I read this post at Dispatches with interest since it touches on a topic which is particularly bedeviling to progressives: how to support human rights without trampling on other peoples' cultures in the process.
I'm a little more cautious than Ed in this respect; I agree that progressives need to avoid condoning "barbarism" in the name of preserving cultural pluralism, but at the same time I suspect that the examples which Ed cites represent the extreme end of a very grey spectrum. What we really need, more than anything else, is a framework or methodology which allows us to condemn certain traditions or practices without exposing us to the charge of cultural imperialism.
I tried to think through how I would go about doing this and immediately ran into the issue of first principles. Were I to try to build such a moral system I would probably start with an assumption of self-ownership and/or personal autonomy as the basis for fundamental rights. But I immediately find myself stopping and asking how I can justify such a position? Obviously I can't; axioms are, well, axiomatic.
But that's really the heart of the issue; there are wide swaths of the planet that don't take self-ownership as a starting point for morality. Off the top of my head I can think of at least three other popular (in a demographic sense) variations:
- Might makes right
- God says so
- For the good of the community
From an epistemological standpoint these alternatives are all just as valid as self-ownership, so what are we to do? How can we justify our preference for one over the other while maintaining a commitment to a pluralistic society.
The answer, at least as far as immigrants are concerned, is to treat the process of immigration as a social compact between the immigrant and the state. The state grants the immigrant the right to dwell within its borders and, in exchange, the migrant must accept the state's preferred basis for morality. This preference might be difficult to tease out in some circumstances, but in other cases its really, really, really obvious.
Let's look at Germany, for example, since German legal rulings sparked this post. Article 1 of the Basic Law establishes the preservation of human dignity as the overriding principle of the German state. This principle is non-negotiable; the Basic Law was written so that Article 1 can't ever be amended. It's easy to argue that immigrants in Germany implicitly agree to be bound by Article 1 when they take up residency therein. Once such agreement is established it becomes pretty easy to avoid the charge of cultural imperialism/intolerance when seeking to eliminate practices which are incompatible with the state's understanding of human rights.
In the case of Germany, in particular, the emphasis on the protection of human dignity is so pronounced that you wonder how any judge could fail to notice it. Which brings me to a second thought that I want to explore: are the cases which Ed cites really examples of cultural relativism? I'm inclined to say that, in at least some of the cases, what we're seeing is not the result of cultural relativism but rather is a combination of legal artifacts with plain old bad judging. Consider example one:
So Nishal went to the courts to request an early divorce, hoping that once they were no longer married he would leave her alone. A judge who believed in the rights of women would find it very easy to make a judgement: you're free from this man, case dismissed.
But Judge Christa Datz-Winter followed the logic of multiculturalism instead. She said she would not grant an early divorce because - despite the police documentation of extreme violence and continued threats - there was no "unreasonable hardship" here.
Why? Because the woman, as a Muslim, should have "expected" it, the judge explained. She read out passages from the Koran to show that Muslim husbands have the "right to use corporal punishment". Look at Sura 4, verse 34, she said to Nishal, where the Koran says he can hammer you. That's your culture. Goodbye, and enjoy your beatings.
We may find that line of reasoning abhorrent, but it's not an example of cultural relativism. Rather, she states that she couldn't grant an early
divorce because the beatings fell within the scope of behavior that the wife should have reasonably anticipated when entering into the marriage. Presumably the judge would grant the woman a divorce, but not an expedited one. This particular miscarriage of justice arose due to a faulty understanding of typical Islamic marriage on the judge's part, leading her to conclude that the plaintiff had not meet the evidentiary burden necessary to grant an expedited divorce. At no point did the judge assert that, because the couple was Muslim, it was morally acceptable for the husband to beat the wife.
The same can be said of the second example:
A Lebanese-German who strangled his daughter Ibthahale and then beat her unconscious with a bludgeon because she didn't want to marry the man he had picked out for her was sentenced to mere probation. His "cultural background" was cited by the judge as a mitigating factor.
Again, it doesn't seem that the judge was asserting a culturally-based license for a certain behavior. In this case it appears that the judge treated the defendant in much the same way that we would treat someone who had suffered abuse as a child; in both situations their respective upbringings diminish their capacity to appreciate the distinction between right and wrong. I can actually argue that this is an example of paternalism rather than cultural relativism, since it treats the defendant's cultural heritage as akin to a mental defect.
Again, let me emphasize that I think both of the above are horrendous examples of the legal system gone South. But that the same time we should be careful about raising the hoary old specter of "cultural relativism" when what we're seeing apparently results from a number of factors, some of which have nothing what-so-ever to do with moral reasoning.