EUROPEAN REGIONAL MASTER'S DEGREE IN DEMOCRACY ANDHUMAN RIGHTS IN SOUTH EAST EUROPE

STATE OF NATURE IN THE MODERN SOCIETY

Cluster 1: PHILOSOPHY OF HUMAN RIGHTSCluster Leader: Prof. Asim Mujkic

BY

BISERA MITIK

SARAJEVO, BOSNIA AND HERZEGOVINA

DECEMBER 2009

29 PAGES

Table of Contents

INTRODUCTION...........................................................................................................................3

1. WHAT IS STATE OF NATURE?..............................................................................................5

1.1. State of nature according to Thomas Hobbes.......................................................................7

1.2. State of nature according to John Locke...............................................................................9

1.3. State of nature according to Jean Jacques Rousseau...........................................................11

1.4. Analysis...............................................................................................................................14

2. IS THERE A STATE OF NATURE IN THE 21st CENTURY?...............................................15

2.1. Indigenous peoples..............................................................................................................16

2.1.1. Definitions on Indigenous............................................................................................16

2.1.2 Examples of Indigenous peoples: Australian Aborigines and the Bushmen of South

Africa......................................................................................................................................18

2.2. Do indigenous people today enjoy the same rights as other citizens, and do we really need

government to protect those rights?...........................................................................................21

CONCLUSION..............................................................................................................................24

BIBLIOGRAPHY..........................................................................................................................26

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INTRODUCTION

According to John Stuart Mill “The state of nature that precedes civilization is where

originality resides”1 and “the society leaves its individuals to their own devices as long as they

do not harm others.”2 But what really is the state of nature? Moreover, why this idea as it was

presented by the theorists never played its real role in practice? Was the state of nature that

chaotic that people choose to have a superior, rather than being free from any obstacles? Were

people afraid of their fellow human beings as Hobbes insinuates?

I am working on the topic of the state of nature in the modern society, because I want to

find out if there is still a state of nature in the 21st century, for example in the indigenous

societies, or that is some kind of social contract or anarchy. I am doing this in order to

understand how people today live and if the basic human rights, as the right of life, the right to

liberty and security, the right of freedom etc., are respected in those societies.

In this paper, I will try to analyze why despite the overall technical and technological

progress, the cultural development, the democratic values that we stand for and the globalization

of the countries in the world, yet in some parts of Planet Earth we can meet the remnants of what

Rousseau, Hobbes and Locke call ‘the state of nature’. These societies living in the state of

nature are trying to tell us that not always rule of law is needed; not always people need

government to live proper and in peace. The world never was, and never will be without number

of people living in that state, the state of nature. If we only look at the examples of many

indigenous people round the Globe, we can see that people can live without legally established

government, without constitution and without laws, and still respect each other and live in peace.

1 Mill, John Stuart. Nature. In “From the state of nature to evolution in John Steward Mill” by Gal Gerson. Australian Journal of politics and history: Volume 48, Number 3, 2002, 305-3212 Ibid

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This is contrary to Hobbes’s claims that people in the state of nature cannot live just because

homo homini lupus est.3 So the need for social contract is not really a need. On the other hand,

we can observe that sometimes the human nature is egoistic, wolfish and greedy: what is mine is

mine, and what is yours I want to be mine. That is a result of population growth, the limitation of

the resources, the enrichment of certain class of people and the innovations and development of

the world. Contrary to this, that is not the situation in many undeveloped African tribes, as I will

show later in the paper.

In the first chapter of this paper, I will expose the main ideas of Thomas Hobbes, John Locke

and Jean Jacques Rousseau and their picture of the state of nature. Following, in the second and

last chapter, I will try to find out if there is a state of nature in the 21 st century. As an example, I

will be taking the indigenous peoples, their structure of society and their development.

Furthermore, I will discuss the significance of the human rights that these people have and the

way they manage to exercise them in the world they live in.

There is a lot to say on this topic and there are a lot more examples on this subject, but due to

limited time and resources, I will keep my research and my analysis short and within these

frames. My research is contained mostly from research of the main theories or Hobbes, Locke

and Rousseau, relevant articles concerning the state of nature, articles concerning the life and the

society of the indigenous peoples (primary and secondary sources).

3 “Homo homini lupus est.” means that every man is wolf to every other man. Hobbes uses this metaphor to tell us that behind every man’s canvas there is an evil inside always ready to protect him/her from all others; get and protect what he thinks it is his/hers.

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1. WHAT IS STATE OF NATURE?

There are many definitions on what the ‘state of nature’ is. According to Hobbes, “The

state of nature is a state of incessant mutual exploitation.”4 Many encyclopedias consider the

state of nature as “uncivilized and uncultured condition,”5 a “wild primitive state untouched by

civilization.”6 State of nature is described also as a condition before the introduction of the rule

of law, and as a state where there are no rights but only freedoms. In such a world where there

are no laws, government, power, the people are in a natural condition of humankind.

Nevertheless, the state of nature in its true form7 never existed in human society. Perhaps

as a state of nature we can take the examples of the emergence of human society when man was

savage and lived in hordes. The human at that point of development was not aware of anything,

except livelihood and survival. People acted free from all restrictions and pressures. They

showed their true existence and the desire to own fulfillment. As creatures of that kind, all people

were and are equal by their nature. At that stage, “all people without restriction tend to insure

and optimize their own fulfillment, then this unlimited competition lead to a state of complete

uncertainty and danger.”8 Moreover, “they consider themselves indispensable for the elimination

of this tendency to establish a state of security and peace by entering in a civil society.” 9 Many

of the Enlightenment theorists claim that the state of nature existed in the human society, but

4 Ziniewiciz, Gordon L. Hobbes: the state of nature and the “nature of the state. http://www.americanphilosophy.com/hobbes.html (accessed 06.12.2009)5 Dictionary. com: The state of nature http://dictionary.reference.com/browse/in+a+state+of+nature (accessed 05.12.2009)6 Audio English: State of nature http://www.audioenglish.net/dictionary/state_of_nature.htm (accessed 05.12.2009)7 As described in the teachings of Hobbes, Locke, Rousseau.8 Braun, Eberhard, Felix Heine, Uwe Opolka. Excerpt from: Politische Philosophie. Ein Lesebuch. Texte, Analysen, Kommentare, Reinbek (Political philosophy, reader, texts, analysis, comments).1984 http://www.dadalos.org/mzd/Demokratie/demokratie/grundkurs2/Neuzeit/grundlagen.htm#Naturzustand (accessed on19.11.2009). My translation9 Ibid

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man came out of that state because he was afraid of the other humans,10 considering that in the

state of nature dominates social chaos and in order to protect himself the human was obliged to

conclude the ‘social contract’.

With this contract, individual’s freedom of self-fulfillment was restricted, so that

individual freedom of all can exist together. “Everyone gives up their unlimited right, accepts

limitations and with that accept the security and the peace in coexistence.”11 Everyone has the

natural right of personal fulfillment. This right of personal fulfillment “cannot be abolished

because it would mean the destruction of livelihood.”12 However, it may be restricted and in that

way can exist in parallel with the other inalienable rights of all people. The restrictions are

codified in legislations. Following, these restrictions were the basis of the doctrines of the

Enlightenment thinkers such as Hobbes, Locke, Rousseau.13 They created “‘the laicism’ of

governing and new political legitimacy of any fair ruling - to be extracted from the social

relations and based on respect of human’s rights.”14

1.1. State of nature according to Thomas Hobbes

Hobbes believed that human beings in the state of nature would behave ‘badly’ towards

one another.15 He believed that such a condition would lead to a “war of every man against

10 Ciampietri, Claudia Blog. The state of nature: Hobbes, Locke and Rousseau. http://cgiampietri.wordpress.com/2008/09/29/the-state-of-nature-hobbes-locke-and-rousseau/#comments (accessed on 01.12.2009)11Braun. Excerpt from: Politische Philosophie. Ein Lesebuch. Texte, Analysen, Kommentare, Reinbek (Political philosophy, reader, texts, analysis, comments)12 Ibid13 Frckoski, Ljubomir. Megjunarodno pravo za pravo na covekot (International law for human right). Magor Doo Skopje, 2005. 11-20. My translation14 Ibid15 Hobbes argued that people had every right to defend themselves by whatever means, in the absence of order.

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every man”16 and make life “solitary, poor, nasty, brutish, and short.”17 He was strictly against

the state of nature because as he said, “there can be nothing worse than a life without the

protection of the State”,18 especially since in this state there is no justice because there is no law.

Hobbes argued that there are no human rights in the state of nature.19 People have natural

right to do anything to preserve their own liberty or safety, and by this implies they act savagely

to each other by trying to preserve their own life. This is very arguable nowadays. Every human

simply by just being human is entitled with rights when born, despite on what level of

development he is in, or if he is aware of the existence of human rights. For Hobbes, natural right

is the human freedom to manage himself in relation to issues of his own self - preservation. The

man, in this capacity has an inalienable dignity, because “he is a goal for himself and a kind of

‘absolute value’ (man as imago dei)”.20 This term has its roots in Genesis 1:27, wherein “God

created man in his own image. . .”,21 which does not mean that God is in human form, but rather,

that humans are images of God in their moral, spiritual, and intellectual nature.22 “The moral

implications of the doctrine of imago dei are apparent in the fact that if humans are to love God,

then humans must love other humans, as each is an expression of God”.23 This means that people

are obligated to respect one another, but according to Hobbes at the end the ‘wolfish nature’ of

humans24 dominates.

16 Hobbes. Leviathan. Chapter XIII: Of The Natural Condition Of Mankind As Concerning Their Felicity And Misery. http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-contents.html (accessed 01.12.2009)17 Ibid18 Ibid19 Hobbes’s moral and political philosophy. http://plato.stanford.edu/entries/hobbes-moral/ (accessed 23.11.2009)20 Frckoski. Megjunarodno pravo za pravo na covekot. 11- 2021 passage from the Holly Bible22 Glossary Definition of Imago Dei. http://www.pbs.org/faithandreason/theogloss/imago-body.html (accessed 10.12.2009)23 Ibid24 Hobbes. Leviathan. Chapter XIII: Of The Natural Condition Of Mankind As Concerning Their Felicity And Misery.

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Hobbes develops the way out of the state of nature into civil government by mutual social

contracts. Only by concluding the social contract man can save himself and become just (in this

State there is no room for the unjust). He says that “only the fear of death can lead to the creation

of a State”.25 This saying in the modern world was a reason for many wars. Many rulers,

dictators, tyrants, for example as Hitler did with Germany in the Second World War, were

guided by Hobbes’s ideas that the man is obedient of the State and should delegate his rights to

the Sovereign because the Sovereign is sinless and just, thus has “the unlimited powers of rule

and punishment.”26 The ruler’s will define good and evil for his subjects. The ruler can do no

wrong, because “lawful and unlawful, good and evil, are expression of the will of the ruler”.27

Hobbes gives authorization to the ruler to kill everyone who disobeys this will. In other words,

the ruler is always right, because he has god given rights and is messenger of God, so if someone

does any wrong (which will mean opposite to the ruler’s wishes) he will lose his life. This

contradicts with one of the basic human rights28 - the right to life. It is not that there should be no

State rules and regulations and that people should live in total anarchy, but rules that are in line

with people’s rights, wishes and desires, for example regulations brought due referendum, which

is a true expression of people’s will and democracy. Therefore, Hobbes, despite the ‘pretty’

picture he has in mind of people being safe by concluding the social contract, is neglecting the

basic human rights.29 Moreover, Hobbes’s social contract was in favor of the ruler, not the

people.

25 Ciampietri, Claudia Blog. The state of nature: Hobbes, Locke and Rousseau.26 Wolff, Jonathan. Trust and the state of nature. Political thought. 199927 Locke versus Hobbes. James’s Liberty file collection http://jim.com/hobbes.htm (accessed 23.11.2009)28 By basic human rights, I mean the rights such as the right of life, the right to liberty and security, the right of freedom etc.29 Ibid

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1.2. State of nature according to John Locke

Locke holds different position compared to Hobbes. He believes that people could live in

a state of nature, and life would be possible even without the legally established government.

The state of nature for him is “pre - political, but not pre - moral”.30 Furthermore, this state of

nature for him is a state of complete freedom where all people are equal and only “bond by the

law of nature”.31 He worries that an absolute sovereign, with absolute power, would be even

more of a danger to us than life in the state of nature. This is positive in Locke’s thought because

is better to live in a state of nature where you live in complete freedom without limitations of the

personal rights and liberties. On the other hand, giving the absolute power to a sovereign means

that people have to obey the wishes and the demands of the ruler, rather than following their own

needs and desires, and disobeying those demands leads to penalization. Why would someone

want to have limited human rights? Why would someone want someone else to pressure him in

doing something that is against his opinion and his beliefs? It is not the case of not having rules

at all but rather that the rules should be made from the people and for the people. The people

should not feel oppressed if they do something that is against one’s will and feel scared of

punishment if they do not meet those requirements. This is against the commonly accepted

notion of democracy in which the individual is free in expressing his own will and making

statements.

Locke argued that although “we do need a sovereign to settle disputes and administer

justice, we must also set constitutional limits to the sovereign’s rule”.32 “We have a right to rebel

30 Internet Encyclopedia of Philosophy: Social contract theory http://www.iep.utm.edu/soc-cont/#SH2b (accessed on 01.12.2009)31 Lock, John. Two treaties of a government. In Wolff, Jonathan. An introduction to political philosophy. Political thought, 2006, 24-8032 Wolff, Jonathan. Trust and the state of nature.

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if the sovereign abuses our trust”.33 Assuming that we were all honorable in all our dealings with

each other, then the need for sovereign would not existed and we could have remain forever in

the state of nature.34 Is this asking for too much? On one hand it might be, because with no rules

at all, people might have tendency to become more violent and even greedier towards others who

have more than them (wealthier people). On the other hand, it might not be too much asking for.

People behave decent when there is not big gap in equality and people do cooperate with each

other in order to survive. Later in this paper, I will show examples of people living in a ‘state of

nature’ with no government, no legislative, and still managing to live in peace with each other

and with the rest of the world.

Another thing with which Locke differs from Hobbes is his view of the human rights. For

Locke, human rights are rights that every human holds and they belong to all humans, and are

inalienable, that is they are not transferable to anyone else.35 If someone tries to restrict one

man’s rights for Locke that is equal to slavery.36 He set forth the view that “the State exists to

preserve the rights of its citizens”.37 Moreover, if the State (government) fails to retain the rights

of its citizens, than they are allowed to stand up to it and protest against. The same is today in

most of the democratic countries, where people if not satisfied with the measures and regulations

that the government lays down raise their voice and oppose them. Following this further, Locke

does not see the state of nature as something bad as Hobbes does, and therefore, he claims that is

better for the people to reject the particular government and to return to the state of nature, 38 than

to live in oppressed regimes.

33 Ibid34 Ibid35 Lock, John. Two treaties of a government. In Wolff. An introduction to political philosophy. 24-8036 Ibid37 Locke versus Hobbes.38 Internet Encyclopedia of Philosophy: Social contract theory

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Nevertheless, despite the ‘free man’ that Locke stands for, he still points out that people

should engage in a social contract. He says that we should partially give up some of our rights,

but not the right of life, liberty and property,39 for impartial justice. Furthermore, the social

contract cannot be concluded without the explicit consent of the people. “Property is the

linchpin of Locke’s argument for the social contract and civil government because it is the

protection of people’s property, including their property in their own bodies, which men seek

when they decide to abandon the State of Nature”.40 Locke’s property is pre- state institute

determined by natural law and the property is a result of individual’s labor.41 For him the right of

property is a right to life, freedom and estate.42 He connects the one person’s rights with having

property; the one who does not own property does not have rights.43

1.3. State of nature according to Jean Jacques Rousseau

What distinguishes Rousseau from the other two theorists is his statement that in the state

of nature man would act like an animal or like a savage,44 “whose actions are primarily

determined by immediate needs: food, sexual satisfaction, sleep, and fears only hunger and

pain”.45 However, the thing that distinguishes the savage from the animal is the “free will and

capacity of self-improvement”.46 For Rousseau is an exaggeration to say that the state of nature

leads to ‘war of all against all’, as Hobbes said. According to him, the state of nature is peaceful

39 Locke versus Hobbes.40 Internet Encyclopedia of Philosophy: Social contract theory 41 Lock, John. Two treaties of a government, Second treatise of civil government. Chapter V: Of property. http://www.constitution.org/jl/2ndtr05.htm (accessed 23.11.2009)42 Ibid43 Ibid44 Actually, Rousseau refers to the human as a “noble savage”45 Ciampietri, Claudia Blog. The state of nature: Hobbes, Locke and Rousseau.46 Ibid

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and free of vice. On the other hand, he agrees with Hobbes and Locke that in the state of nature

“man’s main drive is towards self - preservation”.47

Rousseau gives a general picture how would life be in the state of nature, which

resembles in a good way with the life that some African tribes have today. He says that the

human in the state of nature acts similar to animal satisfying his basic needs. Furthermore,

Rousseau gives a critique of the modern man versus the natural man. He says that the situation of

the natural man is better than the one of the modern man because the natural man is free of social

norms, morals, obligations, and duties.48 “Having no moral relationship or duties to other men

and no subjugated inequality, natural man is better for himself and society”.49 His actions are

"neither good nor evil”50 because he is “not bounded by social rules, which dictate how people

should act and think towards each other and the world as a whole”.51 According to that, man

should not care much about other’s opinion of him or his actions.52

Certainly, according to Rousseau, “people are neither good nor bad.”53 People are

restrained in harming others by the compassion they have for their fellow humans and have

“aversion to pain and suffering.”54 In addition, Rousseau claims that “Men knew neither vice nor

virtue since they had almost no dealings with each other”.55 Moreover, in his view “Their bad

habits are the products of civilization, the conditions of nature - forced people to establish the

47 Ibid48 Rousseau's Critique on Natural Man vs. Modern Man in Book Rags Student Essays. Book Rags, Inc. 2000-200649 Ibid50 Rousseau, Jean Jacques. Discourse on the origin of inequality. Dover thrift editions. Dover publications Inc. 2004, 12851 Rousseau's Critique on Natural Man vs. Modern Man 52 Ibid53 Rousseau, Jean Jacques. The Social contract or principles of political right. Originally published 1762. Book I, sec.6 http://www.constitution.org/jjr/socon.htm (accessed 23.11.2009), 54 Wolff, Jonathan. An introduction to political philosophy. 24-8055 Rousseau. The Social contract or principles of political right. Book I, sec. 6

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civil society.”56 According to this, if man leaves the state of nature than he becomes corrupted

and unjust. The modern world and the development of it are responsible for people’s depravation

because the wish for self - improvement brought misfortune to people. Then why at all should

human beings leave this state? On this, Rousseau says that despite the corruptive potential, “the

life in the society can bring the possibility of a higher form of human existence”,57 like cultural

or technological development of the human itself and the society he lives in.

When talking about the rights, Rousseau points out that that the people have rights

in the civil state that are sacred. Therefore, people agree to live in a civil society because that

society will protect their rights. But is this a real reflection on what the reality looks like? If

taken for example the dictatorship regimes, let’s say in Sudan, or as it was in Romania when

Ceausescu was on power, the people were in a fictional social contract with the country, but the

state did not meet its main duty: the protection of the individual that is not able to protect

himself. Different from Locke, who stands on the position that the human has rights even

without the existence of the state,58 Rousseau does not says that the human can exist and just be

in that kind of state. For Rousseau, the people only have human rights when engaged in a

contract with the state. Here he contradicts himself. First, he says that the civil society corrupts

the people, and then notes that human rights exist only when people engage in social contract

with the state. Rousseau’s second point about the requirement of the people to conclude the

contract in order to be ‘safe’ and in a possession of human rights is questionable. The second

chapter of my paper will show that people that are not part of a civil society still have human

rights and are free.

56 Ibid 57 Ibid58 As I explained in the sub-chapter 1.2. of this paper concerning John Locke

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1.4. Analysis

Do we get any general picture of what the state of nature is from the perceptions of these

theorists? Hobbes is the opponent of the state of nature. His opinion is that man could not survive

in the state of nature - therefore there is the need of creating a State by people engaging in social

contract and the necessity of people giving up their rights to the Sovereign. On the other hand,

Locke is more liberal when talking about the state of nature. For him people can indeed, live in

this state in peace with each other. He does not support the State that limits the rights of humans

and the absolute power of the Sovereign (as Hobbes does).

Rousseau is in between with his approach. According to him, the state is the only one that

can protect the human and his rights. Contrary, he says that the civil society corrupts the person;

the development of the society makes man more greedy and unjust. How is this possible? We

should enter the social contract for the main purpose of protecting ourselves from others and be

able to exercise human rights, but not to become corrupted by the same society. This statement is

too contradictory and illogical.

Finally, summing up all the ideas from these theorists, we can define the state of nature as

freedom. A freedom of man to do whatever is his own will, but not endangering and delimiting

other people’s rights and personality; freedom from restraints, restrictions and oppressions. In the

following chapter, we can see that it is possible for people to live in this kind of state and not

being threat to one another.

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2. IS THERE A STATE OF NATURE IN THE 21st CENTURY?

Looking further than our own surroundings, we will find examples of people that live in a

‘condition’ that is completely different from the democratic, modern and technologically

developed world. Those people live in harmony with nature. Although, the number of those

people is very small due to the colonization period and the constant force of assimilation, the

ones that succeed in keeping their culture and traditional way of life, help us understand that

people can indeed live without rule of law and without engaging into social contract(s). Today,

many of the indigenous people in the world are under the law of the ones that colonized their

land, for example the Aborigines in Australia, when colonized by the British were put under the

British legal system,59 but as Australia gained independence from the Crown, the Aborigines are

under the Australian law.60 Other examples where people still managed to keep their natural

state are some African tribes that are not subject to the law of the State, like the Bushmen in

South Africa. Following in this paper, I will elaborate more on these people and their way of life.

2.1. Indigenous peoples

2.1.1. Definitions on Indigenous

Defining indigenous peoples can be very difficult. Whom do we put under the term

‘Indigenous’? There are many definitions. According to the special reporter on discrimination

against Indigenous population from the United Nations Working Group on Indigenous

Population, Mr. Jose Martinez Cobo

59 Australian Aboriginal Culture. http://www.didjshop.com/shop1/AbCulturecart.html (accessed 10.12.2009)60 Ibid

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Indigenous populations are composed of the existing descendants of the peoples who inhabited the presentterritory of a country wholly or partially at the time when persons of a different culture or ethnic originarrived there from other parts of the world, overcame them, by conquest, settlement or other means,reduced them to a non-dominant or colonial condition; who today live more in conformity with theirparticular social, economic and cultural customs and traditions than with the institutions of the country ofwhich they now form part, under a state structure which incorporates mainly national, social and culturalcharacteristics of other segments of the population which are predominant.61

This definition was considered to be with flaws. Therefore, the UN Working Group on

Indigenous Population decided to enlarge the definition by adding more criteria in defining the

term ‘Indigenous’. In the first place, they added that as indigenous people would be considered

the ones who “are the descendants of groups, which were in the territory at the time when other

groups of different cultures or ethnic origin arrived there.”62 In addition, indigenous are the ones

who “because of their isolation from other segments of the country's population have almost

preserved intact the customs and traditions of their ancestors which are similar to those

characterized as indigenous.”63 Finally, in this group belong people who are, “even if only

formally, placed under a state structure which incorporates national, social and cultural

characteristics alien to their own.”64 In 1986 one more criteria was added, and that was “any

individual who identified himself or herself as indigenous and was accepted by the group or the

community as one of its members was to be regarded as an indigenous person.”65

Another definition is provided by the International Labor Organization in the 1989

Convention on Indigenous and Tribal peoples, which defines indigenous peoples as those who

are regarded as such “on account of their descent from the populations which inhabited the

61 This working definition was preliminary accepted by the United Nations Working Group on Indigenous Population in 1972 http://www.acpp.org/sevents/0809.html (accessed 12.12.2009)62 The enlarged Working definition on Indigenous people from 1983 by the United Nations Working Group on Indigenous Population FICN. 41Sub.211983121 Adds. para.3 79 http://www.acpp.org/sevents/0809.html (accessed12.12.2009)63 Ibid64 Ibid65 Additional criteria to the definition for Indigenous people from 1986 E/CN.4/Sub.2/1986/7/Add.4. para.381 http://www.acpp.org/sevents/0809.html (accessed 12.12.2009)

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country, or a geographical region to which the country belongs, at the time of conquest or

colonization or the establishment of present state boundaries and who, irrespective of their legal

status, retain some or all of their own social, economic, cultural and political institutions.”66

We can give lots more definitions on who and what indigenous people are, but in

the end, summarizing all this definitions, we reach a single conclusion that the indigenous people

are people that only differ by their origin and culture. In other words, indigenous people enjoy

human rights as all the other people do. Furthermore, this people, despite the stage of their

development, and by development I mean mostly technical and technological development,

generally stand for the common values of freedom and peace. Moreover, indigenous people,

“although often distinguishable by virtue of their race, language or religion, are a discrete

group”.67 To explain this in more precise way, I will be taking as an example two groups of

Indigenous people, one is the Australian Aborigines and the other one is the Bushmen from

South Africa. Although, both of these groups of people are considered as indigenous, they are

different in a way of their social structure, the way of life, their customs etc. Later, I will point

out that one of these groups is living in a kind of state of nature, with total equality among its

members, while the other one was assimilated by the State that overruled them and is obligated

by the State’s legal system, notwithstanding that “Indigenous peoples are constantly exempt

from laws, which may interfere with their tradition”.68

66 International Labor Organization . Convention on Indigenous and Tribal Peoples. (Geneva 27.06.1989) C196, entered into force 05.09.1991, Article 1(b).67 Smith, Rhona K. M. International Human Rights. Textbook 3rd edition. Oxford University Press, 2007, 31868 Ibid, 320

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2.1.2 Examples of Indigenous peoples: Australian Aborigines and the Bushmen of South

Africa

I decided to take these two groups of indigenous peoples as an example because there is

diversity between them in many ways, but still both belong to what goes under the term

‘indigenous’. Since the European invasion of Australia in 1788, the Aboriginal people have been

oppressed into a world unnatural to their existence for thousands of years.69 The British

Monarchy invaded the Australian Aborigines during the colonization period; hence, they were

put under the British legal system. After Australia’s independence, changes were imposed; the

Aboriginal people started the request for self-determination, because the government at the time

tried to assimilate these people, destroyed their land, and with that their way of life and culture.

Prior to the arrival of the colonists and the destruction of the homeland of the natives, the

Aborigines lived in a ‘state of nature’. The Aboriginal lifestyle was based on “total kinship with

the natural environment, everything they needed for normal and healthy life was already

provided”.70 They lived in tribes or clans and were “obligated by their own customs and inter

clan ‘contract’.”71 “No one had authority over anyone else in the sense of ruling them, but this is

not to say that there were not leaders”.72 The leaders were people who had personal qualities that

others admire, and were considered smart men, but “there were no elected leaders in the

Aboriginal society”.73

69 A brief Aboriginal history. In Aboriginal heritage http://www.aboriginalheritage.org/culture/history.php (accessedon 12.12.2009)70 Ibid71 Australian Aborigines - Indigenous Australians. http://www.crystalinks.com/aboriginals.html (accessed on 12.12.2009)72 Ibid73 Ibid

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Today, the Aboriginal still live under their customs, but are also obligated to respect the

State’s legal system, which limits some of their human rights, for example the right to education

and using of their mother tongue.74 Therefore, the colonization brought disturbance of the peace

of this people. Armed conflicts and lack of understanding from the ‘modern men’ resulted in

killing of dozens of Aboriginal people and forcing them on different way of life.75 The

Aboriginal people lost most of their tradition and culture, and today most of them are living in

the developed and modern world. Only few of the Aboriginal tribes can be found living in a state

similar to the state of nature, though obliged by rule of law by the State in one way or another.

On the other hand, we have the Bushmen of South Africa that still live in conditions

similar to those before the ‘white men’ invade their land. Along with the arrival of the European

settlers great disadvantages started.76 In this period the number of Bushmen was reduced,

because they fought to death trying to survive due to limited resources (limited and abused by the

settlers), or were captured and forced to slavery and eventually die of extortion.77 Today, as it

was in the past, the Bushmen population lives into groups called bands.78 No leader or superior

exists as a figure in the Bushmen band. That makes all of the members of the band equal, both

male and female.79 Thus, they are all equal in making decisions,80 and “govern themselves by

group consensus”.81 If a dispute arises and there is some kind of misunderstanding between the

band members, they are resolved through discussions where all involved take part with

74 Schech. Culture and Development: A critical Introduction. 182-18375 A brief Aboriginal history.76 Siyabona Africa: Bushmen - San http://www.krugerpark.co.za/africa_bushmen.html (accessed 12.12.2009)77 Ibid78 Watson, Galadriel Findlay. Indigenous peoples: Bushmen in Southern Africa. Weigl Publishers, Inc., New York City, New York, USA, 2005, 10-12 79 Ibid80 Ibid81 The Art of Africa: The Bushmen people - Sun and how they live. http://www.theartofafrica.co.za (accessed 12.12.2009)

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argumentations until some agreement is reached.82 However, the governments of many African

states are trying to exile the Bushmen from their homelands and to assimilate them. For example,

“In Botswana the government has intensified its campaign to drive the Gana and Gwi Bushmen

off their ancestral homeland in the Central Kalahari Game Reserve by cutting off all water

supplies”.83

Clearly, we can see that the modern nations and the modern men forced these indigenous

people in leaving the state of nature they used to live in. The colonialism destroyed these

people’s way of life. It was not that people abandoned the state of nature because they started to

feel intimidated by the others. On the contrary, these indigenous peoples lived together in peace

and in equality, with little resources available that were enough for them to survive. Today, the

indigenous people living in a state of nature are a slowly dying race84 because of all of this;

nevertheless, “the fact that they are still trying to maintain their existence is a proof of how

perfectly their way of life is adopted to their natural surroundings”.85

2.2. Do indigenous people today enjoy the same rights as other citizens, and do we really

need government to protect those rights?

According to the United Nations Declaration on the Rights of Indigenous peoples in

Article 1, “Indigenous peoples have the right to the full enjoyment, as a collective or as

82 Ibid83 Ibid84 For example, the number of Aboriginal people in Australia today is 2.2% of the whole population. Before the colonization period, their number was much higher (1 million people in 1778 decreased to 70,000 in the 1930s). Report from UNHCR, Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Australia : Aborigines, June 2008, available at: http://www.unhcr.org/refworld/docid/49749d5f37.html (accessed 12.12 2009)85 Life magazine. “The Bushmen: an ancient race struggling to survive in the South African desert.” 03.02.1947, 91

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individuals, of all human rights and fundamental freedoms as recognized in the Charter of the

United Nations, the Universal Declaration of Human Rights and international human rights

law.”86 Besides the legal guarantee of the human rights of indigenous people, they were and still

are not respected in practice. Many of the indigenous groups were denied their civil rights,87 for

example limiting their right of free movement or abusing the right to pay work, giving this

people wages that were below the minimum for twice the hard work, and the mostly abused

right(s) of all, the land right(s).88 Moreover, women right to vote in Australia excluded the

Aboriginal women.89 Their cultural rights, like the usage of their native language in public or in

schools,90 were also obstructed from freely exercising them.91

Nevertheless, although not in a great deal, the local governments are trying to incorporate

the indigenous population in the modern society. Some efforts have been made for the

indigenous people to be able to use their own languages, to get back their lands by guarantying

their land rights,92 and most important of all to be free living their lives as they are willing to.

Moreover, indigenous people started integrating in the public93 and political sphere94 of decision -

making processes. Slowly, but surely these peoples human rights are taking a swing.

86 United Nations. Declaration on the Rights of Indigenous Peoples. (New York City 13.09.2007) A/RES/61/295, Article 187 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Australia : Aborigines.88 Ibid89 Government policy in relation to Aboriginal People. City of Sydney news http://www.cityofsydney.nsw.gov.au/Barani/themes/theme3.htm (accessed 11.12.2009)90 Schech. Culture and Development: A critical Introduction. 182-18391 Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2009 - Botswana, 16 July 2009, available at: http://www.unhcr.org/refworld/docid/4a66d9bfc.html (accessed 12.12. 2009) 92 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Australia : Aborigines.93 Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2009 - Botswana.94 Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2009 - Australia, 16July 2009, available at: http://www.unhcr.org/refworld/docid/4a66d9c1c.html (accessed 12.12.2009)

21

On the other hand, besides all the guarantees we can get from one State’s government, do

we really need government for our rights to be protected and secure? What does that tell us? If

people were able to live in the state of nature, do we really need governing? We saw that the

people lived in peace with each other in the state of nature and in freedom from any imposed

authority. Even than these peoples had human rights, right to expression of a thought, right to use

their own language, most importantly rights to life, security, freedom from slavery and torture.

We also saw that these rights were ‘taken away’ from these people and were denied from using

them freely.

Therefore, the existence of the government is not a necessity because people can protect

and secure their basic human rights simply by respecting the rights of the others. However, the

trend these days in re - guaranteeing human rights to indigenous people is on the rise.

Governments are trying to make some changes in their legislative in order for this people to be

recognized as part of their society and enjoy the same rights the rest of the citizen have. The

biggest effort is in granting them back their right to cultural identification and the right of self -

determination,95 so that finally these people can feel free from the obstructions that the

colonialism brought and the rules they imposed, which followed them for many years.

95 Ibid 93, 92

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CONCLUSION

State of nature is not something we should be afraid of, or something that we should

avoid by any means. It is a challenge. The people living in the state of nature are clearly telling

us that not always rule of law is needed. Not always people need government to live proper and

in peace. Moreover, the world was never lacking of people living in the state of nature, and23

probably never will be. We saw the examples of indigenous people, who can live without legally

established government, without constitution and without laws, and still respect each other and

live in peace.

Contrary to this, the theorists claimed that this ‘state’ is not so good after all for people to

live in. For Hobbes it is unimaginable for people to be without law and ruler over them. He

despises the state of nature mostly because of man’s wicked human nature. Locke is little bit

mild on this subject. He gives green light to the state of nature only if people are feeling

threatened by the absolute power the sovereign has. Furthermore, we have Rousseau, who seems

like a supporter of the state of nature, but still is more affectionate towards the State and the

social contract. Nevertheless, these theorists have developed their ideas in a time characteristic

for this kind of reasoning; time where the sovereign was above all and the people were only

‘servants’ to it.

In conclusion, today, we cannot say that people are in worse position than they used to

be. We can only say that certain groups of people (indigenous) are underestimated and

subordinated (in a way) by the governments in the enjoyment of the inviolable rights, more today

than in the period prior to the interference of government (state of nature). However, the

International community is striving to improve the situation of these groups, mostly of the

indigenous people round the world. The start was made with some very important documents

like the Indigenous and Tribal Convention from 1989, followed by the Declaration of the Rights

of Indigenous peoples from 2007. Many other resolutions and legal documents were also made

in favor of these people and their human rights. The position of these people is continuously

improving. Finally, we can only hope that the history will not repeat once more and that these

people will not be forced to suffer again.

24

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