Tuesday, November 24, 2009

Pluralism and Power: South Africa Confronts Hierarchy in Diversity

Pluralism, or its cousin, multiculturalism, might suggest a more horizontal relationship among different communities sharing the same territorial space. It suggests mutual respect and toleration. It also might suggest a willingness, among a political community, to abandon notions of assimilation to a dominant discourse and a dominant framework for inclusion. On the other hand, multiculturalism might instead represent little more than an effort to extend the willingness of a dominant group to tolerate the cultural, ethical and moral differences of minority communities. In its more perverse aspect, it might represent little more than a positive framework within which assimilation to the dominant framework is made easier--or perhaps reduces resistance to such assimilation.

In the United States, of course, that latter two have seemed to dominate official approaches to pluralism, especially with respect to the assimilation of the poor and the treatment of sexual minorities. With respect to the administration of the poor, see, Larry Catá Backer, Welfare Reform at the Limit: An Essay on the Futility of ‘Ending Welfare as We Know It,’ 30 Harvard Civil Rights-Civil Liberties Law Review 339 (1995); Larry Catá Backer, By Hook or By Crook: The Drive to Conformity and Assimilation in Liberal and Conservative Poor Relief Theory, 7 Hastings Women’s Law Journal 391 (1996). With respect to sexual minorities, see, Larry Catá Backer, Toleration, Suppression and the Public/Private Divide: Homosexuals Through Military Eyes, 34 Tulsa Law Journal 537 (1999); Larry Catá Backer, Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 University of Florida Law Review 755 (1993).

Even as political societies move toward greater respect for difference, the limits of that tolerance remain firmly grounded in higher order rules. It seems clear that respect for identity, morals, ethics, and communal practices remain limited by some overarching constituting framework. The move toward pluralism, the leveling implicit in ideologies that embrace some sort of multi cultural ideal, carries within it not so much a leveling of cultural difference as a reordering of the hierarchy of values within which cultural difference is managed and, at its limits, suppressed. The pluralist idea, thus speaks not only to toleration, but to hierarchy and control. Hierarchy of values is implied by a framework in which cultural difference is judged by a set of superior values that manage and limit all others. Control of values follows from its construction. A values system that manages must, in turn, be managed. Those who can control the superior value system can effectively manage all plural cultures subject to its control. Pluralism, then, perversely, both opens a greater space for individual and communal difference while it creates a greater power to control all such communities through control of the framework of the "higher law of tolerance." And perhaps most importantly, a hierarchical system of toleration ensures a more efficient basis for controlling plural populations. In place of resistance, there is conformity. In return for a broader toleration and recognition of difference, there is a greater willingness to submit to a system in which communal expression is corralled within pens not of their own making. As long as the restraining rules appear sourced in higher values, rather than in the desires of competing communities, conformity and manageability is possible.

In this sense, the search for "shared" values, for higher order values sourced above the level of communities, becomes a political goal of great value. One can understand the great current project of internationalizing "human rights" and other values as one approach to this goal. But within plural states, the same approaches have been undertaken within the highest levels of government through values based constitutionalism. The interplay between the two marks the current frontier in the development of hierarchies of values control. See, Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

Control of the framework structure within which pluralism is managed now assumes a great political importance. The political dimension of this tendency toward hierarchy in the construction of plural societies was recently highlighted in South Africa. Talks to be Held Over "Cruel" Zulu Bull Killing Ritual, BBC News Online, Nov. 24, 2009. Pluralism, the disciplinary effects of higher values, and the management, through law, of cultural diversity are all implicated in efforts by an animal rights group, which is "suing Zulu King Goodwill Zwelithini, arguing that the ceremony, known as Ukweshwama, is cruel. A royal spokesman said the killing was a highly symbolic way of thanking God." Id.

At its core, the action represents a contest over control of the fundamental right to define and determine the form and significance of cultural practice. For the animals rights group, that power shifted from the community itself to a higher level community--the Zulu are no longer masters of their own cultural and symbolic practices.

Animal campaigners say the Ukweshwama ritual does nothing to strengthen nation-building, social cohesion or peace. In a statement, Animal Rights Africa quoted an eyewitness as saying the bull was tortured for 40 minutes during a previous ceremony. Dozens [of people] trampled the bellowing, groaning bull, wrenched its head around by the horns to try to break its neck, pulled its tongue out, stuffed sand in its mouth and even tried to tie its penis in a knot. "Gleaming with sweat, they raised their arms in triumph and sang when the bull finally succumbed." The group's spokesperson, Michele Pickover, said the treatment of the bull was "unfathomable". "It physically pains us and is an affront to our dignity that an animal is made to suffer in such an overtly cruel and protracted way," she said. Id.

The values inherent in animal cruelty trump those of the Zulu. But more importantly, the measure of the relative strength of those values are set by markers outside the cultural territory of the community whose values are being measured. And also beyond their control.

For the Zulu, diversity and pluralism suggests now requires a defense of cultural practice on terms other than those of the Zulu nation itself. "Zulu groups are adamant that the ceremony will go ahead on 5 December, saying their rights are protected by the constitution." Id. But in the end, the Zulu will be reduced to arguing facts.

Royal spokesman Nhlanhla Mtaka told the BBC's World Today programme the activists had misrepresented the ceremony. "I have been attending this ceremony for 20 years and it does not happen the way they say it is," he said. "You will hear young men and old people singing Zulu hymns and people sitting down and teaching each other about the value and history of the Zulus."Id.

But the Zulu have ceased to be the masters of their cultural practices, or even in the control of the normative structure through which Zulu distinctiveness is elaborated and controlled. Reduced to dependent status, Zulu culture will be preserved, and managed, to the extent permitted under a higher law. It will be subject to constrains imposed from above and monitored by competing communities. The illusion of autonomy masks a necessary project of assimilation. In the end, something of a paradox--cultural and legal assimilation may be more efficiently pursued by efforts that suggest a preservation of difference, tightly managed from beyond, than by a direct coercive approach. Through difference, then, will come union.

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