Human Rights Law and the Demonization of Culture

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títuloHuman Rights Law and the Demonization of Culture
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Human Rights Law and the Demonization of Culture

(And Anthropology Along the Way)1

Sally Engle Merry

Wellesley College

2003. Polar: Political and Legal Anthropology Review 26:1: 55-77.

A few weeks ago, I received a phone call from a prominent radio show asking if I would be willing to talk about the recent incident in Pakistan that resulted in the gang rape of a young woman, an assault apparently authorized by a local tribal council. Since I am working on human rights and violence against women, I was happy to explain my position that this was an inexcusable act, that many Pakistani feminists condemned the rape, but that it was probably connected to local political struggles and should not be seen as an expression of Pakistani “culture.” In fact, it was the local Islamic religious leader who first made the incident known to the world, according to news stories I had read. The interviewer was distressed. She wanted me to defend the value of respecting Pakistani culture at all costs, despite the sentence of rape. When I told her that I could not do that, she wanted to know if I knew of any other anthropologists who would. I could think of none, but I began to wonder what she thought about anthropologists. Anthropologists, apparently, made no moral judgments about “cultures” and failed to recognize the contestation and changes taking place within contemporary local communities around the world. This also led me to wonder how she imagined anthropologists thought about culture. She seemed to assume that anthropologists viewed culture as a coherent, static, and unchanging set of values. Apparently cultures have no contact with the expansion of capitalism, the arming of various groups by transnational superpowers using them for proxy wars, or the cultural possibilities of human rights as an emancipatory discourse. I found this interviewer’s view of culture wrong-headed and her opinion of anthropology discouraging.

But perhaps it was just one radio interviewer, I thought. However, a recent article in Human Rights Quarterly paints another odd portrait of anthropology and its understanding of culture. In this piece, Karen Engle, a law professor, talks about the continuing “embarrassment” of anthropologists about the 1947 statement of the Executive Board of the American Anthropological Association which raised concerns about the Universal Declaration of Human Rights (2001: 536). Engle claims that the statement has caused the AAA “great shame” over the last fifty years (2001: 542). Anthropologists are embarrassed, she argues, because the statement asserted tolerance without limits. While many anthropologists now embrace human rights, they do so primarily in terms of the protection of culture. 2 She argues that the tensions over how to be a cultural relativist and still make overt political judgments that the 1947 Board confronted remain. She acknowledges that not all anthropologists think about culture this way, but suggests that many do, including those who produced the AAA statement.

Relativism, as she describes it, is primarily about tolerance for differences and is incompatible with making any moral judgments about other societies.

But I think this incompatibility depends on how one theorizes culture. Thinking about culture as a homogenous, integrated, and consensual system means that it must be accepted or criticized as a whole. This article describes a more complex way of understanding culture developed within anthropology that changes the terms of the relativism/universalism debate.
The Relativist Critique and the Critique of Relativism
The Executive Board of the American Anthropological Association prepared a statement opposing the proposed Universal Declaration of Human Rights and submitted it to the UN Commission on Human Rights in 1947 (1947: 539-543). Written by leading members of the AAA, the statement saw the UDHR as a new form of imperialism. The authors asked, "How can the proposed Declaration be applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?" (1947: 539). It argues that ideas such as the "white man's burden" have justified controlling the affairs of millions of people all over the world and that "the history of the expansion of the western world has been marked by demoralization of human personality and the disintegration of human rights among the peoples over whom hegemony has been established (1947: 541)." The statement was very much a defense of small, beleaguered communities made in the name of freedom, raised to the level of a universal value. It argued that “man is free only when he lives as his society defines freedom (1947: 543).” Thus, the Statement articulated the value of tolerance for difference and a critique of ethnocentrism along with the values of freedom and choice, values expressed in the UDHR. It is an assertion of moral values that includes tolerance for cultural difference as one of those values, not a denial of the ability to make moral judgments at all.

As Alison Renteln points out, the relativism of the statement is more about enculturation than about tolerance (1988). It argues that the value systems of a society are adopted by their members through a process of learning and socialization (1988: 62). The statement did not say anything goes, only that individuals become committed to their values through belonging to a social group and therefore cannot be judged by other standards. Her interpretation of relativism differs from Engle’s reading of tolerance without limits.

Not all anthropologists agreed with the statement at the time. Julian Steward and H.G. Barnett objected not because they were appalled at tolerance without limits but were unhappy about the political nature of the statement for a value-free science like anthropology (Steward 1948: 351). But the major difference among the anthropologists who wrote the statement and those who debated it concerned what kind of society they were discussing. Those behind this statement, such as Melville Herskovitz, had studied small communities in colonized places, such as Africa and the Caribbean. They saw in the human rights approach a replay of earlier imperial efforts at transformation. The statement and its theory of cultural relativism referred to societies experiencing pressures to change under the influence of Euro-American expansion and colonialism (see Herskovitz 1972). In outlining his theory, Herskovitz draws on examples of villages in Africa while earlier Boasians tended to do research among small communities of Native Americans. Thus, the empirical ground for the relativist position was the colonized peoples in Africa and the United States.

Critics of the statement challenged its appropriateness for "civilized" nations. As Julian Steward pointed out, "If the plea that cultural values be respected means merely that the primitive peoples, who are on the receiving end of civilizing influences, be treated with greater understanding and tolerance, there can be little objection to it (1948: 351)." But, he continues, does that mean we approve of the social caste system of India or the racial caste system of the United States? Or that we approve of the exploitation of primitive peoples through Euro-American economic imperialism? When the anthropological gaze shifted to modern states, there was clearly much to condemn. Indeed, anthropologists such as Franz Boas, Ruth Benedict and Margaret Mead working in the same tradition were quite ready to criticize their own society.

Tolerance for Nazi Germany was a particularly sticky point at the time. The statement itself obliquely alluded to this problem by claiming that in states that deny citizens the right of participation in their governments or seek to conquer weaker peoples, underlying cultural values may provide a brake on these activities. This does not resolve the problem of where the boundary should be drawn between tolerance and places where it is necessary to fight intolerance, but it does show that there was a clear recognition among anthropologists in the 1940s that tolerance for cultural difference could not be asserted to the exclusion of all other ethical concerns. The critical point is this: the anthropological position was not the defense of all cultural practices but a more nuanced recognition that tolerance of difference was one of several important ethical considerations, as well as one under siege at that historical moment. Indeed, the statement’s cultural relativism is based on an ethical assertion of both freedom and respect for cultural difference.

Why does Engle describe the anthropological reaction to this statement as one of enduring embarrassment? Surely there is a legitimate basis for these concerns. Contemporary anthropology continues to be concerned about the desire of external reform movements, whether generated by colonialism, globalization, or human rights reformers, to change cultural practices without sufficient respect for difference. This was a reasonable worry in 1947, still a deeply colonial era, as it is today under the pressures of globalizing capitalism. These political concerns are not a source of embarrassment to anthropology then or now. Nor, it seems, was the statement ever intended to say that all cultural differences must be tolerated, but that tolerance is a value along with others such as freedom.

Is anthropology being caricatured in these portrayals? There seems to be a misunderstanding in some parts of the media and the law about anthropology’s emphasis on the importance of tolerance for cultural difference. I think that the misunderstanding grows out of erroneous ideas about the culture concept itself. If culture is thought of as a reified thing, as bounded and static, then cultural relativism means defending every practice and every belief at all costs. But this is not the way contemporary anthropologists think about culture. Indeed, Engle concludes that if anthropology saw culture as contested, hybridized, and dynamic, its difficulties with relativism would diminish. But, she argues that relativism remains entrenched in the AAA and concepts of hybridity and creolization have not entered the discourse of the AAA Committee on Human Rights (2001: 559).
Portrayals of Culture in Human Rights Documents on Women’s Rights
Conceptions of culture as static tradition are fundamental to contemporary transnational human rights discourse. Political movements such as the fight against female genital cutting/mutilation reinforce this notion of culture. This practice has mobilized enormous attention and concern in the global North as well as in parts of Africa. The North movement has capitalized on old and well-established tropes of traditional culture, as well as on conceptions of African savagery and Islamic anti-woman ideology. In addition, it offers a titillating opportunity to imagine African women’s genitalia. While I certainly do not deny the physical pain and suffering this practice entails nor its role in the highly gendered ways women’s sexuality is restricted and women’s subordination ensured, I want to note the global preoccupation with this practice at the expense of many others. Unequal access to education and jobs, to clean water and adequate food, and to divorce and equal inheritance also burden African women. The struggle against FGM has been conceptualized as one against culture, or more specifically, against harmful traditional cultural practices. It has merged with critiques of dowry death in India, although this is quite a different situation since dowry killings are not an accepted cultural practice but offenses prohibited by law that occur after dowry agreements have broken down. Critiques of these region-specific anti-woman practices become part of a more general critique of cultural practices that harm women, while cultural practices that protect women receive far less attention. However, some legal scholars take a far more nuanced and thoughtful approach to understanding culture, such as Abdullahi An Na’im (eg., 1990; 1992). An Na’im seeks to integrate human rights and local cultural understandings rather than seeing them as oppositional.

But this perspective is exceptional in human rights discourse. Over the last two and a half years, I have been doing ethnographic research on the international human rights system and its approach to violence against women. This entails going to world conferences such as Beijing Plus Five, to the annual meetings of two UN Commissions, the Commission on the Status of Women and the Human Rights Commission, and attending the twice-yearly meetings of the committee that monitors the major women’s convention, the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). I have talked at length to members of these bodies, to the experts on the CEDAW committee, to NGO activists who attend, and to government and NGO leaders in several Asia/Pacific countries about whether these UN documents and discussions matter to them and how they matter. I have read the major documents and observed the production of new documents.

Some of these documents are legally binding conventions ratified by individual countries, such as CEDAW, while others are policy documents to which signatory governments commit themselves in principle, such as the outcome statements of the Beijing Fourth World Conference on Women in 1995 and the Vienna Declaration of 1993. The CEDAW committee hears reports presented by the 170 countries that have ratified the convention and asks questions of government representatives concerning the extent of ratification, so that CEDAW hearings provide insight into both government perspectives and that of the global experts who make up the committee (see Merry 2003).

Overall, this is a very legalistic domain of activity. Although the NGOs bring a far more socially aware approach to problems such as women’s inferior status than human rights lawyers do, much of the work of producing and refining documents has a very lawyerly quality to it (see Riles 2000). During sessions of document production, whether in global meetings such as Beijing Plus Five, technically a special session of the UN General Assembly, or in meetings to draft resolutions at the Human Rights Commission (HRC) or the Commission on the Status of Women (CSW), representatives of the concerned nations, speaking as nations, propose language for the documents. For example, the chair of such sessions will call on someone as “Malaysia” or “India.” The proposed language is rarely accompanied by any justification for the change or any data that might address the issue under discussion. Instead, the process is one of reaching “agreed language” through compromises among various interest groups, constituted by groupings of countries that have a basically regional as well as economic flavor. For example, one of the groups is referred to as JUSCANZ and includes Japan, the USA, Canada, Australia, and New Zealand. Another is the Group of 77 plus China that incorporates well over 77 developing nations as well as China. Sentences and paragraphs for which there are competing versions are placed in brackets, listed according to the group of nations that has proposed it.

Document production consists of finding compromises among the alternative versions listed. In this situation, reverting to the language of an earlier document, on which consensus has already been achieved, provides a solution to intractable differences. Textual struggles occur around issues such as whether sexual orientation should be listed as one basis for discrimination against women or whether the effects of globalization and structural adjustment should be mentioned as a source of hardship for women. On the one hand, this process leads to bland and relatively convoluted texts, but on the other hand it is quite remarkable that representatives from countries all over the world are working to collaboratively produce a unified document concerning such contentious subjects as torture or the position of women (see Riles 2000). Many of the debates about language involve significant substantive differences about issues such as the causes of poverty or the acceptability of same-sex relationships.

The documents generated at global conferences, from Commission meetings, as well as those from the CEDAW hearings and the general recommendations the CEDAW committee writes typically talk about culture as a barrier to progress. Culture is often equated to customs, traditions, and ancient practices. Documents concerning women are particularly likely to describe culture in these terms. When nationalist and religious fundamentalist leaders resist women’s rights in the name of culture, they foster this critical stance toward culture by those who promote women’s equality. At the same time, the critique of culture builds on imperial understandings of culture as belonging to the domain of the primitive or backward, in contrast to the civilization of the colonizer. Residues of this understanding of culture emerge in contemporary human rights law.

Many human rights documents, such as CEDAW, see culture as an obstacle to the human rights of women. The portrayal of culture as an obstacle to women’s rights has been increasing over time. The text of CEDAW was completed in 1979. Its Article 5 on Sex Roles and Stereotyping calls on states parties to take all appropriate measures:

“a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (DAW 2000: 18)”

In this and many other documents concerning women’s human rights, the demands for cultural change are unambiguous.

Moreover, policy documents and conventions frequently assert that customs or practices should not be used to deny women their rights. The Declaration on the Elimination of Violence against Women adopted unanimously by the General Assembly of the United Nations in 1993 takes this position. Although it has no binding force, this Declaration does have the moral force of world consensus (Coomaraswamy and Kios 1999: 182). The Declaration is a comprehensive document which defines violence against women broadly to include physical, sexual, and psychological harm or threats of harm in public or private life (Article 1). It prohibits invoking custom, tradition, or religious considerations to avoid its obligations and urges states to exercise “due diligence” to prevent, investigate, and punish acts of violence against women whether perpetrated by the state or private persons (Article 4; Van Bueren 1995: 753). The concept of culture is not discussed or developed, but seems to be the equivalent of traditions, customs, and religion.

Similarly, the 1993 Vienna Declaration stressed the importance of “the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices, cultural prejudices and religious extremism (Vienna Declaration and Platform for Action (A/conf.157/24/Part I: 19 , para. 38). This paragraph does not explicitly condemn such customs and practices, however. The 1995 Platform for Action from the Beijing Fourth World Conference on Women takes a stronger stand. It states: "Violence against women throughout the life cycle derives essentially from cultural patterns, in particular the harmful effects of certain traditional or customary practices and all acts of extremism linked to race, sex, language or religion that perpetuate the lower status accorded to women in the family, the workplace, the community and society (United Nations 1995: Section D: 118, p. 75).” According to Strategic objective D.1, governments should: “Condemn violence against women and refrain from invoking any custom, tradition or religious consideration to avoid their obligations with respect to its elimination as set out in the Declaration on the Elimination of Violence Against Women;” (Platform for Action D.1: 124 (a), p. 76). By urging governments to refrain from invoking culture, the Platform goes beyond the 1993 document that asks governments to reconcile conflicts between rights and culture.

The CEDAW committee has produced 24 general recommendations over the last twenty years to expand and interpret the meanings of the Convention itself. These recommendations are not legally binding but are part of the jurisprudence of the Convention. The commentaries they provide frequently describe culture as a barrier to women’s equality and the enjoyment of rights. General Recommendation 21 from 1994, for example, discusses marriage and the family. Article 3 asserts that CEDAW recognizes the inalienable rights of women but goes further than other conventions “by recognizing the importance of culture and tradition in shaping the thinking and behaviour of men and women and the significant part they lay in restricting the exercise of basic rights by women.” (United Nations Human Rights Website, Treaty Bodies Database, General Recommendations of CEDAW). With reference to Article 16 on the family, the commentary argues that polygamy is practiced in many countries and that this contravenes a woman’s right to equality with men. “The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary laws. This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention.” (Commentary 14 under Article 16, General Recommendation 21). Here customary laws are described as responsible for the persistence of polygamy.

With reference to the reservations some countries lodge against basic parts of the convention, such as Article 2 which asserts non-discrimination as a principle and Article 16 which applies this principle to the family, the commentary again locates the obstacles in a mix of religious fundamentalism, tradition, and economic hardships while citing modernity as the force which counters this tendency:

“42. Many of these countries [with reservations] hold a belief in the patriarchal structure of a family which places a father, husband, or son in a favourable position. In some countries where fundamentalist or other extremist views or economic hardships have encouraged a return to old values and traditions, women’s place in the family has deteriorated sharply. In others, where it has been recognized that a modern society depends for its economic advance and for the general good of the community on involving all adults equally, regardless of gender, these taboos and reactionary or extremist ideas have progressively been discouraged (Commentary on Reservations, point 42, General Recommendation 21).”

While there is no doubt that cultural demands for women’s subordination have been made in the name of nationalism or religious fundamentalism, this text locates the source of oppression for women largely in the domain of beliefs and values. Thus, it reinforces the idea that it is culture that is subordinating women and modernity that frees them. That modernity is also a cultural system seems lost in this formulation. Culture is relegated to the domain of the past, to religious extremism, and to irrational “taboos.” Its opposite is modernity and the norms of human rights.

The CEDAW committee takes a similar stance toward women’s political participation. In General Recommendation 23, from 1997, the commentary on Article 7 on political and public life states:

“10. In all nations, the most significant factors inhibiting women’s ability to participate in public life have been the cultural frameworks of values and religious beliefs, the lack of services and men’s failure to share the tasks associated with the organization of the household and with the care and raising of children. In all nations, cultural traditions and religious beliefs have played a part in confining women to the private spheres of activity and excluding them from active participation in public life.” (General Recommendation 23, Comment 10). While this attribution of cultural factors is undoubtedly accurate, again the responsibility is located in the domain of beliefs and values to the exclusion of political, economic, or structural factors.

Another manifestation of the understanding of culture prevalent in human rights law is the concept of harmful traditional practices. Originally developed to describe female genital mutilation, this term describes practices that have some cultural legitimacy yet are designated harmful to women, particularly to their health. In their discussion of traditional practices harmful to women, Coomaraswamy and Kios refer to cultural and traditional practices interchangeably (1999). Customs criticized as harmful traditional practices include
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