Seyla Benhabib in The Claims of Culture reported the case of a young Laotian American woman abducted from her work at Fresno State University and then raped. Her assailant, a Hmong/Laotian immigrant, argued that among his tribe this behaviour is the customary way to choose a bride. He uses so-called "cultural defence" so that his conduct should be judged according to his own cultural standards, his own norms of the just and unjust. The court indeed seemed to agree in part, deciding of a relatively light sentence. This event is an institutional application of the claim "Justice depends on the identification of the individuals with their community". What has happened to Themis, pointing to the divine norm of Justice, for her daughter Dike, goddess of human law and order, enemy of falsehood, and protector of a wise administration of justice within the human community? Essentially defined as an absolute norm, justice, as relative, sounds like an oxymoron.
[...] It finds in its liberal path an achieved version in Rawls' theory aiming at detaching the principles of justice from community dependency. His deontological project seeks to separate, for political purposes, the right, character of politics and pure procedure, from the good, depending on our comprehensive moral and philosophical conceptions. This justifies the hypothesis of the veil of ignorance, of an individual detached of any social or particular consideration. Minimally constructed, autonomous subjects affirm the basic principles of right that are to govern the pursuits of individual and social various conceptions of the good in political society, principles that exclude the presupposition of any comprehensive philosophical doctrine or position about the ends. [...]
[...] The end here is the same as the one of liberals equality of freedom and chances and of the republicans the integration for a stronger identification to the political community as the frame of reference of a common good. Only the situation of exclusion and domination makes a differential treatment necessary. Cultural differences are an expression of human dignity which can help integration. These “universal dignity”[iv] principle and integration purpose are a common denominator in republicanism, liberalism and communitarianism. Philip Pettit even reconciles republicanism and multiculturalism arguing that promoting the non-domination of one individual of a class implies that the whole group beneficiates of its members' liberty accounting for the specific link between them. [...]
[...] The extreme and controversial current legal and political stake of the assertion “justice depends on the identification with a community” is the extreme application of the principle of moral indifference of the public institutions in the constitution of a polytechnic legal system: the institution of justice itself is made dependent on the identification. “Real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class but does not reflect the values of this minorities” explains McHugh a magistrate of the High Court of Australia. [...]
[...] Communitarian systematic claims forget that the individual's identification is the condition of its existence as a community and fetters him. Making the community the subject of rights is a way to withdraw them form the individual and to determine his exercising of his own rights. Indeed, Kymlicka argues that minority rights are consistent with, and indeed promote the liberal ideal of individual freedom and retains the notion of the individual as the central focus/paradigm of liberalism. Communiatarianism with identity politics pursue an objective shared with republicanism and liberalism: the integration of agents to sustain a common idea of justice. [...]
[...] To conclude, identification of individuals with their community is a necessity for justice to be felt and accepted as such; it indeed requires that the self turns to the other with empathy. societies that we are striving to create free, democratic, willing to some degree to share equally require strong identification on the part of their citizens” (Taylor). Justice as the possibility of holding a judgment about the political community and the governing institution allocating social goods depends on the interiorized values of individuals: one's feeling that he is fairly treated and that he is grateful toward them. [...]
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