10 Cultural theory of rights

Dr. Viralaxmi Moganty

epgp books

 

 

1. Learning Outcomes

  • This chapter introduces the reader with general features of cultural theory and also foundations of this theory in the early thinkers.
  • This chapter also makes the reader to analyze the popular cultural theories in the present context.

2. Introduction:

To understand cultural theory and its contribution to theory of human rights one has to know the term culture. “Culture is the heritage of learned symbolic behaviour that makes the humans human”1. Culture can be seen in many ways. Raymond Williams (1983,p. 90, cited. John, storey2), defines culture in three ways: one, to refer it as a “general process of intellectual, spiritual and aesthetic development; found in the works of philosopher; artists and poets. Second one is to represent ‘a particular way of life; of people; a period or a group’ found through development of literacy, sports and religious development; youth sub cultures; of lived culture or practices. And, the third one is found in the signifying texts; works and practices of intellectual and artistic activities: Storey says that third type of definition may be thought as the first one that represents poetry; art etc., But John Storey contends that the third definition would “allow us to speak of soap opera, pop music and comics”.

Culture can be in various forms in human societies. These are Cultural history found that from about 1890 onward the evolutionists supposed that all human societies follow the same course of development” and they suppressed the theories of doctrines of the social evolutionists who contend that different cultures are found in different contexts of time space to standardize human mind and uniform capacity for human invention.3 Cultural theory also involves “arguments about the relationship between culture and nature, culture and society (including material processes), the split between high and low culture, and the interplay between cultural tradition and cultural difference and diversity”

From the history on anthropology we find that there are two main types of arguments behind all the cultural theories. One theory pre supposes a psychological unity among all mankind human beings faced with similar situations will react in the same way. On other hand there are theories which presume the existence of social facts outside the human control”. But sociological research studies on culture aim to find an “autonomous world of social truth by eliminating all human variable”.

There are many theorists right from early sociologists like Montesquieu; Comte; Spencer; Marx; Durkheim; Simmel; Weber ; Radcliffe-Brown, Malinowski and Parsons in the early times who are generally called as masters of sociology . Strauss, Habermas and Foucault are from the recent front. And it is in the thinking of recent social scientists like Williams and Thompson; Ellis and Wildavsky theories on popular culture and an extended theory of cultural theory is shaped.

3. Multicultural conceptions: Common value systems in early theories

The aim of any social science is to study society as much as possible in all aspects and analyze these and to improve the society. For man is a social animal. The term “social” is inclusive many human aspects that are essential for man’s social life. In fact man does not and cannot live in isolation he as to depend on others for his physiological and for a complete well being on others. Thus his social life is inclusive of material as well as intellectual relations with others which in turn help his other sides of social life namely, economical, political and legal aspects in a group; society or a state. Thus cultural theory is an inclusive theory of many thinkers; no theory is the end word on theory of culture. For society is an evolving human entity and it goes on. Hence as said above many sociologist starting from Montesquieu are dealt here. Summarily the theories are in the following manner.

Offermans (2010) details early theorists’ perception on society based on culture and society. To Charles Baron De Montesquieu (1689-1755) who is called as the ancestor of sociology built his work on Aristotle’s conception of state. Aristotle differentiated republican government form monarchical government and despotic forms. While monarchical government is based on honour; despotic on fear republican governments are based on the basis of virtue of organization. Montesquieu held that different groups of people have different requirements and different characteristics. Thus his theory is different from classical conception where they allowed only two types of government: primitive and modern.

Auguste Comte (1798-1857) held that it is due lack of value consensus; presence of different values within one society competing ways of life result into. Different groups work differently: industrial groups that work on self-regulation, militant groups based on central regulatory authority etc., But Comte’s attempt to raise consciousness; to evolve dynamic and changeable character of societies is through religion according to Comte. The chief function of religion is to regulate all these variables and leave one variable of life: hierarchism.

 

Religion as a regulating Institution

To Spencer heterogeneous societies are more adaptable than homogenous social structure9. To Karl Marx the class struggle between the two economic classes the proletariat and the capitalist classes will end to a classless less society and this leads to an egalitarian society when the proletariat class is free from false consciousness and realizes the merits of being united and resists the dynamics of capitalist class. In facts the dynamics of the capitalist class is only due to the economic power which in turn is accumulated due to the unpaid labour due to proletariat class.

Emile Durkheim (1858-197) is another sociologist who developed theory on holism. To Durkheim “society is irreducible to individual behaviour and that even the more individualistic appearing acts are a function of the social unit.10 To Georg Simmel (1858-1918) society is a product of interactions of individuals. Like Durkheim Simmel contends that individual cannot go beyond collectivity and differently from the collectivity. However Durkheim sensed that there is an “urgency to find a midway between determinism and agency, an idea which was later adopted by Pierre Bourdieu and Anthony Giddens”. Talcott Parsons (1902-1979) hold a common value system however with two value systems: normative conformity non-normative deviance. Sir Henry Maine is often credited with founding the study of Legal Anthropology through his book Ancient Law (1861), and although his evolutionary stance has been widely discredited within the discipline, his questions raised have shaped the subsequent discourse of the study. This ethno-centric evolutionary perspective was pre- eminent in early Anthropological discourse on law, evident through terms applied such as ‘pre-law’ or ‘proto-law’ and applied by so-called armchair anthropologists.

Malinowski a recent thinker through whom however, a turning point was presented in the 1926 publication of Crime and Custom in Savage Society by Malinowski based upon his time with the Trobriand Islanders. Through emphasizing the order present in acephelous societies, Malinowski proposed the cross-cultural examining of law through its established functions as opposed to a discrete entity. This has led to multiple researchers and ethnographies examining such aspects as order, dispute, conflict management, crime, sanctions, or formal regulation, in addition (and often antagonistically) to law-centred studies, with small-societal studies leading to insightful self- reflections and better understanding of the founding concept of law.

4. Recent Theories: Egalitarian notions

A comparative theory on cross-cultural theories shows that there are two main styles of arguments. One, theories which suppose a psychological unity among all which holds that human beings faced with similar situations will react in the same way. The second types of theories presume that existence of social facts lying outside human control.

Levi-Strauss (1908-2009) presumed that human characters are the same everywhere; Savage mind has the same mind as the civilized. He is one of the major contributors to theories on structuralism.

Structuralism aims at finding the underlying patterns of human thought in all forms of human activity13. Strauss search is on the uniform pattern of language of the whole culture and its general laws. He contends that beneath the vast heterogeneity of myths there can be discovered a vast heterogeneity of myths and homogeneous structure; general laws; varieties of parole; language and an operational value. He investigated many systems14. His love for humanity and environment is depicted in his word to National Public Radio on November 3,2009 in remembrance of his All things Considered:

“There is today a frightful disappearance of living species, be they are plants or animals. And it’s clear that the density of human beings has become so great, if I can say so, that they have to begin to poison themselves. And the world in which I am finishing my existence my existence is no longer a world that I like”.

Strauss was in argument on the nature of freedom with Jean Paul Sartre an existentialist philosopher. Further Strauss was insisting on the social scientist to organize the real data in a simple and effective way so that it represents an uniform pattern of all studies on the culture. Strauss proposed universal laws.

Paul-Michael Foucault (1926-1984) is philosopher and social theorist. He is also called as post- structuralist and post modernist. He addressed the relationship between power and knowledge. Foucault was in tune with the views of Strauss. Foucault was critical of ultra-nationalistic and anti- Semitic views. Yet he protected some of the militant leftists from being arrested and tortured. Some students became a “Foulcaudian tribe” and did collective research. Foucault co-founded Group d’Information su les Prisions (GIP) along with journalist Jean-Marie Domenach investigated the poor conditions in Prisions and gave prisoners a voice in French society. He was highly critical of the penal system on that the prison converted petty into hardened delinquents. Through his work discipline and punishment in 1975 he examined the penal system as an evolution from corporal and capital punishment to penitentiary system that influenced the Europe and United States by the end of 18th century. Foucault was also an active anti-racist; protested against racist killings; killing of Arab migrant Dejellali Ben Ali . His campaign was formalized as the Committee for Defence of Rights of Immigrants. Foucault’s response during Iranian Revolution and support Islamism was that he believed that “we must treat it with respect than with hostility” He also studied Zen Buddhism by staying in Japan in 1978. Foucault gave a cautious support for the Socialist party under the Government of Francois Mitterrand in 1981. Along with Pierre Bourdieu a sociologist condemned Mitterrand’s inaction in Liberation. He continued his support for solidarity in Poland.

Jurgen Habermas (1929-2007) was a German philosopher and a sociologist. He argued that legitimacy of the states must be based on the political rights of individual subjects. He was influenced by many sociologist and philosophers; psychologists and linguists. Philosophers Viz., Hegel, Kant, Marx Marcuse and sociologists like Durkheim, Mead, Weber and psychologists like Piaget and Kohlberg and linguistic philosophers like Wittgenstein, Austin and Strawson. Thus he could develop his views on society, rights and power and religion and other aspects drawing some insight from all the said personalities. He is popular for his theory of communicative reason or communicative rationality.

Habermas is popular for his views on modernity; his system is devoted to explore the possibility of reason and human capacity to pursue rational interest. His works namely The structural transformation of the public sphere: An Inquiry into a Category of Bourgeois society, a translation in 1989 details the history of development of the bourgeois public sphere from its origins. His speech on the Public role of religion in secular context in 2005 held the significance of separation of church and state from neutrality to intense secularism. He held that state should not acknowledge ethnic, national or racial identity but enforce political and legal equality of all individuals.

Habermas’ contribution to communicative rationality looks into interpersonal relations as linguistic communication but not as structure of the cosmos. His social theory advances the goals of human emancipation while maintaining inclusive universalistic framework. Habermas’ works contribution to society follows Kant’s tradition and is humane and egalitarian in nature.

Furthermore Habermas a Marxist and held that there are two cultures: critical culture that represents the original culture. The other type is representational culture where only one party is active and the other passive. For example French revolution which was caused by representational culture. An example for lack of critical culture and domination of representational culture is the present day process of modernization according to Habermas. In his theory of Communicative Action (1981), based on Parson’s theory he contends that in all aspects of everyday life the role of public sphere is missing; critical public including mass media turned into a passive consumer public. Instead of development done through “public- minded rational consensus”, “public sphere” became a site of self-interested “contestation for resources of the state”. Habermas held that democratic public life cannot develop where matters of public are not discussed by citizens.

Further very recent thinker Petrakis and Kostis (2013)18 divides cultural background variables into two main groups:

  1. The first group covers the variables that represent the “efficiency orientation” of the societies: performance orientation, future orientation, assertiveness, power distance and uncertainty avoidance.
  2. The second covers the variables that represent the “social orientation” of societies, i.e., the attitudes and lifestyles of their members. These variables include gender egalitarianism, institutional collectivism, in-group collectivism and human orientation.

A new and promising approach to culture has recently been suggested by Rein Raud, who defines culture as the sum of resources available to human beings for making sense of their world and proposes a two-tiered approach, combining the study of texts (all reified meanings in circulation) and cultural practices (all repeatable actions that involve the production, dissemination or transmission of meanings), thus making it possible to re-link anthropological and sociological study of culture with the tradition of textual theory (https://en.wikipedia.org/wiki/Culture)

5. Critic on Popular Culture:

Apart from above theories that suffice cultural theories for development of man, his rights, democratic state, there are some other theories in Raymond Williams’ The Long Revolution, 1961 and E.P.Thompson The making of English Working Class, 1963. Williams focus was on the culture as ‘a whole way of life’ and Thompson’s focus was on that ‘how groups handle the raw material of social and material existence. His thoughts opened new thinking about culture as against “narrow understanding of culture in a narrow literacy and aesthetic sense”. Both Thompson and Williams dealt with the dimensions of culture in terms of collective process and meaningful ways of life19. To Williams the present culture can be identified with different moments: ‘dominant’; ‘emergent’ and ‘residual’ due to cultural forces acting in the historical conditions of production and consumption (1990, cited.,)20 In fact according to Williams the notion of culture in its general and modern sense came into English thinking in the period of the Industrial Revolution (Williams, in his Culture and Society, 1963, cited.)21 Storey sites two cultures of Britain: common culture that is shared by all and elite culture which is produced and consumed by elite till industrial revolution. But after industrialization and urbanization, Storey says that there was a panic generated due to the fear of French revolution “it would be imported to Britain”. Yet political radicalism and trade unionism could not be destroyed but driven underground to influence the middle class (2003, cited.,). To define popular culture:

Popular culture is a site where the construction of everyday life may be examined. The point of doing this is not only academic – that is an attempt to understand a process or practice – it is also political, to examine the power relations that constitute this form of everyday life and thus reveal the configurations of interest its construction serves (Turner, 1996:6,cited.,).

On this pop culture Thompson in his The Making of the English working class held:

“Industrialization and urbanization had redrawn the cultural map. No longer was there a shared common culture, with an additional culture of the powerful. Now for the first time in history, there was a separate culture of the subordinate classes of the urban and industrial centers. It was a culture of two main sources (i) a culture offered for profit by the new cultural entrepreneurs, and (ii) a culture made by and for the political agitation of radical artisans, the new born urban working class and middle-class reformer, all described so well by E.P. Thompson…” (Storey, op.cit, p.17).

Further in the hands of Antonio Gramsci the role of culture opened a new opening to identify secured political and moral leadership and authority. Gramsci works helped to go beyond culturalist theories to reconstruct states.

Some of the key questions in Legal anthropology

Most anthropologists now agree that universal human rights have a useful place in today’s world. Zechenter (1997) argues there are practices, such as Indian ‘sati’ (the burning of a widow on her husband’s funeral pyre) that can be said to be wrong, despite justifications of tradition. This is because such practices are about much more than a culturally established world view, and frequently develop or revive as a result of socio-economic conditions and the balance of power within a community. As culture is not bounded and unchanging, there are multiple discourses and moral viewpoints within any community and among the various actors in such events (Merry 2003). Cultural relativists risk supporting, the most powerfully asserted position, at the expense of those who are subjugated under it.

More recent contributions to the question of universal human rights include analysis of their use in practice, and how global discourses are translated into local contexts (Merry 2003). Anthropologists such as Merry (2006) note how the legal framework of the UNDHR is not static but is actively used by communities around the globe to construct meaning. As much as the document is a product of western Enlightenment thinking, communities have the capacity to shape its meaning to suit their own agendas, incorporating its principles in ways that empower them to tackle their own local and national discontents.

Female genital cutting (FGC), also known as female circumcision or female genital mutilation remains a hotly debated, controversial issue contested particularly among legal anthropologists and human rights activists. Through her ethnography (1989) on the practice of pharonic circumcision among the Hofriyat of Sudan (1989) Boddy maintains that understanding local cultural norms is of crucial importance when considering intervention to prevent the practice. Human rights activists attempting to eradicate FGC using the legal framework of the Universal Declaration of Human Rights (UNDHR) as their justification, run the risk of imposing a set of ideological principles, alien to the culture attempting to be helped, potentially facing hostile reactions. Moreover, the UNDHR as a legal document, is contested by some as being restrictive in its prescription of what is and is not deemed a violation of a human right (Ross 2003) and overlooks local customary justifications which operate outside of an international legalistic framework (Ross 2003).

6. Summary

We find that cultural theorists through their umpteen studies are trying to arrive at certain social facts as social laws. Whether it is a study on myths, religion or cult there is a uniform pattern in the society as we found in the early thinkers like Durkheim as well as Strauss a modern thinker. Despite the multicultural theoretical perception there is a vast impact of these theorists from Montesquieu to Habermas; there is an intense effort to see them as existential individuals but aimed to protect themselves under certain uniformly framed universal laws. Montesquieu puts it:

“Man is a physical being, is like other bodies, governed by invariable laws. As intelligent being, he incessantly transgresses the laws established by God, and changes those which he himself has established”

And we also come to know that as Strauss held the savage mind has the same qualities as the civilized mind at existential level but in search of egalitarian societies we need to further our research and practice to in a humane direction. Furthermore one should look at the recent contributions and critic on popular culture in the lines of Marxist notions of state and individual; one needs to relate the critical views to the present globalized world.

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References

  1. Roger M. Kessing, Theories of culture, available at http://kodu.ut.ee/~cect/teoreetilised%20seminarid_2009%20s%C3%BCgis/1_seminar_KULTU UR_29.09.2009/text_1.pdf
  2. John Storey, Cultural Theory of Popular Culture: an Introduction, fifth edition, available at https://uniteyouthdublin.files.wordpress.com/2015/01/john_storey_cultural_theory_and_po pular_culturebookzz-org.pdf
  3. Edmund R. Leach, “The Comparative Method in Anthropology:” in David L. Sills(Ed.,), International Encyclopedia of Social Sciences, Vol 1, London: The Macmillan Company &The Free Press, New York 1968/reprint 1972 25Edmund R. Leach, op.cit. p. 344.
  4. Astrid Offermans, History of cultural Theory: A summary of historical development regarding cultural theory, International Centre for Integrated Assessment and sustainable development(ICIS), Maastricht University, ICIS Report
  5. Culture in https://en.wikipedia.org/wiki/Culture
  6. Claude Levi-Strauss, available at https://en.wikipedia.org/wiki/Claude_L%C3%A9vi-Strauss retrieved on 29 July 2017
  7. Michael Foucault, http://en.wikipedia.org/wiki/Michel_Foucault
  8. Jurgen Habermas, available at https://en.wikipedia.org./j%BCrgen_Habermas
  9. John Storey, Cultural Theory of Popular Culture: an Introduction, fifth edition
  10. David L. Sills (ed.)International Encyclopedia of Social Sciences