In her excellent article, Susan Okin draws attention to the inherent tensions between group rights and women's rights. She rightly points to the fact that "establishing group rights to enable some minority cultures to preserve themselves may not be in the best interest of the girls and women of the culture." This is patently true. The time has come for liberal political theorists, and with them liberal political activists, to acknowledge the unfortunate consequences of group rights: the strengthening of dominant sub-groups and the privileging of conservative forces. As women rarely belong to either group they are among the first to be harmed by these rights. Their plight is not unique, it is shared by all those who wish to diverge from social norms and question the traditional role of social institutions.
Why do group rights serve best the interests of the powerful and conservative members of the community? To begin with, the notion of group rights presupposes that "the group" is a unified agent. Rights are bestowed upon the group in order to preserve "its" traditions and defend "its" interests. Identifying "the" tradition and "the" interests of the group thus becomes a precondition for the realization of group rights. This motivates group leaders to foster social and cultural homogeneity, or at least an appearance of homogeneity, even at the cost of internal oppression.
Attempts to produce homogeneity are particularly dangerous in those communities which lack a formal, democratic decision-making process. Under such circumstances, tribe elders, members of councils of sages, determine the groups' norms and interests. Members of such bodies are commonly men, who endorse a rather conservative set of views. Social norms and institutions place these individuals in a privileged position; group rights consolidate this position even further. Granting such communities group rights thus amounts to siding with the advantaged and the powerful against those who are already weak, oppressed, and marginalized, with the traditionalists (often even the reactionary) against the nonconformists, the reformists and the dissenters.
The conservative nature of group rights is reinforced by the justifications adduced in their defense. The group is given rights in order to preserve its culture, language, tradition. These are described by most defenders of group rights in nostalgic, non-realistic terms; they are depicted as being authentic, unique, and even natural. Hence it often appears as if every deviation from "the tradition," any attempt to change the group norms or institutions, risks the continuous existence of the community. Consequently, those who attempt to consolidate the conservative way of doing things are seen as defenders of the community; those who wish to reform it are perceived as a fifth column.1
We should adopt a more realistic, less sentimental, view of traditional communities and their cultures.
Frances Svensson vividly describes the fate of Pueblo Indians who seek to diverge from the group's tradition. Delfino Concha, a member of the tribe, converted to Protestantism; according to his testimony he had suffered persecutions at the hands of members of his tribe. He says that he was subject to cruel injustice, exposed to "intimidation, and isolation from social affairs enjoyed by the community simply because I did not conform to the religious function." Svensson's response to this testimony is sympathy not with the persecuted individual but with the persecutors. The tribe's reaction to religious dissent is more understandable, he argues, "when it is remembered that in tribal societies, and even more particularly in one which is a theocracy, religion is an integral part of the community's life which cannot be detached from other aspects of the community. Violation of religious norms is viewed as literally threatening the survival of the entire community."2 The use of the term "survival" in this context is alarming, as it fosters the feeling that any violation of social and religious norms, any reform of traditional institutions, or change in the group's customary ways of life endangers the very existence of the group and must be rejected.
In Liberalism, Community and Culture, Will Kymlicka also sides with those who aspire to preserve group life from undergoing change. This is particularly clear in his discussion of mixed marriages. When members of Indian tribes which live in reserves marry non-Indians, a problem of overcrowding might emerge; consequently it will be impossible to allocate a plot of land to each and every family. Kymlicka describes two traditional solutions to this problem: the first adopts the blood criteria, according to which "only those with certain proportion of Indian blood can be full members of the band, so non-Indian spouses never acquire membership, nor do children if they have less than the required proportion. Non-members never acquire the right to participate in band government, and should the Indian spouse die, they have no right to residence and so can be evicted, while non-member children must leave the reserve at the age of eighteen."3 The second solution endorses a criterion based on kinship; according to this standard, every member of the nuclear family has the same status but not all mixed families can acquire membership. The custom is that Indian women who enter into mixed marriage lose their status.4
Needless to say, both solutions disadvantage individuals who deviate from the traditional norm of marrying within the tribe, and the kinship approach specifically discriminates against women. Moreover, both solutions embody a reactionary assumption that all members of the tribe should adopt traditional occupations which are land consuming. But why not encourage some Indians to acquire new types of occupations? Why must Indians adhere to the same kinds of occupations their forefathers, or foremothers, engaged in? If Americans from Virginia can retain their identity despite the fact that they live very different lives than their agrarian predecessors, why cannot Indian men and women retain their identity while undergoing social and economic change?
A great deal of paternalism in embedded in the claim that, in order to retain their distinct identity, Indian tribes must preserve their traditional forms of life. It presupposes that while "we" can survive change and innovation, can endure the duality created by modernity, "they" cannot. Consequently, it is assumed that "we" can reinvent ourselves and our culture time and again, but "they" must adhere to known social and cultural patterns in order to survive.
In Multicultural Citizenship, Kymlicka somewhat revises his support of group rights and acknowledges the fact that liberals "should reject internal restrictions which limit the right of group members to question and revise traditional authorities and practices."5 And yet he ignores the fact that unless the communities he wishes to protect will liberalize and democratize, giving them self-government rights and means to protect their religious and cultural practices will reinforce patterns of domination and orthodox tendencies, which in fact restrict the ability of individuals to criticize and reform their traditions.
As this analysis suggests, group rights are either dangerous or of little importance. They are dangerous if they can be turned inwards to restrict the rights and freedom of members; they are of little importance if they can only be bestowed upon groups which treat their members with equal concern and respect. Very few of the groups that demand group rights, if any, accord with this description.
Three lessons emerge from this discussion: first, we should adopt a more realistic, less sentimental, view of traditional communities and their cultures. Second, we must trust the ability of members of these communities to withstand change and allow them, if they wish, to reform their traditions and lifestyle without losing their rights. Thirdly, we must entrust the faith of the community in the hands of its individual members rather than in the hands of some dominant privileged group. This can be achieved only if the notion of group rights is abandoned, and a revised notion of individual rights takes its place.
1 I have discussed the dangers embedded in the notion of authenticity in particular and in group rights in general in Liberal Nationalism (Princeton: Princeton University Press, 1993), chap. 3.
2 Frances Svensson, "Liberal Democracy and Group Rights; The Legacy of Individualism and its Impact on American Indian Tribes," Political Studies 27, 3 (1979).
3 Will Kymlicka, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989), p. 149.
3 Kymlicka, Liberalism, Community, and Culture.
5 Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995), p. 37. Kymlicka does mention that, fearing sexual discrimination, the Native Women's Association of Canada demands that decisions of Aboriginal governments will be subject to the Canadian Charter of Rights and Freedom. This demand does not seem to change his commitment to the idea of tribal autonomy which places such decision outside the Charter's sphere of influence.
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