Jerusalem Review of Legal Studies 2010 Gans 64 70

8/12/2019 Jerusalem Review of Legal Studies 2010 Gans 64 70

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ONKYMLICKASMULTICULTURALODYSSEYS

Chaim Gans*

Will Kymlickas MULTICULTRAL ODYSSEYS is an impressive book. Kymlicka is the

major theoretician of liberal multiculturalism. In the last twenty years, he has been

deeply involved in attempts to diffuse multiculturalism around the world. In this

book, he provides us with a systematic and critical account of these attempts. He

tries to explain why national minorities and indigenous peoples multiculturalism has

been successful in Western Europe and in the Americas, and why it failed in many

post-Communist and post-colonial parts of the world. This account is of outmost

importance for any reflective attempt to continue what Kymlicka calls the diffusion

of liberal multiculturalism in the world.

The book is not a book in normative philosophy. It is mainly an attempt to

provide political and social explanations for the successes and the failures of liberal

multiculturalism in different parts of the world. As Kymlicka notes in the first sentence

of the book (in the Acknowledgements), much of the territory which the book coversis on issues that have little bearing to his training as a political philosopher. I should

say that this also applies to the present writer. However, although the arguments

and the topics of Kymlickas book are not really philosophical, the basic concepts

and distinctions along which Kymlickas discussion is conducted presuppose his

previous philosophical work. In this comment, I will mainly be concerned with the

appropriateness of this analytic framework for the subject matter of the current book.

As he did in his previous books, he conceives of liberal multiculturalism

as pertaining to minority rights. In his previous work, he presented a typology of

these rights, which he divided into three different types: rights to self-government,representation rights, and poly-ethnic rights. Examples of poly-ethnic rights are the

exemption of Sikhs from motorcycle helmet laws, and exemptions of Muslim girls in

France from school dress-codes to allow them to wear headscarves. These rights are

intended to enable groups of common national origin to express their original culture

while integrating into another culture and living lives within that other culture, at least

*Professor, The Faculty of Law, Tel Aviv University.

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65ONKYMLICKASMULTICULTURALODYSSEYS

politically and economically. Since the present book discusses the way international

law and practice deal with multiculturalism, and since the category of poly-ethnic rights

is not acknowledged as such in international law and practice, he uses the terminologyof generic and targeted cultural rights instead. However, it is clear that what he means

by generic rights is mainly poly-ethnic rights, which are soft cultural rights that are

mainly intended for immigrant minorities. Regarding the targeted rights, he is speaks

of them quite explicitly in the context of the self-government and representation rights

of national and indigenous minorities. The current book does not only presuppose

Kymlickas previous typology, but also leaves out what this typology has omitted:

rights to cultural preservation. Although Kymlicka has always and still does refer

to them in his writings, they were absent from his typology and are marginalized

in his discussions. Cultural preservation rights are mainly intended to allow groups

to preserve their status as distinct societies. Their goal is the opposite of what poly-

ethnic rights are intended to allow. Whereas poly-ethnic rights are intended to allow

their holders to express their identity within a particular territory where the public

sphere and the economic and political life are conducted mainly within the framework

of a different culture, rights to cultural preservation are intended to establish a given

culture as the main culture within which political and economic life is to be conducted

in a given territory.1

In my opinion, what I have said so far produces two (interconnected) types of doubt

regarding the analytic framework of Kymlickas book. One is whether an attempt to

understand the process of diffusing liberal multiculturalism ought at all be conducted

in terms of minority rights. The discourse of minority rights presupposes a sort of

qualitative distinction between majorities and minorities. In my opinion, it prejudges

many difficult questions regarding multiculturalism, its normative aspects, as well as

its politics. For example, it creates the misleading impression that majorities do not

have the interests justifying cultural rights for minorities, or that their similar interests

are not and need not be protected by rights. This impression is misleading, since the

similar cultural interests of minorities are usually protected by the international rightto self-determination. And when this right is not sufficient, the question arises whether

majorities also should be protected by domestic cultural rights (such as the language

rights of the Francophone majority in Quebec, or the immigration rights which Jews

1SeeCHAIMGANS,THELIMITSOFNATIONALISM(2003), at chapter 2, and Chaim Gans,Individuals

Interest in the Preservation of Their Culture: Its Meaning, Justification and Implications, 1 JOURNALOF

LAWANDETHICSOFHUMANRIGHTS6-16(2007), available at http://www.bepress.com/lehr/vol1/iss1/art2

(last visited Nov. 7, 2010).

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66 CHAIMGANSJRSLM. REV. LEGALSTUD. VOL. 2, 2010

enjoy in Israel). It therefore seems to me that it is better to conduct the discussion of

multiculturalism mainly in terms of ethno-national rights and cultural rights ,while

attributing only secondary importance to the distinction between majorities andminorities. The second hesitation implicit in my comment regarding the way in which

the present book presupposes Kymlickas previous work pertains to his omission of

cultural preservation rights from his typology of cultural rights. The present point is

of course connected with the previous one: cultural preservation rights cannot just be

minority rights. There are cases in which cultural preservation rights should also be

granted to majorities in states.

To these two doubts regarding the analytic framework of the book, I would like

to add another two. The book discusses the success of international organizations in

diffusing liberal multiculturalism, mainly in the non-Western world. It highlights the

interest which the international community has in this diffusion. It emphasizes the fact

that this interest is accompanied by newly established international opinion, according

to which the way states treat their minorities is not merely their internal business,

and that the norms concerning the treatment of minorities should act as constraints

on the sovereignty of states. However, the analytic infrastructure of the book does

not embody these matters, for it accepts and presupposes the view that the issue of

minority rights belongs to the realm of intra-statist justice. The book does not discuss

it as a question of global justice among ethno-national or ethno-cultural groups. This

point adds to the previous point I made, namely, that the book discusses the cultural

rights of minorities and not cultural rights in general, whether those of minorities or

of majorities. At least philosophically and normatively, and also from the viewpoint

of political explanation, I believe that it could be beneficial not to discuss these as

issues of intra-statist justice but rather as pertaining to global justice. I will give some

examples later. Of course, it is important to note here that since the main subjects of the

book are not philosophical-normative but rather political-explanatory their analysis

must be conducted within the framework of current reality, in which nation states have

most of the political authority in the world. However, it must be remembered that atleast some of Kymlickas explanations for the failure of liberal multiculturalism in

the post-Communist and the post-colonial worlds resort to relationships and histories

which are neither inter-statist nor intra-statist. They are histories and relationships

between cultural groups in the world, and therefore are global in a non-inter-statist

manner.

In fact, most of his explanations are related to histories of this type. He explains

the success of national and indigenous minorities multiculturalism in the West by

resorting, among other things, to Western consciousness regarding the gross historical

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injustices committed by Western nations against their national minorities [189]. He

explains the failure of national-minorities multiculturalism in the post-Communist

and post-colonial worlds by resorting to the historic injustices committed by theethno-cultural groups to which state-minorities belong against the majorities in their

states when these majorities were minorities in former larger states. For example,

he refers to the mistreatment of the Slovaks by the Hungarians within the Austro-

Hungarian Empire as part of the explanation for the Slovaks current attitude

towards their Hungarian minority [186]. And Kymlicka mentions the cooperation

of the Tamil Sri Lankans with British Colonialism as part of or perhaps the main

explanation for the failure of the Sinhalese in Sri Lanka to grant national minority

rights to the Tamils there [262]. In other words global relationships and histories of

relationships among ethno-cultural groups in the world rather than histories of inter-

statist relationships form a major part in the explanations of the successes and failures

to diffuse multiculturalism. This, I believe, strengthens the case for dealing with the

questions the book addresses not as questions of intra-statist justice towards minorities

but rather as a question of global justice among ethno-cultural groups, whether they

are minorities or majorities within existing states. Of course, discussing these issues

from a viewpoint of global justice must assist us in reaching conclusions relevant to

intra-state relationships among groups. However, these conclusions must be drawn

from a global perspective.

The examples I quoted from Kymlicka demonstrate that the global justice

perspective from which the rights of cultural groups must be analyzed is not merely

that of the just global distribution of cultural rights, but also the perspective of historic

global justice. The question of what rights Slovakia as primarily realizing the self-

determination of the Slovaks should grant to its Hungarian minority must take into

account not only the fact that the Hungarian right to self-determination is primarily

realized by Hungary, but should also take into account the need to alleviate the

historical tensions between the two groups by providing assurances to which the state

of Hungary must commit itself.To sum up: I believe that the analytical framework within which the diffusion

of liberal multiculturalism should be discussed must be one in which the issue is

conceived of not as a matter of intra-statist distributive justice concerning minority

rights but rather as a matter of distributive and corrective global justice concerning the

ethno-cultural rights of ethno-cultural groups in general. I think that this framework

might be beneficial both for the normative philosophy of the matter and for the

understanding of its political intricacies. I want to end by demonstrating this claim

with two examples.

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One of Kymlickas main political explanations for the successes and failures

of multiculturalism is the security problem, namely, the claim majorities in post-

Communist and post-colonial states make regarding security threats posed to theircountries by the loyalties of their minorities to foreign countries [e.g. at pg. 180-

196, 255-257], as a justification for their refusal to grant them some types of cultural

rights. I have two reservations concerning this explanation. First, in my opinion, this

explanation seems plausible only for some aspects of the refusals of post-Communist

and post-colonial states to grant their minorities cultural rights. I have made this point

elsewhere with regard to Israel.2The security of the state as embodying the right of the

Jews to self-determination requires Jewish hegemony in security matters, and perhaps

the preservation of a Jewish majority by means that are compatible with human rights.

However, it does not justify a refusal to grant the Arab minority any collective rights

whatsoever, such as autonomy in education, or representation in the public domain

and in the symbols of the state. Denying the Israeli Arabs the right to be represented

in the symbols of the state and in the public domain could hardly be considered a form

of self-defense and usually aggravates the situation, which ultimately creates more

security concerns. My impression is that security risks are more often an effect of the

refusal of the states to grant rights to minorities than a serious explanation of the cause

for this refusal. Security problems are caused by one or both of the parties in a conflict

wanting more than the parties deserve. And if we think that a minority ought to be

granted a right which in fact it is not granted, than we must blame the party which

does not allow this right to be implemented for the creation of the security problem.

Hence, if Kymlicka believes that a majority in the post-Communist or post-colonial

countries should grant a certain minority right to its minority, he cannot resort to

security considerations in order to explain the refusal to grant this right.

My belief is that the real explanation for the lack of graciousness of the majorities

in the post-Communist and post-colonial states regarding granting the appropriate

cultural rights to national minorities is greed and the instinctive unwillingness of

most individuals and groups of individuals to share something they possess withothers (especially if these other people are strangers), even when justice mandates

redistribution. In the case of these nations, this is also fed by the past injustices

inflicted on them by their minorities or the groups to which these minorities belong

ethnically, or the colonial powers with whom the minorities associated in the past. On

the other hand, the readiness of the majorities in the West to grant collective rights

2CHAIMGANS,THEJUSTICEOFZIONISM(2008), at chapter 5.

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to its minorities, especially the indigenous minorities, stems from the fact that there

is not much left to dispossess them off, and from the guilt and shame which these

majorities justly feel towards their dispossessed minorities. Kymlicka reports some ofthe facts which I have just mentioned, but then grants an exaggerated role to security

concerns in explaining the failure of national minorities multiculturalism in the post-

Communist and post-colonial worlds [180-196, 257-259].

I argued that the discussion of the diffusion of multiculturalism could benefit

if it would be conducted from the perspective of global distributive and corrective

justice regarding the collective rights of ethno-cultural groups, and that this holds

for the political explanations of the failures and successes of this diffusion, as well

as for the normative philosophy of multiculturalism. My observations regarding the

security explanation were meant to provide an example for the advantages of the

global justice perspective in providing better political explanations. I want to end my

comment with an example of the advantages of the global perspective in providing

better normative accounts for minority rights than the accounts which can be provided

from the intra-statist perspective. The example I want to use is the rights of immigrant

minorities. Kymlicka does not dedicate much space in the present book to immigrants.

The book does not contain much information on this type of minority relative to

the information it contains on the other types of minorities. I assume there are not

many immigrants in the post-Communist world, but that there are masses of them

in the post-colonial world, mainly refugees. What the book does tell us is that the

conditions of immigrant minorities in the New World countries whose ethos consists

in the fact that they are immigration countries, is much better than their conditions in

the old world West, namely, in Western Europe. The countries there are immigration

countries in practice, but not in their ethos. Kymlicka does not discuss the question

why immigrant multiculturalism has had more success in the New World countries

relative to the old one. His neglect of this issue can in my opinion be linked to a point

deserving criticism in his previous books namely the justification he gives there

for the meager cultural rights of immigrant minorities. It consisted mainly in the claimthat their act of immigration implies consent to relinquish self-government under their

original culture. Many have pointed out that this does not apply to all immigrants,

especially not to second generation immigrants. My opinion is that the main reason for

granting immigrants lesser cultural right relative to homeland minorities stems from

considerations of global justice with regard to the distribution of cultural rights. Since

the ethno-cultural groups to which immigrants belong usually enjoy self-government

rights in their countries of origin, and since there is not enough space in the world

to grant every sub-group of every group rights which would enable its members to

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live their lives within their original culture wherever it resides, immigrant minorities

should get lesser cultural rights than homeland minorities. This point has much more

force with relation to the old, European, West, than with regard to the New Worldcountries, whose ethos is the ethos of immigration and their culture is an immigrant

culture. If I am right, then this could provide an explanation for the backlash in the

status of immigrants in Western European countries. Such a backlash has not occurred

in the New World West. Again, a lacunae in Kymlickas present book reflects a lacunae

in a previous book. And the two gaps stem from the omission of the global justice

perspective as an analytical framework for the discussion of cultural rights.

I therefore return to my main point: the discussion of liberal multiculturalism

and its diffusion would benefit a lot if it would be conducted not as an intra-statist

matter pertaining only to minority rights, but as a global matter concerning ethno-

cultural and ethno-national groups in the world as a whole. What we need is a theory

of global justice relating to the distribution of cultural rights, which would then be

modified according to considerations of corrective justice in all those cases where

the appropriate balance of cultural rights of the different ethno-cultural groups has

been violated in the course of the last few centuries. I think this would help us diffuse

liberal multiculturalism more successfully.

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