on the other hand, would say the difficulty in enforcement indicates different societies have a right do different practices and customs which we may not judge or deny - including those sub-cultures in a pluralistic society as those practices are considered in those sub-culture as essential to their identity and continuation. The argument urged is that we would only drive these practices underground while destroying important constituents of central rituals and beliefs in action which hold people together and provide individual identity in a group. (The Jews have circumcised for thousands of years under oppression and often underground. The prohibition of their practices has failed and circumcision is one of such practices.)
At this point, perhaps the issues of enforceablity and functionality may intersect. If the loss in functionality is slight yet the practice extensive in some group so that its eradication seems almost impossible, perhaps such a “minor” mutilation in view of functionality might be countenanced. Here is where some analogies to abortion and capital punishment come into view. In forbidding abortion (regardless of the rights of fetuses or women) ends with a large group of poor women either butchered or condemned to abject poverty forms one reason to condone it Among other reasons, Capital Punishment too should be abolished not only because of the deficiencies in the penal system and prosecutorial abuses, but also because it falls so heavily upon those of non-white color and poverty. The essential problem with such a position is that it grants (or implies rights) by the weight of numbers - why should not one person with such a view be given the “right” others might have or have elsewhere because of their numbers rendering enforceability an impossibility or rending the fabric of the State. Here the balance may be struck on a case by case basis accepting practical allowances as unjust in principle but permissible because of larger consequences to the fabric of the State. (An uneasy compromise since the important rights in a Constitutional Democracy such a “free speech” may be excercised by only one person. So a distinction between must then be made to preserve those rights for only one person on its crucial nature involving the bases of a proper living and a participatory involvement in the government.)
One immediate problem is that flowing from the lack of consent. The individual, for example the circumcised male, will be different in form and function in life. At the same time, others in that society will escape solely because their family operates on different principles. (In the United States such an exemption threatens the separation of Church and State as well as equal protection - almost as clearly as a “faith-based” preference does). So what can be done?
One answer is that the governing body should condemn all irreversible practices, done without consent, and effecting functionality. The question is what the sanction or protection would occur children when grown sue their parents for damages? Can we imprison those who engage in rituals sanctified for thousands of years practiced both on men and women? Beyond that condemnation, we can argue we are able, as a result, refuse to provide groups the means of depriving of these rights. (To overcome such refusal, a thorough empirical argument that it would fall unjustly on people not because of the religion but because of poverty). One doubts that widespread practice can be outlawed overnight. Even an evil such a segregation still is in effect some 50 years later after it was to be abolished by “all deliberate speed.” Yet it seems the logic of our analysis is that the State should condemn circumcision and all mutilations when irreversibility, lack of consent, and effect on functionality occur. The implementation of such a condemnation should take into account its difficulty in enforcement to be countered by the society condemnation and refusal to facilitate. Other intrusions into individual rights should be easier to see free of family and religion, and more extreme in consequences. Their usage should therefore be condemned and as rapidly as possible be eradicated. (It should be noted that the rate of circumcision dropped notably when insurance companies refused to pay for them although, of course, the ritual continues among American religious jews. ) In should also be noted that another persecuted group, the Gypsies reportedly mutilate their children so that they become better beggars. This type of mutilation may invoke even stronger censure than that of circumcision.
A rather strange result seems to obtain. We could say that there are rights which are and should not be enforced for even they are non-consensual, counter-functioning, and irreversible, they run against practices maintained as essential to the society or other institution that insists upon their causative acts. We certainly can make a distinction between invasion and the political state forbidding. In the first people die, in the second there are a range of sanctions to be applied (as we see in the enforcement of the no-scarf rule in France at the present time.) The range of sanctions should be imposed taking into account the extent of change, the extent of functional laws, and the clear lack of consent. For the State to impose great punishments seems wrong. On the other hand, the State should make them forbidden. Hence, for example Jewish circumcision should not be tolerated in hospitals, education about its harmful effect and reasons to have consent should be promulgated, but the sanction for activities in a home could be minor or perhaps mainly symbolic. With the hope that anti-Semitism, racists, anti- arab or anti-Muslim sentiments will not be inflamed and increased (one only has to look to the 15th Century in the Hibernian peninsula)the state in which individuals engage in these acts should be able to legislate against them and impose sanctions dependent on the degree of harm on the other hand and the centrality of the belief on the other. (Of course, this does not predicate invading countries which circumcise females but the degree of harm certainly can be urged as increasing the need for state protection and increased sanctions.)
We can therefore say that practically all states do not recognize all rights while their political leaders should encourage their implementation no matter what the theoretical doctrinal justification - these rights include those necessary for a decent physical life and those necessary for full participation in their societies and for self-fulfillment. Beyond this we can say that the predicate of the attempt to establish and protect rights implies the right to life and should not allow any state, political entity, religious group, bureaucracy, or other strong sub-culture. to claim their rights are sufficiently superior to go to war and destroy life. The limit point here is found in societies which practice degrees of human sacrifice and genocide with a heavy burden of proof that this situation obtains and, moreover that an invasion or armed intervention can end such a practice with minimal damage to the innocent who fall victim to those who claim that “right” is on their side solely because of their geographical proximity or association with those in power even by subjugation.
For an individual in a society which may be able to impose sanctions, their imposition requires the three predicates of irreversibility, lack of consent, and functionality. The latter two predicates can vary in extent and intensity. They can also vary in the degree in which the causative activity and its result are central to other institutions which define an individual and create rights of association for the individuals affected. The sanctions therefore must be tailored to the nature of the result with enforcement as even as possible and the state’s educational apparatus behind it.
We can not at this juncture offer a hard and fast calculus of gravity of the deprivation of rights by individuals on individuals connected with them by various institutions. We can state that the murder (and extreme mutilation) of the innocent must be combated, even in extreme situations by controlled force which will unfortunately destroy lives while operating to protect them. All other rights should be recognized and enforced by the state in varying degrees of imposition of rules and sanctions. It is impossible to offer more than a general guideline here but the importance in making progress with our neighbors far and near can not be exaggerated. Accordingly, what we had done is try to raise all the issues and difficulties, and suggest the principles by which we can protect rights while recognizing that rights are also derivative from families, groups, and society. The clash and clashes may be inevitable and mark mankind’s often tragic history. But there lies a philosophical basis for action, if not necessarily for a better and desirable harmony in all instances coupled with a possibility that states can act soberly to utilize the factors we outline. 10391 words
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