DEBATE DEBATE
Debate on the paper by Feitosa et al.
Debate sobre o artigo de Feitosa et al.
Rita Laura Segato
Universidade de Brasília, Brasília, Brasil. rsegato@terra.com.br
Leaving behind cultural relativism to endorse historical pluralism
Feitosa et al. discuss one of the most difficult themes in the fields of both ethics and rights, since the practice of so-called "indigenous infanticide" constitutes an issue at the limits of legal reasoning. The article is not only a theoretical reflection, but also takes place in a national scenario in Brazil where the issue is on the agenda of the National Congress and in the news media, sparking intense controversy between those pushing to pass a bill specifically criminalizing the practice and those that consider the bill inappropriate and even irrelevant.
Despite the enormous difficulties in building the argument defending the difference between peoples, even when involves the practice of infanticide, but without defending the practice itself, the authors do so efficiently and appropriately. They employ an argumentative strategy that can be described as "repatriation of the critique", i.e., showing how in various historical situations the accusation aimed at indigenous peoples can be reversed to accuse the West of also having been stage to the practice, of having promoted or disguised it, even in the founding Biblical account itself. This strategy of showing that we are all infanticidal becomes highly convincing, since it exposes our widespread tendency to view other peoples as cruel and defective, judging them with a rigor that we fail to apply to what we consider our own world. I especially appreciate the information and analysis in the final sections: Abortion, Infanticide and Neonatal Euthanasia and Possibilities for Intervention.
However, I now offer some observation that could lead to retouching some aspects of the essay.
One of the paper's problems is that it gives the impression that infanticide is highly frequent, when in fact the practice is rare, increasingly less frequent in the societies in which it occurs, and practiced in fewer and fewer societies. It is practically in extinction, and where it does occur, it is surrounded by intense controversy among the community's members.
In dealing with the reasons that determine the practice of infanticide of various indigenous societies, the authors overlook a fundamental issue, namely the normative differences concerning who makes the decision in relation to the practice. This omission leads to the deepening of an important and quite widespread mistake, namely to believe that we are dealing with the same type of act across various societies, when that is not the case. In fact, there are societies in which the reasons for a newborn's life not be allowed to thrive, or even to prevent it from doing so, are of a cosmological order, and the decision to apply the rule and make sure that it happens lies with the community. And there are other societies in which the reasons are of a practical order, and in these the mother has the autonomy to make the evaluation and the decision. These are the two main tendencies, and based on them there is a wide variety of modalities.
Meanwhile, to refer to the practice, the phrase "Among Indians, the decision to kill a child..." is incorrect. If, as the authors note quite well, "the human body is the result of a cultural 'construction'" (p. 855), then no "child", that is, no human life, can be killed before it is "constructed". Since the definitions of human life, including the notion of "infant life", are different, one cannot kill what has still not acquired existential status 1. The missionary discourse makes this mistake in its representation of the phenomenon, but the authors cannot allow themselves to commit the same error, and thus a better grasp into the anthropological reflection on the depth of the difference in the conception of life and death would have been indispensable for the argument.
Along this same line, the authors do not sufficiently elaborate on the contradiction between the positions of the two anthropologists they cite. Thus, these citations appear to be used to legitimize the text, i.e., through an obligation that is foreign to the argumentation, since the two authors differ; this difference is not analyzed, nor is a way found to mediate or interpret this difference.
Likewise, I believe that they fail to reflect on the missionary critique of indigenous infanticide, insofar as the latter contends that "life has more value than culture", immediately asserting that "life and the right to it are above culture" (p. 858). It is not culture that is at stake, but life itself, i.e., life as it determines all other forms of human life: physical life, material life, that of a people, a collectivity. It is life's capacity to reproduce and last. There is no individual life outside collective life. In some cases, in transhumant societies and those that do not accumulate a surplus, a single additional individual life jeopardizes the life of the entire collectivity, or at least, that of his or her immediate family - that of the siblings already born and preserved, also small and without autonomy in relation to maternal care 2.
The authors invoke Convention 169 to emphasize that it demands respect for customary rights by applying the national law to indigenous peoples, but they forget that despite giving access to the principles of legal pluralism, it safeguards the principles laid out under international human rights legislation and affirms respect for the internal law of peoples whenever human rights (as well as each national state's legislation) are not violated. Thus, the argumentation relying on this safeguard is only relatively effective. It would be more effective to draw on Brazil's commitment, assumed by ratifying this Convention, but also more recently by signing the Declaration of the Human Rights of Indigenous Peoples, to not legislate for indigenous peoples without their own participation in the decision-making process on norms that will affect their lives.
Further considering respect for each people's own law, I have argued at length that the discussion of infanticide does not involve this issue, but another area which I find central for dealing with such extreme dilemmas as infanticide: the state's responsibility to protect each people's internal decision-making capacity, and in keeping with this, safeguarding each people's autonomy to build its own history. Through its own history, woven from the internal debate, and not the preservation of customs from an essentialist perspective of culture, each people will build its own particular dialogue with the common sphere of human rights.
This has been my stance, and I believe that it allows us to efficiently transcend the paralyzing dichotomy between relativism and universalism 3.
1. Holanda MAF. Quem são os Humanos dos Direitos? Sobre a criminalização do infanticídio indígena [Dissertação de Mestrado]. Brasília: Programa de Pós-graduação em Antropologia Social, Universidade de Brasília; 2008.
2. Sánchez-Botero E. Entre el Juez Salomón y el Dios Sira. Decisiones interculturales e interés superior del niño. Bogotá: University of Amsterdam/UNICEF; 2006.
3. Segato RL. Que cada pueblo teja los hilos de su historia: el pluralismo jurídico en diálogo didáctico con legisladores. http://www.cimi.org.br/?system=news&action=read&id=3594&eid=259.