"There is always a philosophy for lack of courage."—Albert Camus

Friday, December 30, 2005

Rights of Individuals Versus Rights of Communities

It is certainly true that hard cases make bad law, but they definitely provide a good way of figuring out principles. A particularly thorny case is outlined in an article on conflicts between African tribal customs and national legal systems, in today's New York Times.

The specific topic at hand is the decision of governments to overrule customs even when the individuals involved—the victims, as we would rightly call them—do not protest:

To many Zulus, . . . virginity tests are a revered custom, one that discourages early sex and, after falling into disuse, has been revived to fight the spread of H.I.V. But to many advocates of women's and children's rights, the practice is unscientific, discriminatory and - to girls who are publicly and perhaps falsely accused of having lost their virginity - emotionally searing. This month, their arguments persuaded South Africa's Parliament to ban some virginity testing, with violations punishable by up to 10 years in prison.

The ban is an example of how sub-Saharan Africa is slowly, but inexorably, enshrining into law basic protections that have long been denied women. But it also hints at the frailty of the movement toward women's rights in the region. Not only is the new law a watered-down version of what was proposed, but few here believe it will curb a tradition so deeply embedded in Zulu and to a lesser extent Xhosa culture.

"We will uphold our traditions and customs," said Patekile Holomisa, president of the Congress of Traditional Leaders, a political party in South Africa. "There are laws that passed that do not necessarily have any impact on the lives of people. I imagine this will be one of those."

The article goes on to discuss female genital mutilation, which I think we can all say should be stopped, regardless of the reasons people may give for the practice. However, it is interesting to consider just how and when government should override the will of a community. As Reform Clubber Edmund Burke pointed out, a society is made up of its countless "little platoons," and government should be loath to harm them. Yet civilization requires certain standards, and when communities engage in practices that do not achieve those standards, redress is called for.

However, if a society stops believing in standards or in the very concept of civilization itself, the basis for standing up to those who would flout those standards becomes highly unreliable. What, then, is to stop the West from continuing to move toward the kind of tribalism that societies such as South Africa are trying to grow out of? Claims of universal positions, such as individual rights, are plausible only when all parties agree that there are universal truths.

5 comments:

Tom Van Dyke said...

Thanks for opening this, STK, although there's little about it that isn't painful.

We have on one hand the liberation of the individual, which might be called libertine, that results in its worst in AIDS.

Then we have the restrictions on sexual urge and conduct by society, which easily can be called repression if not oppression, that takes form in its worst as female genital mutilation.

And then there are the children.

I scarcely know where to start. What I can say with reasonable confidence is that if there were no such thing as children, for whose personal futures we are consummately concerned, and if the issue of children were not connected to sex (I have it on reliable scientific authority that it is), there would be very little controversy when it comes to where people get their orgasms.

There are those of us who think there is a natural law that informs and dictates the disposition of such things, but it seems to slip through the cracks between reason and desire, which we are told are sublimely human.

By the arts, for one, eh? ;-)

connie deady said...

Community versus individual has been sort of an ongoing debate since Aristotle. Issues like that tend to make me a situational ethicist.

Where is the line drawn, beyond which individual liberty is too emphasized or to restricted by community. Attempts to derive a line based upon principle are hard.

Tell me the issue and I'll tell you were to draw the line.

Guerreiro said...

First of al let me say hello. I happened to randomly find this post,but now i whould vey much like to stirr up the discussion with a radical aproach. Please forgive me if its not the costume here in the club.

I believe the rights of individuals to be the most important form of liberty. This may seem a "a La Palisse" truth but nowadays many a democrat forgets that democracy is based in the citizens, not the state. Idealistic I be? Well...

Let me take an example ant try to extrapolate, When the court emprisions a murderer the court is negating the liberty that that citizen is entitled to (an individual right) so that he can't deprive other citizens of their right to be alive, the state just acts as a provider of liberty in this case. Note that i left the word "community" out.

"Community" is a flag that normaly is owned/waved by those who know "what is right": the religiousleaders, the academic experts, the military saviours, the polithicaly enlightened etc. etc. I risk to say that the normal individuals never thinks seriously about comunity in his life.

I totaly agree with S.T.K.,how could i not?, but i have this to say: For whoom is the south african government legislating? Is it passing legislation to serve the zulu/shosa populations? If it is, why is that legislation so european? I totaly agree with the humanist views of the parliament, but then again I am an european whose ancesters stoped tribal life in the II century. I am not a zulu guy that now can't look for a busty young virgin, nor am I a maiden that is now told that her virginity can't be certified. But I digress.
What i wanted to say is that a citizen's right to see the laws of his community as close as possible to his own views, even if against human rights. Remember that the death penalty is apawlingly against the rights of the human person, yet countries like France or U.S. use it.

I look forward to read other points of view.

Tom Van Dyke said...

Connie, I believe the question is not how much the individual must accomodate the community's need for stability, but how much a society itself is required to change to accomodate the individual's desires.

If "tolerance" becomes the foundational value of a society, and gains legal force, I do not expect any lines to survive very long.

Nor the society...

Tlaloc said...

"If "tolerance" becomes the foundational value of a society, and gains legal force, I do not expect any lines to survive very long.
Nor the society... "

Unwittingly you've hit on something important, which is to say that all organized society is based on prejudice and cannot survive without it.