Freie wissenschaftliche Arbeit zur Erlangung des Grades eines Diplom-Verwaltungswissenschaftlers an der

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Three Stages of the Debate over Minority Rights6

      1. Minority Rights as Communitarianism

The debate over the rights of minorities during the 1970s and 1980s was essentially framed in terms of the old controversy between liberalism and communitarianism, which was revitalized by John Rawls book A Theory of Justice (1971)7. Rawls supports the priority of individual freedom and autonomy over shared values and the claims of communities8. This position came under criticism by various communitarian authors. For example, Michael Sandel criticized that persons in Rawls’ theory are represented as isolated and unbounded individuals. He points out that individuals are constituted through groups or communities and embedded in a particular social infrastructure (Sandel 1982). Sandel’s teacher, Charles Taylor, and the political philosopher Michael Walzer took similar views (Taylor 1992, Walzer 1983). From the communitarian perspective, individuals are products of social practices and do not revise their conception of the good life. Communitarians stress the priority of shared values and various forms of communities, while liberals insist on the priority of the rights of free and equal citizens. Since struggles for minority rights involve ethnocultural communities mobilizing for the protection of their groups, it was believed that one’s position in the minority rights debate derived from one’s position in the communitarianism debate. At this stage, the assumption was that promoters of liberalism would oppose minority rights as subordinating individual autonomy, while communitarians would support minority rights as protecting communities from the corroding influence of liberal individualism. Ethnocultural minorities were thought to maintain a more collective way of life and to have not yet settled for liberal autonomy. From the communitarian perspective, minority rights provide those groups with appropriate protection against the corrosive aspects of individualism and help to promote the value and significance of the community (Van Dyke 1985: 193-224).

At this stage of the debate, supporting minority rights was bound to endorsing the communitarian critique of liberal individualism, and to understanding minority rights as defense of community-oriented minority groups against liberalism. Supporters of minority rights agreed with communitarians that minority rights contradict liberal individualism and admitted that this simply highlights the inherent failure of liberalism. Maybe the most elaborate communitarian supporter of minority rights at this stage of the debate was Vernon Van Dyke. In his book Human Rights, Ethnicity and Discrimination (1985) he provides an extensive account of the practice of collective rights in numerous countries. Contained in his extensive selection of examples is his criticism of the “arbitrary and unjustified” individualism of liberal-democratic theory. Van Dyke concludes that traditional liberalism “needs to be modified so as to recognize the just claims of certain kinds of groups – that is, so as to concede them rights that are distinct from and not reducible to individual rights” (1985: 195). Like many communitarians, Van Dyke remains ambiguous towards liberalism and leaves open whether he criticizes it from within or outside the liberal tradition. His position is characteristic of the first stage of the minority rights debate, in that it endorses the communitarian critique of liberalism and views minority rights as defending cohesive and communally-minded minority groups against the invasion of liberal individualism.

      1. Minority Rights within a Liberal Framework

These assumptions were increasingly questioned. It became more and more clear that most ethnocultural groups in Western states are not seeking protection from modernity, but asking for equal participation in modern liberal societies. Even if some members of national minorities contemplate secession, they mostly do not want to create illiberal communitarian societies. In modern democracies, the obligation to individual autonomy crosses ethnic, linguistic, and religious boundaries. The debate over minority rights thus turns into a debate between groups and individuals who disagree about the interpretation, not about the validity of liberal principles. Supporters of multiculturalism suggest that some group specific rights are in line with – and might indeed be required by – liberal-democratic principles. The question at this stage of the debate is not how to protect illiberal minorities from liberalism, but whether minorities which support liberal principles nonetheless need minority rights. Various authors have strengthened this position of liberal culturalism, which insists on the critical significance of cultural identity and national membership for the autonomy of individuals. They point out that pressing interests associated with culture and identity are consistent with liberal freedom and equality (Miller 1995; Spinner 1994).

Margalit and Raz, for example, stress the importance of groups to the well-being of their members and point out that the moral importance of the group’s interest depends on its value to individuals. For these authors, individual well-being depends on the successful pursuit of goals and relationships. Goals and relationships are products of culture and depend for their existence on shared patterns of expectations, traditions, and conventions. In this perspective, understanding of one’s own culture is what determines the boundaries of the imaginable for the individual. Cultural membership profoundly affects a person’s opportunities and ability to engage in meaningful relationships. Moreover, peoples’ sense of identity is bound to their cultural membership, and their individual self-respect depends in part on the esteem in which their group is being held. Cultures are particularly well-suited for individual self-identification because they provide the safety of effortless secure belonging. Accordingly, “individual dignity and self-respect require that the groups, membership of which contributes to one’s sense of identity, be generally respected and not be made a subject of ridicule, hatred, discrimination, or persecution” (Margalit and Raz 1995: 85). In Kymlicka’s theory, the position of liberal culturalism – and the link between groups and the well being of its individual members – is closely related to the concept of societal culture, which will be discussed in some length in section 4. In short, Kymlicka argues that people make choices about various conception of the good life based on beliefs about the value of these conceptions. Having such beliefs requires an understanding of the meanings attached to them by culture, history, and language. Consequently, only access to a societal culture provides individuals with meaningful choices. Culture is the precondition of individual autonomy (Kymlicka 1995a: 75-106).

The second stage takes the debate beyond the frontline of individualism versus collectivism that characterized the discussion at its first stage. The question of minority rights is widely debated within liberal theory. Supporters of liberal culturalism support the view that some minority rights advance liberal values. Because special status for minorities presents a stark contrast to the ideal of a ‘neutral’ liberal state, the burden of proof lies on its defenders. Liberal culturalists aim to meet this burden of proof by showing the significance of cultural membership in protecting individual freedom and self-respect. They seek to support the view that minority rights supplement individual freedom and equality. The scope of group-specific rights within liberal theory remains deeply controversial9. The challenge facing liberal culturalists is to differentiate between minority rights that restrict individual rights from minority rights that supplement them. Kymlicka aims to tackle this problem by distinguishing ‘internal restrictions’ from ‘external protections’. Internal restrictions are minority rights which restrict the freedom of group members. In contrast, external protections are designed to reduce the group’s vulnerability to external pressures (Kymlicka 1995a: 34-48). This distinction will be discussed in section 6.
      1. Minority Rights as Response to State Nation-Building

The second stage of the debate is also being increasingly challenged, because it is said to misinterpret the role of ethnic identities and language in the liberal state, and because it misconceives the requirements the state places on minorities. The underlying assumption of the second stage has been the ethnocultural neutrality of the liberal state. What characterizes the third stage of the debate, then, is that this assumption becomes increasingly contested. Typically, liberals have strongly endorsed a strict separation of church and state. As this ideal of ‘benign neglect’ has contributed heavily to accommodate religious diversity, many liberals have assumed that the model of the neutral state can be applied to cultural diversity as well. Both spheres, culture and religion, are thought to be privatized, that is, not the concern of the liberal state. There are no official cultures with public privileges and the state is understood to be indifferent towards the reproduction of various ethnocultural groups. As with religion, citizens are free to pursue and promote matters of culture in their private lives, while the standard operations of the liberal state do not privilege one religion or culture over the other. For many liberals, the United States provides the clearest manifestation of these principles, since it does not have a constitutionally recognized official language (Walzer 2001: 100). To become American, then, means to agree to certain principles of democracy and individual freedom, while it does not necessitate allegiance to any particular culture. Other theorists claim that the separation of state and culture marks the difference between liberal ‘civic nations’ and illiberal ‘ethnic nations’ (Pfaff 1993: 162). While ethnic nations take an active interest in the reproduction of a particular culture and identity, civic nations define national membership entirely in terms of respect for principles of democracy and justice. In the West, claims of minorities for accommodation beyond the common citizenship rights have traditionally been rejected with reference to the principle of ethnocultural neutrality. Because minority rights represent a radical departure from the ideal of a ‘civic nation’ or ‘neutral state’, the burden of proof at the second stage of the debate lies with defenders of group-differentiated rights. As was discussed in the previous section, Kymlicka aims to meet this burden of proof by showing that cultural membership is the precondition of individual freedom and autonomy.

The view that the liberal state is indifferent towards the cultural identity of its citizens is increasingly being rejected. Taylor, for example, objects to the view that “difference-blind” liberalism operates in a culturally neutral manner: “Liberalism is not a possible meeting ground for all cultures, but is the political expression of one range of cultures, and quite incompatible with other ranges”. As an “organic outgrowth of Christianity” Taylor notes, “liberalism can’t and shouldn’t claim complete cultural neutrality. Liberalism is also a fighting creed” (Taylor 1994: 62). Kymlicka, too, rejects the ideal of the ethnocultural neutral state. He points out that the religion model cannot be applied to the relationship between the state and ethnocultural groups. While it is possible for the state not to have an official religion, the state cannot help but operate its institutions in particular languages, thereby privileging speakers of this language and putting speakers of other languages at a distinct disadvantage. This does not happen by accident10. Kymlicka stresses that the existence of nation-states is the result of deliberate nation-building policies, which are adopted by governments to diffuse and promote a common language, culture, and sense of national membership. A similar view is taken by the Human Development Report (2004a: 2). Among the tools of nation-building are citizenship policy, language laws, education curriculums, public service employment, support for national media, the drawing of internal boundaries, and national symbols (Kymlicka 2001b: 254). The underlying intention of nation-building policies is the promotion of integration into a single societal culture. As a result of guaranteed rights and freedoms, societal cultures in liberal democracies are inevitably pluralistic. However, linguistic and institutional cohesion intentionally constrains this diversity. Governments have deliberately encouraged citizens to view their life-chances as tied to participation in common societal institutions that operate in one national language. By doing so, governments have supported a national identity defined in part by common membership in a societal culture. The United States is not an exception in this respect. Rather, promoting integration into the mainstream culture is a function of a ‘nation-building’ project that has been undertaken in all liberal democracies (Kymlicka 2001b: 242-253). All liberal-democratic states have historically been nation-building states: “they have encouraged and sometimes forced all the citizens on the territory of the state to integrate into common public institutions operating in a common language” (Kymlicka 2001b: 23)11. The process of nation-building inevitably privileges members of the majority culture and puts speakers of other languages at a disadvantage. Therefore, the model of the culturally neutral state must be replaced with a model of states engaging in nation building, which offers a very different perspective on the debate over minority rights. Claims for minority rights must be understood in the context of, and as a defensive response to, state nation-building. This relationship is what Kymlicka calls the dialectic of state nation-building and minority rights. Thus, Kymlicka arrives at the third stage of the debate. At this stage, the question is no longer how to justify deviation from the ideal of cultural neutrality. Rather, the question is whether minority rights help to protect against unjust disadvantages. The burden of proof at this stage is at least partly on those who object to minority rights.

Illustration 1: Dialectic of State Nation-Building and Minority Rights, Kymlicka 2002: 362

In this perspective, it is not cultural neutrality that distinguishes liberal states from illiberal states. Indeed, Kymlicka suggests that nation-building has a legitimate role to play in liberal democratic societies. The benefits associated with nation-building will be introduced in section 8. What characterizes liberal states is that majority nation-building is subject to certain limitations. So far, there is no systematic theoretical account of the liberal limits of nation-building. In a recent book, Kymlicka suggests the following three conditions:

  1. No groups of long-term residents are permanently excluded from membership in the nation. Everyone living on the territory must be able to gain citizenship and become an equal member of the nation if he so wishes.

  2. The integration required of immigrant groups is understood in a ‘thin’ sense, and involves primarily institutional and linguistic integration, not the adoption of particular sets of customs, religious beliefs, or lifestyles.

  3. National minorities are allowed to engage in their own nation-building, to enable them to maintain themselves as distinct societal cultures (Kymlicka 2001a: 48).

The third stage of the minority rights debate is closely associated with Kymlicka’s theory. The dialectic of nation-building and minority rights represents an important innovation in Kymlicka’s theory. The associated arguments in his conception of minority rights will be discussed in more detail after his initial theory is outlined.
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