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Habermas Baumeister

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Ways of belonging Ethnonational minorities and models of ‘differentiated citizenship’ ANDREA BAUMEISTER University of Stirling, Scotland ABSTRACT Recent campaigns for recognition by ethnic religious and national minorities have highlighted the limitations of the dominant unitary conception of the nation state. While the model of ‘differentiated citizenship’ advocated by Taylor and Carens constitutes an innovative response to these challenges, the difficulties that surround this model underline the dilemma that confronts many modern states. Although a commitment to equal citizenship implies that the state should acknow- ledge the different histories, needs and goals of the various communities that consti- tute it, a multicultural society must at the same time develop a genuinely shared culture. These difficult questions surrounding political stability and the equality of citizens cannot be easily resolved. However, one potentially promising avenue is indicated by Parekh’s emphasis upon intercultural dialogue. In cases concerned with the mediation of individual rights and certain intergroup and intragroup power relations, such dialogue can be fostered via imaginative institutional mechanisms such as Shachar’s model of ‘transformative accommodation’. KEYWORDS cultural rights joint governance multiculturalism INTRODUCTION The campaigns by many national minorities for greater regional autonomy to establish distinct legal and political frameworks and calls for cultural recognition by ethnic and religious minorities have highlighted the limi- tations of the dominant model of the modern nation state as an adminis- tratively centralized and politically and culturally homogeneous unit. The emphasis that such groups place upon collective identity and their ARTICLE Copyright © 2003 SAGE Publications (London,Thousand Oaks, CA and New Delhi) Vol 3(3): 393–416 [1468-7968(200309)3:3;393–416;034984] www.sagepublications.com
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Ways of belongingEthnonational minorities and models of ‘differentiatedcitizenship’


University of Stirling, Scotland

ABSTRACT Recent campaigns for recognition by ethnic religious and nationalminorities have highlighted the limitations of the dominant unitary conception ofthe nation state. While the model of ‘differentiated citizenship’ advocated by Taylorand Carens constitutes an innovative response to these challenges, the difficultiesthat surround this model underline the dilemma that confronts many modern states.Although a commitment to equal citizenship implies that the state should acknow-ledge the different histories, needs and goals of the various communities that consti-tute it, a multicultural society must at the same time develop a genuinely sharedculture. These difficult questions surrounding political stability and the equality ofcitizens cannot be easily resolved. However, one potentially promising avenue isindicated by Parekh’s emphasis upon intercultural dialogue. In cases concerned withthe mediation of individual rights and certain intergroup and intragroup powerrelations, such dialogue can be fostered via imaginative institutional mechanismssuch as Shachar’s model of ‘transformative accommodation’.

KEYWORDS cultural rights ● joint governance ● multiculturalism


The campaigns by many national minorities for greater regional autonomyto establish distinct legal and political frameworks and calls for culturalrecognition by ethnic and religious minorities have highlighted the limi-tations of the dominant model of the modern nation state as an adminis-tratively centralized and politically and culturally homogeneous unit. Theemphasis that such groups place upon collective identity and their


Copyright © 2003 SAGE Publications (London,Thousand Oaks, CA and New Delhi)Vol 3(3): 393–416 [1468-7968(200309)3:3;393–416;034984]www.sagepublications.com

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subsequent demands for group rights question the widespread assumptionthat the nation state should constitute the only significant locus of politicalbelonging and that citizenship should be seen primarily in terms of equal,universal individual rights. For Charles Taylor (1993) and Joseph Carens(2000), these challenges highlight the need for an alternative conception ofthe modern state that can accommodate the aspirations of diverse cultural,ethnic and national groups. In place of the preoccupation with homogene-ity that characterizes dominant models of the nation state – including theliberal ideal of civic nationalism – Taylor and Carens propose distinctivemodels of liberal democratic citizenship that seek to recognize multipleforms of belonging to the political community and overlapping identitiesand citizenships. In developing these models, Taylor and Carens draw uponrecent Canadian struggles for recognition that have been characterized bya complex and at times crosscutting set of demands, including campaignsby the Québécois and indigenous peoples. What characterizes Taylor’s andCarens’s models of ‘differentiated citizenship’ is a commitment to whatTaylor terms ‘deep diversity’; an arrangement that would grant collectivegroup rights to many minorities, including rights to self-government forterritorially-based minorities. On such a model, individual citizens areincorporated into the state not universally, but consociationally; that is, asmembers of their cultural or national group. Thus, members of differentminority cultural and national groups belong to the state in different ways.Hence membership of the relevant cultural or national group becomes theprimary locus of political identity.

While attempts to develop models of the state that recognize themultiple dimensions of citizenship are to be welcomed, these conceptionsof citizenship remain problematic. Not only are the liberal credentials ofthis approach open to question, but the emphasis that Taylor and Carensplace upon the recognition of existing identities does not provide anadequate model for the struggles for recognition by social groups such aswomen. Finally, if national or cultural group membership is to be theprimary focus of political identity, it may be difficult to generate the genuinesense of cohesion necessary for political stability. These difficulties suggestthat, if models of differentiated citizenship are to succeed, they must answercomplex questions surrounding political stability and the equality ofcitizens. Here one potentially promising avenue is indicated by Parekh’s(2000) emphasis upon open-minded, morally serious intercultural dialoguethat probes the nature of existing cultural practices and seeks to promotemutual adaptation and compromise. In cases concerned with the mediationof individual rights and certain intergroup and intragroup power relations,such dialogue can be fostered via imaginative institutional mechanisms suchas ‘transformative accommodation’ (Shachar, 2001), which combines therecognition of group rights with a typically liberal concern for individualwellbeing, freedom and equality.


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The dominant model of the nation state as an administratively centralizedand politically and culturally homogeneous unit has its roots in the late 15thand early 16th centuries and reflects an historically and culturally distinc-tive vision of the political order that has a strong liberal orientation(Parekh, 2000). Whereas premodern polities tended to be composed ofcommunities like castes, clans, tribes and ethnic groups, the modern stateis defined as an association of individuals. Individuals are not linked to thestate through membership of a particular cultural community, but stand assingular citizens in the same direct relationship to the state. Thus, citizensrelate to the state in an identical manner and enjoy equal status. Thispreoccupation with the relationship between state and individual citizen isprobably most apparent in the liberal contract tradition. For contracttheorists, the state is the product of a process of deliberation among undif-ferentiated individuals, and no account is taken of the customs, traditionsand institutions that may constitute a particular people prior to the socialcontract. On this model, to ‘be a citizen is to transcend one’s ethnic,religious and other particularities, and to think and act as a member of apolitical community’ (Parekh, 2000: 181). The aim is to constitute oneuniform political association. Hence, even liberal states hostile to the ideaof ethnic nationalism have promoted forms of civic nationalism that stressthe importance of ‘unity of government’ and seek to engender loyalty tothe key values, principles and procedures enshrined in the constitution(Canovan, 1996; Gilbert, 1998). For civic nationalists, these constitutionalvalues and principles override the more particular attachments of citizens.1

This drive for homogeneity is reinforced through a uniform legal system. Asingle set of constitutional principles guarantees identical rights and obli-gations to all citizens and, in the case of federal states, ensures that thevarious component units are granted roughly the same rights and powers.In contrast, the constitutions of premodern polities were multiform, an‘assemblage’ of overlapping legal and political jurisdictions based upon avariety of local customs (Tully, 1995). Finally, whereas earlier polities recog-nized multiple and often crosscutting ethnic, religious and territorial iden-tities, the modern nation state attaches unprecedented importance toterritory. Thus, the modern state is typically perceived as a self-containedunit within which the state acts ‘as the sole collective spokesman’ (Parekh,2000: 181). Indeed, since the 19th century, citizenship has come to beidentified with membership of a modern nation state (Bellamy, 2000).

Yet this vision of the nation state has important limitations. Whereas thedominant model of the nation state seeks to build a culturally and politi-cally homogeneous unit, most modern states are ‘multi-ethnic and multi-national societies whose constituent communities entertain different views


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of its nature, powers and goals’ (Parekh, 2000: 184). This diversity has givenrise to ever more vocal demands on the part of an increasing number ofminority groups for the recognition and support of their particular identityand culture. Thus, numerous national minorities have sought to protecttheir distinct identity and culture by gaining legal protection and supportfor their national language. For instance, the Catalans in Spain, theQuébécois in Canada and, to some degree, the Welsh in Britain haveattempted to enshrine in law the use of their national language in schools,employment, the media and public life in general. Such campaigns havefrequently been associated with wider demands for greater regionalautonomy and, in the case of Québec, secession. Another distinctive set ofdemands stems from the aspirations of indigenous people in New Zealand,Australia, Canada and the US to gain greater control over the resourcesand policies that affect their way of life. Here, the focus has tended to beon land rights,2 yet a different set of concerns has been voiced by religiousminorities, who have expressed fears about the impact of educationalprovisions upon their ability to raise their children in accordance with theirown religious beliefs.3

These demands for recognition highlight the political significance ofthose interests individuals possess by virtue of their membership of aparticular religious, ethnic or national group. Rather than transcend theirparticular identities, those campaigning for recognition have stressed theimpact of ethnicity, religion and nationality upon the identity of individualgroup members and have pointed to the links between the wellbeing ofindividual members and the wellbeing of the group as a whole. Conse-quently, many groups campaigning for recognition seek group-specificcultural rights designed to protect and perpetuate their culture and identity.Such group-differentiated rights can take the form of either personal orcorporate cultural rights. While personal cultural rights are exercised bygroup members individually, corporate cultural rights are exercised by thegroup collectively. For example, the campaign by Muslim girls in France forthe right to wear headscarves in the classroom constitutes a demand forpersonal cultural rights. In contrast, campaigns by national minorities forgreater self-government and demands by indigenous people for specialhunting, fishing and land rights are calls for corporate cultural rights.Although, in practice, many nation states already grant at least somecultural rights to religious ethnic and national minorities,4 on the dominantmodel of the modern nation state such demands for group-differentiatedrights are problematic on at least two counts: first, both personal andcorporate cultural rights question the assumption that citizenship should beseen primarily in terms of identical, universal individual rights and hencechallenge the conventional meaning of equal citizenship; and, second,corporate cultural rights contest the claim that the state should constitute


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the only significant locus of political belonging and thus raise importantquestions about the manner in which citizens are to be incorporated intothe state.


In the light of these difficulties, many theorists have expressed seriousdoubts about the adequacy of the dominant unitary model of the nationstate. Drawing upon recent Canadian struggles for recognition, Taylor andCarens attempt to address these concerns by developing an alternativemodel of liberal democratic citizenship that recognizes multiple forms ofbelonging to the political community and accommodates overlapping iden-tities and citizenships. Thus, both writers reject the difference-blind concep-tion of equality that characterizes the unitary model in favour of the ideaof equitable treatment, which recognizes that the standard schedule ofliberal rights might apply differently in different cultural contexts. Further-more, both want to enable citizens to be incorporated into the state not justuniversally, but also consociationally; that is, as members of their culturalor national group.

The emphasis that Taylor and Carens place upon the need for equitabletreatment reflects widespread concerns regarding difference-blind concep-tions of equality. Although every liberal democratic regime must upholdcertain principles, such as freedom of speech, freedom of religion, majorityrule, and so on, these principles can be implemented in a variety of waysand every actual liberal regime remains thickly embedded in particularcontexts. After all, every state must make decisions about which officiallanguage to use, which public holidays to observe and how to draw internalboundaries. Since these decisions typically reflect the norms and sensi-tivities of the majority culture, they tend to place members of ethnic,religious and cultural minorities at a disadvantage. Not only may minoritieshave to spend resources on cultural goods that the majority obtains for free(Kymlicka, 1995), but the traits, characteristics, behaviour and optionsassociated with the majority culture are allowed to shape the public sphereand are thus perceived as ‘normal’. In contrast, those of the minority aresingled out as ‘different’ and remain socially invisible, erased or despised(Galeotti, 2002). This may lead to a lack of confidence and self-esteem,which may undermine the capacity of minorities to take advantage of theopportunities society has to offer and may make it difficult for members ofminority groups to become functioning social agents and full citizens. In thelight of these difficulties, a number of liberal writers – including Habermas(1993), Kymlicka (1995) and Raz (1994) – have argued that, if members of


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minorities are not to be discriminated against, they must be granted group-specific cultural rights. The aim of such rights is to ensure that the autonomyof all citizens is protected equally.5

What distinguishes the models of differentiated citizenship advocated byTaylor and Carens is that, in addition to personal cultural rights designedto protect the members of minority groups from discrimination, thesewriters advocate corporate cultural rights that seek to guarantee the long-term survival of a particular culture and identity. Both maintain that, sinceindividual identity is constructed within a particular cultural context, asecure identity can only be established if the survival of the culturalcommunity in which it was formed is ensured. A failure to safeguard theparticular identity of existing cultural communities constitutes a threat tothe identity of their members and, hence, is incompatible with the typicallyliberal commitment to equal respect. Hence, Taylor concludes that a liberalsociety can legitimately adopt measures designed to protect and promotethe culture and way of life of a particular community provided that suchmeasures respect the fundamental liberal rights of all citizens and grantequal citizenship to all members of society. Here Taylor draws a carefuldistinction between fundamental rights, such as rights to life, liberty, dueprocess, freedom of religion, free speech, and so on, and the wide range ofpossible privileges and immunities that may be granted by the state. Whilethe liberal state must protect the fundamental rights of all citizens equally,privileges and immunities ‘can be revoked or restricted for reasons of publicpolicy’ (Taylor, 1992: 59). Indeed, the liberal state should at times ‘weighthe importance of certain forms of universal treatment against the import-ance of cultural survival, and opt sometimes in favour of the latter’ (1992:61). Thus, for instance, on this account, the government of Québec isentitled to safeguard the continuation of French Canadian language andculture. Hence, laws stipulating that commercial signs be in French andrequiring that companies with more than 50 employees use French, as wellas the compulsory French language education of children of French-speaking parents and immigrants, do not, according to Taylor, violate thefundamental rights of either immigrants or the English-speaking com-munity in Québec; they merely restrict certain privileges and immunities.Thus, a government may effectively safeguard the survival of a nation’sculture without violating the rights of those citizens who do not subscribeto this particular vision of the good. This view is echoed by Carens. Whilethe state cannot legitimately restrict the right of citizens to communicate intheir chosen language, it does not have to be neutral as far as the positivesupport of languages is concerned. As long as the Québec state permits theEnglish-speaking community and immigrants to communicate in theirchosen language, it can legitimately insist upon the use of French in publiclife. Not only is French central to the culture and way of life of the majorityof Québécois, but French-speaking Canadians constitute a potentially


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vulnerable minority in overwhelmingly English-speaking North America;the Québécois are keenly aware of the rapid and substantial decline of theuse of French among francophone emigrants from Québec. Prior to theintroduction of the language laws, this vulnerability was reinforced by thetendency of immigrants to Québec to learn English rather than French.However, while Carens believes that the Québécois are entitled to takesteps to secure the long-term survival of their distinctive cultural com-munity, he stresses that Québécois culture should be defined in an openway, with an almost exclusive emphasis on the French language as a sharedcultural commitment and without privileging the culture of the descendantsof the settlers of Québec. This ensures that, while immigrants will have toadopt the French language, they can nonetheless feel a genuine sense ofbelonging to the community.

As Taylor’s and Carens’s discussion of Québec indicates, these writersendorse a model of citizenship that grants cultural and national minoritiesthe right to develop their own distinct legal and political frameworks,designed to protect and perpetuate their cultural identity. However, Taylorand Carens do not merely challenge the preoccupation with political andlegal homogeneity that characterizes the dominant model of the nationstate, they also raise important questions about the manner in whichcitizens are incorporated into the state and identify with it. While theunitary model expects citizens’ primary attachment to be to the state,citizens frequently identify more strongly with the national and culturalcommunities that make up the state than with the state itself. Thus, fran-cophones living in Québec identify more strongly as Québécois than asCanadian (Carens, 2000). Similarly, many Scots in Britain see themselvesas Scottish first and British second, and something analogous holds formany aboriginal communities (Taylor, 1993). According to Taylor andCarens, liberal democratic states should not only seek to accommodate, butshould embrace such deep diversity ‘as a positive basis for unity and acommon identity’ (Carens, 2000: 172). ‘First level’ diversity acknowledgesthat there are differences in culture, outlook and background, but insiststhat all citizens stand in an identical relationship to the state. Such first leveldiversity is typified by approaches such as the Canadian mosaic model ofpluralism, which, rather than seeking to assimilate different ethnic groups,allows for a degree of diversity in terms of language and culture.6 Incontrast, deep or ‘second level’ diversity allows members of differentcultural and national groups to belong to the state in different ways. Thus,reflecting upon the diverse loyalties and senses of identification that char-acterize Canadian politics, Taylor (1993: 183) concludes:

To build a country for everyone, Canada would have to allow for second-levelor ‘deep’ diversity, in which a plurality of ways of belonging would also beacknowledged and accepted. Someone of, say, Italian extraction in Toronto orUkrainian extraction in Edmonton might feel Canadian as a bearer of


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individual rights in a multicultural mosaic. His or her belonging would not ‘passthrough’ some other community, although the ethnic identity might beimportant to him or her in various ways. But this person might neverthelessaccept that a Québécois or a Cree or a Déné might belong in a very differentway, that these persons were Canadian through being members of their nationalcommunities. Reciprocally, the Québécois, Cree or Déné would accept theperfect legitimacy of the ‘mosaic identity’.

Just like asymmetrical federalism, deep diversity requires that the insti-tutional arrangements, including the legal rights and duties of citizens,should ‘reflect the psychological realities of differentiated political identi-ties’ (Carens, 2000: 170; see also Fossum, 2001). Thus, the state should playa stronger role in parts of the federation where the primary attachment isto the state and a lesser role in areas where the primary attachment is to alocal, national or cultural identity.7 However, deep diversity ‘goes furtherthan asymmetrical federalism in the sense that it affirms, and does notmerely yield to, the multiplicity and variety of political identities’ (Carens,2000: 172). Deep diversity therefore expresses a particular political culturerather than just a set of political arrangements.

This model of deep diversity has particularly far-reaching implicationsfor liberal democracies as far as the accommodation of non-liberal minori-ties, such as aboriginal peoples, is concerned. These are illustrated byCarens’s discussion of the demands by aboriginal peoples in Canada forgreater control over their lives. According to Carens, if a case can be madefor a right to self-government for the Québécois, then the same must applyto aboriginal peoples; ‘their political identities are clearly much moresharply distinct from Canadian citizenship than those of any other peoplewho live in Canada’ (2000: 172). For Carens, this degree of difference hasfar-reaching political consequences. Whatever the differences betweenFrench-speaking and English-speaking Canadians, both cultures arebroadly liberal and recognize the standard language of liberal rights andfreedoms. However, where difference runs deeper, as in the case of abor-iginal peoples, the language of liberal rights and freedoms may be perceivedby some minority communities as alien. Thus, for instance, while someCanadian aboriginal peoples, such as the Métis, have embraced theCanadian Charter of Rights and Freedoms introduced in 1982, other abor-iginal groups have argued that the Charter should not apply to them.Opponents of the Charter maintain that the typically liberal language ofindividual rights and freedoms is alien to their culture and tradition, whichemphasizes responsibilities and the wellbeing of the community. WhileCarens does not wish to simply endorse the view that the Charter shouldnot apply to aboriginal governments, he does recognize such a view aspotentially defensible and plausible. For Carens, principles of justice, likeall other principles, require ‘mediation, instantiation, embeddedness insome concrete social context’. Hence, in the ‘face of deep cultural


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differences within a state, it may be appropriate and even necessary to tryto construct alternative forms of mediation, forms more concurrent withnon-dominant cultures’ (2000: 190). Carens is therefore, in principle,sympathetic to the idea that aboriginal governments should be free to drawup their own Charter or that the Charter should only ‘apply to aboriginalgovernments as long as those governments have the same override powersas the Canadian federal and provincial governments’ (2000: 192). InCarens’s opinion, the latter is particularly difficult to object to. After all,fundamental rights and freedoms can be protected in a variety of ways and‘what will work best in a particular political context depends partly on thecharacter of the culture of the people whose rights and freedoms are beingprotected’ (2000: 192).


The demands for recognition and the multiple and crosscutting loyaltiesidentified by Taylor and Carens are by no means unique to Canada. Asnoted earlier, many liberal democracies have recently been confronted notonly with demands for cultural rights on the part of ethnic and religiousminorities, but have also witnessed challenges to the existing constitutionalarrangements that govern the relationship between the state and itsnational and cultural communities. The model of differentiated citizenshipadvocated by Taylor and Carens clearly constitutes an innovative responseto these challenges and avoids the difficulties associated with formalequality and a unitary model of citizenship. Yet, despite these strengths, thismodel of differentiated citizenship remains problematic on at least threecounts: first, collective rights that seek to guarantee the long-term survivalof a particular language or culture may ultimately remain at odds with theliberal ideals of equality, freedom and self-determination; second, theemphasis that these writers place upon the recognition of existing identitiesdoes not provide an adequate model for the struggles for recognition bysocial groups such as women; and, third, if national or cultural groupmembership is to be the primary focus of political identity, it is difficult tosee what common good the state will secure.

Although Taylor and Carens stress that their model of differentiatedcitizenship is compatible with liberalism, the liberal credentials of thisapproach are open to question. In the eyes of liberal critics, an emphasisupon ethnic identity and corporate cultural rights designed to securecultural survival is liable to generate a separatist mentality that is ‘incon-sistent with the ideals of freedom, equality and the ongoing, co-operativeand experimental search for truth and well-being’ (Rockerfeller, 1992: 92).Yet, for many liberals, these ideals are definitive of a liberal society. Carens


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acknowledges this point when he observes that the unitary model of citizen-ship does offer an ideal of equality that ‘provides grounds for criticisingpolicies and practices that exclude or marginalise distinct groups of citizens’(2000: 178). Not only is the closure with respect to outsiders, which tendsto accompany the consolidation of cultural identity, liable to impair thesense of solidarity that underpins the liberal commitment to equal dignityand universal rights, it may also threaten to undermine the freedom andautonomy of group members. As Habermas (1993: 131) notes, policies suchas the Québec language laws, which seek to guarantee the long-termsurvival of a particular cultural community, extend well beyond what couldbe justified as ‘just providing . . . a facility to already existing people’.Although the ‘primary justification for these laws is to ensure equal oppor-tunity for francophones against the economic and political pressure of theanglophone majority in Canada’, these laws also place restrictions uponmembers of the francophone community to use English (Kymlicka, 1995:205). For example, laws that stipulate that commercial signs must be inFrench and specify that children of French-speaking parents and immi-grants must attend French language schools restrict the availability ofEnglish language-based education and limit the use of English in certainspheres of life.8 Clearly, all states require a common language or two orthree official languages, and public schooling is typically only available inthe dominant language(s). Thus, while a liberal state cannot legitimatelyrestrict the right of immigrants to communicate in their first language, it canexpect immigrants and their children to learn the dominant language so asto enable them to participate in economic, social, cultural and political life.However, given that both English and French are official languages inCanada and that Québec is already obligated to provide publicly-fundedEnglish language-based schools for the children of anglophone parents, atypically liberal regard for individual freedom and autonomy arguablyentails that where the state is already committed to funding Englishlanguage-based schools, the children of French-speaking parents and immi-grants should be free to choose in which official language they wish to beeducated.9 After all, the children of anglophone parents living in Québecare free to attend French-speaking schools. While a commitment to indi-vidual freedom and autonomy entails that the state should protect thefrancophone community from the external economic and political pressureof the majority anglophone community by, for example, adopting measuresthat ensure francophones can speak French in the workplace, such acommitment is not readily compatible with measures that constrain theability of francophones to freely choose to speak English. Yet, if culturalsurvival is to be guaranteed, such restrictions are vital. To ensure long-termsurvival, a culture must systematically socialize future citizens into thelanguage, values and norms definitive of that culture. This is most easilyachieved if the choices of future citizens are restricted. However, such


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attempts to fix the identity of future generations are not readily compatiblewith the ideals of individual freedom and self-determination upon whichliberalism is premised. As Ripstein (1995: 333) observes, while keepingtraditions alive is one of the most abiding of human aspirations, ‘it is notclear that this is the sort of aspiration that liberals should be prepared touse the state to protect’.

Here, liberals are liable to be particularly fearful of the desire of non-liberal societies to preserve their traditional character. For example, whilethe long-term survival of certain religiously-based cultures may well requirestate intervention and protection to ensure that children continue to sharethe faith of their parents, liberals would surely not wish to use the powersof the state to enforce religious faith.10 Taylor seeks to address such fearsby distinguishing between ‘fundamental rights’ and ‘privileges and immu-nities’. However, fundamental liberal rights will always require interpre-tation. In a truly multicultural society, should the ‘right to freedom ofreligion’ be interpreted primarily in terms of the right of individuals toautonomously choose faith commitments or should it merely imply toler-ance of the faith of others? Taylor’s distinction cannot resolve these ques-tions.

Similar difficulties surround Carens’s insistence on the need to defineculture in an open-ended manner so as to guarantee equal citizenship toimmigrants and ensure that they can feel a genuine sense of belonging tothe community. Thus, in the case of Québec, Carens maintains that whilethe provincial government can legitimately insist upon the adoption of theFrench language as a shared cultural commitment, it should not privilegethe culture of the descendants of the French settlers of Québec. However,in practice, it may be difficult to distinguish between preserving the Frenchlanguage and upholding Québécois culture. After all, groups frequentlyseek to maintain their traditional language precisely because it plays animportant role in perpetuating the wider culture of the group.11 Although,from a liberal perspective, immigrants can legitimately be asked to acceptthe constitutional principles anchored in the wider political culture, theliberal principle of impartiality implies that they cannot be expected to takeon board the particular culture that prevails in a given country; on thecontrary, there has to be room for mutual adaptation. Thus, Habermas(1995), for example, distinguishes between the civic sense of a nation basedupon the common civic identity of a group of citizens and the particularethical discourses of subcultures. Although the ethical discourses of specificsubcultures provide the basis for and feed into the collective identity of aparticular nation, for Habermas the wider political culture must be de-coupled from the majority culture. While all liberal states inevitably reflectthe concerns of the social and cultural groups within their boundaries, thearrival of new ethnic groups should, in the long run, lead to changes in thepolitical identity of the state. This gives rise to an uncomfortable dilemma.


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If, in the case of Québec, the common cultural commitment could besuccessfully limited to the French language, it would be difficult to see whatwould remain of the Québec demand for distinctiveness and why Québecshould be entitled to restrict the freedom of citizens. If, on the other hand,a strong case can be made for a genuinely distinct French Canadian culturetied to a specific history and particular cultural practices, it is difficult to seehow, on liberal grounds, this identity can be tied in exclusively with theQuébec state.

A preoccupation with cultural identity may not only restrict the freedomof future generations and immigrants, but may also prove oppressive vis-a-vis existing group members. Even if individual rights are respected, a‘politics of cultural survival’ may lead to pressure being placed upon theindividuals to define themselves primarily in terms of their culturalmembership rather than a whole host of alternative criteria that may shapetheir identity. After all, our cultural identity constitutes only one influenceupon our conception of the good life. In modern societies, we all belong tomany distinct and sometimes opposing groups. Thus, our occupation, socialstatus and choice of neighbourhood all contribute to our sense of self andconception of the good life. In the face of such a range of possible sourcesof identity, a preoccupation with cultural membership may lead to an undueemphasis upon this aspect of the self.12 Such pressures upon individualmembers of a community become particularly troubling once the contestednature of cultural identity is recognized. While Taylor and Carens are sensi-tive to the diversity of differently constituted political societies, their visionof particular cultures remains quite homogeneous. For Taylor, the membersof a cultural community share meanings and values and are collectivelycommitted to the promotion of their particular conception of the good.Such an emphasis upon shared meanings and goals, however, appears tounderestimate the extent to which cultural identity will always remaininternally contested. As Houston (1998) observes, part of the difficulty herestems from the manner in which Taylor tends to conflate the constructionof individual identity and cultural identity. While the construction of indi-vidual identity presumes a constituting self, which generates a sense of unityby organizing diverse influences and roles into one narrative, culturalidentity lacks such a unifying centre. In the construction of cultural identity,there is no one nodal point. Hence, there simply is ‘no neutral referee tochoose a coherent logic between multiple competing narratives’ (Houston,1998: 238). The construction of cultural identity is therefore an inherentlypolitical process characterized by powerful intracultural struggles to deter-mine whose description is to count as authoritative. What is to be regardedas ‘shared inheritance’ is therefore always liable to remain to some degreecontested.

These worries regarding the contested nature of identity also highlight asecond problem inherent in the idea of differentiated citizenship, as


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advocated by Taylor and Carens. The emphasis that Taylor and Carensplace upon the recognition of particular distinctive cultural identities isclearly well placed to capture the character of modern nationalist politics.However, critics have questioned whether such an appeal to the recognitionof existing identities can provide an adequate model for the struggles forrecognition of social groups such as women. As critics such as Nicholson(1996) and Wolff (1992) have been quick to point out, in the case of women,it is precisely the recognition of their particular identity that is problematic.Historically, women have only too readily been recognized and defined interms of their gender. Consequently, in the case of women, the demands forrecognition do not primarily reflect a desire to have a particular way of liferecognized, but stem from an analysis of the ways in which ‘oppression wasmanifesting itself in terms of forms of descriptions and evaluations’ (Nichol-son, 1996: 6). These concerns about the nature of recognition are particu-larly troubling with regard to the recognition of cultural and religious groupswho do not endorse the liberal commitment to gender equality. Accordingto Carens, a commitment to a genuinely differentiated citizenship requiresthat liberal societies tolerate many of the gender differences inherent in theinternal cultures of religious, ethnic or national groups. While Taylor andCarens link the recognition of cultural identities to the liberal ideal of equalrespect, the comparatively low esteem in which women are held in suchcultures and the restrictions that cultural expectations place upon women’schoices and the kind of lives they should lead may well undermine women’sself respect.13 While Carens believes that the commitment to equalityinherent in a liberal public culture subverts patriarchal values, the worryremains that traditional communities may be able to resist such pressuresonly too well. Thus, cultural rights that seek to support and sustain existingcultural identities and practices may ultimately threaten rather thanpromote the kind of recognition that Wolff and Nicholson regard as centralto women’s identity politics. Some of the tensions here are illustrated by thedebate among aboriginal women in Canada regarding the Canadian Charterof Rights and Freedoms.14 Whereas some Canadian aboriginal women havesought to have their voices heard within aboriginal governments, othershave argued that the Canadian Charter should be applied directly to abor-iginal governments so as to protect women from a traditional male-domi-nated leadership insensitive to their rights and interests. While traditionalcommunities are clearly capable of adaptation and change, the emphasisthat Taylor and Carens place upon the recognition of existing identities failsto promote intragroup dialogue regarding current norms and values. Froma liberal perspective, the worry remains that, in the absence of mechanismsthat allow traditionally marginalized groups such as women to challengeexisting norms, attempts to mediate typically liberal rights and freedoms inthe light of the values and practices of traditional communities will under-mine key liberal commitments such as gender equality.


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Not only does the model of recognition advocated by Taylor and Carensfail to capture the aspirations of social groups such as women, but it is alsonot ideally placed to reflect some of the concerns of indigenous peoples,many of whom do not live in territorially-defined communities. While, forTaylor, modern nationalist politics, with its emphasis upon the recognitionof one’s particular distinct cultural identity, provides a model for identitypolitics in general, this preoccupation with the demands of national minori-ties gives rise to a conception of recognition that emphasizes separatism andterritorially-based self-government. However, indigenous peoples do nottend to see the right to self-government in the way that national minoritiestypically do; namely, as the right to secede. Thus, for instance, in the contextof discussions surrounding the UN Draft Declaration on the Rights ofIndigenous Peoples, indigenous delegates have stressed that self-determination does not need to imply separation or isolation, but entailscontrol over one’s own destiny and living in accordance with one’s ownvalues (Feldman, 2001). Rather than separate entitlements, this may entailmore effective participation in society as a whole.

In addition to these concerns regarding the liberal credentials of themodel of citizenship advanced by Taylor and Carens, it is questionablewhether a differentiated citizenship, which allows citizens to be incorpor-ated consociationally, will be able to generate bonds strong enough tosustain the state. Both Taylor and Carens maintain that, in the face ofgenuine cultural diversity, a differentiated citizenship is more likely topromote civic integration than the conventional unitary model. Thus, forTaylor (1993: 183), ‘deep diversity is the only formula on which a unitedfederal Canada can be rebuilt’. Yet, as Horton (1998) notes, if the primaryidentity of citizens is as members of their national community, it is difficultto see what common good the federation will secure. Although an alliancecan promote law and order, security and common provisions and may wellbe of instrumental benefit to the various national communities that consti-tute it, Taylor himself recognizes that ‘securing common goods in this senseis not sufficient to make them a single people’ (Horton, 1998: 170). While,in good times, it may not matter if the allegiance to the state is based onpurely instrumental considerations, ‘in times of crisis . . . citizens of this sorttend to prefer exit over loyalty or voice’ (Canovan, 1996: 86). Even thougha modern state can afford a purely instrumental allegiance on the part ofsome citizens, it may struggle to sustain itself should such an attitudebecome widespread. ‘Consumer loyalty’ does not provide a strong enoughbasis for political power. The preoccupation with Québec leads Taylor andCarens to underestimate the difficulties in maintaining a genuinely differ-entiated citizenship. While English-speaking Canada and Québec differwith regard to certain collective goals, both share a broad range of culturalcommitments, including important liberal values such as the recognition offundamental individual rights and freedoms.15 Yet, in deeply diverse


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societies where such a sense of a genuine common purpose over and abovethe purely instrumental is absent, a federation that recognizes deep diver-sity will be difficult to maintain in the long run.


While the conception of differentiated citizenship advocated by Taylor andCarens recognizes multiple forms of belonging and can accommodate over-lapping identities and citizenships, the difficulties that surround this modelhighlight the dilemma that confronts many modern states. The modernstate can only secure legitimacy if all citizens are shown equal respect andare able to participate in the political process on equal terms. If this is tobe achieved, the different histories, needs and goals of the variouscommunities that constitute the state must be acknowledged. Yet, at thesame time, a multicultural society must develop a genuinely shared culture.If such a culture is to provide a basis for civic integration and mutuality, itmust be based upon more than purely instrumental considerations. Whilethe collective rights advanced by Taylor and Carens are well placed toaccommodate the demands for recognition by many national and culturalminorities, such rights risk reinforcing differences between communitiesand thus may undermine attempts to develop a shared culture and an over-arching national identity. Hence, attempts to secure the long-term survivalof a language or culture via collective rights not only remain problematicfrom a liberal perspective, but also threaten to give rise to fragmentationand political instability. These worries are reinforced by the multifacetednature of demands for recognition. Not all such demands can be easilyreconciled. The tensions between the aspirations of women for greatergender equality and the desires of traditional communities to perpetuatetheir way of life pose a complex dilemma to those seeking a differentiatedcitizenship.

These difficult questions surrounding political stability and the equalityof citizens cannot be easily resolved. However, one potentially promisingavenue is indicated by Parekh’s (2000) emphasis upon interculturaldialogue. While, in a multicultural society, the recognition of diversity mayentail granting some minorities collective cultural rights and may requireinstitutional arrangements that are sensitive to the differentiated politicalidentities that constitute the state, such a differentiated citizenship must beaccompanied by an open-minded, morally serious dialogue between themajority and the minority. Such dialogue must search for common groundand aim at mutual adaptation. In this search, neither majority nor minoritycan expect all their existing cultural practices to remain unchanged. Where


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the current practices of the majority and minority conflict, interculturaldialogue must probe the nature and importance of existing cultural prac-tices and must encourage reflection and debate not only between com-munities, but also within the various communities themselves. Thus,communities must consider whether contentious cultural practices areessential to their way of life or whether they could safely be abandoned.For example, on Parekh’s account, many of the most contentious culturalpractices regarding the treatment of women, such as female circumcision,are arguably not essential to the way of life and values of the cultures thatpractice them and therefore could be abandoned without threatening thesurvival of these cultures. To promote such serious intercultural dialogue,states will have to develop institutional mechanisms that facilitate exchangebetween minority and majority and actively encourage reflection uponexisting practices. Although the model of deep diversity advocated byTaylor and Carens recognizes cultural rights and divides jurisdictionbetween several actors, it is not particularly well placed to promotedialogue and mutual adaptation. Since deep diversity divides jurisdictioninto separate, but quite self-contained units, it allows groups to accumulateauthority over all aspects of members’ behaviour relating to its area of juris-diction. This may well encourage groups to exacerbate their differencesrather than seek mutual adaptation.

The design of institutions that can promote intercultural dialogue clearlyposes a complex problem and, given the diversity of demands for recog-nition, will require a range of institutional responses.16 However, at leastsome questions regarding the mediation of individual rights and certainintergroup and intragroup power relations can potentially be addressedthrough innovative models of joint governance such as ‘transformativeaccommodation’, as developed by Ayelet Shachar (2001). As Shacharnotes, many contested social areas, like family law or criminal justice, areinternally divisible into distinct, yet interdependent, submatters or func-tions. On the model of transformative accommodation, both the minoritygroup and the state are given authority over part of the submatter, butneither is allowed to control all aspects of the contested social area. Forexample, in the case of marriage, the minority group may manage thedemarcatory function, which controls changes in marital status and entitle-ment to community membership, whereas the state regulates the distribu-tive function, which includes the rights and obligations of marriage partnersand economic and custodial matters. Similarly, in criminal law, the statemay be responsible for establishing whether a person is guilty whereas theminority community determines sentencing via mechanisms such assentencing or healing circles.17 To take account of the power asymmetrybetween the state and the minority group, the presumptions in the negoti-ations regarding the initial allocation of areas of authority should be infavour of the group. Thus, the group may, for example, be given the


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opportunity of setting the agenda for negotiations or it may be givenpriority in the allocation of the submatter it regards as the most crucial.18

Since a legal dispute in a particular social area can only be fully resolved ifthese submatters are addressed together, neither party has completecontrol over its members. Therefore, in contrast to the model of deep diver-sity advocated by Taylor and Carens, transformative accommodation‘allows standards from a range of sources to govern the matters arising ina social area simultaneously’ (Shachar, 2001: 125–6). Such an arrangementpromotes dialogue and cooperation between the state and the minoritygroup and encourages both parties to reflect upon their values and to beresponsive to the needs of their members. Furthermore, it relieves thepressure upon individuals to define themselves primarily in terms of theircultural identity.

These features are reinforced via the final characteristic of transforma-tive accommodation: the establishment of clearly delineated choice options.At predefined reversal points, individuals are to be given the choicewhether to remain within the jurisdictional authority of the original power-holder. On this model, individuals are justified in ‘opting out’ if the currentpowerholder in a particular submatter systematically fails to address theirconcerns. Such reversal options allow individuals to bring pressure to bearon the groups that represent them and thus create a strong incentive forpowerholders to address in-group problems. For instance, if the rules ofdivorce systematically discriminate against women by granting husbandsthe right to unilaterally divorce their wives or by insisting that, in order toobtain a divorce, a wife must gain the consent of her husband, women maychoose to ‘opt out’ of the group’s jurisdiction in this particular matter.19

Similarly, members of the community who are discriminated against in theallocation of benefits administered by the community, such as health careor education, may appeal to the state for redress. Since such an ‘opt out’ orpartial exit only applies to a particular issue, vulnerable group members donot have to give up their overall group membership in order to seek redress.At the same time, groups have a strong incentive not to risk alienating theirmembers. Consequently, groups may decide to reinterpret the existing ruleto accommodate the concerns of disaffected members. Transformativeaccommodation therefore offers a more flexible approach to the allocationof authority than Taylor’s and Carens’s model of deep diversity. Such aflexible approach helps to ensure that the public recognition of differencesdoes not lead to the ossification of cultures, discourages elites within groupsfrom insisting upon group-differentiated rights, when these are no longerdesired by ordinary group members, and recognizes the potential tensionbetween the aspirations of women for greater gender equality and thedesires of traditional communities to perpetuate their way of life. Trans-formative accommodation therefore seeks to transform both intergrouprelations between minority and majority and intragroup relations between


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powerful and traditionally marginalized sections of the group by promot-ing a sense of cooperation and dialogue.

The manner in which transformative accommodation combines grouprights and the protection of individual liberties makes a potentially promis-ing model for exploring some of the difficult questions surroundingpolitical stability and the equality of citizens in culturally diverse societies.However, while this model is well placed to accommodate some of theconcerns expressed by potentially vulnerable group members such aswomen and certain demands by indigenous peoples for greater controlover the resources and policies that affect their way of life, it is not suitablein all areas. For example, it is not well suited to disputes concerningchildren, since, as minors, children are not able to exercise the choiceoption. Given that many disputes in culturally diverse societies centreupon the upbringing, treatment and education of children, this is poten-tially an important limitation. More significantly still, transformativeaccommodation is not well suited to territorially-defined demands forrecognition such as the claims of national minorities like the Québécois.However, given the complexity of the demands associated with claims forrecognition, no one institutional mechanism is likely to provide a suitablemodel for all cases.


The model of differentiated citizenship advocated by Taylor and Carensrepresents an innovative response to the challenges posed by calls forcultural recognition on the part of ethnic and religious minorities andcampaigns by national minorities for greater regional autonomy. However,although this approach addresses many of the limitations of the dominantunitary model of the nation state, the difficulties inherent in the idea ofdeep diversity suggest that, if models of differentiated citizenship are tosucceed, they must address complex questions surrounding politicalstability and the equality of citizens. While these questions can potentiallybe addressed through open-minded, morally serious intercultural dialogue,such dialogue requires institutional mechanisms that facilitate exchangesbetween minority and majority and encourage reflection upon existingpractices. Some questions relating to the mediation of individual rights andcertain intergroup and intragroup power relations can be addressed viainnovative models of joint governance such as transformative accommo-dation, yet even such imaginative responses cannot provide a solution in allcontested cases. In particular, such models cannot address territorially-based claims for recognition such as the demands of national minorities.Many modern states will therefore have to continue to face the dilemma of


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how to combine the search for a shared culture with a recognition of thedifferent histories, goals and needs of the communities that constitute them.


1 Typical examples of civic nationalism include the ‘Verfassungspatriotismus’,which was ‘adopted in Germany to refer to a loyalty to the liberal democraticconstitution of the post-war Federal Republic’ (Canovan, 1996: 87), and the‘republican patriotism’ associated with American nation-building. Such civicnationalism may in practice prove more ‘homogenizing’ than ethnic variants.While the belief that members of the nation naturally belong together may giverise to some quite relaxed views regarding allegiance, civic nationalists will beanxious to educate citizens into respect for the constitution and to instill loyaltyand respect for the key values and principles enshrined in the constitution.

2 For example, Maori in New Zealand have invoked the Treaty of Waitangi toestablish claims to ancestral lands while, in Australia, the 1992 High Courtjudgement in the Mabo case recognized the principle of indigenous land rights.Similar legal challenges have been mounted in Canada (see the Delgamukwcase in British Columbia). For a discussion of these cases, see Durie (1995) andWilson and Yeatman (1995). See also May (2001: Ch. 8).

3 See, for example, demands by Muslim girls in France to wear headscarves (orthe hijab) in the classroom (Galeotti, 1994; Moruzzi, 1994); the exemption frommandatory high school attendance of Amish children in the US (Galstone,1995); and attempts by ‘born again’ Christians in Tennessee to withdraw theirchildren from a school reading programme, the contents of which they regardas inhospitable to their beliefs (Macedo, 1995).

4 Thus, in the US, the Supreme Court has upheld the right of the Amish to keeptheir children out of local high schools (Wisconsin v. Yoder, 1972), while NewZealand recognizes claims by the Maori to ancestral land.

5 While Habermas (1993) supports rights to cultural membership, he stresses thatthis does not imply that we should seek to preserve cultures in the same mannerin which we may attempt to preserve endangered species. Cultural rights arelegitimate only when exercised as individual liberties. While the constitutionalstate should ensure that the reproduction of particular lifeworlds remainspossible, it is up to the members of a particular society or cultural group todecide whether they want to preserve their cultural heritage. For Habermas,cultures and traditions only deserve protection in as far as they promote thewellbeing and freedom of individuals. Individual members of a cultural groupmust therefore be free to question existing cultural practices, traditions andidentities. Thus, individual autonomy provides the rationale for, and sets thelimits to, rights to cultural recognition. For Habermas, cultural rights arevaluable because they provide citizens with meaningful cultural choices andensure that individuals are not discriminated against for the lifestyle theychoose. Habermas’s approach echoes Kymlicka’s distinction between internaland external protections. While the former deals with the relationship betweenthe group and its own members, the latter involves the claims of a group againstthe larger society. Since, according to Kymlicka, liberals value cultural


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membership because it enables individuals effectively to exercise autonomy,groups may not seek to place internal restrictions on their members. Suchrestrictions would undermine individual freedom and are therefore notcompatible with liberal principles.

6 The Canadian mosaic is frequently contrasted with the US ideal of a ‘meltingpot’. While the American model of a melting pot seeks to assimilate or integrateimmigrants into the wider US culture, the mosaic approach reflects a concep-tion of Canadian society as multilingual, multinational and multicultural (seeBader, 1997).

7 It is important to ensure that the constitutional arrangements reflect the actualpreferences of ordinary citizens rather than the desires of the political elites ofgiven groups. As Margaret Moore (2001: 118) notes, provincial elites in English-speaking Canada have been engaged in elite-driven province-building, ‘whichis out of step with the desires and aspirations of most (English-speaking)Canadians, who identify with the central government’. While provincial leadersin Alberta, British Columbia, Ontario and elsewhere have demanded the samerights as Québec, opinion polls indicate that English-speaking Canadians wouldprefer a stronger role for the central Canadian government.

8 Indeed, it is precisely these measures that have proved particularly contro-versial. In 1984, the Canadian Supreme Court ruled that, in addition to theprovisions for English-language education in the original bill, ‘children whoseparents had received elementary instruction in English anywhere in Canada,and the siblings of a child who had received, or was receiving, elementary orsecondary instruction in English in Canada, could also attend English-languageschools in Quebec’ (May, 2001: 229). Furthermore, in Ford v. Quebec (1988),the Supreme Court ruled that the commercial signage restriction was discrimi-natory (May, 2001).

9 Supporters of the Québec language laws, such as May (2001), contend thatthese laws are not as exclusionary as they first appear. May argues that accessto English is not being denied, since English remains the dominant language inCanada, which ensures that francophones are invariably bilingual in English.Furthermore, advocates of these laws stress ‘that the only way that individualbilingualism can be maintained and fostered is by, counterintuitively, settingstrict limits on the extent of institutional bilingualism’ (2001: 231). Finally, May(2003) notes that to compel children to learn a minority language constitutesonly one of many constraints placed upon children’s education. However, theseconsiderations arguably do not provide a conclusive case against allowingchildren of French-speaking parents or immigrants to choose to attend English-speaking schools. If we accept that the dominance of English in Canada ensuresthat francophones are bilingual in French, then, by the same token, thedominance of French in Québec will ensure that even children who attendEnglish-speaking schools will develop a good competence in French. Yet, evenif such a policy would in the long run undermine bilingualism, the right ofmembers to exit the group must be respected on liberal grounds. Once the statehas taken steps to protect the minority from the external pressures ofthe majority, members of the minority must be free to choose to leave theirgroup. To attempt to enshrine bilingualism by fixing the identity of future gener-ations is not readily compatible with the ideals of individual freedom and


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self-determination upon which liberalism is premised. Finally, while childrenwill inevitably be subject to a whole range of constraints upon their educationalchoices, liberals will be concerned to keep such constraints to a minimum.

10 See, for example, the cases discussed by Galstone (1995) and Macedo (1995).11 The ‘traditionally associated language reflects and conveys its culture more

felicitously and succinctly than other languages’, shapes the customary thinkingof the group and symbolically represents the ethnic or national group (May,2001: 133). For a more detailed discussion of the link between culture andlanguage, see May (2001: 132–5).

12 According to Rorty (1994), in the context of the American multiculturalismdebate, members of the Jewish American and African American communitieshave been pressurized by their communities to define themselves primarily interms of their cultural identity. These communities tend to expect theirmembers actively to participate in promoting specific policies associated withJewish or black interests and to vote along ethnic lines. This is not to deny thatmembers of minorities are also subject to external pressures to define them-selves in terms of their cultural or ethnic group. Undoubtedly, given the salienceof race in the US, African Americans are subject to considerable externalpressures to define themselves as black. From a liberal perspective, bothinternal and external pressures constitute an infringement of internal liberty.

13 A number of feminist writers have expressed concern about the degree to whichrecognition of cultural and religious diversity is compatible with a commitmentto gender equality. See, for example, Nussbaum (1999) and Okin (1999). Inresponse to such concerns, advocates of cultural rights, such as Kymlicka (1999),have stressed that, although the internal restrictions that most cultures placeupon women are problematic, feminism and multiculturalism nonetheless shareimportant common concerns. Both draw attention to the structure of societalinstitutions, both are critical of traditional liberal notions of citizenship andboth argue that genuine equality requires group-specific rights.

14 See Carens (2000) and Tully (1995). While this example highlights some of thepotential tensions between the aspirations of women for greater genderequality and the desire of communities to perpetuate their way of life, this is,of course, not to suggest that all aboriginal groups are illiberal towards women.

15 Similarly, the English and the Scots in the UK and the Catalans and Castiliansin Spain continue to share important cultural commitments. This is, of course,not to suggest that a common national identity in itself is sufficient to ensurethat the public institutions of a state function effectively. To do this, a state willalso have to secure law and order and a range of instrumental goods.

16 Shane O’Neill (this issue), for example, explores the idea of a binational consti-tution as a form of joint sovereignty. Another avenue is indicated by the inter-national indigenous peoples’ movement, which has sought to challenge existingpolitical boundaries through direct access to and participation within the UN(see Feldman, 2001; Thornberry, 2002). These efforts have given rise to muchgreater sensitivity to the concerns of indigenous peoples. The UN, for example,is currently considering a Draft Declaration on the Rights of IndigenousPeoples, which recognizes the right to self-determination and demands thatstates observe a range of collective rights, respect indigenous autonomy andcustomary law and institutions, protect the people from genocide and


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ethnocide, abstain from removing them from their lands and territories, respecttheir traditions and indigenous knowledge, educate them in their ownlanguages, restore and protect the environment, respect indigenous citizenshipand allow international adjudication of treaties and agreements between statesand the indigenous. (Thornberry, 2002: 521)

As Thornberry notes, while international human rights texts recognize thelink between persons and community, they eschew corporate conceptions ofrights; that is, rights held by the group as such against outsiders and its ownmembers. Consequently, these rights fall short of the notion of deep diversityproposed by Taylor and Carens.

17 To fall under the jurisdiction of a sentencing circle, the offender must consentto the procedure and must have deep roots in the community. As Shachar notes,North American aboriginal communities historically relied upon a range ofmeasures to maintain order, including ostracism, censure and ridicule. Giventhat criminal statistics in Canada, Australia and New Zealand suggest that abor-iginal peoples are overrepresented in charges laid, court appearances and ratesof incarceration, aboriginal peoples clearly have an interest in the operation andadministration of the criminal justice system.

18 Clearly, intercultural dialogue will only promote dialogue and mutual adap-tation if majorities are willing to make meaningful accommodations to minori-ties. Given the current disparities in power between minority and majoritygroups, it is frequently difficult to ensure such genuine dialogue. Feldman(2001), for example, argues that state responses to attempts by indigenouspeoples to challenge the dominant construction of the nation state exemplifyan anti-dialogic stance. In the light of these difficulties, the initial presumptionsin negotiations should favour minorities.

19 For example, under the Muslim form of divorce known as the talaq, a husbandmay unilaterally divorce his wife without recourse to any court or extraneousauthority while, under Orthodox Jewish law, a woman can only gain a divorceif her husband gives her a get (or consent to divorce) while a man can obtain adivorce without his wife’s consent.


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ANDREA BAUMEISTER is a senior lecturer in the department ofpolitics at the University of Stirling and author of Liberalism and the‘Politics of Difference’ (Edinburgh University Press, 2000). Her currentresearch focuses on the dilemma that multicultural citizenship poses forliberal democracies and feminist attempts to reconceptualize citizenshipin the light of the ‘politics of difference’. Address: Department of Politics,University of Stirling, Stirling FK9 5SG, Scotland. [email: [email protected]]