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.