Equality, Autonomy, and Cultural Rights

Political Theory

Volumn 25, Issue 2, 1997, Pages 215-248

  Levey, Geoffrey Brahm ^a  

^a UNIVERSITY OF NEW SOUTH WALES   (Australia)

Author keywords

[No Author keywords available]

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EID: 84992845486     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591797025002003     Document Type: Article

References (108)

1. Prominent liberals include John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)
2. Ronald M. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978)
3. Bruce A. Ackerman, Social Justice in the Liberal State (New Haven, CT: Yale University Press, 1980).
4. For the antiliberals, which here range over Aristotelians, communitarians, feminists, and postmodernists, see Vernon Van Dyke, “The Individual, the State, and Ethnic Communities in Political Theory,” World Politics 29 (1977)
5. Allison M. Jaggar, Feminist Politics and Human Nature (Totowa, NJ: Rowman and Allanhead, 1983)
6. Alasdair MacIntyre, After Virtue (Notre Dame, IN: University of Notre Dame Press, 1973)
7. Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge, UK: University of Cambridge Press, 1982)
8. Charles Taylor, “Atomism,” in his Philosophical Papers. Vol. 2: Philosophy and the Human Sciences (Cambridge, UK: Cambridge University Press, 1985)
9. Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990).
10. Will Kymlicka, Liberalism, Community, and Culture (Oxford, UK: Oxford University Press, 1989).
11. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, UK: Clarendon Press, 1995).
12. See, for example, William A. Galston, “Two Concepts of Liberalism,” Ethics 105 (1995): 516–34
13. Chandran Kukathas, “Are There Any Cultural Rights?” Political Theory 20 (1992): 105–39.
14. See Geoffrey Brahm Levey, “Liberalism and the Ineluctability of Autonomy.” Unpublished paper, St Anne's College, Oxford, 1995.
15. See, respectively, Anthony D. Smith, The Ethnic Origins of Nations (Oxford, UK: Blackwells, 1986), 2
16. Frances Svensson, “Liberal Democracy and Group Rights: The Legacy of individualism and Its Impact on American Tribes,” Political Studies 27 (1979): 421–39 at 434
17. Avishai Margalit and Joseph Raz, “National Self-Detennination,” Journal of Philosophy 87 (1990): 439–61 at 447.
18. Kymlicka, Multicultural Citizenship, 76, 10–11, 80, 76–7, and 92, and n. 19, 206, 223.
19. For a comprehensive survey of ethnic group life in the United States, see Lawrence H. Fuchs, American Kaleidoscope: Race, Ethnicity and the Civic Culture (Hanover, NH: Wesleyan University Press, 1990).
20. Kymlicka, Multicultural Citizenship, 100, n. 19, 101, 170, 98–9, 216, 96–7; 101, 150.
21. In considering the characteristics of groups relevant to a case for self-government, Margalit and Raz remark that “nothing… presupposes that groups of the kinds we are exploring are geographically concentrated.” Later, however, they stress how the “right [to self-government] is over a territory” and the “requirement that the group be a substantial majority of the territory” (Margalit and Raz, “National Self-Determination,” 445, 458). A majority of a group's members need not be geographically concentrated, but, if self-government is to be feasible, if not morally justified, presumably some sizable part of the group needs to be territorially concentrated.
22. Kymlicka acknowledges this much in the case of national minorities (Multicultural Citizenship, 100), 107–15.
23. Charles Taylor, “The Politics of Recognition,” in Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1994), 25–73 at fn. 16, 41. Taylor also notes (p. 40) how the parallel collapses in one respect: differential socioeconomic rights are usually justified as temporary measures to alleviate contingent distress, whereas cultural rights are typically sought to support group practices and identity in perpetuity.
24. John R. Danley, “Liberalism, Aboriginal Rights, and Cultural Minorities,” Philosophy and Public Affairs 20 (1991): 168–85 at 176. Danley also maintains (p. 177) that cultural membership is ultimately chosen, rather than given, and so cannot be modeled on the misfortune of social and economic handicaps. However, Kymlicka is surely right in thinking that there is a difference between acquiescing in the cultural membership in which one finds oneself and which has so shaped one's identity and electing to leave one's culture for another.
25. Kymlicka, Multicultural Citizenship, 101, pp. 31, 96–7, 114–5, 114.
26. For a discussion of Goldman v. Weinberger 475 U.S. 503 (1986) (wearing a yarmulke in the U.S. military), see Lief Carter, An Introduction to Constitutional Interpretation: Cases in Law and Religion (New York: Longman, 1991), 10–34, 120–2.
27. On the headscarves controversy in France, see Norma Claire Moruzzi, “A Problem with Headscarves: Contemporary Complexities of Political and Social Identity,” Political Theory 22 (1994): 653–72.
28. As with Sikhs in Britain claiming (and receiving) exemption from the requirement to wear safety helmets on construction sites. See Sebastian Poulter, “Minority Rights,” in Individual Rights and the Law in Britain, ed. Christopher McCrudden and Gerald Chambers (Oxford, UK: Clarendon Press, 1994), 457–89 at 464.
29. Kymlicka, Multicultural Citizenship, 114, 97. Muslims, of course, are not Sabbatarians; nor is Friday the Muslim equivalent of the Sabbath: Islamic doctrine does not proscribe all business activity on a given day of the week. British law recognizes this difference by only exempting members of a religious body “regularly observing the Jewish Sabbath” (Shops Act 1950 § 53 (12)).
30. If Sunday closing legislation is construed as a symbolic issue, then an equality-based argument might well recommend against such laws altogether rather than merely for certain group exemptions. Presumably because Kymlicka believes there is “no reason to regret” the fact that government decisions and state symbols express particular cultural identities (Multicultural Citizenship, 115), his focus is on justifiable exemptions rather than the abolition of Sunday closing legislation.
31. See S. M. Poulter, English Law and Ethnic Minority Customs (London: Butterworths, 1986), 283–4.
32. John Brennan, “Accommodating Law to Culture,” in The Aftermath of Death, ed. Hugh Selby (Sydney: Federation Press, 1992)
33. “Autopsy rules offend Muslims,” Sydney Morning Herald, June 17, 1996, p. 9.
34. Cf. Kymlicka, Liberalism, Community, and Culture, 194
35. Will Kymlicka, “Liberalism and the Politicization of Ethnicity,” Canadian Journal of Law and Jurisprudence 4 (1991): 239–56 at 250: “Public subsidization of the ethnic activities of voluntary immigrant groups is best seen as a matter of policy, which no one has a right to, or against.”
36. Kymlicka, Multicultural Citizenship, 89, 96, 115, 115.
37. For example, Jan Narveson, “Collective Rights?” Canadian Journal of Law and Jurisprudence 4 (1991): 329–45, at 336–7.
38. Kymlicka, Multicultural Citizenship, 115, pp. 100–1, 109–10, 113, 219, 105, 131.
39. Danley, “liberalism, Aboriginal Rights, and Cultural Minorities”
40. James W. Nickel, “The Value of Cultural Belonging: Expanding Kymlicka's Theory,” Dialogue 33 (1994): 635–42
41. John Tomasi, “Kymlicka, Liberalism and Respect for Cultural Minorities,” Ethics 105 (1995): 580–603.
42. Kymlicka, Multicultural Citizenship, 89.
43. See also Kymlicka, Liberalism, Community, and Culture, 174–6.
44. Kymlicka, Multicultural Citizenship, 89. Emphasis quoted.
45. See, respectively, Sandel, Liberalism and the Limits of Justice
46. Jeremy Waldron, “Minority Cultures and the Cosmopolitan Alternative,” University of Michigan Journal of Law Reform 25 (1992): 751–93.
47. Kymlicka, Liberalism, Community, and Culture, 135.
48. Kymlicka's revised argument contrasts with Raz's otherwise similar autonomy-based defense of multiculturalism. In the latter, “the importance of unimpeded membership in a respected an [sic] flourishing cultural group for individual well-being” applies to ethno-religious groups while “cultural groups enjoy[ing] considerable geographical and economic separation” are discussed separately as candidates for self-determination. See Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford, UK: Clarendon Press, 1994), 174, 171.
49. Kymlicka, Multicultural Citizenship, 86, 78–9, 83, 96, 101, 164.
50. See, also, Will Kymlicka, “The Rights of Minority Cultures: Reply to Kukathas,” Political Theory 20 (1992): 140–6, at 144.
51. Kymlicka, Multicultural Citizenship, see also the remarks at n. 25, 217, 154–8, 165, 169.
52. For example, the U.S. Supreme Court has recognized Indian tribes as “separate sovereigns pre-existing the Constitution,” but the meaning of this sovereignty is qualified by the 1968 Indian Civil Rights Act which extended the protection of the Bill of Rights and the Fourteenth Amendment to Americans of Indian descent The phrase is from Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). For a discussion, see Judy D. Lynch, “Indian Sovereignty and Judicial Interpretations of the Indian Civil Rights Act,” Washington University Law Quarterly 64 (1979): 897–918.
53. Kymlicka goes to some lengths to question the appropriateness of the Supreme Court in the U.S. and centralized judicial review, more generally, as the vehicles for scrutinizing the law and practices of national minorities (Kymlicka, Multicultural Citizenship, 166–8). While this is fair comment, it concerns how or through which institutions a liberal state exercises its authority over its citizens, not whether it has that authority, 118–9.
54. Cf. Patrick Macklem, “Distributing Sovereignty: Indian Nations and Equality of Peoples,” Stanford Law Review 45 (1993): 1311–67.
55. In places, Kymlicka distinguishes between “internally restrictive” and “externally protective” cultural rights and claims to be defending only the latter (Kymlicka, Multicultural Citizenship, 35). The trouble, of course, is that some cultural rights that aim to protect a minority culture from external decisions harbor restrictions either on its own members or on fellow citizens outside the minority. Kymlicka eventually acknowledges this and, indeed, details various examples concerning group-libel laws, indigenous land rights, restricted language use, exemptions from a Federal Bill/Charter of Rights, and so on (pp. 42–4; 38–9). In other words, self-government rights for nonliberal minorities, 128.
56. Kymlicka suggests that Rawls fails to recognize cultural membership as a primary good because he assumes that a liberal society constitutes a single, homogeneous culture (Liberalism, Community, and Culture, 177).
57. Melissa S. Williams calls this “one of Kymlicka's central insights” (“Justice Toward Groups: Political Not Juridical,” Political Theory 23 (1995): 67–91 at 76).
58. Kymlicka, Multicultural Citizenship, 46.
59. Kymlicka, Multicultural Citizenship, 45.
60. Among the protagonists to the debate, see Michael Hartney, “Some Confusions Concerning Collective Rights,” Canadian Journal of Law and Jurisprudence 4 (1991): 293–314
61. Michael McDonald, “Should Communities Have Rights? Reflections on liberal Individualism,” Canadian Journal of Law and Jurisprudence 4 (1991): 217–37
62. Narveson, “Collective Rights?”
63. Vernon Van Dyke, “Collective Entities and Moral Rights: Problems in liberal-Democratic Thought,” Journal of Politics 44 (1982): 21–40.
64. Yael Tamir, Liberal Nationalism (Princeton, NJ: Princeton University Press, 1993), 73.
65. Emphasis added. For a general assessment of Tamir's argument, see Sanford Levinson, “Is Liberal Nationalism an Oxymoron? An Essay for Judith Shklar,” Ethics 105 (1995): 626–45.
66. Kymlicka, Multicultural Citizenship, 47.
67. Jacob T. Levy, “Classifying Cultural Rights,” in Nomos XXXIX: Ethnicity and Group Rights, ed. Will Kymlicka and Ian Schapiro (New York: New York University Press, 1997). Levy identifies eight types of cultural rights claims: exemptions, assistance, self-government, external rules, internal rules, recognition/enforcement, representation, and symbolic.
68. The example of multilingual ballots shows or other government notices show how some cultural rights claims may be “collective” without being exercised by the collective. At one level, the right certainly applies to the group collectively: it is the group's language that appears on the ballot, and this privilege would be enjoyed even if, hypothetically, none of the group's members chose to vote. (This is quite different from, say, an exemption from a dress code, which merely remains on a statute book if no one happens to claim it at any particular time.) The group (or its representatives) does not, however, exercise this language privilege directly. On “collective” group rights in this sense, see Rainer Bauböck, Transnational Citizenship: Membership and Rights in International Migration (Hants, England: Edward Elgar, 1994), 266–7, and note 74 below. In my view, the critical feature here is that the advantage of a multilingual ballot redounds directly and immediately to individual ethnic voters in assisting their understanding of procedures and choices at the ballot box.
69. Article 27 of the “International Covenant on Civil and Political Rights,” in Basic Documents on Human Rights, ed. Ian Brownlie (Oxford, UK: Clarendon Press, 1981), 137. Emphasis added.
70. For background on the wording of this article, see Francesco Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. UN Doc E/CN 4/Sub. 2/384 Rev. 1., 1979, paras. 206–210.
71. Bauböck distinguishes between “group-specific” rights, where group membership determines which individuals are the beneficiaries of the right; “collective” rights, which recognize the group as a collective actor but where individual group members, not the group, exercise the right; and “corporate” rights, which recognize the group as a collective actor and where only the group can exercise the right, Bauböck, Transnational Citizenship, 266–7
72. Rainer Bauböck, “Group Rights for Cultural Minorities: Justifications and Constraints.” Paper presented at the European Forum Conference on Multiculturalism, Minorities, and Citizenship, European University Institute, Florence, Italy, April 1996, p. 7). I use the phrase personal cultural rights rather than “group-specific” rights since the latter fails to convey the individual-exercise dimension of these rights and because all forms of collective right are, by definition, group-specific. Some cultural claims may be “collective” in Bauböck's sense (see note 72), however, Bauböck's examples do not strike me as being among them. The right to establish a private religious school may be exercised by one or a number of individual group members, but it also may be exercised by the faith community qua community. And the right to use a minority language in court seems a clear example of a personally exercised benefit The more common intermediate category between personal and corporate cultural rights consists of those cases, as canvassed earlier, which simultaneously contain personal-exercise and corporate-exercise dimensions. Again, this feature is, in my view, only descriptively interesting; in virtue of their personal exercise dimension, these cases can be treated normatively much like personal cultural rights claims.
73. Taylor, “The Politics of Recognition.”
74. Jürgen Habermas, “Struggles for Recognition in the Democratic Constitutional State,” in Multiculturalism, ed. by Gutmann, 107–48 at 130.
75. K. Anthony Appiah, “Identity, Authenticity, Survival: Multicultural Societies and Social Reproduction,” in Multiculturalism, ed. Gutmann, 149–63.
76. Levy, “Classifying Cultural Rights.”
77. The leading case is Mandla v. Dowell Lee (1983) 2 AC 548, (1983) 1 All ER 1062. Religious groups that lack a racial or ethnic character are not, however, protected by the Race Relations Act 1976. For a discussion of these cases in Britain, see Poulter, English Law and Ethnic Minority Customs, 184–6.
78. U.S. Commission on Civil Rights, Religion in the Constitution: A Delicate Balance, Clearinghouse Publication no. 80 (Washington, DC: The Commission, 1983)
79. Paul Burstein, Pluralism, Jews, and Equal Employment Opportunity (New York: American Jewish Committee, 1989), 11.
80. On autonomy as the moral foundation of liberal rights, see Attracta Ingram, A Political Theory of Rights (Oxford, UK: Clarendon Press, 1994).
81. For an analysis of American constitutional law in these terms, see Rogers M. Smith, “The Constitution and Autonomy,” Texas Law Review 60 (1982): 175–205.
82. Anna Elisabetta Galeotti, “Citizenship and Equality: The Place for Toleration,” Political Theory 21 (1993): 585–605 at 591, from which the preceding quotation is also taken.
83. In his recent work, Rawls views autonomy as the basis of liberal political morality but attempts to restrict its scope to persons only when they operate in the political sphere, not when they are pursuing their private attachments and goals. John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
84. Kymlicka presents a persuasive case why this attempt to circumscribe the import and impact of autonomy cannot work (Kymlicka, Multicultural Citizenship, 158–63).
85. Strictly speaking, this is not a form of cultural right since the point of such provision is not support for, and the perpetuation of, minority languages as much as it is the imperative for the fair administration of justice or provision of governmental service. However, such provisions are often discussed in the literature as a form of cultural right, e.g., see Levy, “Classifying Cultural Rights”
86. Bauböck, Transnational Citizenship.
87. See Article 14 (3) of the International Covenant on Civil and Political Rights concerning the human rights obligations to provide interpreters in criminal proceedings (in Brownlie, Basic Documents on Human Rights).
88. This sociability may be cashed out in different terms. See, for example, Jack Crittenden, “The Social Nature of Autonomy,” Review of Politics 55 (1993): 35–65
89. Thomas E. Hill, Jr., “The Kantian Conception of Autonomy,” in The Inner Citadel: Essays on Individual Autonomy, ed. John Christman (New York: Oxford University Press, 1989).
90. One work that does systematically challenge the commonplace equation of autonomy with choice is Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge, UK: Cambridge University Press, 1988).
91. Kymlicka, Liberalism, Community, and Culture, 12.
92. I explore them further in Geoffrey Brahm Levey, “Rethinking liberal Autonomy in the light of Multiculturalism.” Paper presented at the European Forum Conference on Multiculturalism, Minorities, and Citizenship, April 1996, European University Institute, Florence, Italy.
93. See also George Sher, “liberal Neutrality and the Value of Autonomy,” in Contemporary Political and Social Philosophy, ed. Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul (Cambridge, UK: Cambridge University Press, 1995).
94. Will Kymlicka, “Comments on Levey's ‘Equality, Autonomy and Cultural Rights.’” Report for Political Theory, June 25, 1996, p. 5.
95. This is the kind of implication that Kymlicka should be concerned about In dismissing the value of cultural diversity as a basis for justifying cultural rights, he argues that it would imply that individuals are duty bound to maintain their cultural identity regardless of their own level of commitment to their culture. See Kymlicka, Multicultural Citizenship, 122–3.
96. Norma Claire Moruzzi also mistakes disparate status for the basic problem in her discussion of l'affaire du foulard: “The Jewish student who refuses to attend class on Saturday, and the Islamic woman student who insists on her right to wear a headscarf in school, are both demanding to pursue the cultural practices of their religious traditions as freely as they recognize that the Christian students do” (Moruzzi, “A Problem with Headscarves,” 664; 661–3, emphasis added). Even if France were absolutely secularist, granting no implicit institutional advantage to Christians, the demands of the Jewish and Muslim students to be able to exercise their cultural practices would presumably and, I think, legitimately remain.
97. Such an approach is, I think, implicit in Bikhu Parekh's analysis of a number of controversial minority cultural practices, notwithstanding his claimed rejection of approaches predicated on autonomy, moral universalism, core values, and the like. See Bikhu Parekh, “Minority Practices and Principles of Toleration,” International Migration Review 30 (1996): 251–84.
98. On how social pluralism may help sustain the liberal state, see Michael Walzer, “Liberalism and the Art of Separation,” Political Theory 12 (1984): 315–30
99. “Muiticulturalism and Individualism,” Dissent 41 (Spring 1994): 185–91.
100. On restrictive minority group practices, see Kymlicka, Liberalism, Community, and Culture, 195–8
101. Multicultural Citizenship, 37–44, 161–2.
102. Tomasi, “Kymlicka, Liberalism and Respect for Cultural Minorities,” 600, p. 603.
103. As Amy Gutmann observes, “not every aspect of cultural diversity is worthy of respect. Some differences—racism and anti-Semitism are obvious examples—ought not to be respected, even if expressions of racist and anti-Semitic views must be tolerated” (Amy Gutmann, “Introduction,” in Multiculturalism, ed. Gutmann, 21, emphasis quoted).
104. Rawls, A Theory of Justice, 244.
105. Lolle Nauta, “The Historical Roots of the Concept of Autonomy in Western Philosophy,” Praxis International 4 (1985): 363–77 at 367.
106. Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. H. J. Paton (New York: Harper and Row, 1964).
107. McDonald, “Should Communities Have Rights?” 236.
108. See, for example, James Tully, “Aboriginal Property and Western Theory: Recovering a Middle Ground,” Social Philosophy and Policy 11 (1994): 153–80.