The interest individuals have in the preservation of their culture raises various difficulties pertaining to the meaning of this interest, its justification, and its normative implications. In this Paper, I wish to make several comments on these issues and the relationships between them. I will discuss the meaning of the interest individuals have in the preservation of their culture and the justification of this interest by referring to Margalit and Halbertals article Liberalism and the Right to Culture. I will then comment on the classification of cultural preservation rights by referring to Kymlickas notions of poly-ethnic rights, self-government rights and representation rights. I will conclude with questions concerning the justification of some particular rights to cultural preservation by resorting to Brian Barrys discussion of Québec language rights and some examples of Israels immigration policies.
{"title":"Individuals' Interest in the Preservation of their Culture","authors":"Chaim Gans","doi":"10.2202/1938-2545.1001","DOIUrl":"https://doi.org/10.2202/1938-2545.1001","url":null,"abstract":"The interest individuals have in the preservation of their culture raises various difficulties pertaining to the meaning of this interest, its justification, and its normative implications. In this Paper, I wish to make several comments on these issues and the relationships between them. I will discuss the meaning of the interest individuals have in the preservation of their culture and the justification of this interest by referring to Margalit and Halbertals article Liberalism and the Right to Culture. I will then comment on the classification of cultural preservation rights by referring to Kymlickas notions of poly-ethnic rights, self-government rights and representation rights. I will conclude with questions concerning the justification of some particular rights to cultural preservation by resorting to Brian Barrys discussion of Québec language rights and some examples of Israels immigration policies.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762633","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Liberal political theory acknowledges the interdependence of the wellbeing of individuals and the flourishing of the cultural groups to which they belong. Consequently, many liberal political philosophers have proposed policies and laws aimed at multicultural accommodation. That is, policies and laws aimed at assisting communities to preserve their cultural values and practices, and at allowing them greater autonomy and self-government. However, certain religious and cultural groups hold beliefs, values, and practices that are oppressive and discriminatory against some of their own members. Accommodating such groups may contribute to the discrimination and oppression. This question of minorities within minorities poses a real dilemma for liberal political philosophy. In this Paper I focus on certain cases that fall under the minorities within minorities framework that raise particularly complicated theoretical considerations. These are the cases where the demands for equal treatment are raised not by the state or by outsiders, but by disadvantaged individuals and groups within a community, who base their claim for greater equality not on the superiority of liberal values over the values of their culture but rather on an alternative, competing, interpretation of the values of their culture. I suggest that strong normative considerations support the view that the liberal state should assist challenges by marginalized individuals within communities to reinterpret cultural values and traditions in ways more favorable to them.
{"title":"Law and Internal Cultural Conflicts","authors":"Yaacov Ben-Shemesh","doi":"10.2202/1938-2545.1008","DOIUrl":"https://doi.org/10.2202/1938-2545.1008","url":null,"abstract":"Liberal political theory acknowledges the interdependence of the wellbeing of individuals and the flourishing of the cultural groups to which they belong. Consequently, many liberal political philosophers have proposed policies and laws aimed at multicultural accommodation. That is, policies and laws aimed at assisting communities to preserve their cultural values and practices, and at allowing them greater autonomy and self-government. However, certain religious and cultural groups hold beliefs, values, and practices that are oppressive and discriminatory against some of their own members. Accommodating such groups may contribute to the discrimination and oppression. This question of minorities within minorities poses a real dilemma for liberal political philosophy. In this Paper I focus on certain cases that fall under the minorities within minorities framework that raise particularly complicated theoretical considerations. These are the cases where the demands for equal treatment are raised not by the state or by outsiders, but by disadvantaged individuals and groups within a community, who base their claim for greater equality not on the superiority of liberal values over the values of their culture but rather on an alternative, competing, interpretation of the values of their culture. I suggest that strong normative considerations support the view that the liberal state should assist challenges by marginalized individuals within communities to reinterpret cultural values and traditions in ways more favorable to them.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762757","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Paper explores the justifications for regulating modesty-related practices in liberal societies and uses two examples of modesty-related practices the practice of wearing the hijab and the practice of separating men and women in busesin order to demonstrate that modesty-related practices often rest on different rationales. Some of these rationales are oppressive and discriminatory while other are benign or even autonomy-enhancing. The multiplicity of meanings associated with modesty-related practices is a challenge to the policy maker. The Paper proposes that sometimes it is possible to transform the social meaning of modesty-related practices without transforming the practices themselves.
{"title":"Regulating Modesty-Related Practices","authors":"Alon Harel","doi":"10.2202/1938-2545.1006","DOIUrl":"https://doi.org/10.2202/1938-2545.1006","url":null,"abstract":"This Paper explores the justifications for regulating modesty-related practices in liberal societies and uses two examples of modesty-related practices the practice of wearing the hijab and the practice of separating men and women in busesin order to demonstrate that modesty-related practices often rest on different rationales. Some of these rationales are oppressive and discriminatory while other are benign or even autonomy-enhancing. The multiplicity of meanings associated with modesty-related practices is a challenge to the policy maker. The Paper proposes that sometimes it is possible to transform the social meaning of modesty-related practices without transforming the practices themselves.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762710","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Challenging the claim that policy of gender separation on buses does not imply segregation and discrimination against women but rather an innocent concern for the cultural concept of modesty, this Paper attempts first to analyze and refute the respective arguments presented by Professor Harel by establishing counter arguments and examining counter examples which may produce different conclusions. At its second stage the paper proposes a broader field of analysis for scrutinizing the justifications for gendersegregated practices that is based on considerations of rationality. Its main thrust directs to the claim that from a liberal point of view, the difference between acceptable and non-acceptable practices should be depended upon two conditions: a) the rational justification of the practice. b) Its immunity to the burden of harm or oppression towards helpless individuals or groups. At its third and final part, the Paper attempts to produce a careful definition of the cultural meanings implied by the practice of gender separation. By proposing alternative conceptual structure of explanation, based on cultural phenomenological analysis, it aims to expose the deep discriminatory structure of power-relations between men and women in traditional societies, including the Ultra-Orthodox community, as exemplified by the practice of gender separation.
{"title":"Is It Really so Benign? Gender Separation in Ultra Orthodox Bus Lines","authors":"Tzvia Greenfield","doi":"10.2202/1938-2545.1007","DOIUrl":"https://doi.org/10.2202/1938-2545.1007","url":null,"abstract":"Challenging the claim that policy of gender separation on buses does not imply segregation and discrimination against women but rather an innocent concern for the cultural concept of modesty, this Paper attempts first to analyze and refute the respective arguments presented by Professor Harel by establishing counter arguments and examining counter examples which may produce different conclusions. At its second stage the paper proposes a broader field of analysis for scrutinizing the justifications for gendersegregated practices that is based on considerations of rationality. Its main thrust directs to the claim that from a liberal point of view, the difference between acceptable and non-acceptable practices should be depended upon two conditions: a) the rational justification of the practice. b) Its immunity to the burden of harm or oppression towards helpless individuals or groups. At its third and final part, the Paper attempts to produce a careful definition of the cultural meanings implied by the practice of gender separation. By proposing alternative conceptual structure of explanation, based on cultural phenomenological analysis, it aims to expose the deep discriminatory structure of power-relations between men and women in traditional societies, including the Ultra-Orthodox community, as exemplified by the practice of gender separation.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762737","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In his ambitious paper, Risse addresses many important topics ranging from very general issues about what human rights are to quite specific questions about rights to work and leisure. I comment on four themes arranged in order of decreasing generality: Risse's understanding of what human rights are, Risse's suggestion that a conception of human rights should best be "basis-driven," Risse's particular basis-driven conception of human rights, and Risse's specific position on human rights relating to labor and leisure.What grounds can Risse give us for accepting his revisionist understanding of human rights as membership rights, which is so dramatically at odds with fundamental fixed points that have been taken for granted in human rights disputes over the last 60 years or so? If Risse has his way, then the treatment of a human being by others raises human rights concerns only if she is a participant in the global order and only if her treatment is a matter of international concern. It is obvious how this understanding of human rights is welcome to those who seek to free their own conduct or their country's policies from human-rights constraints. Appealing to Risse's understanding, they will be able to block criticisms based on human rights by denying, for example, that the people of the Gaza Strip are members of the global order or by denying that the torture of Burmese citizens within Burma is a matter of international concern. For those whose human rights are in jeopardy, Risse's understanding of human rights could be a disaster. We should therefore examine very closely the arguments he may yet produce for his understanding and, unless they are hugely compelling, stick to the orthodox understanding of human rights as rights that all human beings have against all other human agents.
{"title":"Comment on Mathias Risse: \"A Right to Work? A Right to Leisure? Labor Rights as Human Rights\"","authors":"Thomas Pogge","doi":"10.2202/1938-2545.1029","DOIUrl":"https://doi.org/10.2202/1938-2545.1029","url":null,"abstract":"In his ambitious paper, Risse addresses many important topics ranging from very general issues about what human rights are to quite specific questions about rights to work and leisure. I comment on four themes arranged in order of decreasing generality: Risse's understanding of what human rights are, Risse's suggestion that a conception of human rights should best be \"basis-driven,\" Risse's particular basis-driven conception of human rights, and Risse's specific position on human rights relating to labor and leisure.What grounds can Risse give us for accepting his revisionist understanding of human rights as membership rights, which is so dramatically at odds with fundamental fixed points that have been taken for granted in human rights disputes over the last 60 years or so? If Risse has his way, then the treatment of a human being by others raises human rights concerns only if she is a participant in the global order and only if her treatment is a matter of international concern. It is obvious how this understanding of human rights is welcome to those who seek to free their own conduct or their country's policies from human-rights constraints. Appealing to Risse's understanding, they will be able to block criticisms based on human rights by denying, for example, that the people of the Gaza Strip are members of the global order or by denying that the torture of Burmese citizens within Burma is a matter of international concern. For those whose human rights are in jeopardy, Risse's understanding of human rights could be a disaster. We should therefore examine very closely the arguments he may yet produce for his understanding and, unless they are hugely compelling, stick to the orthodox understanding of human rights as rights that all human beings have against all other human agents.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1029","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The identification of courts as open and public institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores howduring the last few centuriespublic procedures came to be one of the attributes defining certain decision-making institutions as courts. The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed publicity, a practice he commended by detailing the architecture for various entitiesfrom the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline.Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement.For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each otherbefore an observant and often times critical publicas equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudications democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences.
{"title":"Bring Back Bentham: \"Open Courts,\" \"Terror Trials,\" and Public Sphere(s)","authors":"J. Resnik","doi":"10.2202/1938-2545.1052","DOIUrl":"https://doi.org/10.2202/1938-2545.1052","url":null,"abstract":"The identification of courts as open and public institutions is commonplace in national and transnational conventions. But even as those attributes are taken for granted, the privatization of adjudication is underway. This Article explores howduring the last few centuriespublic procedures came to be one of the attributes defining certain decision-making institutions as courts. The political and theoretical predicates for such practices can be found in the work of Jeremy Bentham, a major proponent of what he termed publicity, a practice he commended by detailing the architecture for various entitiesfrom the Panopticon for prisoners to the Parliament for legislators and courts for judges. Bentham argued the utility of publicity in enhancing accuracy, public education, and judicial discipline.Moving forward in time, I examine various contemporary techniques in several jurisdictions that shift the processes of adjudication toward privatization. Included are the devolving adjudication to less-public government entities such as administrative agencies; outsourcing to private providers; and reconfiguring the processes of courts to render them more oriented toward settlement.For those appreciative of the role courts play in developing and protecting human rights, these new practices are problematic because adjudication can itself be a site offering opportunities to engage in democratic practices. The odd etiquette entailed in public adjudication under democratic legal regimes imposes obligations on government and disputants to treat each otherbefore an observant and often times critical publicas equals. Public and private power can be constrained by such performative requirements. When decision making takes place in public, the application of law to fact can engender normative contestation predicated on popular input. This claim of public adjudications democratic potential and utilities is, however, not an argument that the judgments provided and the norms developed will necessarily advance a shared view of the public welfare. Hence, while eager to re-engage Bentham, I offer different claims for publicity and less optimism about its consequences.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1052","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68764259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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