Archives for category: social criticism

close-the-gap

Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].

 

When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.

 

[1] http://antar.org.au/campaigns/justice-campaign

[2]http://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/37-summary-recommendations

[3] Walker v NSW (1994) 182 CLR 45

 

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

[5] https://www.humanrights.gov.au/publications/indigenous-deaths-custody-report-summary

[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)

[8] http://www.alrc.gov.au/publications/report-31

[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59

[10] http://www.naccho.org.au/aboriginal-health/close-the-gap-campaign

Above image: https://nacchocommunique.files.wordpress.com/2013/02/close-the-gap.jpg

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Objections to deliberative democracy state that culturally plural societies are too diverse to be able to enact such a concept, that social groups who are marginalized in these societies would not have the access or ability to participate in such decision-making processes. This essay argues that deliberative democracy is applicable to these societies and may be the only method of addressing historical injustices through the reconciliation process, shared stories and perceptions of a common good.

 

 “First we argue for equality, by appealing to the arbitrariness of the natural lottery. Then we allow departures from equality provided that these are not worse for those who are worst off. This explains why, in Rawls’s phrase, the worst-off have the veto, so that benefits to them should have absolute priority.” Parfit (2000, p.121)

 

Theorists of deliberative democracy assert that democracy relies upon notions of a common good and an egalitarian ideal, and also that democracies should be developed to encourage civic responsibility and self-respect. While many modern societies are culturally plural, as long as a system of government allows for a fair system of bargaining that is representative of all groups, these theorists think that it will be a legitimate system (Cohen, 1997). This essay will look at the different concepts that underpin deliberative democracy and assert that such a democratic process is both applicable to a modern, pluralist society and that collective choice will also lead to better understanding between the different groups that inhabit these societies.

John Dryzek’s “Discursive Democracy” (1990) was the first book written about deliberative democracy. Dryzek states that ‘the final decade of the second millennium saw the theory of democracy take a strong deliberative turn’ (Dryzek, 2000:1).  The opportunity to participate became the imperative in asserting effective deliberation and claims for or advocated by others could be justified in terms that would be acceptable to the participants. For Dryzek (2000), deliberative democracy should not be confined to strict forms of ‘public reason’ but should be able to engage in more tolerant positions that include testimony, humour, emotion, storytelling, argument, rhetoric and even gossip. He contends that this would help deliberation in a non-coercive way and rule out dominant powers manipulating outcomes or attempting to enforce an ideological conformity.

This also explains how deliberative democracy has come to be seen by some as being too chaotic and unmanageable through inclusion, and yet by others as being too restrictive through exclusion. For these objections even the idea of rational argument is elitist and exclusive to those who cannot explain themselves comprehensively (Dryzek, 2000:5). However, Dryzek’s inclusion of story allows those that do not have the same worldview as the dominant group to come to an arena of democracy and show through narrative why their preferences might be the ones that are chosen by the collective. Indigenous people can benefit from democracy in this way, instead of having to rely upon the political representation of someone who has little concept of their worldview or culture.

Jürgen Habermas developed the concept of deliberative democracy, basing its legitimacy in reason. Democracy, asserted Habermas, is supposed to encourage free critical reasoning about common affairs designed to guide the practice of coercive powers (Cohen, 1999:386). Joshua Cohen states that one of the reasons that Habermas contended that democracy should be deliberative, was to ensure the impartial justifiability of outcomes (Cohen, 1999:402). John Rawls (1972) also reflected this in his thinking about political decision-making where his principle of participation required fair political equality. Deliberative democracy relies upon the participants engaging in free deliberation amongst equals as the basis of their legitimacy and Cohen (1999) thinks that in this way deliberative democracy is able to address pluralism within a democratic process. Citizens find resolutions to problems of collective choice through public reasoning and establishing a framework for deliberation. It is a plural and diverse association that is committed to resolving problems through collective choice. This is assisted through each party not reaffirming self-interested or mandatory preferences or ideals.

The first step in collective choice is choosing an agenda, then the proposal of different solutions to that agenda with supportive reasoning, and finally settling upon an agreed solution. While all comprehend the necessity of their own good, in deliberative democratic decision-making they also share a commitment to finding decisions that are acceptable to all, even if it involves revising one’s own preferences and beliefs. Deliberation requires critical reasoning because it is not enough in pluralistic societies for people to provide reasons for decisions being based upon preferences, beliefs or ideals. The notion of autonomy is also important in a deliberative democracy, as preferences should be formed by agency rather than circumstance. Therefore, deliberation consists of assessing the common good from the basis of legitimate public reflection on what is an appropriate claim on public resources, rather than notions of preconceived ideas and interests (Cohen, 1997).

Historical injustice means injustices that have occurred across generations from oppressive social practices and institutions. These social practices legitimise exclusion and oppress certain groups because their features mark them as inferior to others. Through this oppression these social groups are vulnerable to exploitation, marginalization, powerlessness, cultural imperialism and violence. If this oppression occurs over a long period of time they become historical injustices. Historical oppression is unique in that it formulates identity in terms of conflict and opposition, leaving a stigma even after reparations have been reparations have been attempted. Indigenous cultures that have been conquered by settler colonial powers are an example of historical injustice. In attempting to address the plural dimensions of historical oppression, democratic inclusion must find a way of resolving these issues (Bashir, 2012).

Benjamin Barber (Young, 1989: 256) highlights the opposition between the general interests of the civic polity and the particular interests of private affiliations. Barber states that concepts of the common group are not enforced from a position of authority but agreed upon as part of a common project. Although Barber states that notions of belonging to particular groups are important as well for people, it could be that concepts such as universal citizenship and deliberative democracy may require a degree of impartiality that humans may not be able to practice (Young, 1989). People understand polity from their particular perspective and the narrower their perspective the narrower will be their political view. This occurs in societies where some are privileged while other are oppressed. To recommend that all citizens leave their perspectives and interests behind merely reinforces the privileged position of some and fails to redress the oppression, all the while silencing it by ignoring the perspective of the oppressed. Young (1989) argues that Barber confuses plurality with privatisation, stating that pluralism encourages particular private interest groups to assert their interests over others. She goes on that instead of unified public realm that does not disregard the particular perspectives of individuals but acknowledges the ‘desire to decide together the society’s policies’ (Young, 1989:258). Therefore Young suggests that there should be specific representation of disadvantaged groups in order to enact affirmative action with regard to their participation in the greater group, the greater group already having a strong enough voice (Young, 1989:262).

An objection to deliberative democracy is that its treatment of basic liberties is unacceptable because it is dependent upon a majority decision and restricts the liberty of individuals. Cohen (1997) responds to this objection by stating that deliberative democracy entails informed and autonomous judgements through public deliberations in which free and civil expression is allowed to take place. In this way it includes the individual in decisions for the majority. Another objection is that public deliberation is, in reality, irrelevant to modern political conditions. It is basically an objection that direct democracy cannot occur in modern conditions because the nature of our states is too large and complex in both population and institutions. Especially with regard to the globalization of citizenship in large conglomeration states like the European Union, this objection states that it is difficult to encourage citizens under such conditions of diversity to consider themselves equal participants in acts of cooperative deliberation (Cohen, 1997). By ensuring that institutions engaged in deliberative democracy have arenas through which citizens propose and debate issues for the political agenda, this objection seems nullified. If these institutions can act across communities and states, through the use of social media and online translators people can engage with each other on a local, national and international level.

Habermas advocated such a communitarian approach to democracy based upon mutual communication. In this way deliberative citizenship can use narratives of shared experience to address thinner concepts of liberal theory and particular interest groups. John Dewey termed this type of deliberative vision as a ‘shared way of life’. For Immanuel Kant, without ‘enlarged thought’ or public engagement in the decision-making process that includes other perspectives there is a failure in the human community to live wisely. If one loses touch with public conversation one becomes sensorily deprived ( Boyte, 1995). Addressing issues in the public sphere that involve marginalised social groups, such as indigenous, disabled, or ethnic minority groups, a necessary part of the political process is allowing those groups to become engaged in decision-making. Approaches to this could be through the convening of town meetings where citizens can be involved in discussing problems, and ensuring that election coverage gives voices to a broad range of citizens, especially those that are marginalised, as well as representatives. Civic journalism also can play a role in revealing conditions that may be hidden from the general civic polity (Sirianni and Friedland).

To ensure that institutions work within the desired parameters of a deliberative democracy, it is necessary to understand that material inequalities usually mean political inequalities. Being from a remote or poor community can mean that you have little chance to engage in the democratic process because of lack of access. Therefore, political parties that are able to be supported through public funding are an important enabling feature of deliberative democracy. In this way material disadvantage in the political arena can be overcome and ensures the manifest equality that is a part of the Rawlsian view. Also, by providing a diverse enough range of issues parties can ensure that debate is not restricted to certain issues and provide more open-ended accounts that can properly inform diverse understanding of the common good (Cohen, 1997).

Objections to deliberative democracy on the grounds that it is either too inclusionary or exclusionary are counteracted by methods of storytelling that include people who might otherwise have their voices silenced. Deliberative democracy can provide a solution to the challenge of pluralism in its insistence that participants are able to engage with each other equally and with liberty of deliberation. Critical reasoning is essential for deliberative democracy because it helps to take the decision-making beyond personal preferences and beliefs. Deliberative democracy should also be viewed as an egalitarian approach. Furthermore, through such a Rawlsian egalitarian approach the difference principle can apply and reconciliation between the general community and disenfranchised groups can occur. This is especially important when it comes to redressing historical injustices.

Deliberative democracy is a way in which those who have suffered from historical injustices can be included in the process of decision-making in an attempt to resolve their issues. Elements of affirmative action are advocated to become part of the arena of deliberative democracy to ensure that those people whose voices are usually silenced, such as the marginalised or oppressed, are included in the decision-making process. Liberty and autonomy are able to be protected in the process of deliberative democracy through public decision-making with all free and civil voices being included.

Finally, although modern states are large and populous, smaller arenas, such as social media, where people can voice their opinions on issues are becoming more popular and varied across the political sphere. Civic journalism and publicly funded political parties are also a good way to make sure that those who have little chance to engage in the democratic process have their material disadvantage addressed. Therefore, if the objections to deliberative democracy are addressed then it should be a successful basis for addressing the claims of marginalised social groups.

REFERENCES:

  1. Bashir, B. (2012), “Reconciling Historical Injustices: Deliberative Democracy and the Politics of Reconciliation”, in Res Publica, 18 (27), 2012, pp. 127-143
  2. Boyte, C.J. (1995), “Beyond Deliberation: Citizenship as Public Work”, Civic Practices Network, viewed on 5 May 2013 on http://www.cpn.org/crm/contemporary/beyond.html
  3. Cohen, J. (1997) “Deliberation and democratic legitimacy” in Deliberative Democracy: Essays on Reason and Politics , Bohman, James; Rehg, William , 1997 , pp. 67-91
  4. Cohen, J.  (1999),”Reflections on Habermas on Democracy”, in Ratio Juris, 12 (4),December 1999, pp. 385-416
  5. Dryzek, J (2000), Deliberative Democracy and Beyond: Liberals, Critics and Contestations, Oxford University Press Inc. New York
  6. Rawls, J., (1972), A Theory of Justice, Clarendon Press, Oxford
  7. Sirianni, C., & Friedland, L. (n.d.), “Deliberative Democracy”, Civic Practices Network, viewed in 5 May 2013 on http://www.cpn.org/tools/dictionary/deliberate.html emocracy reliescieties. cess ise issues.ther too inclusionary or exclusionary are conteracted by habit these societies. cess is
  8. Young, Iris Marion. “Polity and group difference: A critique of the ideal of universal citizenship” Ethics , 99:2 , 1989 , 250-274
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Amatya Sen claims that ‘capabilities’ provide the relevant evaluative space for understanding equality. However Sen’s theory has been criticised on the grounds that it does not provide sufficient specification of which functionings and capabilities are valuable. This essay investigates the capabilities theory with reference to this kind of criticism and finds that, on the basis of its reliance upon universal values of liberty and autonomy,  Martha Nussbaum’s development of capabilities theory could provide a possible framework for specifying valuable functionings and capabilities.
The capabilities approach is dependent upon the evaluation of those particular functionings that are concerned with the value of life. In the study prepared for the United Nations, Amartya Sen put forward the argument that the capability approach is an improvement on other theories of justice, such as utilitarianism, Rawlsian egalitarianism and libertarianism because it uses other informational focuses to consider social advantage (p.30). The main criticism of Sen’s approach is that it is considered vague in that it does not provide sufficient specifications as to what he thinks are valuable. Martha Nussbaum has taken Sen’s capability approach and put what she argues are universal and concrete values upon it, allowing it to become a theory of justice rather than simply an evaluative space for reckoning what values we should hold.

 SEN’S EVALUATIVE SPACE

Sen posits that his approach relies upon the functional states through which one can achieve quality of life. These include such functionings as being adequately nourished, having good health, and are functionings which would be obviously considered values by all. However, other functionings may be more complex but just as widely valued, such as belonging to a social group.  Sen stresses that, although individuals may differ in what they assess as valuable, it is important that these differences are acknowledged when assessing the capabilities that can be derived from these varied functions (Sen, 1993, p.31).

Therefore, Sen (1993, p.32) states that two necessary questions must be asked to evaluate these differing values:

1)      What is the object of the value?

2)      How valuable are the respective objects?

To identify the object of the value entails specifying what Sen terms as ‘the evaluative space’. For utilitarians this is usually defined as happiness or pleasure, whereas the capabilities approach entails identifying the evaluative space in terms of an individual’s capability to function. In this way the capability approach uses evaluative space to allow for a variety of human actions that are ends in themselves rather than means of living or freedoms, such as amounts of income, wealth, or resources etc. (1993, p.33). For Sen, when it comes to questions of freedom of choice then the criteria to be assessed must be linked to the evaluation of the range of capabilities that are open (1993, p.35).

An interesting point that Sen makes about the association of an evaluation of capabilities with freedom is that a person may have the advantage of more freedom than another but it may still result in her achieving less. For example, a person may have access to a capability such as a good education system but for reasons of personal characteristics, such as laziness or distraction, still not bother to achieve their best within it (1993, p.34). Therefore, Sen breaks down these associative values of human advantage as being:

1)      well-being achievement through the promotion of a person’s well-being;

2)      individual achievement through the pursuit of one’s goals; which result in:

3)      well-being freedom

4)      individual freedom (1993, p.34)

For Sen, the well-being of a person becomes an evaluation of the ‘wellness’ of that person rather than an evaluation of their contribution to the state or their success in reaching their goals. In this case, the functionings of the person will be comprised of the four elements above. With regard to this, the functionings of a person appear fundamental to the nature of their well-being, even if they are sourced externally from the person themselves, such as through the fulfilment of helping someone else (1993, p.36).

The functionings that assist well-being vary from the elementary, such as life-expectancy, to the complex, such as being a valued member of the community. The success of the agency of a person requires a broader assessment that can be narrowed to the evaluation of a standard of living to the broader sense of political freedom. It can even be said that the broader sense includes injuries to others, especially loved ones. These things all contribute to the success of someone developing an ability to be happy or the development of their well-being (1993, p.37).

An important thing to note is that, in Sen’s concept of evaluative space, capabilities are derived from functionings. The concepts of well-being and living standards belong to the assessment of functioning rather than capabilities. Therefore a capability is set in the space of functionings (1993, p.38). This calculus model can be used to assess basic needs and is crucial to the identification of capabilities. Sen states that an income-derived concept of poverty can be quite misleading when evaluation allows discrepancies in functionality. This is because the ‘poverty line’ in a developing nation may be quite distinct from that of developed nations (1993, p.40). Sen sees the most advantageous role of the capability approach being the ability to assess varied objects of value, rather than the utility-based approach of happiness or desire fulfilment as being the only value. It also does not place primary goods or resources as value objects, as do the Rawlsian and Dworkinian models (1993, p.44).

Sen (1993, p.49) thinks that it is in its plurality of purpose that that the capability approach works best, especially with regard to well-being and agency. This is especially relevant when judging standards of living and its particular usability lies in its egalitarian calculus that is dependent upon the truth of seeing individual advantages in capabilities and therefore its relevance to other sorts of social evaluation. In having the ability to assess the particular space for the evaluation of opportunities and successes of individuals, Sen asserts that the capabilities approach is an important addition to other theories of justice (1993, p.50).

NUSSBAUM’S UNIVERSAL APPROACH TO THE EVALUATIVE SPACE

Nussbaum takes Sen’s abstract mathematical calculus of functionings and put them into concrete terms through which constitutional guarantees can be drawn in civil society. This is Nussbaum’s universal approach (Nussbaum, 2000, p.70). Through applying concrete concepts Nussbaum breaks down standard theories of justice into questions that show how the capabilities approach can change someone’s life. The central question for Nussbaum is: “What is Vasanti actually able to do and to be?” The answer to this question is sought rather than the utilitarian approach: “How satisfied is Vasanti?”; or the  Rawlsian/ Dworkinian: “How much in the way of resources is Vasanti able to command? (2000, p.71)” For Nussbaum, the priority is to measure quality of life so that capabilities can match functionings. The next thing to do is to argue that if people fall below a functioning threshold that is necessary for justice then it should be considered urgent in terms of the injustice it creates (2000, p.71).

Nussbaum’s criteria is based upon the intuitive concept that particular functions are universal in human life and that it is these functions that separate us from other animals. Using the philosophy of Marx, she argues that humans need to be cultivated through education, leisure and self-expression, and also through socialisation with others. Nussbaum adds to this liberty of thought and association, as well as freedom of religion or worship, being fundamental to human autonomy (2000, p.72). A person has activities, goals and projects that are above the needs of nature and need support to fulfil these ideas. The essential element of this is that capabilities are sought for the individual, not groups or states or corporations. These entities can be valuable as means to ends but the well-being of the individual is the end itself (2000, p.74).

Nussbaum states that a list of concrete functionings cannot be a theory of justice however it does advise on what will be a minimum of social justice. She also adds that they could be adjusted to suit the various cultures that they encompass (2000, p.75). Nussbaum’s list of capabilities is a list in which all of the elements are distinct and equal in importance. She gives the example of the absence political rights not being able to be compensated by great economic growth (2000, p.81). Nussbaum states that the capabilities that go with these functionings are of three different types:

1)      Basic capabilities- innate equipment necessary for developing more advanced capabilities and morality, such as the capability of love, gratitude, reason and work;

2)      Internal capabilities- maturity, language, political reasoning, socialization, freedom of speech or religion; and

3)      Combined capabilities- where the environment is prepared so that individuals are able to exercise their major functionings (2000, p.85).

There is also a distinction between internal and combined capabilities in that when there is a sudden alteration in the environment in which the individual is placed, perhaps they have had to flee or migrate to another country, then they may not be able to enact their functionings. Nussbaum gives the example of a child who has never experienced freedom of speech or thought and is not able to develop the same capabilities as someone who was raised in a nation that protects these liberties. Nussbaum focuses on a social minimum of these capabilities as suitable for a system of justice (2000, p.86).

With regard to individual liberty and autonomy being safeguarded in such a system, Nussbaum states that it is important to note that ‘capability not functioning is the appropriate political goal (2000, p.87)’. This appears to coalesce with Sen’s evaluative space, where capabilities are derived from functionings. Nussbaum points out that the capabilities approach is much like Rawls’ notion of primary goods, but the difference between the capabilities approach and Rawls theory of justice is that it does not consider wealth and income as goals or ends, more a reliance upon Rawls’ natural goods such as ‘health, vigour, intelligence and imagination’ (2000, p.89). Capabilities are the things needed for functioning such that any rational being would want them. Even if one does not make use of all of them then no harm has been done if they had the choice (2000, p.88).

However, Nussbaum also states that it is important that capabilities such as bodily integrity may be regulated so as not to undermine the functionings of an individual. Although this may be seen as paternalistic it is perhaps synonymous with illegal contracts in that health and bodily integrity are so important to capabilities and functioning that there can be legitimate interference with choice up to a point (2000, p.95). This does seem to call into question whether Nussbaum would allow such choices as being a sex worker in her system of justice, but she does state that such decisions can be left to the democratic process in each nation (2000, p.95). Nussbaum also states that her list is not meant to be an exhaustive account of what is worthwhile in life and is a facilitation list rather than a tyrannical one (2000, p.95). Nussbaum contends that the political purpose of these capabilities is human well-being. She quotes Sen: ‘Political rights are important not only for the fulfilment of needs, they are crucial also for the formulation of needs. And this idea relates, in the end, to the respect that we owe each other as fellow human beings.’ (Sen, 1994, p.38)

Therefore Nussbaum sees her list of functioning capabilities as being closely aligned with universal human rights. They are quite similar to those initiated and enshrined in the Universal Declaration of Human Rights (UDHR) that was ratified in 1948, and have been used by many different peoples to assert justice. One of members of the drafting subcommittee of this document stated: “I perceived clearly that I was participating in a truly significant historic event in which a consensus had been reached as to the supreme value of the human person, a value that did not originate in the decision of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free from want and oppression and to fully develop one’s personality”.(U.N. n.d.) Nussbaum’s list is intended to give fundamental access to capabilities in order to provide a stable society, which was also the intent of the UDHR. Nussbaum argues that these are not only Western notions of rights: “Ideas of activity and ability are everywhere, and there is no culture in which people do not ask themselves what they are able to do, what opportunities they have for functioning (2000, p.100)”. Considering that what differentiates humans from other animals is their need to realise their ideas, whether they be social, creative, technological, or scientific, it seems that Nussbaum’s argument about the universality of her functional capabilities is valid.

Rather than being a strict theory of justice, Sen’s capability approach has the ability to allow a framework that is both accommodating and adaptable. It has the ability to assess individual well-being and evaluate social arrangements so that policies may be designed that can enact just social change. Through being a practical guide it can inform citizens and governments of the directions that may provide desirable outcomes. While criticisms of Sen’s approach state that it is unclear about how it can be extended into a theory of justice, his non-commitment to single distributive rule allows his notions of functionings and capabilities to be a formula for an evaluative space through which justice may be approached. Nussbaum’s transfer of Sen’s evaluative space into a concrete list of functioning capabilities is comprehensive and is not limited to single-types of social systems but holds true for all human beings. Therefore both Sen’s formulaic approach and Nussbaum’s sufficient account of social justice could be used together to provide a constitutional guarantee of human rights.

REFERENCES:

  1. Nussbaum, M 2000, Women and Human Development: The Capabilities Approach, University of Chicago pp. 70-101
  2. United Nations (n.d.), Universal Declaration of Human Rights, viewed 5 April 2013, http://www.un.org/en/documents/udhr/index.shtml
  3. United Nations (n.d.), Universal Declaration of Human Rights: History of the Document, viewed 5 April 2013, http://www.un.org/en/documents/udhr/history.shtml
  4. Sen, A 1993, ‘Capability and Well-Being’, in M. Nussbaum & A. Sen (eds),The Quality of Life, Clarendon Press, Oxford pp. 30-52
  5. Sen, A, 1994, ‘Freedom and Needs’, The New Republic, January 10/17, pp. 31-38

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John Rawls’ “Theory of Justice” (1972) explains how social cooperation needs a system of justice and gives a basic idea of what justice means to the structure of society. Rawls presents the primary concept of justice as being fairness, an abstract extension of the social contract described by such philosophers as Locke, Rousseau and Kant. In Rawls’ theory, however, the social contract is replaced by a concept of an original position which allows for an original agreement on the principles of justice. Rawls contrasts this with the classical utilitarian view (p.3).

Rawls first considers the role of justice. He states that while society is seen as the cooperation of people for mutual advantage it also produces conflict through competing interests. Although social cooperation is the best way for people to better their lives there is a conflict of interests because people dispute inequalities of distribution of the products of society, or the goods produced through such cooperation. People tend to prefer a larger share to a lesser share. Therefore a set of just principles are needed to assign the rights and duties within societal institutions and define how benefits and burdens of societal cooperation are best distributed (p.4)

A just society is one where all know and accept the same principles of justice and the social institutions reflect these principles. Rawls maintains that human society needs a just charter to establish the limits of the pursuit of other ends and bring people with different aims and purposes together. Existing societies are usually in dispute about questions of justice. Rawls states that despite this they still have a concept of justice as being a set of principles that assign rights and duties and determine distribution of societal goods (p.5). For Rawls, the principles of justice should first identify the similarities and differences between people when establishing such assignments and distributions. Rawls states that individuals need to interact positively with each other so that their activities are compatible with each other and their plans can be carried through without infringing unjustly upon the rights of others. The outcomes of their plans should be compatible with justice. When justice is the priority of a social system it can be said that one notion of justice is preferable to another when its wider consequences are more beneficial (p.6).

Rawls next considers how best justice can serve a social system. He states that a just society’s institutions protect freedom of thought and conscience, free markets, private property, and the monogamous family. However, Rawls contends that such institutions are arbitrary in that there are inequalities within society that can affect an individual’s chances in life. Therefore, Rawls states that it is necessary for the principle of social justice to attend to these inequalities first in order to regulate the just economic and social system (p.7). Rawls goes onto say that it might be an idealistic theory but it provides the basis for the understanding of civil disobedience and allows an analysis of ‘the nature and aims of a perfectly just society’ (p.9).

Rawls puts forward the notion of an original agreement which posits that free and rational persons concerned with furthering their own interests would accept an initial position of equality (p.11). It is stated by Rawls that just as rational thinking determines what is in a person’s best interests so too can it also be extended to a group of people deciding what is just and unjust. So, Rawls describes a hypothetical original position which argues that there is no way of knowing where one’s place in society will be, what natural assets or liabilities they may have, or their intelligence or strength. Because of this, Rawls maintains that ‘the principles of justice are chosen behind a veil of ignorance’. In that way no one is advantaged or disadvantaged in the choice of principles of justice through inequalities of social circumstance (p.12). For Rawls the original position ensures ‘that the principles of justice are agreed to in an initial situation that is fair’. Therefore, Rawls states, when the social system enacts such principles of justice people will be able to cooperate with one another ensuring that their relationship is a fair one (p.13).

Rawls finally concludes that it would be questionable whether once these principles of justice, based upon an original agreement of equality, were in place that a principle of utility would be allowed. Rawls thinks that it is unlikely that people who consider themselves equal would allow a principle of justice that would require some to suffer inferior life prospects so that a greater utility could be enjoyed by a majority. In this regard utilitarianism seems incompatible with the notion of ‘social cooperation amongst equals for mutual advantage’. Instead of the principle of utility, Rawls contends that the person in a position of equality under the original agreement would choose two defining principles:

1)      that there is equality in the assignment of rights and duties;

2)      that inequalities of wealth and authority are only allowed if they result in compensating everyone, and especially the least advantaged.

Therefore, Rawls thinks that these principles rule out the utilitarian concept of allowing hardships for some if they are offset by a greater good for the many (p.14).

For the sake of survival rational people do not wish to be violated by others and they rely upon a system of justice to protect them from such violations. For Rawls, each person possesses such an inviolability based upon justice and the welfare of society as a whole cannot impinge upon these individual rights. For what if members of the majority were in the position of the minority, they would also want such a right to inviolability to be respected. Rawls argues that justice does not allow the loss of freedom for some to be made right by the greater good of the many. The accident of birth should not determine one’s liberties and for it to do so would be arbitrary rather than just. Under the veil of ignorance and the original position Rawls contends that each person would choose a society where they would respected with dignity even if they are a minority group. Rawls concludes that utilitarianism contradicts these basic precepts of justice, particularly those that concern liberty and rights. A utilitarian society is simply regarded as an efficient means through which the spreading of benefits can occur, and does not take into account the difference between persons. “Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests” (p.3).

  • Rawls, J., (1972), Theory of Justice, Clarendon Press, Oxford

Global protest has been prominent since the late 1990s. It is a reaction to dominant forces of multinational corporations undermining democratically elected governments, and the people’s own identity through citizenship, across the globe. For a few years these protests were quelled because of the threat of terrorism. However, since the new global financial crisis that began in 2008 which evidenced the complete and utter disregard that these corporations, citing their status as natural persons, have had for the real occupants of the world, new protest movements are burgeoning everywhere. It is imperative that we contemplate the vastness and autonomy of these corporations and perceive how global governance must be consolidated to be able to harness such forces for the peace and security of all. Therefore, a global social contract must be established.

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Monoprints by Janet Elizabeth Thomas (2010)

 

 

 

 

 

 

Nicholas Georgouras, 2005, Carrara marble, 250cm x 100cm

“We do not inherit the earth from our ancestors, we borrow it from our children.”

Native American proverb

 

Nicholas Georgouras, 2006, The Landlord, marble

Inclosure came and trampled on the grave / Of labour’s rights and left the poor a slave … And birds and trees and flowers without a name / All sighed when lawless law’s enclosure came.”

                                                                                                       John Clare, The Mores (1821-24)[1]

During the Industrial Revolution in Britain, vast tracts of land were enclosed and the people who lived off them were completely disenfranchised[2]. This situation was much like circumstances the world over for indigenous peoples under colonialism. With this understanding of the enclosure of land through the acquisition of property, this essay will explore the theories of justice by two philosophers, Robert Nozick and John Rawls. Robert Nozick firmly believes in the rights of private property. Contrastingly, John Rawls argues that justice is based upon cooperation rather than competition. I will argue that Nozick’s theory is problematic through its assertion of property rights being based on the rights of the individual, and that a stable, secure society can only exist through people’s voluntary cooperation.

Robert Nozick favours libertarian principles which assert that a person who legally acquires, either directly or through transfer, some form of property is entitled to that holding[3]. This entitlement can be said to be directly related to the circumstances in which one is born or one finds oneself; for it is fortunate circumstances that allows one to secure an entitlement to the property that is transferred. They are fortunate because under entitlement theory no one is entitled to any holding unless they have legally acquired it[4], which alienates and excludes people who are too poor or powerless to own or hold a claim to land. Nozick does not believe that justice is about patterns of distribution of property but about entitlement to property[5]. He objects to patterns of distribution, such as the egalitarian principles of the equal distribution of societal goods, because of a lack of central distribution[6]. He states that there is no person or group entitled to control all resources or to decide how they should be allocated[7]. Further, Nozick contends that patterns of just distribution cannot be realised without there being an unreasonable amount of interference in a person’s life[8].

Nozick’s main principle of distribution is that is it legally and justly acquired. This condition is a problem for Nozick’s argument as, historically, much of the land that has been acquired upon the Earth has been through invasion, colonisation, war or oppression, not through any legal or just means. This assertion prioritises the rights of colonisers over indigenous peoples and undermines Article 1 of the Universal Declaration of Human Rights in which the civil and human rights of all people are equal[9]. Nozick’s libertarian view of property rights relies upon John Locke’s assertion that property is a moral right by virtue of human labour[10]. However, an objection to this assertion could be the question: Whose labour? Is the labour of colonisers more important than thousands of generations of indigenous people’s labour? In Theory of Social Democracy[11], Thomas Meyer and Lewis Hinchman argue that Locke’s linking of freedom to property was problematic because there are people whose existence depends upon the property of others which negates their access to a moral right to liberty. Michael Thompson, in his review of Meyer and Hinchman, states that ownership, which is the province of the minority, gives inequitable access to positive liberty, thereby creating a material inequality which perpetuates into inequity at the level of human and civil rights[12].

Nozick’s objection to distributive justice can be addressed through looking at the Athenian economic crisis of 594 BCE. Civil unrest occurred because of the enslavement of farmers and their families, who defaulted upon their mortgages. The civil administrator, Solon, was chosen to mediate the dispute and he enacted social, legal and moral reforms that served as the foundation for later Athenian democracy. Through his law reforms, Solon implicitly subordinated wealth to an ethical code[13]. His authority stemmed from an agreement by both sides that he administrate the dispute, and also his reasoning that the whole society would suffer if the imbalance was allowed to continue to occur[14]. Solon’s political reforms established the basis of a moral and legal framework in which individuals could pursue wealth in a social context[15]. For Solon, it was necessary to see beyond short-term gain to long-term success through the use of reason. Reason becomes the authority that legitimises a government to control and allocate resources so that there is enough equity in society to enable it to be stable. Reason also makes it acceptable for citizens to comply with the demands of society without undue interference. In contemporary society social democracy theory reflects the ideals of Solon’s reforms. It reconciles the contradiction in libertarian appeals to civil and human rights by providing a framework for the government to provide the necessary means to enable these rights to become concrete[16].

John Rawls holds a contrasting egalitarian perspective of distributive justice to Nozick. He sees society as ‘a cooperative venture for mutual advantage’[17]. According to Rawls, people are not indifferent as to how the resources, on which society depends, are distributed. Conflicts of interests arise when there are marked inequalities between individuals or groups within the system. So Rawls advocates that we should look at distributive justice with the notion of an ‘original position of equality’[18]. The main idea of an original position is that life is a lottery, with no one having knowledge of what their place in society will be when they are born. Nor do they have knowledge of how they will be allotted natural assets or abilities, or whether they will be subject to liabilities, such as being born in a refugee camp, in wartime, in slavery or servitude, or with some form of disability. In choosing the principles of justice to which we would desire to be subjected if we were placed in the original position, Rawls contends that we would make our choice through a ‘veil of ignorance’[19]. This ‘veil of ignorance’ will ensure that, as we cannot know what advantages or disadvantages we will be placed under, we will choose principles that will be of the most benefit to the least advantaged.

Considering that, in the modern world, the production of goods and services relies upon a vast network of workers and consumers; Rawls has a strong argument that society is a cooperative effort that should result in mutual benefits. The companies that produce these items or services rely upon systems of utilities, education, health, transport and communication. Even if one of these systems fails, such as when a strike or natural disaster happens, many of the other systems may also fail with the effect upon a company or community sometimes being ruinous. Therefore, we all benefit from these systems being cooperative. Nozick rejects Rawls’ theory by stating that there is no guarantee that people would be motivated to adhere to his difference principle if they emerged from the ‘veil of ignorance’ being naturally well-endowed[20]. As far as Nozick is concerned, a government has no right to interfere with a person’s liberty in order to enact the distribution of social goods, and its only role is to protect the property of persons[21]. Just as the civil strife affected Athens in 594 BCE and no estate could be cordoned off for its own protection, under Nozick’s theory the government would have an onerous task trying to protect one person’s property from the many who do not have any property. Therefore, the motivating factor to adhere to the difference principle may be that the naturally well-endowed could not be guaranteed of keeping their position if they unfairly took advantage of their situation.

Nozick’s person does not live in a vacuum, relying upon the cooperation of others to make sure that he or she is protected. As John Stuart Mill stated:  “…everyone who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to observe a certain line of conduct towards the rest”[22]. Nozick’s theory results in an unequal society that is insecure and tenuous. Under such conditions, a person’s ability to maintain their hold upon property is also tenuous. Rawls’ theory of distributive justice recognises the benefits that people should enjoy when they cooperate for mutual advantage, and is based upon principles under which there is a balance of equality, liberty and productivity and so encourages all to adhere to it.

Nozick’s entitlement theory is weak because the legal right to property can be seen to be contentious, especially with regard to land obtained by invasion and the disenfranchisement of indigenous peoples. Rawls’ theory, that we should consider our position in society from the ‘original position’, is based upon a real understanding of the unreliability of existence, as we have no concept of our potential societal or physical position before we are born. If we can cooperate to form principles of justice based upon mutual long-term self-interest, these will have more possibility of being upheld because we all benefit from them, rather than just a select few. Therefore, for the establishment of secure, stable and cohesive communities, Rawls’ argument has the most strength.

Bibliography

  1. Clare, J., The Mores, comp. 1821-24; publ. 1935, viewed 10 July 2012, http://orion.it.luc.edu/~sjones1/mores.htm
  2. Lamont, J & Favor, C, 2007, “Distributive Justice”, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), Viewed on 1 July 2012, URL = http://plato.stanford.edu/archives/fall2008/entries/justice-distributive/ .
  3. Lewis, J.D, 2008, ‘Solon of Athens and the Ethics of Good Business’ in Journal of Business Ethics, (2009), 89, Springer, pp. 123-138, viewed on 13 July 2012, DOI. 10.1007/s10551-008-9989-4
  4. Mill, JS, 1869, “Of the Limits to the Authority of Society over the Individual”, Ch.4 in On Liberty,1869, Viewed on 8 July 2012, http://www.bartleby.com/130/4.html
  5. Monbiot, G., 2012, ‘John Clare, the poet of the environmental crisis- 200 years ago’ guardian.co.uk, 9 July 2012, viewed 9 July 2012, http://www.guardian.co.uk/commentisfree/2012/jul/09/john-clare-poetry
  6. Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001), pp. 649-656.
  7. Shaw, WH & Barry, V,1995, ‘Justice and Economic Distribution’, Ch. 3 of Shaw & Barry (eds.) Moral Issues in Business, 6th edition, (Wadsworth, Belmont, CA, 1995), pp. 101-126.
  8. Thompson, M, 2009, ‘Theorising Social Democracy’ in Studies in the Culture and Politics of Antiurbanism, Autumn 2009, Palgrave Macmillan, viewed on 14 July 2012, http://dissentmagazine.org/democratiya/article_pdfs/d16Thompson.pdf
  9. Townley C, J 2012, Justice, Markets and Capitalism, Lecture notes distributed in unit, PHI230, Business and Professional Ethics, Macquarie University, Sydney on 2 July 2012
  10. United Nations, 1948, ‘Universal Declaration Of Human Rights’, viewed on 15 July 2012, http://www.un.org/en/documents/udhr/ .

 


[1] Clare J. The Mores, (1821-24)

[2] Monbiot, G., 2012, ‘John Clare, the poet of the environmental crisis- 200 years ago’ guardian.co.uk, 9 July 2012.

[3] Nozick, 1974, ‘The Entitlement Theory’, extracts from Anarchy, State and Utopia, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001).

[4] Nozick, 1974, p.658

[5] Nozick, 1974,  p. 658

[6] Nozick, 1974, p.657

[7] Nozick, 1974, p.657

[8] Nozick, 1974, p.660

[9] United Nations, 1948, Universal Declarations of Human Rights

[10] Nozick, 1974, p. 660

[11]  Thompson, M, 2009, ‘Theorising Social Democracy’ in Studies in the Culture and Politics of Antiurbanism, Autumn 2009, Palgrave Macmillan, p.96

[12] Thompson, M, 2009, p.96

[13] Lewis, J.D, 2008, ‘Solon of Athens and the Ethics of Good Business’ in Journal of Business Ethics, (2009), 89, Springer, p.124

[14] Lewis, J.D, 2008, p.129

[15] Lewis, J.D, 2008, p.131

[16] Thompson, M, 2009, p.96

[17] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001), p.4.

[18] Rawls, 1972, p. 12

[19] Rawls, 1972, p.12

[20] Townley C, 2012, Justice, Markets and Capitalism, Lecture notes distributed in unit, PHI230, Business and Professional Ethics, Macquarie University, Sydney.

[21] Townley, C, 2012

[22] Mill, J, S 1869, “Of the Limits to the Authority of Society over the Individual”, Ch.4 in On Liberty,1869.

Image

Judy Watson

touching my mothers blood 

1988 etching and black ink

A New York University academic, Fred R. Myers states that an intractable problem with Aboriginal art is that while it exists outside the art system the more it is valued. However, once it is in the art system unprepared viewers do not know how to respond to it because, without the information they receive in an ethnographic museum, they cannot relate it to other contemporary art. They cannot see an informed consensus providing the basis for the work (Myers 1998). This retrogressive view of the adaptability of Aboriginal art is fortunately not the way it is viewed within the Australian contemporary art world. Changing attitudes have allowed both remote and urban artists to benefit from a growing popular interest. Aboriginal artists have extended the parameters of how their art is viewed, and this has allowed them to present their work in new contexts such as installation art and photography. This essay will explore the background to the advent of the careers of the artists Gordon Bennett, Robert Campbell Jnr, Fiona Foley, Tracy Moffatt, Lin Onus and Judy Watson. It will also explore how these artists have contributed to change through their work.

By the 1970s, viewing Aboriginal art through a primitive paradigm was becoming unpopular. New ways were being developed to look at global arts and liberate them from the pigeon holes of Western art history. An exhibition in Paris in 1989, Magiciens de la Terre, attempted to challenge primitivist paradigms by showing the work of fifty artists from the West together with a similar number of artists from non- Western traditions. The exhibition presented all the artists as ‘contemporary’ with an example being a huge mud circle painted on a wall by the British environmental artist Richard Long, alongside a ground sculpture by a group of Aboriginal artists from the Yuendumu community in Central Australia (Morphy 1999).

The background to this exhibition began in the early 1980s when, for the first time, Aboriginal artists were included along with other contemporary white artists in the Sydneyexhibition of Perspecta 1981. In 1983, the Musee d’Art Moderne in Paris exhibited a large ground painting made by twelve Warlpiri men from the Lajamanu community. The ground painting’s ephemeral quality reflected the exhibition’s theme of Dream and Reality. It also created an avant-garde interest because it was an ephemeral ‘dematerialized’ art object and was considered to follow on the legacy of avant-garde challenges to mainstream expectations of an object-orientated art world (Myers 1998). However, although the recognition of Aboriginal art as being contemporary rescued it from being marginalised, it was only the art of remote communities in the north and centre ofAustralia that were achieving recognition. The art of the south that was being done by Aboriginal people in urban and rural areas remained unrecognized in what W.E.H. Stanner called ‘the great Australian silence’ (Morphy 1999).

Although Aboriginal artists in south-eastern Australiacontinued to produce art and craftworks, and some such as Ronald Bull (1942- 79) gained a reputation in the art world, they were negatively viewed as either producers of tourist art or, if they were mainstream contemporary artists, as being assimilated into Western culture. In 1993 the Aratjara Exhibition that touredEurope attempted to rectify the situation. The curators adopted the broad conception of Aboriginal art because, as the art historian Ian McLean notes, it was ‘not until 1990 were there signs of an institutional shift towards the inclusion of urban Aboriginal artists’ (Morphy 1999, p.378). Many of the artists included in this exhibition had been developing from the 1970s onwards in the art world and art schools of urbanAustralia. They drew their inspiration from many different sources reflecting the diversity of their backgrounds. Many found inspiration through personal pilgrimages back to the country of their forebears or in visiting fellow artists in remote communities (Morphy 1999).

Dijon Mundine facilitated communication between Aboriginal artists in the south-eastern states and those in Central Arnhem Landcreating ‘an environment of shared experiences in which mutual understanding developed’ (Morphy 1999, p. 392). Some of the artists that visited Arnhem Landduring this time were Campbell, Fiona Foley (b.1964) and Gordon Bennett (b. 1955). Bennett, a Brisbane-based artist, says that his paintings are ‘an ethnography of representation’ (Morphy 1999, p.399). He characteristically uses a representational system to draw complex analogies between Western art history and the colonial domination of Aborigines. In Outsider (1988) he uses Vincent Van Gogh’s Bedroom at Arles (1889) to show a headless Aboriginal person standing over a bed with two classical heads lying upon it. This postmodernist appropriation seems to challenge both his understanding of his formal art education and his sense of identity within that framework.

After graduating in 1988 with a Bachelor of Fine Arts degree, Bennett had first major solo exhibition in 1989 and has since achieved critical acclaim. He continues to engage his work in questions of cultural and personal identity (National Gallery of Victoria 2008). He describes this personal journey: “I was socialized into a Euro-Australian system of representation which included an art school education. However, my approach to aesthetics is to seek to extend my concepts of it and by extension to expand my concepts of representation’ (Morphy 1999, p.403). His paintings include much graphic detail, narrative, words, grids and commercial logos During the 1990s his  Home Décor series uses the aesthetics of the De Stijl art movement to depict stylized Aboriginal figures, (appropriated from the work of 1940s print artist Margaret Preston), as decorative artefacts entrapped upon a Modernist grid. After travelling toNew York in 1998, he developed a street-style appropriated from the 1980s neo-expressionist Jean-Michel Basquiat to convey the graffiti of racial and political activism.

The complex nature of the influences and history that involves much contemporary Aboriginal art is exemplified in the work of Fiona Foley. After graduating from the SydneyCollegeof the Arts in 1986, Foley, along with other ‘urban’ artists such as Tracy Moffatt, Bronwyn Bancroft and Michael Riley, was a founding member of the Boomali Aboriginal Arts Cooperative in Sydney. She has worked in many different types of media and became well-known for her collaboration with the artist Janet Laurence on the installation The Edge of Trees (1994) for the Museum of Sydney (Allas 2008). Drawing on other Aboriginal art forms, Foley’s work becomes a commentary on the history of racism and oppression. The sculpture The Annihilation of the Blacks (1986) looks much like Fish on Poles (1962) an Aurukun sculpture that formed the focal point for a ceremonial dance. Foley’s sculpture, rather than being hunted fish, show dead bodies of Aboriginal people being hung upon poles. Also, in 1996 she made a ground sculpture much like traditional ground sculptures. Using flour as a material signified its importance in subjugating Aboriginal people in the nineteenth and twentieth centuries. Foley’s photographic work, such as Native Blood (1994), explores the Western representational genre through photographing herself as an ‘erotic primitive’ (Morphy 1999). Again, like Bennett, she works from the position of postmodernism to change historical context.

The academic Chris Healy describes Foley as a witness; ‘her work is all about determined efforts of remembering- bearing witness to both specific instances and pan-Aboriginal experiences of colonialism- and refusing to remain silent’ (Healy 2003). Originally from FraserIsland, also the birthplace of the poet Oodgeroo Noonucal, her work brings a connection between art, Aboriginality, and place. Djon Mundine observed about her work; ‘this raw material- [is] a form of cultural memory- from FraserIslanditself… For Foley, this was an art practice carried out in a custodial role, a way of reclaiming the history of her people and their land’ (Healy 2003). In her piece Lie of the Land (1997), Foley lists the names of objects traded with Aboriginal people in the 1835 ‘treaty’ with John Batman. These words are engraved on seven sandstone slabs three metres in height and effectively records on giant headstones the objects which cost so many lives (Healy 2003).

While the urban Aboriginal art movement has grown in significance since the 1990s, the focus of it being somewhat marginalised has changed into it joining, without differentiation, to mainstream contemporary art. With this change, artists such as Bennett, Foley and photographer Tracy Moffatt (b.1960) insist on their recognition as artists not simply ‘Aboriginal artists’ (McCulloch 2001). Moffatt explores issues of race, history and gender through staged Surrealist photographs and films. Nice Colored Girls (1987) was a film that staged contemporary encounters between Aboriginal women and European men montaged with references to colonial history and racist attitudes (Morphy 1999).

Like Bennett and Foley, Moffatt was born in Brisbane, and took her first snapshots at the age of 13 in the backyard. These formed a series of coarse-grained off-set prints called the Backyard Series (1998), with one of the photos featuring a nativity scene played by children. Moffatt was adopted into a white family and these garden photographs reflect both the normality and surreal undercurrents which strain relationships in society. The film Night Cries: A Rural Tragedy (1989) is an ambiguous story about the relationship between an elderly white woman and her half-Aboriginal child (Versloot 2000). In a Moffatt wrote to theNew York curator Lynne Cooke she explained: ‘Making art is quite therapeutic, like chopping vegetables, it calms me and keeps me off the streets’ (Moffatt 1997). She went on to state how important it is to advance your art and be influenced by others; not to be scared of taking anything new. She also states that her influences were mainly women artists such asFrida Kahlo,Georgia O’Keefe and the photographer Anne Brigman (Moffett 1997).

Lin Onus (1948-1996), who was also introduced to the artists of Arnhem Land by Mundine, had a different background to Foley, Bennett and Moffatt. His art also grew from a personal pilgrimage, but he was born in Melbourne where his father was an Aboriginal entrepreneur and craftsman, and his mother was Scottish. Onus grew up in an atmosphere full of Aboriginal art and, although he had no art school training, by the age of seventeen his early paintings were being sold by his father. These paintings were landscape inspired by the work of Albert Namatjira (1902-59) and Ronald Bull. However, the late 1970s and early 1980s brought a change in his work inspired by Trevor Nickolls (b.1949), an Aboriginal artist who went to art school in the early 1970s and was exposed to a wide range of contemporary art. He then spent much time in Arnhem Land and was taught clan paintings by artists such as Jack Wunuwun and Johnny BulunBulun. He painted a series of portraits of these artists in a hyperreal style on a background of their own paintings.

Towards the end of his life Onus turned increasingly to sculpture, using parody as a theme. His group Dingoes (1989) are realistically formed but painted in ochred colours of the Aboriginal flag. The group illustrates the life cycle of a dingo and includes a dingo breaking through a dingo-proof fence which was, according to Onus,  ‘a commentary on the treatment of these native animals which in Aboriginal eyes approximates the treatment of Aboriginal people themselves’ (Morphy 1999, p.391). He also used three-dimensional installations to display his strong sense of irony and humour. Fruit Bats (1991), is an example of the cross-cultural references and meticulous detailing for which he became so well-known (McCulloch 2001).

Aboriginal art has now become part of the mainstream in contemporary art inAustraliaas it is collected by the same institutions, exhibited within the same gallery structures, and written about in the same journals. This has come about because of the struggle by Aboriginal artists to have their work incorporated rather than assimilated into the institutional structure. Artists such as Judy Watson (b.1959) show how the adaptability of Aboriginal art contributes to an overall push in it being judged on its aesthetic qualities rather than its story-telling properties (McCulloch 2001).

Watson uses painting, sculpture and print media to create complex, subtle works that evoke the spirit and feeling of place. Her style is predominantly non-figurative, using the texture and surface qualities of the painted canvas, lithographic stone, or plywood base to express meaning. Her set of sculptures the guardians/ guardian spirit (1986-87) represent the matrilineal part of her family. The figure forms allude to termite mounds and the spirits that they represent. Many of her paintings are designed to hang without frames like textiles (Morphy 1999). Another Brisbane-based artist, in 1990 she was able to experience her Aboriginal heritage when she visited her grandmother’s country in north-westQueensland.

Although art from the south-east of Australia generally fits into a global category of contemporary art that emphasizes individual style, there are common themes and patterns of influence that distinguish Aboriginal art. Many artists draw on themes of their identity, past and also shared experiences of oppression. The subject matter of Robert Campbell (1944-1993) ranged from the history of racism in rural NSW to its mundane existence. Growing up in Kempsey, he learnt to draw at the primary school at Burnt Bridge Mission where he also helped his father decorate boomerangs. Whilst working as a seasonal worker around Kempsey and a labourer in Sydney, he developed what Djon Mundine calls a ‘confident’ and ‘idiosyncratic’ style (Mundine 2008) painting for tourists and local art shows using available materials.

Campbell’s work is both humorous and insightful and he wrote: ‘As an urban Aboriginal artist my work does not look “typically Aboriginal”… My paintings are in fact very much what I feel in my own heart. Very personal’, (Morphy 1999, p.380). A characteristic of his work is the contrast between the bright optimism conveyed in the colours of the paintings and the dark themes they explore. In Death in Custody (1987) he documents an important issue of contemporary Aboriginal politics; that Aboriginal people are the most imprisoned segment of the Australian population and the number of young men who die in custody (Morphy 1999).

It is because of the starkness of the statistics of Aboriginal poverty, infant mortality, sickness, and prison populations that these artists continue to address these issues. However, this should not necessarily pigeon-hole them as “Aboriginal” artists. Their work is political as well as being concerned with identity. These are subjects which interest many contemporary artists. By extending the boundaries of popular response through the use of new contexts, these artists have been able to change attitudes to the way their art is viewed. Furthermore, there is a need for Aboriginal artists to continue to explore their Aboriginality and through their work, aid non-Aboriginal people in understanding the impact of racism and disinheritance.

References:

Gordon Bennett, 2008, Retrieved January 23, 2009 from http://www.ngv.vic.gov.au/gordonbennett

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from http://www.anu.edu/hrc/research/WtoS/Healy.pdf

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from http://www.diacenter.org/exhibs/moffatt/project/traceymoffatt.html

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from http://www.homepages.nyu.edu

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from http://www.radionetherlands.nl/features/cultureandhistory/moffatt000602.html

Bibliography:

 

Allas, T. (n.d), Fiona Foley, Retrieved January 30, 2009 from http://www.daao.org.au/main/read/2575

Gordon Bennett (n.d.), Retrieved January 29, 2009 from http://www.ngv.vic.gov.au/gordonbennett/

Green, C., 1999, Beyond the Future: The Third Asia-Pacific Triennale Art Journal Vol.58, No.4 pp.81-87, College Art Association

Healy, C., 2003, Fiona Foley. Silent witness? Retrieved January 26, 2009, from http://www.anu.edu/hrc/research/WtoS/Healy.pdf

Judy Watson (n.d.), Retrieved January 26, 2009 from http://www.nga.gov.au/Landscapes/Wat.htm

Ladds, A. (n.d.), The Reconciler, Retrieved January 31, 2009 from http://www.theblurb.com.au/Issue27/LinOnus.htm

McCulloch, S., 2001, Contemporary Aboriginal Art- A guide to the rebirth of an ancient culture-Revised Edition, Allen & Unwin Sydney

Moffatt, T., 1997, A letter from Tracey Moffatt to Lynne Cooke, curator of Dia Centre for  the Arts, New York, in advance of her show “Free Falling”, Retrieved January 27, 2009 from http://www.diacenter.org/exhibs/moffatt/project/traceymoffatt.html

Morphy, H., 1999, Aboriginal Art, Phaidon Press,London

Mundine, D. 2008, Robert Campbell (Junior), Retrieved January 26, 2009 from http://www.daao.org.au/main/recent

Myers, F., 1998, Uncertain Regard: An Exhibition of Aboriginal Art in France, Ethnos Vol. 63, No.1, Retrieved January 22, 2009 from http://www.homepages.nyu.edu

Nelson, R., 2007, Gordon Bennett, Retrieved January 27, 2009 from http://www.theage.com.au/news/arts-reviews/gordon-bennett/2007/09/19/11898815568

Through artists eyes: Tracey Moffatt and Gordon Bennett Retrieved January 29, 2009 from http://www.artmuseum.uq.edu.au/index.html?page=97971&pid=0

Versloot, A., 2000, Roller Queens and Narrow-minded Machos- The World of Tracey Moffatt, Retrieved January 27, 2009 from http://www.radionetherlands.nl/features/cultureandhistory/moffatt000602.html

White, A., 2000, Aboriginal Art: Sacred and Profane, Review of Susan McCulloch, Contemporary Aboriginal Art: A Guide to the Rebirth of an Ancient Culture, Art Journal Vol. 59, No.4, pp.105-107, College Art Association

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Prenatal testing is a form of reproductive technology used to determine the physiological condition of a foetus, particularly with regard to any genetic disability. Physicians claim that such technology allows the parents to make a decision as to whether to continue a pregnancy of not based upon their assessment of the potential value of the child’s life and/or the parents capacity to cope with the outcome. Such a claim is criticised by disability activists as encouraging the abortion of foetuses with disabilities through societal ignorance and implicitly discriminating against existing people with disabilities.  To establish whether it follows that discrimination against disabled people occurs because of prenatal diagnosis this essay will evaluate the arguments of two disability activists, Marsha Saxton and Christopher Newell.

Marsha Saxton, who is disabled with spina bifida, claims that the widespread assumption that the increased use of reproductive technologies, in particular prenatal screening, will reduce the incidence of disability and increase quality of life should be challenged. Saxton asserts that this assumption is based upon such premises that having disabled children is wholly undesirable, and that the quality of life for the disabled is less than that of others. Her argument is based upon current societal attitudes which she states are stereotyped and lacking in knowledge of the disabled[1].

The stereotyping of the disabled, for Saxton, comes from the media. It is a causal argument where society, being oriented toward ideals of beauty, athletic prowess, self-reliance and productivity, causes the concept of disability to trigger fear in society with disabled people reminding able people of their vulnerability. This in turn causes disabled people to be excluded from mainstream society through lack of employment opportunities, second class education, and environmental barriers. Because many disabled people are excluded from the community they become isolated, thus limiting society’s exposure to their life experience. Through limited exposure to disabled people, the fear of parents pregnant with a disabled child is that it will suffer and be a burden. This causes many parents to choose to terminate the life of a foetus with a disability[2]. Is the fear of disability necessarily the cause for parents to terminate a pregnancy after prenatal diagnosis?

Genetic counselling that the parents receive after a positive prenatal diagnosis is supposed to be based upon informed choice, reproductive freedom and non-directiveness. However, informed choice needs to be based on the systematic processing of accurate information. Genetic counsellors have little time to present information to the parents to make such a major life decision. Therefore, they usually present information on the ‘burden’ of the condition, such as its risks and severity and these are all negative terms with little or no emphasis on the positive aspects of having a disabled child[3]. For example, a study of women who were mothers of children with Down’s syndrome or other disabilities asserted their commitment to their child and states how they enriched their lives[4]. This conclusion is substantiated by statistics from Victoria in 1999, a year in which 5550 prenatal tests occurred. 4.4% of these tests had abnormalities and, although abortion rates following positive tests vary, the 1998 Annual Report of the Consultative Council on Obstetric and Paediatric Mortality reported 80% of foetuses with Down’s syndrome were aborted[5]. This data correlates with a British study that is cited in the British Medical Journal, where 81% of foetuses with Down’s syndrome were aborted[6]. Therefore, it can be asserted that a fear of the burden of a particular condition of disability causes the majority of people to abort foetuses with that condition.

Christopher Newell, also a person with disability[7], argues that the use of reproductive technology ‘will perpetuate the oppression and control of people with disability, especially if the knowledge of people with disability is not utilised in bioethical debates’[8]. Newell’s argument is based upon a social constructionist view of disability, but it is also informed by his deeply held religious convictions on abortion and euthanasia[9]. Newell asserts that it is the dominant biomedical view of disability that influences the claim that developments in genetic technology are inherently good because of its capacity to eliminate suffering. Newell challenges this view because it is not informed by those who live with disabilities.

The dominant bioethical view of disability, Newell contends, fails to define ‘disability’ or ‘abnormality’ but objectifies it and treats it as the ‘other’, ignoring its social dimension. He goes on to state that although postmodernism recognizes the social nature of disability and genetics, bioethics has yet to do so. Rather than seeing people with disability as leading inherently low-quality lives and being an economic burden on society, Newell asserts that there should be an economic situation which enables and facilitates people with disability to contribute to society. For Newell, the medical model of disability fails to recognise the contributions that people with disability make to society and negates the existence of many disabled people who are happy and satisfied with their lives. To fortify his argument Newell gives the anecdotal examples of his friend who has Down’s syndrome being happier than many of his academic colleagues, and the disability activist Alison Davies who states: “Despite my disability and the gloomy prediction made by doctors at my birth, I am now leading a very full, happy and satisfying life by any standards. I am most definitely glad to be alive”[10]. Is Newell’s conditional argument that reproductive technology is oppressive and controlling because it is uninformed of the perspectives of people with disability correct?

In Australia, regulation of reproductive technologies is guided by the National Health and Medical Research Council. It recognises the views of disability activists that the practice of selection against disability is discriminatory against those that may have that condition. The outline of guidelines for ethical practice within the area of Prenatal Genetic Diagnosis states:

–          What counts as a serious genetic condition is controversial;

–          there are different perceptions of disability; [and]

–          the practice of selecting against some forms of abnormality may threaten the status of people have that form of abnormality[11].

This seems to negate Newell’s argument that the medical model is uninformed by people with disability. However, these guidelines then go on to state that PGD should not be used for:

–          Prevention of conditions that do not seriously harm the person to be born;

–          selection of the sex of an embryo except to reduce the risk of transmission of a serious genetic condition; or

–          selection in favour of a genetic defect or disability in the person to be born[12].

The restriction on selection in favour of a disability implies that one of the main purposes of genetic testing is to prevent such people being born. NHMRC Guidelines also state that the use of genetic technologies is to include ‘interest in reducing the economic and social costs of caring for the incurable’ and ‘hope for progress in the overall health and fitness of the community’[13]. Therefore, the conclusion can be drawn that, although the medical view may recognise the views of people with disability, it is determined to ignore such views in preference for a utilitarian purpose of the common good.

Are these reproductive technologies discriminatory? Prenatal genetic testing aims to detect major foetal abnormalities and provide prospective parents with alternatives. As Newell contends, the bioethicist Lynn Gillam’s argument that prenatal diagnosis does not inherently discriminate against people with disability fails to take into account that such technology does not apply to all sorts of purposes, such as conditions of skin colour, sex, or any other attribute. Its only purpose is to screen for disability. For Newell, it fails to take into account that, rather than the disabled being seen as leading low-quality lives and being an economic burden, there should be an economic situation which enables and facilitates people with disability to contribute to society. However, this premise is irrelevant to reproductive technology but is in the realm of public policy. The purpose of reproductive technology is to deal with the situation that is the current reality, where people with disabilities still suffer neglect through lack of services, leaving parents and carers to struggle[14]. Both Saxton and Newell concede that a decision to terminate a pregnancy with a disabled foetus may be made on the grounds of the availability of resources and this may be more of a factor than any discriminatory perspective.

Direct discrimination has two features: that it is explicit and intentionally aims to disadvantage a group[15]. Although decisions to selectively abort a child on the grounds that it is disabled may seem discriminatory, because of the lack of societal resources it is understandable that prospective parents may make this choice. Parents may also make a choice to abort a nondisabled child because of lack of resources, and a disabled child needs far more. The decision may be explicit and it may be intentional but it may not be aimed at disadvantaging those who are disabled.

Although people with disabilities may suffer direct discrimination through fear and hostility within the community or oppression through lack of facilities to help them live and work, it should not be found that prenatal testing causes direct discrimination. However, it may cause indirect discrimination through the encouragement of a perception within the community that people with disabilities are a burden. Therefore, Saxton is right to challenge the assumption of a better future population because of prenatal screening but Newell’s conclusion that it is reproductive technology that results in the oppression and control of the disabled is uncertain.

BIBLIOGRAPHY

  1. Altman, Andrew, “Discrimination”, The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), Retrieved from: http://plato.stanford.edu/archives/spr2011/entries/discrimination/  on 05/02/2012
  2. Gillam, L., “Prenatal diagnosis and discrimination against the disabled” Journal of Medical Ethics , 25: , 1999 , 163-171
  3. Hume, J., ‘Disability, Feminism and Eugenics: Who has the right to decide who should or should not inhabit the world?’(Paper presented at the Women’s Electoral Lobby National Conference, University of Technology, Sydney , 26 January 1996)
  4. National Disability Insurance Scheme Campaign 2012- “Every Australian Counts”, Retrieved from: http://www.everyaustraliancounts.com.au/ on 31.01.2012
  5. National Health and Medical Research Council, “Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research”, June 2007, Revised Edition, Australian Government (2007), Retrieved from: http://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/e78.pdf on the 03.02.2012
  6. Newell, C., “Flourishing Rhetorically: Disability, Diversity and Equal Opportunity Disappointment”, Retrieved from: http://www.adcet.edu.au/StoredFile.aspx?id=1236&fn=Newell.pdf on 01/02/2012
  7. Newell, C., 1999, “The Social Nature of Disability, Disease and Genetics: A Response to Gillam, Persson, Holtug, Draper and Chadwick” in Journal of Medical Ethics Vol. 25 No. 2 (April 1999), 172-175
  8. Ng, Y. F., 2010, “Prenatal Testing, East and West: Regulating disabled foetuses in China and Australia”, in the ‘Alternative Law Journal’ Vol. 35-2 Monash University, 77-82
  9. Research Department of the Catholic Bishops Conference, “Inquiry into the Scientific, Ethical and Regulatory ConsiderationsRelevant to Cloning of Human Beings”,  in Inquiry into Cloning: xiv.iii. from the Submission to House of Representatives Standing Committee on Legal & Constitutional Affairs (2000)
  10. Saxton, M. “Prenatal screening and discriminatory attitudes about disability” in Embryos, Ethics, and Women’s Rights: Exploring the New Reproductive Technologies, Baruch, Elaine Hoffman; D’Adamo Jr., Amadeo F.; Seager, Joni , 1988, 217-224
  11. Webley C. & Halliday J., ‘Report on Prenatal Diagnostic Testing in Victoria 1999 (1999) Perinatal Data Collection Unit

 


[1] Saxton, 1988

[2] Saxton, 1988

[3] Ng, 2010: 81

[4] Hume, 1996: 2

[5] Webley and Halliday, 1999

[6] Gillam, 1999: 163

[7] Newell, “Flourishing Rhetorically”

[8] Newell, 1999: 174

[9] Research Department of the Catholic Bishops Conference (2000)

[10] Newell: 173

[11] NHMRC, 2007

[12] NHMRC, 2007

[13] ibid.

[14] NDIS, 2012

[15] Altmann, 2011

The distinction between a person and a human being is a relatively recent concept. It is derived from the philosophy of John Locke, who states that a person is ‘a thinking, intelligent, being, that has reason and reflection and can consider itself as itself, the same thing in different times and places’[1]. This distinction has led to an arbitrary and exclusionary criterion that differentiates human beings into person and non-person or part-person types, with a non-person being considered of no moral significance and a part-person being only partially morally significant.

Human beings are a member of the species homo sapien which, like other plants and animals, have identity and continuity as a member of their species. For Immanuel Kant the source of human autonomy comes from the combination of our sensibility and understanding[2]. For John Locke, consciousness always accompanies thinking and the understanding of self, and this is of what personal identity consists. It is the same self now as it was then[3]. David Hume refuted this, stating that we have no idea of ‘self’, that our notion of self or person are not just a single impression but many and that there is no single and continued self[4]. Derek Parfit also rejects the notion of identity and states that scientific experiments have shown that the brain actually contains separate consciousnesses in its two upper spheres[5].

The distinction between a human being and person became important for moral philosophers such as Locke because he wanted to establish that personal identity must be understood in terms of the continuity of consciousness. It was this empirical claim by Locke that invented the new entity defined as the person. To explain how a part may be taken from the whole without a change in personal identity, he used the example of your hand being cut off, being separated from your consciousness and no longer part of the whole substance. Locke states that personal identity exists in the identity of the consciousness[6]. The term person is a forensic term for Locke. It considers actions and their merit and so the term person can only belong to intelligent agents capable of law, happiness and misery. Locke considered that personal identity extends beyond present existence to what is past, through its consciousness. It is accountable for its past actions as well as its present actions. All this is founded in the self’s concern for pleasure and pain[7]. However, it could be said that by differentiating of human beings into the new entity of a person Locke commits the same mistake as dualists by multiplying an entity beyond what is strictly necessary to explain phenomena[8].

Contemporary bioethicists such as Mary-Anne Warren, Michael Tooley and John Harris go further and state that the moral community should only consist of ‘people’, rather than all and only human beings. They think that genetic humanity is neither necessary nor sufficient for establishing that entity as a person. Warren states: “Some human beings are not people, and there may well be people who are not human beings”[9]. Tooley states that the value of a person’s life may be defined as their capacity to pursue goals and projects. The differing capacities of these capabilities could be said to make the value of the individual’s personhood. For Tooley, the destruction of a person unable or severely restricted in remembering the past or envisaging the future will not be as wrong as destroying someone with these capabilities intact[10]. For Harris: ‘anyone capable of valuing existence, whether they do or not, is a person in this sense. The possession of this capacity to whatever degree it is possessed meets Locke’s criteria’[11]. One of the implications of the theory of personhood is that health care ethics can then determine which individuals hold the ‘ultimate moral value’ and are therefore entitled to interventionary treatment, and those that are not[12].

By differentiating human beings into persons, non-persons or part-persons, it allows those who are considered persons to have special protections. It also justifies treating those considered part or non-persons selfishly. By denying moral rights to those whom we consider do not qualify for personhood we justify using these individuals as means for human satisfaction[13]. This could be the satisfaction of saving money for costly medical treatment, the use of donated organs from these individuals, or simply the satisfaction of alleviating the emotional or physical cost to which we believe that they commit us. It also restricts our moral capacity to the narrow circle to which we belong and allows us to assert our selfish desires on to those whom fall outside that circle. The bioethicist S. F. Sapontzis rejects this distinction because it restricts our moral view, discourages us from developing a universalist outlook and frustrates the progress of morality[14].

Warren and Tooley use the distinctions of personhood to define why a foetus or an individual who has severe brain damage is no longer a person. Warren asserts only persons have moral rights and claims; the Jeffersonian ideal of life, liberty and happiness. Only persons are part of the ‘moral community’[15]. Although a foetus has a full homo sapien genetic code and the potentiality for rational thought, Warren states it does not conform to the basic criteria of personhood[16]. Warren uses this argument to legitimise abortion. Yet, the determination of whether a foetus has moral rights based upon its ‘personhood’ is not relevant to the human right of a woman to decide what to do with her own body. A foetus cannot survive without the woman’s consent for it to develop. This is so because a woman is also entitled to the security of her person under the Universal Declaration of Human Rights. When the moral rights of the foetus, a potential human being, and a pregnant woman come into conflict the woman’s rights override the rights of the foetus because she is an actual human that the foetus relies upon both physically and emotionally.

Tooley defines the difference between the biological meaning of person, being a homo sapien, and ‘normal adult human beings’ who enjoy self-consciousness and rational thought. ‘Normal adult human beings’ are considered a crucial concept to ethics for Tooley so that basic moral principles can be formulated, including the ‘morality of killing’. He states that ‘a fundamental principle that is crucial for setting out an account of the morality of killing is that the destructions of persons is at least prima facie very seriously wrong’[17]. However, if someone is not a person then its destruction is not wrong. Tooley asserts that someone is not a person if it has no interests. Tooley concludes that this means that the destruction of a person unable or severely restricted in remembering the past or envisaging the future will not be as wrong as destroying someone with those capacities intact[18]. The example is given of a person with Alzheimer’s disease which results in a permanent degenerative state who loses personhood as gradually as they acquired it[19]. Tooley uses this argument to legitimize euthanasia of severely brain damaged humans, stating that they should not be kept alive with expensive medical intervention. This is an empirical argument to justify his assertions however, like other physicalists, Tooley cannot account for consciousness or its qualifiable activities. We cannot explain consciousness, the point at which we attain it or even if we lose it when we die, and we also do not know how our activities are qualified[20]. Therefore it is difficult to assess the capacities of someone who is severely brain damaged, unless of course they have been declared brain dead. If that is the case, they are also legally dead[21].

We have been indoctrinated since ancient times to aspire and strive for perfection. Aristotle thought that the goal of a human life was to live virtuously. By connecting this goal with reason he gave us the foundation of ethics. By being depraved, insensitive or callous we are denying reason and failing our supreme human capacity[22]. There are circumstances where we may be called upon to sacrifice something of our own health and happiness. Sometimes duty will mean laying down our own lives. We cannot attain this goal through the exclusion of others. Just as once men mistakenly thought that women were defective humans the same must be said for humans that do not fulfil our desire for perfect personhood. Notions of a continuous self and unchanging personal identity are disputed. The concept of a moral community made up of persons put forward by some contemporary bioethicists is exclusionary and arbitrary. It requires one to judge the consciousness of others and their ability to feel, experience, or value life. It allows moral decisions to be made about the potentiality of life based upon uncertain premises of when consciousness begins or ends. It allows notions of lesser and greater persons based upon arbitrary judgements about life’s value. Therefore, the deterministic concept of whether a human is a person should not decide someone’s fate.

BIBLIOGRAPHY

  1. Guyer, Paul (1998, 2004). Kant, Immanuel. In E. Craig (Ed.), Routledge Encyclopedia of Philosophy. London: Routledge. Retrieved December 15, 2011, from http://www.rep.routledge.com/article/DB047SECT9
  2. Locke, John. “Of identity and diversity (extract)” in Essay Concerning Human Understanding , Locke, John; Nidditch, Peter H. , 1975 , 328-347
  3. Hume, David. (1739) “Personal Identity” in  A Treatise of Human Nature, ebooks Adelaide. Retrieved December 20, 2011, from http://ebooks.adelaide.edu.au/h/hume/david/h92t/
  4.  Parfit, Derek. (1984) “Why our identity is not what matters” in Reasons and Persons, Clarendon Press, Oxford
  5. Warren, Mary Ann. “On the moral and legal status of abortion” Monist , 57:1 , 1973 , 43-61
  6. Tooley, Michael. “Personhood” in A Companion to Bioethics , Kuhse, Helga; Singer, Peter , 1998 , 117-126
  7. Harris, John. “The concept of the Person and the Value of Life”, in Kennedy Institute of Ethics Journal 9.4, 1999,  293-308
  8. Sapontzis, S.F. “A Critique of Personhood” in  Ethics, 91. 4,1981, 607-618,
  9. Intensive Care Coordination and Monitoring Unit (ICCMU), “Brain Death”, NSW Government Dept. of Health, 2011, Retrieved: http://intensivecare.hsnet.nsw.gov.au/brain-death#5 28 December 2011
  10. Blackburn, Simon. “Being good and living well” Being Good: A Short Introduction to Ethics , :17 , 2001 , 112-116
  1. Churchland, Paul M. “The ontological problem (the mind-body problem)” in Matter and Consciousness: A Contemporary Introduction to the Philosophy of Mind, (1988), pp.7-22

[1] Locke, 1975

[2] Guyer, 1998, 2004

[3] Locke, 1975

[4] Hume, 2006

[5] Parfit, 1984

[6] Locke, 1975

[7] ibid.

[8] Churchland, 1988

[9] Warren, 1973

[10] Tooley, 1998

[11] Harris, 1999

[12] ibid.

[13] Sapontzis, 1981

[14] ibid.

[15] Warren, 1973

[16] ibid.

[17] Tooley, 1998

[18] ibid.

[19] ibid.

[20] Churchland 1988

[21] ICCMU, 2011

[22] Blackburn, 2001