Politikon: IAPSS Political Science Journal
Vol. Nr.20, June 2013
important to participate in the building of new ideas, to criticize the established order and
Politikon: IAPSS Political Science Journal
Vol. Nr.20, June 2013
Volume 20: June 2013
Academic year 2013-2014
Editor in Chief
Rodrigo Vaz
Catholic University of Portugal
Portugal
Editorial Board
Caitlin Bagby, USA
King’s College, London, United Kingdom
Péter Király, Hungary
Central European University, Budapest, Hungary
Andrijana Nikic, Montenegro
University of Montenegro, Montenegro
Reint-Jan Groot Nuelend, The Netherlands
University of Nijmegen, Nijmegen, The Netherlands
Vit Simral, Czech Republic
IMT, Lucca, Italy / Charles University, Prague / Masaryk University, Brno, Czech Republic
Advisory Board
Manuel Garreton, Chile,
João Carlos Espada, Portugal,
Carole Pateman, England,
Leonardo Morlino, Italy,
Phillippe Schmitter, USA
Content
Editorial Message...........................................................................................................................1
Rodrigo Vaz
Justice and Democracy in Amartya Sen: another procedural approach?.........................2 - 9
Antonio Puggioni
Feeding Truffles to Porcupines: Why the West consistently fails to export democracy and
human rights........................................................................................................................10 – 13
Jakub Tloka
Addressing Political Corruption In India: Fundamental To The Process Of
Democratization..................................................................................................................14 – 47
Pawan Kumar
Do Democratisation and Global Justice go hand in hand? The case of TimorLeste......................................................................................................................................47 – 59
Carla Luís
The Impact of Foreign Aid on Human Rights Violations: Innocent Flower or the
Serpent under it?.................................................................................................................60 – 72
Natalie Sophie Cebulla
Responsibility To Protect: What For?: R2P And The Non-Intervention In Syria....73 – 80
Adelaida Rivera
Effects of Democratic Citizenship on Pursuing Global Justice: from the perspective of
the post-Soviet Georgia.....................................................................................................81 – 90
Mikhail Shavtvaladze
The Limits Of Kantianism Towards A Project Of Global Justice.............................91 – 98
Daniel Nunes Pereira
A Boundedly Rational Analysis of Global Distributive Justice.................................98 – 123
Alexandru Volacu and Iris Patricia Golopenta
Criminalizing Rape Within Marriage: Recasting Indian Rape Law..........................124 – 148
Megha
Legislative Representation and Governability in Brazil: Does Brazilian Democracy
Represent its Social Plurality?.......................................................................................149 – 173
Lívia de Souza Lima and Thiago Henrique Desenzi
Violence Against Native American Women in the United States...........................174 – 187
Jennifer Di Paolo
Politikon:IAPSS Political Science Journal
Vol. Nr.20, June 2013
Editorial Message
Dear Reader,
Let me start by welcoming you to yet another issue of POLITIKON. In this issue we publish the
papers presented at our last Academic Conference in Rome, in March this year.
The topic of the Rome ACGA was devoted to Global Justice. The academic panels lengthily
discussed this theme, mixing it with other equally interesting topics such as Democratization and
Human Rights. Another positive aspect about the panels was the plurality of nationalities of the
several panelists – from Colombia to India, from Georgia to Yemen, from Canada to Germany.
This reveals the effort IAPSS is making towards the reinforcement of the international – and
intercontinental - side of the association, leaving its heavily focus in Europe.
This issue marks the continuation of POLITIKON being released on a regular basis and the
introduction of the new Editorial Board: Caitlin Bagby from the USA, Péter Király from
Hungary, Andrijana Nikic from Montenegro, Reint-Jan Groot Nuelend from the Netherlands
and Vit Simral from Czech Republic. I would like to take this opportunity to welcome them all
aboard and say what a pleasure it will be work with them.
For now, I will leave you with the articles presented in Rome. The topics covered are very
heterogeneous and diverse, and I am sure you will find many that suit your likes. Should you have
any questions, please feel free to contact me directly at [email protected].
Enjoy,
Rodrigo Vaz
Editor in Chief
1
Antonio Puggioni
Justice and Democracy in Amartaya Sen: another procedural approach?
Justice and Democracy in Amartya Sen: another procedural
approach?
Antonio PUGGIONI1, Institute for Advanced Studies, Italy
Abstract
T
he present paper aims at delivering a critical view of the links between justice and democracy as set by
Amartya Sen’s paramount work on these themes, “The Idea of Justice”, by considering the
constitutional and political experience of India. A central role will thus be given to the importance of
public discussion and reasoning as the basis of democratic thought throughout the world, as Sen
postulates. Nevertheless, an analysis of the Indian constitutional process shows how the mere reliance
on reason and justice is not sufficient for a successful democratic tradition: the role of liberal values and of the
underlying institutional developments is indeed capital for a wider understanding of the democratization process of
India. The intertwining of these two aspects, the former socio-philosophical, the latter institutional, will help in
reviewing the Indian experience as a demonstration of the maintenance of traditions within a clear framework, and
in further expanding the notion to other contexts.
1
Antonio Puggioni, 24, is a Ph.D. candidate in Institutions, Politics and Policies at the Institute
for Advanced Studies in Lucca (Italy). He holds a BA in Political Sciences and International
Relations (2009) and a MA in European Legal Studies (2011) from the University La Sapienza in
Rome. He wrote both his BA and Master’s theses in Comparative Constitutional Law (the BA on
the constitutional processes in Japan from the 1870s to the 1940s, the MA on linguistic rights in
the Indian legal system). He is currently working on a research project on the legal and
constitutional perspectives of the democratization processes in India and Burma, with a
comparative approach.
2
Politikon: IAPSS Political Science Journal
Introduction
T
he theme of justice gained
momentum again thanks to John
Rawls’s paramount work A Theory of
Justice and has so far been the object
of investigation of several authors (as
Nozick), who generally followed the
“contractarian” approach, in line with the
tradition started with Hobbes, Locke and
Rousseau on the existence of a social
contract. This new tendency towards studies
on justice, and especially on the related
concept of fairness,2 has found in Amartya
Sen a major contribution, thanks to the
elaboration of a complete theory on
reasoning and the public sphere. Sen’s
approach reached a capital point for a more
comprehensive understanding of the theme
of justice with the links created between the
reason-based idea of justice and the
relevance of democracy and of the
democratic process. In fact, the concepts of
justice and democracy are more deeply
analyzed in The Idea of Justice, where Sen
explores these two inherently intertwined
notions with a view to a global
understanding of the subject, deriving his
arguments from both the Western and the
Oriental historical experiences.
In order to investigate the
connection between justice and democracy,
a proper definition of both notions will be
helpful for clarifying the limits of the
analysis. Justice could be intended, as Rawls
does, as the “first virtue of social
institutions”, associated with fairness.
Nevertheless, while maintaining the selfevident link with fairness, Sen adds a more
feasible argument: instead of framing justice
within an institutional scheme, he derives the
2
Justice as Fairness is in fact the title of the
first article by John Rawls in 1958, and a key
association developed in his work of 1973.
Vol. Nr. 20, June 2013
notion from actual accomplishments, that
could be eventually ranked. This notion of
justice is linked to democracy by association
with the method: as justice stems from an
open
and
reason-based
approach
characterized by discussion, so is democracy
defined in terms of public reasoning, with an
emphasis on informational availability and
possibility of choice. Although this
framework is indisputably correct for a
philosophical analysis of the two concepts,
the institutional and procedural characters of
democracy could not be neglected. From a
minimal procedural perspective, democracy
could be conceived as “the institutional
arrangement for arriving at political decisions (…)
in which individuals acquire the power to decide by
means of a competitive struggle for the people’s vote”,
as Schumpeter defined the notion
(Schumpeter, 1942, 269). A broader
explanation is given by Sartori, according to
whom democracy is “a system fictitiously based
on the will of the majority, which is in fact produced
and safeguarded by the government of a minority”,
thus presenting the elitist version of the
notion (Sartori, 1957, 96). What Sen
proposes seems to be a sort of procedural
conception of democracy as a method
characterized by open discussion that could
eventually lead to just or fair outcomes
thanks to the procedure itself. Despite the
agreement on the relevance of the
dimension of the public sphere, is this the
correct path to understand the inherent link
between justice and democracy, and the
definition of democracy itself?
The present analysis will be initially
devoted to the study of the question of
justice in Amartya Sen’s thought, through a
comparison with the contractarian tradition
lately embodied by Rawls. Then, the focus
will switch to the notion of democracy, from
a general perspective to the links that Sen
establishes with the concept of justice.
Finally, the critical examination of the theory
3
Antonio Puggioni
Justice and Democracy in Amartaya Sen: another procedural approach?
of justice and democracy will concentrate on
the role of institutions and of liberalism in
the general framework of a democratic
theory.
The ideas of justice
In The Idea of Justice, Amartya Sen
classifies the theories of justice according to
two streams of philosophical reflection: the
contractarian school and the comparative
approach, both stemming from the
Enlightenment tradition. The former
category, including Rousseau and Rawls
among others, deals with the identification
of the just institutional agreements for a
society, with the purpose of finding the right
institutions that could ensure perfect justice;
on the contrary, the latter concentrates on
an accomplishment-based view of justice,
taking into account the different possibilities
of reaching the goal of less injustice and
ranking the alternative choices (Sen, 2009,
Introduction).
Despite its main concentration on
the establishment of just institutions, Rawls’s
theory is fundamental in the understanding
of the entire question of justice. The
reasoned conclusions drawn by Rawls are
shared by Sen as well, acknowledging the
“firm footing” (Sen, 2009, 53) set by Rawls for
the theory of justice. The starting point of
Rawls’s theory is the basic idea of justice
seen as a demand of fairness, following the
traditional theory of the social contract. The
institutional question is thus at the core of
Rawls’s investigation: from a social contract
equally agreed by everyone, just institutions
that satisfy shared principles of justice arise.
The idea of social contract is here developed
at a higher level: the aim of the act is a joint
decision over “the principles which are to assign
basic rights and duties and to determine the division
of social benefits” (Rawls, 1973, 10). The
theoretical stratagem invented by Rawls in
order to pass from a state of nature to a just
society is the well-known “veil of
ignorance”: thanks to this original position
of restriction of knowledge concerning his
place in society or his social status and also
his conception of the good (Rawls, 1973,
112), a reasonable person could not but
choose a fair social contract. This
unanimous agreement will be based on two
principles of justice:
First: each person is to have an equal right
to the most extensive scheme of equal basic liberties
compatible with a similar scheme of liberties for
others.
Second: social and economic equalities are to
be arranged so that they are both reasonably expected
to be to everyone’s advantage, and attached to
positions and offices open to all (Rawls, 1973, 52).
Thus, two pillars constitute the concept of
justice: a liberty principle and a difference
principle, with the former having priority
over the latter. After having selected these
principles, two further stages are provided: a
“constitutional”
stage
for
choosing
institutions, and a “legislative” stage to
implement social decisions by means of
laws.
As Sen notes, two elements in
Rawls’s theory of justice are capital: the use
of reason for the choice of the agreement
and the importance of freedom. Both
elements underlie the existence of a public
sphere sufficient to reach conclusions by the
use of reason and through discussion, which
is a common point with the comparative
approach (Rawls, 1973, 62-64). The
difference lies in the content of the
“programme” and in the role of institutions:
while Rawls clearly states the content of the
agreement in the “basic liberties” (political;
of speech and assembly; of thought; of the
person; personal property and freedom from
arbitrary arrest), Sen develops his own
reasoning according to the concept of
4
Politikon: IAPSS Political Science Journal
capabilities, which is more real but more
vague as well. This same argument of
capabilities, typical of Sen’s attention to
actual achievements, leaves to the
background the question of institutions.
According to Sen, “just institutions” could
not properly work if the actual behaviour is
not in line with the expected reasonable
behaviour.
In fact, the comparative approach
neglects the role of institutions to focus on
actual realizations. The theoretical device
employed by Sen is the “impartial spectator”
that Adam Smith used in his Theory of Moral
Sentiments, according to whom a comparative
assessment of different options becomes
possible through a variety of viewpoints.
This comparative view on justice is also
developed from the traditional difference
between two concepts of justice in Sanskrit,
niti and nyaya: while the former term
identifies a procedural concept of justice, the
latter encompasses the actual achievements,
the social realizations (Sen, 2009,
Introduction). Sen’s theory clearly aims at
reaching nyaya by means of public reasoning
and comparison of different possibilities.
The typical example is delivered with the
illustration of the competing reasons for the
property of a flute. Three children,
quarrelling for a flute, have good reasons for
owning the instrument: the first one because
he is so poor that he has no toys; the second
because he produced the flute; the third one
because he can play it (Sen, 2009, 12-15).
The three alternatives are equally valid
according to a contractarian view, but from a
comparative approach they can be ranked
through public reasoning: the prevention of
manifest injustice will be the parameter used
to assess the claims. Sen’s approach thus
gives an open perspective convenient to
impartially rank demands of justice.
Moreover, this same concern for open
discussion links the concept of justice to the
Vol. Nr. 20, June 2013
broad understanding of democracy in his
thought.
The quest for a comprehensive notion of
democracy
In
Amartya
Sen’s
academic
production, the relevance of open discussion
in the achievement of freedom is essential.
As in Rawls, the importance of freedom for
the attainment of one’s objectives is at the
basis of his philosophical investigation.
Nevertheless, the emphasized aspect is the
fulfillment of “comprehensive outcomes”, as
in the Sanskrit notion of nyaya. In order to
insert these considerations in the framework
of a comprehensive theory of justice and of
the link with democracy, the system
presented by Sen relies on the capability
approach.
What is meant by capability is a
person’s “real opportunity (…) to do things he or
she has reason to value” (Sen, 2009, 233): this
calls for the necessity of judging and
comparing several individual advantages
(what Sen calls “combinations of
functionings”) from an “informational
focus”. So, the idea of capability guarantees
the actual possibility for people to freely
choose, according to a comprehensive range
of opportunities. An important feature of
this approach is the use of reason and public
discussion, shared with the contractarian
views of Rawls. Unlike him, though, Sen
opens the possibility for different solutions:
instead of a single social contract embodying
unanimous principles of justice, the
approach based on social choice theory, here
proposed, aims at giving to each person the
chance to find a way for reaching an actual
position of less injustice by means of free
and open discussion (Sen, 2009, 225-252).3
3
This aspect is developed in Chapter XI of
The Idea of Justice, Lives, Freedoms and
Capabilities.
5
Antonio Puggioni
Justice and Democracy in Amartaya Sen: another procedural approach?
Despite the equal importance of
public reasoning in Rawls’s and Sen’s
theories, the results diverge not only in the
absence of a social contract, but also in the
relevance of equality. Indeed, Sen does not
claim the necessity of equality of capabilities,
because the concept itself is related to
individual advantages, not to a general
ordering (Sen, 2009, 295-298). Thus, the
priority of freedom is repeatedly stated, the
procedure of reaching freedom through
public discussion is shared, but the
outcomes are different for each person. This
understanding of justice, equality and
freedom leads to the comprehensive notion
of democracy proposed by Amartya Sen.
Amartya Sen tries to elaborate a
concept of democracy that is universally
applicable to experiments of local
government both in the Western and
Eastern worlds. Indeed, the tendency for
public reasoning for the decision-making
process is not a Western monopoly that
started in Athens in the 5th century B.C.,
since ancient India testifies of several
experiences of local governance. What Sen
regularly stresses is the “intimate connection
between justice and democracy, with shared discursive
features” (Sen, 2009, 326). So, the character of
open discussion is the capital element in
democracy,
in
contraposition
with
Schumpeter’s idea of a method for reaching
decisions by means of a majority vote, but
also of Sartori’s view, which poses at the
forefront the elitist idea of a government by
a minority supported by an initial majority
decision.
Sen’s view of democracy is said to be
content-based: by means of open discussion,
through which a plurality of reasons can be
compared, a just solution is to be found.
According to this view, the procedural and
institutional features of democracy look
secondary if compared with the inherently
primary discursive element of the concept,
that always leads to the establishment of free
alternatives, to nyaya-based solutions. The
institutional elements of democracy, from
the Western tradition, and especially the
practice of elections, are thus given minor
attention, to leave space for the
establishment of an open forum for dealing
with tolerant values and priorities. Several
examples are provided in order to support
this claim, all derived from the Indian
experience since 1947: the prevention of
famines in democratic countries thanks to
the attention of the media to natural and
social disasters; the prevention of sectarian
violence; the role of educational rights.
Notwithstanding the coherence of
this approach and the evident results, the
inference that derives the success of
democracy only thanks to the discursive
features seems overemphasized. In fact,
what Sen proposes is another procedural
notion of democracy, and not a contentbased approach: by means of the discursive
method, that brings to the forefront
reasoned claims for justice and reasoned
solutions, just and democratic achievements
can be reached, independently from the
institutional features of a society. Thus, it is
the discursive method, that in itself should
completely guarantee the rise and acceptance
of just decisions by impartially-reasoned
ranking of the alternatives, that defines the
concept of democracy. While the
philosophical derivation of this conception
is not questionable, is this view historically
consistent?
Comprehensive and traditional notions
of democracy
If Amartya Sen’s view is correct,
what about the fall of the Weimar Republic?
Wasn’t it one of the best examples of the
burgeoning of open discussion and of
6
Politikon: IAPSS Political Science Journal
cultural vitality ever achieved? This mere
example should be sufficient for
understanding that the role of institutions
should not be neglected in the study of
democracy. A democracy that does not
defend itself4 by means of institutional
devices is deemed to failure sooner or later,
because the protection of minorities and of
human rights and freedoms, which are at the
basis of the concept itself, must be
supported by some protective framework.
Weimar Germany was an example of public
discussion without public reasoning,
especially towards the end of the democratic
period, but the existence of public reasoning
is not to be taken for granted, as Amartya
Sen seems to do. Least of all should it be
considered for building a complete system
of thought, regardless of previous
experiences.
Trust on human capacities and on
the use of reason is certainly the ground for
Sen’s understanding of the notion of
democracy. Nobody denies that, and nobody
could speculate about the supposed Western
monopoly of reasoned discussion: the
historical examples provided by Sen suffice
to deny the conception of decision-making
by open discussion as purely Western, and
the experience of the Indian democracy after
1947 is there as a proof of the universal
relevance of the democratic values. But the
confusion between values and the notion
itself is misleading. Sen tries to defend the
4
The concept of defence is introduced with
a view to the parallel of the two democratic
experiences of Germany: the Weimar
Republic from 1919 to 1933 and the redemocratization of 1949 with the new
Grundgesetz.
This
new
constitution
established a system of institutional clauses
aimed at preventing a return to
authoritarianism that allows to define it as a
wehrhafte Demokratie, a democracy that
defends itself, a fortified democracy.
Vol. Nr. 20, June 2013
new democratic experiences, in Asian
countries especially, from the idea that Asian
values are not compatible with democracy:
an idea promoted in the 1990s by Mahatir
Mohamad and Lee Kwan Yew, the Prime
Ministers of Malaysia and Singapore, in
order to justify the authoritarian regimes in
South-East Asia.
The claim for the universality of the
value and method of public reasoning and
discussion is undisputable. Nevertheless, the
historical experience shows that from the
19th century onward the only institutional
system that could sustain the value of public
discussion and at the same time guarantee
peaceful coexistence has been the liberaldemocratic framework as designed by the
Western tradition. What Sen correctly points
out is the fact that the seeds of democracy,
meant as government allowing discussion
and just decisions, are present in each
society and in each human context.
However, the method of open discussion is
not sufficient to define democracy, because
it is only the prerequisite for the
establishment of a democratic system: it is a
procedural feature that is deprived of
content. The issue is not about installing just
institutions, as Rawls indicates in line with
the contractarian theory: the real problem
concerns the association of institutions that
embody a certain idea of liberty and of
protection of minorities, and that help
guaranteeing it by the discursive method,
with the eventual accomplishment of actual
progress in justice.
The two aspects are strictly linked:
the respect of democratic values does not
arise by itself by means of discussion. The
respect of individual rights and freedoms is
the essence of a democracy: Sen
acknowledges this view by giving priority to
freedom, but then leaves to the “unknown”
forces of human reason the task of
supporting this priority. But a blind trust on
7
Antonio Puggioni
Justice and Democracy in Amartaya Sen: another procedural approach?
human reason is not a reasonable point of
departure: the framework for decisions is
itself important. The idea of democracy is
characterized by a plurality of elements,
whose basis is the possibility of open
discussion, as Sen emphasizes, but this is not
an exhaustive definition.
Besides the precondition of public
discussion, another procedural element lies
in the participation in the government by an
elected minority: government by the people
is the characteristic of the concept, and the
etymology of the word states this evidence.
According to Hans Kelsen, this procedural
component is the essence, “the liberal element
being of secondary importance” (Kelsen, 1955, 4).
But the rule of the majority, the procedural
framework, must be supported by a content,
and this content lies in an agreement (a
social contract?) on the values to be
protected, promoted and embodied by the
institutional system. The values of freedom
and of justice seem to gather a secure
agreement from the representatives of both
the contractarian and the comparative
approaches.
The comprehensive notion of
democracy thus encompasses three aspects:
two procedural elements, the government by
discussion and by majority rule; and a
content-related feature, the protection of
freedoms and the promotion of justice. The
embodiment of these three elements has
been so far guaranteed only by the
institutional system derived by the liberal
tradition: the successful implant of Western
liberal institutions in contexts alien to the
liberal experience shows how this type of
institutions are able to universally serve
societies in which the precondition of public
discussion is already present, but miss the
organizational structure necessary for dealing
with today’s world challenges.
Open conclusions: liberalism and
traditional values
This short study on the concepts of
justice and democracy has tried to present a
critical view of the currently most acclaimed
theory of justice as linked with universal
democratic thought. By the analysis of
Amartya Sen’s The Idea of Justice, some points
of discussion arise about the necessity of
eliminating the institutional element in the
concept of democracy so as to universalize
the notion. While a common ground seems
to be found in the definition of justice and
in the link of the philosophical notion with
the concept of democracy, the definition of
the latter is still a matter of dispute. The
mere definition of democracy as public
reasoning is clearly insufficient, because it
lacks the empirical basis, which is given by
the institutions derived by the Western
tradition. Thus, a notion of democracy, to be
considered sufficient to respond to the
aspiration of people in both a demand for
justice and freedom and a way to guarantee
this demand, must be related to content and
method.
The case of India is of high
significance in showing this evidence. The
Constitution of India was framed between
1947 and 1949 by men who at the same time
possessed both the lessons of liberalism and
the awareness of the Indian tradition of
discussion. Nevertheless, the result was a
text that derives its features from the liberal
thought, as Bhimrao Ambedkar, the Chair of
the Drafting Committee, admitted in
contrast with the ecumenical views
purported by Gandhi and his “Republic of
Panchayats” (villages). A traditional system, as
supported by Gandhi, could never have
come into being, because of the necessity of
having a functioning state. But the seeds of
democratic thought were present, and the
8
Politikon: IAPSS Political Science Journal
fact that the Indian democracy still survives
today is an evidence of the success reached
by allying public discussion with institutions
protecting individual freedoms at a broader
level, ensuring at the same time the
participation of the popular will to the
decisions.
Social
realizations,
actual
advancement of justice intended as nyaya,
seem to be possible nowadays only through
a democratic system in which institutions
play a role.
Vol. Nr. 20, June 2013
Sen, A. (2009), The Idea of Justice. Cambridge:
Harvard University Press.
Singh, M.P. (2006), Outlines of Indian Legal and
Constitutional History. Delhi: Universal Law
Publishing Co. Pvt. Ltd., 8th Edition.
References
Austin, G. (1966), The Indian Constitution:
Cornerstone of a Nation. New Delhi: Oxford
University Press.
Guha, R. (2007), India after Gandhi: The
History of the World’s Largest Democracy.
Kelsen, H. (1955), Foundations of Democracy,
Ethics, Vol. 66, No.1, Part 2 (Oct. 1955).
Morlino, L. (2008), Democracy and Changes:
How Research Tails Reality, West European
Politics, Vol. 31, Nos. 1-2, 40-59, JanuaryMarch 2008.
Morlino, L. (2011), Changes for Democracy:
Actors, Structures, Processes. Oxford: Oxford
University Press.
Nariman, F.S. (2006), India’s Legal System:
Can It Be Saved?. New Delhi, Penguin Books
India.
Rawls, J. (1973), A Theory of Justice.
Cambridge: Harvard University Press.
Sartori, G. (1957), Democrazia e Definizioni.
Bologna: Il Mulino.
Schumpeter, J.A. (1942), Capitalism, Socialism
and Democracy. London and New York:
Routledge.
9
Jakub Tloka
Feeding Truffles to Porcupines
Feeding Truffles to Porcupines: Why the West consistently
fails to export democracy and human rights
Jakub TLOKA 1, Bratislava International School of Liberal Arts, Slovakia
Abstract
T
raditionally, the West has promoted the commendable cause of human rights because it was here that
its contours were eloquently outlined by the champions of early liberalism. We uphold the western
societal model because it results from our cumulative efforts to introduce into practice the noble
standards conceptualised by John Locke, Thomas Hobbes, Thomas Paine, and other influential
contractualists. Naturally, we are eager to share its fruits with the world. However, in the process of
attempting to export western values we tend to disregard completely the fact that they took centuries to solidify into
their present form. Furthermore, we fail to take into account the political and cultural climates which facilitated the
advent of democracy and human rights. Further still, although our eagerness to market the products of our
civilisation borders on intrusive advertising, we are yet to appreciate completely the qualities they entail. In this
paper I shall argue that, in spite of being established theoretical concepts, from a practical perspective, democracy
and human rights are novelties. I shall argue that the sociocultural evolutionary process cannot be expedited; that
historically, piecemeal reform has taken pragmatic precedence over political adventurism. I shall argue that insofar
as the West continues to recklessly impose its cultural ethos upon exotic civilisations, the ideals it espouses will
become utterly devoid of authenticity.
1
Jakub Tloka, 24, is currently reading a BA in Political Science at BISLA (Bratislava
International School of Liberal Arts), Slovakia.
10
Politikon: IAPSS Political Science Journal
T
he past century bore the marks of
enmity, oppression and belligerence.
It witnessed two appallingly
devastating conflicts which many
had previously thought unfathomable. The
great nations whence came numerous
forefathers of democracy approached the
verge of positively obliterating their
nationals' constructive efforts. Merely two
decades had passed since the collapse of
European
imperialism
when
the
preservation of civilised values came into
competition during an unprecedented
attempt to institute a global hegemony.
Following years of extraordinary hostilities,
reconciliation came about and parts of the
West re-embarked upon a more propitious
track. Nevertheless, several states across
Europe were a long way from concluding
their democratic transition, while a great deal
of others became trapped in an authoritarian
stranglehold. With respect to the former,
consider Francoist Spain, the Estado Novo in
Portugal or the Regime of the Colonels in
Greece; with respect to the latter, consider
Yugoslavia and the Eastern Bloc.
Democracy did not dawn in these countries
until as recently as the 1970s2. As much as
the West enjoys patting itself on the back
about how far it has progressed, when
juxtaposed with other systems of
governance, democracy comes out as quite
embryonic. We should therefore endeavour
to conduce to its uncomplicated gestation
and birth. Similarly, we should safeguard the
other hallmark of the Western civilisation –
the observance of human rights. I shall note
that in 2014, fifty years will have elapsed
since the enactment of the Civil Rights Act
of 1964, which outlawed discriminatory
practices against minorities and women in
The United States3. A year later, a halfcentury will have passed since the
enfranchisement of African Americans4.
One must bear in mind, while reflecting on
these facts, that in 1948, the U.S. adopted
2
1990s as far as Yugoslavia and the Eastern Bloc
are concerned.
3
Titles II - VII.
4
The Voting Rights Act came into effect on August
6, 1965.
Vol. Nr. 20, June 2013
The Universal Declaration of Human
Rights, Article 2 of which states that
'[e]veryone is entitled to all the rights and
freedoms set forth in this Declaration,
without distinction of any kind, such as race,
colour, sex . . . or other status' (p. 535). Of
these rights and freedoms, consider
everyone's 'right to take part in the
government of his country, directly or
through freely chosen representatives . . .
right of equal access to public service in his
country . . . [right to] genuine elections
which shall be by universal and equal
suffrage' (Article 21). These and other
entitlements did not apply catholically until
almost two decades after their formal
adoption. It is flagrant and revolting that the
policy makers of any country should act in
systematic denial of the standards they had
consented to. It is sensational, yet, at the
same time, somewhat lamentable that
democratic values triumphed over sociopolitical inequity largely thanks to the
perseverance and subversiveness of reform
movements. It is preposterous that
establishments with a history of suppressing
individual and collective self-determination
should become their most zealous
proponents. It is entirely unacceptable that
democracy should be undemocratically
imposed upon those, whose cultural fabric is
incompatible with its pretences.
Ludwig Wittgenstein, perhaps the
greatest philosopher of the 20th century,
made an assertion in Philosophical Investigations
that I shall now paraphrase: 'If a porcupine
could speak, men would fail to understand
him' (p. 225). It is because the porcupine's
perception of the world differs entirely from
ours that we could not appreciate it. The
same, of course, could be said of the human
perspective from the point of view of the
porcupine. In its vehement attempts to
export human rights and democracy, the
West is feeding truffles to porcupines. It is
seeking to introduce into foreign lands
values and a societal structure which, more
often than not, collide with the established
cultural norms. Moreover, it is doing so in
quite an imprudent and seemingly
11
Jakub Tloka
extemporaneous way. The West does not
seem to recall that democratisation
progresses incrementally. It does not seem
to recognise the importance of historical
tradition and the extent to which it has
shaped contemporary societies. And finally,
fond as its leaders are of the popular
platitude 'change comes from the bottom
up', they do not seem to grasp its
implications. Edmund Burke, the great Irish
conservative political theorist, wrote in
Reflections on the Revolution in France that
'[p]eople will not look forward to posterity,
who never look backward to their ancestors'
(p. 29). Political establishments may come
about by means of three disparate modes,
which I shall now expound. First, there is
infliction – the forced introduction of
extrinsic government. Second, there is
revolution – the collective quest for political
reorganisation. Third, there is evolution – the
gradual transition towards a socially
opportune state of affairs. The expediency
of the transitions which proceed from these
modes can be determined through
investigating their popularity and timeliness. A
popular transition will be consented to by
the concerned population. A timely
transition will only take place once the
public have become attuned to its precepts.
Thomas Masaryk, the first president of
Czechoslovakia, once said: 'We have got
democracy. What we need now are some
democrats' 5. What regimes came of inflictive
transitions have been either tyrannical by
design or became so gradually. Albeit their
acceptance was rather short-lived, they have
occasionally been popular. At the same time,
however, they have been particularly
untimely. Consider the introduction of
socialism in the former Eastern Bloc. What
regimes came of revolutionary transitions
have been at the mercy of their
orchestrators. Popular as they initially were,
revolutionary establishments have seldom
outlasted the preceding governments. For a
cautionary example, one might look to the
5
This is a literal translation from the Czech
language. To my mind, there exists no official
rendering of the quote.
Feeding Truffles to Porcupines
French Revolution - an event whose
engineers mismanaged the authority which
they had wrested from the sovereign and
eventually precipitated the state's relapse to
autocracy. Jean-Jacques Rousseau, whom
many have called the 'father of the French
Revolution', wrote in The Second Discourse:
Discourse on the Origin and Foundations of
Inequality Among Mankind that '[a] people
once accustomed to masters are not able to
live without them' (p. 73). Newly
emancipated states, most of which stretch
across Latin America and Central and
Eastern Europe, are yet to endure the many
trials of a free society. Time alone can tell
how well they will fare. What regimes came
of evolutionary transitions have become
prosperous and self-sufficient. Consider
Norway, a country whose becoming a
sovereign
constitutional
monarchy
represented a culmination of the historical,
political, and socio-economic developments.
It was timely because by 1905, when the
Union between Sweden and Norway was
dissolved, Norway's economy had grown
vigorously and its administrative institutions
had become largely self-reliant. It was
popular because in the 1905 referendum, an
overwhelming majority 6 of Norwegians
voted in favour of the dissolution.
It has been said time and again that
history cannot be accelerated. Yet time and
again, men have brazenly sought to alter its
currents. One such endeavour in the former
USSR brought about a regime whose
despotism and uncompromising brutality
against the 'politically proscribed' are
unparalleled by modern historical standards.
A synthesis cannot occur without a thesis
and
an
antithesis.
Recently,
the
disenfranchised masses of the Arab World
rallied for social and political rearrangement.
Their crusade was met with enthusiastic
praise by numerous statesmen across the
West. Whether the Arab Spring will yield
more favourable establishments remains to
be seen. Let us bear in mind a quote from
Hegel's Lectures on the Philosophy of History:
6
Approximately 99,5 %
12
Politikon: IAPSS Political Science Journal
'What experience and history teach is . . .
that peoples and governments never have
learned anything from history, or acted on
principles deducted from it' (p. 6).
The porcupine is not in a position to
recognise the delicacy of truffles. He might
find man's insistence upon his consuming
the precious fungus rather curious. But
because dietary appreciation has not yet
penetrated into his world, the porcupine is
not to be held accountable for his
gastronomic inadequacy. It remains to be
seen whether he will ever relish savoury
food. Man, unlike the porcupine, realises
that the procurement of truffles is especially
laborious. He should therefore know better
than to shove mushrooms down the poor
rodent's throat. If the West desires to export
its cultural standards, it is important that it
acquaint itself with the intricate constitution
of the porcupine's world. It must essay to
determine, by means of a thorough and
dedicated analysis, the likelihood of exotic
sociocultural markets accommodating its
product. Should the West fail to execute this
measure, its reformative endeavours might
soon prove untimely. Furthermore, should it
disregard the sentiments of its clients, the
Western mode would prove inflictive and
therefore unpopular. John Locke said in The
Second Treatise of Government that '[no man]
can be . . . subjected to the political power of
another, without his own consent' (§ 95). It
would be unworthy of the West to
contradict the maxims of its ideological
fathers.
Vol. Nr. 20, June 2013
9/868/1/The%20History%20of%20Norwa
y.pdf
Garrard, G. (2012, May/June), Brief Lives,
Jean-Jacques Rousseau (1717-1778). Philosophy
Now, 90. Retrieved February 23, 2013 from:
http://philosophynow.org/issues/90/JeanJacques_Rousseau_1712-1778
Hegel, G. W. F. (1914). Lectures on the
Philosophy of History, London: Bell
Locke, J. (2002). The Second Treatise of
Government, London: Dover Publications Inc.
Rousseau, J-J. (2002). The Social Contract and
The First and Second Discourses. Yale: Yale
University Press
Transcript of the Civil Rights Act (1964):
Retrieved February 22, 2013 from:
http://www.ourdocuments.gov/doc.php?fla
sh=true&doc=97&page=transcript
Yearbook of the United Nations (19481949), Retrieved February 22, 2013 from:
http://unyearbook.un.org/194849YUN/1948-49_P1_CH5.pdf
Wittgenstein,
L.
(1958), Philosophical
Investigations. London: Basil Blackwell
Progress has a harsh way of
correcting our judgment. It is remarkably
difficult to accomplish, yet unusually simple
to reverse.
References
Burke, E. (1791), Reflections on the Revolution in
France, London
Dagre, T. (1999), The History of Norway:
Millenium, 15. Retrieved February 22, 2013
from:
http://repositorio.ipv.pt/bitstream/10400.1
13
Pawan Kumar
Adressing Political Corruption in India
Addressing Political Corruption In India: Fundamental To
The Process Of Democratization
Pawan KUMAR, University of Delhi, India
Abstract
T
he debate on the relationship between corruption and democracy involves the fundamental issue of the
nature of corruption and that of democracy. Both these concepts can be understood in quite different
manners. This paper tries to bring corruption into the realm of democratic theory by focusing on the
nature of the problem and its effects on democracy. It begins by discussing the various ways in which theorists and
thinkers have conceptualized political corruption, making it a complex phenomenon. This explores how political
corruption takes root in and thrives in a democracy. The paper also highlights the importance of focusing more on
the effects of corruption so that the systemic nature of the problem can be explored. The intention in this paper is
not to come up with any grand theory of corruption but it only seeks to problematize the conventional and prevalent
understanding of political corruption. Conventionally, corruption has been considered as a moral, individual or
social problem but recent approaches to study corruption have tried to establish link between corruption and
democracy by focusing on the effects of corruption on democratic institutions and processes. These different
understandings have made corruption a contested field of research as it affects economic, social, and political aspects
of a political system almost equally. This exercise insists the need of looking at it from institutional perspective as it
is engulfed in social, economic and political fields. The paper presents its arguments by acknowledging the link
between reducing corruption and broader process of democratization.
14
Politikon: IAPSS Political Science Journal
Understanding
Political
Corruption:
orruption has always been present in
society and structures of state but
the theoretical as well as the practical
understanding of corruption has evolved
only in the recent past. Corruption has either
been understood as a structural problem of
politics and economics or as a cultural and
moral problem that makes the study of
corruption
multi-disciplinary.
Notwithstanding
always identified as a serious threat to any
society, it never received due attention from
Definitional Debates
C
Vol. Nr. 20, June 2013
this
complex
understanding of political corruption, this
paper identifies lack of accountability as one
of the major reasons for explaining political
corruption. In a democratic setting this
implies the failure of political institutions in
a society. It becomes important, hence, to
examine why the present institutional set up
has failed to tackle political corruption in
India.
the point of view of eradicating the problem.
Corruption has received serious attention
only in the recent past. One of the reasons
as to why corruption did not get due
attention in the past is that corruption was
seen
as
a
universal
and
inevitable
phenomenon which could not be tackled
rationally. Another reason is the argument
put forward by the neo-liberal economists
that corruption was considered as the result
of
proactive
regulated
state
and
its
commitment to planned development. For
them a socially corrupt act is only a result of
scarcity conditions created by the state
which can be tackled by addressing this issue
of state’s role in economic management.
Another set of argument is given by the
“revisionists” who believe that some form of
corruption may prove to be helpful in
governance and development.2 Thus, there
The meaning, nature and definition
of corruption have always been a matter of
debate and have evolved over time, with
classical conceptions of corruption focused
mainly
on
the
moral
understandings,
whereas modern conceptions conceiving it
mainly in terms of specific actions of
specific individuals.1 Though corruption is
1
Michael Johnston, “The Definitions
Debates: Old Conflicts in New Guises”, in
Arvind Kumar Jain (Ed.), The Political
Economy Of Corruption,
London,
Routledge, 2001, p. 11.
2
The
“revisionists”
challenge
the
assumption that corruption has only
negative effects and argue that it can
perform some positive functions as well.
At least three groups of writers can be
identified who are the proponents of this
view. First set of writers are inspired by
the structural-functional school who
believe that corruption serves positive
functions, especially the function of social
integration. Robert K. Merton’s study
falls in this group. (see his Social Theory and
Social Structure, New York, Free Press,
1957, pp. 72-82) Another set of writers
conceive corruption as a regulatory
mechanism for the informal allocation of
scarce licenses and services and can be
15
Pawan Kumar
Adressing Political Corruption in India
can be different ways to explain the causes
bureaucrats in which they accept bribes for
and consequences of corruption. There is
illegal acts or for “speedy works” to meet
Marxian
conceives
their personal needs or greed. In political
corruption as a system of general social
corruption, apart from the above acts,
principle and relation in a community which
politicians try to seek legitimacy for their
can be explained in terms of the interest of
corrupt behavior as something that is an
the dominant class, there is sociological
integral part of political competition and
perspective
corruption
hence challenges the very essence of the
context specific with different societies
political process.3 So corruption, viewed
experiencing different forms and degrees of
from this perspective, is damaging to the
corruption, there is techno-bureaucratic
democratic institutions.
perspective
that
that
considers
perspective which sees corruption as a result
of over-regulated state and there is political
perspective that tries to draw a distinction
between
bureaucratic
corruption
and
political corruption and calls for the
inclusion of the struggle against corruption
in
the
political
agenda.
Bureaucratic
corruption in this view involves those acts of
related to the market–centered definitions
of corruption. V. O. Key, for example,
argues that corruption helps in regulating
and controlling practices like prostitution
and gambling because they are illegal and
cannot be controlled through legitimate
political means. Third group of writers
are institutionalists, identified with publicinterest definition of corruption, who
view corruption as a better alternative for
fulfilling demands during the periods of
political degeneration and decay of
institutions. Samuel Huntington argues
that in periods of political degeneration,
the possible alternatives for making
demands upon the system are corruption
and violence, the former being the better
alternative as it poses lesser threat than
the latter alternative. (see “Modernization
and Corruption” in his Political Order in
Changing Societies, New Heaven, Yale
University Press, 1968, pp. 59-71.)
Trying to understand corruption in a
democracy, Mark E. Warren points out that
the topic of corruption has been absent
from democratic theory and the reason
behind this is that there have been missing
links between concepts of corruption and
democracy. Warren argues that corruption is
a form of harmful exclusion of those who
have a claim to inclusion and hence involves
an unjustifiable disempowerment.4 Warren is
trying to provide, what he calls a democratic
conception of corruption and believes that
corruption in a democracy usually indicates a
deficit of democracy, breaking the link
3
Devendra Raj Pandey, “Governance and
Political Corruption: A Perspective on
Prospects of Regional Cooperation in
South Asia”, in K. K. Bhargava and
Sridhar K. Khatri (Ed.), South Asia 2010:
Challenges and Opportunities, Delhi, Konark
Publisher, 2001.
4
Mark E. Warren, “What Does
Corruption Mean in a Democracy?”,
American Journal of Political Science, Vol. 48,
No. 2, Apr. 2004, pp. 328-343.
16
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
between people and the state and reducing
corruption properly and focus is generally
the domain of public action by adversely
on the individuals who perform the corrupt
affecting peoples’ power to influence the
acts,
collective
understanding of the nature of political
decision-making
process.
He
which problematizes the
general
argues, “corruption in this way diminishes
corruption.
the horizons of collective actions and in so
corruption, attention is not given to the
doing shrinks the domain of democracy.
victims of the corrupt act i.e. those who get
Corruption
democratic
affected by the corrupt action and the focus
capacities of association within civil society
is generally on those who perform the act
by generalizing suspicion and eroding trust
and hence corruption is not seen as anti-
and reciprocity.”5 The conceptual link
people or anti-human, it is seen only as a
between corruption and democracy can be
violation of abstract principles.8 Corruption
identified if corruption is seen as “a form of
sustains because people relate it to just few
duplicitous and harmful exclusion of those
leaders or officers and do not consider it
who have a claim to inclusion in collective
systemic and people believe that by getting
decision and actions.”6
the corrupt out of the office the task is
undermines
It has become a general practice that
the politicians try to deflect criticisms on
In
the
cases
of
political
completed, which is a false belief from
which people need to come out.
account of widespread corruption by arguing
The
different
perspectives
on
that corruption is not systemic but is
political corruption makes it a complex
accidental and try to socialize people in such
phenomenon, which can be understood in
a way that they start viewing corruption as a
different ways and help in understanding the
problem of just a few officials or leaders
causes and consequences of corruption from
rather than a systemic problem. Thus, “one
different stand points, making the task of
plausible failure of the political market-place
defining corruption even more difficult and
arises if the minimal relevant knowledge
complex. Political corruption has got a
about corruption is not available.” People
complex nature and cannot be defined
are not able to assess the effects of
through a single statement. However, it may
7
be understood in terms of the actors
5
Ibid., p. 329.
6
Ibid., p. 329.
7
Oskar Kurer, “Why do Voters Support
Corrupt Politicians?”, in Arvind Kumar
Jain (Ed.), The Political Economy Of
Corruption, London, Routledge, 2001, p.
79.
involved and also in terms of the purpose of
the corrupt behavior, which involves private
8
Ratnakar Tripathy, “Corruption as
Privilage and Violence”, Lokayan Bulletin,
Vol. 12.5, March-April, 1996, pp. 5-10.
17
Pawan Kumar
Adressing Political Corruption in India
or group enrichment or power preservation.
analytical terms.”9 Bureaucratic corruption
Often these two forms are connected and
takes place at the implementation side of
sometimes political corruption involves both
politics, whereas political corruption usually
the processes, i.e. on the one hand there is
takes place at the formulation end of
accumulation of wealth and on the other
politics, where policies regarding distribution
hand there is misuse of public money for
of nation’s wealth are made. What can be
political purposes. When the public officials
more damaging is when these two work
misuse their power to extract from private
together to perpetuate each other.
sector, government revenues and from
economy in general, political corruption
takes
the
processes
form
of
extraction,
of
accumulation.
accumulation
embezzlement,
are
Such
called
rent-seeking,
plunder, kleptocracy (‘rule by thieves’), as
the case may be. On the other hand, when
the extracted resources are used for political
purposes like power preservation, it takes
the form of favouratism and patronage politics
which may include distribution of these
resources to build loyalty and political
support that may involve buying votes and
other benefits through favours in different
forms.
Political
distinguished
corruption
from
can
be
administrative
or
Any attempt to understand political
corruption must confront the task of
defining the concept. Varieties of definitions
have been employed to explain corruption
but none of them explains it in a holistic
manner.
Contemporary
social
science
definitions of corruption can be categorized
within three strands explaining corruption
by relating it to either public office, or to
demand supply and exchange concepts of
economic theory, or to the concept of public
interest. These are called the pubic-office
centered definitions, the market-centered
definitions, and the public-interest centered
definitions respectively.
The
bureaucratic corruption as it is witnessed at
public-office
the highest level of political system. In a
definitions
report on corruption research it is argued
deviation from normal duties of a public role
that “the distinction between political and
because of private regarding gains. J. S.
bureaucratic corruption is rather ambiguous.
Nye’s definition of corruption well illustrates
It depends on the Weberian separation of
the public-office definition which is as
politics from administration, which has
follows:
proved difficult to implement in most poor
9
countries and hence is difficult to observe.
The distinction is nevertheless important in
define
corruption
centered
as
any
J. C. Andvig (et al.), Research on
Corruption: A Policy Oriented Survey,
Commissioned by NORAD, Final
Report, December, 2000, p. 19.
18
Politikon: IAPSS Political Science Journal
Corruption is behavior which
deviates from the formal
duties of a public role
because of private regarding
(personal,
close
family,
private clique) pecuniary or
status gains; or violates rules
against the exercise of certain
types of private regarding
influence. This includes such
behavior as bribery (use of
reward to pervert the
judgment of a person in a
position of trust); nepotism
(bestowal of patronage by
reason
of
ascriptive
relationship rather than
merit); and misappropriation
(illegal appropriation of
public resources for privateregarding uses).10
Vol. Nr. 20, June 2013
desired benefits. When this
happens bureaucracy ceases
to be patterned after the
mandatory market and takes
on characteristics of the free
market.11
In the same vein Van Klaveren goes on to
state that “a corrupt public servant regards
his public office as a business, the income of
which he will seek to maximize. The office
then becomes a “maximizing unit”. The size
of his income depends upon the market
situation and his talents for finding the point
of maximal gain on the public’s demand
curve.”12 Some theorists have argued that
market-centered definition cannot be used
The market-centered definitions consider a
to define corruption. Mark Philp argues that
corrupt public official is the one who regards
though the market-centered definition may
his/her public office as a business, trying to
be one way of understanding corruption, it is
maximize the income and is reflected in
certainly not a way of defining it. According
Robert Tilman’s definition of corruption
to Philp “what defines an act as corrupt is
who states that:
not that it is income maximizing, but that it
Corruption involves a shift
from a mandatory pricing
model to a free-market
model.
The
centralized
allocative mechanism, which
is the ideal of modern
bureaucracy, may break
down in the face of serious
disequilibrium
between
supply and demand. Clients
may decide that it is
worthwhile to risk the
known sanctions and pay the
higher costs in order to be
assured of receiving the
10
Cf. Arnold J. Heidenheimer (Ed.),
Political
Corruption,
New
Jersey,
Transaction Books, 1970, p. 5.
is income maximizing in a context where
prior conceptions of public office and the
principles for its conduct define it as such.”13
He is of the opinion that all the cases of
income maximizing need not be corrupt and
hence to consider any interest or incomemaximizing act as corrupt, it requires
construction of public office and the public
11
Ibid.
12
Ibid.
13
Mark
Philp,
“Defining
Political
Corruption”, in Paul Heywood (Ed.),
Political Corruption, U.K., Blackwell
Publisher, 1997, p. 28.
19
Pawan Kumar
Adressing Political Corruption in India
interest which are based on certain norms
corruption, as it requires identifying proper
and values, which provide certain normative
conception of the public interest.
constraints on income maximizing.
The
public-interest
Thus, these definitions are vague
centered
until certain norms are
identified to
definition conceives corruption as violations
distinguish between corrupt and non-corrupt
of common interest for special advantage.
acts. Any normative judgment about political
The public interest-centered definition is
corruption requires a point of view and a
exemplified by Carl Friedrich who argues:
standard of “goodness” and the definition of
political corruption should be based on
The pattern of corruption
can be said to exist whenever
a power holder who is
charged with doing certain
things, i.e., who is a
responsible functionary or
office holder, is by monetary
or other rewards not legally
provided for, induced to take
actions
which
favour
whoever
provides
the
rewards and thereby does
damage to the public and its
interests.14
These
different
certain conception of non-corrupt politics,
which requires identification of proper
standards to distinguish between corrupt and
non-corrupt acts.15 In a democracy usually
these standards are democratic principles
and values which form the basis to identify
politically corrupt acts.
How does Corruption Thrives in a
Democracy?
understandings
of
It is now clear that corruption in a
corruption have made political corruption a
democracy
complex
careful
structures as well as democratic values.
examination of the above definitions would
Focus on effects of corruption in a
phenomenon.
A
undermines
democratic
reveal that public office and public interest
are intimately connected. The open character
of politics demands the politicians to be
guided by public interest. Politicians are not
simply to fulfill promises made to electorate
rather politics is also about the projection of
conceptions of public interest. The idea,
therefore, should not be to strive for
formulating one line definition of political
14
Heidenheimer, op. cit, p. 6.
15
Some theorists have argued that the
market-centered definition of corruption
seems to bypass this requirement of
norm setting as market does not give
importance to any norm since it is based
on the principle of self-interest and
profit. However, there are other
theorists who argue that even market
functions on certain rules applicable to
the actors and there are certain
characteristics that distinguish a “black
market” from a “free market”. (for a
detailed account of this debate see
Heidenheimer, 1970, op. cit.)
20
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
democracy helps in better conceptualization
Corruption in India can be attributed
of the concept and in understanding the fact
to the social situations that make corruption
that there is a kind of inverse relationship
more likely. In India the governments in
between corruption and democracy which
most of the cases acquired control over the
means
increases
disposal of posts and privileges and they had
democracy is undermined and as democracy
to face the electorates, mostly poor, who
is strengthened opportunities of corruption
could be easily influenced by material
are minimized.16 Daniel. Treisman is of the
incentives.
opinion that countries with freedom of
structures for expressing and combining
press, vigorous civic associations, can have
important political interests. The effect of
greater ability to expose corruption.17 But
this lack of interest structures is that political
the question that emerges now is how
demands that originate outside the elite class
corruption sustains in a democracy? India,
have minimal influence on legislation, which
which is one of the largest democracies in
is one of the reasons behind little or no
the world, is grappled with the problem of
influence of the public on the ‘output’ of the
corruption which forces us to think whether
government. Demands of the people or
there are some structural faults in the
groups reach the political system only at the
functioning
helps
implementation stage and not before the
corruption to survive. This section is
laws are passed. The influence before the
devoted to investigate this aspect from the
passage of legislation is called ‘pressure
Indian perspective and examine whether
group politics’ and the influence at the
India provides some special context as a
enforcement
breeding ground of corruption.
‘corruption’. For example, agitation of
that
as
of
corruption
democracy
that
India
lacks
stage
well-developed
often
involves
peasant groups through their union for
16
17
There are theorists who have contrasting
opinion to this viewpoint and argue that
the negative correlation between
corruption and democracy is not very
strong
and
is
only
statistical
correlation.(see Martin Paldam, “The Big
Pattern Of Corruption: Economics,
Culture and The Seesaw Dynamics”,
Working Paper, No. 1999-11, Department
of Economics, University of Aarhus,
1999.)
Daniel Triesman, “The Causes of
Corruption: A Cross National Study”,
Journal of Public Economics, Vol. 76, 2000,
pp. 399-457.
reduction in land tax is different than
making an illegal monetary contribution to
the concerned officer for avoiding their land
taxes. The latter influences the outcome of
government policy. In this sense corruption
is not just a reflection of the failure of the
formal political system to meet the demands
of important sectors; it is also representative
of the efforts of individuals and groups to
mould the political system according to their
21
Pawan Kumar
Adressing Political Corruption in India
wishes.18 People who feel that their interests
of the material incentives it supplies. The
are ignored by the formal political system
ordinary voters desire immediate material
often take up the informal ways to influence
rewards and therefore they vote for those
which is corruption.
who can give them maximum favour. When
Electoral competition is one area in a
political system that widens the arena of
political influence. Since people’s vote makes
a difference in the affairs of those who seek
power and manage the state, the powerholders and power-seekers adopt different
methods to influence the voters. In this
sense the control over votes has proved
ineffective in ensuring accountability of the
political leaders. The major political resource
today is control over coercive force and not
control over votes. Thus it is not always true
that people vote because they want to
voters think that their best interests are not
being served by the political system, they
may support a corrupt politician who serves
their interest rather than an honest politician
who represents others as well. Such
assumptions rest on the belief that voters are
well aware about the nature of corruption as
well as its effects, which is not true in reality
because voters are ignorant about the effects
of corruption and hence they are not able to
assess the effects of corruption correctly
which makes them falsely believe that
corruption serves their material interest.
replace the corrupt leader as there can be
With this understanding, democracy
several other reasons why people vote in a
becomes a set procedures and institutions
democracy. Sometimes people vote because
where people elect their representatives,
whose
18
Jeffrey Witsoe while examining the ways
in which politics of caste empowerment
altered the ways in which the state was
popularly imagined, came up with the
finding that many people began to
perceive state institutions as inherently
corrupt sources of political patronage
and that, having long served to
perpetuate upper-caste dominance,
could now be used in the same way by a
new class of political leaders to empower
lower-caste groups. Within this context,
corruption was tolerated, sometimes
even celebrated, as a means to lowercaste empowerment.(Jeffrey Witsoe,
“Corruption as Power: Caste the
Political Imagination of the Post-colonial
State”, American Ethnologist, Vol. 38, No.
1, 2011, pp. 73–85.)
accountability
periodically.
is
Participation,
ensured
only
within
this
understanding, is restricted to the exercise of
franchise by citizens of a country. Thus, in a
representative democracy like India, election
becomes the only opportunity that people
have to hold their leaders accountable.
Hasan
Suroor
is
critical
of
limited
participation of people that is restricted to
the voting process and draws attention to
the fact that the belief of voters that
elections empower them is actually a false
belief. In most of the third-world countries,
where vast majority of population is
22
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
excluded from decision making process, the
significant inequalities among citizens in
ballot-box is the only means through which
their
they can have their voices heard. He points
participating as political equals in governing
out that despite the poor record of
the state.”21 Thus, it may be argued that
governance the very idea of electing
some form of large scale redistribution of
government gives the voters a sense of
resources
power, which is actually illusory.19
participation’. For Dahl, if a person has
Robert
Dahl
gave
a
lot
of
importance to participation and believed that
citizens must have adequate and equal
opportunity to express their preferences for
the final outcome. He argues that denying
any citizen the opportunity for effective
capacities
is
and
opportunities
needed
for
for
‘effective
sufficient resources and will, he or she can
actualize the equal opportunity granted to
him or her. Consequently it may be argued
that the procedures that ensure equal
opportunity to participate depend upon the
substantive equalization of resources.
It is, however, important here to
participation means that their preferences
are not considered because either they are
consider
unknown or incorrectly perceived. However,
distribution of resources cannot be enough
if their preferences are not taken into
to ensure participation and there can be
account, it means that the principle of equal
various other factors that may affect
consideration of interests is compromised.
‘effective participation’ of the people.
With
‘effective
Proceduralists cite election data to explain
participation’ also takes into account the fact
participation because of which they tend to
that the reason for lack of participation may
slip into the “fallacy of electoralism”.22 Their
be because of some form of control.20 Dahl
analyses
is of the opinion that ownership and control
inequalities, which make formal participation
“contribute
to
great
difficult to be effective. It overlooks the fact
differences
among
wealth,
that there can be different barriers to
income, status, skills, information…[and]
political participation like caste, patriarchy,
differences like these help in turn to generate
and so on. The free exercise of franchise
this,
it
appears
the
that
creation
citizens
of
in
that
merely
overlook
the
ensuring
equal
socio-economic
may be curtailed “when people do not have
19
Hasan Suroor, “Looking Beyond Ballotbox
Democracy”,
The
Hindu,
Wednesday, August 22, 2007.
20
Neve Gordon, “Dahl’s Procedural
Democracy: A Foucauldian Critique”,
Democratization, Vol. 8, No. 4, pp. 23-40,
p. 26.
the power of independent decision making;
21
Cf. Ibid.
22
“Introduction”, in Niraja Gopal Jayal
(Ed.), Democracy in India, New Delhi,
Oxford University Press, 2001, p. 3.
23
Pawan Kumar
Adressing Political Corruption in India
when they have inadequate access to
which may draw one to the conclusion that
relevant information; when they are helpless
India is a true democracy. This assumption
in holding their representatives accountable;
rests on the procedural view of democracy
and, above all, when their franchise fails to
which views democracy purely as a set of
yield a responsive administration.”23 The
institutions.
basic
political
democracy in its true sense, there is need to
participation is something more than merely
look at it from the glass of equality and see
providing equal political rights and it cannot
whether people are truly equal or not,
be ensured by just providing equal resources
whether
to people. The study by Neve Gordon
politically and have an equal voice in
brings out two main difficulties in the
choosing their representatives and holding
procedural model. Firstly, he argues that the
them accountable. On this account, Indian
mechanisms
freedom,
democracy has to cover a long distance
undermine plurality and fosters inequality,
which makes it necessary to understand it in
can, in fact function within a ‘perfect’
substantive
procedural democracy and hence equality
foundational principle of democracy, was
can be undermined within a procedural
incorporated in the Constitution of India in
model. Secondly, he is of the opinion that a
the form of equality before the law and
‘perfect’ procedural democracy cannot be
equal protection of the law. However, it is
divorced from existing power relations
also a stark reality that equality before the
operating in a society that may greatly hinder
law is severely compromised for those who
people’s participation.24
are unable to approach the courts for
condition
for
that
effective
suppress
In India, in particular, the obstacles
to
such
meaningful
participation
are
numerous, and certainly these are not just
the result of unequal distribution of
resources but also result from unequal
power relations operating in the society.
Democracy in India is characterized by
constitutional government with free and fair
election, legislative assemblies and so on,
23
Ibid., p. 4.
24
Gordon, op. cit.
But
citizens
sense.
to
are
conceive
actively
Equality,
Indian
engaged
being
the
violation of their rights. It is also true that
though civil liberties and personal freedoms
are formally recognized, in actual practice
there are severe violations of these rights.
“Despite the fact that elections have been
regularly held, and have for the most part
been free and fair, it is on the twin
dimensions
of
accountability
and
responsiveness that democracy in India,
judged even on limited procedural criteria,
24
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
has proved inadequate.”25 Though it is true
to give so much emphasis on the substantive
that voters have voted out corrupt or
nature
inefficient
democracy on the substantive criteria is
regimes,
the
structures
of
of
democracy
and
to
judge
governance have always been inaccessible to
nothing
the ordinary people.26
democracy would pass such a test. Every
This, however, should not mean that
procedural democracy is not required or is
rejected out rightly. The above debate is
presented only to highlight the fact that
procedural democracy is necessary but not
of injustice. But it is important to realize that
the issues of inequalities and injustices of
any kind need to be addressed in any
democratic theory.
Within this conceptual framework it
corruption is more a problem of substantive
political
severely
democratization. Prevalence of political
compromised by inequalities of wealth,
corruption despite the presence of various
power and social status, which deny many
anti-corruption institutions and different
from having a truly equal opportunity to
constitutional
influence
decisions.”27
demonstrates that there is some problem in
Therefore, it may be argued that democracy
the functioning of democracy which is
should not be confined to the sphere of
manifested in the form of lack of effective
state and government. It should also be seen
participation of people in political processes.
as the principle governing collective life in
It is because of lack of participation that
the society. It may, however, be argued that
people
25
Ibid., p. 36.
representatives
26
It is in this context that some scholars
have highlighted the role of intermediary
institutions in ensuring accountable
government
in
a
representative
democracy and argue that to have
popular control over government in
representative
democracy
the
intermediary institutions play a vital role
in
facilitating
transparency
and
accountability. (see Marian Sawer , “The
Democratic Audit of Australia: Populism
vs Citizen Rights”, Paper presented at 20th
IPSA World Congress, July, 2006.)
it
may
governmental
be
is
existing
accomplished by merely securing legal and
equality,
democracy
no
is important to understand that political
Ibid.
of
as
not
27
project
utopian,
society whether rich or poor has some kind
sufficient for making democracy meaningful.
“The
but
are
safeguards
not
able
to
clearly
hold
accountable,
their
which
ultimately leads to political corruption.28 In
this sense, it becomes important to assess
Indian democracy on the basis of some clear
principles that may help in conceptualizing
28
It is important here to consider that lack
of participation is not the only reason
for political corruption rather the paper
tries to argue that one of the effective
ways to effectively address political
corruption is by ensuring participation of
people.
25
Pawan Kumar
Adressing Political Corruption in India
the link between reducing corruption and
of successes and failures in the anti-
the process of democratization.
corruption reform process. The following
Popular Approaches to Tackle Political
Corruption: A Comparative Perspective
sections provide an account of different
approaches employed in different parts of
the world to address corruption. It presents
Reasons for the existence of corruption are
a comparative study of why certain reforms
many and so are the ways suggested for
were successful in a specific country and
tackling it. Ades and Di Tella propose three
why some countries could not successfully
possible approaches to reduce corruption.
fight corruption which will help in providing
First, is a “layer’s” approach which talks
a wider perspective to examine why
about strengthening laws and their proper
democratic institutions fail to tackle political
enforcement. Layer’s approach increases the
corruption in India.
cost and risks associated with corruption, as
The Power-Sharing Approach
it focuses on punishment of the corrupt.
Second, is a “businessman’s” approach
which is in favour of giving proper
incentives to public officials which would
reduce their temptation to engage in corrupt
activities. One way of providing such
incentive is to provide higher wages. A
businessman’s approach would reduce the
incentives of corruption as the motivation
for engaging in corrupt act is reduced by
providing different kinds of incentives to the
public officials. Third, is an “economist’s”
approach
that
advocates
competition so that
increasing
opportunities for
exploitation in different transactions can be
minimised. Economist’s approach would
reduce opportunities for corruption, as
competition reduces the chances of abuse of
Some theorists consider the idea of powersharing as one of the effective ways to check
abuse of power, as they see mutual
surveillance as a counterbalance to political
decay, such as bribery and corruption.
Robert Dahl preferred to call the powersharing
democracy
as
“Madisonian
democracy” as it was Madison who warned
that if power is concentrated there is always
a risk of its abuse and hence concentration
of power must be avoided. He did not
accept regular election and internal checks
like conscience, attitudes and personality of
individuals, as sufficient to provide necessary
checks on the abuse of power, rather he
insisted
on
external
checks,
through
dispersion of power into different hands.
power.29 It is important to study some cases
29
A. Ades, and R. Di Tella,, “The New
Economics of Corruption: A Survey and
Some New Results”, Political Studies, Vol.
45 (Special Issue), 1997, pp. 496-515.
26
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
Arendt Lijphart advocated power-
view, as for him, regular election is not an
sharing model by bringing in the idea of
effective way to fight corruption, at least not
“consensus democracy” to avoid abuse of
as effective as would be in a case of
power. Different mechanisms that he
“consensus
thought would be instrumental in arriving at
oversight. According to him, abuse of power
“consensus
and corruption are
coalition”,
democracy”
are
“decentralisation”,
“grand
democracy”
having
mutual
less prevalent
in
“minority
consensus democracy than in majoritarian
veto”, and “proportional representation.” It
democracy. However, Lijphart’s consensus
means that if everyone has a share in
democracy model does not seem to provide
governmental power, there is delegation of
any mechanism for ensuring accountability
power, minorities have a veto regarding
because if everyone will have a say in
issues concerning them and losers too have
decision making process then it is not clear
representation, the risk of abuse of power
who should be held responsible for the
would be greatly minimised. He believed
decisions. It seems that for Lijphart what is
that if all are able to take part in government
more important is that the government
through their chosen representatives, then
should reflect popular opinion and whether
they would be able to ensure that no
people hold their leaders accountable or not
injustices are done to them. When different
is not important for him.
parties will be represented in the parliament
Though theorists have considered
and no party has a majority, they will form
power-sharing as an effective method to
coalition to make the government and in this
check abuse of power, empirical evidence
situation minorities will also have a say in the
suggest just the opposite. One such case
government. Lijphart firmly claims that the
where the power-sharing model failed is the
proportional
counteract
case of Italy where both proportional and
political corruption and hence considers
majoritarian systems were tested and proved
proportional representation as the most
to
fundamental institutional value. Though
corruption. Italy practiced proportionalism
there is also a view that in a majoritarian
with a firm belief that dispersing power into
democracy, the opposition in minority
many hands reduces the risk of abuse of
provides necessary check on the abuse of
power which proved to be wrong, as in early
power and with regular elections people
1990s far-reaching corruption came to light in
have the opportunity to throw out the
the Italian politics. As a response to this crisis
corrupt and it is the best way to ensure
the Italians made transition to majoritarian
accountability, Lijphart is critical to this
democracy hoping that this would clean up
method
would
be
ineffective
in
tackling
political
27
Pawan Kumar
Adressing Political Corruption in India
the politics but that too proved to be
and the mafia became a political power
ineffective. In such a situation it becomes
factor.30
interesting to explain political corruption in
In February 1992, Mario Chiesa, a
Italy because it was precisely to check such
Socialist politician, was arrested for taking
abuse of power that the principles of
bribes for offering contracts to several
proportionalism and power sharing were
companies in exchange of political support
incorporated into the constitution.
and money. This scandal gradually grew big
The
framers
of
Italian
and became the biggest scandal in the
by
political history of modern Italy which
could
resulted in the fall of the First Republic and
guarantee a just and fair reflection of the
the end of consensus democracy.31 In a
popular will which was soon proved wrong
referendum in 1993 more than 80 per cent
by the developments that followed. Even if
of voters wanted a change to majority
Constitution
had
thought
incorporating
power-sharing
the
that
they
the largest party could not achieve majority, it
could secure power through negotiations with
30
Leif Lewin, Democratic Accountability: Why
Choice in Politics is both Possible and
Necessary, London, Harvard University
Press, 2007, p. 105.
31
The investigation was carried out under
Antonio Di Pietro, a Milan Magistrate,
and was called “Operation Clean Hands”.
Operation clean hands succeeded because
of Di Pietro’s minute preparations. Di
Pietro used computer technology to trace
bank transactions, which helped him to
identify the link between politicians,
Mafia and common crime. Those arrested
were kept in San Vittore prison in Milan
which had brutal, unhealthy and
unsanitary conditions. Those who were
under suspicion were told that they
would remain in prison unless they
confess. Those who were released due to
lack of evidence, would immediately be
arrested again until confession came. The
politicians regularly tried to convince that
political cooperation requires giving and
taking. They argued that negotiations and
coalition building cannot be done for free
and “clean hands” was unrealistic.
However, a reform movement had
started with the aim of cleaning the
politics from roots, that is, to change the
electoral system.
other parties. In this situation there was
hardly any option for alternative government,
as there was no fear of losing office. The
leaders of the parties became the masters of
the country and the negotiations took place
within this “elite cartel” that decided the
course of action and in this way the decisions
taken were not the expression of popular will.
Governments were short lived but the same
politicians returned to power on different
posts. Gradually the negotiation process
started involving bribes and benefits and
corruption became widespread. Both voters
and organisations could be bought with
money or political benefits, the courts, police,
and social insurance system were politicised,
cooperation with organised crime deepened
28
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
elections. Thus, the Second Republic with a
try to make corruption a “high risk and low
majoritarian
being.
reward” activity33, which can be possible, as
However, democracy under the Second
some theorists argue, if a single-agency is
Republic too was fragile and it was too
created to look into the matters of
marked by the tradition of corruption and
corruption,
authoritarian tendencies.
independent and able to function without
system
Italy’s
came
case
into
suggests
that
which
is
operationally
fear or favour. It is often argued that in
proportional representation is no guarantee
certain
for a clean government. The belief that if all
interference as it could be dictated from
had a share in power and kept watch over
above regarding the cases it is going to
each other, politics could become cleaner,
investigate and also establishing an anti-
was proved wrong. The change into a
corruption agency with extensive legal
majoritarian democracy too did not bring
powers in the absence of effective oversight
about any significant improvement. The
procedures is questioned on the ground that
abuse
such an agency can add another layer of
of
power
was
part
of
both
cases
there
can
be
political
majoritarian and proportional system. 32
(ineffective)
The Single-Agency Approach
enforcement sector, divert resources from
Corruption occurs when there are sufficient
existing organisations, function as a ‘shield’
incentives and opportunities to engage in
to satisfy donors and public opinion, and
corrupt acts and there is also very less
even operate as a political police force.
probability of being caught and punished. So
Countering such criticisms, supporters of
for some theorists effort should be to reduce
single-agency approach argue that in order
or eliminate the incentives and opportunities
to overcome such difficulties and maintain
and increase the risk of being caught and
public trust, the independence of such an
punished so that corruption could be
agency needs to be enshrined in national
controlled. In this regard government should
legislation or the constitution, and it should
bureaucracy
to
the
law
be a criminal offence to interfere with its
32
Italy’s case is important to consider
because it is an example to prove that
such changes in Indian democracy
cannot be effective in tackling political
corruption. It suggests that unless
accountability of the leaders is ensured,
political corruption is likely to re-emerge,
as representatives themselves may not
turn out to be an effective check on
corrupt use of power, as they themselves
tend to benefit from it.
operational independence. In reality, such
33
Su Jing, “Corruption by Design? A
Comparative Study of Singapore, Hong
Kong and mainland China”, Discussion
Papers, Crawford School of Economics
and Government, Australian National
University,
2007,
http://www.crawford.anu.edu.au/,
accessed on 5th August, 2011, p. 11.
29
Pawan Kumar
Adressing Political Corruption in India
anti corruption agencies require the support
the difference lies in different constitutional
of other structures to do their job properly.
design that has an important influence on
According to M. Manion, properly-designed
constraints on power. Thus, according to
and timely interventions by government
Manion anti-corruption efforts can be
could successfully reduce corruption and
studied by focussing on three things — anti-
improve credibility of the government and in
corruption agency, anti-corruption strategy,
order
and the context that puts constraints on
to
shift
“widespread
the
equilibrium
corruption”
to
from
“clean
power.
government” there is need to have proper
Anti-Corruption Agency
design of government intervention.34 She
Anti-corruption agencies are responsible to
studies this transformation in the case of
enforce anti-corruption legislations. In a
Singapore and Hong Kong, on the one
situation
hand, and mainland China on the other,
corruption with corrupt enforcers and there
where the former is an example of
is scarcity of enforcement resources, there
successful transformation and the latter
emerges various obstacles in the path of
gives an account of the difficulty in bringing
anti-corruption reform and an independent
out anti-corruption reforms. Manion draws
agency can play a vital role in these
upon three fundamental differences in the
circumstances. According to Manion, the
approach of anti-corruption reforms in
ICAC (Independent Commission Against
Singapore and Hong Kong and that of
Corruption) in Hong Kong succeeded in
mainland China. Firstly, Singapore and
overcoming these obstacles which enabled
Hong Kong granted independent and
Hong Kong to make the “equilibrium shift”
absolute authority to an independent anti-
from
corruption agency, while in mainland China
government. She further mentions that the
multiple agencies were granted partial and
key components of agency design that
often overlapping authority. Secondly, in
enabled ICAC in controlling corruption was
Singapore and Hong Kong corruption is
its independence, its draconian power and
addressed
attacking
adequate financial resources. All these three
corruption in all forms and in all places,
components were instrumental in efficient
while in mainland China corruption was
enforcement. The ICAC is independent in
addressed in a piecemeal manner. Thirdly,
terms of structure, staffing, finances and
34
power.35 Similarly in Singapore the POCA
at
multiple
levels
M. Manion, Corruption by Design: Building
Clean Government in Mainland China and
Hong Kong, Massacusetts, Harvard
University Press, 2004.
35
where
widespread
there
is
corruption
widespread
to
clean
ICAC is directly responsible to the
Governor (the Chief Executive after
30
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
was
Constitution came up with a number of
strengthened and more powers were given
bodies to ensure integrity and accountability
to the officers of CPIB (Corruption
such as the Office of the Ombudsman was
Practices Investigation Bureau) which greatly
created to protect graft and corruption;
helped
reform
Sandiganbayan, a special court was created for
Manion compares this with
senior officials for cases involving graft and
Mainland China and points out that
corrupt practices; the Civil Service Commission,
Mainland
any
and the Commission on Audit were also
independent anti-corruption agency. The
institutionalised. Despite these laws and
agencies
policies the problem persists, as the
(Prevention
in
of
the
process.
China
that
overlapping
Corruption
Act)
anti-corruption
does
are
not
have
functioning
jurisdictions
and
have
unclear
democracy
assessment
of
Philippines
division of labour which often leads to
demonstrates, because of weak enforcement.
routine delay in transforming cases for
The report of the democracy assessment of
criminal investigation and consequently
Philippines came up with many findings to
people develop the believe that their
show various causes of persistence of
government does not have the ability and
corruption. These findings revealed that the
credibility to control corruption. Thus, the
range of responsibilities and functions are so
basic difference in the anti-corruption
wide that they often overlap and the
agencies in Hong Kong and Singapore taken
environment of Philippines too does not
together and Mainland China lies in their
encourage integrity. The report further
level of independence and effectiveness.
revealed that annual declarations of assets by
The
democracy
assessment
of
public servants are just formalities and in
Philippines has a similar story to tell about
actual practice the properties, income and
corruption in Philippines. Philippines had a
assets are never disclosed. It went on to state
long history of widespread corruption, and
that the nature of anti-corruption laws is
after the restoration of democracy in 1986, a
dual, whereby high ranking officials are
number of laws and policies were enacted to
seldom investigated or convicted, which
prevent and curtail corruption. The 1987
makes the enforcement of anti-corruption
laws almost impossible. The report also
1997 take over) and can practically
design anti-corruption policies. The
Commissioner is appointed by the Chief
Executive and has a fixed term in the
office. His staffs are recruited separately
from the Civil Service and the Police.
Officials are not transferred to other
departments.
highlighted
the
fact
that
election
in
Philippines is the main economic activity for
political players and it is used as a means to
create and consolidate core constituencies. It
was further pointed out that political parties
31
Pawan Kumar
Adressing Political Corruption in India
do not provide strong internal checks and
strategy to tackle corruption which involved
there is absence of external control on
enforcement, prevention and education.
spending,
quite
Enforcement is to increase the probability of
expensive activities and hence the high cost
being caught and being punished; prevention
of election together with other contributing
reduces the opportunities for corruption;
factors build up a perfect context for
and education is to increase the moral cost
corruption to flourish, as because of
of corruption. The purpose, in this sense, is
expensive campaign process the elected
to strike at the root causes of corruption.
officers are forced to focus primarily on the
Singapore’s anti-corruption strategy focuses
recovery of this expense. The study revealed
on both the incentives and opportunities for
that the Commission on Election is ill prepared
corruption, which has been possible by
to police campaign overspending and other
strengthening enforcement through POCA
corrupt and illegal actions and there was an
and CPIB. The prevention work taken up by
impressive gap between electoral laws and
various departments also forms part of the
which make
elections
36
reality. Thus, the experience of Mainland
strategy. The incentives of corruption are
China and Philippines exemplify the failure
taken care by increasing the salaries and
of anti-corruption agencies in dealing with
working conditions. Thus, both Singapore
corruption, which exposes the fact that
and
merely creating anti-corruption institutions
enforcement, to increase the cost of
cannot be an answer for corruption and
corruption and on prevention, to reduce the
hence brings out the need for an in-depth
opportunities for corruption and at the same
analysis of the problem.
time they also emphasised on reducing the
Anti-Corruption Strategy
incentives of corruption.
A public servant while acting as an economic
Constraints on Power
agent calculates the costs and benefits of
It is important to realise that small-scale
engaging in corrupt activities. Therefore, for
government interventions won’t be of much
a successful government intervention it is
help unless there are some proper and
important that these interventions are aimed
systemic constraints on power. For anti-
at reducing the corruption payoffs as well as
corruption
the incentives to engage in corrupt activities.
important that government’s commitment is
Hong Kong came up with a three-pronged
respected by people and this is possible only
Hong
Kong
reforms
emphasised
to
succeed
on
it
is
within a specific context with shared
36
Lim Millard (et. al), Philippines Democracy
Assessment: Minimising Corruption, Manila,
Ateneo University Press, 2007.
understanding
of
government’s
responsibility, which is possible through a
32
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
provides
measures.38 The specific measures involved
constrains to all kinds of power operating
activities carried out under the anti-
within a political system. According to
corruption agencies and the non-specific
Manion, one of the basic differences
measures involved administrative measures
between Hong Kong and Mainland China
taken by various government agencies which
lies in their different constitutional designs.
included,
Countries that uphold rule of law would be
disciplinary proceedings by Public Service
able to put constraints on corrupt actions
Commission,
more effectively, which was evident in the
expenditure by the Auditor General and so
case of Hong Kong and Singapore, than in
on.39
countries having ambiguous laws and where
The “Big-Bang” Approach
legal authority is politicised, as was seen in
Often
the case of Philippines. In such cases rule of
corruption is thought to be a well set
law cannot become a meaningful constraint
mechanism and it is believed that once it is
on the abuse of power.
operationalized an incremental process of
constitutional
design
that
in
the
case
scrutiny
remedies
of
of
Singapore,
government
suggested
to
tackle
Thus, both Singapore and Hong
change is put into a path, where with every
initiated
anti-
step the society is taken away from
corruption strategy which aimed at reducing
corruption and with some ‘initial steps’ or
both the opportunities and incentives for
minor institutional changes the society is put
corruption.37 The anti-corruption efforts
into this “path” and it is taken out of the
comprised of specific and non-specific
grip of corruption. According to World
Kong
a
comprehensive
Bank, for example, the implementation of
37
The case of Singapore and Hong Kong
show how corruption can be tackled
from above. But these countries cannot
be taken as examples because neither of
these countries was a democracy and it
functioned in the hands of autocratic
leaders and it would throw an
impression that democracy cannot
become a tool to fight corruption. The
reason for their inclusion in this research
is that the intention is to study the anticorruption approach rather than the
context in which it was operationalised.
Therefore, the focus is primarily on
studying the technicalities of the
approaches applied in both these
countries and see if they can be effective
in a democracy like India.
anti-corruption
policies
requires
an
important entry point for anti corruption
efforts. In one of the reports it is stated that
“it is critical to begin at a point where the
goals are feasible and tangible results can be
realized within a time frame that builds
support for further reforms. Small gains can
38
A. T. R. Rahman,. “Legal and
Administrative
Measures
Against
Bureaucratic Corruption in Asia”, in L.
V. Carino (Ed.), Bureaucratic Corruption in
Asia: Causes, Consequences and Controls,
Quezon City, JMC Press, 1986, p. 147.
39
Ibid., p. 151.
33
Pawan Kumar
Adressing Political Corruption in India
provide essential levers to sway public and
points out, because there is no good reason
official opinion.”40 Within this approach
for corrupt to move out of the “game”
small and minor changes are expected to
because those who are at the bottom of the
bring big changes in the political system.
corrupt system believe that even if they, as
The proponents of the “big-bang” approach
individuals, start behaving honestly, nothing
are critical of this point of view and are of
will change as long as most of their
the opinion that corruption cannot be
colleagues do not change their behaviour42
tackled through minor or small changes. Bo
and in such situations collective action for
Rothstein, for example, is critical of the
the common good is impossible to establish
approaches
minor
as long as people try to maximize their
institutional changes and believes that there
expected utility. The implication of such an
is no magical key or institutional device for
approach
fighting systemic corruption. He is of the
understanding that a corrupt system cannot
opinion that small changes are likely to
be changed from below.43
that
insisted
for
is
that
it
develops
an
aggravate the problem and what is required
Despite regular efforts to fight
is a “big bang” change. The problem with
corruption, the success rate is very low and
corruption, Rothstein argues, is that it seems
one of the reasons is that while leaders do
to be very “sticky”, which means that once a
have the necessary means for launching
system gets corrupted it becomes very
successful policies against corruption, they
difficult to take it out from the grip of
usually have no incentives to do so as they
corruption and “once corruption becomes
are often the ones who stand to gain most
systemic and the existence of widespread
from rents in a corrupt system.44 Another
corrupt
“common
reason for the difficulty in bringing about
knowledge”, we seem to have a case of an
the change is that corruption has become a
extremely robust inefficient equilibrium.”41
“standard way of life” and therefore “for the
Corruption is a “sticky” problem, Rothstein
average citizen, it seems that corruption has
40
41
practices
becomes
World Bank, "Anti-Corruption in
Transition: A Contribution to the Policy
Debate." Washington D. C., The World
Bank, 2000, p. 75.
Bo Rothstein, “ Anti-Corruption – A Big
Bang Theory”, Paper presented at the
Conference on Corruption and Democracy
organized by the Centre for the Study of
Democratic
Institutions,
Vancouver,
University of British Columbia, June 8-9,
2007, p. 5.
42
Gunnar Myrdal has made a similar point.
(Gunnar Myrdal, Asian Drama: An
Inquiry into the Poverty of Nations, New
York, Pantheon, 1968, p. 409)
43
Bo Rothestein, Social Traps and the Problem
of
Trust,
Cambridge,
Cambridge
University Press, 2005.
44
Michael Johnston, Syndromes of Corruption:
Wealth, Power, and Democracy, Cambridge,
Cambridge Univ. Press, 2005.
34
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
broken down all barriers and dictates of the
different types of political institutions on the
rules of life. That is not very different from
degree of corruption in 38 African countries,
saying that they interpret life in terms of
Alence
corruption”45 and when life is viewed in
Developmental Governance in Sub-Saharan Africa
terms of corruption, it takes the form of
concluded that a combination of electoral
deeply entrenched belief system. According
competition and institutional checks and
to Rothstein, it is not easy to change such
balances on executive power has a negative
belief systems and hence in order to change
effect on the frequency of corruption. In
such deeply held systems of beliefs,
other words, the study suggests that the
something “big” and “non-incremental” is
ideas and the practices of liberal democracy
necessary.
work counter to corruption.47 Sandholtz and
Rothstein
of
Political
Institutions
and
Koetzle have shown in their study that the
approaches that focus merely on the
presence of liberal democratic institutions
structural changes and on reducing the
minimizes the chances of corruption. They
incentives of corruption. A society that is
are of the opinion that formal democratic
committed to tackle corruption must have to
structures facilitate citizen oversight and
take up at least two important questions at
control, and in a culture characterized by
the outset. First, what types of structural
democratic values, it is against normal
reforms are necessary in order to reduce
behaviour to act corrupt.48 According to
corruption?
Second, which types of
Rothstein, such examples of anti-corruption
processes will be successful to operationalize
strategies suggest that the problem of
such reforms? Most research on corruption
corruption can be solved by merely “fixing
has mainly focused on the first, structural
the incentives”49 and when the institutions
question suggesting to create new or to
are created such that fear is greater than
change existing institutions, while ignoring
greed,
the second one about the change of
However, Rothstein is of the opinion that
processes. William Easterly, for example, has
creating such institution is itself a collective
suggested two measures to tackle corruption.
action problem and it won’t be solved unless
“First, set up quality institutions…Second,
a society ceases to be dominated by corrupt
establish policies that eliminate incentives
agents. He argues that explaining corruption
for corruption”.46 Examining the effect of
and providing solutions to it on the basis of
46
critical
his
those
45
is
in
UNDP, Human Development Report 2002 Bosnia and Herzegovina, New York, United
Nation Development Program, 2002.
Cf. Rothestein, op. cit., 2007, p. 10.
corruption
47
Ibid.
48
Ibid.
49
Ibid., p.11.
can
be
controlled.
35
Pawan Kumar
Adressing Political Corruption in India
some universal values and institutions such
Thus, a number of conditions are
as transparency, democracy, independent
required to ensure that anti-corruption
judicial anti-corruption agencies or “good
reforms in any context are effective,
governance” is not enough because in
sustainable and not easily subverted. These
societies where these institutions function
conditions need to be backed by having the
effectively accountability will automatically
necessary data to inform policy and strategy;
be facilitated and problem arises only when
comprehensive
there are systematically corrupt institutions.
safeguards to prevent corruption and protect
“In the search for universal theories on
public interest; and, the most difficult to
causes and solutions concerning corruption,
secure, the necessary political leadership and
many researchers do not recognize the
will to tackle corruption credibly and put in
inbuilt inertia (or path-dependency) of
place long-term reforms. It is clear that to be
corrupt institutional systems”.
Rothstein
effective, national anti-corruption/integrity
further argues that if new institutions have
systems require more than a single agency
to be created then the question of agency
approach and they need to be supported by
becomes central and the approach that
an institutional matrix of legal and oversight
advocates for structural changes often
systems to ensure effective prosecution of
ignores the kind of agents that are present
offenders. A partnership approach, including
and what strategies they use. He insists that
active engagement by civil society and the
for a successful reform process research
media, is also important. Above all, the
must start from identifying the roles and
reforms need to be implemented by ethical
interests of agents and broadened his idea by
leaders who scrupulously observe rule of
arguing that the research must begin by
law.
50
legal
and
institutional
identifying the groups that are expected to
The solutions suggested to tackle
oppose the reform and how such opposition
political corruption vary considerably as the
can be dealt with and identifying those who
perception of the problem and its causes
can support the change and finding out the
differ. Even when there is some agreement
way they can be involved in the struggle
over the nature and cause of the problem,
against corruption.
51
50
Ibid., p. 12.
51
It seems that Rothstein is concerned
about creating a support base for the
struggle against corruption by identifying
the interests of the agents i.e. whether
they support the change or not.
the solutions suggested from different
However, he does not make it clear what
kinds of changes he is talking about?
The question of supporting or not
supporting the change comes up only
when there is some consensus on what
the change is and hence this too can
become a collective action problem.
36
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
quarters might vary. This happens because,
and governments believe that launching anti-
as Raymond. W. Pong argues, the debates
corruption campaigns or ‘clean-up drives’ at
about causality usually take place at a
regular
theoretical level while the solutions that are
advantageous for them. In 1989, the
suggested are mostly outcome-oriented.52
National Front alliance led by V. P. Singh,
intervals
may
be
politically
defeated the Congress (I) government
Politics of Anti-Corruption Campaigns
in India
almost solely on the issue of corruption by
waging a nation-wide campaign against the
The big scams that have come to light since
Congress government. The Bofors case55
independence are enough to prove that
was highlighted to such an extent that the
corruption is deeply embedded in the Indian
National Front went on to state in its
political system and that anti-corruption
election
measures taken so far have not been enough
Corruption, Save Nation,’ that “Bofors,
to curb corruption. These scams often
corruption
triggered off anti-corruption campaigns. The
synonymous.”56 Even during the 1991
anti-corruption campaigns in India have
elections, the leader of the opposition
been essentially political phenomena as they
Bhartiya Janata Party (BJP), A. B. Vajpayee,
serve as an instrument for the political
criticised the election manifesto of Congress
leaders to strengthen their position and
(I) for not adopting a public stand on the
undermine that of the opposition.53 Gillespie
issue of corruption and accused the
and
Okruhlik
call
this
“corruption
cleanups”.54 While various anti-corruption
manifesto
and
titled
Rajiv
‘Root
Gandhi
Out
are
Congress (I) government for nursing a
corrupt system.
agencies are engaged in their anti-corruption
What is important to mention here is
efforts, some of the Indian political leaders
that the pre-election period provides ideal
52
53
54
Raymond W. Pong, “Social Problems as
a Conflict Process”, in James Holstein
and Gale Miller (Ed.), Perspectives on Social
Problems: A Research Annual, Vol. 1,
Greenwich, CT: JAI Press, 1989, pp. 5976.
Vinod Pavarala, Interpreting Corruption:
Elite Perspective in India, New Delhi, Sage,
1996, p. 196.
Kate Gillespie and Gwenn Okruhlik,
“The
Political
Dimensions
of
Corruption Cleanups: A Framework for
Analysis”, Comparative Politics, Vol. 24,
No. 1 (October), 1991, pp. 77-95.
conditions for the political leaders to launch
such campaign and can be termed as “preelection cleanups”.57 Similarly there can be
other ideal political contexts in which
55
Bofors was a Swedish arms company
with which illegal defense deals were
allegedly made by some of the top
leaders of the Congress (I) government.
56
National Front, “Lok Sabha Elections:
Manifesto”, 1989, pp. 1-2.
57
Pavarala, op. cit, pp. 199-200.
37
Pawan Kumar
Adressing Political Corruption in India
politicians initiate anti-corruption campaigns
have not necessarily been a continuation of
like incumbent, post-succession and post-
the previous regime. In 1985, for example,
election periods.58 In an incumbent context,
when
those who hold power do not try to discredit
Gandhi as Prime Minister of India, he was
the previous government but try to enhance
projected as the leader of a new generation
their
incumbent
with the image of ‘Mr. Clean.’ Thus, in this
cleanups are also common in India which
case the cleanup campaign did not start
was evident when in 1990 the Chief Minister
when the succession occurred, rather, it
of Orissa, Biju Patnaik, expressed his
started after Rajiv Gandhi came to power
helplessness in running the administration
and was used to build a popular mandate
because of widespread corruption and went
around the issue of controlling corruption.60
on to make a call to the general public to
During the post-election cleanups the
beat up corrupt officials and make them
government tries to fulfil its campaign
accountable. Though this step was widely
promises and create conducive conditions
criticized, the campaign started by Patnaik
for its re-election. Such cleanups may be
was intended to stir up public support for
used by government to discredit the
his government and present him as an anti-
previous government. What is to be noted in
corruption crusader.59 The post-succession
all these cleanup campaigns is that they are
cleanups refer to the steps taken by the
meant to serve private political interests.
government that take forward the campaign
Gillespie and Okruhlik argue that these
of earlier government so that a perception of
cleanups are “a tool by which elites attempt
continuity is ensured among the public. In
to fulfil that most basic of political instincts,
India, however, a slightly modified version
self-preservation.”61 Thus, efforts by the
can be seen as post-succession cleanups
political elite against corruption are usually
own
legitimacy.
The
Rajiv
Gandhi
succeeded
Indira
used to highlight the problem merely for
58
59
Gillespie and Okruhlik on the basis of a
survey of 25 Middle Eastern and North
African countries delineated five political
contexts in which politicians initiate anticorruption campaigns: post-coup, postrevolution, incumbent, post-succession,
and post-election. (Gillespie and
Okruhlik, op. cit) The post-coup and
post-revolution contexts are not relevant
for India.
“Call to “beat up” Corrupt Officials:
Biju’s Appeal Catching on”, The Indian
Express, 20th December, 1990, p. 11.
political gains associated with it without any
intention of making the system free of
corruption.
In
this
context,
different
measures that are suggested to tackle
political corruption often originate outside
the political class.
60
Pavarala, op. cit, p. 199.
61
Gillespie and Okruhlik, op. cit, p. 92.
38
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
Effectiveness
of
Anti-Corruption
Institutions: A Critical Appraisal
Ayukta or the proposed Lok Pal in India.
There are theorists who have raised doubt
undertaken by the government to eliminate
over the effectiveness of the governmental
or restrict competitive politics arguing that
agencies and also citizen group campaign in
political
controlling
others,
administration causes corruption. Moral re-
Carino and Guzman point out in their study
armament means a kind of ethical or moral
of corruption in Philippines that instead of
revolution
presidential investigating offices, purges,
Revolution in China intended to bring about
agency cleanups, and citizen campaigns, a
far reaching changes in attitudes and morals.
multi-pronged strategy involving procedural
Ensuring accountability through proper
changes, reducing discretionary powers of
checks on abuse of power can be effective in
officials, increasing transparency, effective
fighting
monitoring system, salary reform is required
privatization for fighting corruption basically
to address the problem effectively.62 Robin
derives from the belief that corruption
Theobald, in the context of developing
results from over regulated state and if state
countries, discusses anti-corruption efforts
control over economy is reduced corruption
in terms of purges and campaigns, legal-
would not follow. Apart from this, the
administrative measures, de-politicization,
power-sharing approach and the big-bang
moral
accountability, and
approach, discussed in this study, also
privatization.63 Purges and campaigns are
present useful methods for understanding
meant to discredit political opponents and
anti-corruption efforts in a holistic manner.
gain support for the current regime. Legal
Some of these approaches have been
and administrative measures involve setting
adopted either partially or fully in India but
up of specialized bodies to fight corruption
have produced limited results. The problem
like that of ICAC (Independent Commission
with anti-corruption efforts in India lies not
Against Corruption) in Hong Kong and Lok
much in the institutions created to tackle it
62
but in the way this issue is approached. This
63
corruption.
re-armament,
Among
L. V. Carino and R. P. De Guzman,
“Negative Bureaucratic Behaviour in the
Philippines: The Final Report of the
IDRC Philippine Team”, Philippine
Journal of Public Administration, Vol. 23,
No. 3-4 (July-October), 1979, pp. 350385.
Robin Theobald, Corruption, Development
and Underdevelopment, Durham, Duke
University Press, 1990.
De-politicization refers to various activities
pressures
like
that
corruption.
created
of
the
on
the
Cultural
Reliance
on
ineffectiveness is due to lack of sufficient
research on the subject. Political corruption
is under-theorised, especially in India, which
has led to partial or distorted understanding
of the problem. This has also created a gap
in theoretical and empirical study of the
39
Pawan Kumar
Adressing Political Corruption in India
problem and there is need to conquer this
divide.
It
connections
theoretical
is
important
can
and
be
to
drawn
empirical
see
In the Indian context recent debates
how
on constituting an independent institution,
between
Lok Pal64, to fight corruption clearly spells
study
of
out the gap between theoretical and
corruption, lack of which has adversely
empirical understanding of corruption in
affected systematic studies on corruption in
India. Various studies have shown the
India. New anti-corruption institutions are
ineffectiveness of a similar body, Lok
created and new reforms are introduced
Ayukta, constituted in some of the Indian
without doing proper research on the
states. In a study of anti-corruption efforts
subject, which results in the introduction of
in the state of Andhra Pradesh, Vinod
inefficient institutions and reforms. Existing
Pavarala asserts that the Lok Ayukta
indices of corruption too do not guide
constituted in the state as the nodal body to
effective anti-corruption strategy. There is a
fight corruption, suffered with “a high
dearth of effective anti-corruption strategy,
degree of politicization, both instrumental
without which no reform can work. In order
and symbolic.”65 Though the Lok Ayukta
to come up with effective anti-corruption
undertook
investigations
reform process there is a need to draw
ministers,
they
connections between theory and empirical
consequences. Pavarala has shown in his
research, as both form important parts of
study that the effect of Lok Ayukta in
the research on corruption. This becomes
controlling
even more difficult in the case of corruption
Studying the history of Indian political
because of its hidden nature. In this context
system in terms of the approaches discussed
the paper brings out the need of democratic
in this paper, it can be found that there are
had
corruption
against
only
was
some
symbolic
minimal. 66
audit as a tool to bridge the gap between the
theoretical and practical understandings of
64
The Santhanam Committee in 1964 had
recommended that a permanent
government body is important to be
constituted to deal with the problem of
corruption. In 1966 the Administrative
Reforms Commission recommended the
establishment of a Lok Pal at the central
level and Lok Ayaktas at the state level.
A Lok Pal bill was introduced in the
Parliament in 1968 and since then it has
been introduced several times but has
failed to become a reality.
65
Pavarala, op. cit, p. 190.
66
Ibid., p. 188.
political corruption and emphasises on
conducting proper research, probing causal
relations, using efficient techniques and
starting off processes of debates and
awareness to enhance effective people’s
participation, which is crucial for carving out
an institutional mechanism of accountability
best suited to tackle political corruption.
40
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
serious flaws in the anti-corruption approach
work effectively and efficiently by just
adopted by the Indian government. Though
bringing them into existence. It is equally
institutions have been created to tackle
important that it gets integrated into the
corruption they often have overlapping
domain of civil society. The popular support
jurisdiction
function
for Lok Pal lacks a sound conceptual base
independently. The power sharing model in
and is actually unstructured. It is important
terms of decentralization and coalition
to understand that a successful fight against
politics too has not been effective in
corruption is not in place not because there
checking abuse of power by political leaders.
is any dearth of anti-corruption laws but
Recently one of the solutions for addressing
because there is lack of political will. A
corruption in India that received popular
successful fight against corruption requires a
acceptance was the constitution of the Lok
critical probe into the link between the
Pal, which is similar to the single-agency
political institutions and corruption and
approach applied in Hong Kong and
there is need to acknowledge the link
Singapore. But there is a need to examine
between
whether such institutional changes or the
broader process of democratization. Though
creation of a strong anti-corruption agency
the Lok Pal Bill is a welcome initiative for
can become an effective tool to fight
the future of Indian democracy, in the sense
corruption in India. The Lok Pal is backed
that the government and civil society has
with an expectation to overcome the
come together on an issue that requires
deficiencies of existing institutional setting,
urgent attention, it has lost its democratic
which
fervour in whatever that followed thereafter.
is
and
often
cannot
charged
with
either
reducing
corruption
and
the
inefficiency or lack of autonomy or both, to
Questions
look into the matter of corruption. The huge
constitution of the drafting committee of the
support that the Lok Pal gathers is mostly
bill. It has been alleged that the “team
because of the fact that the state or the
Anna” does not represent civil society and
system has not been efficient enough in
the government representatives in the
punishing the corrupt especially in high
drafting committee do not represent diverse
profile cases and it is expected that the Lok
opinions in the Parliament. Even questions
Pal
and
have been raised on the democratic nature
effectiveness as it would be an autonomous
of the method of protest and agitation
body.
adopted by the “team Anna” to push their
would
bring
in
efficiency
have
been
raised
on
the
It is, however, important to realise
demands. Most importantly, questions have
the fact that any institutional design cannot
been raised directly on the democratic nature
41
Pawan Kumar
Adressing Political Corruption in India
of the Jan Lok Pal67 and it has been argued
Supreme Court and can be removed by a
that the Jan Lok Pal would be a kind of
five-member bench of Supreme Court on
“super-institution” that will undermine the
charges of misconduct. In response to the
existing
whose
sceptic’s idea of Lok Pal’s inability to
accountability cannot be ensured. It is
undertake such extensive responsibilities, the
further argued that since it engulfs all
supporters of the Jan Lok Pal draw attention
existing anti-corruption agencies and brings
to the integrative nature of corruption and
within itself overriding powers, it becomes
argue that since the matters relating to
unsuitable for a functioning democracy like
corruption are often interrelated and even
India. The purpose of the Lok Pal should be
several other matters are actually results of
to improve governance and empower citizen
corruption, it would be pointless to have a
but it is argued that such purposes would
separate institution to deal with different
remain unfulfilled through the present Lok
aspects of corruption. They have also
Pal, as there is centralization of power.
focused upon the structural arrangement
judiciary
system
In contrast to the above viewpoint
instituted in Lok Pal which will provide a
regarding the authoritative nature of Lok
systemic process to deal with the grievances
Pal, there is another way to look at it which
of the people and these grievances will go
is demonstrated by those who have drafted
through this structure and the Lok Pal will
the Jan Lok Pal Bill, who argue that the Jan
be
Lok Pal has powers to only investigate and
supervisory control over this structure. The
start the prosecution and it has no judicial
bottom line of the supporters of the Jan Lok
powers, as the judgment will be given by the
Pal Bill is that leaving everything on the
ordinary courts. For them the proposed bill
elected representatives is not democracy in
is intended to just keep the Lok Pal away
the real sense of terms; true democracy
from political pressures. The question of
exists when people take part in decision
accountability of the Lok Pal is addressed by
making and decisions reflect their true
arguing that whatever order is passed can be
interests. In other words people should take
reviewed in higher courts and the members
decisions themselves.
of the Lok Pal will be answerable to the
restricted
to
administrative
and
The discussion over having a new
institution like Lok Pal led to the debate
67
The “team Anna”, that strongly
advocated for constituting a Lok Pal,
drafted a Lok Pal Bill and presented it to
the
government
of India
for
consideration which was christened —
“The Jan Lok Pal Bill”.
considering two things — whether there is
actually a need of a new law to tackle
corruption or the existing laws are sufficient
and a new law is not required. The popular
42
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
perception, as well as according to the
that institutionalized or systemic corruption
government, there is a need of a new law but
cannot be controlled effectively through
at the same time it is also important to
legal and police measures and the objectives
consider that if a new law on establishing a
of anti-corruption effort should be to
body to tackle corruption is required, is
develop an atmosphere of reform that may
there any point in having a new law with old
be consolidated by law.
deficiencies? If the institution of Lok Pal is
approach of the government and civil
created, it has to have something more than
society to tackle the problem is subjective in
the existing institutions responsible for
nature, in the sense that it focuses on
tackling corruption because creating a new
individuals who indulge in corrupt acts. The
institution with old deficiencies won’t be of
problem lies in the fact that corruption is
much help. If the Lok Pal is not empowered
seen as problem of individuals, which makes
enough to prosecute the guilty then it will
the approach to tackle corruption reactive
again develop the feeling of immunity
and the solution that is generally provided is
among the corrupt, as it will again be the old
restricted to remove the official from the
legal process that does not give the desired
office and in some cases even legal
results. The discussion so far raises few
punishments are given to the wrong doer.
questions in this regard — will the Lok Pal
Even the political class tries to socialise
be able to perform the huge responsibilities?
people in such a way that they start
Will it not again fall into the web of
conceiving corruption as a problem of just
institutions and would gradually start facing
few individuals and consider that justice is
the same problems that other institutions
done when those individuals are punished or
face? Will it actually serve the larger goal of
removed from the office that they hold,
preventing corruption or will it just reduce
which is a false belief that people have. It is
to a punishing authority? In other words,
important to realise the fact that corruption
does it have the right kind of approach
results only when there are loopholes in the
towards the problem of corruption? And
system and it is the system that provides
finally, is there any other alternative to act
opportunities for corruption making it a
upon?
systemic problem. The popular approach
The above discussion demonstrates
that
a
strong
anti-corruption
law
is
effects of corruption. The present Lok Pal
68
also shared by Simcha Werner who argues
The present
overlooks the systemic nature and the
important but not sufficient to tackle
political corruption in India. This view is
68
Simcha B. Werner, “New Dimensions in
the
Study
of
Administrative
Corruption”, Public Administration Review,
March-April, 1983, p. 151.
43
Pawan Kumar
Adressing Political Corruption in India
or the Jan Lok Pal is also based on the same
also weakens government’s ability to deliver
flawed approach which focuses only on
on various other services like health,
punishment
education and welfare services.69 In such a
of
the
corrupt
and
this
approach is followed by the government,
situation
civil society and people, which actually
disadvantaged suffer from the consequences
highlights the fact that the way the nature of
of corruption as they are largely depended
corruption is understood is problematic.
on public goods. Various scandals and scams
Corruption, within this understanding, is
that have been exposed show that even
seen as a problem of just few leaders or
when government actually spends money on
officials and not as anti-people or anti-
social programs to benefit the poor, the
human which is one of the reasons for
possibility of such projects being hijacked by
sustenance of corruption.
well to do Indians is very high. A human
economically
and
politically
It is important to understand that
rights perspective enables the policy makers
corruption takes away the rights of the
to understand the impacts of the anti-
people as citizen of the nation. Corruption
corruption policies from the point of view
puts at stake the basic rights of life, liberty,
of the disadvantaged. Though corruption
equality and dignity, which constitute the
affects all those who experience it, its impact
basic human rights of people and hence it
on the disadvantaged is worst. For the
also
consider
groups like minorities, indigenous people,
corruption as violation of human rights.
migrant workers, disabled people, refugees,
Considering corruption as a violation of
prisoners and poor, corruption reinforces
human rights can positively work towards
their exclusion and discrimination. It also
empowering the people and would add
happens that because of their vulnerability
impetus to the on-going struggle against
they become easy victims of corruption.70
becomes
corruption
in
important
India.
to
High
levels
of
With
such
consequences
of
corruption in any society disable the state
corruption there can be no two opinions to
from fulfilling its duties to respect, protect
the fact that its existence in a democracy
and fulfill the human rights of its citizen.
makes a state less democratic. However,
Corruption undermines the ability of states
69
James T. Gathii, Defining the Relationship
between Human Rights and Corruption,2010,
http://ssrn.com/,
accessed
on
11/09/2011
70
Corruption and Human Rights: Making
Connections, International Council on
Human Rights Policy, Switzerland,
Versoix, 2009.
to comply with its human rights obligations
because
it
erodes
the
capacity
and
confidence of a state to deliver services to
the public. Corruption not only depletes the
resources available for public spending it
44
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
whether there is a negative correlation
country’s political system or by just looking
between corruption and democracy is
at the fact that a country is democratic in the
something on which theorists have different
present time. How corrupt a country is, can
opinions.
of
be decided only by looking at whether or not
Transparency International and Freedom
it has been democratic for decades. He is of
House on the effect of regime type on levels
the opinion that countries with long
of corruption, revealed that there is a
duration of democracy had some impact on
negative
between
reducing corruption.72 In the recent past
democratization and corruption but this
with growing social movements and non-
correlation is not very strong as this is a
party political process, Indian democracy is
statistical relationship and not necessarily a
being challenged and is also being redefined.
causal one.71 Paldam too believes that direct
The established structures of governance are
effect of democratization on corruption is
being questioned and there is a growing
spurious. In his study he found that
demand for bringing about basic structural
corruption would generally decrease with
changes in the Indian political system. While
increasing levels of democracy, but this
there is wide consensus on the nature,
covariance depends upon the level of
causes and consequences on issues like
democracy or upon the stage of democratic
poverty, hunger, and other social and
transition. In the similar vein, through a
political
cross national study on corruption, Daniel
consensus on the issue of corruption, which
Treisman came up with the hypothesis that
weakens any struggle against corruption, and
democratic countries with freedom of press
hence
and vigorous civil society can have greater
corruption reform that originate outside the
ability to expose corruption and thus will
state structures have very little influence on
have lower levels of corruption, as freedom
the
of press and association help in monitoring
corruption movement led by Anna Hazare
public officials and exposing abuse of
was a rare effort in the history of social
power. Interestingly the study found that the
movements in India since independence that
relationship
spurred
Some
recent
relationship
between
studies
democracy
and
problems,
demands
policy
there
is
concerning
makers.
countrywide
The
no
the
recent
struggle
such
anti-
anti-
against
corruption can be established not by just
corruption. This movement can be seen as a
looking at the present condition of a
positive effort in terms of raising awareness
71
Inge Amundsen, “Political corruption:
An Introduction to the Issues”, Working
Paper, Bergen, Chr. Michelsen Institute,
1999.
72
Daniel Treisman, “The Causes of
Corruption: A Cross National Study”,
Journal of Public Economics, Vol. 76, 2000,
pp. 399-457.
45
Pawan Kumar
among
Adressing Political Corruption in India
people
corruption
regarding
in
the
widespread
functioning
Democratic audit is all about conducting
of
proper research, probing causal relations,
government, which was lacking till now. It is
using efficient techniques and starting off
important to understand that without such
processes of debates and awareness to
consciousness raising, efforts to tackle
enhance effective people’s participation,
corruption will have minimal effect.
which is crucial for carving out an
institutional mechanism of accountability
Democratic Audit as a Conceptual
best suited to tackle political corruption.
Toolkit
The research comes up with the need for the
In order to come up with effective
desirability of democratic audit or assessment
anti-corruption reform process there is a
of Indian democracy and contends that a
need to draw connections between theory
well designed democracy assessment has the
and empirical research, as both form
potential of finding out where reform is
important
most
parts
corruption.
of
This
the
research
becomes
even
on
needed
and
where
exactly
the
more
loopholes are. It is argued that assessing
difficult in the case of corruption because of
democracy is a prerequisite for bringing
its hidden nature. This paper tries to bring
about any effective changes in the working
the issue of corruption within the realm of
of democracy.
democratic theory and emphasises that true
democracy is when people have effective
Recent research on corruption has
control over the decision making process.
proved
However, in a representative democracy like
transcends
India
the
ideologies and causes of corruption cannot
representatives chosen by the people and
be associated with the level of development
hence for people democracy is realised when
or the ideological systems that govern a
they are able to exercise control over these
nation. This paper questions the popular
representatives and hold them accountable.
explanations for existence of corruption and
In this context the need of fresh assessment
argues that the basic problem with such
of democracy is proposed. Democratic audit
explanations is that they assume that
is proposed as a tool to study and
corruption
understand political corruption in India
‘phenomenon’ overlooking the underlying
which can be instrumental to bridge the gap
complex ‘processes’ of corruption. The
between
practical
paper attempts to highlight the systemic
corruption.
nature of corruption by arguing that the
decisions
the
understandings
are
taken
theoretical
of
by
and
political
that
existence
all
can
political
be
of
corruption
systems
studied
and
as
a
46
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
problem lies in the system itself and that
corruption
occurs
because
there
are
loopholes in the system. There is lack of a
comprehensive strategy against corruption
which is because of partial or inadequate
research on the subject. Democratic audit, as
a conceptual toolkit, can contribute towards
raising awareness about the problem. It is
important to understand that the purpose of
democratic audit is not to set out precise
proposals or blueprints for change and the
purpose of the audit is restricted to
consciousness raising, influencing public
debate, agenda setting for reform and
program evaluation. Apart from opening up
new questions and considerations to be
debated at practical level, the purpose of this
paper is also to recommend a fresh direction
for undertaking any anti-corruption policy
and research.
47
Carla Luís
Do Globalization and Global Justice go hand in hand?
Do Democratisation and Global Justice go hand in hand?
The case of Timor-Leste
Carla Luís1, University of Coimbra, Portugal
Abstract
P
eace missions often focus on statebuilding policies, being statebuilding a key aspect in these
interventions. However, beyond or parallel to the democratisation process, questions regarding global
justice arise. In this paper we are going to analyse the situation in Timor-Leste. We are going to argue
that, beyond the classic democratisation approach, there are a number of factors that still have to be
addressed, and these can be intrinsically related to democracy. We will conclude that the focus of the
international interventions, especially within multi-dimensional missions and, therefore, the priorities of the host
state, should go beyond the formal democratisation aspect. Social and economic factors, much related to the idea of
global justice, should also be present and be a key aspect and result of these interventions.
Keywords: Timor-Leste, peacebuilding, statebuilding, global justice
Carla Luís, 33, Lisbon, is a PhD Candidate at CES – Centre for Social Studies, University of
Coimbra, in the PhD Programme International Politics and Conflict Resolution, with the thesis
project “UN peacebuilding and the role of electoral systems: the case of Timor-Leste”.
She holds a Masters’ Degree in Human Rights and Democratisation (EIUC, Venice) and is
graduated in Law by the Law Faculty of the New University of Lisbon. She is a researcher in the
Project “Peacebuilding and sustainable peace: UN missions in Timor-Leste and Portugal's
contribution”, funded by the Portuguese Foundation for Science and Technology.
Her interests are electoral systems, peacebuilding, post-conflict and the Southeast Asia region.
This research is funded under the PhD Scholarship SFRH/BD/79096/2011, granted by the
Portuguese Foundation for Science and Technology.
1
48
Politikon: IAPSS Political Science Journal
Introduction
P
eacebuilding
interventions,
particularly within the UN, focus
mainly on statebuilding policies, with
a great emphasis on democratisation
and institution building, aiming at building a
democratic state that could provide
protection and proper living conditions to
their citizens. As we are going to argue in
this paper, this is not always the resulting
outcome. In Timor-Leste, the UN
intervention focused mainly on institution
building and the creation of the liberal state
democratic institutions. However, this has
not led necessarily lead to global justice
within the new state. The social situation in
the country demonstrates that there are
severe problems, especially regarding the
social conditions of the population. We can
therefore conclude that liberal state
institutions do not, by themselves, lead to
global justice. There is the need to put extra
care in more substantial factors that just
formal democratic institutions and formal
democratic processes, in order to achieve the
desired results.
Peace operations
Peace operations are one of the most
important instruments to address violent
conflicts after the Cold War period, being
the UN its primary actor (Chandler, 2010:
166; Pushkina & Maier, 2012). In the
document “An Agenda for Peace”
(A/47/277 - S/24111) a solid framework for
UN peacebuilding is provided. Peacemaking
and peacekeeping are required to “halt
conflicts and preserve peace once it is
attained. If successful, they strengthen the
opportunity for post-conflict peace-building,
which can prevent the recurrence of
violence among nations and peoples
(A/47/277 - S/24111: 55). The UN Charter
does not expressly mention peacebuilding.
Its classic instruments for intervention are
the diplomatic resolution of violent conflicts
(Chapter VI) and the clause of collective
security, foreseen on Chapter VII, which
allows the use of force. However,
peacebuilding has become one of the UN
Vol. Nr. 20, June 2013
most used forms of intervention in armed
conflict situations.
Peacebuilding interventions often focus on
statebuilding approaches. This can be seen
as a recurrence from the phenomena of
weak states (Chandler, 2010: 163), which,
after the fall of the Soviet Union, and a the
post-9/11 world, started to be perceived as a
global security problem by the international
community (Robinson, 2007). With the
development of the Responsibility to Protect
(R2P) doctrine, states are understood to
have the ultimate responsibility in the
international system to protect individuals
(Chandler, 2010: 163). Statebuilding as an
intervention instrument also derived from
the Western perspective that violent
conflicts are less likely to emerge in liberal
democracies (Friis & Hansen, 2009) and
became one of the priorities in international
interventions.
There is no undisputable definition of
statebuilding (Carton, 2008: 2). However,
the most frequent approach, rather than
focusing on people, focuses on building
institutions of governance (Chesterman,
2004). Chandler defines the objectives of
statebuilding
as
“constructing
or
reconstructing institutions of governance
capable of providing citizens with physical
and economic security” (2006: 1). Richmond
notes that the rationale behind statebuilding
is that “liberal democratic and market
reform will provide for regional stability,
leading to state stability and individual
prosperity” (2009). This is achieved through
the creation of entities that are in line with
the dominant economic and social policies
and also accountable to the international
community (Carton, 2008: 6), being
globalisation seen as the key propagator of
peace (Richmond, 2004: 137). Market
economy is also a key aspect on this process
(Duffield, 2001; Paris, 1997; Pugh, 2005;
Richmond, 2005). Therefore, one of the
aims of statebuilding policies is to have
states that are “able to deal with
globalization, namely [states] that [are]
flexible and able to draw on social resources
to cope with change” (Robinson, 2007: 11).
In this approach, statebuilding policies
comprise institution-building (Carton, 2008),
Carla Luís
Do Globalization and Global Justice go hand in hand?
which can be defined as ‘the creation of new
government
institutions
and
the
strengthening of existing ones” (Fukuyama,
2004). These institutions need to be sound
and to be perceived as legitimate by the
population, in order to avoid the risk of
creating “phantom states” with resources
but whose governing institutions might not
have social or political legitimacy (Chandler,
2006: 9). A sustainable peace requires a
broader participation in the peacebuilding
and statebuilding process (Adekanye, 1998).
Within this framework, the UN has carried
out extensive mandates, which include the
“organisation of democratic elections,
guarantee of security, organisation of
transitional governments, constitutional
reform, development of civil society,
humanitarian relief, rehabilitation, rebuilding
infrastructure, reactivating agriculture, (...) in
other
words
“international
social
engineering” (Korhonen, 2001: 496).
within a nation-state (Rawls, 2005). Justice
would, therefore, rather be something
internal and non comparable or applicable to
members of different societies, that citizens
would seek within their sovereign state
(Nagel, 2005: 2).
Still in accordance to Hobbes, in the absence
of a sovereign power that could provide
assurance through some form of law,
individuals would be left to their own
resources, confined to the sole defensive
objective of self-preservation, without being
able to pursue justice for themselves (Nagel,
2005: 2). Sovereignty can therefore be seen
as an “enabling condition” to grant stability
to just institutions, through which
individuals should be able to seek for justice
(Nagel, 2005: 2).
The primary role of the state and the
concept of global justice
Dingwerth (2010) suggests that we should
rethink the link between democracy and
global justice and that in the concept of
democracy we should rather emphasize the
democratic
values
of
inclusiveness,
transparency, accountability and deliberation
(Dingwerth, 2010: 21). Dingwerth departs
from the concept of democracy and
wonders how can it act as a normative
standard for global governance (2010: 1). He
argues that, despite the fact that a higher
claim for global governance and global
democracy exists, there is still a lack of both
“structural preconditions for it to actually make
a difference”, being these “rarely addressed
by global democracy scholars and activists”.
This is what Dingwerth calls the “structural
preconditions for realizing democracy at a world
scale” (Dingwerth, 2010: 14). This does not
mean that we should not demand more
democratic global governance, but rather
that this should have a more substantial
content. Dingwerth suggests that the core of
global democratic governance should consist
of three dimensions, namely “inclusiveness,
democratic control and discursive quality”
(Dingwerth, 2010: 3).
In the international scene the state is meant
to be the primary actor. It concentrates
political legitimacy, being also the main
space where to seek for justice (Nagel, 2005:
1). However, when and where the nationstate for itself is not sufficient, questions of
global justice and governance may arise
(Nagel, 2005: 1).
The concept of global justice can have many
approaches. Nagel (2005: 1) points out two
different
aspects:
“the
international
requirements of justice include standards
governing the justification and conduct of
war and standards that define the most basic
human rights” and “socioeconomic justice”
on a world scale. Adopting a statist
conception, he aims at establishing a relation
between justice and sovereignty, focusing as
well on “the scope and limits of equality as a
demand of justice” (Nagel, 2005: 1). In this
analysis, Nagel goes back to Hobbes and
Rawls. Hobbes defended that justice could
only be achieved within a sovereign state.
Rawls argued that one of the components of
justice would be the equality among citizens,
The link between democracy and global
justice: democracy as a normative
standard for global governance
50
Politikon: IAPSS Political Science Journal
This author defines transparency as “the
extent to which individuals who may be
significantly affected by a decision are able
to learn about the decision-making process,
including its existence, subject matter,
structure and current status” (Dingwerth,
2007: 44). However, an extremely important
posterior step is that “those to whom
information is made available can do
something
with
that
information”
(Dingwerth, 2010: 13). As obstacles to it,
and also to inclusiveness and discourse
quality, the author points out that “illiteracy
rates in some parts of the world exceeding
50 per cent, with Internet access virtually
unavailable in others, and with language
skills, economic knowledge and political
education distributed extremely unevenly
across the globe, realizing transparency in a
meaningful normative sense is indeed a farfetched dream” (Dingwerth, 2010: 13).
There would be three main areas with
immediate relevance for the democratic
process: subsistence, health and education
(Dingwerth, 2010: 14). Democracy depends
upon a minimum level of subsistence, so
that people can have secured lives, that can
afford them to engage in political life
(Dingwerth, 2010: 7). This can also be
understood as the freedom from want
(United Nations General Assembly, 2005: 7),
which was at the core of the Universal
Declaration of Human Rights (United
Nations General Assembly, 1948).
Health is also equally important, reinforced
by the fact that, if the right to health is note
generalized, it risks threatening the
representativeness of some specific and
vulnerable groups (Dingwerth, 2010: 7). This
includes not only the right to access to
health as well as the mitigation of health
risks (Dingwerth, 2010: 15). The impacts of
deficient access to health can also be seen in
indexes such as the life expectancy at birth
or the child mortality rate, which can have
huge disparities from country to country.
Education is also an extremely important
factor for democracy. Krishna (2008: 13)
concludes that education has greater effects
on democracy than wealth, as there is the
trend of more educated people to have a
greater demand for democracy and to
Vol. Nr. 20, June 2013
participate more. Literacy and primary
education have here a great role.
Civil and political rights are important, but a
democratic public law should also include
“health rights, social and economic rights,
cultural and pacific rights” (Dingwerth,
2010: 19). Held argues that “If any of these
bundles of rights is absent from the
democratic process, it will be one- sided,
incomplete and distorted” (1995: 190).
Political rights are not sufficient per se, as
“unless other rights clusters are recognized
there will be significant areas in which large
numbers of citizens (...) will not be able to
take advantage of these equally in practice”
(Held, 1995: 191).
Krishna and Booth also underline the need
to build institutional links, to promote and
facilitate accountability between poor
populations and the institutions of
democratization (2008: 154). These should
be widely known and accessible, as “political
parties, local governments, NGOs, and
other civil society organizations (...) are often
weak to virtually nonexistent, especially in
rural areas of developing countries, where
large parts of the poorer populations reside.
Under such circumstances, citizens are
considerably handicapped in terms of access
and information” (Krishna and Booth, 2008:
152).
Timor-Leste and the UN Missions
Timor-Leste has probably been the first state
to be built from the beginning through a UN
intervention (Gorjão, 2004: 1044), with a
UN mandate that included even the control
over the territory. It has been pointed out as
a true test to statebuilding policies, in its
different aspects (Richmond & Franks, 2007:
1). The United Nations Transitional
Administration in East Timor (UNTAET) –
from 1999 to 2002 (Security Council
Resolution 1272) – constitutes an example
of some of the most ambitious UN
statebuilding missions (Carton, 2008: 4;
Korhonen, 2001: 497). UNTAET was
authorised under Chapter VII of the UN
Charter and given a broader mandate than
many of UN missions in the 1990s.
Carla Luís
Do Globalization and Global Justice go hand in hand?
UNTAET was created in 1999, through the
Security Council Resolution 1272(1999), of
25 October and lasted until May 2002. It had
all the authority over the territory, including
all the administration of the territory and all
legislative and executive powers, including
justice administration (Gorjão, 2004: 1044)
and the maintenance of order (Richmond &
Franks, 2007: 5). UNTAET exercised these
powers in the period of transition to a de facto
independence (Gorjão, 2004: 1044). It was
building a state from the beginning (Pureza,
Simões, José, & Marcelino, 2007: 20), where
all big political options also gave rise to
strong social conflicts. It is a model of post
conflict reconstruction tout court (Pureza et
al., 2007: 21). UNTAET was considered as
having a great success, although this is still
disputable (Alldén & Amer, 2007: 1055;
Gorjão, 2004: 1055; Lothe & Peake, 2010).
After UNTAET’s contribution to the
independence of Timor-Leste, in 20 May of
2002 (Richmond & Franks, 2007: 2),
UNMISET (United Nations Mission of
Support to East Timor) was established and
lasted from May 2002 to May 2005.
UNMISET was established through the
Security Council Resolution 1410(2002), by
an initial period of 12 months, that was
further extended. It intended to articulate
the UN presence with the statute of
independent country already achieved
(Alldén & Amer, 2007: 6; Richmond &
Franks, 2007: 5), keeping nevertheless a
strong UN presence, as the maintenance of
the Special Representative of the SRSG
shows (Pureza et al., 2007: 21). UNMISET
addressed mostly institution building (Pureza
et al., 2007: 20).
The UN presence was supposed to end with
this mission. In 2005 UNOTIL (the United
Nations Office in Timor-Leste) was created,
in order to make the follow up of the
remaining action, so as to smooth the end of
its mandate in 2006 (Richmond & Franks,
2007: 2). However, a new situation of
turbulence, arising from within the Timorese
army, but quickly widespread to the whole
country (Scambary, 2009), led to the creation
of a new mission (Richmond & Franks,
2007: 2). This new mission will have the
direct influence of these incidents, which left
profound marks in the Timorese society and
have strongly affected the statebuilding
process so far going on (Richmond &
Franks, 2007: 2).
UNMIT, the United Nations Integrated
Mission in Timor-Leste, was the last mission
to be created in Timor-Leste. It was
established in 25 August 2006, through the
Security Council Resolution 1704/2006
(UNSC, 2006). It was created by an initial
period of six months and has subsequently
been extended, and its mandate has
terminated in 31 December 2012.
UNMIT had, for the first time, the objective
of being an “integrated mission” and was
expected to articulate the activity of all UN
agencies in Timor-Leste (Pureza et al., 2007:
22). It was multidimensional and should
have also addressed the causes of conflict,
such as economic and institutional
reconstruction, including the reform of the
police, army, justice and electoral system
(Hegre, Hultman, & Nygard, 2010: 3).
It was expected to “support the government
on consolidating stability, on implementing a
culture of democratic government and to
facilitate the political dialogue between
several Timorese sectors, in order to ensure
a national reconciliation process and to
promote social cohesion” (United Nations
Security Council, 2011). It had as main
targets the judicial system, the justice
institutions, ensuring a true rule of law
(Grenfell, 2009) and a true peace process
with an effective transitional justice.
The UN intervention was initiated in the
territory with the organisation of a
referendum (1999), followed by elections for
the Constitutive Assembly in May 2002. For
UNTAET, the adoption of a Constitution
was a prerequisite for the independence
process (Ingram, 2012: 10). UNTAET had
to decide when and how to hold elections
and which positions should be elected
(Galbraith, 2003: 211). It started with the
Constituent Assembly, for which the
electoral mechanism used narrowed popular
52
Politikon: IAPSS Political Science Journal
representation, by using an electoral mixed
system,
combining
proportional
representation with a circle of majoritarian
representation, resulting in a lack of
accountability (Ingram, 2012: 12). In 2007,
following a violent conflict eruption, there
were presidential and parliamentary elections
and, in this context, a major reform of the
electoral laws took place. In 2012 another
electoral cycle, with both presidential and
parliamentary elections, was held. It was
precisely the 2012 electoral cycle, that served
as a test to the maturity of the national
institutions and, therefore, helped to
determine the end of the UN peacekeeping
mission (United Nations Security Council,
2012: 3).
Critical appreciation
An important aspect regarding the UN
intervention and the new state of TimorLeste was the need to ensure the soundness
of the institutions created, to guarantee a
true sustainability of the new state
(Croissant, 2008). At the time of
independence, there were barely any
democratic institutions at the local level
(Risley & Sisk, 2005: 26) and UNDP, along
with the central government, have put in
place the first local elections in 2004 and
2005 (Risley & Sisk, 2005: 26).
The setting of democratic institutions
proved to be a challenge for the UN
(UNTAET), as there was little information
and it was also not clear whether the
Timorese and international community
preferences were the same (Risley & Sisk,
2005: 27). Therefore, many traditional
structures were maintained from the
previous regime. It was recognised, even by
UNTAET officials that, in the beginning,
the UN achievements in building democratic
local structures below the national level were
quite limited (Blanco, 2010: 187; Risley &
Sisk, 2005: 27).
According to some authors, one of the flaws
of the UN interventions in Timor-Leste was
the lack of local realities’ integration (Blanco,
2010: 185; Brown, 2009; Richmond &
Franks, 2007: 4) from the beginning
Vol. Nr. 20, June 2013
(Gorjão, 2004: 1046), which led to a poor
implementation and lack of soundness of
the proposed model (Jones, 2010) and few
security guarantees (Dougall, 2010).
As Richmond points out, Timor-Leste is a
remarkable case of hybridism, where the
local structures and hierarchies coexist,
sometimes in parallel levels, sometimes even
prevailing over the institutions of liberal
peacebuilding (Richmond, 2011). Many local
leaders and local institutions remain with
their traditional legitimacy, with different
levels of democracy and accountability
(Risley & Sisk, 2005: 26). Although their
legitimacy can be questioned (Risley & Sisk,
2005: 26), the fact is that local leaders are
more accepted than the liberal state
institutions, as tradition structures coexist
and sometimes prevail over the statebuilding structures (Richmond, 2011).
In the international intervention that took
place in Timor-Leste, the formal institutions
of the liberal state were given a major
importance and there was little consideration
to reflect the social organisation of the
country on these. The statebuilding model
was adopted without taking into account the
local experiences, being therefore distanced
from the majority of the population, with an
exception to the local elite based in Dili.
Timor-Leste in numbers
Despite the long presence of the UN
missions in the territory and the big effort in
the democratisation process, the social
reality in Timor-Leste is still very
challenging.
Timor-Leste is in the 147th place, out of 187,
in the World Human Development Index
2012, with about 37,4% of the population
living with less that $1.25 per day (UNDP,
2012). According to UNICEF, 58% of the
children suffer from malnutrition, a
percentage that was of 54% in 2011 (IRIN,
2011). Timor-Leste is the third Asian
country with more people suffering from
malnutrition,
despite
the
nutrition
programme put in practice by the
government since 2004 (IRIN, 2011). There
is a “an inter-generational chronic and silent
epidemic of malnutrition [stunting] as well as
[a 2009-2010 national average of] 18.6 per
Carla Luís
Do Globalization and Global Justice go hand in hand?
cent acute malnutrition [wasting]”, which
also increases the risk of “premature death
and irreversible mental and physical
disability”, according to the World Health
Organisation (IRIN, 2011).
According to the data available from “20092010 Demographic Data survey”, the
numbers are striking. 38,8% of under-five
children has anaemia, so do 21,9% of
women. 18,6% of under-five children is
acutely malnourished and 58% are
malnourished chronically. 52% of under sixmonth old babies are exclusively breastfed
and among stunted children, 64,7% ate very
small at birth. 21% of the babies are acutely
malnourished at birth and there is 64,5% of
mothers of stunted children with BMI less
than 18.5 (thin). There are 27,1% of women
overall with BMI less than 18.5 and only
79,2% of children had consumed vitamin A
rich foods in previous 24 hours. Only 35%
of children had received de-worming
treatment in previous six months (IRIN,
2011).
Tuberculosis is still the first main disease in
the country and malaria and dengue are still
very frequent (Alvarez, 2012). In 2012 the
infant mortality rate was of 41.40, the 56th
highest in the world, with a maternal
mortality rate of 300 deaths/100.000 live
births, as of 2010, the 37th highest in the
world (CIA, 2013; WHO, 2013). According
to the WHO, the infant mortality rate in
2010 was of 46 (WHO, 2013).
Timor-Leste comes in the 10th place in the
list of countries at risk of a coup d’état in
2013 (Ulfelder, 2012b). This index is
calculated according to an algorithm taking
into account multiple factors (Fisher, 2013;
Ulfelder, 2012a). In the case of Timor-Leste,
the risk in the country increases due to “high
poverty and hybrid political authority
patterns”, as well as the past of social unrest
and attacks to the former President of the
Republic and Prime-Minister (Ulfelder,
2012b). Nevertheless, Ulfelder considers that
if the country “makes it through 2013
without another coup attempt, though, its
estimated risk should drop sharply next
year” (2012b).
Despite these facts, Timor-Leste comes is
the sixth world fastest-growing economy in
2013, according to The Economist (A.,
2013). In February 2013 the oil fund reached
US $11.8 billions, according to Radio TimorLeste. The World Bank representative said
that the growth rate would likely stand on
the two digits in 2014 and that there is the
risk of creating an excessive oil-based
economy, harming the remaining sectors.
(Lusa & Dinheiro Digital, 2013) It has also
called the attention for the risks of misusing
those funds, which can lead to corruption
and undermine the society (Lusa & Dinheiro
Digital, 2013). According to the Corruption
Perceptions Index 2012, Timor-Leste was in
113th place, in a total of 174 countries
(Transparency International, 2012). A study
by the Anti-Corruption Commission showed
that 50% of the Timorese do not know what
corruption is (Lusa & Dinheiro Digital,
2013).
In 2009, 41% of the population was below
the poverty line and in 2007 the country was
the world’s 107 regarding the Gini index,
which measures the degree of inequality in
the distribution of family income in a
country (CIA, 2013).
Conclusions
As we can see from the previous data,
despite having had a UN peace mission for
more than a decade, the situation in TimorLeste is still very challenging. Areas like
health, nutrition, child mortality, political
stability or even corruption control still
present really poor indicators. Inequality is
also widespread, with almost half of the
population living below the poverty line,
with great income disparities, and despite the
high rates of growth in the Timorese
economy.
The outcome of the UN multidimensional
peace mission, in this aspect, risks not being
positive. The UN policies put in practice in
the territory have, by themselves, and
through the new state that has been created,
produced an outcome that does not meet
the requirements of global justice, or of a
more composite notion of democracy, as
54
Politikon: IAPSS Political Science Journal
defined above. Extra care should have been
put in more substantial aspects, also relevant
not only for the citizens’ daily life, but also
necessary to build a more significant and
richer democracy, in terms of citizenship
and participation.
We have to conclude, therefore, that the
statebuilding policies, aiming at creating
democratic institutions, do not always
achieve the goals of global justice. In the
same way, it has to be said that UN
statebuilding policies, as well as the new
state created, do not necessarily lead to
global justice, in the sense of more internal
equality, nor do they mean a wider
conception of democracy.
In the case of Timor-Leste, the UN
presence, which lasted for more than a
decade, is considered by many as an example
of success. However, looking at more
substantial indicators, as well as their trends,
can prove to be disappointing. One should,
therefore, rethink the concept of democracy
that is being put in practice, as well as what
should be the scope and outcome of the
allegedly democratic institutions created.
Vol. Nr. 20, June 2013
Carla Luís
Do Globalization and Global Justice go hand in hand?
from
References
http://www.ijis.aau.dk/articles/vol5_no1/1
A., J. (2013, February 1). Speed is not
_Wim_PDF.pdf
everything. The Economist. Retrieved February
13,
2013,
from
http://www.economist.com/blogs/theworl
Chandler, D. (2006). Empire in Denial: The
Politics of State-building. London: Pluto Press.
din2013/2013/01/fastest-growing-
Chandler, D. (2010). R2P or Not R2P? More
economies-2013
Statebuilding, Less Responsibility. Global
Adekanye, J. B. (1998). Power-Sharing in
Multi-Ethnic
Political
Systems.
Security
Dialogue, 25, 32.
Alldén, & Amer. (2007). The United Nations
Responsibility to Protect 2, 161–166.
Chesterman, S. (2004). You, the People
(Oxford and New York: Oxford University
Press.).
and Peacekeeping: Lessons learned from the
CIA. (2013). CIA World’s Fact Book. CIA
Cambodia and East Timor. Umea Working
World’s Fact Book. Retrieved February 13,
papers in Peace and Conflict Studies, 4(4).
2013,
Alvarez, L. (2012, May 20). As duas caras de
Timor-Leste. PÚBLICO. Portugal. Retrieved
from http://www.publico.pt/n1572450
Blanco, R. (2010). A dimensão institucional
do modelo de Peacebuilding: o caso de
Timor Leste. Univ. Rel. Int., Brasília, v. 8, n. 2,
p. 181-192, Jul./Dez. 2010, 8(2), 181–192.
from
https://www.cia.gov/library/publications/t
he-world-factbook/geos/tt.html
Croissant, A. (2008). The Perils and
Promises
of
Democratization
through
United Nations Transitional Authority Lessons from Cambodia and East Timor.
Democratization, 15(3), 649-668, 15(3), 649–
668.
Boutros-Ghali, B. (1992). An Agenda for
Peace. United Nations Secretary General.
Dingwerth,
K.
(2007).
The
new
transnationalism : transnational governance and
Brown, M. (2009). Security, development
and the nation-building agenda East Timor –
democratic legitimacy. Basingstoke, England:
Palgrave Macmillan.
Analysis. Conflict, Security & Development. 9(2),
141-164, 9 (2)(2), 141–164.
Dingwerth, K. (2010). Global Democracy
without Global Justice? Why a Procedural
Carton, W. (2008). Beyond the Kosovo
Status Question: the Limits to Europe’s
State-Building Efforts. The Interdisciplinary
Account is Flawed. Global Governance Working
Paper No. 41. Amsterdam u. a.: The Global
Governance Project, (41).
Journal of International Studies, (1). Retrieved
56
Politikon: IAPSS Political Science Journal
Dougall,
D.
(2010).
The
Vol. Nr. 20, June 2013
Security-
Hegre, H., Hultman, L., & Nygard, H. M.
Development Nexus: Comparing External
(2010). Evaluating the conflict-reducing
Interventions and Development Strategies in
ef_fect of UN peace-keeping operations. In
East Timor and Solomon Islands. Asian
SGIR 7th Pan-European International Relations
Security, 6(2)(2), 170–190.
Conference. Presented at the SGIR 7th Pan-
Duffield, M. (2001). Global Governance and the
European
New Wars: The Merging of Development and
Conference, Stockholm, Sweden.
Security. London: Zed Books.
Held, D. (1995). Democracy and the Global
Fisher, M. (2013, January 22). Map: The
Order: From the Modern State to Cosmopolitan
countries most at risk for a coup in 2013.
Governance. Stanford University Press.
The Washington Post. Washington D. C.
Ingram, S. (2012). Building the Wrong
Retrieved
from
Peace: Re-viewing the United Nations
http://www.washingtonpost.com/blogs/wo
Transitional Administration in East Timor
rldviews/wp/2013/01/22/map-the-
through a Political settlement Lens.
countries-most-at-risk-for-a-coup-in-2013/
International
Relations
IRIN. (2011, February 25). TIMOR-LESTE:
Friis, K., & Hansen, V. V. (2009).
Chronic malnutrition among world’s highest.
International state building in Kosovo –
IRINnews. Integrated Regional Information
security, self-determination and privatisation.
Networks (IRIN), UN Office for the
Norwegian Institute of International Affairs.
Coordination
Fukuyama, F. (2004). State-building. Ithaca,
Retrieved
NY: Cornell University Press.
http://www.irinnews.org/report.aspx?report
of
Humanitarian
February
13,
Affairs.
2013,
from
id=92039
Galbraith, P. (2003). The United Nations
Timor
Jones, L. (2010). (Post-)colonial state-
(UNTAET). American Society of International
building and state failure in East Timor:
Law, 97, 210–212.
bringing social conflict back in. Conflict,
Transitional
Authority
in
East
Security & Development, 10(4), 547–575.
Gorjão, P. (2004). O legado e as lições da
administração transitária das Nações Unidas
Korhonen,
O.
(2001).
International
em Timor Leste. Análise Social, 38(169),
Governance in Post-Conflict Situations.
1043–1067.
Leiden Journal of International Law, 14(3).
Grenfell, L. (2009). Promoting the rule of
Krishna, A. (2008). Introduction: Poor
law in Timor-Leste – Analysis. Conflict,
People and Democracy. In A. Krishna (Ed.),
Security & Development, 9(2)(2), 213–238.
Poverty, Participation, and Democracy: A Global
Perspective. Cambridge University Press.
Carla Luís
Do Globalization and Global Justice go hand in hand?
Krishna, A., & Booth, J. A. (2008).
Perspective. international Journal of Peace
Conclusion: Implications for Policy and
Studies, 10(2).
Research. In A. Krishna (Ed.), Poverty,
Participation,
and
Democracy:
A
Global
Perspective. Cambridge University Press.
Lemay-Hébert,
N.
(2012).
competing
Coerced
objectives
of
institution-building and local empowerment.
Democratization,
19(3),
465–485.
doi:10.1080/13510347.2012.674358
symptoms but not causes: stabilisation and
action
in
Timor-Leste e Mocambique. Oficina do CES,
(290), 1–34.
Pushkina, D., & Maier, P. (2012). United
Nations Peacekeeping in Timor-Leste. Civil
Wars,
14(3),
324–343.
doi:10.1080/13698249.2012.706949
Lothe, E., & Peake, G. (2010). Address
humanitarian
Marcelino, C. (2007). As novas operacões de
paz das Nacoes Unidas: os casos de Angola,
transitions in Timor-Leste and Kosovo:
managing
Pureza, J. M., Simões, M. R., José, A. C., &
Timor-Leste.
Rawls, J. (2005). A Theory of Justice: Original
Edition. Belknap Press of Harvard University
Press.
Disasters, 34(Special Issue, Issue Supplement
Richmond, O. (2004). The globalisation of
s3), S427–S443.
Responses to Conflict and the Peacebuilding
Lusa, & Dinheiro Digital. (2013, February
Consensus. Cooperation and Conflict, 39(129).
13). Timor «continuará a crescer mas deve
depender menos do petróleo», alerta Banco
Mundial. Retrieved February 13, 2013, from
http://dinheirodigital.sapo.pt/news.asp?id_
news=194849
Nagel, T. (2005). The Problem of Global
Justice. Philosophy & Public Affairs, 33(2),
113–147.
doi:10.1111/j.1088-
Paris, R. (1997). Peacebuilding and the limits
liberal
Liberal Peace. Presented at the Experts’
Seminar
on
“Transformation
of
War
Economies”, Univeristy of Plymouth.
Richmond, O. (2009). A post-liberal peace:
Eirenism and the everyday. Review of
International Studies, 35, 557–580.
Richmond, O. P. (2011). De-romanticising
4963.2005.00027.x
of
Richmond, O. (2005). Understanding the
internationalism.
International
the local, de-mystifying the international:
hybridity in Timor Leste and the Solomon
Islands. The Pacific Review, 24(1), 115–136.
Security, 22(2), 54–89.
doi:10.1080/09512748.2010.546873
Pugh, M. (2005). The Political Economy of
Peacebuilding:
A
Critical
Theory
Richmond, O. P., & Franks, J. (2007). Liberal
Peacebuilding in Timor Leste: The Emperor’s New
Clothes? Centre for Peace and Conflict
58
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
Studies, University of St Andrews, UK.
UNDP. (2012). UNDP Human Development
Retrieved
Report 2011. New York: United Nations
from
http://www.st-
andrews.ac.uk/intrel/media/Richmond_Fra
nks_East_Timor_and_the_liberal_peace.pdf
Development Programme (UNDP).
United
Nations
General
Assembly.
Risley, P., & Sisk, T. D. (2005). Democracy and
Universal Declaration of Human Rights. ,
the United Nations Peace-building at the Local
Pub. L. No. 217 A (III) (1948). Retrieved
Level: Lessons Learned. (I. IDEA, Ed.).
from
Institute for Democracy and Electoral
http://www.unhcr.org/refworld/docid/3ae
Assistance.
6b3712c.html
Robinson, N. (2007). State-building and
United Nations General Assembly. (2005).
international politics: The emergence of a
In larger freedom : towards development, security and
“new” problem and agenda. In A. Hehir &
human rights for all : report of the Secretary-
N. Robinson (Eds.), State-Building: Theory and
General, 21 March 2005 (No. A/59/2005).
practice. New York: Routledge.
United
Scambary, J. (2009). Anatomy of a conflict:
http://www.unhcr.org/refworld/docid/4a5
the 2006-2007 communal violence in East
4bbfa0.html
Timor. Conflict, Security and Development, 9(2),
United Nations Security Council. Resolution
265–288. doi:10.1080/14678800902925184
1969, adopted by the Security Council on
Transparency
February 24, 2011 (2011).
International.
(2012).
Nations.
Retrieved
from
Corruption Perceptions Index in 2012. Berlin,
United Nations Security Council. Resolution
Germany: Transparency International.
2037, adopted by the Security Council at its
Ulfelder, J. (2012a, January 30). Assessing
6721st meeting, on 23 February 2012 (2012).
Coup Risk in 2012. Dart-Throwing Chimp.
WHO.
weblog.
country profiles. WHO. Retrieved February
Retrieved
from
(2013).
WHO
|
Timor-Leste:
http://dartthrowingchimp.wordpress.com/2
13,
012/01/30/assessing-coup-risk-in-2012/
http://www.who.int/gho/countries/tls/cou
Ulfelder, J. (2012b, December 21). Coup
ntry_profiles/en/index.html
Forecasts for 2013. Dart-Throwing Chimp.
Retrieved
from
http://dartthrowingchimp.wordpress.com/2
012/12/21/coup-forecasts-for-2013/
2013,
from
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
The Impact of Foreign Aid on Human Rights Violations:
Innocent Flower or the Serpent under it?
Natalie Sophie CEBULLA1, University of Mannheim, Germany
Abstract
D
espite the vast amount of literature on the effects of foreign aid on democratic and
economic structures in the recipient countries, there is a lack of studies focusing
on the effect of aid on human rights violations. I consider democracy and human
rights as two related concepts and thus any such effects should also be taken into
account. This paper aims at finding out whether there is a relationship at all between aid and
human rights. I will finish by concluding that there is a slight correlation at the macro level
and politics needs to consider this when distributing aid.
Keywords: Timor-Leste, peacebuilding, statebuilding, global justice
1
Natalie Sophie Cebulla is currently reading a BA in Political Science and Public Law in the
University of Mannheim, Germany.
60
Politikon: IAPSS Political Science Journal
Introduction
T
heoretically, the transfer of foreign
aid to less and underdeveloped
countries is considered as a tool to
move the world towards global justice by
giving money and other resources from
those who have them in abundance to those
who hardly have anything. Consequently,
advertising on public transportation or
commercials on television asking people to
donate money to poor people who do not
have enough food, sufficient health care or
primary education are inherent parts of our
everyday life. As a result, the amount of aid
donated from the mid-fifties until 2006 has
amounted 2.3 trillion US dollars (Easterly &
Pfutze 2008, 29).
Numerous researchers in the social
sciences as well as some politicians and
government officials severely criticise the
distribution of foreign aid (see for instance
Easterly 2007; Erler 1985). Most of those
studies and reports focus on the political and
economic consequences in the recipient
countries, however, there has been no
systematic research done so far on the
influence of foreign aid on human rights
violations. With this paper I aim at filling
this gap. It is not my intention to criticize
the donation of foreign aid as a whole, but
to evaluate it critically and, if necessary, draw
attention to improvement, especially as far
as the protection of human rights is
concerned. Although – from a rational point
Vol. Nr. 20, June 2013
of view – the circumstances in faraway
countries do not concern us rather wealthy
Europeans, it is nevertheless our duty, not
only morally, but also legally according to
for instance Art.21 of the Treaty on
European Union, to ensure the protection of
human rights and economic development all
over
the
world
(EUR-Lex
2008).
Furthermore, it is the money we pay to our
governments that is given to economically
less developed countries. Therefore, it is in
our interest to make sure that our money
does not hurt people instead of protecting
them.
In this study, democracy and human
rights are regarded as two related concepts,
so the basic assumption is that aid does not
only have a negative impact on democracy in
the recipient countries as previous studies
show, but also on the protection of human
rights. The main limitation of this paper is
that it was not possible to discover the actual
causal link between aid and human rights
violations, because I only used macro level
data to check whether there is a correlation
at all. In addition, the indicator I used for
violations does only include civil and
political rights and not economic, social, and
cultural rights. Therefore, it was not possible
to discover the impact of aid on the whole
spectrum of human rights.
This paper is composed of the
following parts: First, I will present common
criticism on foreign aid and then the current
61
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
state of research on the relationship between
numerous projects and sectors what partly
aid, democracy, and human rights. After that
can be ascribed to the fact that donors act
I
consider
according to their national interests when
democracy and human rights as two related
selecting their recipients. Thus, aid often is
concepts
my
rather a policy instrument serving the donor
hypotheses. After testing them empirically I
instead the recipient (Lundsgaarde 2013, 3;
will conclude that there is a weak, but
Poe 1992, 163). Secondly, aid tying diminishes
statistically significant relationship at the
the actual value of aid, because donors insist
macro level.
that recipients purchase certain items from
will
demonstrate
from
why
which
I
I
derive
them, which leads to the fact that aid
actually
becomes
inefficient.
However,
Easterly also notes that there has been great
Why foreign aid is not aiding
improvement, but on the other hand, some
General
criticism
is
that
aid
creates
donors refuse to report their statistics on aid
incentives for leaders to delay economic and
tying or deliver incomplete or unclear
political reforms and the fact that there are
reports. Thirdly, food aid has the disadvantage
hardly any institutional constraints for donor
of pushing aside local food producers and
countries regarding aid programs, so they are
shop owners by making them uncompetitive
free in the distribution of their money and
and thereby destroying the local economy.
resources (Lundsgaarde 2013, 2).
Fourthly, technical assistance in most cases
William Easterly, one of the most
involves experts from donor countries who
cited scholars in the area of foreign aid
lack local knowledge and are hardly able to
research, names four main points of
transfer their expertise to local actors
criticism: Firstly, there is donor coordination.
(Easterly 2007, 639-644).
Recipient countries are not only burdened
with poverty,
resulting
from
conflicts,
that,
and problems
but
also
with
Foreign aid and democracy
administrative duties what results in “higherthan-necessary overhead costs for both
According to Knack, foreign aid can
donors and recipients” (Easterly & Pfutze
contribute to the promotion of democracy
2008, 38). In addition, there is a huge donor
in
fragmentation instead of a clear and well
conditionality: Donors award grants or loans
organized structure resulting in numerous
to foreign governments for liberalization, i.e.
donors donating to numerous recipients in
for adopting civil and political rights,
three
main
ways.
First,
through
62
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
holding free and general elections and
associated with lower taxes to restrain rich
respecting the rule of law, secondly, through
elites who otherwise might pursue the
technical assistance such as the promotion of
establishment of an autocracy. In short, aid
civil society organizations and monitoring
does not promote regime change from
during elections, and thirdly by improving
autocracy to democracy, but fosters regime
education and increasing the people’s income.
stability (Morrison 2009, 109; 112-113).
However, he could not find any evidence
Similarly, Djankov et. al. demonstrate that
that aid directly promotes democratic
aid is rather a “curse” than a blessing,
development, so he warns that the results of
because it reduces the incentives for
his study need to be interpreted with
democratic accountability: “When revenues
caution, because aid could be aligned with
do not depend on the taxes raised from
effects that undermine rather than promote
citizens and business, there is less incentive
democracy (Knack 2003, 2; 20). On the
for accountability. At the same time corrupt
other hand, Wright states that aid can
government officials will try to perpetuate
promote democracy, but it depends on the
their rent seeking activities by reducing the
size of the ruling party’s coalition partner:
likelihood of losing power” (Djankov et. al.
The leader of an autocratic regime will only
2008, 169; 172).
democratize if success for the new regime
Easterly and Pfutze criticize that
with competitive, multiparty elections can be
donors do not consider the quality of
guaranteed, and this requires a large and
democracy when distributing aid and even
supportive coalition. If there is only a small
“appear to be irresponsive to political
coalition, foreign aid decreases the likelihood
changes in recipient countries”: “Unfree2
of democratization (Wright 2009, 552; 561-
countries have retained about a third of aid,
562).
while around 80 percent of aid goes to
Morrison discovered that aid – like oil
countries either partly free or unfree”
– is an “externally obtained” revenue, i.e.
(Easterly & Pfutze 2008, 31; 41-42). In sum,
neither the government nor the citizens have
if a country is receiving foreign aid this does
to work and pay for it. The consequence is
not necessarily mean that a stable democracy
that in a country that is rather autocratic,
can
externally obtained revenues are used to
democratic does not mean that a country is
raise social benefits to appease citizens who
rewarded with aid.
also
be
guaranteed.
Also,
being
could start a revolution, because they are
unsatisfied with the social and economic
circumstances. In a democracy revenues are
2
This classification is taken from Freedom House
which rates states according to their level of
democracy. They can be assigned to three
categories; “unfree”, “partly free”, and “free” states.
63
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
For instance, decisions to distribute aid do
not only depend on the recipient country’s
Foreign aid and human rights
performance, but often also on the donor’s
interests such as political and strategic
It is remarkable that despite all that criticism,
concerns (Neumeyer 2003, 25-26; Poe 1992,
it seems that there has not been any
163). Alesina and Dollar state that “an
reconsideration of the distribution practice
inefficient, economically closed, mismanaged
of aid. In the following I will try to find out
non-democratic former colony politically
whether or not aid has a negative impact on
friendly to its former colonizer, receives
the protection of human rights. I consider
more foreign aid than another country with
this important for three reasons: First, there
similar level of poverty, a superior policy
has not been done much research on that
stance, but without a past as a colony”.
topic as far as I know. Second, in my
France as a donor can be considered as such
opinion negative impacts of aid on human
an example. Furthermore, when giving aid
rights are more important than negative
the US acts according to its interests in the
impacts on the democratic system, because I
Middle East. On the contrary, the some
consider being killed or tortured worse than
donors – mostly the Nordic countries –
not being allowed to vote3. Third, if the
respond to incentives such as income levels
results show that aid does indeed promote
and good institutions (Alesina & Dollar
human rights violations, it would be another
2000, 33-34). Carey shows that the levels of
severe reason to reconsider and restructure
human rights violations have no impact on
the politics of foreign aid.
the decisions of whether or not to give aid as
In most studies foreign aid has been
far as European donors, especially the
analyzed as a resource given to countries to
United Kingdom, are concerned. Germany,
reward them for protecting civil and political
on the other hand, does give less aid to more
rights or punish them for abuse as the case
repressive
may be (Hawkins & Goodliffe 2009; Knack
attention was given to countries that
2003, 2; 20; Lebovic & Voeten 2009). Some
succeeded in improving their human rights
authors on the other hand, such as
records. She concludes that the reason for
Neumeyer, argue that there is only limited
this is bureaucratic inertia among the donor
support for the assumption that aid serves as
countries (Carey 2007, 447; 461-462).
a reward for the protection of human rights.
3
However, I am well aware of the fact that a
malfunctioning economy can also have a negative
impact on physical integrity rights in the long run.
countries.
However,
more
Nielsen finds that states selectively
impose sanctions against repressive states
for
violating
human
rights
if
three
64
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
conditions are met: Firstly, the sanctioned
respectively. Second, donors do either not
country does not have close political ties to
seems to be aware and/or willing to face
the sanctioning country. Secondly, the
that their foreign aid policies are actually
sanctions
causing more harm than good in many cases.
do
not
have
any
negative
outcomes for the sanctioning country, and
thirdly, the sanctions are widely publicized.
As the cause for this he sees rationalist
motivations he also refers to as “realpolitik”,
Democracy and human rights – related
because donor states are interested in
concepts
keeping peaceful and thus stable relations
with their political partners and weakening
I argue that democracy and human rights are
their enemies. Constructivist thoughts purely
two closely related concepts. For instance,
motived by normative intentions aiming at
most
protecting and promoting human rights
democracies not only contain provisions of
cannot be used to explain those findings
how the government and other state
(Nielsen 2012, 2-3; 25). Moreover, it is “aid
institutions are formed in a democratic way,
shocks” that can cause violence: When there
but also several articles that protect the basic
are severe decreases in aid revenues,
rights of the individual such as freedom
potential rebels gain bargaining power in
from arbitrary detention, killing, and torture.
negotiations with the government. The
Furthermore,
reason is that aid normally is used to appease
codified together in international public law
rebels, but when there is a sudden stop of
such as in Art.21 UDHR and Art.25 ICCPR
aid transfers, they have no incentive to
(United Nations 2012a; Office of the United
behave
Nations High Commissioner for Human
peacefully.
Furthermore,
with
sudden changes in the state budget, the
constitutions
both
of
established
concepts
are
also
Rights 2007).
government has difficulties in keeping its
According to the United Nations,
military’s ability to preserve peace (Nielsen
“the values of freedom, respect for human
et. al. 2012, 2; 25).
rights and the principle of holding periodic
Altogether, these results lead to the
and genuine elections by universal suffrage
assumption that the relationship between
are essential elements of democracy. In
human rights and foreign aid is marked by
turn,
two problems: First, there is no formula that
environment for the protection and effective
ensures that aid promotes the protection of
realization of human rights” (United Nations
human rights and sanctions decrease them,
2012b). Similarly, Norman states that “it is
democracy
provides
the
natural
65
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
(…) clear that human rights and democracy
are interdependent, especially when defined
in
the
broader
conceptualizations
of
democracy as substantive democracy, and
Foreign aid as a means to violate human
rights
human rights as civil, political, economic,
social, and cultural rights. These different
In her 1985 report, Brigitte Erler – former
kinds of rights cannot be realized in a non-
member of the German Bundestag and
democratic
system,
democracy
is
and
likewise,
no
development policy expert working for the
sustainable
without
the
Federal Ministry of Economic Cooperation
presence of these rights” (Norman 2005).
and Development – depicted the deficits and
De Mesquita et. al. argue that party
problems she was facing working in
competition is essential for the protection of
development politics for many years. She
human rights for which the appropriate
states that all her illusions that her work is
institutional foundations are necessary, but
actually helping have been more and more
respect for integrity rights actually involve all
destroyed and thus she decided to resign
dimensions of democracy. Thus, it is not
from her position. One main point of
enough if a country is merely defined as
criticism is that aid is disguised as having
democratic as opposed to autocratic. It
humanitarian and social aims, but actually –
needs to be a fully established democracy.
and many donors do not seem to be aware
Only if that is the case, there is greater
of that – helps to promote genocides and
respect for integrity rights. In addition, full
keeping exploitive elites in their positions
accountability
(De
(Erler 1985, 8-9). Similarly, Dutch freelance
Mesquita et. al. 2005, 439; 456). Davenport
journalist Linda Polman reported that
and
democracy
donations are misused by corrupt leaders to
decreases state repression, but also that
finance wars, because donors are forced to
“below
of
cooperate with local authorities, in most
democracy has no discernable impact on
cases rebels or military regimes. Those who
human
a
are responsible for wars were given aid what
threshold that has been passed” (Davenport
prolonged conflicts instead of ending or
& Armstrong 2004, 551). Consequently, I
preventing them and helping its victims. In
assume that aid does not only have a
some cases the perpetrators even extorted
negative impact on democracy, but also on
resources from the donors as some kind of
the protection of human rights.
taxes or admission fees. In Sierra Leone,
is
Armstrong
certain
rights
also
find
important
that
values,
violations,
the
but
level
after
Rwanda, Somalia, Congo, and Afghanistan
66
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
she discovered the same patterns of misuse
Rights Watch 2010a; 2010b; 2010c; 2010d;
in which in total more than 200 million US
The Telegraph 2010). Therefore, the first
dollars disappeared (Spiegel Online 2010;
hypothesis is
The Guardian 2010).
There
are
at
least
two
causal
H1: Countries that receive foreign aid are more
mechanisms through which aid can cause
likely to have a high level of human rights
human rights violations: First, the recipient
violations.
government can keep the aid for itself,
which causes dissatisfaction and anger
As already mentioned above, foreign aid can
among the population for whom the aid was
also have a negative impact on democracy.
originally intended. As a consequence, they
Thus, I used the level of democracy as a
might start revolting against the state and the
control variable.
state in response will use violent means to
protect itself and stay in power (Poe 2004,
H2: Countries that have a low level of democracy
16-17; 23-27; 31). Second, as the example of
are more likely to have a high level of human
Ethiopia shows, foreign aid can be misused
rights violations.
as a means of coercion: The Ethiopian
government under President Meles Zenawi
One possible reason why aid is associated
and
People’s
with human rights violations might be as a
Revolutionary Front (EPRDF) control all
result of corruption: Money is given to a
aid
political
government which is supposed to give it to
dissidents by conditioning access to aid on
those in need, but instead government
support for the ruling party. In addition, aid-
officials use it for their private interests
funded capacity-building programs whose
(Schudel 2008, 507). It is also criticized that
purpose is to improve people’s skills that
“[a]id agencies are typically not transparent
would help the country’s development are
about their operating costs and how they
used for indoctrination of children, teachers,
spend the aid money” and that aid money
students, and citizens with a neutral political
often goes to corrupt autocrats (Easterly &
view. Food aid is even withheld in cases of
Pfutze 2008, 31; 41-42). Thus, I also
emergency. As Rona Peligal, Africa director
included corruption as an additional control
at Human Rights Watch put it: “If you don’t
variable.
his
party
programs
and
Ethiopian
suppress
play the ruling party’s game, you get shut
out”. This seems to be the dominant theme
H3: Countries that have a high level of
in Ethiopia’s foreign aid politics (Human
corruption are more likely to have a high
67
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
to 10 “democracy” (PolityIV Project 2012).
level of human rights violations.
The
second
control
variable
is
the
Corruptions Perception Index ranging from
1 indicating that a country is highly corrupt
Variables and data
to 10 indicating that there is no corruption.
The problem here is – as the name might
For human rights violations as the dependent
variable I used the Political Terror Scale
(PTS) index that ranges from 1 to 5 with 1
indicating that the country is “under a secure
rule of law, people are not imprisoned for
their view, and torture is rare or exceptional.
Political murders are extremely rare” and 5
that “terror has expanded to the whole
population. The leaders of these societies
place
no
limits
on
the
means
suggest – that this index is based on reports
by the population whether they think there
is corruption or not (Corruption Perceptions
Index 2012). This could have led to some
cases of bias, but there was no alternative
indicator available. The analyzed time frame
goes from 2000 to 2010 and includes all
countries that were listed on the PTS scale
and in the aid data set.
or
thoroughness with which they pursue
personal or ideological goals”. The PTS
Analysis and results
provides two ratings, one based on Amnesty
International reports and one based on US
State Department reports (Political Terror
Scale 2012), both of which I will use
separately. I personally prefer the ratings by
Amnesty International, because ratings by
the US State Department are considered to
be biased in favour of friends of the United
States while discriminating against their
enemies (Poe et. al. 2001, 677).
For the main independent variable –
foreign aid in US dollars – I used two types
of aid; that by countries on the one hand,
and that by international organizations and
agencies on the other hand (Tierny et al.
2011). The Polity IV index served as first
control variable: It ranges from -10 “autocracy”
For the analysis I created three models: The
first
one
only
includes
both
main
independent variables; aid by countries and
by organizations and agencies such as the
European Community, the World Food
Program, the United Nations Development
Programme, and the World Bank. One
fundamental problem with this model is that
it does not detect and balance those cases in
which aid does have positive effects. Thus,
in model 2 I did the same as in model 1, but
here I eliminated those cases in which the
average PTS indicator of the years from
2000 to 2002 was worse than the average of
the same country from 2008 to 2010. In
68
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
model 3, the democracy and the corruption
rather strong considering that aid actually is
variables were additionally included.
supposed to aid. In addition, the results also
show that the level of democracy and
corruption are important factors, i.e. that the
more autocratic and corrupt a country, the
more likely it is that aid is misused as a
Table 1: Foreign Aid and Human Rights
Violations
(Amnesty International)
weapon.
In table 2 in which I used the PTS
indicator
provided
by
the
US
State
Department, the results were similar, but
Model
1
Model
2
Model
3
model 2 and 3 were only significant on the
.01 level in contrast to the results based on
the Amnesty International indicator that
1.82**
0.95**
Aid
by 0.21
Organizations/Agenci
es
0.536*
0.14*
Democracy
--
--
-.02*
Corruption
--
--
-.06**
Constant
2.06**
*
2.37**
*
2.31**
*
R2
.002
.072**
*
.089**
*
Aid by Countries
1.829*
were significant on the .001 level.
Table 2: Foreign Aid and Human Rights Violations
(US State Department)
* p < .05; ** p < .01 ; *** p < .001
Table 1 shows the results with the human
Aid by Countries
Model
1
Model
2
0.14
0.72*
Model
3
0.821*
*
rights violations documented by Amnesty
International. As expected, the first model
0.24*
0.414*
due to the fact that there have been too
Aid
by 0.11
Organizations/Agenci
es
many cases that balanced actual human
Democracy
--
--
-.032*
rights violations caused by foreign aid. In the
Corruption
--
--
-.045*
Constant
2.06**
*
1.56**
*
2.21**
*
does not explain anything which is probably
second and third model, however, this looks
a bit different: In those cases in which aid
did have a negative impact, this impact is
69
Natalie Sophie Cebulla
R2
.003
Impact of Foreign Aid on Human Rights Violations?
.047**
.062**
* p < .05; ** p < .01 ; *** p < .001
Conclusion
The results in both tables show that foreign
aid does promote human rights violations. It
is now the duty of the donor states to
restructure and reconsider their foreign aid
politics, because aid that physically hurts
people and even kills them is worse than aid
having just negative impacts on the level of
democracy and the economic system in the
recipient countries. When doing that, donors
need to put back their own interests and not
label them as help. Furthermore, they need
to keep detailed track of their actions and be
responsive to improvements and declines in
the recipient countries. In sum – to answer
the question posed in the title – foreign aid
is not an innocent flower, but rather the
serpent under it.
Alesina, Alberto & David Dollar. 2002.
“Who Gives Foreign Aid to Whom and
Why?”.
Journal of Economic Growth 5(1): 133163.
Carey, Sabine. 2007. “European Aid: Human
Rights Versus Bureaucratic Inertia?”.
Journal of Peace Research 44(4): 447-464.
Corruptions Perceptions Index. 2012.
http://www.transparency.org/research/cpi/
overview.
Access August 29th 2012.
Davenport, Christian & David A.
Armstrong. 2004. “Democracy and the
Violation of
Human Rights: A Statistical Analysis
from 1976 to 1996”. American Journal of
Political Science 48(3): 538-554.
De Mesquita, Bruce B. et al. 2005. “Thinking
Inside the Box: A Closer Look at
Democracy and Human Rights”.
International Studies Quarterly 49(3): 439-457.
Djankov, Simeon et al. 2008. “The Curse of
Aid”. Journal of Economic Growth 13(3):
169-194.
Easterly, William. 2007. “Are Aid Agencies
Improving”. Economic Policy 22(52): 633678.
Easterly, William & Tobias Pfutze. 2008.
“Where Does the Money Go? Best and
Worst
Practices in Foreign Aid”. Journal of
Economic Perspectives 22(2): 29-52.
Erler, Brigitte. 1985. Tödliche Hilfe. Bericht von
meiner letzten Dienstreise in Sachen
Entwicklungshilfe. Freiburg im Briesgau:
Dreisam-Verlag.
Bibliography
EUR-Lex, 2008. Consolidated versions of the
Treaty on European Union and the Treaty
on the Functioning of the European Union.
http://eur-lex.europa.eu/LexUriServ
70
Politikon: IAPSS Political Science Journal
/LexUri
Serv.do?uri=OJ:C:2008:115:0001:01:en:HT
ML. Access September 12th
2012.
Hawkins, Darren & Jay Goodliffe. 2009.
“Putting Money to Mouths: Rewarding and
Punishing Human Rights Behaviors”.
Paper prepared for the American Political
Science Association Conference in
Toronto, Canada. Sept. 3-6, 2009. http://
goodliffe.byu.edu/papers/hraid.pdf.
Access September 29th 2012.
Human Rights Watch. 2010a. Ethiopia: Donor
Aid Supports Repression. http://www.
hrw.org/news/2010/10/18/ethiopiadonor-aid-supports-repression. Access
September 25th 2011.
Human Rights Watch. 2010b. Development
without Freedom. http://www.hrw.org/reports
/2010/10/19/development-withoutfreedom-0. Access October 1st 2012.
Human Rights Watch. 2010c. World Bank
Feeding Repression in Ethiopia.
http://www.hrw.org/news/2010/10/22/w
orld-bank-feeding-repression-ethiopia.
Access August 29th 2012.
Human Rights Watch. 2010d. Ethiopia:
Donors Should Investigate Misuse of Aid Money.
http://www.hrw.org/print/news/2010/12/
17/ethiopia-donors-should-investigatemisuse-aid-money. Access September
3rd 2012.
Knack, Stephen. 2003. “Does Foreign Aid
Promote Democracy?”. International Studies
Quarterly 48(1): 251-266.
Lebovic, James H. & Erik Voeten. 2009.
“The Cost of Shame: International
Organizations
and Foreign Aid in the Punishing of
Human Rights Violators“. Journal of Peace
Research 46(1): 79-97.
Vol. Nr. 20, June 2013
Lundsgaarde, Erik. 2013. The Domestic Politics
of Foreign Aid. London / New York:
Routledge.
Morrison, Kevin M. 2009. ”Oil, Non-Tax
Revenue,
and
the
Redistributional
Foundations
of Regime Stability”. International
Organization 63(1): 107-138.
Neumayer, Eric. 2003. “Is Respect for
Human Rights Rewarded? An Analysis of
Total
Bilateral and Multilateral Aid Flows”.
Human Rights Quarterly 25(2): 510-527.
Nielsen, Richard A. et al. 2011. “Foreign Aid
Shocks as a Cause of Violent Armed
Conflict”. American Journal of Political
Science 55(2): 219-232.
Nielsen, Richard A. 2012. “Rewarding
Human Right? Selective Aid Sanctions
against
Repressive States”. International Studies
Quarterly. Forthcoming.
Norman, Julie M. 2005. “Human Rights and
Democracy: Conceptualization and
Application
in
Palestine”.
http://www.phrmg.org/human_rights_and_
democracy.
htm. Access October 3rd 2012.
Office of the United Nations High
Commissioner for Human Rights. 2007.
International
Covenant on Civil and Political Rights.
http://www2.ohchr.org/english/law/
ccpr.htm. Access September 24th
2012.
Political
Terror
Scale.
2012.
http://www.politicalterrorscale.org/ptsdata.
php. Access July
13th 2012.
PolityIV
Project.
2012.
http://www.systemicpeace.org/polity/polity
4.htm. Access July
13th 2012.
71
Natalie Sophie Cebulla
Impact of Foreign Aid on Human Rights Violations?
Poe, Steven C. 1992. “Human Rights and
Economic Aid Allocation under Ronald
Reagan
and Jimmy Carter”. American Journal of
Political Science 36(1): 147-167.
Poe, Steven C. 2004. “The Decision to
Repress: An Integrative Theoretical
Approach to
the Research on Human Rights and
Repression”. In: Understanding Human Rights
Violations: New Systematic Studies. Sabine
C. Carey and Steven C. Poe (editors).
Aldershot: Ashgate.
Poe, Steven C. et al. 2001. “How are These
Pictures
Different?
A
Quantitative
Comparison
of the US State Department and
Amnesty International Human Rights
Reports,
1976-1995”. Human Rights Quarterly
23(3): 650–677.
Schudel, Carl Jan Willem. 2008. “Corruption
and Bilateral Aid A Dyadic Approach
Journal of Conflict Resolution”.
Journal of Conflict Resolution 52(4): 507-526.
The Telegraph. 2010. Overseas aid is funding
human rights abuses. http://blogs.
telegraph.co.uk/news/peteroborne/1000613
37/overseas-aid-is-funding-humanrights-abuses/. Access August 3rd
2012.
United Nations. 2012a. The Universal
Declaration of Human Rights. http://www.un.
org/en/documents/udhr/index.shtml.
Access September 24th 2012.
United Nations. 2012b. Global Issues,
Democracy and Human Rights. The human rights
normative
framework.
http://www.un.org/en/globalissues/democ
racy/human_
rights.shtml. Access September 21st
2012.
Wright, Joseph. 2009. “How Foreign Aid
can Foster Democratization in Authoritarian
Regimes”. American Journal of Political
Science 53(3): 255-271.
Spiegel
Online.
2010.
Fehlgeleitete
Entwicklungshilfe: “Spenden finanzieren Krieg”.
http://www.spiegel.de/wirtschaft/soziales/f
ehlgeleitete-entwicklungshilfe-spendenfinanzieren
-krieg-a-730015.html.
Access September 26th 2012.
The Guardian. 2010. War Games: The Story of
Aid and War in Modern Times by Linda
Polman.
http://www.guardian.co.uk/books/2010/m
ay/08/war-games-linda-polmanreview. Access October 3rd 2012.
Tierney, Michael J. et al. 2011. More Dollars
than Sense: Refining Our Knowledge of
Development Finance Using AidData.
World Development 39(11): 1891-1906.
72
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Vol. Nr. 20, June 2013
Responsibility To Protect: What For?: R2P And The NonIntervention In Syria
Adelaida RIVERA, University of Amsterdam, The Netherlands
Abstract
O
n March 17th 2011, the United Nations Security Council approved the Resolution 1973 which
authorized the use of force in Libya in order to protect civilians from the attacks performed by the
state armed forces. The military action by NATO in Libya has resulted in diverse and divided
opinions. The recourse of Responsibility to protect appeared later as a measure intended to be
implemented in the ongoing conflict in Syria, but after two failed resolutions, it became clear that some
UN Security Council members are not willing to repeat the Libyan scenario. This text aims to examine some
basic notions of the R2P concept, its application in Libya and the implications of the results after the Libyan case
on its possible application in Syria.
Should the discussed objectives behind the application of Responsibility to Protect in the Libyan case and its results
be determinant on the decision whether this doctrine can be applied in Syria? Is it possible that the mistakes
committed in Libya, the atrocities now experienced in Syria and the non-response by the international community
could mark the end of the whole concept of Responsibility to Protect? These questions are intended to be discussed
in this paper.
Keywords: Responsibility to protect, Syria, Libya, Military intervention, Sovereignty, Use of
force, Civilian protection
73
Adelaida Rivera
Responsibility to protect: What for?
Introduction
of its contributions in protecting civilians,
the experiences of Libya and Syria could
mark the end of Responsibility to Protect.
The bases on which the decisions of
intervening or not in each case were made
are not clear. At the end of this document,
the question on the practicality and
applicability of the model of Responsibility
to protect will be opened.
R
esponsibility to protect was
officially applied for the first time
to establish a non-fly zone over
Libya.
The recourse
of
Responsibility to protect also appeared at
the beginning of the conflict in Syria, but
soon became clear that there would be no
repetition of the Libyan scenario. This text
aims to examine some basic notions of the
concept, its application in Libya and the
implications of the results of the Libyan case
for the possible application in Syria.
In the first part of the paper, the
concept of Responsibility to Protect will be
presented. This document will first discuss
the origins of R2P as a response to the
failures of states and the international
community to prevent mass human rights
atrocities, as well as its subsequent
development.
Its development will be
examined with a specific case of study:
Libya, focusing on the criticisms that
followed NATO’s intervention.
Subsequently, a revision of the
current situation in Syria and the response
by the international community will be
presented. At this stage of the text, it will be
possible to establish a comparison between
the conditions in which the intervention in
Libya was executed so then there is some
space for questioning whether the Syrian
crisis fulfills the same criteria. Finally, this
document aims to recognize the principles
of R2P, the main characteristics of the
Libyan and the Syrian crisis and the
international
reaction towards
both
situations
under
the
concept
of
Responsibility to Protect.
This paper is grounded on the idea
that R2P has deviated its focus of protecting
civilians when mass atrocities are being
perpetrated. Considering the difficulty in
turning the doctrine from words to actions it
is necessary to explore alternative forms to
define in a more precise way the scope of
the whole concept. Despite the importance
Origins of R2P
Responsibility to protect was
developed in the late 1990s in response to
the failures of states and the international
community to prevent mass human rights
atrocities such as the experienced during the
holocaust, and later on in cases like Rwanda,
Srebrenica. By the failure of the international
community to prevent such mass atrocities
and after several attempts to outline a
framework applicable when a state fails to
protect individuals during internal armed
conflict, the International Commission on
Intervention and State Sovereignty (ICISS),
composed by members of the UN General
Assembly and initiated by Lloyd Axworthy,
then-Canadian Minister of Foreign Affairs
set and named the concept of Responsibility
to Protect on 2011. The concept stressed on
when and how international community
should take action to prevent or stop grave
human rights abuses committed against
civilians by state. (Van Landingham, 2012;
Tarnogórski, 2012). The first major instance
of Security Council practice under R2P’s
third pillar was the March 2011, NATO led,
intervention to prevent atrocity crimes being
committed by the government of Libya
against its own citizens. (Williams et at,
2012, 12)
R2P rests on three pillars; the first
two referring to the responsibility of States
and International community to protect the
civilian population from genocide, war
crimes, ethnic cleansing, and crimes against
humanity, as well as from their incitement.
States are responsible for protecting their
own population, while the international
community has the responsibility to assist a
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Politikon: IAPSS Political Science Journal
state to fulfill its duty. R2P is primarily about
prevention, so that intervention is only
required when the state fails to fulfill its
responsibility to guarantee the safety of
civilians among its territory. Intervention
must be considered as last resort Responsibility to react-, followed by the
mission to provide international assistance
after the actions -Responsibility to rebuild(Bellamy, 2012; Tarnogórski, 2012)
R2p is based on the idea of respect
of sovereignty of states and nonintervention in internal affairs. The idea of
sovereignty, even though involves self
determination and territorial integrity as the
most important rights of a state, also implies
the responsibility to protect civilians under
its territory. The principle of nonintervention was fundamental for the
creation of the UN. However, according to
the third pillar of R2P, the international
community is responsible for taking action,
when the state has failed to protect its
population from one or more of the four
crimes (Bellamy, 2012). Every state has the
primary
responsibility
of protecting
populations within its jurisdiction against
acts of genocide, war crimes, ethnic
cleansing, and crimes against humanity.
Nevertheless, in the event of a failure on the
part of the territorial state, when the state is
unable or unwilling to stop these crimes, the
international
community
has
the
responsibility to intervene. Sovereignty
entails responsibility, so that nonintervention depends on the territorial state
fulfilling its duty to protect its population.
(Evans, 2012; Omorgobe, 2012; Pommier,
2011)
R2P in Libya
The roots of the Libyan crisis lie in the
political upheavals associated with the ‘Arab
Spring’ protests started in the early months
of 2011. Political protests demanding an end
to Muammar Gaddafi’s rule began in the
capital of Tripoli and spread across the
country, descending into a civil war and a
humanitarian crisis. From February until
Vol. Nr. 20, June 2013
August 2010 Gaddafi forces arrested
thousands of people across the country,
including
antigovernment
protesters,
suspected government critics, and people
alleged to have provided information to
international media and human rights
organizations. (Maluwa, pp. 200-232, cited
by Omorogbe, 2012).
Aware of the situation, the Arab
League took a strong position against the
use of force by the Gaddafi regime,
suspended Libya from the league and
convened an extraordinary session calling on
the Security Council to take the necessary
measures to impose a no-fly zone, and to
intervene to protect the population, while
respecting the sovereignty and territorial
integrity of neighboring States. “Following
extensive human rights abuses, and
statements of intent to commit mass
atrocities by Muammar Gaddafi, on
February 26, 2011, the UN Security Council
passed resolution 197088 in an attempt to
resolve the Libya crisis peacefully. The
resolution cited the Libyan authorities’
responsibility to protect its population,
further referring the Libyan situation to the
ICC, imposing an arms embargo, travel ban,
and asset freeze on a number of specified
individuals” (Williams et at, 2012, 12).On
early march UN Security Council authorized
a no-fly zone over Libya and air strikes to
protect civilians, over which NATO assumes
command. Finally, on 17th March 2011, the
U.N. Security Council authorized military
action in Libya, stating that the point of the
action was to protect the Libyan people.
NATO's military intervention in Libya
was initiated under the principle that the
world should not stand by while mass
atrocities go on within a sovereign state. As
a response to the widespread and systematic
attacks by the regime of Libyan President
Gaddafi against civilians, the United Nations
Security Council adopted Resolutions 1970
and 1973 that called for an arms embargo
and a no-fly zone. Resolution 1973 also
authorized member countries and regional
organizations to take “all the necessary
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Adelaida Rivera
Responsibility to protect: What for?
measures” to protect civilians and
population centers in the country from the
threat of attack. The NATO mission
expanded over time beyond its mandate to
give air support for anti-Gaddafi forces.
NATO conducted a seven-month operation
to protect civilians from the threat of attack
in Libya, launched thousands of air strikes
on government targets during the conflict,
some of which killed civilians. (Bolopion,
2011; NATO, 2010; HRW, 2012).
and are still being committed. There have
been many examples of peaceful, unarmed
protesters being killed by the Syrian
government forces than in Libya where
armed rebels were engaging in revolt.
However, Responsibility to Protect has not
been contemplated. Unlike in the Libyan
case, the proposed resolution concerning
Syria did not authorize any use of
international force or sanctions. (Hall
Findlay, 2011)
On July 2011, the National
Transitional Council (NTC), which describes
itself as the only legitimate body
representing the people of Libya and the
Libyan state as the legitimate government of
Libya, was formally recognized as the main
opposition group. Later that year, in
October, Gaddafi was finally captured and
killed. After declaring Libya as officially
"liberated" and announcing the upcoming
elections, The Security Council ordered to
end the international military action in Libya.
Finally, the Security Council unanimously
passed a resolution ending the UN mandate
allowing
military
intervention
and
terminating a no-fly zone over Libya that
had been imposed in March.
On March 16, U.N. envoy, Kofi Annan,
developed a six-point plan for peace in Syria.
President Assad accepted the plan and
assured that his regime would comply.
Nevertheless, government forces continued
to murder demonstrators. On 4 February
2012, the UN Security Council voted on a
draft resolution, resulting on 13 votes in
favor, and the veto of China and Russia. On
19 July 2012, China and the Russia used
their veto again to block another resolution.
This time, South Africa and Pakistan
abstained, and stressed the importance of
finding a peaceful settlement through
dialogue as well as the importance of
maintaining Syrian territorial integrity. The
failure to pass a resolution on Syria was
directly related to the actions of the NATO
intervention in Libya. Some scholars affirm
in this regard that the disagreements within
the Security Council could have a direct
impact on the future of the Responsibility to
Protect. (Gatlin, 2012; Koops, 2012)
R2P in Syria
Starting on March 2011, the crisis in
Syria has transformed from remote peaceful
protests into large-scale demonstrations,
followed by the creation of the Free Syrian
Army by President Bashar al- Assad’s
regime. Since then, the regime’s army has
performed brutal attacks against the civilian
population, from arrests of political activists
to torture and killings on a massive scale.
Syria has denied that its government was
committing such atrocities and justified its
actions as a reaction to the attacks by the
opposition forces. (Drobolowska-Polak,
2012; Mohamed, 2012; Gatlin, 2012).
Massive human rights violations have been
According to the explanations
provided by China and Russia, the two states
that used their right to veto on the last two
resolutions about the Syrian case, the vetoes
against a first draft Security Council
resolution in early 2011 were not emitted
because Syria lacked any responsibility to
protect its people but due to the resolution’s
failure to hold opposition forces
accountable. In the case of the second
resolution in October 2011, their veto was
due to the failure of the resolution to
appropriately call on the opposition to
disassociate with extremists, and because
they –China and Russia-, along with India,
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Politikon: IAPSS Political Science Journal
Brazil, and South Africa, were concerned
that the resolution was a pretext for armed
intervention similar to what they believed
occurred in Libya. (Van Landingham, 2012)
Why Libya and not Syria?
On one side, based on the concept
of sovereignty as the most important right of
a State, R2P stands on the principle stating
that international community should not
execute military interventions. “The Syria
crisis illustrates the extent to which the
international community must exhaust its
peaceful options before low intensity
military options could be considered. In
Syria, the international community has tried
multiple rounds of regional and UNbrokered peace plans, and sanctions without
success. In fact, the Assad regime’s attacks
on civilians have intensified, with the regime
increasingly relying on heavy military
weapons such as cluster bombs and
helicopter gunships.” (Williams et at, 2012,
20). Military intervention is considered a
measure of last resort and only used when
every non-military option for the prevention
or peaceful resolution of the crisis has been
explored. R2P does not prescribe a
particular course of action, nor aims at
authorizing military intervention. Instead, it
makes emphasis on the responsibilities of
sovereign states and commits them to take
consecutive, steps to mitigate the risk of
mass atrocities, based on existing legal
obligations. (Hall-Finlay, 2011; Tarnogórski,
2012)
On the other side, it could also be
argued that military intervention is justifiable
and sometimes necessary as last resort to
stop mass atrocities when the state is not
able to do it by itself. According to Claudia
McGoldrick (2011), Special Adviser to the
International Committee of the Red Cross
Presidency and journalist who worked in
West Africa, even though the use of force to
protect civilians as a last resort is sometimes
unavoidable, it might be perceived as a
political construct aimed at weakening the
notion of state sovereignty. Additionally, the
Vol. Nr. 20, June 2013
political, military, and humanitarian agendas
of the key international players in the Libyan
case were difficult to read. It appeared that
the military operations were aimed at
supporting the forces assembled by the
National Transition Council.
The idea of the legitimacy of the use
of force to ‘protect civilians’ had become
unclear although “military intervention is an
essential part of Responsibility to Protect, in
the Libyan case, the intervention was highly
imperfect, placing the region’s long term
stability in the hands of rebels and leading to
an inconsistent protection of the civilian
population” (Pommier, 2012; Bellamy, 2011,
pg 269). It is argued by many scholars that
NATO’s operation in Libya went far beyond
its main objective of protecting civilians to
become an intentional action against its
regime (Bolopion, 2012; Welsh, 2011; HallFinlay, 2011; Pommier, 2012). “UN’s
mandated measures restricted Libyan state
terror and tipped the balance of forces in
favor of the rebel forces” (Dunne & Gifkins,
2011). The objective of the executed
operations seemed more oriented towards
the defeat of Gaddafi’s regime by supporting
the rebel forces. The operation in Libya has
introduced doubts, about the intentions of
some international actors involved, about
the validity of the principle of using force to
protect civilians, and even about the validity
of the idea that the world has a responsibility
to protect citizens from their rulers.
(Pommier, 2011; Bolopion, 2011)
Approved with ten votes in favor
and five abstentions, it is clear that many
countries were not sure or even opposed the
Security Council's action in Libya.
Abstentions during the Security Council
vote indicated that some governments
already had reservations about implementing
the protection of civilians by force in Libya,
same sates that are now hesitant to support
intervention in Syria. The countries that
opposed the Security Council's action, now
believe the Western operation has gone far
beyond merely protecting Libyans, and it is
now widely seen as an action intended from
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Adelaida Rivera
the start to get rid of the Libyan ruler
(Pommier, 2011; Bolopion, 2012).
However, diverse scholars (Hall
Finlay, 2011; Dunne & Gifkins, 2011)
support the idea that the future of R2P
should not be defined by the origins and
effects of the operation in Libya. The no-fly
zone and other punitive sanctions were in
place for five months before the Gaddafi
regime fell. It could be said then, that it is
still too soon to make a definitive estimation
on the R2P success. According to the
statements
presented
below,
such
considerations about the objectives behind
the Libyan intervention and its final results
should not be a determinant for the decision
whether to take or not action in the Syrian
case. “The Syria crisis highlights the current
limitations of the R2P doctrine. Despite
R2P’s important contributions to the
protection of populations over the past
decade, the Security Council’s veto system
can still create situations where states are
permitted to commit mass atrocity crimes
against their citizens. At present, R2P lacks a
framework for the limited use of force when
the Security Council fails to act. In its
present formulation, therefore, R2P is
missing a crucial component”. (Williams et
at, 2012, 2) As Gatlin (2012) has stated, “the
international community is doing little to
contest the horrors in Syria. If military
intervention was warranted in Libya, the
United Nations should not deny the same
cause of action for Syrian civilians, where
the population is four times larger than that
of Libya and the circumstances are arguably
worse”. Further hesitation for military
intervention under R2P is only leading to
more Syrian citizens causalities.
Responsibility to protect: What for?
Conclusion
It is argued by many scholars that the
coalition’s objective during the intervention
in Libya was the collapse of the Gaddafi
regime, finally considering this objective as
one of the necessary measures to protect
civilians and civilian populated areas under
threat. Additionally, there has been an
imbalance between the sides and the
reported systematic attacks on unarmed
civilians by government forces, leading to
debate about the imperative of protecting
civilians, initially primarily by means of the
imposition of a no-fly zone aimed at
preventing Gaddafi’s air force from
attacking civilians, but the hidden pretext
was to stop his forces. (Pommier, 2012;
Bolopion 2012; White, 2011)
Originally, Responsibility to Protect
appears as a response to the unquestionable
need to prevent mass crimes. However, the
guidelines about how and when the
operations by the international community
should take place are very imprecise and
there has not been an agreement on the
situations in which the concept applies. It is
known that the current situation in Syria has
lead to a large number of deaths at the hands
of national authorities, a situation which, if
not intervened on time, could lead to many
other abuses by the local government. The
question about whether or not the possibility
of a military intervention in Syria should be
considered must be resolved based on the
six criteria on military intervention,
established by Responsibility to protect, and
not based on the past events experienced in
Libya.
Non-military options for the
resolution of the crisis have been already
explored. After several attempts of dialogue
with the local government, Syrian authorities
keep denying the commission of any crimes
against the civilian population and the
country remains in conflict as the Assad
regime
murders
demonstrators
and
opposition. “When peaceful measures have
been exhausted and the Security Council is
deadlocked, R2P’s third pillar should allow
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Politikon: IAPSS Political Science Journal
the use of only those low intensity military
options, such as no-fly zones and
humanitarian safe havens that are focused
on protecting populations. This approach
would advance R2P’s development by
establishing specific criteria that allow for
the limited use of force when the Security
Council fails to act. In doing so, R2P will be
able to fulfill its primary purpose of
preventing mass atrocities within a sovereign
state, thus preventing future tragedies similar
to those that have been seen in Bosnia,
Rwanda, Darfur, and now Syria.” (Williams
et. al, 2012 pg 1)
Even if the causes for interventions
may be equally just, it is unavoidable that
specific internal, external and regional
conditions and configurations affect the
likely success and overall justification of an
intervention. A large scale loss of civilians’
lives is indeed one of the main issues of the
Syrian conflict, fact that makes of this case a
just cause for military intervention according
to Responsibility to Protect guidelines. Even
though, the Security Council is failing to act.
As stated by Gatlin (2012) the Syrian crisis
serves as the impetus for a new discussion
on the legitimacy of military intervention
under the concept of R2P. Like the Libyan
crisis, more remarkable action to protect
civilians is needed in Syria. In conclusion,
despite the importance the contributions
that the concept of Responsibility to Protect
has done to the prevention of mass atrocities
and protection of civilians in conflict
situations, the scope of the concept is still
very questionable. However, the crisis of the
concept of responsibility to protect is not a
product of the outcomes of the Libyan
intervention. It has been Syria the case that
has placed the concept of R2P in crisis. The
lack of military intervention in Syria calls
into question the mere existence of this
doctrine.
Vol. Nr. 20, June 2013
References
Bellamy, Alex J. (2011) The Responsibility to
Protect—Five Years On at Ethics &
International Affairs, Volume 24, Issue 2,
pages 143–169, Summer 2010.
Bellamy, Alex J. (2011) Libya and the
Responsibility to Protect: The Exception and the
Norm at Ethics & International Affairs, 25,
no. 3 pp.263-269. Carnegie Council for
Ethics in International Affairs.
Bolopion, Philippe (2011) After Libya, the
Question: To Protect or Depose? Los Angeles
Times, 12th August 2011 available at
http://www.hrw.org/news/2011/08/25/aft
er-libya-question-protect-or-depose
Dobrowolska-Polak, Joanna (2012) Nonlegitimized military intervention in Syria - a possible
scenario in the coming months? At Institute for
Western Affairs Poznań, bulletin No 100.
Dunne, T.and Gifkins, J (2011) Libya and the
state of intervention. Australian Journal of
International Affairs Vol. 65, No. 5, pp.
515_529
Gatlin, Husain A (2012) A Problem of Mixed
Motives: The Responsibility to Protect in Syria
Student Scholarship. Paper 20. On
http://erepository.law.shu.edu/student_sch
olarship/20
Glanville, Luke (2012) The Responsibility to
Protect Beyond Borders at Human Rights Law
Review 12:1 Oxford University Press.
Hall-Findlay, M. (2011) Can R2P Survive
Lybia and Syria?, Strategic Studies Working
Group Papers, Canadian Defence & Foreign
Affairs Institute and Canadian International
Council, available at
http://www.opencanada.org/wpcontent/uploads/2011/11/SSWG-PaperMartha-Hall-Findlay-November-2011.pdf
Human Rights Watch (2012) World Report
2012.
79
Adelaida Rivera
Responsibility to protect: What for?
Inter-Parliamentary Union (2013) Enforcing
The Responsibility To Protect: The Role Of
Parliament In Safeguarding Civilians’ Lives
At Report 128th Assembly and related
meetings Quito (Ecuador), First Standing
Committee C-I/128/R Peace and
International Security
Van Landigham, RACHEL (2012) Politics Or
Law? The Dual Nature Of The Responsibility To
Protect at Denver Journal of International
Law and Policy, Forthcoming
WEISS, Thomas G. (2011) RtoP Alive and
Well after Libya. Ethics & International
Affairs 25, no. 3
Kirwan, Stephen (2012) Rethinking the norm of
responsibility to protect: Towards a better use of
Chapter VII? At Social and Political Review,
Volume XXII, Trinity College Dublin pg 8797
Welsh, Jennifer (2011) Civilian Protection in
Libya: Putting Coercion and Controversy Back into
RtoP. Ethics and International Affairs: 1-8
Koops, Joachim A (2012) Syria: a responsibility
to protect? The ‘just case’ versus the ‘valid case’ at
Strategic Snapshot No. 5. Group on Grand
Strategy.
Lee, Shin-wha (2012) The Responsibility to
Protect (R2P) From Libya to North Korea?at
Asia Security Initiative working paper. East
Asia Institute, Korea University
McGoldrick, Claudia (2011) The future of
humanitarian action: an ICRC perspective.
International review of the Red Cross,
Volume 93, Number 884, pp965-991.
White, Nigel (2012) Libya and Lessons from
Iraq: International Law and the Use of Force by the
United Kingdom at Netherlands Yearbook of
International Law I. F. Dekker and E. Hey
(eds.), 42, chapter 9. Stichting T.M.C.
ASSER Instituut, The Hague.
Williams, Paul R. ; Ulbrick, J. Trevor;
Worboys, Jonathan (2012) Preventing Mass
Atrocity Crimes: The Responsibility To Protect
And The Syria Crisis at Case Western Reserve
Journal of International Law, Forthcoming.
American University, WCL Research Paper
No. 2012-45
Mohamed, Saira (2012) The U.N. Security
Council and the Crisis in Syria at Insigths,
Volume 16, Issue 11. American Society of
International Law.
Omorogbe, Eki Yemisi (2012) The African
Union, Responsibility to Protect and the Libyan
Crisis. Journal of Conflict & Security Law
vol. 16 issue 1 2011. p. 35-62
Pommier, Bruno (2011) The use of force to
protect civilians and humanitarian action: the case of
Libya and beyond. International Review of the
Red Cross, 93, pp
1063-1083
Tarnogórski, Rafał (2012) Libya and Syria:
Responsibility to Protect at a Crossroads, PISM
Strategic Files, issue: 26 / 2012, on
http://www.ceeol.com.
80
Mikhail Shavtvaladze
Effects of Democratic Citizenship on Pursuing Global Justice
Effects of Democratic Citizenship on Pursuing Global Justice:
from the perspective of the post-Soviet Georgia
Mikhail SHAVTVALADZE1, Tblisi State University, Georgia
Abstract
T
hroughout the world history one particular pattern is obvious that people in all nations desperately
strive towards justice. What justice really means and what it entails can have many definitions and
explanations ranging from liberty to equal distribution of opportunities, however it often can be also
associated with such concepts as democracy, the rule of law and human rights. Although, significant progress have
been made in this direction, notably abolishment of slavery, introduction of universal suffrage in most countries,
alleviation of poverty, adoption of universal declaration of human rights, severe problems such as authoritarian
regimes, conflicts, terrorism, inequality, environmental hazards, human trafficking, inadequate living standards
and widespread poverty still largely persists and haunt us. Despite significant differences in attitudes towards global
justice from country to country, based on its size, economic power and political influence across the globe, the above
mentioned positive steps has been still made, yet plenty of problems still largely remain. Hence, it is interesting to
find out how this progress has been achieved, was it global democratic process, economic development or something
else. Looking from the perspective of the post-Soviet country such as Georgia, in this paper, firstly, I would like to
explore what the concepts of global justice and democratic citizenship mean and how they can be related to each
other. Secondly, I would like to find out what is the current state of democracy in Georgia and to what extent active
political participation along with strong civil society can influence on pursuing justice not only domestically but also
globally. Finally, I would like to examine what are those domestic and global factors that might inhibit the people's
aspiration to global justice.
Keywords: global justice, democratic citizenship, democratization, political participation, civil
society.
1
Mikhail Shavtvaladze, 34, is a graduate who received his Bachelor in International Economic
Relations at the Georgian Technical University in 2001. In 2010, he obtained a MA in Political
Science at the Central European University. He has written his Master Thesis on the post-soviet
transitions and conflict resolution. Currently, he works at the Tbilisi State University as an HESP
- AFP (Academic Fellowship Program) fellow and visiting lecturer. His interests include
comparative politics, international relations, democratization and state building, modernization
and development, conflict resolution, and foreign policy analysis.
80
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
Hence, it is not only interesting to find out
Introduction
D
esperate efforts to achieve justice
are well observable pattern in
nature of humankind that can be
traced throughout the entire history of the
world. What justice really means and what it
entails can have many definitions and
explanations ranging from liberty to equal
distribution of opportunities, however it
often can be also associated with such
concepts as democracy, the rule of law and
human rights.
Although significant progress have been
made in this direction, notably abolishment
of slavery, introduction of universal suffrage
in most countries, alleviation of poverty,
adoption of the International Bill of Human
Rights,
severe
problems
such
as
authoritarian regimes, conflicts, terrorism,
inequality,
environmental
discrimination
of
minority
hazards,
groups,
inadequate living standards and widespread
poverty are still largely persisting in our days.
Despite significant differences in attitudes
towards global justice from country to
country, derived mostly from the uneven
distributions
of
magnitudes,
economic
powers and political influences among
countries in the world, the above mentioned
positive steps has been still made, yet plenty
how this progress has been achieved either
through the means of democratization,
economic development or something else,
but also why so many above mentioned
faults and problems still continue to haunt
us.
Given that, whatever broad range of
definitions and explanations the concept of
global justice might entail, in this paper, I
want to analyze the concept in relation with
democracy, the rule of law and human
rights. Consequently, in order to investigate
the
links between global
justice
and
democratization as well as links between
global justice and human rights, the postSoviet Georgia, as a country case-study, will
be examined.
Therefore, I firstly intend to explore what
the concepts of democratic citizenship and
global justice mean and how they can be
linked to each other. Secondly, I would like
to find out what is the current state of
democratization process in Georgia and to
what extent it can influence on pursuing
justice globally. Finally, I would like to
examine what are those domestic and global
perspectives
and
challenges
that
can
promote or hamper people’s aspirations
towards global justice.
of problems such as widespread poverty,
illiteracy,
discrimination
of
minorities,
repressive regimes and corruption still
Democratic citizenship versus injustices
domestically and globally
largely remain.
81
Mikhail Shavtvaladze
Effects of Democratic Citizenship on Pursuing Global Justice
In any political system or regime, be it
six hundred years. Later on, namely in the
totalitarian, authoritarian or democratic,
second half of twentieth century, the
individuals engage in certain forms of
contractarian theory was further expanded and
relationship with the existing government
examined by John Rawls. However, all these
and its structures or institutions. However,
bright ideas pertinent to the establishing just
the roles and the nature of such relationships
societies, based on liberal, democratic and
vary across the regime types. If individuals in
egalitarian values, were mostly limited to one
totalitarian or authoritarian regimes are
particular nation-state.
considered to be a mere subjects who are
As a result of the industrial revolution of the
coerced to obey a dominant power’s dictates
eighteenth and nineteenth centuries, the
and decrees, in democratic societies though,
emerging world wars in first half of
individuals are assumed to be main source of
twentieth century and, finally, the intensified
power and relationship between a citizen
globalization processes of the last decades,
and government can be described as social
resulting in rapid technological advance,
contract based on justice, equality, the rule of
have largely contributed to the increase in
law and peaceful manner to resolve social
demand for global justice.
cleavages.
Hence, on the one hand, such call for global
Contrary
to
the
highly
between
a
asymmetric
justice can be attributed to the intensive
and
people’s movements as within as well as
government observed in the totalitarian and
across the countries precipitated generally by
authoritarian regimes, where individuals play
the globalization processes and their effects.
no role and have no say in shaping public
While, on the other hand it can be also
policies that affect their everyday lives, the
ascribed to the challenges that a particular
idea of social contract envisages active
nation or multi-nation state has faced in
citizen participation in politics implying that
forms of environmental disasters, ethnic
government and governed are engaged in
conflicts, poverty, corruption and autocratic
some kind of formal dialogue, deliberation
regimes that become beyond the reach of
or partnership with the aim to set
citizens in any country.
overarching rules and common public goals,
Even though no centralized authority (Nagel,
among which justice to be a primary.
2005, p. 116) yet exists to resolve all these
Elaborated by such prominent thinkers as
injustices and address all those challenges
Thomas Hobbes, John Locke, Jean-Jacques
found in today’s modern highly interrelated world
Rousseau, Immanuel Kant and others, the
(Bozac, 2012, p. 451), emergence of the
idea of a social contract dates back almost
intergovernmental organizations (e.g. United
relationship
citizen
82
Politikon: IAPSS Political Science Journal
Nations,
NATO,
EU,
international
WTO
Vol. Nr. 20, June 2013
etc.),
non-governmental
multilateral institutions (Chandhoke, 2007, p.
3018) .
organizations (INGOs) and global civil
However, it is important to note that the
movements (e.g. Freedom House, Human
coercive imposition of democracy upon others
Rights
International,
(Encarnacion, 2005, p. 50) by external
Oxfam, Medecines Sans Frontieres etc.)
powers may backfire resulting in even more
after the world war II, provide some kind of
chaos, violent conflicts or the consolidation
universal guidelines and rules for any state to
of
promote justice, protect human rights and
democracy.
alleviate poverty at least within their national
imperialsim (Encarnacion, 2005, p. 55) can be
borders.
traced by observing US foreign policies in
Consequently, all these globalization effects
the early twentith century towards the
that lead to the process of increasing connections in
countries in the Central and South America.
the areas of economics, communication, technology
Hence, due to the United States' crusade in
and politics (Barrington et al., 2010, p. 87),
Latin America (e.g. in Mexico in 1914), in the
together with widespread societal acceptance
name of promoting democarcy (Encarnacion,
of democartic values, takes public sphere
2005, p. 51), contributed to establish
from domestic to global level. Successively,
authoritarian one-party political system,
people’s demand for justice, before confined
lasting over the seventy years.
within
More recently, it was the US military
Watch,
Amnesty
nation-state,
expanded
further
new
dictatorial
Cases
rules
of
rather
such
than
democartic
towards global domain.
intervention in Iraq under the Bush
Political consequences of such global trends
presidentship, due to which, right after the
and developments can be observed in recent
invasion, Iraq turned into a chaotic and violent
uprisings and revolutions taking place in
land where thousands of civilians have been killed
Egipt, Tunisia and Libia,
dubbed as the
(Encarnacion, 2005, p. 52). Hence, for the
“Arab Spring”, as well as movements such
healthy democarization process to take place
as “Occupy” and the anti-austerity protests
in any country, which in turn leads to more
throughout Europe (Lutsevych, 2013, p. 2).
just and peaceful society, it is necessary for
Particularly, these events illustrate to what
global powers to promote democracy by example
extent mass mobilization organized by means of
rather by force (Encarnacion, 2005, p. 58).
the internet and mobile communication (Castells,
Subsequently, it can be noted that no metter
2008, p. 87) can pose threat not only to
how noble, liberal or democratic the ends
dicatorial powers of the old authoritarian
are, they do not justify any means.
rulers, but also to follies and wrongdoigns of
81
Mikhail Shavtvaladze
Effects of Democratic Citizenship on Pursuing Global Justice
For that reason, instead of forceful or
tendency to resolve conflicts peacefully, the
coercive means, democratic values in any
concept of democartic citizenship can in
society can be effectively promoted by
turn lead to comparatively less unjust world
means of education, free media and civil
than it is today. Therefore, it can be deduced
activism. Given that, the concept of
that connection between pursuing justice and seeking
democartic citizenship, introduced first at
democracy (Sen, 2009, p. ix) is rather obvious
the national level by means of civil society
and it can extend to the global level.
organizations, education or mass media, can
greatly contribute to more just and peaceful
environment not only within the particular
state but beyond its borders.
State of democratization process in the
post-Soviet Georgia: no justice without
genuine democracy
Hence, one of the main reason for such
Past sequence of events that took place in
optimistic assumption is that albeit the
Georgia, the newly independent, small,
democartic mind (Burroughs, 2011, p. 6) is
multiethnic state that emerged from the
hardly innate in humans, unlike egocentricity
rubbles of the Soviet Empire, clearly show
and ethnocenticity that require no special
the pattern that path towards democratic
training (Burroughs, 2011, p. 6) as Walter
nation-building are not always smooth, but
Parker, in his book Educating the Democartic
is rather characterized by chaos and violent
Mind, contends, cultivating democartic habits
political cleavages. As a consequence,
and competences (Burroughs, 2011, p. 6)
Georgia’s transition from the old totalitarian
through educational programmes, free media
regime has not been resulted in a stable
and civil society organizations can greatly
democratic system but rather in series of
induce citizens in any particular country to
semi-authoritarian, hybrid regimes without
establsih more just and democartic societies
strong, viable civil society and system of
challenging domestic as well as global
checks and balances.
injusticies.
Although, the causes of such dramatic turns
In addition, the concept of democratic
of events are many and complex, at least
citizenship, apart of conceptions as personally
some of the major causal effects such as
responsible, participatory and justice-orinted citizen
soviet legacy expressed in undemocratic and
(Westheimer & Kahne, 2004, p. 239), aslo
illiberal political culture, political elite’s ill-
concieves such principles and skills as critical
judged approaches to diversity issues,
thinking, tolerance, the protection of human
especially to the issues of ethnic minorities
rights, inclusion, peace and consensus.
residing in the territory of Georgia, as well as
Consequently, if adopted widely, through its
unfavorable
global
circumstances
that
84
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
significantly affected domestic outcomes,
Ilia II. For example, according to the recent
can be emphasized.
opinion polls conducted in Georgia by IRI
Speaking of the above mentioned specific
(International Republican Institute) among
type of Soviet political culture, during the
the three most trusted institutions (International
late period of the USSR’s existence, people
Republican Institute, 2012) the Georgian
in most union republics, including in
Orthodox Church tops by 93 percent,
Georgia, more or less tended to favor those
followed by the army (89 percent) and police
ideals such as freedom of movement, increased
(87 percent).
autonomy and cultural expression (Beisinger,
Furthermore, looking the Georgia’s post-
2002, p. 48) instead of security and order.
Soviet political culture from the lenses of the
Such outcome can be attributed to the
Almond and Verba’s Civic Culture Theory,
Gorbachev’s reformist politics aimed to
it can be noticed that in the form of the
liberalization of the Soviet totalitarian
Soviet legacy of totalitarian regime, due to its
system.
highly centralized nature of nomenklatura
However, since the Soviet Union’s demise,
(Wheatley, 2005, p. 21) Georgia inherited the
most citizens in Georgia started to favor
type of civic culture, more characterized as
order and security over freedom and
“subject” and “deferential” rather than
democracy, largely due to the complete
“participatory”. As a result most citizens in
deterioration of economy, emerging violent
Georgia yielded most of their powers to the
conflicts,
level,
newly emerged charismatic leaders, in hopes
corruption and inequality. For example,
that the incumbent will resolve all their
CRRC’s Caucasus Barometer 2010 Survey
socioeconomic issues and provide justice
results show that more than fifty percent of
and fairness.
the households surveyed in Georgia, versus
Consequently, every successive post-Soviet
35 per cent, see the government’s role as a
leader,
parent rather than employee (Caucasus
Shevardnadze or Saakashvili, who emerged
Research Resource Centers, 2010).
as a result of overwhelming popular vote,
Moreover, the claim with respect to citizens’
misused their powers in their own ways. If
preferences of order and security can be
the first President Gamsakhurdia’s hyper-
further substantiated by the fact that, over
nationalistic appeals largely contributed to
the last twenty year period, people in
the escalation of civic and ethnic conflicts
Georgia became overwhelmingly supportive
leading to coup d’état, the next President
towards the Georgian Orthodox Church and
Shevardnadze’s rule, aside of devastating
its leader Catholicos-Patriarch of all Georgia,
military conflict in Abkhazia, was marked by
sharp
rise
of
crime
whether
Gamsakhurdia,
81
Mikhail Shavtvaladze
widespread
Effects of Democratic Citizenship on Pursuing Global Justice
corruption,
clientelism,
on crime (Dolidze & de Waal, 2012). Hence, if
economic stagnation and lawlessness.
in
As for the third President Saakashvili, an US
technologies are used for mass mobilzation
educated lawyer who surged to power in the
against
peaceful Rose Revolution of 2003 (de Waal,
injustices, in another case the same tools are
2012), instead to consolidate democracy and
employd by the authoritarian rulers to
resolve
conflicts
strenghten their grip on the society they rule.
peacefully, he choose to solidify his own
As a result, many political opponets and
power through amending the Constitution.
activists objecting the regime, ended up in
As a result, Saakashvili acquired power to
jail without fair trial, their private properties
initiate and veto legislation, to abolish
were forcefuly extorted and some of them
existing
even became subject of killings (e.g. Sandro
the
frozen
ethnic
laws, and dissolve
parliament
one
case
modern
authocracy
communication
and
government
(Shavtvaladze, 2012, p. 36).
Girgvliani’s case, in 2006) and phisical abuse.
Because of such undemocratic political
Consequently, unable to find justice at the
setting and the absence of judicial independence
national level due to the Georgia’s highly
(Barrington et al., 2010, p. 280) in Georgia,
unjust judiciary system, with the acquital rate
that was characterized the Saakashvili’s nine
close to nil, many citizens in Georgia who
year rule, it become even more difficult for
become victims of such systemic violence
ordinary citizens to find justce at the
sanctioned by Saakashvili’s regime, had to
national level. Moreover, despite more
apply for the European judiciary institutions,
effective measures taken by Saakashvili’s
such as the European Court of Human
government to eliminate petty corruption
Rights in Strasburg.
that
Even if the recent electoral victory of the
increased
state
revenues
further
“Georgian
Dream”
(Shavtvaladze, 2012, p. 38), it turns out that
main
throughout this period, largest part of these
coalition over the ruling “United National
revenues and most efforts of the ruling elite
Movement” party in the last October 2012
were
parliamentary elections can be regarded as a
directed
authoritarian
towards
police
state
building
rather
an
than
positive
opposition
signal
that
more
particpatory
democratic political system.
political culture has been emerged in
For that reason, Saakashvili and his ruling
Georgia and peacful transfer of power is possible
party (United National Movement) created
despite numerous obsticles (Lutsevych, 2013, p.
an extensive – and very lakely illegal – surveillance
2), it hardly denotes that Georgia has already
and security apparatus in Georgia (Cecire, 2012,
consolidated its democarcy.
p. 2) based on the harsh “zero tolerance” policy
86
Politikon: IAPSS Political Science Journal
Thus,
further
the
civil society in Georgia (Lutsevych, 2013), civil
democartic values, as among general public
activism in this post-Soviet country, and the
as well as governing elites, is yet to bee seen,
current state of civil society in genaral,
meaning that faced again with issues of
remains
transitional justice, it remains to be seen
exercise due oversight functions and hold
whether the Georgian society will approach
autorities accountible to their citizens
these challenges with loyalty to democartic
(Lutsevych, 2013). Such weaknesses of civil
ethos, transparency and due process (Cecire,
society in Georgia can be explained by
2012).
number of aspects, among which, most
Furthermore, speaking of the curent state
important can be the Soviet legacy of
and extent of Georgia’s civic and political
totalitarian communist regime, absence of
culture, it is important to highlight that the
class cleavages, clientelism, political patronage
recent student protests movements, which
and civic apathy.
was triggered due to the leak of shocking video
Due to highly unequal distribution of
evidence of torture and abuse, including rape, from
military, political and economic power
Tbilisi’s notorious Gldani Prison (Dolidze & de
among the countries across the world, as just
Waal, 2012) can be regarded as positive step
as well as unjust actions of global powers or
towards
superpowers
the
commitments
direction
of
to
Vol. Nr. 20, June 2013
democartic
feeble,
meaning
can
incapable
significantly
to
affect
citizenship.
democartic outcomes in much less powerful,
Accordingly, unlike to the previous youth
small countries such as Georgia. Hence,
mobilizations in Georgia, influenced mostly
speaking specifically of Georgia’s case,
by concrete political forces, in most cases by
although Russia’s neo-imperialistic attitudes
certain political parties or movements, this
and politics, partcularly over the last twenty
new student movements were marked by its
year period, can be hardly regarded as
impartiality, inclusivness and demands for
constructive for Georgia’s stathood and
more democarcy and stronger citizens role
democracy, Western partiality (Cecire, 2012)
in shaping public policies and bringing social
and double standards failed either to foster
change (Lutsevych, 2013) rather intereting in
genuine
the victory of concrete political groups.
Georgia.
However, it is also important to stress that
While, many officials in the West saw the Rose
despite the Rose Revolution was percieved by
Revolution as having been led by Western-oriented
the West as a triumph of civil society (Lutsevych,
reformers
2013, p. 2)
largely due to twenty years of
wrongdoings and human rights abuses done
Western democarcy assitance aimed at supporting
by the Saakashvili’s regime against its fellow
democartization
(Mitchel,
2012),
proceses
many
in
severe
81
Mikhail Shavtvaladze
Effects of Democratic Citizenship on Pursuing Global Justice
citizens were overlooked and not assessed
(Lutsevych, 2013, p. 3) that will based on the
and
concept of democratic citizenship.
studied
properly.
Therefore,
the
question is to what extent the self-
However path towards relatively more just
proclaimed strong pro-western attitudes by
world,
certain leaders or political groups should be
democratization process can be complex and
automatically counted by the Western
might consist of several stages. In the first
institutions as pro-democratic and liberal
stage, for instance, through introducing the
ones. Since, as the recent Georgian example
concept of democratic citizenship at the
clearly demonstrates it is possible to build
country level, by means of education, free
authoritarian system even under the guise of
media or civil society organizations, can lead
neoliberal values such as free market or
to much more stronger and viable civil
laissez-faire economy.
society capable to promote the rule of law,
specifically
through
the
protect human rights and hold national
Perspectives and major challenges to
pursue justice domestically and globally:
closing remarks
governments and businesses accountable to
the public. Apparently, such optimistic
outcome should be expected because of
active, inclusive, participatory and consensus
The aim of this paper is to analyze the
based approaches this type of citizenship
linkage
presumes to resolve
between attempts
to
establish
existing conflicts
democratic system and pursuing global
peacefully and uphold universal human
justice. Based on many observations and the
rights nationally.
employed studies in this field, it can be
Consequently, in the second stage, the civil
concluded that democracy is essential part of
society groups, created at the national level
just societies whether at the national or
in the first place, can also easily become
global level. Hence, despite globalization
agents or parts of global civil society
phenomenon, which had been set in motion two
movements or INGOs, mainly through such
decades earlier (Chandhoke, 2007, p. 3018),
phenomena as modern communications networks and
leading to growing role and influence of
new information technology (Held, 1997, p. 253).
international networks and organizations
Given that, shared with the universal
and diminishing capabilities of national
principles and concepts of democratic
governments to tackle new challenges
citizenship, the newly emerged civil society
effectively, even within their controlled
groups will be able not only to resist the
boundaries, justice globally still can be
symbols of unbridled globalization (Chandhoke,
achieved through the organized civil power
2007, p. 3018) but also to question critically
88
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
the actions of power hungry states and profitdriven markets (Chandhoke, 2007) and hold
Bibliography
them accountable to general public.
Finally, speaking of domestic and global
challenges along the path leading to global
justice
specifically
via
democratization
Westheimer, J., & Kahne, J. (2004). What
kind of Citizen? The Politics of Educating
for Democarcy. American Educational Research
Journal , 237-269.
process, from the perspective of the postSoviet Georgia, several internal and external
factors can be identified. Hence, among
internal factors, most important of them can
be ascribed to the Soviet legacy
of the
totalitarian rule, reflected in weak civil
Wheatley, J. (2005). Georgia From National
Awaking To Rose Revolution. Aldershot:
Ashgate Publishing Limited.
Burroughs, G. (2011). Introduction. In G.
Burroughs, Z. Rukhadze, M. Kvatchadze, L.
Gaprindashvili, & L. Izoria, Democracy and
Citizenship (pp. 6-23). Tbilisi: IFES Georgia.
society, civic apathy, corruption, informal
rules of clientelism and political patronage,
intolerance towards minority groups
and
poverty. As for specific relationship between
poverty and democratic outcome, many
social scientists argue that as income rises, so
Barrington, L., Bosia, M. J., Bruhn, K.,
Giaimo, S., & McHenry, D. E. (2010).
Chapter 3: Economic Class, Development,
and Globalization. In L. Barrington, M. J.
Bosia, K. Bruhn, S. Giaimo, & D. E.
McHenry,
Comparative
Politics:
structures&choices (pp. 62-101). Boston:
WADSWORTH CENGAGE Learning.
does civic activism (Clover, 2012).
Whereas, given the sharp disbalances of
power that exists among the countries in
today's highly interrelated world, most
important external factors that might have
significant
effects
on
democratization
processes in the post-Soviet country such as
Georgia can be related to how just and
democratic the policies and actions of global
superpowers as well as international financial
institutions will be particularly with respect
to small countries.
Beisinger, M. (2002). The Tide of
Nationalism and the Mobilizational Cycle. In
M. Beisinger, Nationalist Mobilization and the
Collapse of the Soviet Union (pp. 47-102). New
York: Cambridge University Press.
Bozac, Z. (2012). Global Democracy:
Coercion - Based Approach. CEU Political
Science Journal , 434-454.
Caucasus Research Resource Centers. (2010
л 30-November). Caucasus Barometer 2010,
Georgia. Retrieved 2013
л 18-February
from Caucasus Research Resource Centers:
Online
Data
Analysis:
http://www.crrc.ge/oda/?dataset=4&row=
106
Castells, M. (2008). The New Public Sphere:
Global Civil Society, Communication
Newtork, and Global Governance. The
ANNALS of the American Academy of Political
and Social Science , 78-94.
81
Mikhail Shavtvaladze
Effects of Democratic Citizenship on Pursuing Global Justice
Cecire, M. (2012
л 4-December). Don't
Rush to Judgement on Georgia. Foreign Policy
, pp. 1-3.
Chandhoke, N. (2007). Global Civil Society
and Global Justice. Economic&Political Weekly
, 3016-3022.
Clover, C. (2012 л 23-February). Analysis:
"Russia: A Kremlin of crude calculations.
Retrieved 2013
л 21-February from
Financial
Times
Web
site:
http://www.ft.com/intl/cms/s/0/839d01c
4-5e0f-11e1-8c8700144feabdc0.html#axzz2LVyk6nOU
Encarnacion, O. G. (2005). The Follies of
Democartic Imperialsimm. World Policy
Journal, Vol.22, No. 1 , 47-60.
de Waal, T. (2012
л 5-December). No
America in the Caucasus. Foreign Affairs , pp.
1-5.
Nagel, T. (2005). The Problem of Global
Justice. Philosophy&Public Affairs , 113-147.
Mitchel, L. (2012
л 15-November).
Georgia: Four Observations and Four Questions
from the Georgian Election. Retrieved 2012 л
18-November
from
EurasiaNet:
http://www.eurasianet.org/node/66186
Sen, A. (2009). The Idea of Justice. Cambridge,
Massachusetts: The Belknap Press of
Harvard University Press.
Shavtvaladze, M. (2012). Saakashvili's Rule:
Compromising Democarcy, Unsuccessful
Efforts to Strenghten Georgian State and
the August War 2008. In M. Shavtvaladze,
Post -Soviet Transitions and Conflict Resolution:
Attempts to build Democartic Nation-State in an
Ethnically Diverse Country: the case of Georgia
(pp. 1-49). Saarbrucken: LAP LAMBERT
Academic Publishing Gmbh&Co.KG.
Dolidze, A., & de Waal, T. (2012
л 5December). A Truth Commision for Georgia.
Retrieved 2012
л 5-December from
Carnegie Endowment for International
Peace:
http://www.carnegieendowment.org/2012/
12/05/truth-commission-for-georgia/eqdm
International Republican Institute. (2012
л 5-January). IRI Releases Expanded
Nationwide Survey of Georgian Public Opinion.
Retrieved 2013
л 21-March from
International Republican Institute (IRI):
http://www.iri.org/news-events-presscenter/news/iri-releases-expandednationwide-survey-georgian-public-opinion
Held, D. (1997). Democarcy and
Globalization. Global Governance, Vol.3, No.3 ,
251-267.
Lutsevych, O. (2013). How to Finish a
Revolution: Civil Society and Democarcy in
Georgia, Moldova and Ukraine. London:
CHATHAM HOUSE.
90
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Vol. Nr. 20, June 2013
The Limits Of Kantianism Towards A Project Of Global Justice
Daniel NUNES PEREIRA1, Universidade Federal Fluminense, Brazil
Abstract
W
estern societies believe they can improve human settlements all around the world by
universal standards of justice, concerning mainly the distribution of wealth and sound
democratic institutions. Such concern arises from the reflections regarding the hodiernal
world condition, which is, at large, vile and unjust. These two ways of improving
human condition have their mains ideas established on the work of Immanuel Kant.
This paper intends, therefore, to understand and foresee the limits and boundaries of these ideas
specifically on the contemporary world – plural, polysemic and filled with theoretical uncertainties.
Keywords: Kant; Global Justice; Cosmopolitanism; Human Rights; Morality
1
Daniel Nunes Pereira, 26, is M.A candidate in Political Science and L.L.M. candidate in Sociology &
Jurisprudence, both at Universidade Federal Fluminense (UFF) in Brazil. He received his Bachelor in
Jurisprudence at Universidade Federal Fluminense in 2010, and on the same year attended at CPE in
European History at the Universiteit Utrecht (U.U.) in Netherlands. His interests and fields of research
include Political Theology, Philosophy of Law, Political Philosophy and Psychoanalysis. Email:
[email protected]. English revision: Marcos Ceia; Email: [email protected]
Daniel Nunes Pereira
The Limits of Kantianism
its countries. This scenario is not new, since
I
F
the
rom the concern that the world at
large is unjust arises the issue of
Global Justice, i.e., the idea that we
can improve society all around the world by
universal standards of justice, concerning
mainly the distribution of wealth and sound
democratic institutions. Through these two
main concerns lie two fundamental ideas,
namely, cosmopolitanism (all human ethnic
groups
belonging
to
a
single community) and universal morality,
i.e., Immanuel Kant’s theoretical constructs.
world
has
already
testified
Kipling’s “White Man’s Burden” – in this
bleak scenario Kantianism reaches its limits:
should this theoretical universal moral and
shared citizenship overcome individuals and
traditional and endangered cultures? The
understanding of human rights through
Kantian “lenses” looking forward to a
Global Justice challenges the tensions
amongst increasing globalization, the socalled "clash of civilizations", the crisis of
universalism, and the attempt to impose the
cultures strengthened localisms.
Though cosmopolitanism and universal
morality roots until Hierocles and the
This study deals with these aporias
Platonists, respectively, it was Kant who
of Kantian thought through the following
gave it the consistence known today.
expediency: a) review of the origins and
meanings of cosmopolitanism and moral
The Kantianism imbued in these two
ideas is somewhat a response to Hobbes’s
claims about the relation between justice and
sovereignty, since the later understands
political legitimacy and the principles of
universalism in Kant b) Comments on the
possible
subversions
of
Kantian
assumptions c) Commencement of solutions
to
the
problems
raised
from
Jürgen
Habermas thought.
justice on collective self-interest, rather than
on any irreducibly moral premises.
These two ideas, moral universalism
II
and cosmopolitanism, can lead to dangerous
pathways on the international community.
Cosmopolitanism as a worldview is
Since every man and woman belongs to this
not something new. It probably emerged in
single global community that has its own
ancient Greece, around the fourth century
portentous universal moral with standards of
B.C., alongside the conquests of Alexander
justice, this same community shall protect
the
them by force, if necessary, through some of
achievements, the Greek citizen began to
Great
in
the
East.
With
these
92
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
think beyond the horizons of the city-state.
principis superioris - (Schmitt, 2006: 152-166).
Hellenism
through
The Absolute monarchs, towards the goal of
contacts with other cultures and people,
maintaining internal control over its own
enhancing the ethos of citizen of the world
territory, guaranteeing them the right of war
(Brock, Brighouse, 2005: 3). Philosophically,
and peace in international relations, included
the Stoics, v.g., were the forerunners of
new terms inscript on the "state of nature"
cosmopolitanism, since they thought that
Theory
self-acceptance was the way to reach things
International Affairs. With the transition
such as family, homeland and the human
from the Middle Ages to the Renaissance,
race in general sense. (Brock, Brighouse,
pacifism resurfaces among Christian thinkers
2005: 4-8).
from the fourteenth century as, for example,
intellectually
However,
grew
cosmopolitanism
understood as matter of Jurisprudence
(Rechtslehre) is a Kantian novelty. For Kant,
cosmopolitanism is not a philanthropy or a
fanciful representation, but it is a necessary
(Hobbes,
2005),
even
in
the King of Bohemia Jiříz Poděbrad
consigning
the
(Odložilik,
1965),
Congragatio
and
Concordiae
Erasmus
of
Rotterdam proposing his Quaerela Pacis
(Erasmus, 2004).
complement to the unwritten codes of civil
At the mainstay of these ideas, Kant
law and international law to enable the
underlies his conception of Perpetual Peace
realization of fundamental principles aimed
in determined conception of public law, that
at the ideal of perpetual peace. (Kant, 2009:
leads to some kind of Cosmopolitical
12-66).
Jurisprudence as its highest expression
With the apparent ending of the
Kantian philosophy is the maximum
religious wars in Europe, the Peace of
expression of the Enlightenment, and as
Westphalia
the
such, has a universal character. The starting
required frames for a European international
point of his analysis does not differ
law, no longer based on the two highest
substantially from other Illuminists such as
medieval authorities – Pope and the
Rousseau, Montesquieu or Hume. Kant
Emperor, but based on the sovereignty of
understands the relationship between the
states. Therefore, it seemed to be the end of
States as return to the “state of nature” in
the medieval doctrine of Just War (justum
some extent, which is a state of conflict and
bellum), and sovereign states become the only
injustice in which only states are subject of
ones in a position to declare the legality of
international relations and recognize no
the war, no longer needing the approval of a
higher authority. That is, according to Kant,
of
1648
consolidated
higher authority – non expectata auctoritate
Daniel Nunes Pereira
The Limits of Kantianism
the main cause of the existence of a
economic egalitarian commitments, then the
permanent state of war between them. So,
same is true for global justice. But the
under Kant’s ideas, the overcoming of the
political dimension of cosmopolitan justice
absolute sovereignty of states and the
is the focus here studied, and this concept of
overcoming of war are processes that must
cosmopolitanism is based on Kantian ideas
go together. But the ultimate goal is to carry
of individual rights and international law
out
(Habermas, 1996: 20)
a
cosmopolitan
Humankind
project
to
all
and every individual, not
restricted to Europe or the so called
Thus, the cosmopolitan kantian
jurisprudence is based on the fact that the
Respublica Christiana.
earth has a finite, spherical surface, and
In
contrast,
the
cosmopolitan
therefore,
humanity
cannot
spread
to
conception considers that the primary
infinity, but is limited to live on this territory
interest of global justice is to ensure justice
common to all mankind. Although the
for individuals in the world as a whole. It
definition given by Kant of the earth as a
assumes that all people, no matter where
terraqueous globe – a mathematician-
they are, have the right to equal care as
geographical setting – such definition is
citizens, and the purpose of justice is to
closed and limited to the natural conditions
ensure
that make the possibility of interaction,
that
global
institutions
and
international relations are governed by the
however,
principle of individual equality. This means
dynamicity. The world, of which Kant
that global justice can not only be concerned
speaks here, is man's place, one in which it
with how states relate to each other, even if
carries out its activity. And man, as an
it is conditioned by the requirement that
inhabitant of the land, is naturally a traveler.
basic human rights must be domestically
Thus, Kant saw humanity as a genuine
respected.
cosmopolitan
potential community for interaction –
understanding, global justice would require,
pacific, but not friendly. Kant routed on
above all, that all societies should maintain
some cosmopolitan Law the possibility of
and aid their domestic institutions and social
Mankind achieving the establishment of a
policies that regard human dignity.
perfect political organization.
In
approach
Under
summary,
to
such
the
cosmopolitan
global justice
regards
This
composed
particular
towards
some
cosmopolitanism
a
depends on a specific notion of Men and its
globalized liberal and egalitarian justice, and,
Telos. In this sense it is noticeable that the
to this point, one may assume some
human being is differentiated in relation to
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
other entities for being understood as a
such a project is difficult in a pluralistic and
"terminal
mutable society.
end"
(Scopus)
under
the
teleological order of the world. But what
does it means being terminal end of
Creation? What qualifies Man as such?
III
According to Kant, Man, whilst existential
category, needs no other purpose as a
condition of its possibility. It is therefore an
unconditioned being because it is not
restricted simply to the cosmological or
mechanical laws of cause and effect and do
not serve (or should not serve) to the
purposes
of
any
other
being.
This
independence on the chain of purposes is
accredited by his supersensible capacity of
freedom
to
volition
and
rationality.
Especially, in this morality lies the centrality
of human as terminal end of creation, which
is rooted in a triple existential capacity: a
free, rational and moral entity. These three
assumptions also form the basis of human
dignity, so that the just man is worthy of
being treated as an end in itself because it is
essentially free, rational, and therefore
autonomous.
Iberian colonialism had already entered into
crisis, but another form of geopolitical and
ethnical exploitation emerged (Cooper, 2005:
113) that accentuated during the so-called
neo-colonialism, especially with the disputes
that would later foment the Great War.
Anyway, in both events of imperialist
practice there was some discourse of
"Westernization" (Stuchtey, 2011), then
called “Christianization of the Barbarism” or
later the "White Man's Burden." In such
discourses were laying beliefs that a universal
and eminently true, unfeigned and veritable
ethnocentric morality should be taken and
disciplined to other people (Stuchtey, 2011),
since they all belonged to the same great and
ineffable Godlike Earthly Project erected on
eurocentrism - it was therefore a kind of
Such dignity is deduced from a
specific understanding about morality. This
is the stance of the Kantian metaethics
system concerning a universal ethea, namely,
universally
Contemporaneously to Kant the old
applicable
for
all
similarly
situated individuals, regardless of race,
culture, sex, religion, nationality, sexuality or
any other distinguishing feature. Of course,
cosmopolitanism.
But,
humanistic
in
contrast,
foundation
what
of
is
the
Kant's
cosmopolitan thesis? It is truly based on the
very idea of communitarian ownership of
the surface of Earth. Originally under the
‘state of nature’, whilst physical possession
(Possessio phaenomenon), all individuals have
the same rights on the ground. The Earth is,
Daniel Nunes Pereira
The Limits of Kantianism
in this sense, a universal good. The very
nowadays called world public opinion.
“sphericity”
(Habermas, 2002: 197).
of
the
circumscribed,
Earth,
being
itself
constrains individuals and
Kant himself, during his lifetime,
nations to not isolate themselves infinitely,
contracting,
however,
some
sort
of
relationship and, therefore, affect each other,
what
compels
the
creation
of
rules
concerning the rights that should enables
these volitions to coexist harmoniously.
criticized the subverted cosmopolitanism of
the imperialist European nations, and there
are interpreters of the philosopher of
Königsberg
that
update
his
critiques,
bringing it to today's reality. Western
societies are structured upon capitalism and
A
central
aspect
of
Kant's
have been thriven in a multicultural context,
Cosmopolitan Theory is the limitation of the
composed of very different identities, under
concept “visitation Rights” (Besuchsrecht).
the ideological background of an alleged
This has significant implications when its
homogenization and universalization. The
understood as opposed to the ethnocentric
multiple cultures in those societies are part
practices of European colonialist nations
of a general culture where the logic of
contemporaries to Kant. According to the
capital puts its manifestations in a network
author, these so-called "civilized" states were
of
unfair and abusive because they took the
endless
simple right to visit the foreign land as a
recrudescence
right of conquest and consecutively led all
between individuals, understood as products
forms of oppression to colonized peoples.
and concomitantly producers of
For Kant, the European colonialists powers
reality,
lived through a humbug, because on one
organization and individualism. Considered
hand they righteously follow their rites of
as an ideology and moral base structuring of
worship and religious orthodoxy, but on the
capitalist society, individualism is under
other, act on unfairly and vile ways towards
constant mutation, showing strong tendency
its “colonized subjects”. However, the
to radicalization, amid an abundance of
complaint and the combat against such
human resources which, strictly speaking,
injustices become plausible within the
would be sufficient to provide human
cosmopolitan speech, in the sense that a
happiness.
mass production
oriented
consumption.
of
magnifying
the
the
There
towards
is
a
interrelationships
social
individualistic
single violation of rights in one corner of the
Earth should be felt in every part of the
world. It is in this sense that Habermas
points Kant as one who anticipated the
In this reality, there is a formalist
abstraction of Kantian theories, pursuant to
currently invoking Aristotelian conviction
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
that moral judgment is necessarily limited to
"Western"
certain socio-cultural contexts, leading to an
formulation, beneath it a pluralistic mosaic
alleged
of
waiver
emancipatory
of
the
needing
potential
universalism,
of
relinquishing
for
moral
to direct
of modern atomism using universalist ethics
of good only hampers the first issue, since
that would rely on precursors of moral
universalism, id est, in a morality grounded
and
cosmological
weltanschauungen, even more difficult to
reconcile
alongside
postmetaphysical
teleological
the
thought
worldview
hodiernal
than to the
of
various
abstract
and
traditions,
fluid
sometimes
a
social structures. Overcoming this problem
religious
an
antagonistic, being displayed.
It is considered that the possibility of
scathing moral criticism towards unjust
in
is
Aristotle
incorporating the idea of hodiernal standards
of Human Rights as a pathway to continue
such tradition through a reinterpretation of
the principle of Human Dignity, in order to
avoid an imperialist imposition of any legal
code. However, the possibility of any
universal moral principle cannot be imposed
in relation to specific cultural contexts of the
world simply because any Ethical Discourse
or Universality
performed
(Habermas, 1986: 125)
principle
independently
will
at
not
any
be
real
Discourse of Praxis (Habermas, 1986). The
Cultural relativism had undeniable
principle of Universal Morality and a
relevance towards raising questions about
pragmatic transcendental reasoning (derived
the alleged superiority of one race, or to
from assumptions arisen from inevitable
question the basis on which rested the
speeches of a specific Reason) are not
claims that classified people according to
sufficient, however, to substantiate standards
stages of development. However, the ideal
of legal and moral demeanors.
of
tolerance
then
fetched
currently
The
encounters a series of obstacles supplied by
the design of the relativist position, which
seeks to establish it negating the possibility
of judgment on behaviors of different
people around the globe. Regarding the
analysis of an alleged Westernness of
Human Rights Standards, which would
compromise with a European cultural
tradition
(perhaps
understood
as
Imperialist), it is argued that the category
legitimacy
of
Modern
Cosmopolitanism Theory and its Human
Rights Laws must necessarily pass through
complementarities between individualism
and
collectivism
processes that
or
are
communitarianism,
no longer merely
conflicting and, still, retain a tension and a
complementariness
essentials
for
the
integration of morality in historical and
social contexts enabling to join Iura humana
within culture and society, not as an outer
Daniel Nunes Pereira
levy, but as part of an institutionalized tidal
process, complementing the many other
collective processes of political nature.
The Limits of Kantianism
Hobbes, Thomas. 2005. Leviathan oder
Stoff, Form und Gewalt eines kirchlichen
und staatlichen Gemeinwesens. Hambur:
Meiner Verlag.
References
Kant Immanuel. 2009. “Perpetual Peace,
a Philosophical Sketch”. In. An Answer to
The Question: What Is Enlightment?
London: Penguin Books.
Brock Gillian, BrighouseHarry. 2005.
The
Political
Philosophy
of
Cosmopolitanism.
Cambridge:
Cambridge University Press.
Odložilík, Otakar. 1965. The Hussite
King. Bohemia in European Affairs 1440–
1471. New
Brunswick:
Rutgers
University Press.
Cooper, Frederick, 2005. Colonialism in
Question: Theory, Knowledge, History.
Oakland: University of California
Press.
Schmitt, Carl. 2006. The Nomos of The
Earth. New York. Telos Press
Publishing.
Erasmus, Desiderius. 2004. Complaint
of
Peace. New York: Cosimo
Publishing.
Stuchtey, Benedikt. 2011. “Colonialism
and Imperialism, 1450-1950”. In.
European
History
Online,
Mainz: Institute of European History,
2011, retrieved: Feb. 02, 2013.
Habermas, Jürgen. 2002. A Inclusão do
Outro - Estudos de Teoria Política. São
Paulo: Edições Loyola.
Habermas, Jürgen. 1996. “Kants Idee
des ewigen Friedens – aus dem historischen
Abstand von zweihundert Jahren“. In:
Lutz-Bachmann, M., Bohman, J. 1996.
Frieden
durch
Recht.
Frankfurt:
Suhrkamp Verlag.
Habermas, Jürgen. 1986. “Moralität
und Sittlichkeit. Treffen Hegels
Einwände gegen Kant auch auf die
Diskursethik zu?” In: Kuhlmann,
Wolfgang.
1986. Moralität und
Sittlichkeit. Das Problem Hegels und die
Diskursethik. Frankfurt: Suhrkamp
Verlag.
98
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
A Boundedly Rational Analysis of Global Distributive Justice
Alexandru VOLACU1, National School of Political and Administrative Studies, Romania
Iris-Patricia GOLOPENTA2, National School of Political and Administrative Studies, Romania
Abstract
I
n the present paper we analyze two prominent global distributive justice theories, i.e. Pogge’s Global
Resource Dividend theory (1994) and Dorsey’s maxificing welfarism (2005) under an assumption of
bounded rationality. We consider that the agencies responsible for distributing resources are
informationally constrained in regard to the assessment of economic positions in society and cognitively constrained
in regard to the decision making process within the agency. We argue that under these conditions the distributive
patterns prescribed by both theories can be severely distorted. Further, in Dorsey’s case bounded rationality can even
lead to a complete failure of the theory, since not only are the resulting distributions sub-optimal if we introduce the
possibility for a single mistake in the identification process, but they can also be completely redundant by prescribing
distributions which are not capable of lifting a single citizen to the minimum level required for the fulfillment of
basic needs. We further show that for both theories the identification problem becomes more severe and that the
agencies are more susceptible to make mistakes in circumstances of extreme poverty, i.e. the circumstances primarily
targeted by the theories. Aside from this main result, we also obtain three secondary results: 1. we extend the
ongoing debates in political philosophy between ideal and non-ideal theories and in particular between factinsensitivity and fact-sensitivity, 2. we provide a preliminary defense of a proportional distributive principle for
global justice and 3. we provide a new starting point for the construction of arguments regarding the nature of the
agency (e.g. global government, national governments, UN institutions, international NGOs) entitled to distribute
resources in global justice theories.
1
Alexandru Volacu is a 2nd Year MA student in Political Theory and Analysis at the Faculty of
Political Science, National School of Political and Administrative Studies, Bucharest, Romania.
He is a member of IAPSS since 2009. He has previously published scientific articles on political
philosophy and political science in the Romanian Journal of European Affairs, the Romanian
Journal of Society and Politics, Revista de Stiinte Politice. Revue des Sciences Politiques,
Perspectives in Politics and the Sphere of Politics. His main research interests include: Political
Philosophy, the Philosophy of Science, Public Choice Theory, Game Theory, Spatial Analysis
and Political Ethics.
E-mail address: [email protected]
2
Iris-Patricia Golopenta is a 2nd Year MA student in Political Theory and Analysis at the
Faculty of Political Science, National School of Political and Administrative Studies, Bucharest,
Romania. She is currently an intern at Romanian Academic Society. Her research interests
include: Normative Theory, Political Philosophy, Ethics, Institutional Approaches of Political
Science and Gender Studies.
E-mail address: [email protected]
99
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
Keywords: bounded rationality, distributive agency, distributive pattern, Dorsey, global distributive justice, nonideal theory, Pogge
Motto: “Should the facts be allowed to spoil a good theory?” (Lovell, 1986, p.120)
and adapts to the nature of the situation
Introduction
E
ver
since
Rawls’s
(1993)
first
important contribution to global
justice theories, the field has become
one of the most fertile debate forums in
political philosophy. Theories of global
distributive justice3 also share a common root
with the Rawlsian line of thought, with some
of the most important theories in this strand
being
considered
extensions
of
the
difference principle (see Rawls, 1971, p.72),
although Rawls himself opposed such a view
by stating that “the principles of justice for
the basic structure of society are not suitable
as fully general principles. They do not apply
to all subjects […] or to the law of the
peoples” (Rawls, 1993, p. 39). Instead, Rawls
argues that they should be systematically
constructed by a procedure that modifies
3
Among the prevalent cosmopolitan
defenders of global distributive justice we
can find, inter alia, Pogge (1994), (2001),
(2002), Beitz (1979), (2000), Barry (1999),
Mollendorf (2002), Tan (2004). Some of its
prominent critics (which mostly defend
Rawls’ conception of global justice) include:
Rawls (1993), (1999), Dworkin (2000), Reidy
(2004), Nagel (2005). This list does not even
begin to scratch the surface of the literature
in question but it does manage to briefly
outline some of the most important
contributions.
each time the parties are required to agree
on the principles of fair distribution and
cooperation.
One of the main characteristics of
global distributive justice theories is that they
do not take into account a significant
number of empirical circumstances, which
when considered, could completely alter the
distributive patterns of the theory. We argue
that one such circumstance is the fact that
human
beings
are
cognitively
and
informationally constrained, or in Simon’s
terms boundedly rational (1976), and that as
a consequence they will not be able to
accurately identify in all instances the
members to which they should distribute
goods if they follow a prescribed distributive
pattern. Our purpose in this paper is to
show that for at least two theories of global
distributive justice, one which follows the
mainstream position of extending the
difference principle to a global framework,
i.e. Pogge’s GRD approach (1994) and one
which is derived on a consequentialist basis,
i.e. Dorsey’s maxificing welfarism (2005), the
prescribed patterns of distribution are
susceptible to lead to perverse outcomes.
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The paper is divided into seven
According to Pogge, the present
parts, excluding the introduction. In the first
global order is characterized by political and
two parts we present a brief overview of the
economical interdependency that is very
theories of global distributive justice as
likely to persist in the future. Hence he
developed by Pogge and Dorsey. In the third
expresses
part we present a brief overview of the
regarding the deficiencies in mitigating
concept of bounded rationality and explain
inequalities: 1. citizens of different nations
the sense in which it will be used in the
benefit from unequal chances to influence
paper. In the fourth part we explain the
the transnational political decisions, 2.
general context in which the bounded
equally talented and motivated individuals
rationality
do not possess equal chances to obtain
assumption
is
relevant
for
three
egalitarian
concerns
political philosophy, namely the debates
public
between
non-ideal
regardless of their nation of origin and 3.
theories, and in particular between fact-
social and economic inequalities are not used
insensivity and fact-sensitivity. In the fifth
in the benefit of the world’s worst off
part we explain the distributive patterns
positions. (Pogge, 1994, p.196) These three
prescribed by Pogge and Dorsey by
observations are substantially compatible
capturing them in a common structural
with Rawls’s two principles of justice that
framework. In the sixth part, where the bulk
state the following: 1) “each person is to
of our argument is concentrated, we show
have an equal right to the most extensive
what effects the introduction of a bounded
scheme of equal basic liberties compatible
rationality assumption could have on the
with a similar scheme of liberties for others”
distributive patterns prescribed by Pogge
(Rawls, 1971, p.53) and 2) “social and
and Dorsey. In the final part we draw the
economic inequalities are to be arranged so
conclusions of the paper and lay the
that they are both (a) to the greatest
groundwork for potential discussions which
expected benefit of the least advantaged and
could stem from the present paper but were
(b) attached to offices and positions open to
not included here due to spatial constraints
all under conditions of fair equality of
or due to the different scope of the paper.
opportunity” (Rawls, 1971, p.72).
ideal
theories
and
goods,
services
and
positions,
Given the similarities, the questions
2. Global distributive justice – Pogge and
that naturally rise are whether the Rawlsian
Dorsey’s perspectives
original position could be applied to the
2.1. Pogge’s GRD approach to global
international order in all its complexity and
distributive justice
how should it be constructed on a meta101
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
theoretical perspective? The specialized
not as historically arbitrary limits of states as
literature identifies several answers to these
Rawls does, but rather as the result of
questions. Rawls discusses two possibilities:
violence
1. initially the principle of justice is applied
distributional significance, as they determine
to the basic structure of each society and
the contextual life of individuals benefiting
subsequently
of
and controlling its land and all its natural
state’s
resources is not justified. Therefore, the
in
a
second
negotiations
between
the
representatives
in
to
order
round
construct
affluent
and
states
coercion.
and
its
Thus,
citizens
their
who
international principles of justice or 2. the
unconditionally benefit from public goods
application of a single-step process under
and open positions, development and
the form of a global original position. Pogge
resource
(1994), argues in favor of the first option as
responsibility to offer foreign aid to those
it seems to comply with the egalitarian
who are dealing with daily poverty, mortality
concerns formulated above and he uses it in
and
order to both clear the methodological
universalization of human rights to a
background of his research and also defend
“standard of living adequate for the health
his conception of global justice: “what is
and well-being of oneself and one’s family,
needed is a principle that asses alternative
including food, clothing, housing and
global economic orders in terms of their
medical care” 4. Moreover, the moral duty of
distributive effects, just as his [Rawls’]
these states is even greater since they are
principle
of
directly responsible not just for alleviating
structuring a national economy” (Pogge,
poverty, but also for perpetuating it, taking
2001, p. 16).
into account the role and rationale off some
assesses
alternative
ways
opulence
malnutrition
have
and
the
support
moral
the
He basically criticizes Rawls’s lack of
of the international economic institutions
precision in arguing about the nations and its
that have been founded and consolidated
borders and is trying to counter the
particularly at the initiative of these states
following highly-idealized case: “there really
(Pogge, 2001, p. 15).
is a clear-cut distinction between peoples
How can foreign aid as duty of the
and other kinds of groupings, that every
global economic order be transposed into
person belongs to exactly one people, and
proper mechanisms to justify the state’s
that each national territory really does, nearly
enough, contain all and only the members of
a single group” (Pogge, 1994, p.197). Pogge
addresses the problem of national borders
4
The Universal Declaration of Human
Rights,
accessed
at:
http://www.ohchr.org/EN/UDHR/Docu
ments/UDHR_Translations/eng.pdf,
at
19.02.2013.
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
negative responsibility towards the other
Pogge also identifies 4 problems that
states? Pogge formulates one institutional
the GRD must confront, which are as
5
proposal, i.e. the Global Resource Dividend
follows:
(GRD) that could be interpreted as a type of
prohibitive taxes and block economic
difference principle and may be successfully
sectors of states, 2. the dividend imposed on
defended by an egalitarian conception of
the cultivation of basic commodities might
international justice. The GRD implies that
lead to increasing their prices, which will
people should pay a proportional tax on the
negatively affect the worst-off positions, 3.
resources6 they extract from the territory
the necessity to anticipate the worst-off
within its national borders, weather they use
positions of the future and therefore overtax
it themselves or export it. The GRD is
the limited resources of the world or the
therefore a consumption dividend that
highly dangerous pollutants and 4. the tax
discriminates between the amount of the
should be based on resources and pollutants
taxes, proportionally to how much value
whose extraction should be easily monitored
each takes from our planet (Pogge, 1994, p.
and estimated. (Pogge, 1994, p. 204)
1.
the
risks
of
establishing
199) and automatically leads to higher prices
The issue of global poverty could
for natural resources. Pogge argues that the
therefore be approached and solved if the
dividend could be interpreted as a sort of
interdependencies
Lockean proviso, with the mention that the
perceived in a constructive perspective: the
dividend does not bear the proviso’s lack of
affluent countries are due to expand their
precision, on the contrary: anyone can enjoy
advantages and enter into a global bargaining
the earth’s resources to the fullest, but in
process with the other countries, while the
return must share some economic benefit.
poor are due to accept the economical,
The amount of money shall therefore be
technological and know-how abilities that
used by the governments in mitigating the
the rest posses in their advantage. Hence,
socio-economic
the GRD could be a proper instrument to
global
inequalities
and
directly offered as aid to the poor countries,
of
the
world
were
try.
based both on their per capita income and
population size (Pogge, 1994, p. 1999).
2.2.. Dorsey`s maxificing welfarism
An alternative perspective on how
5
In a previous paper called the Global
Resource Tax (Pogge, 1994, p. 199).
6
Pogge does not limit the concept of
national resources just to land, but extends it
to water, infrastructure, education and even
air.
global
justice
should
be
achieved
is
entertained by Dale Dorsey who argues
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Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
against human rights7 as a main justifying
The human rights approach would have
instrument for achieving global justice, for
argued in favor of the distribution that
“this language cannot form a plausible
attempted to ensure a basic level of needs to
foundation for international obligations and
all citizens, because no governmental action
[…] although some thinkers claim that they
or institution is legitimized to infringe on
posses powerful rhetorical appeal and thus
their rights, as possession of basic needs is
might profitably be used to mobilize action
considered to be an obligation and forms a
designed to reduce or eliminate suffering,
side-constraint on the social policy (Dorsey,
human rights are not sensitive to the
2005, p. 568). However, according to
concerns of justice that exist in recipient
Dorsey, when dealing with deprivation,
nations” (Dorsey, 2005, p. 562). Dorsey
starvation or severe poverty, this approach
develops a bilateral approach, focusing both
fails.
on the obligations that the rich countries
Dorsey’s main hypothesis is “that
have to the poor ones, but also on the
many theories of justice are unable to
domestic justice of the second, meaning the
capture […] is that fulfilling basic needs has
proper way that their national institutions
priority” (Dorsey, 2005, p. 566). Thus,
ought to be organized to account for a
survival is the goal of legislators in very poor
particular conceptions of justice. Actually,
countries and rights are violable only when
the
internal
the benefit is great enough and there are
framework of justice and its consistency
enough individuals who could be saved
with the nature and type of international aid
(Dorsey, 2005, p. 571). Otherwise stated,
is essential, for any kind of intervention
Dorsey does not avoid at all the concept or
would be prone to fail if they completely
rights, but more likely seeks to maximize
neglect the domestic circumstances of
their fulfillment (Dorsey, 2005, p. 572) -
justice. For instance, in the very poor
instead of arbitrary distributing between
countries, in the midst of crises or a
individuals - and calls this way of reasoning
powerful famine, fair distribution could not
maxificing. However, the theory is incomplete
possibly be achieved according to Rawls’s
because it fails to respond to a minimum of
difference principle, for prioritizing the
two aspects: 1) situations in which resources
worst-off implicitly means decreasing the
are left over and all have been brought up to
goods for the ones that are barely able to
the sufficient level (Dorsey, 2005, p. 578) 2)
avoid starvation and creating a greater harm.
situations in which resources are left over,
concern
regarding
the
but are not enough to bring any further
7
Even the basic rights that assure human
needs, in the manner that Pogge argues.
persons to the sufficient level. (Dorsey,
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
2005, p. 578). Thus, in Dorsey’s view, global
main
justice should not be concerned with human
comprehensively rational view of human
rights, but with the desiderata of assuring the
nature can be brought: 1. even casual
level of living decency for the greatest
empiricism leads to the conclusion that even
number of individuals.
in quite simple decision problems, most
objections
to
adopting
a
economic agents are not maximizers, i.e. do
3. The importance of bounded rationality
not scan the choice set and consciously pick
for theories of global distributive justice
a maximal element from it, 2. maximizations
3.1. Bounded rationality – an overview
of this type are sufficiently difficult to
For
economic
a
long
theories
time
as
mainstream
well
as
their
prevent people from acting as in this way in
most practical situations, even if they have
applications in non-economic fields (e.g.
maximizing
public choice theory, the economic analysis
experiments widely confirm that individuals
of law, the new economic history) upheld a
fail to conform to at least some of the
tradition
“homo
rational choice postulates, 4. laboratory
economicus” view or phrased in other
experiments show that the conclusions of
terms, “comprehensive rationality” , (Jones,
analysis
1999, p.299) as a core assumption. However,
assumptions are unrealistic and 5. the
some authors argue that “the fully rational
conclusions of rational analysis sometimes
man is a mythical hero who knows the
seem unreasonable even on the basis of
solutions of all mathematical problems and
simple introspection (Aumann, 1997, p.2).
of
adopting
the
8
intentions,
based
on
3.
strong
polls
and
rationality
can immediately perform all computations,
In order to counter many of the
regardless of how difficult they are. Human
deficiencies met in models based on
beings are very different. Their cognitive
comprehensive rationality, Simon introduces
capabilities are quite limited. For this reason
the concept of bounded rationality, which
alone the decision behavior of human beings
places limits on both an individual’s “ability
cannot conform to the ideal of full
to perform” and on his “ability to make
rationality” (Selten, 1999, p.3). At least five
correct decisions” (Simon, 1976, p.39), since
they act in a “world of limited epistemic,
8
Jones identifies the following assumptions
which
cumulatively
characterize
comprehensive rationality: 1.preferences are
defined over outcomes, 2. the outcomes are
known and fixed and 3. decision-makers
maximize their utilities by choosing the
alternative that yields the highest level of
benefits (Jones, 1999, p.299).
cognitive, and analytical opportunities” (Sen,
1997, p.768). Simon’s basic idea is then to
“replace the global rationality of economic
man with a kind of rational behavior that is
compatible with the access to information
105
Volacu and Golopenta
and
A Boundedly Rational Analysis of Global Distributive Justice
computational
are
(for overviews of studies favoring the
actually possessed by organisms, including
empirical superiority of bounded rationality
man, in the kinds of environments in which
to strict views of rationality see, inter alia,
such organisms exist” (Simon, 1955, p.99). A
Conlinsk, 1996, Camerer, 1998 and Selten,
way to understand the concept of bounded
1998). We therefore consider that following
rationality, in particularly in respect to
the considerable amount of proof which
informational and cognitive constraints9, is
supports the bounded rationality hypothesis,
by
p.42)
its incorporation into global distributive
interpretation of agents as information
justice theories is justified, as these sorts of
processors. In this view, the agent receives
theories are economic by construction, albeit
inputs
the
normative,
especially
individual) and generates outputs (decisions)
economics
as
after
allocation of scarce resources” (Simon, 1978,
following
capacities
Lipman’s
(information
processing
framework,
the
bounded
that
(1995,
external
former.
rationality
to
In
this
would
the
when
study
we
of
view
“rational
p.2).
therefore refer to “choice that is imperfect in
the sense that the output is often not the
3.2. Bounded rationality as a step
'correct' one, but is sensible in that it can be
towards building non-ideal theories of
understood as an attempt by the agent to do
global distributive justice
reasonably
well.
Put
differently,
the
Before examining the effects which
procedure used is a reasonable compromise
the introduction of a bounded rationality
between accuracy of the output and the
assumption would have on the distribution
difficulties involved in processing” (Lipman,
of goods in the two theories previously
1995, p.43).
described, we consider it necessary to take a
The reason why we argue that taking
short meta-theoretical detour in order to
into account the constraints mentioned in
explain the larger picture in which this
the preceding paragraph, in the form of a
discussion takes place. This conceptual field
bounded rationality assumption, is important
is represented by the on-going debate
is that its empirical plausibility has repeatedly
between
been confirmed in experimental situations
theorists with respect to the relevance of
starting from the pioneering work of
taking
Tversky and Kahneman (1974), (1979) and
constraints in normative theory-building.
continuing with many other similar results
The distinction between ideal and non-ideal
ideal
into
theorists
account
and
certain
non-ideal
types
of
theory with regard to normative assessments
9
Which is the dimension of bounded
rationality in which we are interested here.
of justice is first discussed by Rawls (1971,
106
Politikon: IAPSS Political Science Journal
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p.8) who frames his theory of justice as
theory of perfect justice (or a transcendental
fairness within the framework of ideal
theory) and a theory of local improvement in
theory, assuming that the parties will comply
justice (or a comparative theory)12 and the
in all cases with the principles established in
distinction between fact-sensitivity and fact-
the original position. In the initial meaning
insensivity (Hamlin and Stemplowska, 2012,
introduced by Rawls, ideal theory differs
pp.3-6). The last distinction, which specifies
from non-ideal theory in that the former
whether the theory is empirically constrained
“attempts to describe those principles for
on any level, is the one in which we are
the design of institutions and the conduct of
primarily interested in this paper. As Farrelly
persons that would be appropriate to a
(2007) points out, Rawls himself takes into
morally and politically ideal order, while
account some moderate constraints when
non-ideal theory concerns itself with the
constructing his original position, such as
principles that would be appropriate for
pluralism or the human nature as well as
these
perfect
others, e.g. moderate scarcity13, but that
conditions” (Phillips, 1985, p.551). The main
many other constraints, such as unfavorable
element of disagreement between the two
historical, social or economic conditions,
approaches
indeterminacy,
purposes
is
under
less
therefore
exclusively
fallibility,
human
axiological, being reduced to the universal
vulnerability,
following
design, etc. are not included in the
of
moral
constraints
by
individuals.
problems
of
institutional
assumption set of the theory of justice as
The current debate focused on the
fairness, further arguing that the theory itself
subject is however decidedly more complex10
is unrobust when some of these assumptions
introducing
dimensions
are altered (Farrelly, 2007, p.847). If we
complementary to the full compliance one,
adopt the view made explicit by Hamlin and
several
other
namely the distinction between idealization
and abstraction11, the distinction between a
10
For a basic introduction to the main issues
in question see Farrely (2007), Simmons
(2010), Valentini (2012) and Hamlin and
Stemplowska(2012).
11
Idealization is understood as the “making
of false assumptions about some significant
aspect of the problem in hand”, while
abstraction is “understood to consist in
ignoring or bracketing off some complexities
of a given problem, but without assuming
any falsehoods about them” (Hamlin and
Stemplowska, 2012, p.4).
12
A transcendental theory “focuses on
identifying perfectly just social arrangements
while a comparative theory concentrates on
ranking alternative social arrangements”
(Hamlin and Stemplowska, 2012, p.6).
Hamlin and Stemplowska underline however
that
the
transcendental-comparative
dimension doesn’t in their view perfectly
correspond to the ideal-non-ideal categories.
13
Although Farrelly specifically targets the
explicit introduction of moderate scarcity as
a constraint arguing that in effect he fails to
take it into account (2007, pp.848-856).
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Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
Stemplowska, that the distinction between
action. First of all we agree in general with
ideal and non-ideal theory is a fuzzy one and
Farrelly’s remark that the bracketing of
it should be interpreted on a continuum
certain real-life constraints in some theories
rather than through a categorical approach
of justice15 severely limits or even distorts
(2012, p.3), then Rawls’ theory of justice as
the results of the theories in their practical
fairness is not placed on either extreme,
application (Farrelly, 2007, p.859). Secondly,
although it is somewhat closer to the fact-
we argue that an even stronger argument can
insensitive extreme14 and the same can be
be brought in support of our enterprise,
said of Pogge and Dorsey’s theories
namely one which starts from Rawls’ (1999)
previously discussed, since they take into
own transcendental position and more
account certain constraints such as extreme
specifically from his claim that a theory of
resource scarcity (Dorsey, 2005, p.565) or
global
justice
should
be
realistically
16
even non-compliance (Pogge, 1994, p.202),
utopian . The argument is constructed as
but not others such as the limits of human
follows: the fact-sensitive constraint set can
nature.
broadly be described as consisting of three
The
introduction
of
bounded
types of categories: 1. elements which are
rationality as a constraint in theories of
historically
global distributive justice is therefore a step
circumstances generated by colonization, 2.
forward in the attempt to ground the
elements which are morally derived, e.g.
normative principles derived through their
quasi-full compliance or 3. elements which
usage in empirical facts and move the
are
theories towards a non-ideal perspective.
limitations. The problem with non-ideal
There are at least two reasons why we
theorizing
consider it necessary to follow this course of
constraints is that there is a possibility that in
derived,
physically
e.g.
derived,
under
unfavorable
e.g.
historical
cognitive
or
moral
future scenarios we may come to respect a
14
On this extreme position we could place,
as Farrelly (2007, p.847) does, Cohen’s
approach, who argues in favor of complete
fact-insensivity in deriving normative
principles by stating that “a principle can
reflect or respond to a fact only because it is
also a response to a principle that is not a
response to a fact. To put the same point
differently, principles that reflect facts must,
in order to reflect facts, reflect principles
that don't reflect fact” (Cohen, 2003, p.214).
On the opposite extreme we could place any
normative theory which is fully grounded in
empirical circumstances.
principle derived under constraints which
are no longer valid and would therefore be
15
Farrelly directs his own criticism at liberal
egalitarianism but it can also be applied on
principle to global distributive justice
theories.
16
Rawls states that a normative theory is
“realistically utopian” when it extends what
are ordinarily thought to be limits of
practicable political possibility and, in so
doing, reconciles us to our political and
social condition” (Rawls, 1999, p.11).
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Politikon: IAPSS Political Science Journal
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sub-optimal. However, since we have
4.1. Distribution beneficiaries in Pogge
adopted a transcendental stance we cannot
and Dorsey's approaches
simply argue that at some point in time we
As we mentioned in the introductory part of
will re-evaluate the social arrangements
this paper, our objective is to discuss global
made, because we are ab initio in the position
distributive
to seek perfectly just social arrangements,
perspective of a specific component, namely
which are atemporal. But because bounded
the pattern of distribution prescribed by the
rationality is a physical characteristic of
theories.
individuals we cannot presume that there is a
broadly adopt the following structure:
foreseeable future populated by individuals
citizens
justice
All
theories
distribution
from
the
mechanisms
from
category
with similar physical characteristics, where
X  {x1 , x2 , x3 ,..., xi ,...xn } are
the constraint might be altered, therefore,
institution (or agency) I and the goods
the risk of principles becoming sub-optimal
extracted are being redistributed to citizens
at some point does not exist. The objection
which could be therefore brought against the
first type of constraints, i.e. that they are not
utopian in the Rawlsian sense (Rawls, 1999,
p.14) cannot be brought against the
bounded rationality constraint. Further, as
the assumption of bounded rationality is a
taxed
by
from category Y  { y1 , y2 , y3 ,..., yi ,... yn } 17,
on the basis of a set of conditions
C  {c1 , c2 , c3 ,..., ci ,...cn } .
The
main
objective of a significant part of distributive
justice theories18 is therefore to provide
arguments
justifying
why
a
certain
part of human nature, it is required by a
condition19 from set C
theory which seeks to be realistic even under
determinant factor in the redistribution of
Rawls’ own view (see Rawls, 1999, p.13).
goods
Thus, we conclude the argument by stating
citizens, while also specifying certain other
that the introduction of bounded rationality
aspects such as the trigger and stopping
in theories of global justice is not only
mechanisms for the redistribution (if such
requested by meta-theoretical conceptions in
mechanisms exist), the type of goods to be
line with non-ideal theory, but that it is also
redistributed, the level of goods which are to
required in the original transcendental
be redistributed, etc.
from X -type citizens
must be the
to
Y-type
framework of a Rawlsian realistic utopia.
17
4. Distributions under the assumption of
bounded rationality
In an informal language, we can state that
the X-type citizens are net contributors to
the redistribution while Y-type citizens are
net beneficiaries.
18
Including the approaches of Pogge and
Dorsey.
19
Or a subset of conditions.
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Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
By looking at the two global
distributive justice theories examined here
through this lens we can fix them in a
from an economic standpoint, worse-off.
Thus,
it
can
be
said
yi  xi ,() yi  YP , xi  XP .
that
common framework which we will use in
In Dorsey’s maxificing welfarism, the
the next part in order to more easily explain
distribution condition, which we will term
their shortcomings. The first of these
theories, namely Pogge’s GRD proposal,
states
that
the
rules
governing
the
distributions should be conceived in such a
way so that “the entire GRT scheme has the
maximum possible positive impact on the
world's
poorest
persons
-the
poorest
quintile, say- in the long run” (Pogge, 1994,
p.203). We can notice that this can basically
be understood as the difference principle, i.e.
“social and economic inequalities are to be
arranged so that they are to the greatest
expected benefit of the least advantaged”
c D , radically differs from c P . Dorsey argues
that “the main concern of the government
should be to alleviate poverty for the
greatest number possible” (2005, p.565) and
that “the maximal fulfillment of basic needs,
so that persons can live lives of at least
minimal decency and avoid unnecessary
morbidity and mortality, is the essential
priority
for
just
institutions
in
poor
countries” (2005, p.566), thus c D states that
a distribution is justified when it brings the
maximum number of citizens from YD to a
(Rawls, 1971, p.72), applied on a global scale
level  in which their basic needs are
but focusing solely on economic issues20. In
fulfilled, with YD representing the set of
Pogge’s view, set C consists of a single
condition, let us call it c P , which is that a
citizens which are below level  . Formally,
yi   ,() yi  YP ,   0 .
distribution is justified when it is to the
We can immediately observe two
greatest advantage of citizens from YP ,
major differences between the approaches:
where YP is the set of citizens which are,
1. c D is focused on maximizing the number
of Y-type citizens who will benefit from the
20
Freeman (2007) argues that in fact a global
distributive principle cannot be the Rawlsian
difference principle since the latter is a
political principle which is predicated on the
existence of both a system of property and a
legal system which are common for the
agents to which it applies. In the absence of
such systems, which is characteristic to the
global environment as a whole, Freeman
argues that any principle of distributive
justice cannot be anything more than a
simple reallocation model (2007, p.444).
distribution, while
cP
is focused on
maximizing the benefits of Y-type citizens
and
2.
cD
incorporates
a
stopping
mechanism, i.e. it allows for the possibility
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
that set YD is empty21, while in Pogge’s case
In the subsequent section we seek to
set YP can never be empty22. Thus, Dorsey’s
explore the implications of relaxing these
theory is applicable only if certain prerequisites are met. We can also observe
however, that the approaches are identical
from the following point of view: both
imply23 that the distributing agency I
precisely identifies all Y-type
24
citizens,
meaning both that they do not mistakenly
strong assumptions, which are unrealistic
because they demand a maximal cognitive
capacity
uncharacteristic
for
real-life
individuals, by framing the theories in a
boundedly rational framework and therefore
taking a step in the direction of weakening
the ideal perspective of global distributive
justice theories.
add X -type citizens in set Y and that and
they do not omit any Y-type citizens from
4.2. The role of bounded rationality in
set Y .
Pogge and Dorsey’s distributive patterns
In order to observe if introducing
21
If there are no individuals who fall under
the threshold of basic need fulfillment.
22
In the extreme case in which each
individual holds exactly the same amount of
resources X and Y would be identical and
would contain the entire set of individuals.
23
We maintain that the assumptions are
implied since they are not explicitly
discussed in either case, but since an
exclusion of facts relating to the capacity of
agents to implement normative principles is
customary in political philosophy we take it
that this is also the case here. If our reading
of Pogge and Dorsey’s theories is correct
and they do indeed imply that individuals in
distributive agencies are comprehensively
rational, we will show that in some cases the
introduction of a bounded rationality can
lead to problematic distributions under their
principles. If our reading is incorrect and
they implicitly argue that the theory
generates the same results in a boundedly
rational world as much as in a
comprehensively rational one, we will show
that this view would be erroneous.
24
In some cases the institution which is
responsible for taxation may not be
responsible for the redistribution as well but
we ignore this aspect here as it does not
influence the general result.
the assumption of bounded rationality is
relevant to the prescriptions of Pogge and
Dorsey’s theories we will only discuss a
single form of manifestation of bounded
rationality, namely the capacity of individuals
who are responsible for the decision-making
process in the distributing agency I to
precisely and exhaustively identify the agents
in the group who will benefit from the
distribution (the Y-type citizens). To use
Lipman’s
(1995)
terminology,
we
will
consider that: 1. the inputs are imperfectly
absorbed by the distributing agency, i.e. the
information gathered on the economic
position of citizens is not perfectly accurate
and 2. the process through which individuals
in the agency analyze the inputs is
cognitively constrained, i.e. the agents
evaluating the economic positions of citizens
are susceptible to make mistakes in judging
111
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
the individuals which require a distribution
Y-type citizens, which will peak at the
of goods or the level of goods required25.
positions of Y-type
Thus, we are interested to analyze what the
monotonously decrease as the position of
outputs of the distributive agency would be
the citizens is further from the position of
if they conformed to the normative theories
Y-type citizens, in order to offer a plausible
advanced by Pogge and Dorsey and if they
depiction of reality.
were the result of imperfections in the input
absorption and the decision-making process.
In order to operationalize the outputs we
will argue that the distributing institution
attaches probabilities to the identification of
Y-type
citizens, the deterministic case
(where the institution identifies them with a
probability of 100%) used by Pogge and
Dorsey being reducible to a special case of
citizens and will
For Pogge’s GRD approach we
define a function of the following type:
f :[w, ]  [0, ], f ( x)  ax2  bx  c ,
with w representing the worst-off economic
position26. The probability that I identifies
position xi as the worst-off individual is
then calculated as a percentage through
p ( xi )  100
 f (x )
f ( xi )
n 1
the probabilistic identification. In order to
. But as previously
n
account for a large number of cases we will
stated, in order to ground the theory in
use mathematical functions to determine the
reality as much as possible, we do not
probability of a correct identification of
consider that I assigns equal probabilities for
25
every agent to be in the worst-off position,
Various reasons can be brought in support
of both assumptions. For instance, input
imperfection can be caused by employment
on the black market, tax evasion, gaining
undeclared income, variability in agricultural
production used for subsistence etc., all
these forms of unmonitored economic
activity preventing the state and the
distributive institution from accurately
assessing the economic status of citizens.
Imperfections in the decision-making
process can also have multiple causes, such
as low incentives to perform adequately in
bureaucracies (for the basic idea behind this
assertion see Mueller, 2003, pp.359-385),
incapacity to correctly determine the
incorporation of citizens into the category of
net beneficiaries or net contributors to the
redistribution in certain cases, incapacity to
correctly aggregate the individual cases into
groups targeted for obtaining benefits after
the redistribution, etc.
the input absorption and decision-making
process being imperfect but still useful for
gaining some knowledge regarding genuine
economic conditions. Thus, we consider that
any function f ( x) , defined as above, could
theoretically be used for evaluating the
probability that a individual with an xi
amount of goods is in the worst-off position
if it satisfies the following condition: 1. it
26
w can also represent a quintile not a single
position, as in Pogge’s formulation (1994,
p.203). For reasons of simplicity we will
consider that w is a single point instead of an
interval but the results are not affected by
this interpretation.
112
Politikon: IAPSS Political Science Journal
peaks at w (in mathematical terms
Vol. Nr. 20, June 2013
b
 w)
2a
p ( xi ) with the above mentioned formula.
The functions are built in such a way as to
and 2. it decreases monotonically on the
always assign a higher probability for
entire domain (in mathematical terms
f ( x)  0 ). In Figure 1 we can see some of
identification as the worst-off position to
the shapes which the functions, as restricted
of the position and the probability decreases
by the conditions above, can take.
as the actual level of goods possessed by
individuals who are actually in the proximity
Let us try to explain the reasoning in
individuals
increases.
Further,
we
an informal language. By introducing the
intentionally allow for an entire class of
bounded rationality assumption we consider
functions to be eligible for describing the
that the outputs of the agency which handles
effects of bounded rationality as we cannot
the distribution is susceptible to being
identify a single function that could be
wrong, in the sense that it is possible for the
universally applied precisely because the
Figure 1. Probabilistic functions for
capacity to collect information and the
identifying worst-off positions under a
internal decision-making process varies on a
bounded rationality assumption
case-by-case basis, from state to state and
from agency to agency. Therefore, if we
f(x)
follow Pogge’s example of a society which
(w, f(w))
would distribute one third of their GRD
through the government and two thirds
through other channels such as international
NGOs or UN agencies (Pogge, 1994, p.202),
we could notice that the differences in their
monitoring capacity could for instance lead
O
Source: Authors
agency to distribute goods to some positions
which are not in fact worse-off. The purpose
of these functions are then to attribute
probabilities of obtaining accurate results for
each choice made by I regarding the
distributive patterns, which are afterwards
expressed as a percentage by calculating
x
to a superior probability to accurately
identify worse-off positions in the case of
one of the agencies, either the government
due to their detailed access to economic
records or perhaps, on the contrary, UN
agencies or NGOs due to their superiorly
qualified personnel. In mathematical terms,
the most efficient agency would be the one
with the highest function slope and the one
which minimizes the result of xi  w when
113
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
f ( xi )  0 . A final and essential aspect is that
conditions imposed above. To compute the
the choice of a specific function in the
probabilities with which I would identify
defined set is irrelevant, as the results
each position as being the worst-off we have
obtained will hold if at least one position xi
p ( A)  100
exists that will take values from the
and
codomain (and by assuming that agents are
boundedly rational this should happen in
p ( B)  100
every case), although depending on the
. Therefore, in this situation, the distributive
capacity of the distributive institution to
agency would be susceptible to make a
obtain
mistake in identifying the worst-off positions
accurate
identifications,
the
50
f ( A)
 100
 66.(6
50  25  41
f ( A)  f ( B)  f (C )
25
f ( B)
 100
 33.(3)%
50  25
f ( A)  f ( B)
in one case out of every three. The
importance of the results can vary.
following
probability that they would make the correct
example which will be useful both for a
choice still remains higher than the average
clearer understanding of the way in which
however, but what happens when we
bounded rationality would work in the
introduce additional agents? Let us consider
theory and for an understanding of the
that two more actors are introduced to the
negative effects which it would bring.
citizen set: C, which in reality has 8 units of
Suppose we have a society comprised of
the good and D which has 15 units. First let
only two individuals: A and B. Let us further
us notice that the probability for D to be
consider that A is in the worst-off economic
chosen as the worst-off position is 0 since
Let
us
consider
the
f ( x)
position as he only has an amount of 5 units
would not take values in the
of goods while B has 10 units. Let us also
codomain. C however would be chosen as
consider that the identification of the worst-
the worst-off position with a probability of
p (C )  100
off position can be made by following the
function: f ( x)   x2  10 x  25 ,
f :[w, ]  [0, ] . Since
with
b 10

5
2
2a
41
f (C )
 100
 35.34%
50  25  41
f ( A)  f ( B)  f (C )
,
while
p ( A)  100
50
f ( A)
 100
 43.1%
50  25  41
f ( A)  f ( B)  f (C )
and f ( x)  2 x  10  0,() x [5, ) we
. We can notice therefore that: 1. as the set
notice that the peak of the function is at the
of citizens increases the worst-off positions
worst-off
function
become harder to detect and 2. as more
monotonically decreases on the entire
citizens are placed in the vicinity of the
domain, therefore f ( x) belongs to the class
worst-off
of
positions become harder to detect.
position
functions
which
and
the
satisfy
the
two
position,
the
true
worst-off
114
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
The practical consequences of these
quintiles, which may have severe economic
two conclusions are significant. First of all,
disadvantages as well, but in an extremely
they state that in large societies, as societies
poor society and in a boundedly rational
which are in need of a global distribution of
world it is, as we previously show, very likely
goods usually are, the genuinely worst-off
that in many cases the worst-off positions
positions are very difficult to identify27 and
will be incorrectly identified and because
that concentrating efforts on finding these
there is no distributive mechanism for
positions in order to apply Pogge’s principle
second or third worst-off quintiles, the
may be an enterprise which would not be
poorest members of society will actually be
worthy of the costs. Secondly, the fact that
bereft of any distributed goods.
worst-off positions are more difficult to
Dorsey’s approach requires different
indentify in larger societies means that high
conditions than that of Pogge, since Dorsey
demographic growth rates in poor societies
does not care about worst-off positions, but
will make the identification of individuals in
about those positions which are sufficiently
worse-off positions exponentially harder to
close to the level of minimum basic needs so
identify. Third, the conclusions also imply
that a distribution of goods could bring
that when many citizens in a society are in
them above the respective level. Thus, let us
fact in positions relatively close to those of
define
a
function
the worst-off quintile, it is much more
f :[0, ]  [0, ], f ( x)  ax2  bx  c .
difficult to assess which group should be the
Similarly to the previous case, any function
beneficiary of the distribution. To put it
f ( x) defined in such a way must also satisfy
simply, in extremely poor societies it is very
difficult to find out which groups are the
“poorest” and organize the distributions so
two other conditions in order to generate
realistic probabilities: 1. 1. it peaks at  (in
as to exclusively target their problems. By
mathematical terms
adopting the GRD approach with the
the
b
  ), where  is
2a
purpose of maximizing the benefits of the
worst-off Pogge therefore ignores second
level of goods required for the minimal
worst-off positions, or second worst-off
satisfaction of basic needs and 2. it increases
27
The worst-off position should not be
understood in a narrow way as the position
of a single individual, which would of course
be quasi-impossible to identify (as the final
probability would tend towards 0 even when
the slope of the function would be very
high).
monotonically on [0,  ) and it decreases
monotonically on [ , ) . Let us also
consider that
p ( xi )  100
 f (x )
f ( xi )
n 1
is the
n
probability that the citizen which holds an
115
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
f ( x)   x2  10 x ,
xi amount of goods will be a part of the
f :[0, ]  [0, ] . Since
group benefiting from the distribution. All
the observations made when describing the
role which bounded rationality would play in
Pogge’s prescribed distributive pattern, i.e.
that the purpose of the function is to
faithfully
depict
real
conditions,
that
with
b 10

5
2
2a
and
f ( x)  (2 x  10)  2  0  f ( x) is concave
, f ( x) satisfies the two conditions imposed
for the acceptability of the function.
bounded rationality allows for an entire class
Figure 2. Probabilistic functions for
of functions to be used in evaluating the
identifying
probability that a certain citizens is in
minimum level of basic needs fulfillment
proximity to the level of minimum goods,
under a bounded rationality assumption
depending on the capacity of the distributive
institution
to
accurately
identify
positions
f(x)
closest
to
a
( , f ( ))
the
respective positions and that the choice of
any function which does not perfectly map
every citizen to the exact level of goods held
by them can potentially led to problematic
consequences for the distributive patterns.
We will also consider an example in
order to illustrate this last claim. Let us
O
x
assume that this time we have a society
composed of three citizens: A, B and C,
Source: Authors
Thus we can observe that the
possessing 4, 3 and 2 units of goods
respectively. Let us further consider that the
level of
probabilities attached to the three citizens
are:
minimal decency (i.e. the level where citizens
can fulfill their basic needs) is   5 and
that there are only 3 available goods for
distribution28. Finally, we will consider that
Remember that Dorsey’s approach targets
radical poverty specifically, focusing on
prioritizing the welfare of some citizens (the
citizens who are more likely to achieve a
minimum level of subsistence) over others in
conditions of scarce resources which
p ( A)  100
f ( A)
24
 100
 39.34%
f ( A)  f ( B)  f (C )
24  21  16
p ( B)  100
f ( B)
21
 100
 34.42%
f ( A)  f ( B)  f (C )
24  21  16
,
and
28
prohibit all the citizens to be brought over
the minimum level.
116
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
f (C )
16
 100
 26.22%
p(C )  100
f ( A)  f (B)  f (C ) 24  21 16
.
world, where C would enter the distribution
scheme with 1 in 4 chances, one of the
following 4 scenarios could then be possible:
1. A gets 2 units, C gets 1 unit30. C does not
Keep in mind that in this case, the
get sufficient resources to be raised to 
probabilities also refer to proximity between
and B also fails to be raised to the level.
the citizens and the level of basic needs.
Only A is alleviated from poverty, 2. A gets
Since Dorsey’s distributive principle argues
1 unit, C gets 2 units. The same situation
that we should seek to maximize the number
of citizens which are alleviated from extreme
units, C gets 1 unit. Only B reaches  and
poverty it is natural to consider that the
4. B gets 1 unit, C gets 2 units. B gets 4 units
closer a citizen is to the level of fulfillment
in total (2+2; he is below  ), A gets 4 units
of basic needs, the higher is his chance of
occurs, only A has reached  , 3. B gets 2
in total (3+1; he is below  ), C gets 4 units
being part of the redistributive scheme. In
in total (4+0; he is below  ). Although the
this scenario, C only has about 1 chance in 4
last case is the most striking one as by
to enter the redistribution scheme but let us
following Dorsey’s principle in a boundedly
examine what would happen if that would
rational environment we would arrive at a
indeed be the case. If C gets a part of the 3
situation in which none of the 3 citizens are
units
it
able to reach the level of basic need
automatically means that of the other two
fulfillment, all cases in which the distributive
agents will not become a part of the
agency does not perfectly identify both the
which
will
be
29
distribution mechanism
distributed,
since there is a
agents which have a chance to be raised
scarce amount of resources to be distributed.
above a certain level of decency and the level
In a perfectly rational world, Dorsey’s
of goods required to reach it generates a
principle would prescribe that A should get
sub-optimal result. Since the number of
1 unit and B should get 2 units, thus both A
alternative cases increases exponentially as
and B would be lifted to the level of fulfilling
the number of citizens increases, we can
basic needs. But in a boundedly rational
notice that it would basically be impossible
29
For the sake of simplicity we will assume
that even in a boundedly rational world the
distributing institution has the capacity to
compile reasonably accurate aggregate data
about citizen incomes but that it does not
have the capacity to pinpoint the economic
status of each individual and it cannot
precisely incorporate every individual into
the categories.
to precisely identify all the positions of the
30
Of course it is also possible that within the
distribution mechanism I will incorrectly
assess the positions of A and B and
distribute 2 units to A and only 1 to B which
would also be sub-optimal from Dorsey’s
point of view.
117
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
actors and the level of goods required by
them to be alleviated from poverty.
On a practical note, we consider that
introducing
a
bounded
The results of the paper can be
summarized as follows: the assumption that
individuals in organizations which allocate
rationality
goods on the basis of principles established
assumption in assessing the applicability of
in theories of global distributive justice are
Dorsey’s maxificing welfarism has a much
boundedly
bigger impact than in Pogge’s GRD
distributive patterns. Even if we interpret
approach because of the fact that on top of
bounded rationality only as an incapacity to
the problems outlined when discussing the
obtain full information on the economic
latter theory, which also hold in this case,
situations of citizens and as a cognitive
Dorsey asks that the distributive agencies
limitation in the decision-making process,
arrive at a much more demanding level of
there is a significant chance that the theories
knowledge of each individual in the society
will miss the groups which they target as
as well as the difference between the current
beneficiaries for the distribution. In order to
economic position of every citizens and the
observe
level required for the fulfillment of basic
rationality assumption we analyzed Pogge’s
needs. Further, since Dorsey’s objective is to
GRD theory, as it follows distributive
maximize the number of citizens which
principles common to most cosmopolitan
reach the specified levels of decency, the
theories and Dorsey’s maxificing welfarism,
slightest imperfection in the absorption of
as
inputs or the decision-making process would
consequentialist perspective. We defined a
yield sub-optimal results, either by allocating
probabilistic function which mapped the
supplementary resources to citizens who are
level of available goods for individuals (or
already above the level of decency, by
groups of individuals) to the probability that
wasting resources on citizens who cannot
the distributive agency will correctly identify
reach the level at all or can reach it only
them as members of the group which is a
through a higher distribution of resources
net beneficiary of the distribution or the
than optimal or by not allocating resources
group which is a net contributor. We found
to citizens who are in the proximity of the
that the inaccuracies appearing in the
level of decency but have yet failed to reach
identification of citizens with their true
it.
group (on the basis of the theories) were
it
rational
the
is
effects
predicated
generates
of
on
the
a
distorted
bounded
distinctly
enhanced by three factors: 1. a gently sloping
5. Conclusions and further discussions
probabilistic function (caused directly by
how limited the informational or cognitive
118
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
capacity of the agency is)31, 2. a high number
concentrate exclusively on a certain set of
of citizens, especially if the positions sought
citizens and ignore all others. In nuce, Pogge
for beneficiary status represented a small
maintains that this set should be composed
groups32 and 3. a high accumulation of
of the poorest individuals in a society, and
citizens near the worst-off position in
that individuals who are in other positions
Pogge’s case or under the level where they
(second worst, third worst, etc.) should not
can fulfill their basic needs. The last result is
receive anything. Dorsey maintains that this
the most important, because it suggests that
set should be composed of individuals who
in cases of extreme poverty, which are
have a significant chance to achieve a
paradigmatic cases in which both theories
minimum fulfillment of basic needs and that
must apply33 the probability that the
individuals who have already achieved this
distributive allocations would miss their
minimum or are so poor that they cannot
targets, as specified by the principles is
hope to achieve it should receive nothing. If
considerably high. Further, as we show at
we consider that the agencies which
the end of section 4.2. Dorsey’s theory
distribute goods have the complete capacity
appears
the
to identify individuals in each position the
slightest amount of noise in the process of
categorical distribution is unproblematic. But
allocating the distribution will generate a
if we consider that distributive agencies see
sub-optimal distribution and in some cases
these sets as diffuse and that they can make
can even subvert the theory completely, by
mistakes in allocating resources then we
prescribing a pattern in which not even one
should wonder if we should not forego the
citizen is lifted to a level where they can
widely shared view that principles of justice
fulfill their basic needs.
must distribute goods targeted to only
especially
problematic
as
The first discussion which would
certain groups and perhaps adopt a certain
ensue is therefore the manner in which the
type of proportional distributive principle? The
allocation
be
principle could be constructed so as to give
constructed. Pogge and Dorsey both share
more weight to some individuals than
the view34 that the distribution should
others, but it would not abandon other
mechanisms
should
groups altogether, who may be in an only
31
This is an assumption not a result but it is
also important.
32
Such as Dorsey’s theory would imply.
33
And Dorsey targets specifically these
cases.
34
Which is a commonplace among
philosophers dealing with distributive
justice.
slightly more favorable situation in Pogge’s
theory, or who may be considered too poor
to be eligible for an allocation in Dorsey’s
theory. Although the spatial constraints of
the paper prevent us to further elaborate on
119
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
this issue, a preliminary assessment entitles
analyzing global distributive justice within a
us to argue that at least for Dorsey’s idea of
full framework of organizational theory, not
poverty alleviation for the greatest number, a
just under one assumption alteration as in
proportional allocation would make the
this paper. This type of analysis, whereby we
potential emergence of perverted results
replace
such as 0 poverty alleviation (which is valid
characterizes a normative theory is in our
for Dorsey’s principle under a bounded
view extremely important on its own
rationality assumption) almost impossible.
however, as in many cases, as is the present
Another important discussion would
regard
the
agency
which
should
a
single
assumption
which
one, it shows that the principles prescribed
be
by the theory are heavily reliant on
responsible for the distribution, an issue
unobservable elements which form its
which has already been thoroughly discussed
background36.
in the literature on distributive justice35 and
To conclude, we consider that in this
was briefly alluded to in section 4.2. Taking
paper we have shown that by replacing the
into account the fact that the organization
comprehensive rationality framework with a
responsible for the allocation of resources
boundedly rational one in what concerns the
can distort the prescribed pattern, would it
ability of the agency which handles resource
be better if the distribution was conducted
allocation in global distributive justice
by states toward their own citizens, since
theories we obtain results which can
they have a better capacity to gather inputs
considerably subvert the original intention of
on the economic conditions of their citizens,
the principles. The assertion lacks generality,
or by international organizations due to their
in the sense that it does not say anything
superior expertise in the allocation process?
about every conceivable global distributive
Although we do not directly approach the
justice theory, but for at least two of them,
issue in the current paper, from this point of
i.e. Pogge’s GRD theory and Dorsey’s
view the framing of debates in a boundedly
maxificing welfarism, which we consider
rational assumption could provide fresh
representative since the former belongs to
support in favor of one of the arguments.
Some
other
potential
research
directions which would continue the work
began in the paper could extend the debate
towards the ideal-type of non-ideal theory by
35
See inter alia, Beitz (1979), Tan (2004),
Pogge (2002), Held (2003), Cabrera (2004).
36
For another example of such an analysis
see Volacu (2012), where the author replaces
the maximization assumption in Rawls’
(1971) original position with a satisficient
one and argues that in an environment
defined as such the agents would not choose
the original difference principle but either a
constrained difference principle or a
constrained version of Rae’s (1975) general
advantage principle.
120
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
the mainstream cosmopolitan strand of
Camerer, C. (1998), “Bounded Rationality in
global justice and the latter is a perfect
Individual Decision-Making”, Social
example
Science Working Paper 1029, California
of
a
consequentialist-derived
interpretation of global justice, we believe
Institute of Technology.
that we have managed to prove that the
Cohen, G.A. (2003), “Facts and Principles”,
prescribed distributive patterns are severely
Philosophy & Public Affairs, 31 (3),
problematic. Even if we have not developed
pp.211-245.
a full account of bounded rationality as
Conlisnk,
J.
(1996),
“Why
applied to the full specter of global
Rationality?”,
distributive justice theories, we trust that, at
Literature, 34, pp.669-700.
Journal
Bounded
of
Economic
the minimum, we were able to show that
Dorsey, D. (2005), “Global Justice and the
these types of theories can be inextricably
Limits of Human Rights”, Philosophical
dependent on their assumptions and that
Quarterly, 55 (221), pp.562-581.
there is a need to ground these assumptions
Dworkin,
R.
(2000),
Sovereign
Virtue,
in genuine empirical circumstances, thereby
Cambridge, Harvard University Press,
taking one step further in the direction of
2000.
non-idealizing theories of justice by making
Farrelly, C. (2007), “Justice in Ideal Theory:
A Refutation”, Political Studies, 55,
them more sensible to facts.
pp.844-864.
Freeman, S. (2007), Rawls, Routledge,
Bibliographical references:
Aumann,
R.
(1997),
Bounded
„Rationality
and
Rationality“, Games
and
Economic Behavior, 21, pp.2-14.
Barry, B. (1999), Statism and Nationalism. A
Cosmopolitan
Critique,
New
York
C.,
(1979),
International
Political
Theory
Relations.
Hamlin,
A.,
Stemplowska,
Z.
(2012),
“Theory, Ideal Theory and the Theory
of Ideals”, working paper, available
online
at
http://www.cpsa-
acsp.ca/papers-
University Press, New York.
Beitz,
London.
and
Princeton
University Press, Princeton.
Beitz, C., (2000), “Rawls’s Law of Peoples”,
Ethics, 110 (4), pp. 669-696.
Cabrera, L. (2004), Political Theory of Global
Justice: A Cosmopolitan Case for the World
2010/Hamlin%20and%20Stemplowsk
a.pdf.
Held, D., (2003), Cosmopolitanism: A Defence,
Polity Press, Cambridge.
Jones, B., (1999), “Bounded Rationality”,
Annual Reviews of Political Science, 2,
pp.297-321.
State, Routledge, London.
121
Volacu and Golopenta
A Boundedly Rational Analysis of Global Distributive Justice
Lipman, B. (1995), „Information Processing
Rawls, J. (1993), “The Law of the Peoples”,
and Bounded Rationality: A Survey”,
Critical Inquiry, 20 (1), pp.36-68.
Canadian Journal of Economics, 28 (1),
Rawls, J. (1999), The Law of the Peoples,
pp.42-67.
Harvard University Press, Cambridge.
Lovell, M. (1986), “Tests of the Rational
Reidy, D. (2004), “Rawls on International
Expectations Hypothesis”, American
Justice: A Defense”, Political Theory, 32
Economic Review, 76 (1), pp.110-124.
(3), pp.291-319.
Mollendorf, D. (2002), Cosmopolitan Justice,
Selten,
Westview Press, New York.
R.
(1998),
experimentally
“Features
observed
of
bounded
rationality”, European Economic Review,
Mueller, D.C. (2003), Public Choice (Vol. 3),
Cambridge University Press, New
42, pp. 413-436.
Selten, R. (1999), „What is Bounded
York.
Nagel, T. (2005), “The Problem of Global
Rationality?”, SFB Discussion Paper
Justice”, Philosophy and Public Affairs ,
B-454,
33 (2), pp. 113-147.
http://www.wiwi.uni-
Phillips, M. (1985), “Reflections on the
at:
bonn.de/sfb303/papers/1999/b/bon
nsfb454.pdf.
Transition from Ideal to Non-Ideal
Theory”, Noûs, 19 (4), pp.551-570.
online
Sen, A., (1997), “Maximization and the Act
of Choice”, Econometrica, 65 (4),
Pogge, T. (1994), “An Egalitarian Law of the
Peoples”, Philosophy & Public Affairs,
pp.745-779.
Simmons, A. (2010), “Ideal and Nonideal
23 (3), pp.195-224.
Theory”, Philosophy & Public Affairs,
Pogge, T. (2001), “Priorities of Global
Justice”, Metaphilosophy, 32, pp. 6-24.
38(1), pp.5-36.
Pogge T. (2002), World Poverty and Human
Simon, H., (1955), “A Behavioral Model of
Rights: Cosmopolitan Responsibilities and
Rational Choice”, Quarterly Journal of
Reforms, Polity Press, London.
Economics, 69 (1), pp.99-118.
Rae, D., (1975), “Maximin Justice and an
Alternative
Principle
of
Simon, H. (1976), Administrative Behavior,
Free Press, New York.
General
Advantage”, American Political Science
Simon, H. (1978), “Rationality as Process
and as Product of Thought”, American
Review, 69 (2), pp.630-647.
Economic Review, 68 (2), pp.1-16.
Rawls, J., (1971[1999]), A Theory of Justice
(revised
edition),
Belknap
Cambridge, Massachusetts.
Press,
Tan,
K.-C.
(2004),
Cosmopolitanism,
Nationalism and Patriotism, Cambridge
University Press, Cambridge.
122
Politikon: IAPSS Political Science Journal
Tversky,
A.,
Kahneman,
“Judgment
under
D.
Vol. Nr. 20, June 2013
(1974),
Uncertainty:
Heuristics and Biases”, Science, 185
(4157), pp.1124-1131.
Tversky,
A.,
Kahneman,
D.
(1979),
„Prospect Theory: An Analysis of
Decision Under Risk”, Econometrica, 47
(2), pp.263-292.
Valentini, L. (2012), “Ideal vs. Non-ideal
Theory:
A
Conceptual
Map”,
Philosophy Compass, 7 (9), pp. 654–664.
Volacu, A. (2012), “On the Optimal Choice
Criterion in a Satisficiency-Based
Original Position”, presented at the
Center for Research in Applied
Ethics,
Faculty
of
Philosophy
(University of Bucharest), 19 October
2012.
123
Megha
Criminalizing Rape Within Marriage
Criminalizing Rape Within Marriage: Recasting Indian Rape
Law
MEGHA, University of Delhi, India
Abstract
T
he paper is an attempt to bring marital rape under the purview of legal discourse in India with
substantive equality approach to problematize the existing defined structure of Indian Rape Law.
This paper takes up the challenge to create a legal language on the issue of rape within marriage
which is till now absent from the legal and social scenario. The equal treatment of women before and
under the law within the context of marital rape is critical to ensuring the recognition of women as full
citizens, and ensuring their freedom from violence. This paper examines the following questions: how marital rape
contributes to and results from women‘s inequality; how the discriminatory roots of the historical- cultural rationales
contributes to the exemption of marital rape from the Indian legal system; how the issue of marital rape has been
debated in personal-political scenario from the feminist viewpoint; how equality jurisprudence can support the case
for the legal treatment of marital rape claims. This paper questions the socio-legal passivity about the suppression of
married women; cultivate the knowledge that helps women to generate their own thinking and to apply that in
creating the new subjects, to make the women able to express their disagreements about the consent and to make
them aware of their active sexuality to provide them bodily integrity. The paper is, thus, an attempt to emphasise
the need to transform the prevailing masochistic heterosexual socio- legal matrix. The paper underlines the need to
bring the issue of marital rape in the political sphere by bringing this to the purview of Indian law in both formal
and substantive manner.
Keywords: marital rape, masochistic heterosexuality, personal-political dichotomy, socio-legal
matrix, sexual passivity, substantive equality
Introduction
124
Politikon: IAPSS Political Science Journal
ender inequalities are embedded
within the state structures and
practices and, through the same
dynamic process, gender relations
are also constituted through the state. The
state is strategic in the sense it acts as the
‘main organizer’ of gendered power through
its legislation and policies, and the ways in
which it is implicated in the construction of
the
public/private
distinction.
This
demarcation between public and private life
within a society is an inherently political
process, which reflects and reinforces power
relations of gender and which legitimates
direct and indirect violence against women.
This public / private distinction
established by the state was first interrogated
by radical feminists through the slogan
‘personal is political’ where women are
brought from the confines of ‘private’ realm
to the ‘public’ sphere. The gendering of
sexuality within the private sphere drew
attention to the way the state constructs
‘women’ in terms of their distinction from
men by formulating law and policies which
apply only to them, and also by
differentiating among them. For instance
women have been treated ‘differently’ in law
and government policies categorized as
‘good’ and ‘bad’(prostitutes and housewives),
virgin and non-virgin, married and
unmarried, normal and deviant ( the deviant
constituting the destitute and insane) and so
on. The feminists argue that construction of
“Women” in these ways — both as a unitary
category and as a differentiated one — is
primarily the work of the state. And that is
why violence done to women in the private
sphere cannot be left untouched by the state
and in order to make women free from all
kinds of subordinations state needed to
come up with some affirmative laws. With
such provisions state no longer remains
passive in the private domain. So, to end the
violence in private sphere, state took many
progressive steps like laws against dowry,
domestic violence act, criminalizing rape,
and measures against girls and women
trafficking and so on. At the same time,
however, such interventions still take place
in gendered ways.
G
Vol. Nr. 20, June 2013
The gendered practices of state and
law have been particularly criticized by
radical feminists in the domain of sexual
violence. This is an area where the law and
state still work on the public / private divide
and by blindly adhering to the social norms,
they tend to reinforce such cultural myths
such as women’s passive sexuality and men’s
active sexuality, coital imperative, cultural
sadism and other phallocentric norms and
tend to view through the lenses of such
norms. Geetanjali Gangoli argues that while
purporting to provide justice to raped
women, the legal system tends to reinforce
patterns of heterosexual dominance in which
women are seen as inferior, sexually passive
and within marriage, the sexual property of
their husbands. Feminists argue that the
state constructs the meanings of sexual
violence or even domestic violence done to
women. Many women do not even think
that they have been sexually abused, even
though so much force may have been used
because they were not raped in a way that
can be legally proved. Though women’s
movements have forced the state to
intervene in the domestic sphere in the hope
that it could abolish all kinds of violence and
oppression women face but in reality state
has often used this power to manipulate,
formulate and categorize women’s identity,
in different ways.
One such issue that has been
manipulatively excluded by the state and law
is the issue of marital rape in India which is
not only the product of inequality but
reinforces the grounds for inequality too.
Marital Rape is not a crime in India. A
woman has no legal recourse if she is raped
by her husband. Though this issue remains a
taboo among women, it does not mean that
it doesn’t exist or that it is right. On the
contrary, marital rape is very common in
India but remains hidden behind the iron
curtains of the “sacrosanct” institution of
marriage, which coupled with legal ignorance
on this issue, reinforces the denial of
women’s sexual agency and bodily integrity.
It amounts to women losing their self
respect and identity after marriage as the law
125
Megha
provides no relief to women in case of
marital rape.
Rape is usually defined in terms of
what has done to the victim rather than
establishing a legal relationship between the
perpetrator and the victim. The legal
definition of rape as per the Section 375 of
the Indian Penal Code (IPC), states that a
man commits rape when he engages in
intercourse with a woman, ‘not his wife’, by
force or threat of force, against her will or
without her consent. Marital rape is not
recognized under this definition. This
implies that when a woman marries, as a
wife she loses her right to consent to sexual
relations and the husband on the other hand
acquires an unconditional, unqualified right
of sexual access to her. From the standpoint
of basic human rights, the husband should
not be entitled to have intercourse with his
wife without her consent and irrespective of
her state of health or her valid objections
and a wife must have a right to retract her
consent to cohabitation or intercourse. In
other words, excluding marital rape from the
purview of law amounts to an infringement
of a woman’s fundamental human rights,
equality and justice.
The paper throws light on the
dualistic nature of the state towards the issue
of rape within marriage. For instance, if
domestic violence can become a part of
‘public’ issue despite the fact that it is about
‘private’ domain, then why rape within
marriage is still conceived as the part of the
‘private’ realm and is still excluded from the
legal purview and even social debates. The
paper underlines the need to bring this issue
in the political sphere so that women can
attain complete bodily integrity even in the
private realm. This paper not only abides by
the old feminists slogan of ‘personal is
political’ but also points to other side of this
picture that ‘political is personal’ because
without criminalizing rape within marriage in
‘political’ domain, which includes the state,
law and society, a radical change cannot be
expected at home, that is the ‘personal’
sphere. In this sense both ‘personal’ and
Criminalizing Rape Within Marriage
‘political’ mutually complement each other
and, that is why, the paper emphasizes the
need to understand the issue of rape within
marriage through the engagements between
socio-political and legal understandings and
emphasizes the need to criminalize rape
within marriage to provide women
substantive equality and justice.
Defining Marital Rape
There are very few historical accounts
available on the issue of a wife’s rape. Susan
Brownmiller addressed it, probably for the
first time, in her book, Against Our Will.
According to Brownmiller, “The exemption
from rape prosecutions granted to husbands
who force their wife into acts of sexual
union by physical means is as ancient as the
original definition of criminal rape, which
was synonymous with that quaint phrase of
Biblical origin, ‘unlawful carnal knowledge’
outside the marriage contract, which meant
that it was, by definition, ‘lawful’ so long as
it was obtained within such a contract. Thus,
as the law evolved, the idea that a husband
could be prosecuted for raping his wife was
unthinkable.1 E.H. Russell argues that wife’s
rape should not be seen only as the
extension of violence, but rape in marriage
should rather be seen as being at one end of
a marital sex continuum, with voluntary,
mutually desired and satisfying sex. At the
other end rape like behavior such as coercive
sex (without physical force or threat of
physical force), unwanted sex, sex in which
the wife is totally passive servicing her
husband.2
In some countries, marital rape is a
cognizable offence. In the UN conference in
Beijing in 1995, almost 150 countries
including America, Canada, and Vietnam
admitted marital rape as legal offence. In
these countries either the legislature has
criminalized marital rape or the judiciary has
1
2
Susan, Brownmiller, Against Our Will:
Men, Women and Rape, New York,
Routledge, 1975, p. 380.
D.E.H. Russell, Rape in Marriage, Indiana
University Press, 1982, p. 377.
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Politikon: IAPSS Political Science Journal
played an active role in recognizing it as an
offence. In California, USA, for example
husbands can only be charged with felony or
misdemeanor crime of “spousal rape” if they
use force of threat and if rape is reported
within ninety days.3 In Nepal, the Supreme
Court has declared that husbands who force
their wives to have sex can now be charged
with rape. The May 2002 landmark ruling
was a result of a July 2001 petition filed by
the Forum for Women, Law and
Development (FWLD), a women's rights
organization in Nepal. The court’s judgment
declared that marital sex without a wife's
consent constitutes rape. Drawing upon the
religious texts, which do not condone men
who rape their wives, the court stated that
Hinduism stresses conjugal harmony based
on mutual understanding between husband
and wife.
Vol. Nr. 20, June 2013
humiliating and degrading manner
they resort to sexual violence. While
beating the wife a husband may strip
his wife and force her to disrobe and
then have intercourse. Sometime the
hitting and the punching continue
throughout the sex and that itself
becomes a violent experience.
2.
uses only as much force as necessary
to coerce their wives into sex,
though it is also humiliating and
upsetting, they use less violence and
more
Types of Marital Rape
these
involve
a
3.
Obsessive Rape: In this, husband’s
sexual interests are strange and they
Battering Rape: Many marital rape
use torture and force to force his
victims are battered wives and
wife
violence and terror are an integral
activities.
part
of
experience
their
lives.
physical
and
for
participating
in
such
Women
sexual
violence. Men hit their wives and
after insulting and abusing them in a
3
often,
specifically sexual grievance.
Three kinds of marital rape may be
identified:
1.
Force-Only Rape: In this, husband
They can be charged if they use violence
without force or threat; or if the wife is
incapable of giving consent because of a
mental disorder or a developmental or
physical disability about which they are
cognizant, or if the wife is prevented
from resisting due to intoxicating,
anesthetic or controlled substances
administered by them or with their
knowledge; or if the wife is unconscious
of the nature of the act at the time it
occurred, and this is known to them; or
if intercourse if forced on the wife by
the threat of deporting or incarceration.
Ibid., pp. 377-378.
To put it simply, marital rape refers to
unwanted intercourse by a man with his wife
obtained by force, threat of force, or
physical violence, or when she is unable to
give consent. It is a non-consensual act
where wife’s consent is ignored or ruptured
by a husband and wife is physically and
sexually abused.4 Thus, it becomes important
to explore the dynamics of heterosexuality
that reinforces masculinity and how it
operates to legitimize women’s sexual
oppression within the institution of
marriage.
4
Priyanka Rath, “Marital Rape and the
Indian Legal Scenario”, in Indian Law
Journal, vol. 2, issue 2, 2007.
(http://www.indianjournal.com/ on
12.08.2009).
127
Megha
Feminist
Interrogation
of
Heterosexuality: Pivotal to Legitimizing
Masculinity and Women’s Sexual
Oppression
Post modernist thinking has introduced the
idea of viewing men and women and
divisions between them as discursive
constructs, which opened up heterosexuality
and within this masculinity to interrogation.
Though Mary Wollstonecraft from a liberal
standpoint had first questioned the
normative modes of male sexuality in the
late eighteenth century, two centuries later,
the development of sexology also witnessed
a decline in feminist attention to sexual
politics. In fact, sexology, with its scientific
engagements legitimized the patriarchal
model of sexuality which was found in the
model of heterosexuality naturalizing the
domination of men over women. Through
sexology and its popularization with sex
manuals and essentialisation of penis and
phallus by Freud and Lacan respectively, the
norms of sex were re-casted as immutable
and determined by laws of nature. Such
ideas not only accepted and legitimized male
aggressive behavior as natural but also made
women responsible for their rape within
marriage.
With the emergence of ‘women only’
groups and practice of consciousness raising
among them, feminists coined the slogan
“the personal is political”, that is because
women discovered that many of their
individual problems and anxieties were
shared by others and concluded that these
were not personal but derived from their
social and political situation and within
marriage it is more prominent because
women do not have right to say ‘NO’ to
their husbands for sexual intercourse.
Feminists like Sheila Jaffrey , Mackinnon,
Dwarkin, Russell, Jackson, Kelly, Clark and
Lewis, Burt, Berger and Searles, considered
sexual violence simply as the endpoint on a
continuum of heterosexual interactions
where male aggression and female passivity
are integral to the socially constructed roles
Criminalizing Rape Within Marriage
and forms of coercion are normative5 within
marriage. So the feminist critiques of
heterosexuality took the oppression of
women as their point of departure. Sheila
Jaffrey viewed heterosexuality as pivotal to
women’s oppression.
Stevi Jackson
discussed heterosexuality in terms of both
heteronormativity and heteropatriarchy or
hetero-oppression. In heteronormativity,
heterosexuality is considered as a norm and
any alternative is viewed as ‘other’ or
‘marginal’.6 Alternatively, heterosexuality
leads to the hetero-patriarchy as if that is the
standard norm and women find it very
difficult to get rid of this and ends up being
captured in the male dominated system that
is heterosexual in character.
Within this heterosexual structure
pleasure for sex does not pertain to women’s
desire, but is used to discipline women
according to men’s wishes. Women
discipline their own bodies and pleasure to
suit men, and thus, concede sex as
penetration alone as it is pleasurable for men
and it is assumed that penetration is
pleasurable for women as well. With this
perspective sex within marriage is always
5
6
Lynne Segal is of the view that to
generalize heterosexual relationship as
the foundation of rape and sexual
violence actually devalues the trauma of
the rape victim. See, Lynne Segal,
“Feminist Sexual Politics and the
Heterosexual Predicament” in L. Segal
(ed.), New Sexual Agendas, Basingstoke,
Macmillan, 1997, pp. 36-37); and, Susan
Estrich argued that radical feminists
arguments are trying to prohibit all sex.
See, Susan Estrich Real Rape, MA,
Harward University Press, 1987, p. 82.
Stevi Jackson, “Heterosexuality,
Heteronormitivity and Gender
Hierarchy: Some Reflections on Recent
Debates” in Jaffrey Weeks, Janet
Holland and Matthew Waites (eds.),
Sexualities and Societies: A Reader,
Cambridge, Polity Press, 2003, pp. 7173.
128
Politikon: IAPSS Political Science Journal
regarded pleasurable for women, which
makes it unquestionable.
It is interesting to note that some
feminists have also strongly defended
heterosexual eroticism. Lynne Segal, for
instance, is aware of inequalities in
heterosexual relations but this, according to
her, is ‘incidental’, and she argues that
heterosexual relations (consensual sex) could
generate equality at a broader level and even
sexual passion is capable of transforming,
even dissolving gender because all
oppressive dichotomies slide away in a
sexual act.7 On the other hand, for Wendy
Hallway penetrative sex is not about
oppression or subjugation but about feeling
somebody’s love inside the body.8 Such an
understanding of heterosexuality accords
higher priority to penetration and is not able
to see politics of hegemonic masculinity
behind sexual acts. In fact, heterosexuality is
understood as penetration by man, while
some scholars also view it in terms of
invasion and colonization of women’s
bodies. An alternative reading of this
phenomenon is offered by Carol Smart who
suggests discouraging penetration from
heterosexuality so that penetration’s
privilege place, resulting in masochistic sex,
as an essential heterosexual act can be
challenged and we can move towards post
heterosexual desire.9
Radical feminists, on the other hand,
understand heterosexuality in context of
gender. Heterosexuality is not a monolithic
but a complex of institution, identity,
7
8
9
Lynne Segal, “Feminist Sexual Politics
and the Heterosexual Predicament” in L.
Segal (ed.), New Sexual Agendas,
Basingstoke, Macmillan, 1997, p. 86.
Wendy Hallway, “Theorizing
Heterosexuality: A Response”, Feminism
and Psychology, London, Sage, 1993, pp.
413-414.
Carol Smart, “Desperately Seeking Post
Heterosexual Woman”, in Janet Holland
and Lisa Adkins (ed.), Sex, Sensibility and
the Gendered Body, Basingstoke,
Macmillan, 1996, p. 236.
Vol. Nr. 20, June 2013
experience and practice — all of which
intersect with gender, which in turn, is
sustained at a variety of levels.
Heterosexuality in its gendered form creates
a hierarchical platform that gives privilege to
masculinity over feminity.10 Tamsin Wilson
further
argues
that
gender
and
heterosexuality are mutually constituted to
the
extent
that
heterosexuality
institutionalizes subordination of women
and puts forth the concept of heteropolarity
— the socially constructed difference that
positions
men
and
women
as
complementary opposites — which is crucial
for maintenance of heterosexuality11 and
masculinity resulted from this.
Women’s identity is determined within
heterosexual relations as a wife, girlfriend,
daughter or mother. Association with these
identities affects the ways in which, women
experience the institution and practice of
heterosexuality. In sexual terms too, her
identity is shaped by heterosexual
imperatives — the need to attract and please
a man. This is heterosexuality that produces
conventional feminine identities in which
women’s self worth is assumed in her desire
to be sexually attractive that is closely bound
up with the gendered disciplinary practices
through which docile female bodies and
masculine imperatives are produced.12
There are indeed a host of everyday
practices through which the social
technologies of gender produce men and
women as gendered subjects. Drawing upon
the Foucault and Althusser’s notions of
interpellation Butler deploys the concept of
interpellation to explain how particular kinds
of identities are produced. Such discursive
power not only constructs our minds, but our
10
11
12
Jackson, op. cit., 2003, p. 78.
T. Wilson, “Which One’s the Man? The
Heterosexualisation of Lesbian Sex”, in
D. Richardson (ed.), Theorizing
Heterosexuality: Telling in Strength,
Buckingham, Open University Press,
1996, p. 126.
S.L. Bartky, Feminity and Domination, New
York, Routledge, 1990.
129
Megha
whole beings, including our bodies, because
discourses, “actually live in bodies”.13 This
notion of reiteration of interpellation can well
be understood in the context of sexual
practice within marriage that helps to
understand how the physical bodies function
according to the practices of normative
heterosexuality.
Such
practices
of
heterosexuality determine our physical
experiences of sex and their discourses
implicitly constitute subjectivity and positions
us in particular ways. Women are, for
instance, trapped in the passive feminity
within marriage which is accepted as a
‘natural’ phenomenon without realizing that
she has been forced in this social and cultural
web of subjugation. She cannot even
recognize and resist male sexual drive
discourse and the coital imperative14 which
function together to ensure that penis vagina
penetration becomes a necessary part of a
“real” sex for heterosexuals that is precisely
why rape within marriage is always
considered as something which even does not
exist.
The paper draws upon three
dominant discourses of heterosexuality
outlined by Wendy Hallway that provide a
cultural foundation on which heterosexual
relations are organized and by which
masculinity is normalized within marriage.
First, male sexuality is pervasively influenced
by a “male sexual drive discourse” that
produces masculinity. It holds that the drive
or need to have sex is uncontrollable for
men and this overwhelming drive is natural,
and thus a man can go to great lengths to
satisfy this need which is justifiable within
13
14
Judith Butler, Bodies that Matter: On
Discursive Limits of “Sex”, London,
Routledge, 1993, pp. 35-38.
Male sexual drive discourse holds that
the desire or the need to have sex is a
strong drive that exists in all healthy
normal men. Coital imperative is used to
advance the idea that heterosex is about
penetrating vagina by penis. It is
considered to be uncommon to exclude
coitus from heterosex.
Criminalizing Rape Within Marriage
marriage because it is considered normal to
play their sexual drive on their wives even in
violent ways. Second, a “have / hold
discourse” has played an important role in
shaping women’s sexuality in relation to men
within marriage. Women’s sexuality is
considered asexual, and must be viewed
within the parameters of a monogamous
heterosexual relationship, for producing
children. Some also consider a woman’s
sexuality as dangerous and, always in need of
control.15
In both these discourses, men are
seen as the subject and women as objects of
a sexual discourse. Husbands are considered
as always ready for sex and it is assumed that
it is one of the wife’s duty to arouse this
interest. A heterosexual matrix makes it very
difficult for women to step outside this
discourse. When a woman is not considered
sexual or attractive she is often labeled as
“ball-breaking”, “a cock teaser”, “frigid”, “a
cold bitch’ or “uptight” and if woman
doesn’t show her interest in sexual acts with
her partner, she herself enters a discursive
space riddled with pejorative and potentially
punitive consequence.16 Third pertains to a
“permissive discourse” in which women are
portrayed as sexual as men. However, it does
not have a libratory context but deploys
hidden components of double standard and
gender inequality in sexuality. Characterizing
it as “pseudo liberation”, Segal points to
pornography reaching its higher peak, where
women’s bodies were not only subjugated
but this subjugation got a platform to be
enjoyed.17 For many feminists, this new
equalization of woman was a conduit of
misogynist fantasy.
In fact, the phenomenon of
heterosexuality cannot be seen as an
15
16
17
Wendy Hallway, Subjectivity and Method in
Psychology: Gender, Meaning and Science,
London, Sage, 1989.
Nicola Gavey, Just Sex: The Cultural
Scaffolding of Rape, London, Routledge,
2005, p. 105.
Segal (1983), op.cit., p. 30.
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Politikon: IAPSS Political Science Journal
individual preference, as something into
which people either drift or are fixed as a
result of psychological processes in
childhood but rather as a socially
constructed institution18 which hegemonise
masculinity. Radical feminists emphasize
that masculinity should not be taken for
granted as a norm but its prevalence needs
to be explained.
Masculinity, feminists argue, is the
most important base of patriarchy. In a
heterosexual
relationship,
women
emotionally, materially and sexually service
men and owing to their masculine
upbringing, men are in a dominant position
at home as well as in the public domain.
Adrienne Rich further argues that women
are bound to heterosexuality, which has
been imposed on them as compulsory. That
is perhaps why she has coined the term of
“compulsory heterosexuality”.19 Drawing
upon Rich’s work the paper articulates the
term “compulsory masculinity” because this
is masculinity which is imposed on women’s
mind and body with in heterosexual
relations which is the root of masculine
imperative of marriage. Rich elaborates
different spheres through which it works
and male power is perpetuated. Women’s
denial of their own sexuality by means of
clitoridectomy and infilbulation20 chastity
18
19
20
Even Freud considered that all people
are originally bisexual, but become
heterosexual during the normal path of
development.
Adrienne Rich, “Compulsory
Heterosexuality and Lesbian Existence”
in Ken Plummer (ed.), Sexualities: Critical
Concepts in Sociology, London, Routledge,
2002.
Clitoridectomy refers the partial or
complete removal of a woman’s clitoris.
As a result, after undergoing a
clitoridectomy, most women can no
longer function sexually. However, due
to cultural beliefs in certain parts of the
world, the procedure is a common rite
of passage that marks a girl’s transition
into womanhood. It is believed that by
removing the clitoris women are
Vol. Nr. 20, June 2013
belts, denial of lesbian existence and clitoris;
imposition of male sexuality upon women
by rape within marriage, wife beating, incest,
the socialization of heterosexual romance in
everyday life, psychoanalytic doctrines of
frigidity and vaginal organism, pornographic
depictions of women responding pleasurably
to sexual violence and humiliation, are all
different meanings which make up the
ideology of sadistic masculinity being
normal. Masculinity is, thus, forced on
women and violative aspect of masculinity is
considered normal by women themselves
within marriage.21
Kathleen Barry also argues that this
compulsory heterosexuality resulted into
essentialist masculinity legitimizes all kinds
of enforced conditions under which women
live subject to men such as in prostitution,
marital rape, father-daughter and brothersister incest, pornography, bride price, the
selling of the daughter, purdah and genital
mutilation. Rape within marriage is a vicious
circle that leads to the rationalization and
acceptance of other forms of enslavement,
where the woman is presumed to have
chosen her fate to embrace it passively.22
Characterizing such conditions as that of
women’s sexual slavery, she argues that it is
present in all situations where women or
girls cannot change their given conditions,
or, are subject to sexual violence and
exploitation and marriage is such an
institution where she finds herself stuck in.
In this heterosexual matrix, the conquering
male sex drive is pervasive and the penis has
a life of its own, which not only justifies
21
22
prevented from engaging in premarital
sex. This, procedure is often
accompanied by infilbulation, or the
stitching together of the vulva. This is
usually done following the removal of
the clitoris, when the woman’s labia
major is sewn together, leaving an
opening small enough for only urine and
menstrual blood to pass through.
Rich, op. cit., pp. 104-105.
Kathleen Barry, Female Sexual Slavery,
New York, New York University Press,
1979, p. 33.
131
Megha
sexual slavery but has become the norm and
rationale for adult male sexual behavior – a
condition of arrested sexual development.23
Women learn to accept the inevitability of
this drive as natural. In heterosexuality, the
problem does not lie in ‘hetero’ per se, but
in the way, it is practiced, which is masculine
in nature. Masculinity is the problem and a
feminist understanding renders it as a
socially constructed phenomenon.
Janet Holland, for instance, points out
that heterosexuality is not about putting
masculinity and feminity in opposition, but it
is about masculinity primarily because
feminity simply does not exist or, does not
play an active role in heterosexuality. With
her notion of the “The Male in the Head”,
she emphasizes that it is a kind of
surveillance power of a “Male dominated
and institutionalized heterosexuality” which
has in its base Foucauladian notion of
panoptican model that produces surveillance
power to regulate the acts of the people24 In
heterosexual matrix, there is no room for
women’s pleasure and desire since women
are a sexual object, they are considered as a
natural sexual prey to men within marriage
and it is assumed that women love it.
Sexuality and violence are considered
congruent, so that for women sex is
essentially
masochistic,
humiliation
pleasurable and physical abuse erotic. In
other words, enforced submission and use
of cruelty are taken as sexually “normal”
within marriage. Mackinnon points out that
in a heterosexual relationship where male is
supreme, the notion of consent within
marriage has no meaning because sex is
always violent. In this sense in marriage
men’s violent nature is taken as normal and
women’s screaming is considered as a
symbol of pleasure. For Mackinnon too, the
institution of heterosexuality has admitted
force on women by men in normal sexual
encounters. This idea has made force or
violence an integral part of sex within
marriage. It is assumed if force has not been
23
24
Ibid., p. 140.
Gavey, op. cit., p. 112.
Criminalizing Rape Within Marriage
used during sex then the wife would not
understand him masculine enough.25
A close association between male
sexuality, power and violence is
constructed as a biological necessity and
therefore, inevitable and, at the same time,
there is a connection between female
sexual pleasure and pain. Ellis argues that
women instinctly enjoy roughness,
violence, pain and danger and in this way
women enjoy their subjugation26 within
marriage. On the other hand, the
masculine tendency is to enjoy giving this
pain and violence, and thus, men enjoy
dominating women. A. Marro corroborates
this viewpoint and emphasizes the force as
the foundation of male sexuality and it is
also a quality in men wanted by women.
That is how, the aggressiveness in
masculinity and submissiveness in feminity
stands naturalized. 27 MacKinnon further
states that inequality is always covertly or
overtly inclined into the social conceptions
of male and female sexuality of masculinity
and feminity and of sexiness and
heterosexual attractiveness. In this way,
sexual intercourse within marriage normally
occurs between un-equals. The nature and
pressure of heterosexual force actually
amounts
to
eroticized
women’s
subordination.
John Archer defines masculinity in terms of
power and argues that men who internalize
masculine role attributes and values,
perpetuates a proclivity towards sexual
25
26
27
C.A. Mackinnon, Feminism Unmodified:
Discourses on Life and Law, London,
Harvard University Press, 1987, p. 92.
H. Ellis, Studies in the Psychology of Sex, 3rd
edition, London, William Heinemann,
1948, pp. 3, 32, 95.
Ellis also argues that only to a certain
limits a woman really enjoys the pain,
discomfort or subjection to which she
submits but she has not clarified who
will decide the parameters of these
aggression and pain. In this way she has
not considered for the active ground for
women in heterosexual sex.
132
Politikon: IAPSS Political Science Journal
aggression. Coercive strategies are used by
men to obtain sex which has its basis in
adversarial attitude to women who are
viewed largely in terms of sexual
gratification.28 Men’s masculinity is assured
through his categorization as Macho male
whose sense of self worth is bolstered by the
pursuit of dominance and exploitation of the
opposite sex. This masochism is very much
engrained in the state apparatuses and Indian
legal system that it naturalizes rape within
marriage
and
leaves
wife’s
body
unquestionable when it comes on terms with
husband’s context.
Legal and Statutory Discourse on
Marital Rape
In India marital rape exists de facto but not
de jure. According to legal definition of rape,
as described in Section 375 of the Indian
Penal Code, if a man has a sexual intercourse
with his wife who is not below fifteen, it is
not rape. So, a marital rape cannot occur by
definition in the case of sexual intercourse
between husband and wife, in which a
possibility that a man can use force to have
sexual intercourse with her is, thus, in the
realm of juridical nullity. Section 375 and
376 of the IPC, therefore continues to
remain a site of struggle which do not accept
that all rape is rape even if it is not by a
stranger. Law still follows the binary system
of logic that is thinking in the oppositional
terms
of
active/passive,
truth/lie,
rationality/emotionality, man/woman, in
which the female is always subordinate to
the male.
Our Constitution guarantees equality
to both men and women. However noncriminalization of marital rape violates all
fundamental rights guaranteed to its women
citizens. Article 14 ensures equality before
law and Article 19 guarantees the right to
freedom to every citizen but the wife is
excluded from their purview. Laws do not
consider wife as a person or a citizen but
merely as an object, a property of her
28
John Archer, “Male Violence in
Perspective” in John Archer (ed.), Male
Violence, New York, Routledge, 1994, pp.
3, 8.
Vol. Nr. 20, June 2013
husband to use, abuse and violate as and
when he desires. The exemption of marital
rape from Section 375 and Section 376A of
the IPC shows that the laws are not only
blind, but it’s also patriarchal in nature.
According to the rape law, rape is a sexual
intercourse with a female not his wife
without her consent. This gave David
Finkellor and Kersti Yllo an understanding
that “the marriage license can indeed be
called a ‘license to rape’.”29
In the dictionary of judicial grammar
the law has defined two circumstances – the
first in which rape cannot occur by
definition and the second where no judicial
verification is required for establishing
consent. The first holds true in cases of
sexual intercourse between a man and his
wife, where latter’s consent is taken for
granted. The second is the case of a girl
below the age of 15 in which case only the
fact of intercourse is sufficient to establish
the offence of rape.30
The idea of marital rape is associated
with two categories wherein law recognizes
rape based on the age of consent decided by
the state through its Age Of Consent Act.
Age of consent is about the age at which a
girl can give her consent to marriage. Second
category is about the will of the married
29
30
David Finkelhor and Kersfi Yllo, License
to Rape: Sexual Abuse of Wives, New York,
The Free Press, 1985, p. 2.
An analysis of Section 375 and 376
proves that Indian law is bounded with
patriarchal ideology, if we look into three
positions regarding the wife. (a) below
the age of 12 (b) between the age of 12
and 15 years (c) not below the age of 15.
In the first and second circumstances
severe punishment is prescribed. In
contrast to it, in the third instance, by
virtue of the exception clause to Section
375, forcible sexual intercourse with a
wife above 15 years is not considered to
be rape at all. See, Nidhi Tondan and
Nisha Oberoi, “Marital Rape: A
Question of Redefinition”, in Lawyers
Collective, March, 2000, p. 24.
133
Megha
women, where the law has not recognized
rape within marriage. According to law, if a
woman is legally married (in the context of
age) then she does not have any right to say
no to her husband for sexual intercourse.
The following section discusses their
implications in detail.
Age of Consent Controversy: Where is the Will of
Women?
Age of consent controversy is directly linked
to the issue of marital rape, because the
whole discourse of Age of Consent Act
(1860, 1891, and 1927) evolved as a result of
occurrence of marital rape. The inclusion of
marital rape was first recommended by J.C.
Thomas, a member of the law commission
of 1846, who argued that because of the
prevalence of child marriage in India, it was
necessary to include married and unmarried
girls in the ‘age of consent clause’ of the
Indian Penal Code. In view of the growing
abuse of child wives, colonial government
decided to include Thomas’s suggestion in
the 5th clause (in the exception) to Section
375 of the Indian Penal Code. Some Hindu
reformers such as Brahmo reformer A.K.
Dutt,
and
Pandit
Ishwarachandra
Vidyasagar, also supported inclusion of
married girls in the age of consent clause in
1860 Penal Code. The nine years age of
consent as proposed by Thomas, was raised
to ten for both married and unmarried girls.
There was hardly any resistance against this
change and it was prominently accepted in
India.31 It became a controversial issue when
the Native Marriage Act III of 1872 sought
to introduce extremely radical provisions
prohibiting polygamy, legalizing divorce and
setting up a fairly high minimum age of
marriage.
After this the 1891 Age of Consent Act,
came into existence which was brought after
two drastic incidents. Legally, the demand
for consent legislation was reinforced by two
31
Mrinalini Sinha, Colonial Masculinity: The
Manly Englishman and the Effeminate
Bengali, Manchester, Manchester
University Press, 1995, p. 162.
Criminalizing Rape Within Marriage
court cases that considered different aspects
of the child marriage. The first was
‘Rukhmabai case’ and the second
‘Phulmonee Dasi’ case. Rukhmabai case
offered a famous example of imposing the
oppressive and aggressive nature of Hindu
patriarchal traditions of Hinduism on
women doing “her duty”. This case was
fought under restitution of conjugal rights
and indirectly became the issue of the
consent or the age of consent.32
In 1884, Rukhmabai’s husband Dadaji
Bhikaji filed a suit for restitution of conjugal
rights over Rukhmabai. She had refused to
live with her husband on many grounds such
as his poverty, uneducated status,
consumptive nature and more importantly,
her lack of consent to the marriage when she
was only eleven years old and, was not
eligible to give her consent for that marriage,
and the fact that it had not been
consummated. But all these claims were in
vain because the court decided against
Rukhmabai and ordered her to go back and
live with her husband Dadaji, or if she didn’t
follow the law, she will face imprisonment.
Rukhmabai was ready to undergo
imprisonment rather than live with her
husband. Ironically by enforcing restitution
of conjugal rights Britishers actually
perpetuated child marriages, as in this case
Rukhmabai was forced to go back to her
husband
to
consummate
the
33
marriage. Hindus were satisfied because the
32
33
Certain provisions of Section 260, Code
of Civil Procedure 1882, introduced by
colonial law, related to the execution of
decrees for the restitution of conjugal
rights and suit for the recovery of a wife.
By this law husbands could use threats
of imprisonment to force their reluctant
wives to live with them.
Sudhir Chandra, “Whose Laws: Notes
on 19th Century Hindu Case of Conjugal
Rights”, in Vasudha Dalmia and Hvon
Stitencron (ed.), Representing Hinduism:
The Constitution of Religious Tradition and
National Identity, New Delhi, Sage, 1995,
pp. 155, 167.
134
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
fear of imprisonment, it was argued, would
make many young wives return to their
husband’s home and live a happy life.34
Phulmonee. The law preserved the custom,
and protected male’s right to enjoy an
infantile female body.37
It is significant to note that orthodox
Hindus who had always opposed any
interference by colonial rule in their personal
laws favoured the colonial law in
Rukhmabai’s case because that law helped in
strengthening patriarchy. In other words,
they didn’t shy away from supporting the
colonial rule if it led to the curtailment of
women’s rights.35 It was Malabari who
refused to consider marriage between Dadaji
and Rukhmabai as a valid marriage. Raising
the issue of consent, he insisted that since in
Rukhmabai’s marriage her consent was
absent, so marriage could not be considered
as valid.36
These two cases highlighted the
disastrous consequences of child marriage
beginning from lack of choice and
compatibility, leading to unhappiness in the
bride’s life and premature consummation
resulting in tragic death of the bride. That is
how a reformer started campaigning against
child marriage or sexual abuse of a girl child
within marriage. Efforts of Malabari and
these cases reinforced Sir Andrew Scoble’s
resolve to amend Section 375 of the Indian
Penal Code. Scoble drafted the Bill which
was introduced by the Viceroy of India,
Lord Landsdowne, into the Supreme
Legislative Council on January 9, 1891. The
age of consent was raised to twelve years in
the case of both married and unmarried girls
but in the case of married girls the offence
by the husband was made non-cognizable
and the law would apply all religious
communities. After a well reasoned debates
and wise speeches the Age of consent Act
was passed on March 19, 1891.38 This Age of
Consent Act of 1891 created a hue
throughout India, resulting in sharp
divisions between Revivalists and Reformists
opposing the bill and favouring it.39
The case of Phulmonee was
even more important because it not only
divided the society into two ideologies—
Revivalists and Reformists, but also shook
the patriarchal foundations of the Indian
society. In 1890, Phulmonee, a girl of about
ten or eleven years of age was raped to death
by her 35 years old husband Hari Maiti, but
he was not charged with the rape as it was
claimed that Phulmonee had been within the
statutory age limit of ten. The judges were
forbidden to go beyond the established law:
“Neither judges nor juries have any right to
do for themselves what the law has not
done.” The Phulmonee’s mother, aunt and
grandmother’s arguments that the marriage
had never been consummated earlier, and
that Hari Maiti had forced himself on their
daughter were ignored. The court believed
that the couple had slept together earlier and
for them the fact that Phulmonee gained the
age of ten was sufficient to give benefit of
doubt to Hairi Maiti. Tanika Sarkar explains
that then main concern was the exoneration
of man, rather than the horrible death of
34
35
36
Charu Gupta, Sexuality, Obscenity,
Community: Women, Muslims and the Hindu
Public in Colonial India, New Delhi,
Permanent Black, 2001, pp. 129-130.
Ibid., p. 130.
Chandra, op. cit., p. 169.
The whole debate centered around
two contrasting notions of subjection: the
37
38
39
Tanika Sarkar, Hindu Wife, Hindu Nation:
Community, Religion, and Cultural
Nationalism, New Delhi, Permanent
Black, 2001, p. 212.
Meera Kosambi, “Girl Brides and SocioLegal Change: Age of Consent Bill
(1891) Controversy”, in Economic and
Political Weekly, vol. 26, no. 31-32, 3-10
Aug, 1991, p. 1859.
Kosambi has a different opinion on this,
she has searched for another strand
between revivalists and reformists and
that was reactionists. According to her
the fight was not between Reformists
and Revivalists, but between reactionists
and reformists. She clubs together the
revivalists with reactionists.
135
Megha
colonized Hindu male, denoting the forced
surrender and real dispossession of the male,
and the apparently subordinated Hindu wife
at home. Such juxtaposition between the
husband and wife and former’s conjugal
rights remained at the centre stage of
debates on domination and subordination;
and subjection and resistance.
Revivalists could not bear the
interference of colonial rule in the private
sphere — the only place where they could
exercise their power and turned it into a test
of their manhood by criticizing Bill on
accounts of rituals, ethics and rites.40 They
argued, for instance, that this Bill would
violate the garbhadan ritual because it had
raised the minimum age for a girl’s marriage
to twelve and, if she menstruates before this
age, as it happens with thousands of girls,
these girls will have impure garbhas and their
children would be impure as they won’t be
able to offer ‘pindas’. Consequently, this
would destroy the Hindu community and
principle of Hindu domesticity.41
The nationalists also projected the entire
issue especially as a test of the reformer’s
masculinity. Gangadhar Tilak claimed that
reformers were not masculine because of
their inability to control their own
household or to protect their daughters or
that they are asking the colonial government
to have watch over their private family
matters. The support for the Bill was
interpreted as support for the government,
which in turn, was linked to the effeminacy
of reformists.42
The British government which
imposed the Bill also had their political
motives behind these reforms. They allowed
them to intervene into the daily social and
cultural lives of Indians. Britishers wanted to
create ideological hegemony to seek
Criminalizing Rape Within Marriage
legitimacy of their rule.43 Their government
made no changes in the existing patriarchal
structure. The British secretary to the public
health society wrote to the government of
Bengal:
Council directs one to lay
special stress upon the
point... that they base no
charge against the native
community.... The council
admits that our national
fellow’s subjects must be
allowed the fullest possible
freedom in deciding when
their children should be
ceremonially married. That,
in the constitution of Hindu
society, is a matter with
which no government could
meddle and no government
ought to meddle. 44
So, the colonial rule had a dualistic nature, in
that, they favoured social reforms but
wanted to sustain the patriarchal approach.
Reformists were also not much
different. They did not favour conviction of
husband on the charge of marital rape, but
argued that the crime of a sexual intercourse
between a husband and wife should be
recognized as ‘criminal assault’ and not
rape.45 Their concern was not to protect the
child wives from harm but to save men from
the punishment. Their rejection of child
marriage was also born out of the need for
maintaining
good
and
healthy
nationhood.46 The word ‘consent’ itself was
used in the reference of a girl’s ‘body’ but
not her ‘will’. Medical and legal experts,
reformists and nationalists all associated
consent with a certain physical capacity
when a girl could sustain intercourse without
much damage. The girl could get the
43
40
41
42
Sarkar, op. cit., pp. 197-198.
Ibid., p. 224; Sinha, op. cit., p. 148.
Sarkar, op. cit., p. 159.
44
45
46
Himani Bannerji, Inventing Subjects: Studies
in Hegemony, Patriarchy and Colonialism,
India, Tulika, 2001, pp. 72-75.
Sarkar, op. cit., p. 239.
Sinha, op. cit., p. 162.
Sarkar, op. cit., p. 238.
136
Politikon: IAPSS Political Science Journal
security by law only till the age of twelve. So
it was her body not the will of the girl that
signified consent.47
Finally it may be concluded that
reformists and revivalists both had a
patriarchal approach. The concept of the
self rule in the domestic sphere was bound
with the sacrifice of the physical safety or
the body of Hindu girl or her life, as might
be necessary.48 This sacrifice could bring
autonomy for the Hindu male or Hindu
community.49 Both reformist and revivalists
didn’t break patriarchal matrix.50
In 1927, Harbilas Sarda mooted the
idea that the consent of the child wife was
not enough, but it was necessary to fix a
minimum age for marriage. The issue was
hotly debated in the legislative assembly.
And, an Age Of Consent Committee was set
up that submitted its reports and evidence
from various provinces. The report revealed
that there were many cases of infringement
of the law of consent but very few came
before the courts.51 The Bill, which was
named Sarda Act, was finally passed in 1929,
fixed the minimum age of marriage at 14.
Revivalists launched an agitation but this
time, there was an organized response by
women’s organization, All India Women’s
Commission (AIWC) that took a lead in
mobilizing support. However, in practice it
proved to be a dead letter and was not able
to stop child marriages throughout the
province.
Reports
received
from
commissioners and district officers of Uttar
Pradesh on the implementation of this act
47
48
49
50
51
Ibid., p. 243.
Cultural nationalists made a comparison
between Phulmonee’s death and death
of Indian culture. Their motive to keep
the culture alive or superior made her
death insignificant. They argued that the
death of an ordinary girl Phulmonee
Dasee can’t be recognized at the cost of
the death of the culture. See, Sarkar, op.
cit., p. 236.
Ibid., p. 18.
Kosambi, op. cit., p. 1860.
Gupta, op. cit., p. 136-137.
Vol. Nr. 20, June 2013
revealed that most were not aware of it or
thought it could be disregarded. Still, this
Act was a victory for the women’s
movement 52
The whole debate on the age of
consent controversy brought the women’s
body under the scrutiny of the debate
between the reformists and the revivalists.
Thus, women’s body was at the centre
stage and her will was ignored. The whole
historical debate highlights the fact that it
was the state that enforced marital rape. In
the contemporary period too, the state and
law have become instruments for
enforcing marital rape. This aspect has
been addressed in the following section.
Law and State: An Instrument Enforcing Marital
Rape
The foundation of the legal justification for
the marital rape exception was expounded in
the famous declaration made by Sir Matthew
Hale: C.J. in 17th Century England, Hale
Wrote: - “The husband cannot be guilty of
rape committed by himself upon his lawful
wife, for by their mutual matrimonial
contract, the wife hath given up herself in
this kind unto the husband, which she
cannot retract”.53 Under Lord Macauly,
when the first Indian Law Commission,
drafted the Indian Penal Code in 1837, it
followed the same law by declaring that
“sexual intercourse by a man with his own
wife is in no case rape”.54 This established
the notion that once a woman is married,
she doesn’t have the right to refuse sex with
her husband. This allows husband’s rights of
sexual access over their wives in direct
contravention of the principles of human
rights and provides husbands with a “license
to rape” their wives.55
52
53
54
55
Ibid., p. 138.
Sinha, op. cit., p. 161.
Ibid.
Saurabh Mishra and Sarvesh Singh,
“Marital Rape: Myth, Reality and Need
for Criminalization”, PL WebJour 12,
2003. (http://www.ebc137
Megha
The tensions between judicial
grammar and judicial verification may
restrict a husband from inflicting grievous
bodily harm to his wife during sexual
intercourse but in the realm of judicial
grammar, this cannot be classified as rape.
On the other hand if a girl is below 15 years
of age consents to sexual intercourse, then
her consent somewhere reduces the period
of imprisonment.56 The fulfillment of male
desire within the confines of matrimony is
considered legitimate, irrespective of how it
is done. The legal codes do not recognize
marital rape and consequently at the level of
judicial grammar, this category does not
exist. In the process of judicial verification,
the judges can find instances when grievous
bodily harm has been done to the wife in
exercising a man’s conjugal rights but even
then this whole act could not be classified as
a sexual offence by the husband.57 To quote
Das, “in the case of conjugal couple, the
surface of the female body has no
information to convey for determining the
‘nature’ of the inside for she does not exist
as a subject for purposes of rape law”.58 A
woman doesn’t have rights on her own
body, as conjugal rights are only for men
where his rights on her body are naturalized
in the political and social definitions. She
asserts that in the Indian judicial discourse
the relationship between power and sexuality
has played a dynamic active role in the
production of bodies and speech—both
male and female. Female body and male
56
57
58
india.com/lawyer/articles/ 645.htm on
12.07.2009).
Though it is prescribed in law that even
if a girl, who is below 15 years of age,
gives her consent to sexual intercourse,
the man who is engaged with her in the
act of sexual intercourse would be
criminalized for rape.
The well known case of this kind was
Phulmonee Dasee case as discussed in
the text earlier.
Veena Das, “Sexual Violence, Discursive
Formations and the State”, in Economic
Political Weekly, vol. 31, no. 35/37, 1
September 1996, p. 2421.
Criminalizing Rape Within Marriage
desire are the sites of judicial discourse and
silence is maintained on the contrasting
attributes of female desire and male body.
Male desire is considered ‘normal’ or
‘natural’ and female body as the natural site
on which his desire is to be worked out. In
this sense, women are not seen as desiring
subjects in the rape laws as wives they do
not have the right to withhold consent from
their husbands.59 Even where the state
protects them from the desires of other
men, their concern is not the protection of
bodily integrity of women, but protection of
the property of the legitimate property
owner, that is the husband.
Hence marital rape is not recognized,
but law has prescribed punishment for nonage marriage. Marriage is a contract and
under Section 23, Indian Contract Act, 1872,
if both parties are below the age of consent
then it is an invalid contract and since their
marriage is not valid, the question of marital
rape does not arise.60
Another area of concern is Section 9
of the Hindu Marriage Act, 1995 that gives
both the husband and wife a right to apply
to court for restitution of conjugal rights
when either the husband or wife has
withdrawn from the society of the other.
Does the Hindu wife have the right to
privacy, enabling her to have control over
her body in the light of such a provision?
Interestingly the Manu Smriti wrote against
forced cohabitation. Manu said, “A man is
advised to approach her wife only when she
desired it or intercourse is not allowed if the
wife or the husband is suffering from any
disease”.61 In the modern context as well,
59
60
61
Ibid.
Nidhi Tondan and Nisha Oberoi,
“Marital Rape: A Question of
Redefinition” in Lawyers Collective, March
2000, p. 24.
Ramnika Jalali, Indian Women in the
Smrities, Jammu, Vinod Publisher, 1944,
pp. 128-129.
138
Politikon: IAPSS Political Science Journal
sexual relations should not be restored when
the marriage in essence has broken.62
In one such important case in the
Andhra Pradesh High Court filed in July,
1983, Venkata Subbiah sought restitution of
conjugal rights against his wife, film actress
Sareetha. In the judgment, Justice P.A.
Chowdhry concluded that Section 9
constitutes the grossest form of violation of
an individual’s privacy and human dignity
which are both included in the fundamental
right to life and personal liberty guaranteed
by Article 21 of the Constitution. That
judgment declared that forced sex, like all
forced things, is a denial of all joy... no
positive act of sex can be forced upon an
unwilling person, “because nothing can
conceivably be more degrading to human
dignity and monstrous to human spirit than
to subject a person by the long arm of the
law to a positive sex act.”63 It noted that
restitution of conjugal rights is a ‘barbarous’
remedy, and is not good for society. It’s
unconstitutional to exercise sexual rights on
wife in the grant of restitution of conjugal
rights.
Though this judgment still falls short
of recognizing marital rape, there is no
doubt that it spreads a message that forcible
sexual intercourse within marriage is also
unconstitutional and deprives a woman of
her rights to life and liberty (Article 21). In
Boddhisattawa
Gautam
v.
Shubhra
Chakraborty, IR 1996 SC 922, the Supreme
Court noted that rape is a crime against basic
human rights and a violation of the victim’s
most cherished of fundamental rights
namely, the right to life enshrined in Article
21 of the Constitution. But once again, it
shied away from recognizing marital rape as
a criminal and sexual offence.
62
Tondan and Oberoi, op. cit., p. 24.
Vimal Balasubrahmanyam,
“Conjugal Rights vs Personal Liberty:
Andhra High Court Judgment”, Economic and
Political Weekly, vol. 18, no. 29, Jul. 16, 1983,
p. 1264.
Vol. Nr. 20, June 2013
Giving an account of parliamentary
debates, Pratiksha Baxi has demonstrated
that during its discussions on marital rape,
the use of force in sexual intercourse was
considered normal. In the report of the joint
parliamentary committee on the proposed
amendments to the rape law, a separate
category of illicit sexual intercourse not
amounting to rape was introduced to cover
cases in which a man who is separated from
his wife has forcible sex with her. In favour
of this amendment they stated that
The committee feels that in a
case where the husband and
wife are living separately
under the decree of judicial
separation, there is a
possibility of reconciliation
between them until a decree
of divorce is granted. Hence
the intercourse by the
husband with his wife
without her consent during
such period should not be
treated as, or equated with
rape. The committee is of
the opinion that intercourse
by the husband with his wife
under such circumstances
should be treated in illicit
sexual intercourse.64
Baxi, on the other hand, argues that “the
distinction between rape and sex from the
women’s point of view gets blurred for the
state permits force in sexual intercourse, not
only for describing it as normal but by
normalizing it for the sake of
‘reconciliation’. Here power is deployed to
constitute married woman’s sexuality as
‘passive’ for the capacity to say ‘no’ to sex
within marriage is not recognized by the law
as a legal right.”65 In the committee,
however, several members of Parliament
argued that marital rape should not be
63
Pratiksha Baxi, “Rape, Retribution,
State: On Whose Bodies?” Economic and
Political Weekly, XXXV, 14, 2000, p. 1198.
65
Ibid.
139
64
Megha
criminalized,
irrespective
of
wife’s
age. Senior advocate, Ram Jetmalani rejected
the idea of criminalizing marital rape because
sexual intercourse between husband and
wife is a right of husband. State should not
have any right to interfere in their personal
relationship. Moolchand Daga went much
further to argue that if marital rape is
criminalized then, “woman would not have
been raped, but the poor man will certainly
be raped in court.”66
The 42nd Law Commission Report had
recommended that sexual intercourse
between a man and his wife below fifteen
years of age be removed from Section 375
and made a separate offence. Consequently,
an amendment to the IPC was proposed by
the way of the IPC (Amendment) Bill, 1972.
The joint committee, however, took the
view that intercourse by a man with his own
wife, regardless of her age should not be
regarded a rape. Consequently, it deleted the
proposed new section in clause 157 of the
Bill, which sought to introduce the offence
of marital rape.67 The law commission has
rejected proposals to repeal the marital rape
exception on the grounds that it would
amount to “excessive interference with the
marital relationship”.68
By not criminalizing marital rape,
governments and their agencies participate
in maintaining silence on sexual abuse,
especially in case of marriages. Several
studies, including the 2005-06 National
Health Survey (NFHS-3) have revealed that
despite the Child Marriage Restraint Act
(CMRA), 1929, and the Prohibition of Child
Marriage Act (PCMA), 2006, child marriages
still take place. They have failed to prevent a
child bride from living with her husband or,
from
being
abused,
sexually
or
Criminalizing Rape Within Marriage
otherwise.69 The Delhi Commission of
Women and the National Commission for
Women have also questioned CMRA and
PCMA because their definition of ‘child’ has
not been specified and suggested that all
marriages below the age of 16 should be
declared null and void and those between
the ages of 16 and 18, be rendered void at
the instance of either party.70
Indian law only recognizes marital
rape in case a girl is below the age of fifteen
years (under Section 375, IPC 1860, Act No.
45 of 1860). However, this is mitigated by
the religiously defined personal laws71,
whereby even the rape of a young girl
between the ages of twelve and fifteen years
carries a lesser sentence if the rapist is
married to the victim.72 This raises the
question if both the state and women’s local
communities are simply unwilling to
confront the rape of young girls in the name
of marriage, which goes on every day.
There is another aspect of marital
rape, whereby rape is accorded the status of
marriage which became evident in Imrana
case. Imrana was raped by her father-in-law
and then following a fatwa issued by some
local clerics she was forced to accept the
miscreant as her husband. Even the Hindu
women meet the same fate as in many cases
the penalty of rapists is mitigated if they
agree to marry the victim. Such judgments
tend to legitimize the continuation of marital
rape.73
69
70
71
72
66
67
68
Ibid., p. 1197.
Ibid.
Review of Rape Laws, Law Commission of
India, 172nd Report, 2000, Chapter 3, p.
14.
73
T.K. Rajlakshmi, “Child Redefined”,
Frontline, vol. 25, no. 7, March 29–April
11, 2008, pp. 91-93.
Ibid.
See Socio-Legal Aid Research and Training
Centre (SLARTC), Rights of Women in
India, Calcutta, 1995, p. 6, 24, 40.
Lotika Sarkar, “Rape: A Human Rights
versus a Patriarchal Interpretation”, in
Indian Journal of Gender Studies, vol. 1, no.
1, Jan-Jun, 1994, pp. 69-91.
Saswati Chakrabarti, “The Commercial
Heritage of Marital Rape in Relevance to
Indian Women”, in Gender Inequality, 3
140
Politikon: IAPSS Political Science Journal
Domestic Violence Act: An Illusion
It is argued that marital rape has been
subsumed within the much awaited
Domestic Violence Act 2005. But this is not
correct. In fact, this Act has also been a real
disappointment. It has provided civil
remedies to the provisions that have already
been noted or criminalized. On the issue of
marital rape, however, silence persists.
Though Section 3 of the Domestic Violence
Act acknowledges sexual abuse “harms or
injuries or dangers to the health, safety, life,
limb or well-being, whether mental or
physical, of the aggrieved person or tends to
do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse
and economic abuse,” and its accompanying
explanatory note on “sexual abuse” includes
any conduct of a sexual nature that abuses,
humiliates, degrades or otherwise violates
the dignity of a woman.74
In this definition the word unwanted
sexual intercourse or rape is not used. The
inclusion of the term ‘sexual abuse’ alone
would not allow women to charge their
husbands for rapes because the law has
different interpretations for rape and sexual
assault/abuse. A male, for instance, cannot be
raped but sexually assaulted. Moreover
Section 375 of IPC still exempts the husband
from marital rape which makes the inclusion
of term ‘sexual abuse’ void. Another point of
concern is that it restricts sexual abuse in a
domestic relationship of marriage or live-in,
only if it is threatening or grievously hurtful. It
is not about the will or desire of women. It is
decided by the state, when and in what
condition she can rightly claim for protection.
Vol. Nr. 20, June 2013
Marital rape, as it violates women’s
bodily integrity and her self esteem, needs to
be redefined. It is violent assertion of power
and denies women the right to intimacy and
pleasurable sexual activity within marriage
and more than anything else becomes yet
another instrument for further entrenching
the patriarchal value system. This brings a
need to discuss the social aspects of marital
rape.
Marital Rape: A By-Product of the
Society
The phenomenon of marital rape must be
understood in the context of society’s
patriarchal structures because ultimately this
structure is responsible for rendering women
powerless and allowing men in a dominant
position. Patriarchal structure makes the
division of labour unequal for men and
women, which “perpetuates the husband’s
power over the wife. This is the context
within which wife rape and wife beating
occur/s and often continues”.75 This is
mainly because men treat their wives as their
private property, in fact, as the sexual
property of their husbands. Their economic
status in the society is determined by their
sexual and reproductive capacities.76 Wife
rape is equally a manifestation of male
sexuality which is oriented to conquest and
domination, and to prove masculinity
defined in terms of power, superiority,
competitiveness, control and aggression, a
“real man” is supposed to get what he
wants,
especially
in
their
sexual
77
relationships. Groth notes: “wives are
regarded as possession or even opponents to
be used, controlled or dominated…sex is
seen as the solution to all marital problems,
as well as the source of validation for the
masculine identities”.78
75
74
April 2006.
(http://www.meghbarta.org/nws/nw_
main_p022b.php?issueId=6/&sectionId
=29&articleId=127 on 12.07.2009).
Rath, op. cit.
76
77
78
Russell, op. cit., p. 4.
Lorenne Clark and Debra Lewis, Rape:
The Price of Coercive Sexuality, Toronto,
The Women's Press, 1977, pp. 111-114.
Russell, op. cit., p. 357.
Cf. Clark and Lewis, op. cit., p. 120.
141
Megha
With marriage all women learn that
sexual intercourse is formative of their
identities as married women.79 The
dominant cultural discourse prescribes that a
woman without a husband has no life. If the
woman doesn’t obey her husband, including
being sexually available to him, he would go
to other woman. So, to have ‘a life’, status,
esteem and honour as a married woman, she
has to submit herself to the demands of her
husband. They have been taught that by
consenting to sexual experiences women
gain legitimacy and symbolic value as good
wives.80 The normative social biography
associates honour with a woman who
follows all the norms and rituals of married
life. Consequently, women often do not
accept the reality of marital rape.
These are buttressed by societal
beliefs that acknowledge male sexual
supremacy as a source of pride and measure
of self worth. When that supremacy is
challenged, men need to reassert their
dominant position in the gender hierarchy.
Finkelhor and Yllo’s study shows that one
quarter of divorced or separated women
reported a past incident of forced marital
sex.81 In Indian society attainment of
puberty gives a free license to a husband for
sex. Equating girl’s attainment of puberty
with a husband’s license to seek and force
sex upon her denies each girl control over
whether, when and with whom she has
sexual relations.82 By appreciating the sexual
activity, she understands that she has power
79
80
81
82
Annie George, “Embodying Identity
Through Heterosexual Sexuality: Newly
Married Adolescent Women in India”, in
Culture, Health and Sexuality, Sexual and
Reproductive Health in South and Southeast
Asia, vol. 4, no. 2, April-June, 2002, p.
215.
Ibid., p. 217.
Finkelhor and Yllo, op. cit., p. 8.
Mariam Quattra, (et al.), “Forced
Marriage, Forced Sex: The Perrils of
Childhood for Girls”, in Gender and
Development [Violence Against Women], vol.
6, no. 3, Nov. 1998, 1998, p. 32.
Criminalizing Rape Within Marriage
and she always remains in an illusionary
satisfaction of body-for-self.83
Many of them accept unwanted sex as
something normal, and as part of their duty
to please their husband. With marriage, a
women’s body is no longer her own body, it
has been taken over by the community of
men to establish and legitimize their image
in society. Through socialization, such
discourses about marriage create a web of
norms, within which a woman encapsulates
herself as a whole. Foucault argues that
discourse
becomes
normative
and
normalizing ideals, according to which the
body is trained, shaped, cultivated and
invested. The daily sexual disciplining of
married women can be seen as the operation
of biopower at the sight of individual women’s
bodies. “Biopower emphasized localized,
routinized bodily practices in families and
constructs the body as a corporeal entity that
becomes the systematic target for
disciplinary measures implemented by local
experts like family members”.84
In this way women can be seen as
victims of social practices and patriarchal
system whose bodies become a vehicle for
their
husband’s
satisfaction.
These
discourses discipline women, not through
the threat of violence or force, but by
creating desires, embodying individuals with
specific identities, and establishing norms
against which they and their behaviours and
bodies are judged and against which they
police themselves. Women are forced to
accept sexual exercise with their husbands as
normal because that is how women’s
identities are validated in a particular social
situation. When wives are battered and raped
daily, they don’t resist forced sex for they
fear that resistance will provoke a more
severe beating. Since women are associated
with child rearing, keeping house clean or as
a homemaker they are not economically
independent. In Russell’s study, ninety
percent of wives stayed with their husbands
following a rape because they didn’t have
83
84
Ibid., p. 208.
George, op. cit., p. 214.
142
Politikon: IAPSS Political Science Journal
their own economic sources and were
dependent on their husbands for financial
support. Their dependency becomes a
source of economic vulnerability and many
wives in this situation are coerced by their
vulnerability into living with objectionable or
abusive husbands.85 On the other hand,
those who were economically self sufficient
walked out of their marriage.86
Bourdien’s concept of habitués
provides an alternate understanding of social
fabrication of beings. He argues that our
identities are never defined simply in terms
of our individual characteristics but they
place us in particular social spaces that we
come to understand through embodiment,
as our place in dialogical actions. 87 Habitués,
or embodied understanding, gives meaning
to practice when it encodes certain cultural
beliefs and practices. Women discipline
their bodies to encode cultural expectations
of idealized feminity and accept unwanted or
coercive sex as wanted as they want to
become a good wife, which makes them
habitual to their rapes by the husbands.
They
discipline their bodies into
heterosexual necessities. In order to make
their marriage work, they just surrender their
bodies to their husbands and let them do
whatever they want to do, whether in a
coercive and violent way. George has
named both of these positions as
compliance and resistance. It is compliance
because women participate in enacting
female subservience in heterosexual
sexuality. It is resistance because women are
fully aware that they are using their bodies
for taking social and economic benefits.
On the other hand Rajan argues that this
cannot be seen as transformation, as
transformations are always constrained by
85
86
87
Russell, op. cit., p. 4.
Ibid., p. 220.
P. Bourdieu, The Logic of Practice, trans. R.
Nice, Stanford, Stanford University
Press, 1990; P. Bourdieu, Outline of a
Theory of Practice, trans. R. Nice,
Cambridge, Cambridge University Press,
1997.
Vol. Nr. 20, June 2013
the restricting nature of dominant
constructions of feminity which has been
accepted and internalized by women as
being their defining characteristics.88 The
reality is that a woman cannot search for a
space of emancipation in coercive sexual
experiences. Sangari similarly argues that
transformative agency must be understood
in a framework of their dialectical relations
with determining material, epistemic,
institutional and ideological structures which
they both reproduce and transform. So “the
truth about agency is that the dividing line
between compliance and subversion is thin
and the women’s body is often the
conflicting site of both giving in to, as well
as resisting, dominant constructions”.89 A
woman may not always be aware of the
conditions of their construction; hence
agency has both endless possibilities and is
limited.
Since a family is supposed to be full of
harmony and peace, the society finds it
difficult to accept the phenomenon of
domestic violence. The family can, thus,
become a subversive site where violence is
institutionalized and abetted by the state and
society, which also uses law to deny the
existence of marital rape. The public /
private dichotomy in a society, however,
plays out in different ways. On the one
hand, criminal laws construct the family as a
public space which needs protection as in
the cases of adultery, and on the other hand
in the case of marital rape, the sphere of
family becomes so private that it’s beyond
the reach of law. Yet, both the regulations
of adultery and marital rape share an
understanding of marital relationship which
views it as an exclusive site of legitimate
sexuality. Paradoxically, privacy continues
to, and reinforces, the intimacy and sense of
solidarity in family life, while it also nurtures
88
89
R.S. Rajan, Real and Imagined Women,
London, Routledge, 1993.
K. Sangari and S. Vaid, Recasting Women:
Essays in Colonial History, New Delhi, Kali
for Women, 1989, p. 11.
143
Megha
and protects the very conditions in which
conflict and violence develop.90
Marital Rape: A Violent Experience
Feminists focus on the violent aspects of
marital rape. Notwithstanding the legal and
societal silences on this subject, marital rape
is very much a reality. Several studies have
shown that between ten to fourteen per cent
of married women are raped by their
husbands. In clinical samples of battered
women, one third to half of the cases is that
of marital rape. Sexual assault by one’s
spouse accounts for approximately twenty
five per cent of rapes committed.91 K.G.
Santhya’s pioneering study examined the
extent of unwanted sexual experiences
among married young women in rural
settings in India. It showed that sexual
activity among adolescent girls and young
women in India mostly takes place within
marriage and almost twenty five per cent of
adolescent girls aged between fifteen to
nineteen years are married and presumably
sexually active while fewer than ten per cent
of unmarried young women are reported to
be sexually experienced. Marriage does not
inherently make sex safe, voluntary or
pleasurable. Indeed the marriages of ten to
fifteen per cent of adolescent brides are
consummated by force.92 The results
corroborate this assessment because twelve
percent of married young women reported
that they frequently experienced unwanted
sex, while thirty two percent experienced it
occasionally. Thus forty four percent had
experienced frequent or occasional sex
against her will.
This study also illustrated some
examples of sexual coercion. A first time
mother from West Bengal stated: “he forces
me often for sex. We have sex three to four
90
91
92
Tondan and Oberoi, op. cit., p. 23.
Rath, op. cit.
K.G Santhya, (et al.), “Consent and
Coercion: Examining Unwanted Sex
Among Married Young Women in
India”, in International Family Planning
Perspectives, vol. 33, no. 3, 2007, p. 125.
Criminalizing Rape Within Marriage
days a week. In one month, he has coerced
sex four to five days. I do not feel like
having sex, it becomes painful, but he does
not stop”.93 Another narrated a similar
story: “sometimes my husband forces me to
have sex, which I don’t like. Once I was
feeling sick; I had burning sensation while
urinating and was feeling giddy. I told him
that I didn’t feel like having sex at that time,
but he didn’t listen to me and he forcefully
did it. Sometimes he will not listen to any of
my problems. If I try to resist him, he will
ask me whom should he go to instead and
he will get angry, then I just accept it”.94
This study showed women also suffered
from physical abuse with unwanted sex. A
woman during her first pregnancy stated: “if
I say no at night, he will do it in the
morning, I can’t say no anytime. He will not
say anything at night; he goes to sleep
turning his back. But when he asks for
something in the morning and I say no, he
beats me”.95 Often women accept their
husband’s demands for sex because they
want to prevent an argument or punishment.
Coerced sexual experiences are more
common in the earlier years of marriages
and if the wife knows the husband at the
time of marriage and he is supportive in
nature then the risk of unwanted sex is low.96
The physical effects of marital rape,
it is important to note, may include injuries
to private organs, lacerations, soreness,
bruising, torn muscles, fatigue, vomiting,
broken bones, black eyes, bloody noses, and
sometimes even knife wounds. Specific
genealogical consequences of marital rape
include miscarriages, still births, bladder
infections, infertility and the potential
contraction of sexually transmitted disease
including HIV.97 Women also suffer
psychological scars because of marital rape
which includes anxiety, shock, intense fear,
93
94
95
96
97
Ibid., p. 128.
Ibid.
Ibid.
Ibid., p. 130.
Mishra and Singh, op. cit.
144
Politikon: IAPSS Political Science Journal
depression, suicidal ideas and post traumatic
stress, problems in establishing trusting
relationships, sexual dysfunction and
emotional pain; they also create negative
feelings about themselves.98 In this way, the
marital rape is as much traumatic as rape is.
Women equally suffer in both the cases.
Purva Sen’s research shows that women
who complain about sexual abuse in
marriage are aware that this may lead to
separation, which may cause further
problems ranging from social ostracism to
violent attacks, including rape and economic
destitution. That is why they hesitate in
taking step against their husbands even if
they rape or experience sexual abuse at their
husband’s hands.99 Sen’s study revealed that
in almost half the cases of forced sex or
marital rape, the girl wives had made their
husbands aware of their unwillingness to
have sex or of pain during sex, but in eighty
percent of these cases the rape continued.100
Feminist Voices: Encountering Legal Bases
Feminists have identified three common law
fictions on which the exemption of marital
rape has been made or accepted: the theory
of “women as chattel”, “unities” theory, and
“implied consent” theory.101
The “Women as Chattel” theory
establishes women as a property, in that a
woman was first the property of her father
and after marriage became the property of
her husband. With this regard, if a woman
was merely a property, she is not supposed
to have individual human rights and the
98
Ibid.
Quattra, op. cit., p. 31.
100
The study revealed that girls were even
consummated before their menstruation
or the very beginning of menstruation.
That makes it a severely painful and
bloody affair for her.
101
Suman Saha, “Sleeping with the
Enemy? - Recognizing Marital Rape”,
Women’s Link, vol. 10, no.2, April-June 2004,
p. 3.
99
Vol. Nr. 20, June 2013
husband who committed rape on his wife is
actually using his own property according to
his own wishes.102
“Unities” theory sees husband and wife
as one person. Sir William Blackstone
articulated that: “by marriage, the husband
and wife are one person in law: that is, the
very being or legal existence of the woman is
suspended during the marriage, or at least is
incorporated and consolidated [into her
husband]”.
This theory encapsulated
husband and wife as one but actually this
constitutes the husband only.103
Third “implied consent theory” led to
the belief that because a woman gave her
consent to sexual relations with her husband
at the time of marriage, the consent will
remain valid forever. This theory is actually
grounded on the above two theories – the
fake notions of woman as the chattel or
property of her husband and the unity of the
husband and wife on marriage
These theories in the contemporary
context are legitimized through four
‘modern’
rationales
that
may
be
characterized as relatively more “benign”:
marital privacy; marital reconciliation; fear of
false allegations and difficult evidentiary
requirements; the argument that rape within
marriage is less severe than outside marriage.
The idea of marital privacy suggests that
relationship between husband and wife is
private and personal which should be kept
outside
legal
interference.
Marital
relationship depends upon intimacy
protected from outside scrutiny and legal
interference would break the intimacy that is
foundation
of
marriage.104
Marital
reconciliation may be seen as an extension
of the first notion which stipulates
that keeping the spouses “in” and the law
“out” fosters greater mutual respect between
the parties and would make their ultimate
reconciliation easiest. Third problem
pertains to the fears of false allegations, that
102
103
104
Ibid.
Ibid.
Ibid., p. 4.
145
Megha
is with the criminalization of marital rapes it
is feared that women would file false charges
against their husbands and use this right to
threaten their husbands. There would also
be the problem of lack of evidence because
it is really difficult to find evidence in marital
rapes. Finally, marital rape is considered to
be less severe than that outside marriage, or
‘real’ rape is ostensibly considered to be rape
by a stranger. It is assumed that with
marriage a wife provides her individual
rights to her husband and so she doesn’t
lose self-respect in same manner as in case
of rape by a stranger. So, it should not be
criminalized.105
Feminists reveal the fallacy of all
these arguments to make a case for
criminalizing marital rape. First, it is argued
that if one views Article 14 in our
constitutional paradigm then marital privacy
cannot be considered as an absolute right, in
which case no crimes between husband and
wife can be prosecutable. If domestic
violence can be penalized under law, which
means, that a husband is not justified in
beating his wife, he cannot also justify raping
his wife under the guise of a right to privacy.
Likewise on the issue of false allegations, it
can be argued that such fears are present in
other crimes also, then why should there be
an exemption made only in the case of
marital rape? The difficulty of collecting
evidence also applies to other criminal acts;
so, law cannot choose to ignore injurious
acts such as marital rape merely because they
are difficult to prove. In fact, this is true for
most sexual offences, which take place in the
private domain. The reconciliation theory is
ridiculous as it denies the wife the protection
of the criminal laws. After being raped by
her husband, a wife is unlikely to consider
the probability of marital reconciliation.
Rape is a heinous crime irrespective of who
perpetrates it. The notion that marriage is a
perpetual license for assuming women’s
consent is wrong. On the contrary, rape by a
stranger may be a devastating one-time
Criminalizing Rape Within Marriage
occurrence but marital rape involves a
continuing nightmare for the women.
Women can charge her husband under
Section 498-A of the IPC, dealing with
cruelty, to protect themselves against
“perverse sexual conduct by the husband”.
But no standard of this measure or
interpretation of perversion or unnatural is
available. Is excessive demand for sex
perverse? Can a husband use force or
violence to achieve sex? There is no answer
because judiciary and the legislature are
silent on these issues.106
Some feminists have suggested
certain steps to end these unwanted or
coerced sexual experiences. These include
increasing the years of schooling for
girls. Education will help girls master better
resources and enhance their ability to deal
with the outside world, seek an equitable
relationship with her husband. This would
also help her become permanently
independent because it’s well proven that
economic pressures are directly related to
sexual coercion.107
An excellent study conducted by
Santhya also shows that government’s sexual
and reproductive health programmes seeking
to protect women from HIV infection
cannot succeed without mitigating or ending
the risk of coercive or unwanted sex for a
wife that is because sexual coercion within
marriage has adverse effects on sexual and
reproductive health.108
Women themselves don’t talk about
their sexual experiences because they feel
inhibited for discussing them owing to their
socialization and cultural beliefs. Feminists
underline the need for openly discussing the
issue of marital rape. In fact they lack even
the vocabulary for discussing sexual violence
within marriage, which in turn, hinders their
ability to distinguish husband from
rapists. Many do not even acknowledge the
106
107
105
Ibid.
108
Rath, op. cit.
Santhya, op. cit., p. 130.
Ibid.
146
Politikon: IAPSS Political Science Journal
phenomenon of rape within marriage. This
attitudinal invisibility reinforces the statistical
invisibility of the most prevalent form of
rape, that is, marital rape, which is why there
is hardly any survey done on marital rape in
India. In Russell’s study, only seven percent
of women responded affirmatively when
asked directly if they had been raped.
Another six percent acknowledged incidents
of forced sex but changed their language and
explained it in other ways by saying “it was
almost like rape”, or “he pinned me down
like it was rape”; or it was just like a rape
except I was on (my own) bed”.109
So women themselves don’t
realize that something wrong has happened
to them and the reason being absence of
language by which they can define their
emotions in the law. Indian Judicial grammar
does not possess women’s voice, emotions
and their living. The law takes steps for
abolishing rape because it wants to save
virginity of virgin girl for the sake of
legitimate property owner that is husband
but manipulatively sidelines those women
who are not virgin — married women and
prostitutes. The mere difference is that a
married woman is there to be raped by one
and only legitimate husband and a prostitute
is categorized as a legitimate rape victim by
different men. So women must have their
own vocabulary, their own emotions to
speak and write not in the context of men
but in their own context or in the context of
their own material and linguistic space of
bodily matter as has been emphasized by
Luce Irigaray so that women’s body could be
incorporated in the linguistic discourses110.
In the same vein Helen Cixous asks women
to write more and bring women to writings
as well so that their bodies could write and
speak their own anti – linear and cynical
behavior which is not bounded or structured
Vol. Nr. 20, June 2013
as presupposed by patriarchal society111. She
comes up with a new writing practice
(‘l’écriture feminine) to deconstruct fixed
categories of sexual identities and in these
terms deconstructs the masculine fixed
sexual behavior which expects women to act
in certain fixed ways. She wants women to
write because when they write they actually
speak about their bodies. Another PostStructuralist, Julia Kristeva has adopted an
emancipator path for women and drawing
upon Derrida argues that due to endless
differences of meaning, language is dynamic
and if subject is the product of language,
which is dynamic, then the subject is a
dynamic process as well. She brings
‘semiotic’ and ‘symbolic’ as central to her
idea of subjectivity and argues that though
the ‘semiotic’ that is pre-linguistic stage
where differences do not take place, remains
not that much important as ‘symbolic’
captures but ‘semiotic’ is important in the
sense that it does not incorporate the
hierarchy which brings inequality112. The
paper drawing upon these understandings
argues that women should write their own
legal language on rape within marriage. They
should speak, shout, debate and write about
the rape within marriage which is not ‘just
sex’ for them because when they speak they
actually speak about their bodies, for their
bodies. The need is to make their own new
language and vocabularies not biding by
masculine social cultural and legal contexts
but in the context of their own spaces. First
a woman should herself have the courage to
speak with new vocabulary that she has been
raped by her husband and should create a
judicial grammar to criminalize rape within
marriage.
Conclusion
111
109
110
Russell, op. cit., p. 53.
Luce Irigaray, This Sex Which Is Not One.
Ithaca, NY: Cornell UP, 1985 and Luce
Irigaray, Speculum of the Other Woman,
Ithaca, NY: Cornell Univ., 1989.
112
Cixous, H. “ The Laugh of the Medusa”,
trans. K. and P. Cohen, in E. Marks
and I. de Courtivron in New French
Feminisms Brighton: Harvester,1981(a),
pp. 245-64.
Kristeva, J. (1986) ‘A Question of
Subjectivity. Interview with S. Sellers’, in
Women’s Review, Vol.12, pp. 19-22.
147
Megha
Criminalizing Rape Within Marriage
Rape is an offence against the woman,
violating her dignity and self respect and
even when it occurs within the four walls of
the home, it reduces the wife to a sexual
objectification for men’s gratification. To
make the woman realize her own being, the
law should seek to protect the right of every
woman to choose whether to have sexual
intercourse or not with her husband and
evolve a new, more suitable judicial grammar
for this purpose. There is also a need to
educate the masses about this crime, as the
real objectives of criminalizing marital rape
can only be achieved if the society
acknowledges and challenges the prevailing
myth that rape by one’s spouse is
unquestionable. However, it is important to
realize that the first step would be effective
only if the law takes some appropriate action
about it otherwise women will always have
to carry the label of “second sex”.
Therefore, there is a need to criminalize
marital rape and moreover the law should
have substantive equality approach towards
criminalizing rape within marriage because
this is the discrimination inherent in the
failure to criminalize marital rape. This
substantive approach would expose the root
sources of discrimination and would
facilitate reform efforts to address the cause
of the problem rather than the symptoms of
the problem so that the contexts — sociocultural, political and legal — in which the
roots of inequality generates and further
reinforces the grounds for legitimizing rape
of a wife by husband within marriage could
be analysed and examined. The paper
emphasises the need for the law to adopt
substantive
equality
approach
by
problematizing reasons for rape within
marriage in socio- cultural and political
contexts with women’s own vocabulary.
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Legislative Representation and Governability in Brazil: Does
Brazilian Democracy Represent its Social Plurality?
Lívia DE SOUZA LIMA1, São Paulo Foundation School of Sociology and Politics
Thiago Henrique DESENZI2, São Paulo Foundation School of Sociology and Politics
Abstract
D
emocracy is, ideally, an equality fostering tool in face of different demands present in any given society
and that currently is put in practice by a representative democratic model. Nevertheless, several
modern thinkers are pointing to an unmeasured scale of interests within the representation spheres, in
which the most powerful society’s sectors overcome the less influential social and economical groups, turning
democratic representation into an uneven scheme. By having this in mind, this reflection is aimed to make an
analysis of the Brazilian democratic representation model, specifically in relation to its majoritarian government
composition, that, in this country, is part of a unique legislative model named as “Coalition Presidentialism”. At
the composition idealized by the Brazilian National Constitution, the federal parliamentary ministers have the
responsibility for the formulation of laws as well as monitoring the executive power in consonance with the will of
the society’s sectors that has got them elected by the voting system. The conflict is established though, when the actual
governmental practices leave aside the constitutional principle of a plural representation in consequence of economic
and power interests that act independently from the diverse interests and needs of other groups belonging to the
Brazilian society. It can be argued that the establishment of governmental practices better aligned to the concept of
global justice, in the Brazilian case, can be achieved by a better quality democracy, through adequate governance
mechanisms and plural representation practices that are capable of attending the distinct demands of diverse society
layers. Thus, this article is aimed to present how the Brazilian democratic representation works, exploring its
conflicts and deployments and mainly its divergences in relation to the democratic morality that presupposes the
existence of gradated ways to the reaching of higher social and political equality levels, closer to the general global
justice ideas.
Keywords: Quality of Democracy, Brazilian Political Culture, Democratic Representation and
Participation
1
Sociology and Politics Student at the São Paulo Foundation School of Sociology and Politics.
Visiting Student at Napier University – Edinburgh – Scotland - email:
[email protected] Scholarship Student- CNPQ Brazil
2
Sociology and Politics Student at the São Paulo Foundation School of Sociology and Politics.
Visiting Student at University of Helsinki – Helsinki – Finland - email: [email protected]
- Scholarship Student- CNPQ Brazil
149
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Legislative Representation and Governability in Brazil
Introduction
B
esides the pre carnival euphoria
in 2013, one specific chapter of
the Brazilian National Congress
“soap opera” was also capable to “entertain”
the country. In the beginning of February of
this same year, Mr. Renan Calheiros has
been elected president of the Federal Senate,
being supposed to remain on the post for a
biannual mandate.
It caused a big fuzz in the national
news and what was being exposed by several
newspapers and political commentators is
that this election is a result of pre accorded
agreements in between the situation party,
its allies and the opposition, accounting for
the exchange of government positions,
sketchy favours and political advantages3.
Part of this practice should be
normal for a political system known for the
formation of such polarized coalitions. But,
what makes this chapter deterring is the fact
that the just elected Senator is a politician
that carries over his shoulders three
processes on the Supreme Court, in which
politician renounced his post as Senate
President, for running the risk of having his
political rights revoked4.
The damage to the government's
image is clear, and can be seen in repulsions
in the media, digital networks and in society
in general5. The party leader of the executive
and the entire coalition base “pays the price”
of these divergent interests in this political
chessboard
called
“Coalition
Presidentialism”. Through this episode, we
can have a clue of how the Legislative
Representation and Governability interrelate
in the Brazilian democratic system.
Aiming to clarify the reasons that
lead and make possible this sort of political
arrangements,
the
discussion
will
be
developed towards the democratic values in
the
contemporary
secondly
the
academy
Brazilian
discussion;
democratic
representation model and its nuances will be
discussed. Further on, it will be verified the
connections and disconnections among the
governability and the representation, trying
to verify if the society plurality is represented
he is under investigation for corruption
practices. It should not be considered as
trivial the fact that in the year 2007, the same
See the editorial: “Renan gives positions,
consolidating support in the Senate and
must win by a wide margin” – our
translation
(BERGAMASCO&LOPES,
2013)
3
“He was accused of paying personal
expenses (the pension of a daughter out of
wedlock) with funds from a lobbyist. To
prove the money received, Renan had fake
notes regarding the purchase of cattle” – our
translation (ALVARES&BRITO, 2013)
5
More than 1,5 million digital signatures
collected in less than ten days asking for the
Senate's president impeachment in the
www.avaaz.org.
4
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Vol. Nr. 20, June 2013
in this system, and within this dynamics,
democracies. In that time, all public issues
delineate perceptions over the desirable ways
should be considered by the “Greek
for the Brazilian democracy.
citizens”, which had to be gathered in order
to discuss and get to agreements in which
the achieving of a common good was the
Democracy As A Polical Regime And
Social Relation
main goal. As much as the original
democracy in Greece promoted direct
Despite the differences in the ways
political participation, it failed in promoting
democracy was put in practice in its very
equality by having a very limited concept of
beginning and the transformations occurred
citizenship. Thus, just a few part of the
throughout the times, there is a general
population could enjoy political liberty in its
definition that can be understood as the very
pure sense; consequently political equality
structure of a Democracy: that in democratic
was not fully achieved.
Thus,
Democracy is no longer performed
democracy means literally rule by the people
by direct civic participation, but is rather
(DAHL, 1989). Nevertheless, a democracy
exercised
could not be identified as such only by the
devices.
completion of this organizational political
representation became accepted as a solution
process. Thus, the ‘rule by the people’
that eliminated the ancient limits on the size
activity should be accompanied by its
of democratic
capacity to promote ‘freedom and equality’,
democracy from a doctrine suitable only for
being these the basic principles by which a
small and rapidly vanishing city-states to one
political organization of a nation can be
applicable to the large nation-states of the
named and recognized as a Democracy.
modern age (DAHL, 1989, p.29). Indeed,
states,
people
are
sovereign.
nowadays
Robert
by
Dahl
representative
argues
that
states and transformed
modern
representation is a suitable solution to make
democratic format is inspired by ancient
governable the modern large states, in terms
Greece, there are many differences from the
of practical organization of the political
original practice that has accompanied the
process. But, one should bear in mind that,
sets
and
democratic representation can only be
economic transformations that has led the
understood as such if the basic principles of
world to what it is today. The first and
liberty
perhaps most important difference is on
democracy making.
In
of
as
much as
political,
social,
the
cultural
how the decision-making process was
conducted
in
the
original
Greek
and
equality
are
involved
in
In this sense, a democracy is
recognized and evaluated by its capacity to
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De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
pursuit liberty and equality in a broader
and equality
sense, both social and political. Is it
legitimate and correct functioning of its
impossible,
to
institutions and mechanisms”. Robert Dahl
conceive a democracy that protects the
(1989) argues that the institutions are the
freedom of opinion and choice at the same
result of the transformation of the modern
time that combats inequality? By intriguing
democracies into the current representative
his reader with this question, the author is
model. For him, this new set of institutions
arguing that these elements are indissociable
form together what is commonly referred to
if there is the will to evaluate the quality of a
as ‘democracy’. In summary, to measure the
democracy, exposing the need to work with
quality of a democracy is to analyse to what
these elements together.
extent is working the connexion in between
asks
Touraine
(1997),
of citizens through the
It is not an easy task, mainly taking
the representation institution, no matter in
into consideration that both principles may
what level, and the population, according to
vary according to the political and social
the basic principles and values of a
cultures associated to any given nation-state.
democracy.
But as democracy is not a static object, but
In
addition
to
this
general
yet an open oeuvre in constant expansion,
assertion, Morlino (2009) specifies the
there is the possibility to watch over it,
qualities to be considered for a democratic
understand its functioning and relations, and
evaluation and divides them into three
by finding flaws and potentials, be able to
dimensions:
design better ways to do it. What has been
substantive and result. The procedural
defined as the study of the democratic
dimension is composed by mechanisms that
quality accounts for the important normative
confer effectiveness and legitimacy to the
conceptions of a democracy, offering some
institutions, and are, more specifically (i)rule
analytic tools for exploring and detecting
of law; (ii) electoral accountability; (iii) inter-
democratic quality in various countries
institutional accountability; (iv)participation;
(MORLINO, 2009).
(v) competition. The second dimension, in
or
Morlino’s framework, is related to the nature
framework
of a democracy, and accounts for political
reflecting on the qualities to be presented by
freedom and political, social and economic
a democracy that shall to be defined as good.
equality. Finally, the result, as the last
Overall, the author considers that a good
dimension, is related to responsiveness. The
democracy is the one that presents “a stable
procedural dimensions are concrete and
institutional structure that realizes the liberty
moreover, devices for the realization of the
interesting
and
complete
offers
content
an
Morlino’s
work
procedure,
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Vol. Nr. 20, June 2013
As
administration” and the organization of the
argued, the modern democratic scenario
state within the bureaucratic apparatus is a
presupposes the existence of institutions
“solution to democratic credibility”. In this
responsible for the organization of life in
sense,
societies. Nevertheless, despite any political,
evaluating and measuring democratic quality
social or even economic ideologies, the core
are a suitable direction to the achievement of
definition of a democracy keeps being rule
legitimacy
by the people, and not rule by institutions.
democracies.
substantive
democratic
dimensions.
As so, a democratic institution must act in
the
procedural
and
In
this
dimensions
credibility
sense,
in
for
modern
legitimacy
is
accordance to the people’s wills and rights,
connected to responsiveness, thus, the
and the exposed procedural dimensions
citizens will respond satisfactorily to the
offer an orientation guidance to make the
institutional capacity of legitimately bringing
power delegation, from the people to the
off the democratic substantive dimensions,
institutions, legitimate.
according to the local reality. Having this in
Legitimacy,
Pierre
mind is interesting to understand what
Rosanvallon (2011), is an invisible institution
legitimacy stands for. Rosanvallon (2011)
and establishes a firm foundation for the
dissects legitimacy in three parts, so as to
relation between the governing and the
know, impartiality, reflexivity and proximity.
governed. It is well known that the
Those elements are essential in modern
representative system is signified by the vote,
political representation due to the fact that
as if the general will is reflected by election
democracy has the rule by the people as a
results. It seems that the contemporary
prerogative, but the very significance of the
political debate is giving great attention to
people has changed. For this author, “the
the lower voter turnouts presented even by
people can no longer be apprehended as a
consolidated
this
homogeneous mass” and the interests of the
to
greatest number is not automatic identified
perception
is
argues
democracies
and
generally
connected
consequences such as lack of trust in
as general will.
political institutions or in politics itself. But,
Although this reflection appoints
as much as universal suffrage is an essential
for
organ in the functioning of the democratic
participation mechanisms in a democracy in
body, it cannot be the solely argument in
order to achieve a legitimacy status, universal
detecting a democracy failure or crisis. For
suffrage cannot be taken for granted,
Rosanvallon,
“dual
especially when the history for the right to
foundation: universal suffrage and public
vote is traced. Universal suffrage is still
democracy
has
a
the
necessity
of
several
other
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De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
considered the major democratic symbol and
2011, p.57 - our
translation).
expresses the notion of generality among
men since every citizen, in a nation, has the
Hence the right to vote is the
right to vote. Rosanvallon (2011), in his
utmost political equality representative that
latest work on equality, argues that the
also contains, within itself, the basic
citizen is presented as a pure individual,
elements for social equality, by considering
detached from any specificity. When the
all the men as similar. As a procedural
right to vote is then conferred to every
dimension democratic mechanism, voting is
citizen, an equality measure is subsumed. In
the basic pillar for political participation.
his words:
But, other guarantees are necessary for the
Within the universal
suffrage
exercise,
every individual is
deposed from its
own determinations
and affiliations. This
abstraction is the
quality
that
constitutes
the
citizen socially and
helps to develop the
political
equality
idea. And this is
what makes this
equality
format,
among
the
individuals,
both
radical
and
exemplar. It is
disengaged from all
the distinctions that
are
ordinarily
imposed to ordinate
and classify men.
The great sage and
the simplest spirit,
the rich and the
poor, are considered
as equally able to
think about the
common good and
to trace a separation
line between justice
and
injustice
(ROSANVALLON,
existence of a free and equal political
process. Robert Dahl (1971) suggests that
the democratic political process must make
room for the people to formulate, signify
and have their preferences weighed equally.
Besides voting, the author argues that those
actions are possible by the existence of
freedom of expression and to form and join
organizations, right for party competition,
alternative sources of information, free
eligibility for public office, free and fair
elections,
policies
and
institutions
depend
on
votes
for
and
making
other
expressions of preference. As much as these
elements
are
part
of
the
procedural
democratic dimensions, they are a more
explicit definition of the political tools
designed acknowledging the importance of
both freedom and equality. By these
important points, it can be noticed that
voting and what is encompassed by it, as
much as it is part of the nature of a
democracy, must be invigorated by other
mechanisms.
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In Morlino’s analysis (2009), when
Accountability evaluation has a
voting and representation is involved, then
direct impact to the citizen satisfaction
accountability “becomes a truly central
within
dimension in so much as it grants citizens
responsiveness becomes a harder task in the
and civil society in general an effective
current social scenario. Norris (1999) argues
means of control over political institutions”.
that better levels of education and greater
In other words, both electoral and inter-
information accessibility has resulted on the
institutional accountability offers the citizens
rise of more “critical citizens” that can
a chance to keep a watch in how their
observe the current government practices,
societies are being led, and act over any sort
criticize them and claim for better ways of
of dissatisfaction they might have. Those
performing a democratic form of rule. This
mechanisms widen out the participation
same group of individuals are also more
realm,
are
aware of these system and its functionalities
empowered over their nations in and outside
for regulating social and political institutions.
the ballots. Accountability apparatus in
In addition, as much as equality tries to set
Rosanvallon (2008) is also seen as a counter-
up a world of similar people in nature, there
democracy device.
is also the exaltation of the differences, and a
and
assure
that
people
their
government.
Thus,
Democracy, in having freedom as a
claim for the accommodation of diversity.
value, has suspicion as a presupposition. In
This creates a demand for more plural
institutionalizing suspicion, with systems of
governments that are able to respond to the
check
higher variety of groups, associations and
and
measures,
balances
for
and
example,
transparency
the
modern
democracies aims to protect the individuals
from the encroachments of public authority.
movements that want and need to have a say
and place in society.
Nevertheless,
as
plural
as
a
Moreover, the citizens must have the chance
government can be, it is just about
to make sure that the representative
impossible to have a perfect responsiveness
institutions are acting in favour of a
equation. For Powel (2004), there is a
common good, by delivering appropriate
contradiction in between responsiveness and
services, and designing good policies around
interests representation and thus, the only
the social justice ideal. In other words, it is a
tentative solution is to understand that total
means to guarantee, or at least try to
responsiveness is not the only public virtue.
guarantee, that the government is acting
As intriguing and interesting this assertion
towards the population interests and not its
can be, is not sufficient if an evaluation of
own.
responsiveness and interests representation
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De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
is to be conducted. So, considering that each
and thus achieve more benefits to its own
shake and modified
the face of the
earth.
But
this
political people that
impose themselves
more strongly have
left a less social
heritage.
The
political citizenship
progresses at the
same time that the
social
citizenship
regresses
(ROSANVALLON,
2011, p.11 – our
translation)
interest group. These evaluations must
Still in Rosanvallon (2008), there is
always consider, at first hand, liberty and
a current sense that this is a great time for
equality principles, and it can be almost
political freedom with the spreading of
considered as a moral judgement of a
citizen
democracy capacity to work in a balanced
which people have been acting as the
way.
overseers of democracy. It becomes evident
democracy has its sets of social, political,
cultural and economic particularities, the
question to bear in mind for a critical
analysis of any democracy is: whose and to
which interests the government is more
responsive? This framework will allow the
discussion of what are the instruments and
resources that each different social group
has to make a pressure on the government
counter-democracy
practices
by
Democracy then, is confronted
that freedom is currently a strong and visible
with the challenge of affirming its vitality as
value within the democratic world. But the
a regime at the same time that is reaffirmed
simultaneous
as a form to organize the social. This
inequalities presents itself as a rupture from
challenge is especially controversial in an age
the democratic values that should be walking
where the citizens keep enlarging their forms
hand in hand. The latest Oxfam report
of intervention and exercise more actively
headlines that the annual income of the
their surveillance capacities. For Pierre
richest 100 people in the world is enough to
Rosanvallon, these more critical and active
end global poverty four times over. The
citizens are determined to keep alive the
report asserts that this huge economical gap
democratic ideal:
“is not only unethical but also economically
It is the spirit of an
era. The aspirations
for
freedom
enlargement and for
the instauration of
powers submitted to
the general will have
made the despots
inefficient,
intensification
politically
corrosive,
of
the
6
socially
divisive and environmentally destructive.
Thus, for Pierre Rosanvallon (2008), equality
See the editorial: “The cost of inequality:
how wealth and income extremes hurt us
all” (OXFAM, 2013)
6
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Vol. Nr. 20, June 2013
is in crisis, not just because it is so evident,
dignity of all is guaranteed (Rosanvallon,
but mainly for the general acceptance of it.
2011).
Equality itself is not easy to define.
Having a more clear idea of what
What is the measure for equality? This
equality means and represents helps to pave
question is aimed to identify an issue, a
the way for its achievement, or at least, pave
problem. This measure means a question of
the way towards it. Pierre Rosanvallon
space (income, wealth, happiness, life
(2006) understands that it should be a
opportunities, satisfaction of necessities,
democratic perspective to work in society
freedom) from which different persons can
itself. In Michael Foucault (1997) this
be compared in relation to the hope of an
concept is defined as governing the social,
equal treatment to all the people, despite the
creating
differences that cross their lives and their
constructing a social unity. Hence, the art of
forms of existence. It is a field made of a
government, cannot be understood only as a
group of value references that are also
power submission mechanism, but as
cognitive and political references. And from
practice in defence of society.
civility
and
fundamentally
these references the social life complications
What Rosanvallon suggests, is a
and mistakes are, or can be, described and
democratic approach that might lead to a
measured, figured and evaluated as problems
communion of the ideals of democracy with
to be repaired (Telles, 2004). In this sense,
those of socialism:
equality becomes a social relation, and not a
product that can be arithmetically evaluated
and accounted.
The
term
equality
should
be
identified with emancipation, autonomy and
with the consequent constitution of a world
of similar people that live in pairs and do not
know the levels that separate or humiliate
them. The critic of economic inequality is
directed to the creation of a society where
the differences in between the individuals
are not generating exploitation, domination
or exclusion. In this sense, a society without
classes is the one by which work is not
submitted to predator powers and that the
Historically, the first
have above all been
defined
in
procedural terms,
while the second
have been thought
about
in
a
substantive fashion.
If
politics
is
conceived, however,
as the work of
society itself, then
the experimentation
with differences that
makes it up is also
its heart. Substance
and
procedure
blend, in the end, to
make
democratic
progress
connect
with the deepening
of the exigency for
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De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
social
justice
(ROSANVALLON,
2006, p.251).
everyone in the process, helping to construct
the common good in a substantive manner.7
What has been reflected and
The equal society must be thought
under three orders: singularity, reciprocity
and communality. Singularity implicates the
freedom
that
each individual
has of
manifesting itself according to personal
preferences and that each human being is
unique. Governing the social, in this sense,
accounts the existence of policies that give
the individuals the means to express their
singularities. Among it could be mentioned
anti-discrimination measures, genre equality
and sexual option liberty. Reciprocity is a
dimension sensible to the rights and duties
of all members of a state, and also implicates
on just wealth distribution. Moreover, it
expresses itself with a negative reaction
exposed here is that, democracy as a political
regime
has
its
intrinsic
legitimacy
mechanisms that by having its dimensions
observed can deliver credible procedures
and devices, to the achievement of the rule
by the people. At the same time, the
substantive
notions,
being
the
core
democratic principles, has to be considered
in every single aspect if the rule by the
people is to be exercised according to the
values and objectives that generated it.
Finally, democracy as an alive body, has the
potential to evolve by observing the local
and global challenges and rebuild itself,
leading towards the construction of justice
to as many people and nations as possible.
towards certain behaviours where any
individual might take irregular profit from
the system, being also a denial to the
Democratic Political Representation In
Brazil
constitution of privileges directed to a
specific class of individuals. Communality,
related to the citizen notion, is the evidence
that the individuals are members of a
community and protected by the laws
pertained to it. The group of laws accounts
The main goal in this section is to
delineate the Brazilian political system
mechanics, defined originally under the
concept of “Coalition Presidentialism” a
for civil and social rights of an individual in
its relation to the other members of a society
or community (ROSANVALLON, 2011). In
summary, governing the social, in an equality
framework, is create the ways for the
exposed orders to happen, and involve
7
Pierre Rosanvallon (2011), in La Société des
égaux, retraces the ideologies and struggles
that helped to define the concept and
orientation for equality. For a better
understanding of all the propositions made
by the author regarding the equality orders,
refer to IV Chapter: Le Grand Retournement.
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
term coined by Sérgio Abranches8. Further
text, and the disagreement can be verified in
studies comproved the original attribution of
the plebiscite predicted in this same final
this term, due to this peculiar Brazilian
text,
format, basing the academic literature that in
promulgation
general accepts and uses this term, thus
Constitution, that transferred to the people
establishing Brazil as a country ruled by an
the final responsibility in chosen the national
unique political model in the democratic
government system9.
world
performed
(FIGUEIREDO&LIMONGI,2004;
MOISES,2011).
five
of
years
the
after
88´s
the
Brazilian
The result of this clash and the
final Constitutional text made possible to
According to the original author of
emerge mixed government structures in the
this term (2012), this concept was conceived
Brazilian political system and in this
during the Constitutional debates in 1988, in
background arose the concept of “Coalition
consequence of the paths these debates were
Presidentialism”.
taking. These debates were guiding to a
Thus the Brazilian political system
perception of an inflexible government
was conceived under mixed characteristics10
model, unable to deal with political crisis in
from Presidentialism (United States of
face
America
of
interests’
executive
institutional
and
polarization
legislative,
devices
contained
among
and
in
model)
and
Parliamentarism
the
(European Model), in other words, it
the
gathered the concepts of Federation and
premises of the new Constitution.
The 1998 Constitutional debates´
revealed the shock of different political
Presidentialist republic and the concepts of
multiparty
system,
with
proportional
representation vote.
thoughts, in several issues, but the present
This mixture brought the polarity
discussion has a focus on the shock between
among
supporters of Parliamentary Government
(Parliamentarism and Presidentialism) to the
against Presidentialist Government. The
Brazilian model, and in addition, left this
debate´s polarization can be perceived in the
polarity even stronger by providing two
Constitutional devices contained in the final
different sorts of representatives, between
both
systems
of
government
executive power and legislative power.
“Brazil is the only country which, as well as
combining proportionality, a multisystem
and an 'imperial Presidentialism', organizes
the Executive based on large coalitions. I
will call this peculiar trait of the concrete
Brazilian institutionality, for lack of a better
alternative,
'coalition
Presidentialism'”
(ABRANCHES, 1988)
8
9
The plebiscite performed in 21/04/1993
had Presidentialism system as winner with
55,58% of vote. Data available at
<http://www.tse.jus.br/eleicoes/plebiscitos
-e-referendos/plebiscito-de-1993> access in
02/02/13
10
(ABRANCHES,2012); (SANTOS,2004).
159
De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
In one hand the Congress members
and bargain with other political parties,
(Federal Deputies and Senators) are elected
seeking to obtain the support of Brazilian
by each State of the Federation, having a
Congress majority (SANTOS,2004). Bargain
fixed number of seats for each one of the
is the buzzword at the government base
state independent of number of inhabitants
composition’s negotiations and the executive
and geographic dimensions of them. This
distribution of Ministerial, Secretarial, Public
specific election is deeply influenced by local
Companies posts and so on, is used as a
interests, due to the necessity of resources to
bargain chip with other parties, in the effort
pay the costs of a political campaign11. It
to build government support basis.
reaffirms local elites responsiveness at the
Thereby,
unlike
the
original
related Congress and guide toward policies
political instability theories that pointed out
that seek to allege pre-established interests.
several
On the other hand the executive power is
government towards an operative inertia due
elected by the totality of Brazilian citizens
to conflicts of interest in between executive
defining the elections by considering the
and legislative, this consolidated political
total amount of votes in absolute numbers.
system guarantees the executive capacity to
However this so called majority actually
set up its own agenda, obtaining approval at
represents mainly the urban votes, originated
the house of the parliament, and besides,
from big cities and metropolitan areas of the
place the executive in a comfortable and
country,
dominant position over the parliament
being
then
a
reflection
of
reformative interests that desire structural
that
are
oriented
for
its
maintenance.
Nevertheless, the question that
that
could
take
the
(MOISES,2011).
changes in the society dynamics, unlike the
parliament,
factors
Several critics that commented this
relationship
legislative
government,
between
accused
in
its
executive
that
effort
and
actually,
to
the
achieve
remains is the same one that worried
governability, is not properly representing
academics by the time of 88´s Constitution
the society´s interests. Unlike the individual
promulgation: How will this government
representation of people’s will by their
deal with this interests’ polarity in order to
elected representatives, presupposed by the
attain governability?
Brazilian Constitution12, this mechanic sets a
The Executive power, to achieve
governability and implement his government
program, uses different forms of persuasion
11
(VIANNA,2012); (ABRANCHES, 2012)
“Art. 45. The Congress is composed of
representatives of the people, elected by the
proportional system in each state, in each
Territory and the Federal District” – our
translation.
12
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
representativity,
coalition disables any individual effort in the
representatives
legislative, having available not just the
aggregation in two different blocks, the
coalition agreements among its basis partner
government and the opposition, being the
parties,
latter a force extremely weakened by
institutional tools that can block any
institutional
divergent interests in the congress.
different
sort
characterized
of
by
the
devices
Constitution
available
for
in
the
also by
One
guaranteeing
“governability”13.
but
of
having
the
different
Coalition
Presidentialism main characteristics is one of
Instead of a truly democratic
the European Parliamentary System basis,
representativeness, these party negotiations
the party discipline in congress voting
for governmental base arrangements, leads
(MORAES,2001;
the
SANTOS,2004).
“Coalition
movement
of
Presidentialism”
democratic
to
a
MOISES,2011;
In
the
broad
study
“delegation”
prepared by Figueiredo e Limongi (2004,
(SANTOS, 2004). And both words have
our translation), this tendency can be thus
completely
and
verified: “Since the promulgation of the
objectives towards public issues. Besides, the
Constitution, MPs affiliated to political
legislative capacity to formulate laws and
parties that compose the government basis,
accountability over the executive actions is
voted with the government in 90% of the
hampered. The presidential government
consultations. Variations by government and
different
meanings
party are small.” This finding underpins the
13
Is important to keep in mind a brief sum
up of the issues that concerned the
Constitutional Assembly toward this
conception of “governability”. According to
Moises (2012) the problems of decisional
blockade due to conflicts among Executive
and Legislative between 1946 and 1964, the
last democratic experience period in Brazil
before the Military Government, were the
cause of several government crisis that
happened in almost all the governments in
this specific period. And during the
Constitutional debates, not Just the
representatives but also the media were
concerned in how to solve “problems of
efficiency and effectiveness” in the
government, and searching for a way out of
these crisis the final Constitutional text
predicted some institutional devices that
could manage this constitutional shocks
favoring the executive power over the
legislative.
theory of the lack of individual and
fragmented action in the congress shown
before in the beginning of this article.
In addition, as stated before, the
minority in the congress, the opposition, is
not capable to block any government basis
interests by voting (LIMONGI, 2006), due
to
the
inexistence
of
institutional
mechanisms available for them. In other
words, the majority in the congress sets the
agenda.
In this scenario the only option to
influence the government agenda and to
propose new initiatives or changes in
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De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
government politics is to be part of the
the resources available, toward projects of
government basis, or to wait the next term
their interest.
trying to become the government, rather
This individual orientation could
than opposition. Another aspect important
generate clashes with the coalition action,
to underline is that the legislative members,
but as shown by Argelina Figueiredo and
ever since the political campaign, depended
Fernando Limongi (2005), the executive has
more of their individual efforts and actions
the attribution to liquidate or not the
to become elected than to the party
projects in queue waiting for budget
actions14. And once elected, if they seek
availability. This legal proposition sets the
power maintenance and reelection, they
necessity for setting up and forward projects
must engage in political actions directed to
aligned to the presidential program agenda,
the groups that got them elected (VIANNA,
otherwise they will not be put in practice,
2012).
thus legislative body individual political
Often, this specific electorate is
interests will not be accomplished.
Above
sensitive in political campaigns to impactant
to control to execute
projects, such as bridges, roads, new schools
individual budget amendments, as exposed
and other public local ameliorations. And
before, the executive has other institutional
the regional representatives negotiate inside
mechanisms that guarantee the governability
the government how to achieve their goals,
over the legislative, such as possibilities to
bringing
political
set an urgency tag over his projects (directly
projects that are for the sake of their specific
affecting the commission’s work in projects
agenda and electorate. To accomplish this
analysis), or to edit a law in a provisional
individual necessity, the legislative members
form without the immediate legislative
have available the possibility of budget
participation or its approval 16.
federal
resources
to
amendments15, with a common value fixed
Inside
this
dynamics
is
not
for all them during each year of their
surprising the conception accepted by the
mandate, allowing them to act as the
largest part of the academic literature on the
executive power, choosing the destination of
issue17, that in Brazil the executive exercises
two functions, being also the country’s main
14
According to Jairo Nicolau (2002, p.224):
“The frequencies suggest the predominance
of mandates customization: Members
attributed a weight of 73% on individual
performance and 27% to the party label” –
our translation
15
To go further in this subject consult
(FIGUEIREDO&LIMONGI, 2005).
legislator. As a result, who sets the agenda
16
To go further in this subject consult
(ALMEIDA&SANTOS, 2011).
17
(MORAES,2001; MOISES,2011;
SANTOS,2004; FIGUEIREDO&
LIMONGI, 2004)
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
based on its own interests is the executive
here, about the fact that the executive votes
power, and of course the coalition parties
are originated from big urban centers and
influence it during negotiations, being
metropolitan areas mainly. These votes can
undergone
and
be signified as a desire for reformist policies,
impositions over their specific goals and
and are encompassed by the search for the
policies,
bargain
application of a clearer political program and
mechanisms, the executive agenda can
the interests in the accomplishment of the
outweigh the coalition interests.
agenda
by
but
some
restrictions
through
the
But even with this executive
promised
during
the
political
campaign.
supremacy, is an illusion to think that the
Thereby in order to keep the power
executive can grasp the majority interests, as
and to guarantee the reelection, the elected
we can verify by Fernando Henrique
President must put in practice his own
Cardoso words, Brazilian President in
government agenda, even being somehow
between 1995 – 2002:
conflicting with the legislative interests, as
To accomplish what
he promised his
voters
(the
president) needs the
Congress. And to
get a majority in
Congress, alliances
must
be
made
because
the
heterogeneity of the
Federation and the
peculiarities of the
Brazilian
proportional
representation
system produce a
fragmented
party
framework,
in
which no single
party
holds
a
majority
(quote
MOISES,
2012,
p.11)
stated
before,
characterized
as
more
conservative.
Right here there is another shock
of interests, between the coalition parties’
political agenda and the President party.
These parties in the government basis play a
“regulator” role, because even with the
bargain of political positions, they have to
engage in actions that could be accepted by
their electorate, in other words, they will try
to moderate the reformist action of the
executive, to defend their own political
agenda, at the same time that they will search
for positions and power inside the coalition
composition.
As pointed by Abranches (2012),
One point to be discussed over this
this dynamics are natural in the democratic
specific statement is a reflection about which
regime, due to its central characteristic of
voters he is speaking of. In this sense, it can
seeking maintenance and power preservation
be reminded what has been already exposed
instead of big structural changes. For this
163
De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
author, it was always a conflict area for
democracies
in
developing,
that
p.32
translation)
need
our
structural and fast changes, and this conflict
Be “reactive” is one of the main
can be clearly visualized in the Brazilian
characteristics of the Brazilian legislative,
agenda as well.
being one of the reasons of their small
This power conflict results in
contribution in relevant public policies. Its
endless negotiations among Legislative and
contribution with proposals is almost
Executive powers, having the Executive as
insignificant in absolute numbers and also in
the leader setting and directing the political
relative numbers related to their main
agenda. At the same time this is not just a
attribution (laws and accountability). And
counter-power relation, is an eternal power
even in the executive proposal analysis, the
struggle against and with all the other
legislative is limited to small technical
parties, in a continuous relation of rejection
adjustments, without any substantial changes
and necessity. The question to answer at this
in it.
José Álvaro Moisés in order to
time is: How does the executive set its
prove this statement did a broad study over
political agenda?
To answer this question it is
the Congress dynamics toward proposals’
essential to expose what the term “reactive
analyses and approvals, comproving that the
legislative” stands for:
legislative ability in the production of laws is
A reactive legislative
is that one who
delegates
the
initiative of the
most
important
legal propositions to
the
Executive.
Setting the agenda,
as well as the
priorities regarding
the
order
of
consideration
of
bills, is transferred
to the government
and negotiated later
with MPs who lead
the
legislative
majority party or
coalition.
The
Brazilian Legislative
is
reactive
(SANTOS,
2004,
quite low compared to the executive,
demonstrating once again how the executive
outweigh the legislative in this specific
Government attribution. According to his
study:
…of the total of
2,701 proposals that
were brought to the
plenary
of
the
Chamber
of
Deputies between
1995 and 2006,
involving
the
production of laws
and
policy
decisions, 85,50%
(2,310)
were
originated by the
executive and only
14,50% (391) by the
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Politikon: IAPSS Political Science Journal
legislative…
(MOISÉS,
p.16
translation)
Vol. Nr. 20, June 2013
instead of long term policies concerned with
2011,
our
“State”.
Regarding the development of this
This clearly can point out to a
section, to put the executive agenda in
reversal of roles, when the executive takes
practice is the main goal of the Government,
the responsibility to legislate. It changes all
therefore to guarantee a good government is
the government dynamics, due to the double
a central condition toward the power
attribution, of legislating and executing,
maintenance in the reelection and in the
according to its own political agenda and
others power projects of this specific party.
During all the explanation in this
interests, breaking the democratic classical
section, it could be verified how blur is this
conception of power division and balance.
of
individual representation in the Congress,
executive´ primacy, this study also showed
being highly influenced by antagonistic
that proposals connected with themes
interests and characters. The Constitutional19
towards the electorate expectations took
premise
more time to be approved in the Congress
representativity is being filtered by other sort
than proposals concerned with governability
of interests, in face of the institutional design
interests18.
of the Brazilian political system.
Supporting
this
dynamics
of
people´s
sovereignty
and
This roundly demonstrates that the
If this system is not suited to
governability interests bare advantage in
society’s expectations or to the democratic
relation to the state policies, once the
concept of individual representation, the
category of proposals concerned with
fault cannot be leaned over the actors in this
governability
more
dynamic. They are playing a game of political
urgency than structural State policies, in
survival in this chessboard conceived by the
other words, reflects the primacy of short
88´s Brazilian Constitution, and using the
term policies concerned with “Government”
words of Vianna (2012): “Blame the game,
were
treated
with
“…the projects that took more time to be
approved were precisely the ones referred to
the accountability over the executive (1717.7
days), then come the economy (1405.2) and
health (1262.4), whereas in the case of
executive projects of direct interest, relating
to ensuring good performance of
governments, their procedure time is quite
lower: the Taxation and Budget (537.4) days
and Administration and Organization of
Power (541.6)…” (MOISES, 2011, p.18)
not the players”.
18
Governability Against Plural
Representation
“Art.1 All power emanates from the
people, who exercise it through elected
representatives or directly, under this
Constitution” – our translation
165
19
De Souza Lima and Desenzi
One
of
the
Legislative Representation and Governability in Brazil
most
important
characteristics that can be related to the
a power delegation instrument and not as an
object for a pluralist representation.
Brazilian presidential system is that, since the
In the studies developed by Manin,
1988 Federal Constitution promulgation,
Przeworski and Stokes (1999), it was
governability has been the buzzword by
asserted that, in modern democracies, it does
which this political system revolves around.
not matter the “direction” to which the
This is due both by historical facts
elected representatives follow through, as
and the supremacy of an elitist democratic
long as they move along, or to be more
theory, mostly in line with the models
explicit, as long as they hold governability in
advocated by Schumpeter20. This elitism is
their hands, thus preventing structural crisis
verified as rule in many other modern
derived from an inertial condition of actions.
democracies (MANIN, PRZEWORSKI E
Indeed, stability is preferred over the risks
STOKES. 1999). As the academic studies
that might be brought by a more plural
demonstrates, this democratic model not
political representation.
only places individual participation on a
The Brazilian political model is
second plan, but also regards it as something
corroborant with this scenario as they make
to be limited21, and has universal suffrage as
use of strategies such as distribution of
posts, either ministerial or administrative in
public companies, so as to be able to activate
“The voters outside of parliament must
respect the division of labor between
themselves and the politicians they elect.
They must not withdraw confidence too
easily between elections and they must
understand that, once they have elected an
individual, political action is his business and
not theirs. This means that they must refrain
from instructing him about what he is to
do—a principle that has indeed been
universally recognized by constitutions and
political theory ever since Edmund Burke’s
time.” (SCHUMPETER, 1969, P.295)
21
“This stabilization occurred in two ways:
by giving priority to the accumulation of
capital in relation to social redistribution,
and by limiting citizen participation, both
individually and collectively, in order to not
"overload" to much the democratic system
with social demands that could put endanger
the priority of accumulation over
redistribution”. (AVRTIZER&SANTOS,
2003, p.14)
20
their agenda, as shown in the last section.
The representation of the individual wills is
overlooked and used in election issues,
mainly based in the power relation among
media
and
politics
construction/deconstruction
in
of
the
electoral
arguments (CASTELLS, 2009).
In this sense, it can be wondered:
Can we affirm that the underrepresentation
could be strict connected to the structural
problem of the executive power overlapping
of the legislative power in the “Coalition
Presidentialism”?
Having this question on mind,
some thoughts can be developed. In spite of
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Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
the fact that the proportional vote brings in
within the Brazilian government presents
itself a more fragmented character, thus
itself as an effective filter of social plurality
more connected with the different national
demands.
demands in the countries´ geographical
To understand the democratic
aspect, it lacks of this same fragmentation in
representation
the economical aspect. As we showed
maintenance of certain status quo, the veto
before, the legislative vote in Brazil is more
players concept of Tsebelis (2009) can be
conservative, representing mainly the local
useful. According to the author, political
elites, due to its economic resources to pay
institutions would also be composed of
the campaign costs.
actors constitutionally power vested with the
filter
regarding
the
In face of this character, the
right to opine about policy decisions, with
parliament would be prone to specific status
the capacity of veto. The distance between
quo maintenance (ABRANCHES, 2012).
the interests of these actors would set the
Contradicting the executive votes profile
game of interests within the Government.
who represents voters with more reformist
In addition, according to Tsebelis
features, willing to change this specific status
(2009), the structural design composed with
quo and that make reference to at least half
the veto players, allows only incremental
plus one of the national electorate, referring
changes in political legislation, due to the
to the number of votes needed to the
difficulty of reaching consensus in any
president election. Thus, it is not possible to
specific bill with the diverse interests being
affirm that the legislative with conservative
sometimes diffuse or antagonistic, contained
characteristics
in the discussion and decision sphere.
would
represent
the
aspirations of the population within its social
plurality.
Corroborating
the
thesis
of
democratic elitism, according to Müller
Therefore as observed, the plurality
(2009), is the multiplicity of veto players that
representation flaws are not just located on
guides to an institutional stability. Compared
the structural nature of the "Coalition
with the previous section on the functioning
Presidentialism". This surely brought various
of the Brazilian political system, we can
characteristics to this “relationship”, further
verify this institutional structure composed
accentuating the disconnection with the
of several instances with veto power,
social demands, due to the power struggle
providing institutional stability within the
that prevails over the structural policy
"Coalition
changes implementation, as demonstrated
despite the desired institutional stability, due
previously. Besides, this power struggle
to the large number of veto players it allows
Presidentialism".
However,
167
De Souza Lima and Desenzi
only
incremental
Legislative Representation and Governability in Brazil
changes
and
the
these changes, such as reflected here. This
democracies,
because it affects
the legitimacy and
effectiveness of a
central dimension
of the system, from
the perspective that
emphasizes
the
quality
of
democracy
(MOISES,
2011,
P.27
–
our
translation)
conflict is against the flow of individual
Assessing the democratic quality, in
maintenance of a certain status quo.
In protecting this particular status
quo,
according
Abranches
(2012),
developing countries face a central problem
because such countries need deep structural
changes, while the mechanisms of selfpreservation of modern democracies prevent
demands for reforms.
this case, is directly connected to the
The self-preservation in modern
legitimacy of this political process in
democracies dynamics came to play an
apprehend the people, in its plural and
important role in the recent political
diverse sense, as sovereign and central at the
maturation in Brazil, not just as political
government
system but in its institutions in general. This
democracy to be understood in its full sense,
is also due to the international scenario that
representation and inclusion should be
differs almost completely to the others
observed within the great national plurality
national
dimension, in relation to the interests
democratic
experiences,
these
structures.
Thus,
for
the
experiences were marked by decisional
pertained
paralysis and constant tensions between the
Nevertheless, apart from legitimacy, from a
powers.
value chain point of view, the procedural
However, despite this harmony
between military, political
to
several
society’s
stratus.
most important dimensions, whose existence
system and
is essential to a higher level of democratic
constitutional norms obedience, combined
quality, is also defective, since accountability,
with a long period of stability and economic
as one of the most important dimensions for
growth, the perception of democracy by the
representation, cannot be fully applied.
people is negative.
Due to these exposed points, some
The negative public
perception on the
performance
of
Congress cannot be
ignored if the goal is
to understand the
dynamics
of
representative
political thinkers22 have considered the
Brazilian democracy as a low quality one.
The argument behind this assertion accounts
for the
fact
that,
in the
name
of
22
(MOISES,2011; VIANNA, 2012,
SANTOS, 2004)
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Politikon: IAPSS Political Science Journal
governability,
a
reprehensible
Vol. Nr. 20, June 2013
political
practice has been put in practice. For the
change, as Inglehart and Abramson (1994)
would argue.
difficulties in obtaining a simple majority in
In this specific reflection, the goal
the decision making process, paves the way
it is to analyse this scenario with a
to the construction of heterodox alliances
philosophical political point of view. If it is
with very distinct ideologies.
assumed that democracy presents the best
tools for organizing the societies25, than this
type of judgment is essential. In this sense,
Desirable Ways For The Brazilian
Democracy
Lefort has a very strong point that helps to
It might be surprising to make such
an assumption regarding the Brazilian
political scenario, especially in this moment
that the country has been acknowledged as a
make clear the role that the political science
has in the defence of our democracies, when
he advocates for the revival of a political
philosophy:
nation in strongly “development” that has
accomplished
notable
achievements
Understand
democracy
as
a
subject with a set of
moral values. This
will allow us to
understand
democracy as a form
to
organize
the
society considering
the dichotomies that
are in the kernel of
the human relations,
being
able
to
understand and grasp
the difference in
between legitimacy
and
illegitimacy,
between truths and
lies,
between
authenticity
and
imposture, between
the pursuit of power
or of private interests
in
reducing inequality and extreme poverty. In
2012, a survey applied by the National
Economic Research Institute reveals that in
a 0 to 10 scale, Brazilian people ranked their
lives with a 7,1 grade, in a medium scale23.
As an addition to that, the President in
exercise has been approved by 78% of the
population, according to the last opinion
survey from December 201224. Deeper
scrutiny is necessary if a comparison in
between political and economic attitudes is
to be taken. It is not possible, at this
moment, to relate the differences in between
representation and economic satisfaction to
a theory of economic security and value
See the editorial: “2012: Desenvolvimento
Inclusivo Sustentável” (IPEA, 2012)
24
See the editorial: “Aprovação do Governo
Dilma atinge novo Recorde de 78%”
(COBUCCI, 2012)
23
“Althought democracy may not assure
representation, it is still plausible that
democracy is more conducive to
representation than alternative regimes.”
(MANIN,PRZEWORSKI &STOKES,
1999, p.50)
25
169
De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
and the pursuit of the
common good. If we
refuse to risk making
judgements, we lose
all sense of the
difference between
forms of society. If is
assumed
that
democracy presents
the best tools for
organizing
the
societies, than this
type of judgment is
indispensable
(LEFORT, 1988, p.9)
not conceived as a movement towards the
maintenance of an status quo and this was not
its central role along the its consolidation
path. Democracy, as the rule of the people,
has in its reasoning the premise to follow up
with the new conceptions of people, taking
into consideration the general changes in
society. Reflecting on this, the exposed
political system as it is composed and
founded cannot be able to exercise a
flexibility that a democratic practice requires.
It cannot be denied that democracy
is founded in tension and some level of
contradiction. As reflected by Rosanvallon
(2008), democracy represents a contradiction
in between conflict legitimacy and the
aspiration of consensus, a contradiction
between a realistic decision principle and a
justification principle. Nevertheless, as a
philosophical and moral concept is also part
of a democratic dimension analysis, the
values attributed to the political practices are
also to be considered. Thus, another dualism
is emerged, by which a tension in between a
decision-making democracy and a conduct
oriented democracy is also established. In
this sense, as figured by Avrtizer and Santos
(2003), democracy should always imply the
rupture of a series of consolidated traditions
and, therefore, set up the continuous
tentative of instituting new determinations,
new rules and even new laws.
In a clear contradiction to an elitist
model that is being perceived at the political
For this reason, recovering some
points exposed in this reflection, might lead
us to think about the importance of
democratic legitimacy to be applied over this
political model, as a means to change the
consolidated structures that builds a barrier
to the attempt of constructing a valuable and
better quality representation system. The
points highlighted by Pierre Rosanvallon
(2008) accounts for the establishment of a
modern sense of generality, by which could
be
applied
the
procedures
towards
democracy decentralization. Thus, attention
to the three types of legitimacy should be
given. Impartiality legitimacy should be
linked to a detachment of particularity,
supporting the basis for equality and
suppression of granted privileges. On
reflexivity, democratic legitimacy is regarded
to the possibilities of multiplying the
expressions of social sovereignty, creating
real participation spaces other than direct
elections. And finally, in a proximity
scenario in Brazil, democracy, in history, was
170
Politikon: IAPSS Political Science Journal
dimension
of
legitimacy,
attention
Vol. Nr. 20, June 2013
to
particularity is to be given in order to attend
the diverse society demands in the defence
of a plural representation.
Through
this
perspective
the
democracy and its representation system in
Brazil needs to move towards a refunding of
its basis, bringing more legitimacy by
plurality, replacing elitism by a new political
concept "based on the creativity of social
actors"26. As stated by Manin, Przeworski
and Stokes (1999, p.51): "Hence, there is lots
of room for institutional creativity". (1999,
p.51).
Alvarez, Débora; Brito, Ricardo. Renan
Calheiros volta à presidência do Senado após
5 anos de sua renúncia Parlamentar venceu
disputa contra Pedro Taques (PDT-MT) por
56 votos a 18. Estado de São Paulo, São
Paulo, 01 fev. 2013. Available in: <
http://www.estadao.com.br/noticias/nacio
nal,renan-calheiros-volta-a-presidencia-dosenado-apos-5-anos-de-suarenuncia,991822,0.htm> access in: 12 fev.
2013.
Avritzer, Leonardo and Santos, Boaventura
de Souza. Para ampliar o cânone
democrático. Revista Critica de Ciências
Sociais, 11 mar. 2003. 30 p. Available in
<http://www.eurozine.com/articles/article
_2003-11-03-santos-pt.html> access in
02/01/2013
Bergamasco, Débora; Lopes, Eugênia.
Renan dá cargos, consolida apoios e deve
vencer no Senado com ampla vantagem.
Estado de São Paulo, São Paulo, 31 jan.
2013.
Available
in:
<http://www.estadao.com.br/noticias/naci
onal,renan-da-cargos-consolida-apoios-edeve-vencer-no-senado-com-amplavantagem,991012,0.htm> access in: 12 fev.
2013.
Castells, Manuell. Comunicación y Poder.
Madrid: Alianza, 2009, 679 p.
References
Abranches, Sérgio. Presidencialismo de
coalizão: o dilema institucional brasileiro.
DADOS – Revista de Ciências Sociais, Rio
de Janeiro, vol. 31, nº1, 1988, p.5-38
Abranches,
Sérgio.
Federação
e
presidencialismo de coalizão: 3º Ciclo de
Conferências - Eleições e Reflexões:
Federação e presidencialismo de coalizão,
Rio de Janeiro, 15 jun. 2012. Available in:
<http://www.youtube.com/watch?v=gdbnc
Le10Rk&feature=youtube_gdata_player>
access in 02/01/2013
26
(Avrtizer&Santos, 2003)
Cobucci, Luciana. Aprovação do governo
Dilma atinge novo recorde de 78%. Portal
Terra, Brasília, 14 dez. 2012. Available in: <
http://noticias.terra.com.br/brasil/politica/
aprovacao-do-governo-dilma-atinge-novorecorde-de78,76a69a713899b310VgnVCM3000009acce
b0aRCRD.html> access in: 12 fev. 2013
Constitution of the Federative Republic of
Brazil
of
1988,
Available
in
<http://www.planalto.gov.br/ccivil_03/con
stituicao/constituicao.htm>
access
in
02/01/2013
Dahl, A. Robert. Polyarchi participation and
opposition. New Haven, Yale University
Press, 1971
Dahl, A. Robert. Democracy and its critics.
New Haven, Yale University Press, 1989.
171
De Souza Lima and Desenzi
Legislative Representation and Governability in Brazil
Figueiredo, Angelina; Limongi, Fernando.
Modelos de Legislativo: O Legislativo
Brasileiro em
Perspectiva
Comparada. Revista Plenarium. Câmara dos
Deputados, Ano 1, Nº 1, Novembro de
2004, p. 41-56.
Figueiredo, Angelina; Limongi, Fernando.
Processo Orçamentário e Comportamento
Legislativo: Emendas Individuais, Apoio ao
Executivo
e
Programas
de
Governo. DADOS – Revista de Ciências
Sociais, Rio de Janeiro, vol. 48, nº 4, 2005, p.
737-776
Foucault, T, Michel. Il faut defendre la
société: cours au College de France. 19751976. Paris: Gallimard/Seuil, 1997.
Inglehart,
Ronald; Abramson,
Paul.
Economic security and value change.
American Political Science Review 88: 336354
IPEA. 2012: Desenvolvimento Inclusivo
Sustentável. Comunicados IPEA, Brasília,
nº158, 18 dez. 2012. Available in: <
http://www.ipea.gov.br/portal/images/stor
ies/PDFs/comunicado/121218_comunicad
oipea158.pdf> access in 04 jan. 2013
Lefort, Claude. Democracy and political
theory. Cambridge: Polity in association with
Basil Blacwell, 1988.
Limongi, Fernando. A Democracia no
Brasil: Presidencialismo, coalizão partidária e
processo decisório. Novos Estudos Cebrap,
São Paulo, nov., nº76, 2006, p. 17-41
Moisés, José Alvaro. O desempenho do
congresso nacional no presidencialismo de
coalizão (1995-2006). In: Moisés, José
Alvaro (participation/org.). O papel do
congresso nacional no presidencialismo de
coalizão. Rio de Janeiro: Konrad-AdenauerStiftung, 2011. p. 7-29.
Moraes, Filomeno. Executivo e legislativo
no Brasil pós-constituinte. São Paulo em
Perspeciva, São Paulo, vol.15, nº4, 2001,
p.45-52
Morlino, Leonardo. Qualities of democracy:
How to analyze them? Florence: Instituto
Italiano di Scienze Umane, 2009.
Müller, Gustavo. Representação política:
Neoinstitucionalismo
em
perspectiva
comparada. Revista brasileira de ciências
sociais, São Paulo, vol. 24, nº69, 2009,
p.115-127
Nicolau, Jairo. Como Controlar o
Representante? Considerações sobre as
Eleições para a Câmara dos Deputados no
Brasil. Dados – Revista de Ciências Sociais,
Rio de Janeiro, vol. 45, nº2, 2002, p. 219-236
Norris, Pippa. Critical Citizens: global
support for democratic government.
Oxford: Oxford University Press, 1999.
Oxfam The cost of inequality: how wealth
and income extremes hurt us all: Oxfam
Media Briefing, ref: 02/2013, 18 jan. 2013.
Available
in:<
http://www.oxfam.org/en/pressroom/pres
srelease/2013-01-19/annual-income-richest100-people-enough-end-global-povertyfour-times> access on: 08 fev. 2013
Powell, G. Bingham. The chain of
responsiveness. Journal of Democracy,
Vol.15, n.4, October 2004. P.91-105
Przeworski, Adam; Stokes, Susan; Manin,
Bernard. Democracy, Accountability, and
Representation. Cambridge: Cambridge
University Press, 1999, 351 p.
Rosanvallon, Pierre. Democracy past and
future. New York, Columbia University
Press, 2006.
Rosanvallon,
Pierre.
La
legitimité
democratique:
Impartialité,
reflexivité,
proximité. Paris, Editions de Seuil, 2008.
Rosanvallon, Pierre. La societé des égaux.
Paris, Seuil, 2011.
Santos,
Fabiano;
Almeida,
Acir.
Fundamentos
Informacionais
do
Presidencialismo de Coalizão. Rio de
Janeiro: Appris, 2011, 216 p.
Santos, Fabiano. A reforma do poder
legislativo no Brazil. Revista Plenarium.
Câmara dos Deputados, Ano 1, Nº 1,
Novembro de 2004, p. 26-40.
172
Politikon: IAPSS Political Science Journal
Vol. Nr. 20, June 2013
Schumpeter, Joseph Alois. Capitalism,
socialism
and
democracy.
London:
Routledge, 1994, 437 p.
Touraine, Alain. Pourrons-Nous Vivre
Ensemble? Égaux et différents. Paris:
Editions Fayard, 1997
Telles, Vera da Silva. Igualdade: Qual a
medida? In: Veras, Maura Pardini Bicudo
(org.). Hexapolis: desigualdades e rupturas
sociais em metrópoles contemporâneas. São
Paulo: Educ e Cortez, 2004.
Tsebelis, George. Atores com Poder de
Veto: como Funcionam as Instituições
Políticas. Rio de Janeiro: Editora FGV,
2009, 440 p.
Vianna,
Sérgio
Besserman.
Representatividade na democracia Brasileira:
3º Ciclo de Conferências - Eleições e
Reflexões: Federação e presidencialismo de
coalizão, Rio de Janeiro, 18 jun. 2012.
Available
in:
<http://www.youtube.com/watch?v=b8FO
4ZHZlA0&feature=youtube_gdata_player>
access in 02/01/2013
173
Jennifer di Paolo
Violence Against Native American Women in the United States
Violence Against Native American Women in the United
States
Jennifer DI PAOLO, University of Toronto, Canada
Abstract
n response to the topic of Global Justice and Human Rights: Country Case Studies, I
will discuss the origin and continuation of violence against Native American women
in the United States. In a report named Maze of Injustice: The Failure to Protect
Indigenous Women from Violence by Amnesty International, the organization
deemed the current status of violence against indigenous women one of the most pervasive yet
hidden human rights abuses. The U.S Department of Justice has found that Native American and
Native Alaskan women are 2.5 times more likely to be raped or sexually assaulted1. During an
International Expert Group Meeting discussing Combatting Violence Against Indigenous
Women and Girls, the United Nations Department of Economic and Social Affairs declared it a
human rights issue of epidemic proportions. One in three Native American women are raped and
three in five are physically assaulted. In reference to interracial violence, four out of five Native
American victims of sexual assault reported that the perpetrator was white2. Unfortunately due to
the shame and stigma surrounding topics such as sexual assault and rape it is estimated that in
reality these numbers are far higher. Scholars and historians of pre-colonial Native societies have
found that during this period women held prominent positions and violence against women was
rare. With colonization came a radical change to the role of women in Native society. Gender
based violence and the exclusion of women in important positions was a powerful tool used by
British settlers to dismantle the structures of native society and ultimately conquer it3. Presently,
due to the inadequate legal power given to Indian nations the crisis is not being dealt with
efficiently. For example, Indian nations are unable to prosecute non-Indian offenders4. In my
discussion of violence against Native women in the United States I will begin by analyzing its
colonial origins. Next I will discuss why this violence persists today with reference to laws and
judicial processes. Finally, I will discuss what must be done to end these human rights abuses.
I
1
Amnesty International. Maze of Injustice: The Failure to Protect Indigenous Women from Violence in the USA
(24 April 2007)
http://www.amnesty.org/en/library/asset/AMR51/035/2007/en/ce2336a3-d3ad-11dd-a3292f46302a8cc6/amr510352007en.html (accessed December 20 2012)
2
Henry, Terry. Addressing Violence Against Native American Women and Girls as a Human Rights Issue .
United Nations Department of Economic and Social Affairs. Combatting Violence Against Indigenous Women
and Girls: Article 22 of the United Nations Declaration on the Rights of Indigenous People (New York, January
2012)
http://www.un.org/esa/socdev/unpfii/documents/EGM12_Henry.pdf (accessed December 20 2012)
3
Amnesty International. Maze of Injustice: The Failure to Protect Indigenous Women from Violence in the USA
4
Henry, Terry. Addressing Violence Against Native American Women and Girls as a Human Rights Issue
174
Politikon: IAPSS Political Science Journal
n a report named Maze of Injustice:
The Failure to Protect Indigenous
Women from Violence by Amnesty
International, the organization
deemed the current status of
violence against Native women one of
the most pervasive yet hidden human
rights abuses of our time. The United
States Department of Justice has found
that Native American and Native Alaskan
women are 2.5 times more likely to be
raped or sexually assaultedi. During an
International Expert Group Meeting
discussing Combatting Violence Against
Indigenous Women and Girls, the United
Nations Department of Economic and
Social Affairs declared it a human rights
issue of epidemic proportions. One in
three Native American women are raped
and three in five are physically assaulted.
In reference to interracial violence, four
out of five Native American victims of
sexual assault reported that the
perpetrator was whiteii. Unfortunately due
to the shame and stigma surrounding
topics such as sexual assault and rape it is
estimated that in reality these numbers
are far higher. Scholars and historians of
pre-colonial Native societies have found
that during this period women held
prominent positions and violence against
women was rare. With colonization came
a radical change to the role of women in
Native society. A gender based hierarchy,
violence, and an attack on the important
role of Native motherhood were
powerful tools used by British settlers to
dismantle the structures of Native society
and ultimately conquer itiii. Presently, due
to the diminution of Native sovereignty
and the subsequent inadequate legal
power given to Indian nations the crisis is
not being dealt with efficiently. Despite
these
limitations,
the
recent
I
Vol. Nr. 20, June 2013
developments in laws pertaining to
Native women and various organizations
and initiatives created by female Native
activists have made progress for the
safety of Native women. In this
discussion of violence against Native
women in the United States we will begin
by analyzing women’s role in traditional
Native society. Then we will investigate
the colonial origins of violence against
Native women. Next we will discuss why
this violence persists today with reference
to laws and judicial processes. Finally, we
will discuss what female Native activists
are doing to combat the problem and the
most efficient solutions to these issues.
We must begin our analysis of
violence against Native women by
addressing the question of what role
Native women had in traditional
society. Although the position of
women in Native society differed from
tribe to tribe there are many common
characteristics among them. Overall,
women held a complementary role to
men instead of a secondary oneiv.
Native society was built on beliefs and
practices that made up an integral part
of their culture such as the belief of
respect and safety, which protected all
Native people, including women, from
violence. The relationship between men
and women within Native families was
built on these beliefs of safety and
respect and mothers played an
important role within the family,
culture, society, and economyv. Native
mothers were a part of the economic
system because they had control over
the home, food production, trade, and
the
distribution
of
resourcesvi.
Although there was a division of labour
between men and women this division
was not used to oppress women
175
Jennifer di Paolo
Violence Against Native American Women in the United States
because the labour of both genders was
seen as equally valuablevii. Some Native
societies such as the Iroquois were
matrilineal and in these societies
mothers held very powerful positions
such as acting as clan mothers. Some
other rights that Native women enjoyed
were the right to separate from their
husband and keep their property and
owning most or all of the land
including the house and animalsviiiix.
Women were political, military, and
spiritual leadersx. Despite the absence
of an over arching patriarchal system
like that of Europe, gendered violence
did happen within Native society.
However, according to oral and written
records these occurrences were very
rare and the perpetrators often faced
severe and public punishment,
displaying how much respect and safety
was built into Native society xi. It is
difficult to understand how gendered
violence towards Native women went
from a rarity to something that occurs
at a rate higher than any other group of
women in America.
The root of violence against Native
women can be traced back to the
conquest of America. During conquest
European colonists instilled a gendered
hierarchy within Native society,
employed violence, and attacked Native
motherhood. Europeans did not
understand the powerful role of
women in Native society because
European society was far more
patriarchalxii. For the Europeans,
dismantling the egalitarian role of
women in Native society was a way of
dismantling Native social structures.
During conquest Natives were coerced
into abolishing their system of
governance including the system of
traditional laws and beliefs that kept
Native women safe. Europeans
believed that the status of women in
Native society was uncivilized and that
instituting a gendered hierarchy was a
part of the process of civilizationxiii.
One way in which this hierarchy was
achieved was through the refusal of
European colonists in negotiating with
Native women. For example, despite
the number of female Chiefs and
councilors, men signed all of the
historic
treaties,
which
greatly
undermined the role of women in
political
leadershipxiv.
Christian
missionaries also pushed for the
performance of their view of correct
gender rolesxv. These roles were
different from the spiritual views that
Natives held and were used to oppress
Native
women.
Furthermore,
Christianity suppressed sexual freedom
in sexually liberal Native societies such
as the Cherokeexvi. Sexual violence was
another tool of conquest, which was
displayed in the records of Russian
soldiers in Alaska employing sexual
violence towards Native women. In
response to this, Native Alaskan men
attempted to defend Native women
from this violence displaying their
devotion to maintaining the safety and
respect
of
women
in
their
xvii
community . In contrast to the use of
sexual assault as a tool of war, it was
rare that Natives used sexual violence
towards white prisonersxviii. Another
violent method used by colonists was
clearing the land, which was usually
done through relocating entire
communities to an area more
accommodating for the colonists.
Removal and relocation led to the loss
of customary land, the lifestyles that
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Politikon: IAPSS Political Science Journal
Natives had built on that land,
economic downturn, and disparityxix.
Laws created by the United States
government changed individual rights
pertaining to property, which created
drastic changes within matrilineal
societies. Not only did women lose
their control over resources, they also
lost control over domestic and voting
rightsxx. Despite these atrocities, the
implementation of a gender hierarchy
and the use of violence during conquest
were not as vicious and hurtful as the
colonial attack on Native motherhood.
Due to the important role that
mothers played in Native society as
economic decision makers, clan
mothers, and property owners, it is no
surprise that the colonists attacked
Native
motherhood
during
colonization. The two ways in which
the colonists did this was through
residential schooling and forced
sterilization. In the boarding school era
of 1880-1950, residential schooling
would become one of the strongest
forms of forced assimilation. In this era
Native children as young as five years
old were taken from their homes and
families to attend residential schools
until age 18xxi. The first boarding school
was named The Carlisle Indian School
and was created by Captain Richard
Henry Pratt in 1879. Initially this
school had no support from the
American government but in 1891 after
Pratt had lobbied the government
extensively, funding and support was
given to open more boarding schools.
The separation of Natives from their
homes was thought to be vital to the
assimilation process. Not surprisingly,
Native parents desperately attempted to
resist sending their children to boarding
schools but Congress allowed the
Vol. Nr. 20, June 2013
Commissioner of Indian Affairs to
make rules ensuring attendance. There
were also harsh consequences for
parents who did not allow their
children to attend these schools. For
example, Native parents underwent
coercion such as the rationing of food
for their tribes, which ensured that
parents would have to choose between
starving their child or sending them to
boarding school with the hopes that
they would be fed well. Despite this
hope, the living conditions in
residential schools were no better than
in poverty stricken reserves. Boarding
schools were unsanitary, children had
to perform labour intensive work, and
they provided poor nutrition. The
combination of these living conditions
bred disease and illness. The conditions
of the residential schools were cruel
and inhumane and native children were
subjected to emotional, physical,
spiritual, and sexual violence. At
residential schools Native children were
not allowed to practice their language
or culture and instead were taught
about European history, culture, and
the English language. Many Native
children lost their spirituality in the
forced conversion to Christianityxxii.
This was important for Native women
because although Native spirituality
was
egalitarian,
Christianity
is
patriarchal. Upon returning home,
Natives felt alienated because they
could not understand the language or
culture and because they had been
taught that Native culture was inferior
to American culture. Many Natives that
had grown up in residential schools
were unable to become adequate
parents in terms of passing down their
culture, language, spirituality, or
lifestyle to their children. Residential
177
Jennifer di Paolo
Violence Against Native American Women in the United States
schooling dismantled the empowered
traditional position of motherhood in
Native society in three ways. First, by
taking children away from the guidance
of their mothers to force them into
residential schooling where they lost
their language and culture. Second, by
ensuring that women that grew up in
residential schools would be unable to
properly mother their children because
of emotional and psychological issues.
The effect that boarding schools had
on the mental health of Natives led to
mental health conditions and a reliance
on alcohol. These two issues combined
with a lack of the ability to be good
parents led to the removal of Native
children from their homes to be placed
in foster care or adoption. This
continued the cycle of removing Native
children from their mothers and is the
third way that the role of the Mother in
Native society had been forever
changedxxiii.
The next way in which the colonists
attacked Native motherhood was
through forced sterilization. Although
women of many minority groups in
America underwent forced sterilization
in the 1970s, there was something
unique about Native women in that
they were much more dependent on
the
federal
government.
This
dependence was specifically in relation
to the Indian Health Service, the
Department of Health, Education, and
Welfare, and the Bureau of Indian
Affairsxxiv. Between 1973 and 1976,
Indian Health Service clinics sterilized
3,406 Native women. It is difficult to
determine if Native women were
thoroughly informed of the procedure
and truly consented to it. There was not
a standard consent form used for every
patient and most of the forms used for
Native patients did not abide by
government regulations of informed
consent. Furthermore, it is unknown if
adequate counseling was provided
before sterilization procedures. Some
Native tribes such as the Navajo
provided counselors but areas such as
South
Dakota,
Montana,
and
Oklahoma did not have counselors and
only the doctor was present during the
sterilization procedure. Various law
suits have been filed in reference to
these flawed sterilization procedures.
Michael Zavalla is a lawyer that
represented three Native women from
Montana in a class action lawsuit
against the Department of Health,
Education, and Welfare. This litigation
was based on the evidence that these
women were sterilized without consent
or being fully informed of the
operation. It was filed against hospital
doctors who forced Native women into
sterilization by suggesting that if they
did not undergo the process they would
lose access to welfare benefits, that the
surgery was unavoidable, or worse, that
it could be reversed if needed. The case
did not go to trial but it was settled
through
compensation
on
the
agreement that the plaintiffs’ identity
and the details of the case would
remain undisclosed. After learning of
this case and others, a judge from the
Northern Cheyenne Reservation named
Marie Sanchez decided to conduct her
own inquiry into the cases of
sterilization within her tribe. The results
she obtained were unsettling. Between
1973 and 1976, two girls under 15 years
of age were sterilized under the false
pretense that they were getting their
appendices removed. Another woman
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Politikon: IAPSS Political Science Journal
underwent a hysterectomy after being
convinced by her physician that the
migraines she was suffering from
would be cured by it. It was discovered
at a later time that the source of her
problem was actually a brain tumour.
Forced sterilization undermined the
ability of Native women to reproduce,
disabling them from creating the next
generation to maintain their beliefs,
culture, and traditionsxxv. Sterilization
also has destructive effects on the
survival of an entire tribexxvi. Women
that were misinformed or coerced into
sterilization
were
denied
basic
reproductive
rights
and
more
importantly, control over their own
body. For these reasons, sterilization
was a direct attack on the traditionally
powerful role of Native motherhood.
Next we will investigate the legal
relationship between Natives and the
federal government. Through a gradual
process of diminishing Native selfgovernment and the sovereignty of
Native jurisdiction, Native women have
been separated from any other group
of American women and it has become
increasingly difficult for Native tribes
to protect themxxvii. This legal
relationship has made Native women
the most oppressed group of women in
America and the least protected legally.
In our investigation of the legal
relationship between Native tribes and
the federal government we will analyze
the Major Crimes Act of 1885, Public
Law 280 of 1953, the Indian Civil
Rights Act of 1968, and the Oliphant
V. Suquamish case.
The Major Crimes Act of 1885
allowed the American government to
assume complete jurisdiction over
severe crimes committed by Native
Americans in Native Countryxxviii. The
Vol. Nr. 20, June 2013
crimes deemed severe were murder,
kidnapping, assault, and sexual abusexxix.
This Act has restricted the ability of
Native tribes to exercise jurisdiction
within their own reserves thus
threatening their self-governance and
sovereigntyxxx. The basic premise for
federal control over Native jurisdiction
rests upon the dependence of Native
tribes on the American government
despite the reality that many Native
tribes posses their own government,
police force, and judicial system.
Federal response to Native crime is
slow and inadequate and Native
prosecution would be much more
efficient. Native police and judicial
systems are superior in investigating
and prosecuting crimes that occur
within their tribes because of their
proximity to the crimes and their
knowledge of the nature of Native
crimexxxi. The Major Crimes Act has
facilitated violence against Native
women because it has allowed the
American government to assume
control over jurisdiction of crimes that
disproportionately affect womenxxxii.
The inefficiency of the federal
government in their response and
investigation
of
major
crimes
committed in Native Country has
become an inefficiency related to
crimes against women. Public Law 280
was enacted in 1953 and altered the
laws of the Major Crimes Act in some
states. This law shifted the control of
the Federal government over Native
jurisdiction to the state governments
within California, Minnesota, Nebraska,
Oregon, Washington and Alaska in
1958. The rest of the states were given
the option to adopt Public Law 280 if
and when so chosexxxiii. The shift from
federal to state government occurred
179
Jennifer di Paolo
Violence Against Native American Women in the United States
with no contribution or consent from
the Native tribes and Native Americans
rightly saw it as another threat to their
self-governancexxxiv. A major reason
Public Law 280 was passed was to
decrease federal spendingxxxv. However,
in this process the federal government
did not supply money to state
governments to fund law enforcement
activities leading to even more
deficiency in these areas. Moreover, the
Bureau of Indian Affairs decreased
funding to Native authorities because
of the transfer from federal to state
governmentxxxvi. Native women were
negatively affected once again because
of the decrease in funding for dealing
with crimes that fall under the Major
Crimes Act and Public Law 280.
The Indian Civil Rights Act of 1968
allowed Native tribal government
jurisdiction over some criminal
procedures and the protection of other
basic rights including due process of
law. Supposedly, it was created to
protect Natives from civil rights abuses
inflicted upon them by their tribesxxxvii.
However, many Native tribes did not
see the ICRA as a Bill of Rights
designed to protect Natives but as
another attack on their sovereigntyxxxviii.
Certain policies within the Indian Civil
Rights Act had once again restricted
their ability to respond to crime. Tribal
courts were restricted from imposing a
penalty of more than one year and a
five thousand dollar fine for any one
offence. These offences could include
murder or rape, two crimes that effect
Native women at an alarming ratexxxix.
This undermined the ability of tribal
courts in responding adequately to
serious crimes and in protecting Native
women from these crimes.
The next case that threatened the
protection of Native women was the
Oliphant V. Suquamish Indian Tribe
decision. The plaintiffs of this case
were arrested by tribal police on the
Suquamish reserve. Both plaintiffs
wanted to be tried under habeas corpus
in federal courts but they were denied
this request and their case went to the
Supreme Courtxl. The ruling that came
out of this case was that Native tribes
are unable to prosecute non-Natives.
The reasons given for this ruling were
that the reserve was given to the
Suquamish Tribe by the federal
government, that the state of
Washington had funded the creation of
their schools, roads, and other public
property, and that there were far more
non-Natives in this area than Natives.
This ruling has had disastrous effects
on the safety of Natives because both
the federal and state governments have
proven to be inefficient in prosecuting
crimes pertaining to Natives. This is
due to the lack of resources and desire
to respond efficiently and promptly to
Native crimexli. This ruling has left
Native women susceptible to danger
imposed on them by non-Natives,
which is startling due to the high
percentage of violence imposed on
Native
women
by
non-Native
perpetrators. For example, four out of
five Native victims of sexual violence
claim that the assaulter was whitexlii.
This decision structurally prevents
protection for Native women against
the interracial violence they endure.
The legal initiatives that we have
explored so far have led to a serious
deficiency in protecting Native women
against violence. The Major Crimes Act
restricted tribal jurisdiction over severe
180
Politikon: IAPSS Political Science Journal
crimes that disproportionately affect
women, thus separating Native women
from other American women. Public
Law 280 transferred this power from
the federal government to the state
government in certain states without
providing sufficient funding leaving
Native women even more unprotected.
The Indian Civil Rights Act gave
Natives a Bill of Rights but limited
tribal governments from employing
serious punishments to perpetrators of
major crimes. Finally, protection for
Native women against violence
inflicted on them by non-Native men
was diminished in the Oliphant V.
Suquamish decision. These Acts and
decisions have impacted the services
and programs provided to Native
women. The increase in psychological
and
physical
illnesses
is
a
demonstration of the negative effects
that violence has had on Native
women. Studies have shown that
Native women experience a higher rate
of Post Traumatic Stress Disorder,
alcohol abuse, suicide and various other
mental illnesses than any other group
of women. Although it is proven that
Native women experience sexual and
physical violence at a greater rate than
women of any other race, there is still a
serious lack of research on the physical
and psychological effects of these
crimes. What is distinct in the situation
of Native women is the historical
trauma endured by Native Americans
within their relationship with the
federal government. Historical trauma
includes intergenerational and societal
oppression that is historical and
ongoingxliii. The policies of stripping
away the power of tribal court systems
over crimes related to Native women
coupled with the federal and state
Vol. Nr. 20, June 2013
governments insufficiency in dealing
with Native crime has left Native
women unprotected, alienated, and
distrustful. Two recent Acts that have
somewhat responded to these issues
and have improved the protection of
Native women against violence are the
Violence Against Women Act of 2005
and the Tribal Law and Order Act of
2010.
The Violence Against Women Act
passed in 2005 is the first of the two
most recent acts that have sought to
diminish violence against Native
American women. Due to the policies
within this act, for the first time Native
tribes have gained access to valuable
resources that can combat violence
against Native women in their
communities. It is especially helpful for
aiding domestic violence, sexual
violence, and stalking. Not only does it
allow access to new resources but it
also recognizes the sovereignty of tribal
responses to these crimesxliv. The
second contemporary act that has made
a positive impact on the lives of Native
women is the Tribal Law and Order
Act of 2010. This act includes policies
that will help Native survivors of sexual
and domestic violence. Some of the
specific sections within this Act that
pertain to victims of sexual and
domestic violence are sections 261,
262, 264, and 266. Section 261 gives
tribal government modes of amending
the criminal system and the ability to
track federal offenders. By ameliorating
the criminal system, tribal governments
will be able to deal with perpetrators of
violence more efficiently. Increasing
the ability to track federal offenders will
reverse some of the negative affects of
the Oliphant V. Suquamish decision
and will aid in the protection of Native
181
Jennifer di Paolo
Violence Against Native American Women in the United States
women
against
non-Native
perpetrators. Section 262 gives tribal
police more efficient methods of
questioning victims and obtaining
evidence. It also ameliorates the
services provided to victims by
extending the U.S Department of
Justice sexual assault procedures to
Native health clinics. This policy helps
in decreasing the alienation of Native
women from non-Native women by
providing them with the same standard
in sexual assault assistance. Section 264
increases the services and programs for
Native American victims of assault and
it seeks to decrease the amount of
Native women that are trafficked for
sex work. This addresses the very
serious issue of sex trafficking by
working to protect and decrease the
number of Native women that are
negatively affected by it. Lastly, section
266 enhances the ability of the Indian
Health Services to respond to sexual
and domestic violence in remote areas.
This is especially helpful in protecting
Native women that live in isolated
tribes and have difficulty traveling to
federal health clinics or seeking federal
legal actionxlv. Overall, it has attempted
to increase the services and programs
available for Native women to a level
comparable to those available for other
women within the United States.
Despite the overwhelming amount
of structural ways in which violence is
inflicted against Native American
women it would be discouraging and
incomplete to ignore the progressive
work that Native female activists have
done in regards to combatting this
violence. Although there are numerous
exceptional Native female activists, we
will be focusing on three scholars that
embody Native feminism: Renya
Ramirez, Andrea Smith, and Luana
Ross. Renya Ramirez is a member of
the Winnebago Tribe of Nebraska. She
advocates that Natives need to consider
fighting violence against Native women
a priority in ameliorating the overall
status of Native communities. Ramirez
argues that this must be done by
considering racial, tribal, and gender
issues
as
intersectional
and
nonhierarchical. She believes feminism
is an important ideology to spread
within Native communitiesxlvi. Next is
Andrea Smith, an activist and scholar
from the Cherokee nation. Smith
advocates ending gendered violence as
a means of survival for Native tribes.
She views the abolishment of the
power held by Native women as
simultaneous to the abolishment of
Native sovereignty. Smith sees the
value in creating a Native criminal
justice system separate from the state
because the state has created many
problems
within
the
Native
xlvii
community . Andrea Smith has also
organized the Colour of Violence:
Violence Against Women of Colour
Conference to combat violence against
women of colour specifically because it
is often over looked in academia and
activism. This conference serves as an
open forum for women of colour,
including Native women, to converse
about the violence they facexlviii. An
initiative that came out of this
conference and that was co-organized
by Smith is INCITE! Women of
Colour Against Violence. This
organization is comprised of feminists
of colour and it works on intersectional
issues pertaining to state violence,
sexual, and domestic violence. It
182
Politikon: IAPSS Political Science Journal
functions as a grass roots organization
instead of using social service
methodsxlix. Lastly is Luana Ross, a
keynote speaker at the first Colour of
Violence Conference and another
phenomenal Native female activist.
During her speech she called on
Natives to use traditional views of
sovereignty to protect Native women
against violence instead of depending
on the federal government for
assistance. She also advocated for full
tribal jurisdiction over crimes relating
to Native womenl. Ross was born in
Flathead Indian Reservation in
Montanali. In the 1980s she began
organizing retreats for Native women
to help them heal from violence. These
retreats became a forum for women to
speak to each other and female
counselors about the violence they
endured. She also gave presentations to
reserves about the importance of
feminism and gave Native women the
opportunity to speak about their
experiences with violence. This is
important because during the 80s
violence was entrenched in Native
society and even normalized. Ross
addresses an important issue in her
work that is not easy to quantify by
research. This issue is the desire of
Native women to shield Native men
from the federal criminal justice system
because it is viewed as another form of
colonialism. For this reason, it is
difficult to know exactly how many
Native women are subjected to
violence. Ross advocates for the power
of feminism and for connecting Native
feminism to the larger feminist
community. She directly connects the
increase of domestic violence programs
for Native women and the new
openness for discussion about violence
Vol. Nr. 20, June 2013
to Native feminismlii. Ross’ work
empowers women through storytelling
and advocacy and promotes Native
tribal sovereignty.
By analyzing female Native activists
one can view the progress that is being
made within Native communities in
terms of creating organizations and
conferences to analyze and attack these
issues, theorizing about solutions, and
creating safe spaces for Native women
to speak about the violence that they
have endured. The complexity of the
issue of violence inflicted upon women
coupled with the cultural differences
between Native tribes makes it difficult
to establish a set of blanket guidelines
to eradicate this problem. However,
after analyzing the reasons and
responses behind violence against
Native women in the United States we
can conclude with three viable
solutions. The three solutions that
would make profound differences in
the protection of Native women would
be the establishment of tribal
sovereignty,
increasing
awareness
surrounding this issue, and the
empowerment of Native women. Tribal
sovereignty is the most obvious
solution to this and numerous other
problems that Native Americans face.
By allowing tribes to have legal
authority over their own affairs, the
traditional spiritual and political role of
Native women can be re-established.
Tribes will be able to respond to crime
in a manner that is non-assimilative and
corresponds with their culture, which
will ultimately end the colonial legacy
of federal control over Native crime
especially those crimes that affect
Native women at alarming rates such as
murder, rape, kidnapping, and stalking.
Moreover, it would work to reverse
183
Jennifer di Paolo
Violence Against Native American Women in the United States
some of the negative affects of
colonialism. The next solution is ending
the silence surrounding the injustices
suffered by all Native Americans with
an emphasis on those endured by
Native women. This can be done by
garnering more research with respect to
the issues discussed and by ensuring
that the methods of attaining this
research is engineered in a way that
properly examines Native culture and
life. The final solution is empowering
Native woman. This would include
ensuring that Native women are able to
resume powerful roles in society
through adequate education and health
services especially safe reproductive
services. This would also include
allowing extensive access to resources
for
Native
women
activist
organizations so that they can uplift
women in every Native community.
Ensuring that women have the
resources they need to address issues
pertaining to their specific community
will lead to the most positive and
efficient change for Native women.
Amnesty International, “Maze of Injustice:
The Failure to Protect Indigenous Women
from Violence in the USA” (Amnesty
International Publications, 2007) accessed
December
20
2012
http://www.amnestyusa.org/ourwork/issues/women-s-rights/violenceagainst-women/maze-of-injustice
i
Terry Henry. “Addressing Violence Against
Native American Women and Girls as a
Human Rights Issue” (New York, United
Nations Department of Economic and
Social Affairs, January 2012) 1
ii
http://www.un.org.myaccess.library.utoront
o.ca/esa/socdev/unpfii/documents/EGM1
2_Henry.pdf
iii
Amnesty International “Maze of Injustice:
The Failure to Protect Indigenous Women
from Violence in the USA”
iv
Laura F. Klein and Lillian A. Ackerman
eds. Women and Power in Native North America
(USA: University of Oklahoma Press,
Norman, 1995) 236
v
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence. Tribal Legal Studies, ed.
Gardner, Jerry (Plymouth, U.K:AltaMira
Press, 2008) 5
vi
Ibid., 8
vii
Andrea Smith. Conquest: Sexual Violence and
American Indian Genocide. (Cambridge, MA:
South End Press, 2005) 18
viii
Roe Bubar and Pamela Jumper Thurman
“Violence Against Native Women” Social
Justice 31, no.4 (2004) accessed January 1
2013,
74
http://www.jstor.org.myaccess.library.utoro
nto.ca/stable/29768276
ix
Hilary Weaver “The Colonial Context of
Violence: Reflections on Violence in the
Lives of Native American Women” Journal of
Interpersonal Violence 24, no. 9 (September
2009) accessed January 27 2013, 1554
http://journals2.scholarsportal.info.myacces
s.library.utoronto.ca/tmp/113619194713538
92927.pdf
x
Andrea Smith Conquest: Sexual Violence and
American Indian Genocide 18
xi
Ibid., 12
xii
Ibid., 17
xiii
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence. 8
xiv
Hilary Weaver “The Colonial Context of
Violence: Reflections on Violence in the
Lives of Native American Women” 1555
xv
Amnesty International “Maze of Injustice:
The Failure to Protect Indigenous Women
from Violence in the USA”
184
Politikon: IAPSS Political Science Journal
xvi
Laura F. Klein and Lillian A. Ackerman
eds. Women and Power in Native North America,
241
xvii
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence. 11
xviii
Andrea Smith Conquest: Sexual Violence and
American Indian Genocide, 18
xix
Roe Bubar and Pamela Jumper Thurman
“Violence Against Native Women” 73
xx
Ibid., 240-241
xxi
Amnesty International “Maze of Injustice:
The Failure to Protect Indigenous Women
from Violence in the USA”
xxii
Ann Murray Haag “The Indian Boarding
School Era and its Continuing Impact on
Tribal Families and the Provision of
Government Services” Tulsa Law Review 43
(2007-2008) accessed February 16 2013, 151154
http://simplelink.library.utoronto.ca/url.cf
m/342749
xxiii
Ibid., 157-161
xxiv
Sally J. Torpy “Native American Women
and Coerced Sterilization: On the Trail of
Tears in the 1970s” American Indian Culture
and Research Journal 24, no.2 (October 1 2007,
2000) accessed February 16 2013, 1
http://simplelink.library.utoronto.ca/url.cf
m/342753
xxv
Ibid., 7-9
xxvi
Ibid., 11
xxvii
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence. 11
xxviii
Warren Stapleton. “Indian Country,
Federal Justice: Is the Exercise of Federal
Jurisdiction Under the Major Crimes Act
Constitutional?” Arizona State Law Journal 29
(1997) accessed February 17 2013, 337
http://simplelink.library.utoronto.ca/url.cf
m/342756
xxix
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence, 13
xxx
Warren Stapleton. “Indian Country,
Federal Justice: Is the Exercise of Federal
Vol. Nr. 20, June 2013
Jurisdiction Under the Major Crimes Act
Constitutional?” 339
xxxi
Ibid., 341-342
xxxii
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence, 13
xxxiii
Ross Naughton “State Statutes Limiting
the Dual Sovereignty Doctrine: Tools for
Tribes to Reclaim Criminal Jurisdiction
Stripped by Public Law 280” UCLA Law
Review 55, (2007-2008) accessed February 17
2011,
494-6
http://simplelink.library.utoronto.ca/url.cf
m/342757
xxxiv
Ibid., 491-492
xxxv
Ibid., 497
xxxvi
Amnesty International “Maze of
Injustice: The Failure to Protect Indigenous
Women from Violence in the USA”
xxxvii
Jennifer S. Byram. “Civil Rights on
Reservations: The Indian Civil Rights Act &
Tribal Sovereignty” Oklahoma City University
Law Review 25 no. 1,2 (2000) accessed
February
18
2013,
494-496
http://simplelink.library.utoronto.ca/url.cf
m/342760
xxxviii
Carla Christofferson. “Tribal Courts
Failure to Protect Native American Women:
A Reevaluation of the Civil Rights Act” Yale
Law Journal 101 (1991-1992) accessed
February
18
2013,
171
http://simplelink.library.utoronto.ca/url.cf
m/342761
xxxix
Amnesty International “Maze of
Injustice: The Failure to Protect Indigenous
Women from Violence in the USA”
xl
Judith V. Royster “Oliphant and its
Discontents: An Essay Introducing the Case
for Reargument Before the American Indian
Nations Supreme Court” Kansas Journal of
Law and Public Policy 13, no. 1 (2003-2004)
accessed
February
18
2013,
59
http://simplelink.library.utoronto.ca/url.cf
m/342763
xli
Ibid., 60-61
xlii
Terry Henry. “Addressing Violence
Against Native American Women and Girls
as a Human Rights Issue” 1
185
Jennifer di Paolo
Violence Against Native American Women in the United States
xliii
Angela Gebhardt, Jane Woody.
“American Indian Women and Sexual
Assault: Challenges and New Opportunities”
Affilia: Journal of Women and Social Work 12,
No. 3 (August 2012) accessed February 18
2013,
238-240
doi:10.1177/0886109912452642.
xliv
Sarah Deer, Bonnie Clairmont, Carrie A.
Martell and Maureen L. White Eagle eds.
Sharing Our Stories of Survival: Native Women
Surviving Violence, 19
xlv
Angela Gebhardt, Jane Woody.
“American Indian Women and Sexual
Assault: Challenges and New Opportunities”
241
xlvi
Renya Ramirez “Race, Tribal Nation and
Gender: A Native Feminist Approach to
Belonging” Meridians: Feminism, Race,
Transnationalism 7 no. 2 (January 1 2007)
accessed
February
19
2013,
22
doi:10.2979/MER.2007.7.2.22.
xlvii
Andrea Smith Conquest: Sexual Violence and
American Indian Genocide, 138-139
xlviii
Renya Ramirez “Race, Tribal Nation and
Gender: A Native Feminist Approach to
Belonging” 27-28
xlix
Andrea Smith Conquest: Sexual Violence and
American Indian Genocide, 2
l
Renya Ramirez “Race, Tribal Nation and
Gender: A Native Feminist Approach to
Belonging” 28
li
Luana Ross “From the “F” Word to
Indigenous/Feminisms” Wicazo Sa Review
24, no.2 (October 2009) accessed February
19 2013, 43 doi:10.1353/wic.0.0041
lii
Ibid., 45
Bibliography
Amnesty International. "Maze of Injustice:
The Failure to Protect Indigenous
Women from Violence in the USA."
Amnesty International Publications
(2007), accessed December 20, 2012,
http://www.amnestyusa.org/ourwork/issues/women-srights/violence-against-women/mazeof-injustice
Bubar, Roe and Pamela Jumper Thurman.
"Violence Against Native Women."
Social Justice 31, no. 4(98) (2004):
26/01/2013-70-86.
http://www.jstor.org.myaccess.library
.utoronto.ca/stable/29768276
Byram, Jennifer S. "Civil Rights on
Reservations: The Indian Civil Rights
Act & Tribal Sovereignty." Oklahoma
City University Law Review 25, no. 1,2
(2000): February 18 2013-491-509.
http://simplelink.library.utoronto.ca/
url.cfm/342760
Christofferson, Carla. "Tribal Courts Failure
to Protect Native American Women:
A Reevaluation of the Civil Rights
Act." Yale Law Journal 101, (19911992): February 18 2013-169-185.
http://simplelink.library.utoronto.ca/
url.cfm/342761
Deer, Sarah, Bonnie Clairmont, Carrie A.
Martell, and Maureen L. White Eagle,
eds. Sharing our Stories of Survival: Native
Women Surviving Violence. Tribal Legal
Studies, edited by Gardner, Jerry.
Plymouth, United Kingdom: AltaMira
Press, 2008.
Gebhardt, Angela and Jane Woody.
"American Indian Women and Sexual
Assault: Challenges and New
Opportunities." Affilia: Journal of
186
Politikon: IAPSS Political Science Journal
Women and Social Work 12, no. 3
(August 2012) February 18 2013-237248. doi:10.1177/0886109912452642.
Haag, Ann Murray. "The Indian Boarding
School Era and its Continuing Impact
on Tribal Families and the Provision
of Government Services." Tulsa Law
Review 43, (2007-2008): February 16
2013-149-168.
http://simplelink.library.utoronto.ca/
url.cfm/342749
Henry, Terry. "Addressing Violence Against
Native American Women and Girls as
a Human Rights Issue." New York,
United Nations Department of
Economic and Social Affairs, January
2012.
http://www.un.org.myaccess.library.u
toronto.ca/esa/socdev/unpfii/docum
ents/EGM12_Henry.pdf
Klein, Laura F. and Lillian A. Ackerman,
eds. Women and Power in Native North
America.
U.S.A: University
of
Oklahoma Press, Norman, 1995.
Naughton, Ross. "State Statutes Limiting the
Dual Sovereignty Doctrine: Tools for
Tribes
to
Reclaim
Criminal
Jurisdiction Stripped by Public Law
280." UCLA Law Review 55, (20072008): February 17 2013-489-519.
http://simplelink.library.utoronto.ca/
url.cfm/342757
Ramirez, Renya. "Race, Tribal Nation, and
Gender: A Native Feminist Approach
to Belonging." Meridians: Feminism,
Race, Transnationalism 7, no. 2 (January
1 2007): February 19 2013-22-40.
doi:10.2979/MER.2007.7.2.22.
Vol. Nr. 20, June 2013
Discontents: An Essay Introducing
the Case for Reargument Before the
American Indian Nations Supreme
Court." Kansas Journal of Law and Public
Policy 13, no. 1 (2003-2004): February
18
2013-59-68.
http://simplelink.library.utoronto.ca/
url.cfm/342763
Smith, Andrea. Conquest: Sexual Violence and
American Indian Genocide. Cambridge,
MA: South End Press, 2005.
Stapleton, Warren. "Indian Country, Federal
Justice: Is the Exercise of Federal
Jurisdiction Under the Major Crimes
Act Constitutional?" Arizona State Law
Journal 29, (1997): February 17 2013337-350.
http://simplelink.library.utoronto.ca/
url.cfm/342756
Torpy, Sally J. "Native American Women
and Coerced Sterilization: On the
Trail of Tears in the 1970s." American
Indian Culture and Research Journal 24,
no. 2 (October 1 2007, 2000):
February
16
2013-1-22.
http://simplelink.library.utoronto.ca/
url.cfm/342753
Weaver, Hilary. "The Colonial Context of
Violence: Reflections on Violence in the
Lives
of Native American Women." Journal
of Interpersonal Violence 24, no. 9
(September 2009): 01/27/20131552-1563
http://journals2.scholarsportal.info.
myaccess.library.utoronto.ca/tmp/1
1361919471353892927.pdf
Ross, Luana. "From the "F" Word to
Indigenous/Feminisms." Wicazo Sa
Review 24, no. 2 (October 2009):
February
19
2013-39-52.
doi:10.1353/wic.0.0041.
Royster, Judith V. "Oliphant and its
187