Term Paper on "Statement That Human Justice Can Never Be Achieved"

Term Paper 6 pages (2061 words) Sources: 1+

[EXCERPT] . . . .

Human Rights

Can human justice ever be achieved?

The quality of mercy is not strain'd/It droppeth as the gentle rain from heaven," says Portia in Shakespeare's "The Merchant of Venice." (4.1) This speech is often quoted as an example of the universality of mercy and standards of human justice. However, such an interpretation belies some of the central ironies of this age-old Renaissance 'problem' play. Portia makes a plea for the life of a condemned man disguised as a boy, as women are not allowed to speak in a court of law as advocates in Venice. The Shakespearean heroine speaks for what she calls Christian mercy, implicitly (and later, explicitly) condemning the religion of the Jewish accuser, Shylock, as less just than Christian religious ethics. Later, Shylock will find himself completely excluded from the system of human rights and laws of Venice as a Jew, an ideology of human justice and compassion that Portia and the other members of the play believe only Christians can understand.

This quote and age-old fictional example highlights some of the central problems of creating a perfect and universal system of human justice, given that standards of justice are often quite culturally bound, and given the prejudices which still riddle contemporary society. Recently, in a speech entitled "From rhetoric to reconciliation -- Addressing the challenge of equality," the Australian Aboriginal Social Justice Commissioner Tom Calma challenged "the great Australian silence," regarding what he called the "ongoing, contemporary impact" of discrimination against indigenous people within the nation, which he deemed an affront to human justice. (Calma, 2006, p.1) Calma stated that "Australians must resolve to create a nation where indigenous and non-indigenous [persons] -- are equal," socially as well as in the pure letter of the law. (Calma, 2006, p.1)

What does this mean -- equal? Is equal justice merely a concept of creating similar opportunities or does it mean actively striving to create more equitable social circumstance? Such rhetoric as Calma's is certainly moving, and a fine way to gain audience applause, but is such a state of perfect human justice a feasible goal? In terms of specific instances, such as the state of indigenous affairs, it may be granted quite often "the sense of urgency and commitment to addressing indigenous over-representation in criminal justice processes has slowly dissipated," after short, energetic bursts of government enthusiasm about parity and justice. This energy is swiftly tempered with the difficulties of making justice a reality after centuries of historical abuses have been endured and harmed a community. (Calma, 2006, p1.)

The difficulties in creating a more equitable society may stretch beyond problems of individual racism and a lack of moral energy, and have their roots in more insidious historical and structural factors. How, for example, to reconcile the fact that no reparations are possible to truly 'make up' for the harm done to adherents of a culture by another culture, whether the indigenous people of Australia, the Blacks of South Africa, or the Jews of Germany and Eastern Europe? Today, even indigenous persons who have endeavored to become integrated into Australian society have higher rates of single parenthood, incarceration rates, and unemployment, and fall short of every possible Westernized measurement of success in contemporary life. (Calma, 2006, p.1) Simply asking such persons to be content with an equality of opportunity will do little to create a just and equitable playing field of opportunity.

For example, consider the question of justice in terms of indigenous persons accused of a crime. This instance might seem to simply pose the question -- did the indigenous person commit the crime to which he or she was accused? If so, the person should be incarcerated. But previous inequitable social conditions may drive the roots of the person's criminality, making this path in life the only possible means of survival for the indigenous persons. Biased judges and juries may make the person's punishment, however unconsciously, harsher. What if indigenous persons are not receiving comparable educations to other Australians, giving them fewer career opportunities?

These questions underline the fact that even when the level of opportunity is made immediately level, and uphold the ideal that justice is blind, this does not create a truly, immediately level playing field, given past history. A just law in words cannot eradicate the unarticulated, subliminal racism that may exist within the hearts and minds of members of the hegemonic culture, against discriminated-against groups nor can it erase the real, material effects of the historical past.

Also, in the case of groups that are different from the culture of the oppressive or colonial nation, the two groups may possess different systems of normative justice. When there are disputes over which culture's standards should reign supreme, what standard should 'win?' After all, not all members of an oppressed group wish to become part of the culture of the colonized, and adhere to its terms of law or receive an education in its opportunities and cultural norms. Even activists such as Calma who speak in favor of the rights of marginalized persons, acknowledge this tension, although they may try to 'smooth' away the ideological evidence that there is no single, universal standard of human rights: "When we look back at our traditions and customs as Aboriginal peoples, there are aspects of those cultures which might be judged as severe or violent by today's standards," notes Calma, despite his quick addition that: "But when we look back historically at how our cultures have been practiced, I have yet to see any evidence that suggests that abuse of women or children was ever part of any Aboriginal culture." (Calma, 2006, p.1) Calma, specifically addressing the problem of spousal and child abuse notes that he believes that the so-called traditionally violence of Aboriginal culture because it was not legally oppressive, but "was of a physical nature," endemic to original native surroundings, does not compare to the violence done by the Australian government to the aboriginal peoples, and thus a more tolerant legal eye upon such violence may be necessary. (Calma, 2006, p.1) Part of justice, he states, requires understanding the context in which an act may occur, as well as the act itself. Moreover, while Calma acknowledges: "among many Aboriginal peoples this continues to be practiced today [allowing husbands to act in violent ways], and occasionally leads to difficult challenges when our customary systems come into contact with criminal justice processes in Australia." In short, although it does not excuse violence, mercy is required for it is unjust to ignore the social, historical, and cultural reasons that may give rise to such violence. (Calma, 2006, p.1) Again, he underlines what he calls "payback," by the law enforcement authorities, against indigenous persons, which may make their condemnation by law harsher than others who commit the same crimes, and thus create an injustice. Inequalities of punishment for the same crime is justice denied.

The issue raised is unavoidable -- how to merge alternative justice standards into an existing schema of Western standards, to make a just society for all, especially when these standards conform to an older code of justice that may seem unjust by current standards about so-called universal human rights? How relaxing the legal standards for an abusive husband, who may lash out from frustration and a lack of opportunity, fair for the husband in hostile court of law, but also fair for the woman in question? When members of an oppressive group, because of unfair social conditions lash out at one another in unacceptable ways, does this make the greater culture's enforcement of its own legal strictures against violence tantamount to 'payback?' This impossibility to come to a true answer highlights the impossibility of creating a perfect system of justice.

One answer might be to assert the inability of all human rights, regardless of culture. In short, women have a right to live free from harm. Calma states unequivocally: "indigenous women and children are entitled to live without fear of violence or abuse," as "this is their cultural and human right?" (Calma, 2006, p.1) But to live free from violence or fear may require a universalizing standard of rights that transgresses the law of a community. What of the right to an education for all women, to take another example which sounds fine in Westernized rhetoric, but may transgress fundamentalist norms of certain Islamic sects?

Additionally, rights of competing marginalized can come into conflict when attempting to create a more fair society. The Australian Human Rights and Equal Opportunity Commission noted in an amendment to Australian nation migratory policy that it is "it is necessary and proper to facilitate the detection of unauthorized boats arrivals in Australian territorial waters" as one cannot have unmitigated access to the shores of a desirable place of refuge, for fear of threatening the conditions at home of current citizens and residents. No nation can afford to have completely open borders, however much it may wish to help shelter the oppressed of other nations, as this could damage… READ MORE

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