THE CULTURE OF RIGHTS

I
As earlier modules will have made clear, we can approach numerous aspects of everyday life as falling into the domain of some form of cultural practice or the other. In keeping with this approach, in this section we will look at law and legal institutions as a specific cultural form interacting, determining and being determined by the larger ‘cultural’ context in which they are located. Specifically, we will notice the manner in which the contemporary world is steeped in the culture of law and legalisms of various kinds. Simultaneously we will also try and fathom the difficulties that contemporary legal models cause when applied to diverse contexts across the world. As the domain of law and legal practice is vast we will illustrate our study of legal culture through the emergence of the language of ‘human rights’ as the principal mechanism by which most contemporary legal systems across the world distribute and apportion entitlements to their subjects. We will also examine the difficulties that this legal form poses when applied in different cultural contexts across the world.

Though the conceptual history of rights goes back many centuries into the history of Europe, the immediate history of human rights in the contemporary world can be traced back to the second half of the 20th century. This was a period that had been marked by the steady proliferation and deepening of stated commitments by nation states across the world to the notion of human rights. Since the Universal Declaration of Human Rights in 1948, the United Nations system that emerged at the end of World War II has overseen many human rights covenants, conventions and declarations such as those aiming to foster basic human rights such as freedom from torture, those providing for basic human needs by enshrining human development as a key entitlement, as well as those ensuring the entitlement of certain kinds of political groups to collectively determine their common futures. Besides, there have also been numerous attempts to address through international legal initiatives the specific ‘rights’ of marginal and deprived groups such as children, women, and indigenous people, among others.

As we have mentioned before, the period after the Second World War saw numerous groups across the world taking recourse to the language of rights. However with various ethnic minorities, religious minorities, indigenous peoples etc. making legal claims in the language of rights the language of rights itself began to face a stern challenge. The problem is as follows. The human rights tradition is grounded in an attempt to institutionalise the notion that each individual human being is entitled to be treated with equal moral consideration. The human rights tradition is based on the fundamental value it places on ‘human agency’ as also the need to treat individual human agents equally. It follows therefore that ‘individuals’ are crucial to any viable notion of human rights and to that extent one can say that human rights are ‘individualistic’.

Two classic problems flow from this characterisation of human rights. The first problem stems from a contest over what constitutes a fundamentally equal treatment of human agency. Does this mean that only basic human freedoms like the right to liberty and human integrity constitute a fundamentally equal treatment of human dignity? Or does it mean that rights to basic human needs such as food, clothing and shelter also constitute basic human rights?

Analytically this commitment to what is called civil and political rights and the commitment to economic social and cultural rights represents the division between these two positions. Ideologically the contending positions of the cold war are ranged on either side of this debate. Many Asian countries also entered this debate by asserting that Asian values stressed the fulfilment of basic human needs such as food, clothing and shelter over those of political freedom and used this mode of reasoning to justify regimes that had limited value for liberty and political freedom.

This debate however is less charged today with at least the stated recognition that basic needs such as food and housing constitute un-contestable human rights. A good case in point would be the South African constitution, which incorporates the right to housing in its bill of rights.

pp. 269-272 in Henry J Steiner and Philip Alston, International Human Rights in Context, Law Politics Morals, Text and Materials, Oxford University Press, 2000.

The second challenge is more fundamental to the human rights model. As long as human rights deals with the protection of individual rights the model we have outlined above should cause no substantial problems. However, as we mentioned earlier the force of the rights tradition in the contemporary world brings both individuals as well as groups such as ethnic minorities, religious minorities and indigenous peoples to make appeal for entitlements in the language of rights (Remember what you read in the module on identity). The fact that groups make appeals to rights need not necessarily mean that they do so as groups. For instance when persons belonging to stigmatised castes in India demand the right to be treated with dignity and freedom from coercion and torture, the demand being made is for individuals of a group to be treated like any other, though of course the demand for the individuals of the groups could emanate from a strongly mobilised political collective. In contrast when the demand for a right is made for the group itself it causes difficulty for the commitment to human rights. For instance in the Indian case the rights granted to various communities exempting them from the application of sovereign and secular law would represent a typical case of the difficulty caused when granting rights to groups. Though it is possible to justify the grant of rights to collectives in certain situations, these grants of rights cause serious difficulties of legitimacy and theoretical consistency.

We will examine this difficulty by looking at a legal decision that raised some of the difficult questions involved in the grant of collective rights to communities.

The case that we will discuss is the Shah Bano decision of the Supreme Court around which a highly charged debate was sparked off and which in many ways continued to resonate in political memory well beyond the pronouncement of the judgment by the court. The case in the Supreme Court deals with the application, filed by Shah Bano, a divorced Muslim woman, for maintenance under Section 125 of the Code of Criminal Procedure. In 1978, as allowed by Muslim personal law in Shah Bano’s husband, Ahmad Khan, divorced her by issuing an irrevocable talaq and claimed that he was not liable to any further payment of maintenance as he had also made to Shah Bano the customary payment of ‘dower’. The question for the court was whether the rights under Code of Criminal Procedure was to be uniformly and equally applied to all citizens (in this case Shah Bano) or if this ‘secular’ law was to give way to the particular cultural rights of the Muslim community in India. Personal laws are recognized in and it was very well possible the courts could structure a decision that could rule either in favour of the community personal law or in favour of the general law prescribed in the Criminal Code. The court in this case decided in favour of the Code of Criminal Procedure and ruled that Shah Bano was entitled to maintenance as provided under the Code. Without going into the details of the manner in which the court could have ruled in this case the problem that the court is faced with is apparent—How to affirm rights in a manner that does not affirm the parochial interest of particular groups? Or alternatively as we had posed the problem previously how to treat human beings with equal moral consideration? This is the challenge that theorists of rights have been grappling with especially when dealing with the claims to rights posed by collectives and groups.

To get a sense of how this debate is arranged in international human rights law read the following text.

pp. 361-368 in Henry J Steiner and Philip Alston, International Human Rights in Context, Law Politics Morals, Text and Materials, Oxford University Press, 2000.

In the light of the readings that we have just concluded would you think that human rights are a valuable inheritance of the contemporary world?

Either way defend the positions you take using the arguments gleaned out texts that are provided for you in this module?

Try and argue your case using a situation of rights that describes a violation or assertion of rights that you would hold to be typical to the Indian case.

Try and elaborate why you would think your example is typical of the Indian case before you go into your attempt to argue with the significance of human rights.