Steiner, Henry J.

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Notre Dame Law ReviewVolume 66Issue 5 The Rights of Ethnic Minorities Article 19April 2014Post-Lecture DiscussionHenry J. SteinerFollow this and additional works at: http://scholarship.law.nd.edu/ndlrThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationHenry J. Steiner, Post-Lecture Discussion, 66 Notre Dame L. Rev. (1991).Available at: http://scholarship.law.nd.edu/ndlr/vol66/iss5/19Post-Lecture DiscussionSPEAKER: HENRY J. STEINERMODERATOR: TRAI LESPEECH: "IDEALS AND COUNTER-IDEALS IN THE STRUGGLEOVER AUTONOMY REGIMES FOR MINORITIES"DATE: MARCH 1, 1991Professor Le: On behalf of the audience I would like to thank youfor that presentation. I would like to make just two comments;they will be very short, and I believe there are a lot of questions,so I will leave the floor to you.Now, my first remark pertains to the distinction you makebetween so-called core rights, or individual rights, which you de-fine as negative rights-rights not to be tortured and so forth-asindividual rights, and rights of groups. It seems to me that if aphilosopher has defined man as a social animal, I do not see howwe can take the individual out of the context of the group. Maybethat distinction between core rights, as pertaining to the individualper se, and group rights is not truly a distinction in view of thecontext in which the International Covenant on Civil and PoliticalRights arose.It seems that the emphasis should not s6 much be on theindividual as it should be on the question of discrimination basedon race, religion, and so forth. I would look at the Covenant inthat context and spirit. That is my first remark.The second remark is that I do not really see the contradic-tion between the rights of individuals and rights of groups, asopposed to the human rights of all humankind, if the purpose isto advance certain types of values and rights. Before you can berecognized as a group, it seems that the question of participationbecomes a moot question. That is my second remark.Professor Steiner. Let me say that I do believe the Covenant contem-plates significant social or group activities. I think that one of thegreat fears has been that people are swallowed up by their groupidentities, and lose their individual identity. The individual be-comes the object of the community rather than being the subjectof a human right. We see these tensions in the world today be-tween duties and rights, between communities and individuals,NOTRE DAME LAW REVIEWwithin different religions and cultures. Nonetheless, I think weneed to recognize that we humans must have intercourse withothers, in every sense of the word, to survive as human beings andto grow. We need political exchange, we need cultural exchange,we need all sorts of links to and associations with other people.Assuming these are all permitted, group identities will remainstrong, but I would not go so far as to say that the individualmust be swallowed up in the communal identity. Ultimately, thereis the sense that the individual is supreme. I think these covenantsreflect their western origin in expressing this ultimate judgment.I think we must keep the sense of adventure and promise inlife. We must guard against the world's becoming divided intoconstituencies that just want to protect themselves against inter-change and growth-that want to go back in history rather thanforward, or to hold it just where they are. I do not think anygreat culture to this day has prospered in that way. I do not thinkhumanity has prospered as a whole in that way. So the question ishow individuals participate in social life. It may well be that cer-tain kinds of group claims are very plausible.Participant. Two of the cultures that I have done field work in areIndia and, last year, South Africa; these are cultures that havedeveloped two of the most stratified systems of group rights, orthe group concept of rights. Perhaps some of the dangers you arepointing out are indeed apparent there. I just wanted to make twoobservations. One is that the very word "individual" is itself one ofthe ways we think about what a person is. That is, the word "in-dividual" seems to carry with it a kind of concept of a unity that isnot separable, which, in fact, has rights without reference togroups and so forth. And one of the leading anthropologists inIndian culture points out that in India, for example, the conceptof the person is really more and is better expressed as the con-cept of the individual.I would suggest that perhaps this very concept, this idea thatyou can look both ways at people, both as social beings and alsoas entities who carry their own rights without reference to theirgroups, is one of those sorts of fundamental facts with which wewill constantly have to live. There may be no real way to avoid theproblem because of the cultural nature of human beings.I was struck by the fact that in these two cultures, India andSouth Africa, it is precisely group rights that are the problem. Infact, this concept of group rights has been specifically rejected[Vol. 66:1561STEINER DISCUSSIONbecause of the fact that this course has been used by whites tosuggest, in the future of South Africa, that their rights as a groupneed to be protected. And civilly, reverse discrimination in India,as you know, also causes so many problems that it will probably bea continuing theme.Professor Steiner. I have no doubt that some of my beliefs have beeninfluenced by my Western origin. I simply could not be giving thesame talk if I had been born a Muslim in, say, India. Communal-ism is not my cultural experience in this country, but I do notbelieve that what I suggested is inconsistent with their being pow-erful but voluntary communities. Who knows what voluntary is? Iam born what I am, and never was given choice. To extract orisolate myself from my heritage-for example, to move out of theHindu community in India-may be legally permitted, but maynot be sociologically possible in terms of one's own life. For aTurk to cross the line in Cyprus and marry a Greek may be notjust ill advised, but fatal in a given situation of ethnic hostility. Sothe notion of what is voluntary and what is coerced, of belongingto a community by choice or necessity, is a very complex one.Participant: I would like to point to a specific problem in thiscountry between group rights and the rights of a specific ethnicgroup to exercise its own culture. The whole development ofwomen's rights, the right of a woman not to be discriminatedagainst, causes a dilemma when there is a claim of a specific eth-nic entity to exercise its own ethnic identity. In a patriarchal soci-ety, there is a very strong conflict between these claims.I also want to point out that the right to be the same is thesame as having economic and political equality. The right to bedifferent is a right you can only exercise with other people withthe same right. For example, language: if you speak a language,you can only exercise that right with other people who also speakthat language. It is not a question of rejecting group rights assuch, but it is a question of speaking of rights in an individualsense, as an individual entitlement, and then protecting that spe-cific right so that you can exercise it within a group.Professor Steinen You can see a lot of these rights as either individu-al or collective, and the notion of gender discrimination is a verygood example.1991)NOTRE DAME LAW REVIEWShould a group's self-determination, in some fashion, trumpother notions that are considered fundamental in the West? Forexample, the argument can be made that insistence on genderequality is inconsistent with the freedom of religion that is assuredby the Covenant. You can see how these conflicts come up withinthe very core of the Covenant. A man could argue that it is notthat he wants a lot of control over women, but that he is simplyrepeating what he has been taught by his religion. If he is a be-liever, an outside analyst may find all kinds of ideological, andeconomic, and political explanations of his belief, but he may alsobe manifesting elements of profound and deep belief. All religionshave beliefs which are so fundamental.So what is deprivation of human rights? Do you view depriva-tion from a perspective outside the culture or from within theculture? For example, are women within Islamic culture free tochoose in a Western human rights sense until they become awareof the possibilities of change of their status? Are they free if theythen prefer to remain in their status within traditional Islam? Isthe infusion of Western norms itself a horrendous assault on thestructure of Islam?Terrible contradictions arise when systems are simply in irrec-oncilable conflict given the premises of the universality of thehuman rights movement.Participant: I think it is just an argument for equal protection, oris our Constitution just as color blind? You said that it is danger-ous to create a group autonomy right because it perpetuates thebarbed wire between groups. You said that this might be good be-cause putting the barbed wire in will stop bloodshed, or the con-flict between the groups. Will it ever be possible to get rid of thebarbed wire, or are you perpetuating the split more by leaving itin?Professor Steiner Well, that's certainly one of the fears that I ex-pressed in my talk, which relates to what was discussed in Profes-sor Chen's talk. If you treat the state as necessarily the highestgood, which not very many people do, and if you say the state isthe supreme realizer of human values, then break-downs of thatstate constitute something very serious. The state is sometimes adefender of human values, but it is often oppressive and insistentupon exerting its own power, or the power of whoever is in con-trol of the state. In those circumstances, this separation of the[Vol. 66:1561STEINER DISCUSSIONoppressed ethnic minority may be the only answer, and it is notsimply bloodshed that may justify it. I'll use bloodshed metaphori-cally. A minority may be systematically trampled upon, its culturedenigrated. There are minorities in America that fit that de-scription absolutely, even post-slavery. So maybe during differentstages in history the minority will feel, even shy of bloodshed, thatit is at the bottom of the heap in its state and that it will remainthere forever unless it is given the right to participate in somemeaningful way in shaping its own destiny, as through autonomyschemes.That, to me, is a powerful claim. But, I take it as a reactionto the denial of the ideal in the larger society of opening up, in agenuine way, opportunity and possibility of growth to all. There-fore, it is the second best. If the people in charge are not goingto permit these other groups to rise, as those people themselvesmust have risen, the alternative may become bloodshed, fragmen-tation, or simply systemic, ongoing oppression. That is why Iwould never state that group autonomy rights are necessarily adenial of human rights.Participant: If lawyers and universities looked at the InternationalCovenant of Civil and Political Rights and tried to find thesegroup rights in the three articles you mentioned, they would dis-cover that the individual rights, to some extent, also cover somegroup rights. It was very important that you mentioned the factthat a declaration on minority rights is now also under discussionin the United Nations. But while the distinction between these twotypes of rights, group rights and individual rights, is perhaps alittle less problematic for analytical jurisprudence, it is of particu-lar importance for practical policy making and practical politicians.I think this contradiction cannot be understood and explainedunless we add to the notions of individual rights and group rightsa third notion: democracy, or the regime of democracy.The maximum form of exercising your group rights is collec-tive exit or separation, excision. But there are no guarantees thatthis new subdivision, let it be a state, will not be a totalitarianregime, or a new form of suppression. For example, subdivisionsin Russia today want to separate themselves from the democraticgovernment of Russia and introduce the classical communist gov-ernment as it existed in 1945. And now the world communitymust decide how to weigh these possibilities, because it is not rarethat the acceptance of a group right, or the maximum group right19911NOTRE DAME LAW REVIEWto secede, or to create a state, may directly violate the individualhuman rights, such as freedom of speech, because the group rightand the political structure of the group may be nondemocratic.Professor Steiner: I agree very much with what you said. I think it isabsolutely the dilemma. I don't know enough about the SovietUnion to make the kinds of judgments that you make, but I havemet numbers of people from the southern republics, and theSouth's determination to secede is very real. One of the questionsposed is what will a break-up there, or in Yugoslavia, or betweenSlovakia and Bohemia, or elsewhere, mean for the individual?The question must focus on the welfare of the individual. Andif you are going to find a former Soviet Union in which eachgroup is hostile behind barbed wire, keeping every other languageand religion out, it is not going to be an advance in civilization.In some respects, it may be an advance on what was an extremeof authoritarian control from the center. So those are exactly thecontradictions and the uncertainties I have in mind. It is so hardto make gross abstract judgments about what is right in thesedifferent situations the way we can say, "You have a right not tobe tortured."Professor Le. We have time for one last question.Participant: We have so far talked about the problem as if therewere a tension between staying behind the barbed wire and goingacross the barbed wire. I certainly grant you that, but in addition,as it is very often with tensions in dialectics, does not the one, infact, almost further the other? I think many of these determina-tion demands are made because there is not participation becauseof the 80/20 percent. The minority, in fact, withdraws in order toparticipate at times. I have often thought that maybe we need anew concept, which we might call "deferred statehood," meaningthat the minority holds off the possibility of separating entirely, oris willing to defer separation, so that it has that space, and then itexplores from that separate position the possibility of continuinglinkage. And, in fact, I think that some of the inter-ethnic rela-tions in Southeast Asia preliminary to the colonial period havefeatures of this concurrent connection and distance, and I wouldlike to ask whether we could borrow some of that.[Vol. 66:1561STEINER DISCUSSIONProfessor Steiner It may be that some modern version of a humaneconception of the older empires would be a suitable alternative tothe modern exclusive state as a way of thinking of achieving thiskind of diversity. It may be the way Western Europe is going, un-like Eastern Europe. I certainly don't think we should view thepresent state as an absolute given which must forever continue inits present form as the basic unit of an international system.These have been useful and good questions for me to thinkabout. You probably know more about colonialism than I do. Butit seems to me from what I do know that there are two contradic-tory strands: one is, the rape of native cultures, at every level frompop culture to traditional land holding and status. At anotherlevel, it was not in the interest of the colonials to rule everysquare inch of turf, and there was a lot of diversity left among themany principalities in, say, India: the Muslim communities and theHindu communities, the North and the South.In many post-colonial states, the oppressive power of the cen-ter, all the way from tax power to the infusion of a particularform of culture, often a. Western-derived, modernizing kind ofculture, is far more powerful than what was present under colo-nials who were content to extract their riches, keep the locals inorder, suppress rebellion, and otherwise let local life go on, andwhen necessary divide and conquer by setting one group againstanother.So there is this two-edge way of thinking about the post-colo-nial, self-determining state and its effects on tribal structures, ordifferent ethnic communities.What was the thrust of your second question?Participant (repeated): Whether we should recognize the tensionor, in fact, see the mutual aspects of these two forms; separatingin order to participate.Professor Steiner. Yes, and maybe we'll have to experiment withlots of forms that way. Recall the attempt to create the City ofMandela a while back, which was an attempt by a group of blacksliving in the Boston area, in a place called Roxbury, to form theirown self-governing community.If you really do feel blocked out of a large political process,and you have no access to City Hall, different forms of communityorganization and devolution of power to community groups maybe an alternative that I would encourage.1991]1568 NOTRE DAME LAW REVIEW [Vol. 66:1561On the other hand, I'm saying that under the American Con-stitution, hence under constraints that are ethnically or religiouslydefined. This may raise thorny problems under our Constitution.Nonetheless, I'm all for experimenting in a lot of different waysthat would be ongoing ways of living together or learning fromeach other.

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