Ethnicity and Group Rights

Nomos XXXIX

Ian Shapiro, Will Kymlicka

• Publisher: NYU Press
• Year: 1997
• ISBN:
  9780814739631
• Topic: Politique et relations internationales
• Subtopic: Droits de l'homme

Within Western political philosophy, the rights of groups has often been neglected or addressed in only the narrowest fashion. Focusing solely on whether rights are exercised by individuals or groups misses what lies at the heart of ethnocultural conflict, leaving the crucial question unanswered: can the familiar system of common citizenship rights within liberal democracies sufficiently accommodate the legitimate interests of ethnic citizens.

Specifically, how does membership in an ethnic group differ from other groups, such as professional, lifestyle, or advocacy groups? How important is ethnicity to personal identity and self-respect, and does accommodating these interests require more than standard citizenship rights? Crucially, what forms of ethnocultural accommodations are consistent with democratic equality, individual freedom, and political stability? Invoking numerous cases studies and addressing the issue of ethnicity from a range of perspectives, Ethnicity and Group Rights seeks to answer these questions.

PART I
MEANINGS OF ETHNICITY AND GROUP RIGHTS

1
INTRODUCTION WILL KYMLICKA AND IAN SHAPIRO

When the Berlin Wall fell in 1989, liberalism appeared to many commentators as the only ideology which retained any validity or viability in the modern world. Initially, the collapse of communism seemed to many to signify the “end of history.” But liberalism proved incapable of containing or defusing the ethnic conflicts which were unleashed in the former communist regimes, and what replaced communism in most of Eastern Europe and the former Soviet Union was not liberal democracy but ethnonationalism. As we approach the twenty-first century, commentators are increasingly wondering whether liberalism can contain ethnic conflict in the West. What used to be seen as stable liberal democracies are now riven by bitter disputes between ethnocultural groups over immigration and multiculturalism, and some even face the threat of secession.

The resurgence of ethnonational conflict in both the East and West has reignited interest in the issue of “group rights.” However, it remains a comparatively unexplored topic within Western political philosophy. There is a long-standing literature on the idea of “group” or “collective” rights. But until recently it tended to focus on a narrow and somewhat formalistic range of questions. The major aim was to categorize rights as “individual” or “collective” along various dimensions; for instance, whether a particular right is exercised by an individual or group, or whether the beneficiary of a particular right is an individual or a group, or whether the right logically entails the prior existence of a group. Using these sorts of criteria, various rights from all areas of the law (family law, corporate law, labor law, etc.) would then be categorized as either individual or collective rights.

There is an increasing recognition, however, that this familiar debate obscures as much as it reveals. In particular, it does not help us grapple with the normative issues raised by ethnocultural conflicts. For many of the claims raised by ethnocultural groups seem to fall on the “individual” side of the ledger. For example, the right to use one’s mother tongue in the courts is a right exercised by individuals, as is the right to be exempted from legislative or administrative requirements which conflict with one’s religious beliefs. Conversely, many of the most familiar features of a liberal-democratic order seem to fall on the “collective” side of the ledger. For example, the right of Oregon to send two representatives to the Senate, or the right of the American people to restrict entry into the United States. Even the rights to freedom of the press and assembly, or the right to a jury trial, have important “collective” elements. And in any event, many of the clearest cases of collective rights, such as the rights of unions and corporations, have nothing in particular to do with ethnic conflict.

Focusing solely on whether the rights are exercised by individuals or groups misses what is really at issue in cases of ethnocultural conflict. The important question is whether the familiar system of common citizenship rights within liberal democracies—the standard set of civil, political, and social rights which define citizenship in most democratic countries—is sufficient to accommodate the legitimate interests which people have in virtue of their ethnic identity. Are there legitimate interests which people have, emerging from their ethnocultural group membership, which are not adequately recognized or protected by the familiar set of liberal-democratic civil and political rights as reflected, say, in the American Bill of Rights, or the French Declaration of the Rights of Man?

This way of looking at the problem directs our attention away from the formal features of claims toward more substantive moral and institutional questions. To what sorts of interests do ethnic identity and cultural membership give rise? How does membership in an ethnic group differ from other groups, such as professional, lifestyle, or advocacy groups? How important is ethnicity to personal identity and self-respect, and does accommodating these interests require more than standard citizenship rights? How salient is ethnicity to political conflict, and does this require taking measures to ensure the adequate representation of ethnic groups? If so, how do we identify and individuate the relevant ethnocultural groups, and who should we accept as their legitimate spokespersons? How can we ensure that in protecting ethnic minorities from the majority, we don’t allow the group to mistreat its own members? What forms of ethnocultural accommodations are consistent with democratic equality, individual freedom, and political stability?

The seventeen essays in this volume, all previously unpublished, address many of these questions. They discuss the distinctiveness of ethnicity as the basis for legal claims (Pogge, Anaya); the extent to which the expression of ethnic identities can (or should) be accommodated within traditional liberal institutions (Stolzenberg, Walker; Kukathas; Walzer; Addis); the potential for group representation (Young; Stark); and the capacity of groups to acquire legal status and exercise legal autonomy (Réaume; Nickel). Several authors also evaluate the strengths and weaknesses of various strategies for resolving ethnic conflict around the world, from secession to nation-building to multiculturalism (Horowitz, Jung and Seekings, Kaspin, Cohen, and Kane). They help illustrate the important progress which is being made in this previously neglected field, as well as identify areas where further research is needed.

I. MEANINGS OF ETHNICITY AND GROUP RIGHTS

To begin with, however, the next chapter provides an overview and typology by Jacob T. Levy of the rights-claims which are at stake in recent ethnocultural conflicts. Levy argues that normative work on the rights of ethnocultural groups requires a way to identify the rights-claims which are morally and institutionally similar, and those which are not. He identifies eight clusters of rights-claims which seem to have a similar normative structure and similar institutional implications. These are (1) exemptions from an ostensibly neutral law which unfairly burdens a cultural minority; (2) assistance to overcome unfair disadvantages or burdens to engaging in the same activities as the dominant group; (3) self-government, whether through secession or autonomy within a larger state; (4) external rules limiting the freedom of nonmembers in order to protect an endangered culture or cultural practice; (5) internal rules which limit the freedom of members, and which must be obeyed for continued recognition as a member of group; (6) recognition and enforcement of customary legal practices by the dominant legal system; (7) guaranteed representation for minority group members within government bodies; and (8) symbolic claims about the nature of the polity and the representation of its constituent groups. Levy provides several examples within each category and identifies the kinds of arguments which are made for and against rights-claims in that category. He argues that this sort of typology is more useful than existing typologies, which tend to conflate different kinds of rights into two or three overly broad categories and which focus on the formal legal structure of rights-claims while neglecting their normative foundations and institutional implications.

II. THE IDEA OF TOLERATION

Levy’s chapter provides a helpful survey of the rights-claims being advanced by ethnocultural groups. But how should we evaluate these claims? For most of our authors, the primary concern is with the potential role of these rights within liberal democracies, and the next three chapters focus directly on this question.

The liberal tradition has been ambivalent towards the aspirations of ethnocultural groups. On the one hand, liberalism is an individualistic theory—indeed, it seems to be the quintessentially individualistic theory—with a marked tendency to view politics as solely about the relationship between individuals and the state, with little or no room for groups in-between, other than as transient outgrowths of the combinations of individual interests. This attitude seems antagonistic to the claims of ethnocultural groups.¹ On the other hand, liberalism is committed at a very deep level to the idea of toleration—indeed, many recent authors argue that liberalism emerged as a generalization of the principle of religious toleration.²

These two aspects of liberalism—its individualism and its commitment to toleration—need not come into conflict if the ethnocultural group is itself individualistic and shares the basic liberal-democratic principles of the larger society. But what if an ethnocultural group is nonindividualistic—or perhaps even anti-individualistic—cherishing group solidarity or cultural purity while repudiating ideals of individual freedom and personal autonomy? Does liberal tolerance extend to such illiberal groups?

In chapter 3, Chandran Kukathas takes up this question by exploring the idea of toleration and its role within liberal theory. He focuses in particular on the extent to which a liberal society should tolerate minority communities and their practices when those practices seem ‘intolerable’ or illiberal. He concludes that even illiberal communities should be tolerated, for a number of reasons. The most important reason is that the conception of public reason which underlies liberalism can only emerge—and acquire normative authority among citizens—if such cultural differences are allowed expression. Toleration, on his view, requires and justifies a principle of nonintervention in the affairs of ethnocultural groups (so long as individuals have a right of exit). He ties this argument to a broader debate about the nature of liberalism. Indeed, one of his main aims is to defend an account of liberalism which views it as a doctrine recommending compromise and the accommodation of different ways of life, rather than as a doctrine offering a comprehensive moral view grounded in already-formulated principles of justice or freedom. For this reason, the ideal which lies at the core of liberalism is toleration.

Both Michael Walzer and Adeno Addis respond to Kukathas. Walzer argues that Kukathas’s vision of a regime of toleration—in which there is no “common standpoint of morality”—is simply not viable. According to Walzer, Kukathas’s ideal of toleration is only viable at the international level. Indeed, the international order already has many of the characteristics Kukathas associates with a tolerant regime, such as the absence of an overarching moral consensus or of an authoritative decision-making body, constant mutual adjustment and accommodation between groups, and a general rule of nonintervention in the internal affairs of groups. Walzer argues, however, that the sorts of intergroup relations which exist within a state are necessarily very different from those which exist between states at the international level. The difference between national and international society, he argues, is ineradicable. International society lacks a common history and culture, but every domestic society inevitably develops a “common moral standpoint,” however disputed, as a result of shared history and experience. Human beings invariably feel attached to and want to defend their society’s common moral standpoint. Consequently, Walzer concludes, a society of the sort Kukathas advocates would either have to be “inhabited by beings of another sort” or else “break up in the radical way suggested by its international analogue.”

Adeno Addis raises related concerns about Kukathas’s project, and goes on to propose a quite different conception of toleration. He describes Kukathas’s view as a form of “negative toleration”—that is, nonintervention. Defenders of negative toleration, like Kukathas, argue that not only does it minimize the risks of conflict, but it also provides the most secure protection to cultural and ethnic minorities. Addis argues, however, that negative toleration, as it is usually articulated, is not as generous to minorities as its supporters claim, nor will it provide the minimal level of solidarity among groups that liberal democratic societies need to sustain themselves over a long period of time. In place of negative toleration, Addis endorses what he calls “pluralistic solidarity,” a way of imagining institutions and vocabularies that will affirm multiplicity while cultivating solidarity. His contention is that a genuine sense of pluralistic solidarity will develop only through a process where majorities and minorities are linked in institutional dialogue, rather than when they merely tolerate each other as the strange and alien Other. In particular, Addis argues that there are three institutions that are central to this discursive process—the education system, the media, and the law. He briefly discusses how each of these systems can be reformed so as to create genuine dialogue across differences.³ According to Addis, this conception of pluralistic solidarity will not only help secure justice for ethnocultural groups but also help to protect individuals within those groups from abuse or mistreatment.

This perennial debate about the appropriate interpretation of liberal toleration shows no signs of abating. But it has become more urgent since the fall of communism. Graham Walker contends in chapter 6 that the only sort of constitutional settlement which has any hope of being realized in Eastern Europe and the former Soviet Union is one which accommodates strongly felt ethnonational identities and aspirations. The future of liberalism in these countries, therefore, may depend on the extent to which liberal theories, and liberal institutions, can be reformed so as to accommodate (some of) the claims of ethnocultural groups.

But even if liberalism can be reformed in these ways, it will still face serious obstacles in many parts of the world which lack traditions of individual liberty. This raises the question whether there is a nonliberal conception of toleration. Walker argues that there is, and that it provides the most appropriate approach for multiethnic countries in many parts of the world. Walker is strongly critical of American constitutional “Johnny Appleseeds,” who have promoted the adoption of American-style liberal constitutionalism in Eastern Europe without considering the very different ethnocultural makeup and political traditions of these countries.

According to Walker, although constitutionalism has enjoyed a certain renaissance since the fall of communism, it is stymied by its conceptual conflation with liberalism. This excludes the only kind of constitutionalism likely to fit many world situations: a nonliberal kind, whose center of gravity is something other than individual liberty entitlements. Walker argues that recovering the idea of constitutionalism from its modern shrinkage of meaning is easier now that liberals have lost some of their triumphal certainty which accompanied the initial collapse of communism. Moreover, the constitutional experiences of countries like Israel, or the Native American nations, provide useful insight into forms of constitutionalism which are grounded not in individual liberty but in the promotion of certain collective ethnocultural goals. Walker argues that a nonliberal version retains constitutionalism’s appeal as a superior objectivity that limits powerholders and thwarts despotism. It prevents the abuse of power and helps to protect minorities. It thereby makes the resources of constitutionalism more fully available where they are needed most—in the postcommunist region and elsewhere where conditions preclude t...