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

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Group-Differentiated Rights

For liberals, the protection of individual civil and political rights is of central importance in accommodating cultural differences. In many instances, the protection of those common rights is sufficient to provide space for cultural diversity. However, liberal culturalists point out that in other instances it is only through measures beyond common citizenship rights that cultural differences can be accommodated. Kymlicka claims that virtually every modern democracy is using one or more group-specific mechanisms to accommodate cultural differences. He distinguishes between three forms of group-differentiated rights: self-government rights, polyethnic rights, and special representation rights. This typology is related to the initial distinction between ethnic groups and national minorities: in general, Kymlicka suggests that national minorities – including indigenous peoples – can legitimately demand self-government rights and special representation rights. In contrast, ethnic groups typically demand – and should be granted – polyethnic rights (Kymlicka 1995a: 26-33).

Illustration 4: Group-Differentiated Rights, cp. Kymlicka 1995a: 26-33

Self-government rights typically involve the devolution of powers to a political subunit which is substantially controlled by the members of a minority group and which substantially corresponds to the group’s traditional homelands. Self-government rights in the form of some political autonomy or territorial jurisdiction are typically demanded by national minorities to ensure the free development of their cultures. Its most extreme form is secession. One way to acknowledge self-government is federalism, which divides powers between the central and various regional governments. It is particularly well suited were national minorities are territorially concentrated, because the internal boundaries can be drawn so that the group forms a majority in one of the subunits. This can ensure that members of the group are not outvoted by the larger society on vital issues18. In most cases in North America, federalism is not a valid option for indigenous peoples because they rarely form a majority in one of the sub-state units. Moreover, no redrawing of state boundaries could create majorities of indigenous peoples due to the large influx of settlers. Self-government for most indigenous peoples has been achieved through a system of reserved lands and substantial powers have been devolved from the federal government to the tribal or band council. Increasingly, Indian tribes or bands were able to acquire control over health, education, family law, policing, criminal justice, and resource development. In effect, they became “a third order of government, with a collection of powers that is carved out of both federal and state/provincial jurisdictions” (Kymlicka: 1995: 30). Similar systems are being sough by indigenous peoples in many parts of the world19. Kymlicka supports the view that the incorporation of indigenous peoples into states should be a voluntary act of federation, which recognizes those groups as distinct peoples and respects their inherent right to self-government over their homelands. In this view, indigenous groups should have the freedom to determine for themselves how to manage their traditional homelands within the constraints of principles of justice (Kymlicka 2001b: 133-51). Self-government for national minorities is not seen as corrective, transitional measure for past oppression, but as inherent and therefore permanent.

Polyethnic rights are typically demanded by ethnic groups in polyethnic states. The demands of ethnic groups have challenged the expectation that their members would abandon all aspects of their cultural heritage. Their claims have gradually expanded beyond the rights to freely express their particularity without fear of discrimination in the larger society. Kymlicka argues that policies designed to prevent discrimination are primarily directed at guaranteeing the common rights of citizenship and should therefore not be considered group-differentiated rights (Kymlicka 1995a: 31). In contrast, polyethnic rights are positive measures such as the recognition of minority cultures in the curriculum or public funding of cultural practices, such as for ethnic organizations and events, or for the provision of immigrant language education in schools. This is mostly defended on the grounds that public funding for art and culture tends to be biased in favor of majority cultural expressions. The most disputed demands are for exemptions from laws that appear to disadvantage members of religious groups, such as exemption from Sunday closing or animal slaughtering legislation for Jews and Muslims, exemptions from helmet requirements for Sikhs, or exemptions from the official dress-codes in schools, police force and the military (Barry 2001: 40-49). According to Kymlicka, this sort of group-differentiated measures – or ‘polyethnic rights’ – “are intended to help ethnic groups and religious minorities express their cultural particularity and pride without it hampering their success in the economic and political institutions of the dominant society” (Kymlicka 1995a: 31). Because the associated cultural differences are not meant to be eliminated, polyethnic rights are seen as permanent. However, the rationale of polyethnic rights is the promotion of integration, not self-government.

There has been increasing interest in the idea of special representation rights. The concern in many democracies is that the political process fails to reflect the diversity of the citizenry. This concern is not limited to cultural minorities, but includes any marginalized or disadvantaged group, such as sexual minorities, the handicapped, and some religious minorities (Young 1990). The idea of special representation is that an appropriate proportion of seats in government bodies should be reserved for members of disadvantaged or marginalized groups. Special representation rights are usually being justified as a response to systemic disadvantages in the political process which does not allow for the proper representation of the group’s views and interests (UNDP 2004a: pp. 7). To the extent that these rights are meant to compensate for disadvantages, they are seen as temporary measure, because the removal of disadvantages eliminates the need for those rights. However, special representation is sometimes defended as a result of self-government, because those rights would be weakened if an external body could unilaterally abolish the associated powers. Because the claims for self-government are seen as inherent, so too are the measures of special representation which stem from it (Kymlicka 1995a: 131).

  1. Societal Cultures

As was mentioned earlier, the position of liberal culturalism attempts to show that some minority rights are consistent with liberal freedom and equality. In Kymlicka’s theory, it is the concept of societal cultures that offers the crucial connection between individual freedom and autonomy on one hand and the group on the other. In short, he argues that access to a societal culture is the precondition of the liberal value of freedom of choice. A societal culture is “ a culture which provides its members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres” (Kymlicka 1995a: 76)20. This notion of culture is closely related to concepts of ‘nation’ or ‘people’. Societal cultures exist territorially concentrated and maintain a common language as well as shared institutions and practices. Kymlicka argues that the modern world is divided into such societal cultures.

Why is liberal freedom linked to the presence of such societal cultures? Kymlicka identifies individual freedom and autonomy as the defining features of liberalism. Liberalism allows people to choose from among a wide range of conceptions of the good life. Moreover, liberalism grants the freedom to question those beliefs and to rationally assess and possibly revise those conceptions in the light of emerging information and new experiences. When people make choices about various conceptions of the good life, they do so based on beliefs about the values of social practices surrounding them. And to have such beliefs about the value of particular practices requires an understanding of the meanings assigned to it by culture, language, and history. Whether or not an action or project has any significance to people depends on whether, and how, their language attaches meaning to this action or project. For individuals, understanding the cultural narratives provided by their history and language is the precondition of intelligent judgments among available options. It follows that societal cultures not only provide options to citizens, but make those options meaningful to them. Therefore, access to a societal culture is a precondition of liberal freedom and autonomy. Accordingly, group-differentiated rights which secure and promote this access for members of minority cultures should be seen as legitimate from a liberal perspective (Kymlicka 1995a: 75-106).

It is worth noting that this argument corresponds to the second stage of the minority rights debate. The primary concern is with the individual, yet the survival of societal cultures is important to individual citizens. „Cultures are valuable,” notes Kymlicka, “not in and of themselves, but because it is only through having access to a societal culture that people have access to a range of meaningful options“ (Kymlicka 1995a: 83). As was discussed earlier, communitarians deny that individuals can stand back to question and possibly revise their ends, while precisely this capacity is a central feature of liberal freedom. Accordingly, communitarians are typically concerned with sub-national groups rather than with the larger society, because their commitment is to groups which are defined by shared values and common conception of the good. This does not apply on the national level, since moral values or a common way of life are scarcely shared by members of a nation. With his concept of societal cultures, Kymlicka rejects communitarian politics. While a common national identity is not a suitable basis for communitarian politics due to the absence of shared values, it provides suitable grounds for liberal politics precisely for the same reasons: “The national culture provides a meaningful context of choices for people, without limiting their ability to question and revise particular values or beliefs” (Kymlicka 1995a: 93).

Kymlicka stresses that immigrants and national minorities relate very differently to the majority culture. In general, national minorities maintain a societal culture, while ethnic groups do not. Accordingly, the claims of immigrant groups are best met not with self-government rights, but with polyethnic rights. Immigrants bring with them elements of their cultural heritage. However, they have uprooted themselves from their societal culture and left behind the associated set of societal institutions, to which language and historical narratives initially referred. Even if immigrants would hope to re-create their societal cultures, this would be impossible, since immigrants do not come as communities but settle territorially dispersed. In most liberal countries, immigrants are allowed and encouraged to maintain elements of their culture. This, however, is not a change in whether immigrants integrate into the majority culture but how they integrate. While immigrants maintain and nurture aspects of their cultural heritage, it does not take the form of recreating a distinct and institutionally complete societal culture alongside the majority culture. Rather, it contributes new options to the larger society. After a few generations the language of the host country becomes the mother tongue and learning the original mother tongue is not much different from learning a foreign language. For the children of immigrants, it is not their parents’ culture but the host society which provides meaningful options. Immigrants do not attempt to set up a separate societal culture, but ask to adapt the institutions and practices of the mainstream society to ethnic differences so as to make the possession of an ethnic identity a normal part of life in the mainstream society (Kymlicka 1995a: 95-101).

The relationship of national minorities to the majority societal culture is different. Members of those groups did not choose to migrate to another state. They did not uproot themselves from their original culture, but formed ongoing societal cultures before they where incorporated into larger states. Their languages and narratives were embodied in a complete set of institutions and social practices, covering the full range of social life and defining meaningful options to their members. National minorities have typically been determined to maintain and perpetuate their existence as distinct societal cultures, despite enormous economic and political pressures towards assimilation or integration. These groups do not form subgroups within the larger society, but genuinely distinct societal cultures (Kymlicka 1995a: pp. 79).

Can national minorities lose their capability to form and maintain their societal culture? Indigenous peoples in particular have been coercively assimilated in many countries. In such cases, should the group be integrated into the mainstream instead of attempting to preserve what is already lost? Kymlicka notes that in fact a very small number of indigenous peoples has opted to give up their self-government rights and chosen to be treated as a disadvantaged ethnic group. While national minorities surely have no duty to perpetuate a distinct society, the decision whether or not to integrate must be made by members of those groups. Otherwise, the majority would have perverse incentives to profit from injustices towards national minorities, to destroy their societal culture and deny self-government rights based on that destruction. Kymlicka points out that, under appropriate conditions, weakened cultures can regain their strength and richness: “There is no reason to think that indigenous groups, for example, cannot become vibrant and diverse cultures, drawing on their cultural traditions while incorporating the best of the modern world …” (Kymlicka 1995a: 100).

At this point, one could legitimately ask why peoples’ capacity to make meaningful choices depends on access to their own culture, as long as access to the majority culture is secured. No doubt, great numbers of immigrants were glad to integrate into other cultures and function well in their new societies. Kymlicka admits that indeed some people genuinely move between cultures. Yet he points out that even where integration is successful it is a difficult and costly process. People who did not voluntarily choose to move might not legitimately be required to bear the costs of integration. He sees the choice to leave one’s culture as equivalent to entering a religious order and choosing a life of perpetual poverty (Kymlicka 1995a: 86). It is taken for granted that the desire for material resources is so normal that people cannot reasonably be expected to relinquish those resources, although some people might voluntarily choose to do so. Analogously, Kymlicka argues that the attachment to one’s culture is usually too strong to be given up. If this is so, access to one’s own culture should be treated as something that people can be expected to want and to which they are entitled (Kymlicka 1995a: 86).

Another line of reasoning supports this case. Kymlicka argues that a system of open borders would dramatically increase the territory in which people could be free and equal individuals. At the same time, such a system would render people’s own national community vulnerable to being overrun by settlers from other nations and would threaten their survival as a distinct society. Given this choice between increased mobility without borders on one hand and limited mobility but protected existence of the distinct culture on the other hand, most people have preferred the latter. For most people, it has been their nation in which they want to be free and equal individuals. In addition, few liberal theorists have advocated open borders. Rather, they have taken for granted that it is freedom and equality within one’s own culture that matters most to people: “In short, liberal theorists have generally, if implicitly, accepted that cultures or nations are basic units of liberal political theory” (Kymlicka 1995a: 93).

  1. Justifying Group-Differentiated Rights

Kymlicka offers four arguments in support of group-differentiated rights: the equality argument, historical agreements, the inherent value of cultural diversity, and the analogy between cultural minorities and the existence of states. As the discussion will show, the value of cultural diversity is not particularly well-suited to justifying self-government rights for national minorities. Moreover, there are no treaties or historical agreements between the majority society and indigenous peoples in Cambodia. Therefore, the discussion here and in the second part of this paper will focus on the equality argument, touch on the value of cultural diversity and explore the analogy with states.

According to the equality argument, group-specific rights are needed to compensate for pervasive and morally arbitrary disadvantages that are faced exclusively by members of minority cultures. It asserts that group-differentiated measures are needed to ensure that all citizens are treated with genuine equality (Kymlicka 1995a: 108; UNDP 2004a: 37). For example, self-government rights can provide members of national minorities with the opportunity to live and work in their own culture, something which is taken for granted by members of the majority. As was discussed earlier, while governments can be neutral with regard to religion, state neutrality is impossible with regard to ethnicity and culture. While states can abstain from having an official religion, they cannot but operate public institutions in certain languages and thereby support particular cultures. In the modern world, whether or not a language is the language of government determines in large part whether a culture will survive. Public schooling in the majority language, for example, provides crucial support to the majority culture and guarantees the perpetuation of its language and societal culture. In contrast, not to provide schooling in the language of national minorities is likely to condemn the associated societal cultures to marginalization and extinction. Since governments cannot avoid this sort of support to the majority culture, equality and fairness require providing the same support to the languages of national minorities. Devolving competencies relevant to cultural survival to political subunits does not automatically solve the problem. It just pushes it to a lower political level. The critical question is not on which level of government decisions regarding language, education, and so on are being made. The crucial question is whether or not the national minority will form a local majority in the respective political subunit. It is the drawing of internal boundaries and the distribution of powers which determines whether or not a national minority can perpetuate its culture (Kymlicka 1995a: 112).

The equality argument suggests that national minorities should have the right to maintain themselves as distinct cultures, to ensure that the good of cultural membership is equally protected for members of different cultural groups. External protection in the form of self-government compensates for the systemic disadvantages national minorities face in the cultural market-place. In those cases, group-differentiated rights, rather than identical treatment, are required to accommodate differentiated needs and ensure genuine equality. In contrast to national minorities, protecting the good of cultural membership for ethnic groups primarily involves equal access to the institutions of the majority society. To a substantial degree, this is a matter of thoroughly enforcing the rights of common citizenship. According to Kymlicka, additional group-differentiated rights are required to ensure equality for members of ethnic groups. The Human Development Report takes a similar view (UNDP 2004a: pp. 6). Public holidays, the established work week, government uniforms, and state symbols such as flags, anthems, and mottoes reflect the needs of the cultural majority. Since these forms of support for particular identities are in most cases unavoidable, it is important to distribute the benefits fairly. Because public recognition tends to privilege the majority, equality requires providing similar support or exemptions from certain laws for members of ethnic groups. Taken together, minority groups face exclusive and unfair disadvantages in the institutions of the majority society for a number of reasons. Various minority rights eliminate inequalities, rather than creating them (Kymlicka 1995a: 108-15).

The second argument in support of group-differentiated rights involves the inherent value of cultural diversity. This argument is attractive because it appeals to the interests, not the obligations, of the majority. It suggests that the larger society can benefit from minority rights. There is increasing recognition of the value of cultural diversity, because it expands the cultural resources and the range of options available to all citizens. In addition, the protection of minority cultures provides alternative models of social organization which in turn can help the larger society to adapt to changing circumstances (Kymlicka 1995a: 121). For example, as traditional Western approaches towards the natural environment increasingly turn out to be destructive and unsustainable, long established lifestyles of indigenous peoples can offer models for more sustainable attitudes towards nature. Kymlicka points out that the diversity argument is better suited to defend polyethnic rights for ethnic groups (‘intercultural diversity’) than to promote self-government rights for national minorities (‘intracultural diversity’) (1995a: 122). While diversity within a culture enlarges the range of choices available to all members, this is less plausible with regard to intercultural diversity. Members of the majority culture rarely choose to integrate into the societal culture of the national minority. Forcing the minority to integrate into the larger society would contribute additional options and choices to members of the mainstream culture. In contrast, measures to protect those cultures are more likely to reduce diversity within the majority culture. Other reasons make it implausible to justify minority rights exclusively based on the value of cultural diversity. While most members of the majority will benefit only in a diffuse way from cultural diversity, some of them will have to pay a significant price. For example, people who are not members of an indigenous group but live on reserved lands are likely to have restricted access to natural resources and might not be eligible to vote in local elections. From a liberal perspective, it is questionable whether those significant sacrifices on a few citizens are justified by the vague benefits of diversity to the majority. The stronger case for those sacrifices is the equality argument, that is, to show that they are needed to prevent even greater disadvantages to the members of national minorities (Kymlicka 1995a: 123). Since the value of cultural diversity appeals to the interests of the majority, it fails to explain the minority’s interest in determining its course of development. Relying solely on appeals to the majority ignores that the majority frequently has strong incentives not to provide external protections to national minorities, such as gaining or maintaining access to natural resources for its members or increasing their mobility. Accordingly, arguments involving the value of cultural diversity complement, rather than substitute arguments based on equality. This view is also supported by the Human Development Report: “If what is ultimately important is cultural liberty, then the valuing of cultural diversity must take a contingent and conditional form. Much will depend on how that diversity is brought about and sustained” (UNDP 2004a: 16).

Another argument in favor of group-differentiated rights involves the analogy with states. Kymlicka suggests that self-government rights for national minorities are the logical extension of existing liberal practice. The existence of states poses a deep paradox for liberals. Liberal theorists justify their ideas based on the assumption that individuals have equal rights. This would suggest that everybody has an equal right to enter a state and participate in its institutions. However, in practice equal rights are granted exclusively to citizens. Many people would like to become citizens and participate in the institutions of various liberal democracies. Yet those demands are mostly refused because those people happen to be born into the wrong group. Obviously, citizenship itself is an inherently group-differentiated conception. Most liberal theorists share the assumption that the world consists of separate states with the right to determine who can gain citizenship. This assumption can only be justified with reference to arguments that justify group-differentiated rights within states as well. “Unless one is willing to accept either a single world-government or completely open borders between states – and very few liberal theorists have endorsed either of these – then distributing rights and benefits on the basis of citizenship is to treat people differentially on the basis of their group membership” (Kymlicka 1995a: 124). If liberalism stands for treating people as individuals only, without recognition of their membership in particular groups, then a system of open borders would be the logical consequence. Joseph Carens argues the case for open borders from a liberal perspective (Carens 1995). “Free migration”, he notes, “may not be immediately achievable, but it is a goal toward which we should strive … The current restrictions on immigration in Western democracies … are not justifiable. Like feudal barriers to mobility, they protect unjust privilege” (Carens 1995: 346). Kymlicka argues that liberal theorists have implicitly assumed that peoples membership in societal cultures matters, and that separate states accommodate the fact that people are members of separate cultures. The most plausible justification for not granting citizenship to anybody who demands it justifies group-differentiated citizenship within states, too. Liberal states and limits on immigration not only protect citizen’s equal rights, but people’s cultural memberships. On the same grounds, Kymlicka argues that some limitations on immigration are justified. But so are group-differentiated citizenship rights to protect the cultural membership for national minorities in multination states. If liberals support separate states and restricted access to citizenship, then the burden of proof lies with those opposed to group-differentiated rights as much as with those in favor of such rights (Kymlicka 1995a: 126).

  1. Judging Group-Differentiated Rights

The very idea of group-differentiated citizenship rights – granting rights to members of a certain group which members of other groups do not have – is seen by some as based on a philosophy entirely at odds with liberalism. Brian Barry’s book Culture and Equality is a case in point, and his critique of multiculturalism explicit aims directly at various aspects of Kymlicka’s theory. For that reason, some elements of his critique will be discussed in this section, before turning to Kymlicka’s account of group-differentiated rights. Both authors, Kymlicka and Barry, claim that their ideas are consistent with liberal principles. For Barry, neither multiculturalism in general nor Kymlicka’s theory in particular are liberal. He justifies his point of view with reference to the influential liberal theory of John Rawls. Therefore, the following paragraphs will briefly show that Barry’s interpretation of liberal commitments can not rely on Rawls theory, before turning to Barry’s more specific criticisms.

For Barry, liberal culturalism is a contradiction in terms. With regard to group-differentiated rights he writes: “It would not be a bad definition of a gut liberal to say that it is somebody who feels an inclination to throw up when confronted by this kind of stuff” (Barry 2001: 16). Unfortunately, Barry’s arguments are not as strong as his language. Barry explicitly states that his concept of egalitarian liberalism is based on John Rawls’ theory of justice. Yet his interpretation of Rawls is based on a very narrow reading of his theory. In particular, Barry interprets Rawls’ commitment to equality purely in material terms: “income is the stuff whose distribution is the subject of attributions of fairness … what is fair is that our equal claim translates into equal purchasing power” (Barry 2001: 35). However, Rawls’ concern is not only with purchasing power. To the contrary, Rawls considers a number of primary goods, among them most importantly the good of self-respect. “The parties in the original position,” writes Rawls “would wish to avoid at almost any cost the social conditions that undermine self-respect. The fact that justice as fairness gives more support to self-esteem than other principles is a strong reason for them to adopt it” (1971: 386). In most instances, conflicts between cultural majority and minority are a matter of recognition, rather than income, and closely related to the self-respect of members of the cultural minority. If Barry would take into account the importance of self-respect in general and in Rawls’ theory in particular, he would have to admit that meaningful equality requires recognition in addition to purchasing power. Many authors, not all of them liberal, support the view that recognition supplements redistribution (Fraser 2000, Young 2000, and Tully 2000: 470).

Barry describes his position as follows: “From an egalitarian liberal standpoint, what matters are equal opportunities. If uniform rules create identical choice sets, then opportunities are equal … people will make different choices … depending on their preferences … Some of these preferences … will be derived from aspects of a culture shared with others … But this has no significance: either way it is irrelevant to any claims based on justice, since justice is guaranteed by equal opportunities” (2001: 32). Barry ignores that identical choice sets brought about by uniform rules have very different value and significance for members of different cultures and tend to favor the cultural majority. Most importantly, equal opportunities are defined in terms of equal access to public institutions operating in the majority language. In effect, Barry treats language as a matter of preference which ‘has no significance’ with regard to justice. In his view, the fact that members of a cultural minority speak a language different from the majority is an expensive taste which the majority should not be required to subsidize. However, people do not choose their culture and language and tend to have a deep attachment to both. Operating public institutions in the language of the majority provides a crucial subsidy to its members and their cultural survival while seriously disadvantaging members of national minorities.

Here again, Barry cannot rely on Rawls for his argument. Implicitly, Rawls agrees with cultural liberalists about the importance of cultural membership for the individual when he argues that the right to emigrate does not make political authority voluntary: “leaving one’s country is a grave step: it involves leaving the society and culture in which we have been raised, the society and culture whose language we use in speech and thought to express and understand ourselves, our aims, goals, and values; the society and culture whose history, customs, and conventions we depend on to find our place in the social world. In large part, we affirm our society and culture, and have an intimate and inexpressible knowledge of it ... The government’s authority cannot, then, be freely accepted in the sense that the bonds of society and culture, of history and social place of origin, begin so early to shape our life and are normally so strong that the right of emigration does not suffice to make accepting its authority free” (1993: 222). Obviously, Rawls is aware of the link between the individual and culture when he writes about the strength of the ‘bonds of society and culture’ which ‘begin so early to shape our life’, and when he states that we use our language to ‘express and understand ourselves, our aims, goals, and values’ and that we ‘depend on’ the ‘history, customs, and conventions’ provided by our ‘society and culture’ to ‘find our place in the social world’. These remarks are compatible with Kymlicka’s concept of societal cultures. It is true that Rawls draws very different conclusions from these insights and that his theory does not have much to offer for cultural minorities. The point here is that while Rawls’ ideas are compatible with Kymlicka’s emphasis on the link between the individual and its culture, they are entirely at odds with Barry’s view that preferences derived from culture are irrelevant to any claims based on justice. Therefore, Rawls theory does not lend much support to Barry’s critique of multiculturalism.

One of Barry’s major criticisms is that the politics of recognition undermine a politics of redistribution, and consequently contribute to growing economic inequalities (2001: pp. 292). By politicizing ethnic differences, multiculturalism has a divisive effect on the disadvantaged and renders ineffective their demands for redistribution. This argument does not focus on justice, but on concerns regarding the civic virtues, identities, and practices needed to sustain a liberal democracy. Thus, it represents a new front in the debate over minority rights, beyond the three stages presented earlier (Kymlicka 2002: 365-68). For Barry, the politics of redistribution should take precedence over matters of recognition. However, without empirical evidence, it is at least equally plausible to assume that the absence of multicultural policies undermines social unity and civic virtues, since minorities are excluded from biased mainstream institutions. In this view, minority rights strengthen civic solidarity and promote social unity and political stability, by eliminating mechanisms which prevent minorities from embracing public institutions. This view is taken by the Human Development Report: “Policies recognizing cultural identities and encouraging diversity to flourish do not result in fragmentation, conflict, weak development or authoritarian rule. Such policies are both viable, and necessary, for it is often the suppression of culturally identified groups that leads to tensions … There is no trade-off between diversity and state unity. Multicultural policies are a way to build diverse and unified states” (UNDP 2004a: 2).

Although much of Barry’s critique of multiculturalism aims directly at Kymlicka’s theory, he chooses to consistently ignore its core ideas. For example, one of the central points of Kymlicka’s argument is that the state can be neutral with regard to religion but not with regard to culture. Accordingly, state neutrality suffices in most instances to treat various religious groups equally and fairly. Because state neutrality does not work with regard to language, groups-differentiated rights are required to treat members of different groups equally. However, Barry consistently uses examples of religious minorities to ‘prove’ that justice demands culturally neutral states. Moreover, Barry has a strong tendency to avoid controversial examples. For example, while making the case that justice necessitates identical treatment, Barry does not use examples involving national minorities. In particular, he never uses examples involving indigenous peoples, and he rarely refers to cases outside the United States or Britain. For all these reason, Barry’s theory does not have much to contribute to the accommodation of indigenous peoples in Cambodia.

Many critics assume that any form of group-specific rights is incompatible with liberal freedom, because such rights place the group over the individual. However, the idea of group-differentiated citizenship has little in common with various concepts of ‘collective rights’. The term ‘collective rights’ and the associated debates are misleading, insofar as they invoke a false dichotomy with individual rights. The assumption is that ‘collective rights’ are exercised by groups and inevitably conflict with individual rights. But many forms of group-differentiated rights are actually exercised by individuals (Hartney 1995). Language rights, for example, are granted to and exercised by individuals. Group-differentiated rights are based on cultural membership and can be accorded to individuals as well as to the group or the associated territory. In Kymlicka’s view, what matters is not whether those rights are attributed to individuals or groups, but why they are group specific, that is, why members of particular groups should have rights which the members of other groups do not have. This is not a debate between ‘individualists’ and ‘collectivists’ over the relative priority of the community versus the individual (Glazer 1995). Kymlicka argues that some minority rights are not only consistent with individual freedom, but strengthen it. He suggests distinguishing two kinds of demands that cultural groups might make.

Internal restrictions involve the demands of a group against its own members (intra-group relations) and are intended to protect the group from the effects of internal dissent. Those claims may restrict the liberty of group members in the name of cultural tradition and religious orthodoxy and thus bring about the danger of individual oppression. In contrast, external protections involve the demands of a group against the economic and political power of the larger society (intra-group relations) and are meant to protect the group from the effect of external decisions. Kymlicka argues that liberals should affirm various external protections but should reject internal restrictions for the same reason: to secure the freedom of the individual. Where external protections promote fairness between members of different groups they can and should be endorsed by liberals. Yet liberals should reject internal restrictions which limit the individual right to question and revise traditional ways of live (Kymlicka 1995a: 37)21.

Illustration 5: Minority Rights, Kymlicka 1995a: 34-48

Each of the three types of group differentiated rights discussed in section 1.2.3. can serve as external protection by reducing the vulnerability of minorities to the larger society. Special representation rights ensure that a national minority will be heard when it comes to decisions at the country level. Self-government rights devolve power to lower political tiers, preventing the national minority from being outvoted or outbid by majority decisions of importance to their culture. And finally, polyethnic rights help protect cultural practices which the market does not support sufficiently or which are disadvantaged by a given legislation. Taken together, external protections need not conflict with group members’ individual rights, because they involve the relationships between groups, not the relationship between groups and their members. Self-government rights and polyethnic rights can be used as internal restrictions as well22. However, leaders of national minorities in many instances embrace the principles of human rights and freedoms and only object to the particular institutions and procedures established by the larger society to enforce those principles. In most cases, they do not seek to impose internal restrictions. Kymlicka argues that demands for internal protections are rare and seldom successful. While most liberal democracies take measures to accommodate cultural differences, this has almost always been a matter of external protections only (Kymlicka 2002: 340).

  1. Liberal Nationalism

Before the argumentation turns to the specific circumstances of indigenous peoples in Cambodia, it is worthwhile to put the specific discussion into the context of broader developments in recent political theory and to briefly discuss the associated innovations in Kymlicka’s conception of multiculturalism. In particular, this discussion will feature some of the arguments offered by the emerging position of liberal nationalism and the associated account of the relationship between nation and democracy.

Most liberal political theorists have taken for granted that their ideas apply exclusively within nation-states. The following famous statement by John Stuart Mill offers a good illustration: „Among a people without fellow-feelings, especially if they read and speak different languages, the united public opinion necessary to the workings of representative institutions cannot exist ... [it] is in general a necessary condition of free institutions that the boundaries of governments should coincide in the main with those of nationalities” (Mill 1972: pp. 230). At the same time, the role of nationhood in political theory was rarely subject to theoretical reflections, until recently. This situation has changed dramatically in the last few years, which have seen a dramatic increase in literature on the political theory of nationalism. Many of the associated authors came to be associated with the position of “liberal nationalism” (Walzer 1997; Margalit and Raz 1995; Tamir 1993). According to those theorists, it is only within national units that liberal-democratic principles can successfully be applied. Kymlicka subscribes to this position. He defines nationalism as “those political movements and public policies that attempt to ensure that states are indeed ‘nation-states’ in which the state and nation coincide” (Kymlicka 2001b: 222). Liberal nationalists consider the use of certain measures to achieve a greater correlation of nation and state to be legitimate. However, two sorts of nationalist movements have attempted to do so in different and incompatible ways. As was shown earlier, states have applied a variety of ‘nation-building’ policies in order to diffuse a shared national language, identity and culture. On the other hand, national minorities within larger states have attempted to achieve their own states. Increasingly, sizeable groups of indigenous peoples – particularly in the Americas – adopt the language of nationhood and mobilize their members behind national ideas. Where states contain national minorities, the conflict between state nationalism and minority nationalism has tended to create serious conflicts, and the confrontation between both has been a widespread feature of recent history. And it remains a pervasive element of domestic politics in many parts of the world today. The question facing liberal nationalists is whether to support state or minority nationalism. Before the discussion turns to this problem, the liberal nationalist perspective on the relationship between nation and democracy will be outlined. Liberal nationalists argue that a sense of nationhood shared by people within a political community brings about various benefits with regard to liberal democratic principles (Canovan 1996).

  1. Liberal Democracy and Nationhood

According to Kymlicka, liberal democracy entails three distinct but related principles, all of which can best be realized within national political units: individual freedom, deliberative democracy, and social justice. The relationship between national culture and individual freedom has been discussed already in the context of Kymlicka’s concept of societal cultures. Liberal nationalists argue that national cultures are what make meaningful options available to individuals, that is, what makes individual freedom and autonomy meaningful. People make choices about conceptions of the good life based on social practices around them. Such choices are based on beliefs about the value of those practices. And to have beliefs about the value of practices necessitates understanding the meaning attached to them by culture, language, and history. Therefore, participation in a national culture makes individual freedom and autonomy meaningful. Liberalisms’ profound commitment to individual freedom and autonomy helps to justify the importance of flourishing national cultures (Margalit and Raz 1995). Taylor argues a related case, stressing the role of respect for national membership in supporting dignity. “Misrecognition”, he argues with regard to indigenous and colonized peoples, “shows not just a lack of due respect. It can inflict a grievous wound, saddling its victims with a crippling self-hatred. Due recognition is not just a courtesy we owe people. It is a vital human need” (Taylor 1994: 26).

For Kymlicka, the concept of deliberative democracy is intimately linked to national political units as well. Firstly, because deliberative democracy necessitates a high level of mutual trust among citizens. From a liberal perspective, the concept of democracy is not limited to the process of voting. Rather, democracy is a system of self-government, involving citizens using their reason in a system of collective deliberation. Decisions resulting from public deliberation are considered to be legitimate because they reflect not only the self-interest or passion of the majority but the common good of the people. Public deliberation requires people to trust that others will consider their views and interests. In addition, losers in elections will accept the outcome only when they have trust that others will abide by the results should they win a future election. Kymlicka argues that this sort of trust requires a sense of commonality which only a common national identity is likely to ensure (Kymlicka 2001b: 226).

Secondly, participation in common political deliberation requires mutual understanding among citizens, which is greatly facilitated by a common language. Most citizens prefer to discuss political issues in their own language, while it is mostly members of the elites who are fluent in a second or third language. In addition, understanding of political communication necessitates familiarity with its important ritualistic elements, which are language specific. For those reasons, democracy within linguistic groups is more genuinely participatory than at higher levels that involve more than one language. Kymlicka supports the case that language groups are the foremost forums for democratic participation in the modern world: “Democratic politics is politics in the vernacular … the more political debate is conducted in the vernacular, the more participatory it will be” (2001b: pp. 213). A similar view is taken by the Human Development Report: “In multilingual societies a multiple language policy is the only way to ensure full democratic participation” (2004a: 63). Furthermore, language is one of the fundamental markers of people’s identity, and most persons have an expressive interest in, and deep emotional attachment to, their mother-tongue. If their language is unrecognized in the public realm it is viewed by many people as an attack on their identity. The recognition and use of people’s language is seen as proof that the polity belongs to the people, not to the elite. Taken together, national political units with a single common language are the primary place for democratic participation in the view of liberal nationalists, and the promotion of a common national language should be seen as facilitating deliberative democracy.

For liberal nationalists, the principle of social justice is connected to national units as well. Social justice involves a system of social entitlements to meet basic needs as well as to make real the principle of equal opportunity. A system of social entitlements requires citizens to accept ongoing sacrifices for people whom they do not know and whose way of life, religion or ethnicity they may not share. In a democratic context, welfare programs will only be created and carried on if citizens continuously vote for them. The associated sacrifices are only accepted when there is a sense of shared identity, so that sacrifices for anonymous others are still made for ‘one of us’. Liberal nationalists argue that only national identity can provide this shared commonality necessary to motivate ongoing sacrifices (Miller 1995). Moreover, the objective of equal opportunities requires equal access to education and positions. In contrast to an agricultural economy, jobs in an industrialized economy necessitate high levels of literacy, education and communicative skills. Therefore the spread of mass education in a common language came to be seen as a crucial instrument to promote greater equality in society. Standardized public education in a standardized language worked well to integrate undeveloped regions and members of the proletariat into a national society and allowed children of various backgrounds to acquire the skills necessary to compete in a modern economy. Consequently, a state’s promotion of a common language and identity can be seen as facilitating social justice by promoting the solidarity necessary to legitimize redistribution and by facilitating equal access to educational and economic institutions (Kymlicka 2001b: 226). Taken together, liberal nationalists support the case that nation-states are the appropriate units of liberal political theory because nation-states provide the appropriate locus to achieve liberal ideals like individual autonomy, deliberative democracy, and social justice.

  1. Nation-Building and Nation-Destroying

The writings of most liberal theorists have implicitly supported the view that the world is composed of nation-states (Kymlicka 1989: 135-252). Yet nation-states did not come about by accident. Nation-states came into existence as the result of deliberate nation-building policies, adopted by governments to diffuse and promote a common language, culture, and sense of national membership. Governments have employed and continue to use various tools of nation-building – such as citizenship policy, language laws, education curriculums, public service employment, support for national media, the drawing of internal boundaries, and national symbols – in order to strengthen a sense of nationhood and bring about a greater coincidence of nation and state (Kymlicka 2002: pp. 345). Accordingly, Kymlicka suggests that those states not be described as nation-states but as ‘nation-building states’. Nation-building policies have been remarkably successful in some states. However they have been resisted in multination states by national minorities – including various indigenous groups – whose members do not consider themselves part of the majority nation. Precisely for this reason, nation-building policies are typically aimed at those minorities and applied in order to abolish their member’s distinct identities. The Human Development Report, too, points out the relationship between state nation-building and the need for minority rights (2004a: pp. 48). It follows that nation-states are indeed ‘nation-destroying’ as much as they are ‘nation-building’. This raises the question whether state nation-building is legitimate where it involves minority nation-destroying. Even where state nation-building respects the limits of civil and political rights, this dilemma does not disappear. The drawing of sub-state boundaries and the distribution of powers, settlement policies, language policies, and education policies can still be used to effectively disempower national minorities, undermine their institutions, and eliminate their distinct identities, languages and ways of life (Kymlicka 2001b: 231).

In multination states, liberal nationalists’ insistence on the desirability of a greater coincidence of nations and states seems to leave only two unattractive and unrealistic options: either they support allowing each national group to form its own nation-state, or they support the majority national groups’ attempt to eradicate all competing national identities. Given the profound interest people have in access to their own culture, the minimal requirement of justice for Kymlicka is to protect national minorities from unfair nation-destroying policies (2001b: 233). But the measures required to provide this sort of protection are precisely those measures that confirm and strengthen those groups’ sense of distinct membership and identity. For example, certain land claims and limits on in-migration can protect against unjust settlement policies. Official language status for and public service provided in the local language can protect against unjust language policy (UNDP 2004a: 60-65). Self-government and special representation rights can protect against manipulation of internal boundaries and division of powers, and so on. However, those measures not only provide the minority with protection against nation-building, but allow the group to promote its own culture and language and to maintain itself as a distinct and self-governing society alongside the national majority. In Kymlicka’s view, the solution to the above dilemma does not require abandoning the goals of liberal nationalism, but formulating them differently. Because national identities are important, it is legitimate to enable national groups to exercise self-government by creating suitable political units. However, those units cannot be states. Kymlicka suggests thinking of a world composed not of nation-states, but of multination states. For liberal nationalism, common nationhood within each state is not a legitimate objective. Instead, states should be thought of as federations of self-governing peoples. The drawing of internal boundaries and the distribution of powers should be done in a way that allows all national groups to exercise a meaningful measure of self-government (2001b: 234).

  1. Indigenous Rights and Decentralization

Before turning to cultural diversity in Cambodia it is worth summarizing the above argumentation and to make the implications with regard to indigenous peoples more explicit. Kymlicka shows that all liberal states have historically been nation-building. That is, they attempted to diffuse a single national culture throughout their territory with the intention of promoting a particular national identity based on participation in institutions operating in the national language. Nation-building serves a number of legitimate purposes, such as facilitating the achievement of individual autonomy, deliberative democracy, and social justice. However, majority nation-building potentially creates serious injustices for minorities. In particular, state nation-building involves nation-destroying in the case of national minorities. To be legitimate, state nation-building needs to be balanced with minority rights, more specifically, with group-differentiated rights in addition to the common rights of citizenship. However, not all collective rights promote individual autonomy and freedom. A liberal conception cannot support internal restrictions, that is, rights of the group against its members designed to protect the group from internal dissent. However, a liberal approach should promote various external protections, more precisely, rights of the group towards the larger society designed to protect the group from external pressures.

Various cultural minorities relate differently to the majority nation and respond differently to state nation-building policies. National minorities are previously self-governing societies which have been involuntarily incorporated into larger states. They can be subdivided into sub-state nations and indigenous peoples (Kymlicka 2002: 349). Sub-state nations were contenders but losers in the process of state formation, while indigenous peoples were isolated from this process until rather recently. Both sub-state nations and indigenous peoples typically resist nation-building and seek to maintain themselves as distinct societies alongside the majority nation, keeping their institutions of self-government and their distinct languages. In contrast to sub-state nations, indigenous peoples do not seek their own state. Rather, they demand recognition of their culture and the ability to maintain traditional ways of life while participating in the modern world on their own terms.

Because ethnic groups and national minorities relate differently to the majority national culture, the protection of the good of cultural membership for their members takes different forms. Ethnic groups have uprooted themselves from their societal cultures. While they maintain and cherish elements of their culture, they do not want to recreate their society, but adapt the institutions of the mainstream society to make a distinct ethnic identity a normal part of life in the majority society. Accordingly, the claims of ethnic groups are best met with polyethnic rights. In contrast, national minorities – including indigenous peoples – did not choose to migrate. Indigenous peoples formed distinct and previously self-governing cultures that occupied their homelands and governed their societies prior to being involuntarily incorporated into states that did not even exist at this time. What justifies specific rights for indigenous peoples is not just that they were the initial appropriators of their homeland. ‘First-come, first-serve’ is not a valid justification for indigenous rights. What does justify such rights is that indigenous peoples were self-governing and might have maintained their independence in a different constellation of power. The loss of this independence came about by a violation of their inherent right to self-government through coercion and colonization. In this regard, the situation of indigenous peoples is not generally different from overseas colonized peoples which were granted independence in the process of decolonization. What both classes of groups have in common is that they are peoples who form previously self-governing, territorially concentrated, culturally distinct societies (Kymlicka 2001b: 149). Because their involuntarily incorporation was unjust, and because of the profound interest people have in access to their own national culture, indigenous peoples should not be required to integrate into the mainstream society but enabled to maintain themselves as distinct societies. Protecting these groups from unjust state nation-building involves giving them the same powers of nation-building which the national majority takes for granted. To ensure that the good of cultural membership is equally protected for members of indigenous peoples, self-government rights and special representation rights are necessary, allowing these groups to maintain their distinct cultures and to lessen their vulnerability to decisions of the larger society. Self-government rights involve the devolution of powers to a political subunit in which members of the group form a majority. In the case of indigenous peoples, self-government is frequently achieved either through federalism or through systems of reserved lands. A general decentralization does not accommodate the needs and fair demands of indigenous peoples. Instead, a specifically ‘multination’ conception of federalism is required which involves the redrawing of political boundaries based on ethnic criteria to provide indigenous groups with self-governing enclaves (Kymlicka 2001b: 143).

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