On citizenship and multicultural vulnerability

Political Theory

Volumn 28, Issue 1, 2000, Pages 64-89

  Shachar, Ayelet ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034424109     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591700028001004     Document Type: Review

References (108)

1. See Nathan Glazer, We Are All Multiculturalists Now (Cambridge, MA: Harvard University Press, 1997).
2. Robert M. Cover, "The Supreme Court 1982 Term: Foreword - Nomos and Narrative, "Harvard Law Review 97 (1983): 4-68. Cover says, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue ascripture. Once understood in the context of the narrative that give it meaning, law becomes not merely a system of rules to be observed but a world in which we live" (pp. 4-5). Cover focuses his analysis on religious identity groups that create alternative nomian worlds in the constitutional state. As Greene puts it, these groups, "sometimes called 'nomoi, ' … are constituted of people who share a comprehensive worldview that extends to creating a law for the community." See Abner S. Greene, "Kiryas Joel and Two Mistakes about Equality, "Columbia Law Review 96 (1996): 1-86 at 4.
3. Robert M. Cover, "The Supreme Court 1982 Term: Foreword - Nomos and Narrative, "Harvard Law Review 97 (1983): 4-68. Cover says, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue ascripture. Once understood in the context of the narrative that give it meaning, law becomes not merely a system of rules to be observed but a world in which we live" (pp. 4-5). Cover focuses his analysis on religious identity groups that create alternative nomian worlds in the constitutional state. As Greene puts it, these groups, "sometimes called 'nomoi, ' … are constituted of people who share a comprehensive worldview that extends to creating a law for the community." See Abner S. Greene, "Kiryas Joel and Two Mistakes about Equality, "Columbia Law Review 96 (1996): 1-86 at 4.
4. Iris Marion Young, "Polity and Group Differences: A Critique of the Ideal of Universal Citizenship, "Ethics 99 (1990): 250-74 at 272.
5. J.G.A. Pocock, "The Ideal of Citizenship since Classical Times, "in Theorizing Citizenship, ed. Ronald Beiner (Albany: State University of New York Press, 1995), 36.
6. Michael Walzer, "Citizenship, "in Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, and Russell L. Hanson (Cambridge, UK: Cambridge University Press, 1989), 211.
7. Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, MA: Harvard University Press, 1992): 35-49.
8. See Perez v. Bronwell, 356 US 44, 64 (1958) (Warren, C. J. dissenting). I refer to "citizenship, "for purposes of this discussion, as a legal status that defines membership boundaries in the body politic and entails a set of individual rights, as defined by state law. All citizens can legitimately expect to possess and enjoy these rights in a fair and equal manner. I focus my remarks on citizens as the prime beneficiaries of the rights and protections of the modern state. Under this category I include all persons who permanently reside in a given territory.
9. Although what constitutes an "identity group" is a controversial question, we can say for the purposes of this discussion that such groups are distinguishable by a unique history and collective memory; a distinct culture or set of social norms, customs, and traditions; or perhaps an experience of maltreatment by mainstream society. My analysis deals only with identity groups that wish to maintain their nomos as an alternative to full assimilation.
10. Charles Taylor, "The Politics of Recognition, "in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1994), 25.
11. Ibid., 31.
12. J. M. Balkin, "Ideology as Cultural Software, "Cardozo Law Review 16(1995): 1221-33 at 1229.
13. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, UK: Clarendon, 1995), 105.
14. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
15. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
16. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
17. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
18. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
19. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
20. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
21. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
22. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
23. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
24. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
25. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
26. Among those who have advanced this multicultural argument, Kymlicka probably has been the most influential. See Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Clarendon, 1989); and Kymlicka, Multicultural Citizenship. While the literature on multi-culturalism is too vast to cite, the following texts are helpful as an introduction to the field: William A. Galston, "Two Concepts of Liberalism, "Ethics 105 (1995): 516-34; Bhikhu Parekh, "Cultural Pluralism and the Limits of Diversity, "Allternatives 20 (1995): 431-57; Avishai Margalit and Moshe Halbertal, "Liberalism and the Right to Culture, "Social Research 61 (1994): 491-510; Joseph Raz, "Multiculturalism: A Liberal Perspective, "in Ethics in the Public Domain: Essays in the Morality of Law and Politics, rev. ed. (Oxford, UK: Oxford University Press, 1995); Charles Taylor, "Shared and Divergent Values, "in Options for a New Canada, ed. Ronald L. Watts and Douglas M. Brown (Toronto: University of Toronto Press, 1991); Taylor, "The Politics of Recognition"; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, UK: Cambridge University Press, 1995); Vernon Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory, "World Politics 29 (1977): 343-69; Brian Walker, "Plural Cultures, Contested Territories: A Critique of Kymlicka, "Canadian Journal of Political Science 30 (1997): 211-34; Young, "Polity and Group Differences, "250-74; Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
27. Young, Justice and the Politics of Difference, 119.
28. Young, "Polity and Group Differences, "272.
29. Kymlicka, Multicultural Citizenship, 6-7, 26-33.
30. For a concise discussion, see Stephen Castles, "Democracy and Multicultural Citizenship, "in From Aliens to Citizens: Redefining the Status of Immigrants in Europe, ed. Rainer Bauböck (Aldershot, UK: Avebury, 1994).
31. Tully, Strange Multiplicity, 5. See also James Tully, "Cultural Demands for Constitutional Recognition, "Journal of Political Philosophy 3 (1995): 111-132 at 114.
32. Tully, Strange Multiplicity, 5. See also James Tully, "Cultural Demands for Constitutional Recognition, "Journal of Political Philosophy 3 (1995): 111-132 at 114.
33. Tully, Strange Multiplicity, 5.
34. Tully, Strange Multiplicity. Forrepresentations of the strong multicultural argument, see also Chandran Kukathas, "Cultural Toleration, "in Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka (New York: New York University Press, 1997), 69-104; Michael McDonald, "Should Communities Have Rights? Reflections on Liberal Individualism, "Canadian Journal of Law and Jurisprudence 4 (1991): 217-37; John Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities, "Ethics 105 (1995): 580-603.
35. Tully, Strange Multiplicity. Forrepresentations of the strong multicultural argument, see also Chandran Kukathas, "Cultural Toleration, "in Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka (New York: New York University Press, 1997), 69-104; Michael McDonald, "Should Communities Have Rights? Reflections on Liberal Individualism, "Canadian Journal of Law and Jurisprudence 4 (1991): 217-37; John Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities, "Ethics 105 (1995): 580-603.
36. Tully, Strange Multiplicity. Forrepresentations of the strong multicultural argument, see also Chandran Kukathas, "Cultural Toleration, "in Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka (New York: New York University Press, 1997), 69-104; Michael McDonald, "Should Communities Have Rights? Reflections on Liberal Individualism, "Canadian Journal of Law and Jurisprudence 4 (1991): 217-37; John Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities, "Ethics 105 (1995): 580-603.
37. Tully, Strange Multiplicity. Forrepresentations of the strong multicultural argument, see also Chandran Kukathas, "Cultural Toleration, "in Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka (New York: New York University Press, 1997), 69-104; Michael McDonald, "Should Communities Have Rights? Reflections on Liberal Individualism, "Canadian Journal of Law and Jurisprudence 4 (1991): 217-37; John Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities, "Ethics 105 (1995): 580-603.
38. Also notice that little consideration is given under this version of multiculturalism to the many problems of group agency (e.g., the criteria determining who can "speak for a group") and the potential effects of such intercultural arrangements on the ossification of the identity of such minority communities. I discuss this set of problems in greater detail in Ayelet Shachar, Multicultural Jurisdictions: Preserving Cultural Differences and Women's Rights, chap. 4 (Cambridge, UK: Cambridge University Press, forthcoming).
39. Kymlicka, Multicultural Citizenship, 6.
40. Ibid.
41. This tension is addressed by Kymlicka in Multicultural Citizenship, where Kymlicka suggests that it can be overcome by a distinction between two kinds of multicultural accommodations: those that promote justice between groups (or "external protections") and those that restrict the ability of individuals within the group to revise or abandon traditional cultural practices (or "internal restrictions"). Kymlicka endorses the former types of accommodations but rejects the latter ones. See Kymlicka, Multicultural Citizenship, 34-44. While this distinction is attractive, it fails to provide a viable solution for a set of real-life situations in which the external and internal aspects of accommodation are closely interwoven. I discuss this problem in Ayelet Shachar, "Group Identity and Women's Rights in Family Law: The Perils of Multicultural Accommodation, "Journal of Political Philosophy 6 (1998): 285-305; and in greater detail in Shachar, Multicultural Jurisdictions, chap. 2.
42. This tension is addressed by Kymlicka in Multicultural Citizenship, where Kymlicka suggests that it can be overcome by a distinction between two kinds of multicultural accommodations: those that promote justice between groups (or "external protections") and those that restrict the ability of individuals within the group to revise or abandon traditional cultural practices (or "internal restrictions"). Kymlicka endorses the former types of accommodations but rejects the latter ones. See Kymlicka, Multicultural Citizenship, 34-44. While this distinction is attractive, it fails to provide a viable solution for a set of real-life situations in which the external and internal aspects of accommodation are closely interwoven. I discuss this problem in Ayelet Shachar, "Group Identity and Women's Rights in Family Law: The Perils of Multicultural Accommodation, "Journal of Political Philosophy 6 (1998): 285-305; and in greater detail in Shachar, Multicultural Jurisdictions, chap. 2.
43. This tension is addressed by Kymlicka in Multicultural Citizenship, where Kymlicka suggests that it can be overcome by a distinction between two kinds of multicultural accommodations: those that promote justice between groups (or "external protections") and those that restrict the ability of individuals within the group to revise or abandon traditional cultural practices (or "internal restrictions"). Kymlicka endorses the former types of accommodations but rejects the latter ones. See Kymlicka, Multicultural Citizenship, 34-44. While this distinction is attractive, it fails to provide a viable solution for a set of real-life situations in which the external and internal aspects of accommodation are closely interwoven. I discuss this problem in Ayelet Shachar, "Group Identity and Women's Rights in Family Law: The Perils of Multicultural Accommodation, "Journal of Political Philosophy 6 (1998): 285-305; and in greater detail in Shachar, Multicultural Jurisdictions, chap. 2.
44. As the history of American citizenship law illustrates, women and non-Whites have long been excluded from acquiring full and equal citizenship status, even when they have been born in the United States. Similarly, immigration and naturalization policies have restricted access to U.S. citizenship based on explicit gender and racial criteria. See Virginia Sapiro, "Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, "Politics & Society 13 (1984): 1-26. More generally, see Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997).
45. As the history of American citizenship law illustrates, women and non-Whites have long been excluded from acquiring full and equal citizenship status, even when they have been born in the United States. Similarly, immigration and naturalization policies have restricted access to U.S. citizenship based on explicit gender and racial criteria. See Virginia Sapiro, "Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, "Politics & Society 13 (1984): 1-26. More generally, see Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven, CT: Yale University Press, 1997).
46. The policy of state nonintervention in the marketplace is based on the assumption that the market naturally reflects actual supply and demand. A noninterventionist economic policy typically assumes that the marketplace is autonomous and therefore can function independently of the state. Similarly, the policy of state nonintervention in the family assumes that "the family is capable of existing in some sense apart from state activity, as a natural formation rather than … as a creation of the state." See Frances E. Olsen, "The Family and the Market: A Study of Ideology and Legal Reform, "Harvard Law Review 96 (1983): 1497-579 at 1504.
47. Kukathas, for example, supports a nonintervention policy even if its consequences are systemic intragroup violations of citizenship rights. See Chandran Kukathas, "Are There any Cultural Rights?" Political Theory 20 (1992): 105-39 at 127. Interestingly, a policy of state non-intervention with regard to national minorities also is endorsed by Kymlicka, a prominent representative of the weak multicultural model. This is surprising because Kymlicka views the violation of group members' rights by their own identity groups as morally unjust. See Will Kymlicka, "The Rights of Minority Cultures: Reply to Kukathas, "Political Theory 20 (1992): 140-45 at 144. See also Kymlicka, Multicultural Citizenship, 166-70; Shachar, Multicultural Jurisdictions, chap. 2.
48. Kukathas, for example, supports a nonintervention policy even if its consequences are systemic intragroup violations of citizenship rights. See Chandran Kukathas, "Are There any Cultural Rights?" Political Theory 20 (1992): 105-39 at 127. Interestingly, a policy of state non-intervention with regard to national minorities also is endorsed by Kymlicka, a prominent representative of the weak multicultural model. This is surprising because Kymlicka views the violation of group members' rights by their own identity groups as morally unjust. See Will Kymlicka, "The Rights of Minority Cultures: Reply to Kukathas, "Political Theory 20 (1992): 140-45 at 144. See also Kymlicka, Multicultural Citizenship, 166-70; Shachar, Multicultural Jurisdictions, chap. 2.
49. Kukathas, for example, supports a nonintervention policy even if its consequences are systemic intragroup violations of citizenship rights. See Chandran Kukathas, "Are There any Cultural Rights?" Political Theory 20 (1992): 105-39 at 127. Interestingly, a policy of state non-intervention with regard to national minorities also is endorsed by Kymlicka, a prominent representative of the weak multicultural model. This is surprising because Kymlicka views the violation of group members' rights by their own identity groups as morally unjust. See Will Kymlicka, "The Rights of Minority Cultures: Reply to Kukathas, "Political Theory 20 (1992): 140-45 at 144. See also Kymlicka, Multicultural Citizenship, 166-70; Shachar, Multicultural Jurisdictions, chap. 2.
50. Kukathas, for example, supports a nonintervention policy even if its consequences are systemic intragroup violations of citizenship rights. See Chandran Kukathas, "Are There any Cultural Rights?" Political Theory 20 (1992): 105-39 at 127. Interestingly, a policy of state non-intervention with regard to national minorities also is endorsed by Kymlicka, a prominent representative of the weak multicultural model. This is surprising because Kymlicka views the violation of group members' rights by their own identity groups as morally unjust. See Will Kymlicka, "The Rights of Minority Cultures: Reply to Kukathas, "Political Theory 20 (1992): 140-45 at 144. See also Kymlicka, Multicultural Citizenship, 166-70; Shachar, Multicultural Jurisdictions, chap. 2.
51. The "walls" of identity groups never are absolutely sealed. Under a multicultural nonintervention policy, the state may (and even should) indirectly intervene in identity groups through measures such as tax exemptions, language programs, and cultural preservation grants.
52. Kymlicka, Multicultural Citizenship, 6, 10-11.
53. Michael Walzer, quoted in Kymlicka, Multicultural Citizenship, 20.
54. "Immigrant groups are not 'nations' and do not occupy homelands…. [They] participate within the public institutions of the dominant culture(s) and speak the dominant language(s)…. So while immigrant groups have increasingly asserted their right to express their ethnic particularity, they typically wish to do so within the public institutions." See Kymlicka, Multicultural Citizenship, 15-16. For a different analysis of immigrant groups' claims, see Parekh, "Cultural Pluralism and the Limits of Diversity."
55. "Immigrant groups are not 'nations' and do not occupy homelands…. [They] participate within the public institutions of the dominant culture(s) and speak the dominant language(s)…. So while immigrant groups have increasingly asserted their right to express their ethnic particularity, they typically wish to do so within the public institutions." See Kymlicka, Multicultural Citizenship, 15-16. For a different analysis of immigrant groups' claims, see Parekh, "Cultural Pluralism and the Limits of Diversity."
56. Kymlicka, Multicultural Citizenship, 30-31.
57. Ibid., 20-21. Interestingly, the distinction between the sorts of rights to which different identity groups are entitled pivots around a concept that can be understood as "ancient sin." In case of national minorities, for example, the sin that should guide the multicultural policy is the involuntary incorporation of indigenous peoples by the colonializing state. In the case of immigrant ethnic groups and religious minorities, it is their voluntary entry as individuals to the new state that restricts the spectrum of claims they can raise against the state.
58. Note that Kymlicka's multicultural model takes as its paradigmatic case the experience of countries such as Canada, Australia, New Zealand, and the United States that have in recent years established multicultural arrangements primarily to accommodate indigenous peoples or new immigrants. But in other parts of the world, particularly in divided societies, the state also must address claims for recognition that are raised by minority cultures/religious communities that fit neither the "indigenous" nor the "immigrant" category. See Ayelet Shachar and Ran Hirschl, "What We Talk about When We Talk about Multiculturalism, "paper presented at the Nationalism, Multiculturalism, and Liberal Democracy Colloquium, Amsterdam, November 1997.
59. Martha Minow, "The Constitution and the Subgroup Question, "Indiana Law Journal 71 (1995): 1-26. Family law, as I later explain, establishes the group's membership boundaries, defining, for example, who by virtue of birth or marriage is recognized as a full member of the group.
60. For an illustration of this point in the American context of family law regulation, see Nancy F. Cott, "Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century, "in U.S. History as Women's History, ed. Linda Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill: University of North Carolina Press, 1995), 107-21.
61. This is akin to an example given by Kymlicka, who discusses powers that are gradually being transferred by the United States and Canada to North American tribal/band councils. See Kymlicka, Multicultural Citizenship, 30.
62. While no identity group's "established tradition" ever is fully fixed or immune to change, a group's authoritative textual interpreters emphasize specific norms or practices as having a dominant status over any given period. Thus an established tradition in religious groups, for example, usually consists of a recognized corpus, which in turn is subject to reinterpretations by a group's recognized leader or inside court.
63. Nomoi groups generally have a recognized corpus of texts by which they govern the groups' public life and individuals' behavior. In the case of religiously defined nomoi groups, for example, these texts can include holy scripts and their authoritative interpretations. Other groups might only have unwritten customary traditions that guide behavior. My reference to "texts, "however, also includes such customary traditions.
64. I am thankful to Ran Hirschl for clarifying this distinction.
65. In asserting that identity groups are not to be conceived as nonconflictual or ahistorical entities, I do not intend to imply that identity groups are fictional entities or that they are not constitutive of their members' identities as encumbered selves. However, like Vertovec, I do not conceive of identity as something that is "virtually burnt into the genes of people." See Steven Vertovec, "Multiculturalism, Culturalism, and Public Incorporation, "Ethnic and Racial Studies 19 (1996): 49-69 at 51. Fora critique of biologically or naturally based conceptions of race encoded in law, see Ian F. Haney Lopez, "The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, "Harvard Civil Rights-Civil Liberties Law Review 29 (1994): 1-62.
66. In asserting that identity groups are not to be conceived as nonconflictual or ahistorical entities, I do not intend to imply that identity groups are fictional entities or that they are not constitutive of their members' identities as encumbered selves. However, like Vertovec, I do not conceive of identity as something that is "virtually burnt into the genes of people." See Steven Vertovec, "Multiculturalism, Culturalism, and Public Incorporation, "Ethnic and Racial Studies 19 (1996): 49-69 at 51. Fora critique of biologically or naturally based conceptions of race encoded in law, see Ian F. Haney Lopez, "The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, "Harvard Civil Rights-Civil Liberties Law Review 29 (1994): 1-62.
67. Since marital status has significant consequences not only for the involved parties but also for various third parties, the state sometimes requires groups to establish registers indicating the marital status of their members. When "inside" officials control such tasks for the state, they may be subject to some "outside" regulation. For example, in Israel, where matters of marriage and divorce fall under the exclusive jurisdiction of religious officials, state law regulates the terms of appointment of Jewish, Muslim, and Druze judges serving in religious courts.
68. In describing the position of "Islamists" in the Arab world, and their concern with the role of women in a culture, Haddad explains that women are viewed as important participants in "a political agenda that refuses to participate any longer in subservience to the foreigner." However, Haddad goes on to observe, "Islamists fault the Arab woman for appropriating the concepts of equality and liberation from the West. In this she has become an importer, they say, an imitator rather than a creative originator. Her body dwells in her country, while her mind is in the West." See Yvonne Yazbeck Haddad, "Islam and Gender: Dilemmas in the Changing Arab World, "in Islam, Gender, and Social Change, ed. Yvonne Yazbeck Haddad and John L. Eposito (Oxford, UK: Oxford University Press, 1998), 20. Clearly, however, there are various other views on women's role in Islam. See, for example, Barbara Stowasser, "Gender Issues and Contemporary Qur' an Interpretations, "in Islam, Gender, and Social Change, ed. Haddad and Eposito, 30-44.
69. In describing the position of "Islamists" in the Arab world, and their concern with the role of women in a culture, Haddad explains that women are viewed as important participants in "a political agenda that refuses to participate any longer in subservience to the foreigner." However, Haddad goes on to observe, "Islamists fault the Arab woman for appropriating the concepts of equality and liberation from the West. In this she has become an importer, they say, an imitator rather than a creative originator. Her body dwells in her country, while her mind is in the West." See Yvonne Yazbeck Haddad, "Islam and Gender: Dilemmas in the Changing Arab World, "in Islam, Gender, and Social Change, ed. Yvonne Yazbeck Haddad and John L. Eposito (Oxford, UK: Oxford University Press, 1998), 20. Clearly, however, there are various other views on women's role in Islam. See, for example, Barbara Stowasser, "Gender Issues and Contemporary Qur' an Interpretations, "in Islam, Gender, and Social Change, ed. Haddad and Eposito, 30-44.
70. In Multicultural Jurisdictions, I provide a typology of three different types of responses by group members to state assimilation pressures including what I label "reactive culturalism, "a reaction aimed at group self-preservation that takes as its goal the maintenance of a separate and distinct ethos and that may, in the process, enforce hierarchical and discriminatory interpretations of group traditions.
71. While this trend is controversial and raises old questions about the appropriate relationship between "church and state, "it nevertheless found a place on the public policy agendas of many diverse societies. Systems of plural family law are already in existence in countries such as India, Kenya, and Israel. Other countries have in recent years begun to reallocate legal powers in matters of family law to identity groups. In the United States, for example, the Indian Child Welfare Act has moved jurisdiction over Indian child welfare issues from state courts to tribal courts, the latter being designated as the exclusive or preferred forum for certain custody proceedings involving Native American children. Similarly, Canada, Australia, and (most recently) England also are revisiting their family law policies, with an eye toward exploring different ways in which state law can allow different communities to be governed by their own institutions on certain matters of family law. For further discussion, see Ayelet Shachar, "Should Church and State Be Joined at the Alter?: Women's Rights and the Multicultural Dilemma, "in Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman (Oxford, UK: Oxford University Press, forthcoming).
72. For example, this is the case when the marital options of a woman are officially determined by a male guardian - a father, a husband, a brother, or an uncle. See Marsha A. Freeman, "Measuring Equality: A Comparative Perspective on Women's Legal Capacity and Constitu-tional Rights in Five Commonwealth Countries, "Berkeley Women's Law Journal 5 (1990): 110-38.
73. I am not presuming that citizenship rights are uncontested or crystal clear. Even so basic a right as bodily integrity and protection of life can raise interpretational issues as to its extent. See, for example, Jennifer Nedelsky, "Violence against Women: Challenges to the Liberal State and Relational Feminism, "in Political Order, ed. Ian Shapiro and Russell Hardin (New York: New York University Press, 1996), 454-97.
74. Surprisingly, while theoretical debates have raged in recent years over whether to adopt multicultural policies (and, if so, then how and to which groups), little consideration has been given to the complex arena of family law. Specifically, the problem of intragroup oppression of women rarely is analyzed in the literature. However, when it is raised, it often is presented as an unavoidable consequence of tolerating cultural differences. I believe that this view is misguided. Elsewhere, I distinguish and then critique two apparently diametrical theoretical approaches that, I claim, should in fact be understood as mirror images of one another. I label these two approaches the "unavoidable costs" response and the "re-universalized citizenship" response. For recent articulations of these two responses in the political theory literature, see Kukathas, "Cultural Toleration" (representing the unavoidable costs response); Susan Moller Okin, "Feminism and Multiculturalism: Some Tensions, "Ethics 108 (1998): 661-84 (representing the re-universalized citizenship response). Both Kukathas's and Okin's approaches are problematic because they require that women make a choice of penalties between their rights as citizens and their group identities. Such zero-sum approaches have nothing to offer women who legitimately wish to both preserve their cultural identities and challenge the gender inequalities encoded within their identity groups' accommodated traditions. See Ayelet Shachar, "Against Cultural Hegemony and Against Cultural Fragmentation: A Critique of Okin and Kukathas, "Citizenship Studies (forthcoming).
75. Surprisingly, while theoretical debates have raged in recent years over whether to adopt multicultural policies (and, if so, then how and to which groups), little consideration has been given to the complex arena of family law. Specifically, the problem of intragroup oppression of women rarely is analyzed in the literature. However, when it is raised, it often is presented as an unavoidable consequence of tolerating cultural differences. I believe that this view is misguided. Elsewhere, I distinguish and then critique two apparently diametrical theoretical approaches that, I claim, should in fact be understood as mirror images of one another. I label these two approaches the "unavoidable costs" response and the "re-universalized citizenship" response. For recent articulations of these two responses in the political theory literature, see Kukathas, "Cultural Toleration" (representing the unavoidable costs response); Susan Moller Okin, "Feminism and Multiculturalism: Some Tensions, "Ethics 108 (1998): 661-84 (representing the re-universalized citizenship response). Both Kukathas's and Okin's approaches are problematic because they require that women make a choice of penalties between their rights as citizens and their group identities. Such zero-sum approaches have nothing to offer women who legitimately wish to both preserve their cultural identities and challenge the gender inequalities encoded within their identity groups' accommodated traditions. See Ayelet Shachar, "Against Cultural Hegemony and Against Cultural Fragmentation: A Critique of Okin and Kukathas, "Citizenship Studies (forthcoming).
76. Surprisingly, while theoretical debates have raged in recent years over whether to adopt multicultural policies (and, if so, then how and to which groups), little consideration has been given to the complex arena of family law. Specifically, the problem of intragroup oppression of women rarely is analyzed in the literature. However, when it is raised, it often is presented as an unavoidable consequence of tolerating cultural differences. I believe that this view is misguided. Elsewhere, I distinguish and then critique two apparently diametrical theoretical approaches that, I claim, should in fact be understood as mirror images of one another. I label these two approaches the "unavoidable costs" response and the "re-universalized citizenship" response. For recent articulations of these two responses in the political theory literature, see Kukathas, "Cultural Toleration" (representing the unavoidable costs response); Susan Moller Okin, "Feminism and Multiculturalism: Some Tensions, "Ethics 108 (1998): 661-84 (representing the re-universalized citizenship response). Both Kukathas's and Okin's approaches are problematic because they require that women make a choice of penalties between their rights as citizens and their group identities. Such zero-sum approaches have nothing to offer women who legitimately wish to both preserve their cultural identities and challenge the gender inequalities encoded within their identity groups' accommodated traditions. See Ayelet Shachar, "Against Cultural Hegemony and Against Cultural Fragmentation: A Critique of Okin and Kukathas, "Citizenship Studies (forthcoming).
77. Minow, "The Constitution and the Subgroup Question, "6.
78. Accordingly, family law loses its distinct role in legally defining membership boundaries if the group permits anyone interested in joining the group to become a full member.
79. Within this legal paradigm, there is leeway in defining the specific legal means through which membership boundaries are codified in the group's established traditions. Under the common notion that group membership is legally transmitted by birth, various religious traditions have given different content to the "membership transmission procedure, "ranging from traditions dictating that membership by birth is transmitted along matrilineal lines to traditions dictating that group membership is transmitted solely along patrilineal lines. Or, then again, some recognize both.
80. On this diachronic dimension, see J. Donald Galloway, "The Dilemmas of Canadian Citizenship Law, "Georgetown Immigration Law Journal 13 (1999): 201-31 at 202-3.
81. Men, too, are controlled by such laws but, as will be seen, not in a similarly discriminatory and subordinating fashion.
82. According to the U.S. Census Bureau, in 1997 the percentage of the U.S. population that was foreign born was only roughly 10 percent, and this is in the midst of one of the largest immigration waves in U.S. history. A 150-year survey indicates that, on average, more than 90 percent of the population of a high-immigration country like the United States acquires membership in the polity by birth. For a concise presentation of this empirical data, see "Foreign-Born Residents in the United States, "Research Perspectives on Migration 2 (1999): 10.
83. For a position that advocates a model of political membership by consent rather than by birthright, see Peter H. Schuck and Rogers M. Smith, Citizenship without Consent: Illegal Aliens in the American Polity (New Haven, CT: Yale University Press, 1985).
84. For these purposes, legal marriage often is a necessary but not sufficient condition. See, for example, the case of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). See my discussion of this case in "Group Identity and Women's Rights in Family Law, "285-86, 302-3.
85. As recently as 1998, the U.S. Supreme Court held that "illegitimate" children born to American fathers outside the United States are not automatically entitled to American citizenship. See Miller v. Albright, 118 U.S. S.Ct. 1428 (1998).
86. For a related argument on the national level, see Nancy Cott, "Marriage and Women's Citizenship in the United States: 1840-1934, "American Historical Review 103 (1998): 1440-74.
87. Floya Anthias and Nira Yuval Davis, "Introduction, "in Woman-Nation-State, ed. Nira Yuval Davis and Floya Anthias (London: Macmillan, 1989), 1, 6. Anthias and Yuval Davis's analysis of women's unique position is not aimed at essentializing their role as biological and cultural reproducers of collective identities, nor does it express the view that all reproduction experiences of women are similar. Anthias and Yuval Davis therefore differ from cultural feminists who glorify mothering as the epitome of an ethics of care. Compare, for example, Robin West, "Jurisprudence and Gender, "University of Chicago Law Review 55 (1988): 1-77. For a critique of West's "essential woman, "see Angela P. Harris, "Race and Essentialism
88. Floya Anthias and Nira Yuval Davis, "Introduction, "in Woman-Nation-State, ed. Nira Yuval Davis and Floya Anthias (London: Macmillan, 1989), 1, 6. Anthias and Yuval Davis's analysis of women's unique position is not aimed at essentializing their role as biological and cultural reproducers of collective identities, nor does it express the view that all reproduction experiences of women are similar. Anthias and Yuval Davis therefore differ from cultural feminists who glorify mothering as the epitome of an ethics of care. Compare, for example, Robin West, "Jurisprudence and Gender, "University of Chicago Law Review 55 (1988): 1-77. For a critique of West's "essential woman, "see Angela P. Harris, "Race and Essentialism in Feminist Legal Theory, "Stanford Law Review 42 (1990): 581-616.
89. Floya Anthias and Nira Yuval Davis, "Introduction, "in Woman-Nation-State, ed. Nira Yuval Davis and Floya Anthias (London: Macmillan, 1989), 1, 6. Anthias and Yuval Davis's analysis of women's unique position is not aimed at essentializing their role as biological and cultural reproducers of collective identities, nor does it express the view that all reproduction experiences of women are similar. Anthias and Yuval Davis therefore differ from cultural feminists who glorify mothering as the epitome of an ethics of care. Compare, for example, Robin West, "Jurisprudence and Gender, "University of Chicago Law Review 55 (1988): 1-77. For a critique of West's "essential woman, "see Angela P. Harris, "Race and Essentialism in Feminist Legal Theory, "Stanford Law Review 42 (1990): 581-616.
90. For discussion in the context of Orthodox Judaism, see Saul J. Berman, "The Status of Women in Halakhic Judaism, "Tradition 14 (1973): 5-28.
91. See also Marie-Aimée Hélie-Lucas, "The Preferential Symbol for Islamic Identity: Women in Muslim Personal Laws, "in Identity Politics and Women: Cultural Representations and Feminism in International Perspective, ed. Valentine M. Moghadam (Boulder, CO: Westview, 1994), 391-407;
92. Margaret Lamberts Bendroth, Fundamentalism and Gender, 1875 to the Present (New Haven, CT: Yale University Press, 1993).
93. O' Brien argues that in Western history and political thought, men have attempted to provide continuity over time by strictly controlling the legal and institutional forms (e.g., marriage) of women's legitimate reproduction of children. Moreover, O'Brien claims that fathers' anxiety about paternity is the main source of women's sexual and social oppression: "for men, sexuality is the basis of a free appropriative right, a power over women and children and a power over time itself. It is also the basis of the radical uncertainty of that right … and a lack of immediate recognition as progenitor." See Mary O'Brien, The Politics of Reproduction (London: Routledge and Kegan Paul, 1981), 191. While O'Brien is correct to point to the fear arising in men's lack of absolute control over women's sexuality, I disagree with her claim that the "politics of reproduction" is sufficient to explain the fact that different legal systems throughout the centuries have upheld women's oppression. O'Brien's argument is unsatisfactory on at least two grounds. First, her analysis is too heavily based on an essentially biological, "pre-social" perception of the relations between the sexes as the prime explanatory factor for a deeply complex culturally and legally mediated set of social relations between men and women. Second, O'Brien must address the question of why women have not used their indispensable and potentially powerful role in the process of human reproduction to assert their resistance and agency.
94. Clearly, however, not all women suffer intragroup injuries, even if they all are subject to the same family law code. This is partly because in nomoi groups, as elsewhere, women differ along various axes such as wealth, marital and social status, and age.
95. The list of recognized religious communities in Israeli includes various Christian churches, Muslims, Druzes, Jews, and Bahais.
96. Therefore, "in matters affecting their families, Israelis must function as Jews, Muslims, Druzes, etc." See Martin Edelman, Courts, Politics, and Culture in Israel (Charlottesville: University Press of Virginia, 1994), 121, emphasis added. A nonreligious district court has authority to dissolve a marriage only if the spouses belong to different religious communities.
97. For a clear summary of Halakhic divorce law, see Menachem M. Bayer, "The Role of Jewish Law in Pertaining to the Jewish Family, "in Jews and Divorce, ed. Jacob Freid (New York: Ktav Publishing House, 1968), 1-33.
98. Moslem Shari'a courts, for example, have exclusive jurisdiction over all matters of personal status of Moslem Israeli citizens. This wide jurisdiction, of course, brings up a host of other problems that cannot be addressed here. For a concise account of Muslim personal status laws, see James J. Nasir, The Status of Women under Islamic Law and under Modern Islamic Legislation (London: Graham & Trotman, 1994).
99. Note that women in Israel are formally guaranteed full and equal citizenship rights by state law. However, this principle of gender equality applies to all spheres of life except in matters of marriage and divorce. Section 5 of the Israeli Women's Equal Rights Law of 1951 states, "The legal norms of this law [i.e., guarantee of equality for women] have no authority over matters of prohibition and celebration of marriage and divorce." A similar pattern applies at the international level. A significant number of countries that signed the Convention on the Elimination of All Forms of Discrimination against Women made explicit reservations with regard to its non-applicability over certain family law matters. See Rebecca J. Cook, "Reservations to the Convention on the Elimination of All Forms of Discrimination against Women, "Virginia Journal of International Law 30 (1990): 643-703.
100. Note that resistance to change in a group's established traditions is more pronounced in religious communities such as Orthodox Judaism, Islamic traditionalism, and Evangelical Protestantism, groups that partially assert their identity in reaction to outside changes such as modernity and secularism. In the context of various Muslim communities once ruled by Western colonial regimes, this reactive assertion of identity has a specific anti-imperialist tone. See Deniz Kandiyoti, "Introduction, "in Women, Islam, and the State, ed. Deniz Kandiyoti (London: Macmillan, 1991), 1-21.
101. An analysis of the causes for this phenomenon is beyond the scope of this essay. For an in-depth examination of these issues, see Multicultural Jurisdictions.
102. For a detailed historical account of the legal construction of the privacy discourse, see Reva B. Siegel, "'The Rule of Love': Wife Beating as Prerogative and Privacy, "Yale Law Journal 105 (1996): 2117-207.
103. Martha Mahoney, "Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings, "Southern California Law Review 65 (1992): 1283-319. See also Kymlicka, "Reply to Kukathas, "143.
104. Martha Mahoney, "Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings, "Southern California Law Review 65 (1992): 1283-319. See also Kymlicka, "Reply to Kukathas, "143.
105. For a defense of this position, see Kukathas, "Are There any Cultural Rights?"
106. Robin West, "Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, "Florida Law Review 42 (1990): 45-79.
107. Space does not permit me to outline here what a new approach to multicultural accommodation might look like. For such a description, see my Multicultural Jurisdictions, chaps. 5 to 7.
108. As Birnbaum observes, in contemporary multicultural theory, "individuals … are [mistakenly] understood as the bearers of a single oppressive and quasi-essentialist idealized cultural identity from which no escape is possible. Such an immutable collective identity is not compatible with the expression of other identities (sexual, religious, etc.) in which some might wish to recognize themselves at certain moments of their existence." See Pierre Bimbaum, "From Multiculturalism to Nationalism, "Political Theory 24 (1996): 33-45 at 41.