Interpreting rights and culture: Extending laws empire

Res Publica

Volumn 4, Issue 1, 1998, Pages 3-28

  Berry, David S ^a  

^a UNIVERSITY OF THE WEST INDIES   (Jamaica)

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[No Author keywords available]

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EID: 54649084502     PISSN: 13564765     EISSN: 15728692     Source Type: Journal    
DOI: 10.1007/BF02334930     Document Type: Article

References (115)

1. See, e.g., Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, rev'd. ed. (Philadelphia: University of Pennsylvania, 1996).
2. For favourable evaluations of the need for aboriginal self-government powers in Canada see, for example, Patrick Macklem, "Normative Dimensions of an Aboriginal Right of Self-Government", Queen's Law Journal 21 (1995), 173-219;
3. Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Royal Commission on Aboriginal Peoples, 1996);
4. Jeremy Webber, "Individuality, Equality and Difference: Justifications for a Parallel System of Aboriginal Justice", in Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the justice System: Report of the National Round Table on Aboriginal Justice Issues (Canada: Minister of Supply and Services, 1993), 133-60.
5. These issues have been raised in a recent Supreme Court of Canada case: Native Women's Association of Canada et al. v. The Queen; Inuit Tapirisat of Canada et al., Interveners (1994) 119 D.L.R. (4th) 224. For different views on the applicability of human rights legislation to aboriginal self-governments, compare Ovide Mercredi and Mary Ellen Turpel, In the Rapids: Navigating the Future of First Nations (Toronto: Penguin Books Canada, 1993), 96-106,
6. with Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra n.2, at 258-75.
7. See, e.g., Amnesty International, Human Rights Are Women's Rights, Action/Technique Document ACT 77/001/1995 (1995), as available on http://www.amnesty.se/women/242e.htm accessed on 24 February 1997, at 58-59 (showing conflicts between the Shari'a offence of Zina - extra-marital sex - and Pakistan rape laws);
8. Radhika Coomaraswamy, "To Bellow Like a Cow: Women, Ethnicity, and the Discourse of Rights", in Human Rights of Women: National and International Perspectives, ed. Rebecca J. Cook (Philadelphia: University of Pennsylvania, 1994), 39-57.
9. See, e.g., Arati Rao, "The Politics of Gender and Culture in International Human Rights Discourse", in Women's Rights, Human Rights: International Feminist Perspectives, ed. Julie Peters and Andrea Wolper (New York: Routledge, 1995), 167-75;
10. Abdullahi Ahmed An-Na'im, "State Responsibility Under International Human Rights Law to Change Religious and Customary Laws", in Cook, supra n.4, at 167-88.
11. Webber, supra n.2, at 137.
12. E.g., Mercredi and Turpel, supra n.3, at 114.
13. E.g., Rao, supra n.5.
14. Rao, supra n.5, at 173-74; Ann Elizabeth Mayer, "Cultural Particularism as a Bar to Women's Rights: Reflections on the Middle Eastern Experience", in Peters and Wolper, supra n.5, 176-88, at 180; An-Na'im, supra n.5, at 174 and 181-85.
15. An-Na'im, supra n.5, at 174.
16. Anna Funder, "De Minimis Non Curat Lex. The Clitoris, Culture and the Law", Transnational Law & Contemporary Problems 3 (1993), 417-67, at 441.
17. See, e.g., Eugene Kamenka, "Human Rights, Peoples' Rights", in The Rights of Peoples, ed. James Crawford (Oxford: Clarendon, 1988), 127-39, at 127-30 (social context, specificity, and contextual development of rights).
18. Funder, supra n. 11, at 442-43.
19. Funder, supra n. 11, at 463 and 467.
20. In any event, it should be noted that applying an international human rights critique is also unavoidable, as all modern governments, including the proposed aboriginal governments, are bound by international human rights norms: Douglas Sanders, "Developments at the United Nations: 1994", Canadian Native Law Reporter 4 [1994], 12-16, at 14.
21. Mayer, supra n.9, at 183.
22. This point raises important questions about interpretation and meaning, a full discussion of which is beyond the scope of this article. For a good introduction to these questions from an interpretive perspective, see generally Ronald Dworkin, Law's Empire (Cambridge, Ma.: Belknap Press of Harvard University, 1986)
23. [hereafter "Dworkin, LE"].
24. For present purposes, by the term "implementation" I mean the act of translating the more abstract values underpinning rights into actual rules and procedures in our everyday world. Cf. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980), 284-90 (providing a good example of this process in the context of describing how natural law can be the basis for such commonplace rules as those governing the use of roads).
25. Ronald Dworkin, "Is Law a System of Rules?", in The Philosophy of Law, ed. R.M. Dworkin (Oxford: Oxford University, 1977), 37-65;
26. Dworkin, LE, supra n.17, at 96, 152, and 244.
27. Dworkin, LE, supra n.17, at 87 and 410 (law as form of interpretation), and 52-53 (constructive interpretation);
28. Dworkin, idem, "Law, Philosophy and Interpretation", Archiv für Rechts- und Sozialphilosophie 80 (1994), 463-75
29. (hereafter "Law, Philosophy"), at 469, 473-74.
30. Dworkin, LE, supra n. 17, at 65-66.
31. Dworkin, LE, supra n.17, at 65-68, 230-31, and 285.
32. Principles are used to incline a decision one way or another (e.g., in the case where no rule seems to apply directly), and provide the underpinning that makes rules binding: Dworkin, "Is Law a System of Rules?," supra n.18, at 55-59.
33. Additionally, they provide the core of Dworkin's concept of integrity (as integrity is "consistency in principle"): Dworkin, "idem, LE, supra n.17, at 167.
34. Note that Dworkin includes the potential for a certain degree of relaxation of fit in order to make interpretation more broadly applicable, but that fit cannot be completely elastic, and sometimes the interpreter will have to abandon the project if it is not satisfied: LE, supra n.17, at 230-31, 237.
35. Dworkin, LE, supra n.17, at 88-89. Also, all interpretation is done within the constraining ambit of the purpose of the practice as understood by the legal community (the "interpretive community").
36. Dworkin, LE, supra n. 17, at 49-53.
37. Dworkin, LE, supra n.17, at 228-38 (chain novel metaphor).
38. Dworkin, "Law, Philosophy", supra n.19, at 469;
39. LE, supra n.17, at 58-59.
40. Dworkin, "Law, Philosophy", supra n.19, at 471, 474,
41. and LE, supra n.17, at 98, respectively.
42. Cf. LE, ibid., 92-96.
43. Dworkin, LE, supra n. 17, at 413. Note however that Dworkin is not saying that law is identical to politics, merely fitting his theory within the broader political context.
44. Dworkin, LE, supra n.17, at 248-49;
45. cf. Dworkin, LE, ibid., 301.
46. Stephen Guest, in Ronald Dworkin (Edinburgh: Edinburgh University Press, 1992), at 38, argues that "Dworkin's theory is that legal practices are only to make sense against the background of a moral theory based on the idea of equality." Dworkin himself understands that law, when faced with its most difficult challenges, must refer to the structure of the political community as part of its process of interpretation: "Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community."
47. LE, supra n.17, at 255.
48. Dworkin, LE, supra n.17, at 243;
49. see generally, Dworkin, LE, ibid., chs. 6 and 7. Integrity also has a transformative function as, in Dworkin's view, a community that works under a vision of integrity will develop and encourage greater responsibility, participation and commitment on the part of its citizens:
50. Dworkin, LE, ibid., 189-90.
51. Dworkin, LE, supra n.17, at 167. As pointed out by Guest, supra n.30, at 40, integrity requires more than simple consistency because the law must be able to correct itself rather than blindly follow past mistakes: "Bare consistency ... is an impossible requirement because we all accept, as properly characteristic of legal argument, that some previous decisions are mistaken."
52. Dworkin, LE, supra n.17, at 339 and note 8. Dworkin calls this "textual integrity" and allows it to embrace "fairness" (roughly meaning respect for democratically expressed public opinion), as well as the legislative history of statutes (although only as "political decisions"):
53. Dworkin, LE, ibid., 338-43.
54. Dworkin, LE, supra n.17, at 405-406. Dworkin takes this point further by arguing that consistency in principle can be seen as an independent value ("commitment to consistency in principle valued for its own sake"), and thus that integrity can provide a vantage point from which to adjudicate between the competing political virtues of fairness, justice and procedural due process:
55. Dworkin, LE, ibid., 164-67 and 176-78.
56. Dworkin, LE, supra n. 17, at 226.
57. Dworkin, LE, supra n.17, at 401-406. Thus, as argued by Guest, supra n.30, at 41, integrity is a constraining feature of Dworkin's theory: "[Integrity's] function is to constrain states in the real world, where decisions are often unjust but fair."
58. Jack Donnelly, for example, in Universal Human Rights in Theory and Practice (London: Cornell University Press, 1989), 16-19, examines the source of human rights and states (at 17) that "[h]uman rights represent a social choice of a particular moral vision of human potentiality, which rests on a particular substantive account of the minimum requirements of a life of dignity." Note however that "human dignity" is itself a strongly contested concept, as illustrated by the debates about Dworkin's use of the term in his work,
59. Life's Dominion (London: Harper Collins, 1993).
60. See, e.g., Bradley W. Miller, "A Time to Kill: Ronald Dworkin and the Ethics of Euthanasia", Res Publica 2 (1996) 31-61, at 50-51.
61. Dworkin, LE, supra n.17, at 266-75.
62. E.g., Dworkin, LE, supra n.17, at 219-24 (integrity as also bringing flexibility).
63. Note that this problem may arise within any community. If all social practices or communities continually re-interpret and re-constitute themselves, as suggested earlier, this conflict of purpose, as pointed out by Emilios A. Christodoulidis in "The Suspect Intimacy Between Law and Political Community: The Case of Law's Empire", Archiv für Rechts- und Sozialphilosophie 80 (1994), 1-18, at 14, "may turn a process of self-revision into a process of breakdown and disintegration of communities" (citations omitted).
64. Ronald Dworkin, "Indeterminacy and Law", in Positivism Today, ed. Stephen Guest (Aldershot: Dartmouth, 1996), 1-9, at 2, states: "A belief in indeterminacy is a positive claim, and it needs a positive reason or assumption to support it. There are three possible views I might take about the abortion issue, excluding uncertainty, but I am as much (or as little) in need of an argument for the third view - indeterminacy - as I am of an argument for either of the other two."
65. In Ronald Dworkin, Positivism Today, ibid., at 8, when discussing the level of difficulty in proving indeterminacy he says: "Someone defending the view that no such reason can in fact tip the balance either way in any controversial case faces an enormously difficult task, much more difficult than faced by someone who wants to argue for one decision rather than another in a particular case."
66. This is why, in Law's Empire, supra n.17, at 271-75 (and end notes), Dworkin criticises the contention of critical legal studies scholars that law displays "fundamental contradictions in principle" without offering proof of any such contradictions.
67. Dworkin, "Indeterminacy and Law", supra n.41, at 4-5, offers his own example of such a justification for the indeterminacy position in the context of the question of whether Picasso is a greater genius than Beethoven.
68. Christodoulidis, supra n.40, at 17. I am indebted to William E. Conklin for his insight about the key role of pre-adjudicative agreement or, more broadly, a shared commitment to justice.
69. See Dworkin, LE, supra n.17, at 66-67, and 91-92, for the first four and the fifth points respectively.
70. This is confusing because even though the demands of integrity would seem to push us towards a uniform set of principles that would apply to all areas of law (i.e., in tort, contract and criminal), the current divisions or separate categories of law (which Dworkin calls "departments") must be accepted because integrity also requires general consistency with past practice. This is why Dworkin posits his general principle of "local priority" - which demands that interpretation work from the lowest, or most local department of law and only look beyond it when offered no choice (the image here being interpretation in concentric circles): Dworkin, LE, supra n.17, at 250-54 and 402-403.
71. Dworkin, LE, supra n.17, at 102 and 208, respectively.
72. Dworkin, "Law, Philosophy", supra n.19, at 473;
73. accord: Dworkin, "Law, Philosophy", ibid., 470.
74. Dworkin, "Indeterminacy and Law", supra n.41, at 7, cautions that "[i]t would be a serious mistake to export a justification designed for one domain ... to another without very great care."
75. For example, in Law's Empire, supra n.17, at 185-86, when speaking about the relations of US states in a federal system, Dworkin states that "[i]ntegrity holds within political communities, not among them, so any opinion we have about the scope of the requirement of coherence makes assumptions about the size and character of these communities" (emphasis added). Thus there would seem to be no basis for comparison of the laws of each state. Dworkin gets round this problem at the latter page only by arguing that integrity holds at the federal level as well as state level (giving rise to the idea of integrity as applicable to all US law, not just the law of each state). He does not raise the possibility of integrity working at an international level.
76. At another point, Law's Empire, ibid, 195-206, he deals with the kind of situation where the purpose of the community is not at issue, but the compatibility of a particular practice with that purpose is. Dworkin looks at this in the context of obligations that may arise within different types of communities, and contrasts "bare" and "true" types of communities (the latter giving rise to obligations and the former not doing so). The example he uses here is that of arranged marriages, an example which parallels the conflict at the centre of our discussion, that between individual rights and culture: ibid., 204-205. The distinction he makes that allows internal criticism of the practice of arranging marriages becomes that between bare and true communities, with interpretation serving as the mechanism by which to distinguish the two, and only the latter giving rise to serious obligations. Interpretation in this case serves two roles, to determine the nature of the community (and hence the obligation), and then later, if a true community exists, to help decide the conflict between obligations owed to that community and other grounds of rights. But note that in examining this issue Dworkin always works within the context of a shared purpose towards which all interpretation can strive.
77. Dworkin, LE, supra n.17, at 113.
78. Dworkin, LE, supra n.17, at 52-53 (constructive interpretation), 164-67, 176-78 and 405-407 (integrity).
79. A more abstract form of constructive interpretation, rather than a specifically legal one, is preferable. Cf. Christodoulidis, supra n.40, at 15-17 (dangers of using law as a meta-narrative).
80. Dworkin, "Law, Philosophy", supra n.19, at 471-72.
81. This distinction is similar to the one that Dworkin uses regarding the difference between a "concept" and a "conception" of law, with the former being the broader (unifying) purpose against which we interpret the subpurposes: LE, supra n.17, at 70-71.
82. Christodoulidis, supra n.40, at 5.
83. Cf. Christodoulidis, supra n.40, at 3-4 (centrality of community to interpretation).
84. Dworkin, LE, supra n. 17, at 52;
85. accord: Dworkin, LE, ibid., 228.
86. Dworkin, LE, supra n. 17, at 273.
87. Dworkin, LE, supra n.17, at 272-75.
88. Dworkin, LE, supra n.17, ch. 4.
89. This kind of vision is hinted at by Dworkin at the end of his work when he distinguishes between "inclusive" and "pure" integrity: LE, supra n.17, at 404-407. The former is the kind of integrity that is used to help decide how the law can best reflect the often incommensurable demands of justice, fairness and procedural due process by restricting its gaze to the institutions and compartments of law; the latter, pure form is the higher, more abstract vision of integrity that allows judges to make these kinds of calculations by "pursu[ing] coherence in the principles of justice that flow through and unite different departments of law":
90. LE, ibid., 406. This entails looking at the law from the perspective of the community as a whole, being a "purified interpretation speak[ing] ... directly to community personified":
91. LE, ibid., 407.
92. See, e.g., Catharine A. MacKinnon, Toward a Feminist Theory of the State (London: Harvard University Press, 1989), ch. 5 (consciousness raising);
93. Maria Suarez Toro, "Popularizing Women's Human Rights at the Local Level: A Grassroots Methodology for Setting the International Agenda", in Peters and Wolper, supra n.5, at 189-94.
94. In looking for such a universal purpose underlying human rights we must not conflate the purpose with the existing international human rights framework, the latter merely being one conception of the former.
95. Scott Davidson identifies these rights from a cross-comparison of the International Covenant on Civil and Political Rights, European, African and American human rights conventions. The same author goes on to argue that they also represent jus cogens, making then non-derogable in both human rights law and international law in general: Davidson, Human Rights (Buckingham: Open University Press, 1993), at 40-41 and "Appendix 1: Comparative Table of the Rights and Freedoms Protected by the Major Human Rights Instruments".
96. See also the various lists discussed in: Donnelly, Universal Human Rights, supra n.37, ch. 2;
97. G.J.H. van Hoof, "Human Rights in a Multi-Cultural World: The Need for Continued Dialogue", in Essays in Honour of Wang Tieya, ed. Ronald St. John MacDonald (Dordrecht: Martinus Nijhoff, 1994), 877-91. Both of the latter two authors offer their own core lists as well, at pages 24-25 and 890 respectively.
98. E.g., Donnelly, Universal Human Rights, supra n.37, at 41 states: "All human rights are 'basic rights' in the fundamental sense that systematic violations of any human right preclude realizing a life of full human dignity - that is, prevent one from enjoying the minimum conditions necessary for a life worthy of a human being."
99. Donnelly, Universal Human Rights, supra n.37, at 2;
100. see also idem, at 23-25. The treaties and declaration referred to are the International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, in force 23 Mar. 1976 and 28 Mar. 1979 (art. 41), 999 U.N.T.S. 171 and 1057 U.N.T.S. 407;
101. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, in force 3 Jan. 1976, 993 U.N.T.S. 3;
102. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948).
103. Donnelly, Universal Human Rights, supra n.37, at 1-2;
104. cf. Donnelly, Universal Human Rights, ibid., 23-27 and 60-65.
105. This is a positivist form of universalism. But cf. Annie Bunting, "Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies", Journal of Law & Society 20 (1993), 6-22, at 9 (summarising the different forms of universalism before strongly criticising them);
106. Doris Elisabeth Buss, "Going Global: Feminist Theory, International Law, and the Public Private Divide", in Challenging the Public/Private Divide: Feminism, Law, and Public Policy, ed. Susan B. Boyd (Toronto: University of Toronto Press, 1997), 360-84 (criticising universalising forms of feminist theory at the international level).
107. Donnelly, Universal Human Rights, supra n.37, at 1;
108. see also Jack Donnelly, "State Sovereignty and International Intervention: The Case of Human Rights", in Beyond Westphalia? State Sovereignty and International Intervention, ed. Gene M. Lyons and Michael Mastanduno (Baltimore: Johns Hopkins University Press, 1995), 115-46, at 125. The International Covenant on Civil and Political Rights has attracted 138 state parties, of which 58 are signatories, and the International Covenant on Economic, Social and Cultural Rights has attracted 136 state parties, of which 59 are signatories. When compared to the 185 states that are currently members of the United Nations, this means that almost three-quarters of the states in the UN are parties to each of these treaties.
109. All statistics from United Nations, Multilateral Treaties Deposited with the Secretary-General, United Nations, New York ST/LEG/SER. E, status as at 23 June 1997, as available on http://www.un.org/Depts/Treary, accessed on 2 July 1997.
110. Donnelly, Universal Human Rights, supra n.37, at ch.3.
111. Donnelly, Universal Human Rights, supra n.37, at ch.6.
112. E.g., article 27 of the International Covenant on Civil and Political Rights, supra n.66.
113. See generally Kamenka, supra n.12 (discussing the complexity of rights and warning against the oversimplification or obfuscation of their ambiguities and conflicts).
114. Compare the CIA's figure of "266 narions, dependent areas, other and miscellaneous entries" to the mere 185 member states of the United Nations: US Central Intelligence Agency, "World", in The 1996 World Factbook, as available on http://www.odci.gov/cia/publications/nsolo/ factbook/w.htm, accessed on 2 July 1997.
115. See, e.g., Jean Bethke Elshtain, "Exporting Feminism", Journal of International Affairs 48 (1995), 541-58 (revealing how feminists have used international human rights in a variety of innovative and unconventional ways to support their causes).