Claims to human rights as applying to a whole (ethnic, religious or cultural) group, instead of the individual, prove to be complex. This book reveals the pitfalls, benefits and demands that surround the debate for and against culture and identity in human rights. It connects a continuous and nuanced theoretical debate with highly topical empirical findings about collective rights for indigenous groups, which for centuries have been suppressed and marginalized and now stand at the forefront of (successfully) demanding a human right to their own culture and distinct identity. This book shows the ambivalences of those demands and discusses solutions so that human rights neither exclude marginalized cultural groups nor reproduce rigid distinctions between seemingly exclusive cultures.
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A Human Right to Culture and Identity
The Ambivalence of Group Rights
By Janne Mende, Jochen Gahrau
Rowman & Littlefield International, Ltd.Copyright © 2016 Janne Mende
All rights reserved.
Liberalism and Communitarianism
As the discussion on individual and collective human rights intensified in the last decades of the twentieth century, two positions, summarized under the names liberalism and communitarianism, stood in (seemingly) inextricable opposition. Based on John Rawls's A Theory of Justice (1971), the liberalist idea of individual, civil liberty was discussed in contrast to the concept of a substantially "good," a collectively defined liberty. Isaiah Berlin (2002) classifies the former as negative liberty — freedom of something — while the latter calls for the content of positive liberty. From a communitarian point of view, the content of positive liberty can only be determined by considering the respective cultural context that provides an inevasible "normative horizon" (Forst 1994b: 14). With regard to the scope of this study, liberal theorists assume uncircumventable individual rights while communitarians prioritize collective goods, values, and/or rights. The different forms of liberalism are sometimes subsumed under the term individualism because every person should develop his or her own concept of a good life while public politics and morality are legitimate only if voluntarily agreed to (see Etzioni 1997). Liberals are confronted with the argument to only abstractly apprehend the individual, as a monad not dependent on society (MacIntyre 1984; Sandel 1982). Communitarians are, in turn, accused of hypostasizing the community that, in their view, produces the individual, which is why the community should be given priority. Both positions are accused of either "forgetting the context" or "being obsessed with context" (Forst 1994b: 15; see also Shue 2004: 220).
During the 1980s and 1990s, both sides began to include the criticism directed at them into their respective theory-making. Ultimately, it became clear that "not only the assumption of the both sides' homogeneity, but also of the general incompatibility of particular liberal and communitarian arguments was wrong" (Forst 1994b: 13f.). As a consequence with regard to collective human rights, the lines of argument can be depicted as a four-pole constellation along two axes.
Along the horizontal axis of differentiation separating opponents and supporters of collective rights, both liberal and communitarian positions can be found on both sides. Across lies the vertical axis of differentiation, on which either the individual or the collective serves as the explicit or implicit criterion (see table 1.1).
Four lines of argument result from this constellation, which will provide orientation throughout the study. In a liberal line of argument opposing collective rights (1), interests of individuals are rated as more important than a collective's possible interests. These individual interests are considered to be endangered by collective rights, which is why collective rights supposedly are a threat to individual rights and human rights.
A liberal line of argument supporting collective rights (2) aims at strengthening collectives when they serve the individual. This is established in different ways, for example by assuming that groups help to constitute, orient, or give sense to individuals. Peter Jones's concept of collective group rights falls into this category. A collective group right is a right that all group members share: "The group has no existence or interest that cannot be explicated as that of its members. In particular, the collective conception does not require us to give a moral standing to the group that is separate from the moral standing of each of its individual members" (Jones 1999: 85). The moral claim of a group is legitimated by stating that it serves the interests of the individual (see also Raz 1996). As for the first line of argument, the individual is the normative criterion for the second line as well.
The traditional communitarian line of argument for collective rights (3) focuses on the well-being of the collective that needs to be protected and acknowledged in its autonomy. Jones distinguishes corporate group rights and collective group rights and doubts that the former fits into a human rights framework. The communitarian, or corporate group rights, line of argument attributes collectives a discrete moral claim that basically exists independently of its members and their interests. To achieve this moral claim, "a group must possess a morally significant identity as a group independently, and in advance, of whatever interests and rights it may possess" (Jones 1999: 87f.). Such a group is characterized by its distinct collective identity.
Though it hardly exists, a communitarian line of argument opposed to collective rights (4) could, in theory, be outlined. It would see a group's well-being best protected by individual rights because individuals constitute the group and because community life regulated by liberal rights would stabilize and reproduce the group.
In human rights debates, communitarian and liberal positions most often overlap in argument (2), supporting collective rights on the grounds that individuals are constituted by groups.
Based on this scheme, the implicit preconditions, relations, and limits of theoretical approaches to collective rights as represented by Charles Taylor, Will Kymlicka, and Susan Okin will be analyzed in more detail. None of the three authors can be classified as purely communitarian or liberal, and all of them claim to overcome the dichotomy and to productively connect relevant aspects of both sides. Their results differ greatly. Taylor and Kymlicka represent "the most advanced theorists of the social-theoretical debate on multiculturalism since the 1980s" (Reckwitz 2001:181) who justify the need for collective rights from a coherent theoretical perspective. In contrast, in her controversial essay "Is Multiculturalism Bad for Women?" Okin resolutely rejects the demand for collective rights from a liberal and feminist perspective (Okin 1999a). The discussion of these three authors cannot cover the whole field of communitarian and liberal debates. Nonetheless, it reflects a wide and at the same time profound spectrum of the chances and challenges of collective human rights.
CHARLES TAYLOR'S COMMUNITARIANISM
Taylor is seen as one of the central authors of the communitarian line of argument (3). He himself rejects being called a communitarian (Taylor 1994b: 250) and, rather, aims at describing the debate in all its complexity and multidimensionality (Taylor 1989a: 182). Taylor's approach is significant for a discussion of collective human rights in multiple ways. His argumentation develops from different starting points that become important by the way he interrelates them. Although no direct and linear justification of collective rights can be drawn from Taylor's work, he nonetheless suggests one.
The following passage is central to Taylor's argumentation:
We can argue 1) that the conditions of our identity are indispensable to our being full human subjects; 2) that, for people today, a crucial pole of identification (in some cases, the crucial pole) is their language/culture and hence their linguistic community; thus 3) the availability of our linguistic community as a viable pole of identification is indispensable to our being full human subjects. Now 4) we have a right to demand that others respect whatever is indispensable to our being full human subjects (for example, life and liberty). Therefore, 5) we have a right to demand that others respect the conditions of our linguistic community being a viable pole of identification. The conditions mentioned in 5) can be spelled out to include the health and expressive power of our language, a certain realization in crucial sectors on the part of our linguistic community and some degree of international recognition. (Taylor 1993: 54f.; italics in the original)
Two central premises in Taylor's argument are the importance of an identity as constituted by language and culture, (points 1 and 2) and the right to recognition of the constituents of human personhood (point 4). The first premise contains far-reaching assumptions on the concepts of identity, culture, and the individual. What are the implications and consequences that develop from these concepts?
Following symbolic interactionism, Taylor works with a dialogic concept of identity according to which identity is not developed from inside the individual, but by interacting with significant others (Mead 1979), by dialogue of the "rich human languages of expression" (Taylor 1994a: 32). It is only against the background of a dialogically and intersubjectively formed identity that preferences, wishes, opinions, and efforts make sense (Ibid.: 33f.). Taylor's understanding of identity is based on his earlier studies of Hegel and his chapter on the master-slave dialectic, considered by Taylor as the central passage of Hegel's The Phenomenology of Mind (Taylor 1975: 155). Taylor applies its basic thought of mutual recognition: My being recognized depends on me recognizing the one to recognize me as a person (Ibid.: 153).
According to Taylor, these intersubjective processes do not occur in a vacuum, but in a "moral space" or "moral frame." This space or frame consists of qualitative distinctions and strong values that shape standards independent from individual wishes or desires. According to Taylor, every moral frame is formed by respecting others, elements of a good life, and concepts of human dignity. Furthermore, it is characterized by something good that every person strives for. Its strong values explain and justify individual evaluations and motivations. Human agency is not possible outside of such a frame (Taylor 1989b: 3ff.). "Living within such strongly qualified horizons is constitutive of human agency, ... stepping outside these limits would be tantamount to stepping outside what we would recognize as integral, that is, undamaged human personhood" (Ibid.: 27). This undamaged existence constitutes a person's identity. Accordingly, identity is constituted by a moral frame, a focus on the good, and the individual positioning within it. "Our identity is what allows us to define what is important to us and what is not" (Ibid.: 30).
Taylor sketches the moral frame as neither unhistorical nor unchangeable. As an example, he points out that today's moral thinking demands respect not only for men, whites, or citizens, but for every human being. That is neither coincidence nor the result of a conscious decision. Rather, in today's moral frame it is just considered as "utterly wrong and unfounded" to draw the boundary of human dignity anywhere else (Ibid.: 7). Additionally, moral frames can develop differently on a second, cultural level in terms of intensity, scale, and meaning. At the same time, they consist of "moral instincts" that lie beyond individual awareness (Ibid.: 8).
For Taylor, every individual identity is dialogic, constituted within a moral frame, distinct, and special. It is this distinction that both characterizes and enables individual identity. To live according to one's identity is the fulfillment of authenticity. However, Taylor warns about the monological fallacy that allocates authenticity only in a seemingly independent individual interior (Taylor 1994a: 31ff.). Instead, authenticity is constituted dialogically and within the predominant moral framework — just as is identity.
Taylor connects this successful formation of identity to his concept of liberty. Following Berlin, he differentiates between positive and negative liberty, with the latter meaning no external obstacles to agency (possibility) and the former meaning to be able to make decisions about oneself and one's life (fulfillment). Based on this distinction, Taylor's concept of liberty means the absence of external and internal obstacles for the realization of personal goals. This includes the possibility of a person being wrong about his or her goals and means. In order to be able to recognize personal goals, self-awareness and self-conception are necessary (Taylor 1985). In other words, the formation of a successful identity, which allows for conscious reflections on a given moral space, is essential for liberty. This goes back to Taylor's interpretation of Hegel, where the mutual acknowledgment of master and slave fails and turns into a life-and-death struggle (and, as a result, into a power relationship; Hegel 1977: [section]178ff.). According to Taylor, this happens because master and slave "are low on the scale of development" (Taylor 1975: 155). They have no consciousness of their generality and no access to generality. For recognition-seeking efforts to be successful, however, it is mandatory for the individual to see their connectedness to generality (Ibid.: 155ff.). This is where Taylor's moral frame gains its relevance. A successful, reflected, and individual identity is not only dialogical, but also needs to be able to consciously locate itself in the general moral frame.
Every identity needs to first gain its dialogical acknowledgment and general location. Therefore, there is always a possibility for it to fail. This is a crucial point in Taylor's argumentation regarding collective rights. Collective identity politics are based on the idea that a denial of recognition of a collective identity leads to repression because the refusal is internalized and becomes part of the individual identity (Taylor 1994a: 32ff.; also see Fanon 1986). With this shift, Taylor puts collective instead of individual identities in the focus of identity politics. This shift in focus is neither coincidental nor arbitrary, but immanent to his theory because, for Taylor, the individual identity is closely knitted to its respective culture.
For Taylor, an individual's culture plays an important role in his or her identity (Taylor 1993: 54f.) because the general moral frame can only concretize in the form of culture. Taylor underpins his understanding of culture with the "presumption ... that all human cultures that have animated whole societies over some considerable stretch of time have something important to say to all human beings" (Taylor 1994a: 66). Respect and a corresponding right to respect a culture are, however, not synonymous with the assumption that all cultures are of the same value. For Taylor, such an affirmative judgment is not only problematic but, in fact, presupposes a "North Atlantic" standard against which every culture is measured (Ibid.: 71). "There must be something midway between the inauthentic and homogenizing demand for recognition of equal worth, on the one hand, and the self-immurement within ethnocentric standards, on the other. ... What there is is the presumption of equal worth" (Ibid.: 72). This assumption serves as an open process of approximation to a culture whose value can only be determined within that process.
Although this assumption speaks to a differentiated account of culture, Taylor's remarks broaden a narrow idea of culture or society. According to Taylor, every political community demands sacrifices by its members, either by force, as is the case for dictatorships and totalitarian regimes, or voluntarily and by means of discipline. The latter, however, needs strong motives because general altruism, higher morals, or enlightened self-interest are not strong enough for this libertarian form of political community. The only motive to develop a sufficient binding mechanism is identification with a community facilitating solidary patriotism (Taylor 1989a: 165ff.). Thus, Taylor resorts to a classic communitarian argumentation: "I am not dedicated to defending the liberty of just anyone, but I feel the bond of solidarity with my compatriots in our common enterprise, the common expression of our respective dignity" (Ibid.: 166). The "common enterprise" of the political community simultaneously reflects and constitutes the personal self. Here, individual and collective identities are closely intertwined and mutually dependent: no individual identity constitution exists without political community, and no strong, self-defendant political community exists without identifying individuals.
With this link, Taylor justifies his advocating collective rights. Both individuals and cultures have the potential to develop a unique, distinguishable identity, a potential which is to be respected (Taylor 1994a: 41). A cultural, distinct identity is — as Taylor argues forcefully — formed, above all, by criteria like common language and history, a relevant cultural heritage, and continued existence over time. In their capacity as constituents of cultural identity, these criteria are immediately common goods around which a collective life can be organized (Ibid.: 33). They form the communitarian common good, the substantial concept of a good life. From this the fact precipitates that they can be protected only as collective goods, in a collective way. Liberal, individual rights are insufficient for this.
Excerpted from A Human Right to Culture and Identity by Janne Mende, Jochen Gahrau. Copyright © 2016 Janne Mende. Excerpted by permission of Rowman & Littlefield International, Ltd..
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