A Liberal Theory of Collective Rights 9780773552487

Table of contents :
Cover
A LIBERAL THEORY OF COLLECTVE RIGHTS
Title
Copyright
Contents
Acknowledgments
1 Peoples in Multination States
2 Liberalism and Collective Rights
3 Rights, Recognition, and Political Liberalism
4 The Value of Cultural Diversity
5 The Universality of Political Liberalism
6 A Liberal Theory of Collective Rights
7 The Subjects of Collective Rights
8 Objects of Collective Rights
9 The Institutionalization of Collective Rights
Conclusion
Glossary
Notes
References
Index

Citation preview

Preface

a liberal theory of collectve rights

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Preface

democracy, diversity, and citizen engagement series Series editor: Alain-G. Gagnon

With the twenty-first-century world struggling to address various forms of conflict and new types of political and cultural claims, the Democracy, Diversity, and Citizen Engagement Series revitalizes research in the fields of nationalism, federalism, and cosmopolitanism, and examines the interactions between ethnicity, identity, and politics. Works published in this series are concerned with the theme of representation – of citizens and of interests – and how these ideas are defended at local and global levels that are increasingly converging. Further, the series advances and advocates new public policies and social projects with a view to creating change and accommodating diversity in its many expressions. In doing so, the series instills democratic practices in meaningful new ways by studying key subjects such as the mobilization of citizens, groups, communities, and nations, and the advancement of social justice and political stability. Under the leadership of the Interdisciplinary Research Centre on Diversity and Democracy, this series creates a forum where current research on democracy, diversity, and citizen engagement can be examined within the context of the study of nations as well as of nations divided by state frontiers. 1 The Parliaments of Autonomous Nations Edited by Guy Laforest and André Lecours 2 A Liberal Theory of Collective Rights Michel Seymour

Preface

A Liberal Theory of Collective Rights edited by M I CH EL SEY M OU R

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

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© McGill-Queen’s University Press 2017 isbn 978-0-7735-5116-9 (cloth) isbn 978-0-7735-5117-6 (paper) isbn 978-0-7735-5248-7 (epdf) isbn 978-0-7735-5249-4 (epub) Legal deposit fourth quarter 2017 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% postconsumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Seymour, Michel, 1954–, author A liberal theory of collective rights / Michel Seymour. (Democracy, diversity, and citizen engagement series ; 2) Includes bibliographical references and index. Issued in print and electronic formats. isbn 978-0-7735-5116-9 (cloth). – isbn 978-0-7735-5117-6 (paper). – isbn 978-0-7735-5248-7 (epdf). – isbn 978-0-7735-5249-4 (epub) 1. Group rights. 2. Rawls, John, 1921–2002 – Political and social views. I. Title. II. Series: Democracy, diversity, and citizen engagement series ; 2 k3240.s49 2017

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Preface

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Contents

Acknowledgments

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Peoples in Multination States

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Liberalism and Collective Rights

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Rights, Recognition, and Political Liberalism

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The Value of Cultural Diversity

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The Universality of Political Liberalism

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A Liberal Theory of Collective Rights

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The Subjects of Collective Rights

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Objects of Collective Rights

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The Institutionalization of Collective Rights Conclusion Glossary Notes

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References Index

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Acknowledgments

This work is the result of a long process that began with my French book De la tolérance à la reconnaissance (Boréal 2008). It was then translated into English by Mary Baker. I thank her for her professionalism and the high quality of her translation. Since then, it has undergone very important modifications. I still argue that political liberalism, as developed by John Rawls, offers a hospitable theoretical framework for a theory of collective rights applied to peoples. However, very deep changes were made to the overall argument. The most important one concerns my interpretation of the fundamental liberal principle according to Rawls. I now think that toleration as respect for the sake of political stability explains the new orientations taken by Rawls in Political Liberalism. Large parts of the work were completely rewritten, taking into consideration the new philosophical orientation that my work was undertaking. Some chapters were removed, others were added. Many changes took place, whether in expanded arguments, modifications, simplifications, or corrections. The result is a completely new book. I thank the anonymous referees for their comments. I also want to thank my assistant, Jérôme Gosselin-Tapp, for his help in preparing the manuscript. Many institutions have backed this project. I wish to thank the Secrétariat aux affaires intergouvernementales canadiennes, who gave initial and indispensable support. I also wish to thank the Centre de recherche interuniversitaire sur la diversité et la démocratie (cridaq) and its director, Alain-G. Gagnon, for his financial help and moral support. I have also benefitted from a research grant from the Social Sciences and Humanities Research Council of Canada. The book has also been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and

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Humanities Research Council of Canada. I also want to thank Simon Morin, who prepared the index. Finally, I wish to thank Jacqueline Mason and Ryan Van Huijstee, respectively editor and managing editor at McGill-Queen’s University Press, for their efficiency and patience.

Peoples in Multination States

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The Catalan Parliament

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1 Peoples in Multination States

This book aims to provide an account of collective rights for peoples. I intend to develop an approach that is liberal in spirit and yet able to recognize the existence of groups as subjects of collective rights. Later in the book I shall consider an argument purporting to show that only peoples and minority fragments of peoples are entitled to collective rights, but the central feature of the account is that it challenges the standard liberal approach based on ethical individualism. The most important contributions to the theory of collective rights are those of Charles Taylor and Will Kymlicka, but these accounts derive collective rights from individualistic premises. As we shall see, these theories are plagued with many difficulties. My own approach shall be to rely on Rawls’s political liberalism. However, before examining the theoretical differences between these accounts in general and the different treatments of collective rights that they entail, it is important to have a clear idea about the usefulness, relevance, and purpose of the whole enterprise. Why should we be inclined in the first place to develop a liberal theory of collective rights for peoples? Everyone agrees (well, almost everyone) that there are peoples. That is, we are committed to the existence of peoples, whatever they are. The Canadian people exists, the British people exists, and the Spanish people exists. But this is also true of peoples contained within them. So the Quebec people, the Acadian people, and the Indigenous peoples of Canada also exist. The Scottish and Welsh peoples also exist in Great Britain. The Galician people, the Basque people, the Catalonian people, among others, also exist in Spain. However, in the minds of politicians, political scientists, jurists, and philosophers who are still influenced by the Westphalian conception of international relations, the

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only acceptable political model is that of the traditional nation-state, that is, a state in which there is only one people or a people organized into a state. So they tend to ignore the existence of stateless peoples within the state. We still do not have a universal agreement on the normative principles that would acknowledge the existence of peoples not enjoying their own sovereign state. We tend to believe that in order to exist as a people in the civic and thus inclusive sense, the population has to be composed of the citizens comprising a sovereign state. Stateless peoples, that is, peoples that do not have a sovereign state, tend to be assimilated with “ethnic minorities.” The term here is of course often used in a pejorative sense. Ethnic minorities enjoy few rights in international law. The only protection comes from the International Covenant on Civil and Political Rights.1 It is often argued that their main protection is secured by Article 27 of the covenant.2 However, if I am right, this view is wrong-headed. We have to acknowledge the existence of stateless peoples. These peoples may very often be numerical “minorities” – a notable exception is the Flemish people of Belgium – nevertheless they cannot be assimilated with the “minorities” referred to in international law, for they are peoples. Neither are they necessarily “ethnic,” for they are often enriched by the presence of immigrant groups and thus are themselves multi-ethnic. So what should we do about stateless peoples? What problem must we solve? Specifically, why should the very existence of many peoples within a single state constitute a problem? These questions come with at least three others. Which populations are already acknowledged as peoples? Even more pressing is the question of trying to define peoples. So what does it mean to be a people? And finally, what should we do in order to resolve the problem concerning the existence of many different peoples within a single state? I shall very briefly try to answer all these questions in this introductory chapter. If we understand the problem and are able to identify peoples that are already recognized and those that should be recognized on the basis of a good definition, perhaps we shall be in a better position to answer the question of what we should do about stateless peoples.

what is the problem? Supposing that stateless peoples exist, no matter how we choose to define them for the time being, what is the problem to be solved? The

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presence of many different peoples within a single state creates a problem because a people cannot be asked to renounce becoming a sovereign state and at the same time renounce being recognized by the encompassing state, that is, by the multination state in which it is incorporated. It is unjust that some peoples enjoy full sovereignty and full international recognition while other peoples do not have their sovereign state and are not even recognized by the encompassing state. This clearly runs counter to our intuition that all peoples should in some sense be equal. There are only 193 sovereign states in the world, but there are far more peoples than that. Some say that there are thousands of peoples all over the world. So most states contain many different peoples. Indeed, most states are multination states. There are thus many stateless peoples in those states and this poses an enormous challenge. To repeat it crudely and succinctly, the problem is that a people cannot be asked to renounce sovereignty and, in addition, also renounce recognition. On the basis of this claim, a normative argument can be formulated. It is presupposed that (1) peoples need to be recognized. Since it must be admitted that (2) they must be recognized by the international community in order to perform the actions of a sovereign state, (3) stateless peoples should also be recognized by the multination state. Just as peoples can perform the actions of a sovereign state and thus truly exercise their right to external self-determination only if they are recognized by the international community, a stateless people can exercise its internal self-determination only if it is recognized by the encompassing state. There are many claims made in these emphatic statements that must be discussed. We may want to criticize the view that peoples need to be recognized by the encompassing state. We may also try to dissolve, countenance, or counter the difficulty created by the presence of many stateless peoples within the state. Why should the very existence of many peoples within a single state constitute a problem? Finally, it may be wondered what is meant by the word people.

why recognition? Individual persons need to be recognized. They need to be recognized by significant others in their intimate relationships, benefitting from the care, attention, or emotional involvement of parents, friends, and lovers. They also need to be recognized in society as equal citizens enjoying certain rights. Finally, they need to be recognized in the working

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place as professionals who have specific abilities. A person with no recognition whatsoever is only half a person. We seek recognition in our intimate relationships, in a system of rights and liberties, and at work.3 Just like individuals, peoples need to be recognized. This is so, for instance, when a people becomes sovereign. The recognition by the international community is an indispensable condition that a people must meet, not in order to achieve sovereignty in accordance with international law, but in order to perform the actions of a nation-state. Similarly, stateless peoples should benefit from the same kind of recognition from the encompassing state. Recognition by the multination state of its component peoples would help them exercise their self-determination. By the same token, it could also be crucial for the stability, viability, and legitimacy of the multination state. So the problem caused by the existence of stateless peoples is that they not only fail to achieve appropriate autonomy. They also fail to be recognized by the encompassing state.

is there really a problem? Why don’t we simply allow all peoples to become sovereign states? In order to avoid the problem, the solution might indeed be to allow stateless peoples to have their own sovereign state. After all, theoretically speaking, this would be an easy way out of the difficulty. This answer presupposes the traditional concept of nationalism. Ernest Gellner describes nationalism as based on the nationality principle, according to which the frontiers of the people must coincide with the frontiers of the state (Gellner 1983). In other words, each people must have its own state. There is also the alternative and somewhat milder principle according to which each people should, at least in principle, be entitled to have its own state and enjoy the right to have its own state. This more modest version does not imply that each people must have its own state. In some cases, it could be better if the people chose an alternative solution.4 However, from a practical point of view, the idea that each people must have its own state or have a prima facie right to become sovereign is radical and carries with it insuperable difficulties of application. It is indeed hard to imagine what would happen if all peoples were engaged in acquiring their own state. There would be global turmoil. We would witness violence on a wide scale. Radical geopolitical changes would have to occur. So to put it mildly, this first solution does appear to be unpractical and should therefore be rejected.

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But there is an even more pragmatic argument to consider. I do not accept the principle according to which the frontiers of peoples and the frontiers of sovereign states must be the same. I reject this traditional version of nationalism and thus the nationalist principle. But even if we were to accept the principle as a norm that must be implemented, we would still have to admit that this state of affairs is not about to occur. Imagine what would happen if the total number of states were to increase significantly and reach 400 by the end of this century. This would be twice as many as the actual number of states (193). A revolution would have to take place. Even then, these states would still have to accommodate hundreds of other stateless peoples. So it is perhaps important to look for alternatives to the traditional single nation-state, because whatever happens in the future, if not for many centuries to come, there will remain hundreds of stateless peoples to accommodate, acknowledge, and recognize. We should therefore perhaps try to think about the conditions that could guarantee the future legitimacy, viability, and stability of multinational states and thus the possibility of implementing a politics of “recognition” for the constitutive peoples of multination states. One traditional objection to this idea is that a fundamental distinction must be made between a civic concept of people and an ethnic concept of people. It is usually thought that the former concept is legitimate and that the ethnic concept is not. It is then assumed that all stateless peoples are ethnic, while sovereign peoples are civic. The conclusion is that the state should not implement a politics of recognition for ethnic minorities. Of course these claims are extremely controversial and for many different reasons. It is first assumed that there is no legitimacy in ethnic peoples. However, there are, for instance, many indigenous peoples that can be described as ethnically homogeneous or that at least entertain a national self-representation of themselves as ethnic peoples, without deserving to be accused of any ethnocentrism, xenophobia, or racism. Ethnic peoples are not necessarily aggressive and can in principle respect other peoples. Second, stateless peoples are not necessarily ethnically homogeneous. Some stateless peoples are multi-ethnic and multicultural. They can be inclusive of minorities and respectful of these minorities. Third, the so-called civic peoples of a sovereign nation state may, as a matter of fact, put forward policies, institutional rules, and constitutional principles that are made-to-measure for an ethnic majority and are detrimental for minorities. In other words, the ethnic

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majority may influence the sovereign state into implementing ethnocentric policies. So the appeal to the distinction between ethnic and civic peoples is problematic if it is meant to discard the demands for recognition of constitutive stateless peoples. It certainly cannot be used by the state in order to remove itself from the responsibility to create favourable conditions for the self-determination of these peoples. There is, however, another line of attack against the idea of having to recognize stateless peoples. It presents itself as a less radical objection. It is simply suggested that there may be something good in a politics of recognition but that, at the same time, the groups that are recognized on the basis of their ethnic origin can also be stigmatized by the very act of recognition. Recognition, it is argued, is a double-edged sword. It can identify a minority that has been badly treated within society but it can also place additional burden upon that group. The suggestion is that one should be ambivalent concerning a politics of recognition, because it stigmatizes as much as it recognizes. At first blush, there is a grain of truth in such a claim, but one should realize that the very first stigmatization occurs as soon as one decides to represent all stateless peoples in ethnic terms. It must be observed that the ethnic/civic dichotomy also forces itself into that argument, by implying that recognition is to be offered to a subgroup only if that group can be identified in ethnic terms, that is, on the basis of ethnic origin. Understood in this way, recognition is automatically associated with an approach that is couched in less-than-civic terms. It is assumed that since the subgroup cannot claim to be distinctively characterized by the common citizenship that its members share with the rest of the community, its distinctiveness can be captured only in ethnic terms. Asking for recognition for a national group is thus equated with acknowledgment of ethnic origin. However, it can be replied that the most important stigmatization comes from imposing the ethnic/civic dichotomy when we consider recognizing stateless peoples. The ambivalence towards a politics of recognition occurs only because we have chosen to stigmatize stateless peoples as groups with a specific ethnic origin. We have decided that demanding recognition requires acknowledgment of one’s ethnic origin. Perhaps a violence occurs as soon as we decide to interpret all demands for recognition in this narrow-minded way. A third and final criticism that I wish to consider very briefly against a politics of recognition is based upon an opposite worry, for it is direct-

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ed at the civic component of the ethnic/civic dichotomy. We are told that if recognition is couched in civic terms, we run the risk of forcing peoples into a particular legal system that has been created against them and that we are imposing upon them. This is particularly the case for indigenous peoples. In Canada, for instance, the Indian Act can be described as some sort of “recognition,” but it is paternalistic and plays against the very self-determination of indigenous peoples. Indeed, a system of apartheid is a certain kind of “legal” recognition, but it remains a racist legal system. Indeed, it may be wondered whether there is any usefulness in a recognition that forces the minority nation into a legal straitjacket. The solution is perhaps to accept that the right to choose one’s own constitution is a component of the right to self-determination, so that, among other things, indigenous peoples could be entitled to have their own legal system. Even if we understand recognition as granting rights and affording a legal status, the very first legal status that the people must have is one that relates to its ability to decide which constitutional order corresponds to its own aspirations. Choosing one’s own internal constitutional order will then require amendments to the constitutional order of the encompassing state. This provision, I believe, should neutralize the tendency to force a people against its will into a legal mould that may itself be founded on misrecognition. We have now up to a certain point answered one question that we were asking at the outset: What is the problem about stateless peoples? The answer is that stateless peoples are not recognized, so we can immediately anticipate that the solution is to recognize them. The recognition of a stateless people need not take the form of the creation of a new sovereign state. Just as peoples need international recognition when they want to achieve sovereignty, stateless peoples need to be recognized by the encompassing state in order to determine themselves within that state. As we shall see in the last section, this will entail the encompassing state adopting constitutional rules that favour internal self-determination and thus the empowerment of minority peoples. But why should we recognize something whose existence has not been clearly demonstrated? What are peoples? Why should we enrich our social ontology with these strange entities? Why introduce macro subjects or social organisms into our ontology? Is it not problematic to talk about peoples, assuming that these things exist? Before directly tackling these questions, we can immediately claim that peoples are already recognized in some way within international law.

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what kinds of populations are already identified as peoples? It is notoriously difficult to provide a clear criterion of application for the word people. So is this not an impossible task? The first answer is that it is also very difficult to determine what persons are, from an ontological point of view, but this does not prevent us from talking about the rights of persons. There are controversial ontological issues associated with the concept of peoples, but there are also controversial ontological issues associated with the concept of a person. After all, the debates concerning personal identity have not been resolved. The boundaries of the concept of a person are still blurred. Where does the person begin? Is it when the embryo is more than five months old in the womb? And where does it end? Is it just before a human being finds itself in a vegetative state? These questions are not resolved, but they do not prevent us from ascribing fundamental rights and freedoms to persons, at least when they are understood as citizens. So even if the concept of a person is not governed entirely by fixed rules, that does not mean we cannot operationalize it. We are able to do so because we consider only the institutional identity of persons. We consider them as citizens, landed immigrants, refugees, or permanent residents, without having to discuss their ontological status. The topic of personal identity is a vexing issue that has led to a proliferation of metaphysical theories such as a neo-Lockean criterion of identity (Parfit 1984, 1995, 1999; Shoemaker 1985), the physical criterion of identity (Williams 1973; Thomson 1997), animalism (Olson 1997, 2007), and narrative identity (Dennett 1988, 1989, 1992). There can also be an individualistic and communitarian conception of personal identity. It can, however, be argued that political philosophy should travel ontologically light and that the only useful concept of a person in that area of study is a political one (Rawls 2005, 19).5 I recommend treating the concept of peoples in the same way. No matter what they are from the point of view of social ontology, peoples form societies or societal cultures understood as sets of basic economic, social, cultural, and political institutions.6 Peoples may be organized into sovereign states or not. They may have governmental organizations or not. But as societies or societal cultures, they have an institutional identity. The political concept of a people that I wish to adopt is one that considers peoples only in the sense of a population having an institutional identity. Here I use Will Kymlicka’s concept of societal culture involving, first, a structure of culture: (1) language(s), (2) basic

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economic, social, and cultural institutions in which the language(s) is (are) spoken, and (3) a history of those institutions. In addition to this structure of culture, there is a character of culture: the customs, cultural habits, beliefs, values, and specific goals of the group.7 Political liberalism takes peoples at face value, as they are presented in the political realm. In that realm, they are institutionally organized societies. Even if they do not have a sovereign state or do not even enjoy self-government, they still have an institutional identity that must be respected and protected. For instance, the Acadian people does not have self-government, but it has its own flag, its own French dialect, a history, celebrations, a newspaper, and other cultural institutions. So even without any government, it has an institutional identity. With a political concept of people, we are able to use the term people as it occurs in international law. Of course, international law does not make use of a fully operational concept of a people, but neither does it rely on a fully operational concept of a person. Nevertheless, the concept of a people is already operational enough. After all, international law recognizes first as “peoples” those populations that are organized into sovereign countries. These are the populations represented in the United Nations. There are also clear references to the colonized peoples or to the peoples that are under siege, despotism, military occupation, or other kind of political oppression. Since 2007, it also recognizes “indigenous peoples.”8 Apart from that, it could recognize as peoples those minorities that the encompassing state has already described as peoples. This occurred for the population of Catalonia, although the constitutional court of Spain recognizes that the population of Catalonia forms a people only in the sociological sense. Of course, Spain does not recognize that Catalonia forms a people in the legal sense (the 1978 constitution refers only to “nationalities”), but international law is able to describe as peoples those minorities that are treated as peoples in the sociological sense. It need not be bothered by the fact that the Spanish government refuses to recognize the Catalan people in the legal sense. Since the population of Catalonia is described as a people, even by the encompassing state, it should have the status of a people in international law. Similarly, the federal government of Canada, through a motion that was adopted in the House of Commons, and to a certain extent the Supreme Court of Canada as well, has recognized the existence of a Quebec people.9 In that sense, whatever international law has to say about peoples applies as well to the Quebec population. To give a final ex-

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ample, it is also well established that the population of Scotland forms a people. A Scottish colleague once told me that no one would dare deny the existence of the Scottish people. So when international law talks about all peoples, it refers among other things to the population of Scotland. Other minorities also deserve to be described as peoples, but for our present purposes, it is already quite enough to work with the concept of a people, as it occurs in international law, for we are able to acknowledge the existence of peoples having sovereign states, colonized and oppressed peoples, indigenous peoples, and some minorities that have been recognized by the encompassing states as peoples. Innumerable un documents use the word people. So if the clauses containing this word are to make sense in these documents, it must be on the basis of a pragmatic use, such as the one that I have just described. Even if we disagree on a common intensional characterization of peoples, we could still agree on a partially extensional characterization. Peoples are societies involving indigenous populations, colonized and oppressed populations located in specific territories, whole populations of sovereign states, or minorities that have been described as peoples by their encompassing states. There are also epistemological criteria for identification of peoples. I mentioned before that peoples present themselves in the political realm as societies, or societal cultures. Another criterion would be reliance on the habit of referring to a group as forming a people, by the members of the group or by the encompassing state. It relies also on the habit of identifying a group as making nationalist claims or struggling for some kind of national self-determination or recognition. So we could say that if it forms a society, behaves like a people, describes itself as a people, or is recognized by the encompassing state as a people, then it is a people. This criterion for identification of people is at work in various un documents and it is on the basis of this common-sense criterion for identification that we can begin to make use of a political concept of people. Can we say more about peoples? How shall we define the notion? I have just provided a criterion for identification. Can we also go beyond this initial approach and formulate a criterion for identity? Can we enlarge the extension of the word by trying to define the word? This is a notoriously difficult task.

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a terminological caveat Indeed, the most important difficulty is to provide an answer to the question, What is a people? Of course, this is not an easy question, but it gains special prominence in the context of a theory that seeks to acknowledge collective rights for peoples. I just gave a pragmatic answer to the question, which allowed us to recognize the existence of sovereign peoples, indigenous peoples, and other kinds of stateless peoples. We shall now examine more closely the issue of trying to define the concept. Let us begin by discussing the distinction that some might want to make between nations and peoples. Let me say at the outset that I do not really want to make a distinction between them. My reasons for conflating them are numerous. We often talk about “first nations” but also refer to them as indigenous “peoples.” We talk about the United Nations, but also about the French, the Italian, and the German “peoples.” We are accustomed to talk about “nations” and “nationalism,” as well as “nation-building” policies and multination states, but in international law, “peoples” are the bearers of the right to self-determination. We often refer to “peoples,” but we also often describe the population involved as having a certain national consciousness. So the distinction between the two notions is becoming increasingly abstruse. It is true that, in French, the word peuple has been used in a more encompassing fashion, so that it could in principle contain many different “nations.” Conversely, in English, the word nation has often been used precisely the other way around, to indicate an entity encompassing many different peoples. But the more we are aware of these different uses in different languages, the more we realize how hard it is to justify a distinction between the two concepts. In fact, there may be a slight difference between the two, even though they have the same extension and even if I intend to use them interchangeably. From my point of view, the word people refers to the population that makes up the nation, while the word nation refers to the same population with its institutional organization. However, since these two notions have the same extension, I shall make no distinction between them in the remainder of this book. Moreover, since I intend to work with a strictly “institutional” conception of peoples, this should contribute to diminish even more the distinction between the two words. In what follows, I intend to use the word people regularly.

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I understand that some may be tempted for political reasons to distinguish the two concepts. Indeed, in order to contain populations that are not sovereign in an encompassing population that is sovereign, it might be appealing to stipulate that the encompassing population should be labelled differently from the non-sovereign populations. This is, for instance, what Will Kymlicka does when he considers a Canadian nation-state containing indigenous peoples and a Quebec national minority.10 In this case, a terminological distinction is made between nations and “national minorities,” but it does not change anything. The political reality remains the same. We have to confront our obligations to recognize stateless populations, whether we choose to describe them as peoples, as nations, or as national minorities. Furthermore, there is no objection to describe multination states as involving nations within nations or peoples within peoples. Our main concern should be to refrain from imposing new normative constraints on the existing vocabulary and on the actual uses of that vocabulary. I think we should adjust ourselves to the way everyone talks about persons and peoples. Since we tend to use the words people and nation interchangeably, the suggestion is to accept this situation without forcing these uses into a strict terminology. The important thing is not the distinction between peoples and nations. The important thing is the existence of different sorts of peoples (or different sorts of nations). When we take seriously the existence of various sorts of peoples, it then becomes quite natural to say that some peoples are parts of other peoples, or that some nations are parts of other nations.11

defining peoples and other national groups Most authors today find it extremely difficult to arrive at a simple, unequivocal definition of people. The problem springs from the fact that there are several kinds of peoples. This is perhaps what makes it so difficult to identify a definitive list of shared features. The best way out of this dilemma is to adjust ourselves to the way we talk about peoples. If we do so, we shall find that the word people has many different uses. At least seven different kinds of peoples correspond to those uses. These different concepts correspond to different national self-representations. In particular, there are ethnic, cultural, civic, socio-political, diasporic, multi-societal, and multi-territorial peoples. This technical vocabulary is used in order to take into consideration the various uses of the word people, in our ordinary parlance.

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It is important to examine the concept of people, because, as such, the above political concept of people, understood as a society or societal culture, does not yet fully capture some important features of peoples. All peoples form societies and have an institutional identity. But not all societies are peoples. For instance, Spanish regions, Canadian provinces, German landers, Swiss cantons, and even cities form distinct societies. And yet these societies do not form peoples all by themselves. So we need a more refined set of criteria. Some of these are located in citizens’ self-representations. Someone belongs to an ethnic people if she is part of a population that represents itself as sharing the same ancestral origins without relying on self-government and is mostly contained within the limits of an existing encompassing sovereign state.12 A certain number of indigenous peoples find themselves entertaining this kind of selfrepresentation. Members of a cultural people belong to a population that believes it has different ancestral origins, but shares the same mother tongue, institutions, and history, still without relying on self-government and living mostly inside the frontiers of a sovereign state (e.g., the French population of Quebec for at least three or four decades, beginning in 1960). Members of a civic people belong to a population that shares the same country or sovereign state and believes that there are no stateless peoples within that country (e.g., Iceland, Portugal, Korea). Here, the word civic is understood in a more restrictive sense than usual, since I restrict its application to sovereign states in which it is believed that there is only one people. Members of a socio-political people are part of a population that takes its non-sovereign government as part of its identity and contains within its jurisdiction the world’s largest sample of a group sharing the same language, institutions, and history (e.g., Scotland, Catalonia, Quebec, Nunavut). Members of a diasporic people represent themselves as having the same language(s), culture, and history, but are scattered in minority fragments across different discontinuous territories and also form minorities in each of these territories (e.g., the former Jewish diaspora before the creation of Israel, the actual Roma). Members of a multi-societal people are part of a population organized in a sovereign state that sees this state as comprising several peoples (e.g., Great Britain, Spain, Canada). Finally, members of a multiterritorial people have one or many language(s), a culture, and a history, but are also located in a continuous territory that does not correspond with legally defined borders. For example, the Kurdish people occupies a non-fragmented area (Kurdistan) that crosses the official borders of

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A Liberal Theory of Collective Rights

states (Turkey, Syria, Iraq, and Iran). This also applies to the Mohawk people who, in Akwesasne, occupies a territory that overlaps the territories of Ontario, Quebec, and New York State. I have just introduced seven different sorts of peoples: ethnic, cultural, civic, socio-political, diasporic, multi-societal, and multi-territorial. It is important not to confuse peoples and minority fragments of peoples. The latter are groups that do not describe themselves as peoples, nor do they ask for self-government or behave as nationalist movements. However, they are national groups all the same, sharing some features with peoples and entitled to collective rights. I distinguish between two different sorts of such minorities: contiguous diasporas and non-contiguous diasporas. Contiguous diasporas13 are extensions of neighbouring peoples: Russians in the Baltic states, Palestinians in Israel, Serbs in Bosnia, Hungarians in Slovakia, etc. They are sometimes called “kin minorities.” They are populations that find themselves “on the wrong side of the borders.” These minorities do not necessarily see themselves as part of their neighbouring peoples. Nevertheless, they are entitled to collective rights. For instance, Russian minorities within the Baltic States do not necessarily describe themselves as part of the Russian people, but as a group they deserve to be recognized for their distinctive linguistic and cultural features. Peoples also have to be distinguished from non-contiguous diasporas. These are minorities that are related through language, culture, and history, not with a neighbouring country, as is the case of continuous diasporas, but with foreign countries. This is often because they were born in these foreign countries. In a way, they are fragmented and autonomous pieces of those peoples they are coming from, without necessarily still being part of those peoples. Whether or not they see themselves as belonging to the foreign people, as minority fragments of peoples, they still have distinct collective rights. Non-contiguous diasporas can be subdivided into several different types. The term can of course be applied to communities that result from immigration, such as Libyan refugees in Italy. However, it can also be applied to historical communities that have been established for a long time but that continue to identify themselves with a foreign country of origin. Examples of such groups are the Jewish, Chinese, and Italian communities in New York City, the second generation of Pakistanis in Great Britain, or perhaps even Afro-Americans, since a fairly large portion of black people in the United States have this kind of national consciousness.

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the political conception of peoples I just defined the notion of people that I intend to use. I still need to spend some time on this point, because very often the hostile reactions to a politics of recognition for peoples depend upon the concept of a people that is used. Since I endorse political liberalism, I adopt a political conception of peoples. 1 Peoples, in the political and not the metaphysical sense, are groups that come equipped with a certain institutional identity in the political space. Just as persons, in the political sense, are considered as having an institutional identity of citizen or permanent resident, new immigrant, refugee, etc., peoples understood in the political sense also have an institutional identity, of sovereign states, ethnic, cultural, socio-political societies, etc. By invoking an institutional identity, we maintain a neutral ontological position on whether peoples should be considered as mere aggregates of individuals or as complex social organisms. These metaphysical issues are set aside when we adopt a political conception. 2 The institutions that shape the identity of peoples are not necessarily governmental institutions. The Acadian people, for example, is identified by a set of institutions that characterize it in the political space, although these institutions are not governmental institutions. Similar remarks could apply to the Alsatian people. Among the relevant institutional features of peoples that are not governmental, we could mention a language, a shared history, and certain institutional features such as schools, colleges and universities, a flag, spokespersons, and annual celebrations. Peoples do not always have autonomous governments. Nevertheless, these national groups can be treated with respect and recognition. 3 Together, the institutions of a people form a “societal culture” (to borrow a phrase from Will Kymlicka) – that is, a “structure of culture” having a certain character, and situated at a crossroads of external influences (moral, cultural, social, economic, and political) and offering an internal context of choice (a set of moral, cultural, social, economic, and political options). Let me now try to clarify all those terms. The simple societal cultures that we want to call “national” present themselves in the political space as structures of cultures that have a distinct set of attributes: a common public language, a

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A Liberal Theory of Collective Rights

common public set of institutions in which this language is mainly spoken, and a common public heritage of common public institutions. These three aspects form the structure of a simple societal culture. These societal cultures also exemplify a certain “character of culture” composed of customs, practices, beliefs, values, and traditions. It is important to see that a societal culture could change its character while keeping the same structure. The structure can also change, but it can also remain the same while the character changes. Therefore, the structure of culture must not be confused with the character of culture (Kymlicka 1989, 166–8). The cultural character is constituted by those beliefs, aims, values, projects, ways of life, customs, and traditions shared by a critical mass within a population at a given moment. These are to be contrasted with the three essential elements that compose the structure of culture in its simplest form: a common public language, common public institutions (those in which the common public language is spoken primarily), and a common public history (that relates to the common public institutions). Language is at the core of the structure of culture, and it plays a crucial role in shaping a distinctive identity among a people. But it need not be a distinct language. Two peoples can share the same language and yet be very distinct from one another. This is because they may have different institutions, different histories, different territories, different crossroads of influences, and different contexts of choice. Societal cultures may be distinguished from one another by their language, institutions, and history. But there are other important features: territory, crossroad of influences, and context of choice. Two societal cultures may share the same language but be very different from each other because of their institutions and history. But why would their institutions and history be different if the two populations share the same language? It must be emphasized that societal cultures occupy territories. Their presence in different territories determines a different crossroads of influences acting upon them. The countries with greatest influence on a societal culture are often their close neighbours, and occupying a different territory entails being confronted with influences from a different set of countries. This is what is meant by being confronted with a different crossroad of influences. Language can

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also filter the influences upon a societal culture. So a country that shares the same language in a remote territory can have the same or even stronger influence on a societal culture than another close neighbour. Thus, even societies that share the same language can be different if they occupy different territories and are confronted by different crossroads of influences. Their institutions might be different and their history might be different, but their crossroads of influences will also be very different. Finally, societal cultures that have different crossroads of influences will likely also offer a distinct context of choice. Will Kymlicka introduced the concept of “context of choice” to describe the cultural goods that a society may provide to its members. Often the cultural influences to which it is subjected are reflected in the cultural goods that it offers to its citizens. So the context of choice also shapes the identity of the societal culture. 4 The character can change, even if the population maintains essentially the same structure through time. The structure of culture also changes through time, but at a different pace, and it can remain the same even though cultural characters have changed completely. To illustrate how the structure of culture must be contrasted with its character, it is important to consider each of its three main features. The linguistic component of the structure can convey more than one conception of the common good or of the good life. It can be used to express a wide range of beliefs, aims, values, projects, ways of life, customs, and traditions. Therefore a reasonable and irreducible pluralism of points of view may take place through a people’s language. This is also true of the common public institutions. They do not necessarily reflect a set of particular customs and traditions. They too can represent an irreducible pluralism of values and points of view. The very normative principles that govern those institutions may also change while the institutions remain in place. Finally, the common public history is essentially defined by a common heritage of public institutions and not by adopting a specific narrative. In principle, it is compatible with an irreducible diversity of stories and interpretations. The common public history is thus not necessarily the reflection of a commonly shared narrative identity. 5 Peoples are often composed of a single societal culture, but they can also be composed of many societal cultures. Spain, Canada,

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Great Britain, and Belgium may be understood as multi-societal peoples, each composed of many particular societal cultures. So a people can be multilingual. But it is impossible to divorce the idea of a people from the idea of a societal culture, for peoples are either single societal cultures or aggregates of societal cultures. 6 Once peoples are understood as structures of culture that exist with certain characters at a crossroads of influences and offering contexts of choice, they are owed respect, as long as they respect the civic rights of the person and respect other peoples, as well as minority fragments of peoples, including internal minorities. Even if respect due to peoples can be granted only by allowing them collective rights, these rights constitute a necessary condition for a politics of respect. The respect due to peoples must not take precedence over the respect due to persons, nor do persons take precedence over peoples. I advocate an axiological pluralism in which the rights of peoples must be kept in equilibrium with the rights of the person. 7 Peoples do not have intrinsic value, because they may have value only if they encourage cultural diversity. They can do so in two different ways. When they provide a large context of choice, they favour internal cultural diversity. When they are distinct from all other peoples, they contribute to external cultural diversity. At times, peoples may harass minority groups or attack other peoples, but in so doing, they lose their right to be respected, because by doing so they go against the preservation and promotion of cultural diversity. I shall not, however, dwell on this argument – I shall take it as a given that peoples have only instrumental value, and insofar as they serve the cause of cultural diversity, we must treat them as valuable. It is therefore also important to acknowledge the value of cultural diversity, and acknowledge that cultural diversity does not itself have intrinsic value. How can we argue for the value of cultural diversity if we do not assume that this principle is an autonomous moral truth? We cannot simply rely on the fact that an important consensus on the value of cultural diversity was acknowledged when 148 out of 150 countries signed the Convention on Cultural Diversity on 20 October 2005. We have to explain the normative ground for supporting this consensus. If anything, cultural diversity is valuable because it is essential to achieve political stability. A political stability reached by respecting the rights and obligations of persons

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and peoples is a stability for the rights reasons – that is, stability reached by respecting the fundamental rights and freedoms (Rawls 2005, 459). 8 Still in accordance with political liberalism, peoples do not exist without a collective will to survive and a national consciousness. The majority must perceive the whole population as forming a society centred upon one or more common public languages, a set of common public institutions, and a common public history. Peoples are not objective entities that remain the same through time, with essential characteristics, and to which we can belong to only involuntarily. Their populations must also have a collective will to survive as a people, as emphasized in Renan’s metaphor of the “daily plebiscite” (Renan 1882). And the common public language(s), common public institutions, and common public history must be part of the self-representation of the population as a whole. 9 We just saw that in addition to the notion of a structure of culture (language, institutions, and historical heritage), character of culture (beliefs, values, goals, practices, customs, and traditions), territories (continuous or discontinuous), crossroad of influences, and context of choice, societal cultures are shaped by a national consciousness and a will to live together. This is why peoples do not have a fixed identity through time. There can be disagreements within society as a whole concerning the nature of national identity. A people can also change from the ethnic to the cultural conception and then, similarly, from the cultural to the socio-political concepts. Similar remarks apply to the passage from the socio-political conception to the civic conception or to the multi-societal conception. 10 As previously argued, the different types of peoples depend on an institutional identity, different types of national consciousness, and occupation of a certain territory. This last feature is crucial for a correct understanding of the typology. For example, an ethnic people will reside mostly within the territorial limits of a sovereign state. If the population were scattered within many sovereign territories into different minority proportions in each of these territories, it could then be part of either a diasporic people (if the territories were discontinuous) or a multi-territorial people (if the territory were continuous). It could also be simply a discontinuous diaspora (for instance, an immigrant community) or a contin-

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uous diaspora (for instance, an extension of a neighbouring people). Similar remarks apply to cultural peoples. They also have to be located primarily within the confines of a sovereign state to be treated as a people. Otherwise, they are minority fragments of peoples, if not part of diasporic or multi-territorial peoples. Sociopolitical peoples, by definition, are organized into self-governing institutions in a sub-territorial unit within a sovereign state. Finally, civic and multi-societal peoples are different types of sovereign states occupying different territories within internationally recognized boundaries. Similar considerations should be mentioned regarding minority fragments of peoples. Immigrant groups are located in districts within cities, while extensions of neighbouring peoples are concentrated near the border of a sovereign state. We have seen that stateless peoples disturb the stability of multination states. There are reasons to believe that just like sovereign states, stateless peoples have to be formally recognized in order to maintain their integrity as peoples. This is no minor issue in the contemporary world. It is not a concern of the past. We still witness the immense suffering in Chechnya, Tibet, and Palestine. The United Nations have been involved in the self-determination processes taking place in Eritrea, Western Sahara, and East Timor. There are ethnic tensions within Northern Ireland and Belgium. India and Pakistan fight over Kashmir, Turkey and Greece fight over Cyprus, and Russia has fought Ukraine over the fate of Crimea. We are also well aware of the liberal nationalist movements in Scotland, Catalonia, and Quebec, and the legitimate demands of indigenous peoples. There are hundreds of ethnic conflicts all over the world such as, for instance, Kurdistan in Turkey, Syria, Iran, and Iraq, South Ossetia within Georgia, South Tyrol within Italy, and all those occurring in India or Africa. There are also peoples whose voices should be heard like the Acadian people, the Roma, and the Alsatian people. One would be completely blind to international politics to believe that nationalism is an idea of the past. It is unreasonable to predict the disappearance of nation-states, since their number has doubled in the last fifty years. It is also extremely problematic to suggest that we have entered a post-national era. According to this suggestion, it is no longer the nation but an individualistic constitution that binds populations together within nation states. Quite the opposite – national identity remains a problem even within sovereign states like France, Great Britain, Germany, and the United

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States. The suggestion that the most important issues are economic and never cultural, and that justice is socio-economical distribution and not a matter of recognition is an old Marxist idea that no longer finds empirical support. There are reasons to believe that nationalism is constitutive of the modern state (Greenfeld 1992) and that the nation-state model has been taken for granted in most academic literature on the liberal state (Canovan 1996). There are also reasons to believe that socio-economic distribution, cultural recognition, and political representation are three irreducible aspects of a theory of justice (Fraser 2005).

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2 Liberalism and Collective Rights

I wish to develop a liberal theory of collective rights for national groups. A system of collective rights is useful for the transformation of de facto multinational political arrangements into de jure multinational political arrangements. Of course, such a system of rights is not enough, for it has to be translated into legislation and institutional reforms. But if they are to last, they must be supported by collective rights that are formally laid out in a constitution. There are many different types of multinational arrangements. I want to explore the conditions that could guarantee the future viability of any multinational arrangement, understood either as nation-states containing internal minorities, or multination states containing different peoples, or regional and international supranational organizations containing different sovereign states. I would like to focus on the “political recognition” of national groups in any form of multinational arrangement, because I believe that recognition plays a crucial role in securing the viability of these different sorts of multinational arrangements. Just as a people must be recognized by the international community in order to perform the duties of a sovereign state in accordance with international law, nation-states have to recognize their internal minorities, multination states have to recognize their component peoples, and supranational organizations have to recognize their component nation-states in order that these multinational arrangements remain stable, viable, and legitimate. I wish to examine a specific sort of recognition, one that translates into collective rights for national groups. By “national groups,” I mean to refer of course to peoples but also to minority fragments of peoples, such as immigrant groups and “kin minorities,” which are extensions of neighbouring peoples. I shall be fo-

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cusing on the theory of collective rights because they give constitutional expression to the political recognition of national groups. I shall discuss the moral justification for the claim that peoples are entitled to collective rights. I shall be looking at recent arguments for or against collective rights within a single political entity. I shall also ultimately consider how to operationalize a system of collective rights, but my main concern shall be to show how to coherently accommodate collective rights within a liberal foundational framework. Most liberal theories that attempted to accommodate collective rights were based on a comprehensive version of liberalism. I shall show that, in contrast, Rawls’s “political liberalism” surprisingly provides a more hospitable framework for collective rights.

one first influence: charles taylor This investigation needs to be understood in a broader perspective in order to reveal its sources of inspiration, and possibly also its originality. First, it originates in the need to establish a politics of recognition for stateless peoples, as well as ethnic minorities and nation-states. Charles Taylor (1994) has in this regard been a major source of inspiration. Anthony Appiah (1994) and Jürgen Habermas (1994) reacted rather negatively to his classic paper, but it was a courageous and significant contribution. However, it is important to note that he justifies recognition policies on the basis of a communitarian, narrative, and dialogical conception of personal identity. 1 According to Taylor, identity is created to a large extent by the specific values that one discovers about oneself in a quest for authenticity that takes the form of second-level assessments (“strong evaluations”), which establish a hierarchy in our first-level moral judgments. Taylor thus holds that personal identity is primarily a moral identity (Taylor 1985b; 1985c; 1985d, chap. 1; 1989, 25–52).1 2 The quest for authenticity also involves articulating it in language in the form of a narrative. In this sense, our self-image is narrative, and this commits Taylor to embrace a particular narrative account of personal identity (Taylor 1989, 47, 286–9). 3 Finally, individual narratives are forged in the framework of a community of dialogue. Thus, there is a continuum between individual narrative identity and collective narrative identity. For Taylor, these metaphysical facts about personal identity are relevant for the poli-

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tics of recognition, because they explain why recognition is necessary. It is in the course of developing our moral self-narrative identity in a community of dialogue that the need for recognition takes shape (Taylor 1991).2 According to Taylor, this language-based moral self-analysis makes it possible to articulate one’s individual and shared moral identity around certain conceptions of the good life and common good. For him, these capacities and the moral conceptions that stem from them are at the basis of any theory of rights. In such a framework, rights are only byproducts of the set of our moral obligations to support the capacities of individuals to articulate their language-based moral self-analysis. Thus for Taylor the capacities involved in the process of self-realization that result from such an investigation and our moral obligations to support them must have precedence over justice, properly speaking. There are two main claims here. First, according to Taylor, theories of justice must be founded on a theory of recognition. Second, recognition must not be understood initially as providing rights, for rights are derived from certain moral obligations to support individual capacities. These two premises, together, entail the primacy of a conception of the good over justice. Since justice requires recognition, and recognition is based on a moral acknowledgment of individual capacities, then our moral conceptions of the good life and of the common good have priority over the issue of justice. But one need not argue for those two premises together. Pace Taylor, one could accept the first premise, that is, that rights must be conceptualized in terms of recognition, but without accepting the second premise and thus without deriving rights from an obligation to respect certain individual capacities. The idea would be to adopt fundamental legal principles of “toleration as recognition” (a concept developed by Galeotti 2002) of individuals or of national groups. These legal principles would be at the basis of all other legal principles. So recognition would be basic, but still within the perimeter of justice and in accordance with the primacy of rights over conceptions of the good life or of the common good. In this way, it would be possible to recognize individuals and national groups but to do so within a liberal framework, where justice has primacy over conceptions of the common good or of the good life. The fundamental value of liberalism could be a certain form of constitutional respect for individuals and national groups for the purpose of political stability, but it would still take the form of a legal principle.

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Furthermore, perhaps we should develop a political version of liberalism and thus would not be committing ourselves to a specific metaphysical conception of individuals and national groups. It is important to remain neutral, in particular on the communitarian, narrative, and dialogical aspects of personhood that Taylor underscores. There is perhaps an irreducible and reasonable pluralism of conceptions, not only about the common good and the good life, but also about persons and peoples. The political arena in Western democracies is where all these conceptions clash and confront each other, and we have to find a modus operandi that is not based on one of those comprehensive points of view. Rather, it must be an approach that allows us to manage ideological, moral, and metaphysical differences. The theory of rights could be founded on a theory of recognition, but the object of such a theory is not and should not be a set of moral capacities inducing moral obligations, nor should it rest on metaphysical views about persons and peoples. Just as I wish to avoid a commitment in favour of a communitarian approach, I also want to distance myself from ethical individualism. While the most common version of liberalism is founded on the fundamental value of autonomy, another version treats toleration-asrecognition for the purpose of political stability as its most fundamental (political) value. According to that version, the object of recognition can, in principle, be any moral agent that has an institutional identity in the political realm. The most common institutional identity of persons is their citizenship. Peoples also have an institutional identity in the political realm, for they appear as certain sorts of societies, that is, as complex arrangements of basic economic, social, cultural, linguistic, and sometimes also political institutions. So there has to be respect not only for individual institutional agents such as individual citizens, but also for peoples understood as forming certain kinds of societies. This version of liberalism does not engage us in debate about the ontological nature of persons and peoples. It avoids the issues related to personal identity or social ontology. It takes persons and peoples at their face value with their respective institutional identities in the political realm. Persons have first and foremost an institutional identity. In addition, they may also have a moral, narrative, and dialogical identity, but we do not have to commit ourselves to specific claims about this part of their identity. Persons share a public identity without necessarily sharing a moral identity. Similarly, peoples may simply involve the sharing of a common language, common public institutions, and a common

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public history. It is in this sense that they form societies, and we do not need to discuss what they are from an ontological point of view. However, it also has to be noted at the outset that political liberalism is not in direct conflict with the communitarianism exemplified in Charles Taylor. First, Taylor does not criticize all forms of liberalism. Rather, he is looking for a different foundation that would not be atomistic. So he criticizes some versions without necessarily rejecting all versions. Like Walzer (1983), he is perhaps simply underlining what he takes to be the communitarian roots of all liberal communities. In this sense, there is a major difference between his theory and that of some recognition theorists, who, like Axel Honneth (1996), Emmanuel Renault (2000a, 2000b, 2004), and perhaps to a lesser extent Bhikhu Parekh (2000, 2008) and Avishai Margalit (1996), distance themselves from a liberal political philosophy. Second, and perhaps more importantly, I would also like to note that I situate my own reflections in a perspective that is compatible with Taylor’s communitarian ideas on the identity of persons and peoples. The main advantage of the approach I favour is that it is neutral, between the communitarian and individualistic approaches to personal identity and social ontology. I try to develop a version of liberalism that avoids resorting to a specific comprehensive approach, but also avoids rejecting these approaches, including the communitarian approach. The reasons I have for not committing myself to a communitarian account of persons and peoples is not that I believe it is a false doctrine. It is rather because political liberalism must be neutral and can also be accepted by individualists. My version of liberalism seeks to accommodate an irreducible variety of comprehensive views about persons and peoples. Among other things, it is neutral to individualistic and communitarian views. Finally, I also have nothing against communitarian societies that would at once comply with democracy and the fundamental principles of political liberalism. This last point will become more salient later in the book. Since I avoid committing myself to specific metaphysical views about persons and peoples, I do not want to explain rights in terms of moral obligations toward metaphysical capacities of persons and peoples. It is not in this sense that the theory of justice must be founded on the notion of recognition. Accepting recognition as a foundation for our theory does not compel us to reverse the relationship between rights and the conceptions of the good. It is rather that the principle of toleration as recognition is the most basic constitutional principle of a theory of justice.

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a second major influence: will kymlicka Since my approach is liberal, my research is perhaps more in line with Will Kymlicka’s work (1989, 1995, 2001, 2007) on the rights of “national minorities.” Indeed, as we shall see, his work has inspired my own in a thousand ways. His approach is clearly liberal and it attempts to justify minority rights for communities, like I do. Kymlicka’s impact has been immense. It has single-handedly given rise to an unprecedented proliferation of works on multiculturalism and group-related rights.3 This being said, Kymlicka’s approach is based on an individualistic version of liberalism and does not really account for collective rights as such. Of course, he rejects the “abstract individualism” according to which individuals would be free of communal identification (Kymlicka 1995, 73). On the contrary, his theory is based on the idea that persons are individuated by the relations that link them to a community, which he describes as a societal culture. However, his account of minority rights is individualistic. Thus, he does not allow for collective rights as such, but only for “group-differentiated rights.” As opposed to collective rights, group-differentiated rights may often be claimed and possessed by individuals and do not limit individuals’ rights and freedoms. Furthermore they are based on ethical individualism. Thus, his account of group rights is a watered-down version of a real system of collective rights in which they would be claimed and possessed only by groups, would create reasonable limitations on individual rights and freedoms, and would be justified without having to be based on individual interests or rights.4 Will Kymlicka believes that ethical individualism is not responsible for the negative attitude of liberal philosophers toward group rights, since, according to him, the adoption of a regime of group rights is compatible with this doctrine (1995, 57–69). He also made it abundantly clear that he wishes to remain an individualist (1989, 140). He maintains that individuals are the ultimate source of legitimate claims and the ultimate unit of moral worth. His version of liberalism is presented explicitly as a comprehensive doctrine based on individual autonomy. He is thus committed to ethical individualism. I shall now show that this philosophical position influences his account of group rights and that it is responsible for many important difficulties of his theory. I shall show that his individualistic account does not do full justice to the political recognition of peoples.

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So let us look at the account more closely. First, Kymlicka discards the use of the expression collective rights and prefers to use instead groupdifferentiated rights. This might be seen only as a terminological matter, but it conceals deeper issues. For instance, he restricts the application of group-differentiated rights to minorities and he does not allow it to describe the rights of majorities or whole communities.5 This is surprising since, by definition, collective rights should be seen as involving collectivities such as whole peoples and not just what Kymlicka calls “national minorities.” After all, shouldn’t we allow collective rights to national majorities as well as to national minorities within a society? Is it possible to say that, in Belgium for instance, the Walloons should have group rights but the Flemish should not? Some nations are majorities, and this is not a reason to deny them collective rights. Furthermore, Kymlicka tries to distinguish between two sorts of “group” rights: those that impose internal restrictions on the individual liberties of citizens and those that invoke external protections for minorities in their relationship to majority cultures, and he accepts only the latter sort as legitimate (Kymlicka 1995, 35–44; 2001, 22). This normative distinction assumes that it is impossible to independently justify restrictions on individual rights made for the sake of fostering a common public identity. Not only does he wish to treat individual rights as fundamental, he also apparently sees them as not available for any restriction whatsoever, not even cultural restrictions that stem from the structure of the culture (Kymlicka 1995, 36, 202n1). Kymlicka is also forced to deny that collective rights must be individuated partly by reference to the subject of the right (1995, 46). For him, the ultimate subject of those rights may in many cases be individuals. Of course, he is certainly correct to point out that most collective rights are not about the primacy of the collectivity over individuals (47), but he also wants to add that they are compatible with the primacy of the individual. Instead of equally defending respect for the group and respect for the individual, he argues that “both sides of the dilemma concern respect for the individual” (150). He therefore tends to individuate collective rights in part with reference to their objects, i.e., institutional or participatory goods, and not only by reference to their subject. According to him, collective rights are institutional goods that are often claimed by individuals. And in the end, their ultimate purpose is the respect owed to persons. Indeed, since collective rights must ultimately be construed as rights that can be claimed by individuals, the justification for their inclusion

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in a constitution must rest upon individuals. The general argument for ascribing rights to societal cultures is that they form contexts of choice, allowing individuals to choose between different goods and thus truly exercise their freedom. However this argument is compatible with only one big societal culture for everyone and with the assimilation of all other societal cultures. If one wants to secure protection for all societal cultures, we need an argument to that effect. If all cultures (understood as structures, not characters) are to be protected, it is because individuals ascribe value to their own particular culture. Kymlicka must therefore postulate a rational preference of the individual toward her own cultural allegiance, and he must suppose that individuals treat their cultural allegiances as primary goods (1989, 166). So he endorses important claims in moral psychology (1995, esp. 158–63). One may wonder whether Kymlicka’s notion of group-differentiated right has anything to do with what is usually meant by “collective right.” He sees group-differentiated rights as meant for individuals, mostly enjoyed by individuals and claimed by individuals. No cultural restrictions whatsoever can be imposed upon individuals, for individuals are the true, ultimate subject of valid moral claims. In short, this approach appears to provide justification not for collective rights but for special kinds of rights, those that concern the relationship between individuals and institutional goods. So it is perhaps for that reason that Kymlicka chooses to describe the relevant sort of right by using a new label. Quite apart from this general line of criticism, we must look very closely at the different theses involved in the argument. Unfortunately, most of them are false. First, it is simply not true to suggest, as Kymlicka sometimes did, that liberals must somehow commit themselves to ethical individualism. There are liberal philosophers, most notably John Rawls (2005), who have developed liberal theories that avoid commitment to ethical individualism. Kymlicka himself should now accept that liberal philosophers can coherently reject that particular doctrine. However, let us consider more urgent difficulties. The distinction between external protections and internal restrictions cannot be maintained. A regime of collective rights for a minority people within the state cannot avoid imposing some (reasonable) restrictions on the rights of individuals. External protections inevitably lead to internal restrictions, so the distinction between these two sorts of group rights becomes problematic. For example, language laws in Quebec simultaneously involve external protections and internal restrictions. They can be justified as a means of protecting French Quebeckers from the ma-

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jority of anglophones living in North America, but at the same time, they force immigrants to send their children to French schools, they enforce a certain predominance of French on commercial signs, and they impose French as the language used at work (for companies with more than fifty employees). Of course, Kymlicka accepts Quebec’s language laws and rightly sees them as legitimate, but he tries to account for them only in terms of external protections, and this does not seem to be possible. Kymlicka is well aware of this difficulty and tries to solve it in the following way. His argument appears to be that internal restrictions cannot be justified autonomously and are acceptable only if they are instrumental for external protections or are interpreted as the inescapable side effects of external protections. So the distinction between acceptable and non-acceptable group-differentiated rights is one that holds between those rights whose main justification invokes external protections, and the unacceptable rights that are justified solely on the basis of being internal restrictions. Kymlicka is willing to accept internal restrictions, but only insofar as they serve to protect the minority from the majority. The problem is that this fails to capture an essential dimension of the collective rights of peoples. Whether they are majorities or minorities, and whether they require external protections or not, peoples have the right to impose reasonable restrictions such as the promotion and protection of a common public language (compatible with the protection and promotion of minority languages), a common public set of institutions (compatible with the promotion and protection of minority institutions), and a common public history (compatible with the promotion and protection of minority histories). These policies amount to the fostering of a common public identity. Kymlicka should know that the fragmentation of the people may come not only from outside forces but also from inside forces and that social cohesion requires a minimal common public identity. But he prefers to describe policies purporting to secure social cohesion as instances of “nationalism” and not as policies that promote and protect the collective rights of peoples. For him, they appear to be merely nation-building policies, and group rights are meant to preserve minorities from nation-building policies (Kymlicka 2001). Of course, I agree that often minorities are subjected to the tyranny of the majority and to nation-building policies, and I also agree that a system of collective rights can serve to counterbalance these external forces. But only his obsession with ethical indi-

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vidualism can explain why he feels compelled to avoid the terminology of collective rights for national majorities or encompassing peoples. Most citizens in liberal societies accept the need to live with restrictions on their individual liberties such as those that are involved in a common public identity. They accept the use of a common public language and a common public set of institutions, and they relate to the same common public history. These policies are not perceived as unacceptable restrictions on their individual liberties, for they are reasonable requirements for the exercise of full citizenship. Moreover, suggesting that society as a whole has the right to impose such restrictions on the liberties of its citizens must not be interpreted as collective rights overriding individual rights. It is more like striking an appropriate balance between the fundamental interests of individuals and those of whole peoples. Societal cultures cannot survive without a minimal common public identity. This imposes reasonable restrictions upon the liberties of individuals, just as fundamental liberties of individuals impose reasonable limitations on the collective rights of peoples. It will not do to reply that imposing a common public identity can be interpreted as merely instrumental for individual liberties, for there are independent justifications for the protection of whole societal cultures that have nothing to do with individual values. Of course, Kymlicka agrees completely with most of this. He is perfectly aware that external protections always come with internal restrictions, and that there are good arguments to justify reasonable restrictions on individual liberties such as those to which I have been alluding. So why does he refuse to describe those internal restrictions as an acceptable form of collective rights? The only plausible answer is his endorsement of ethical individualism. It is also important to note that Kymlicka uses some rhetorical arguments in his campaign against internal restrictions. In order to be more convincing in his arguments against such collective rights, he characterizes them as the imposition of traditions, ways of life, and illiberal customs. He gives a communitarian twist to the idea of an internal restriction in order to turn it into a clearly unacceptable notion (Kymlicka 1995, 37–44). He suggests that internal restrictions must impose limitations on “the right of individuals within the group to revise their conception of the good” (161). But what about “imposing” a common public language, a common public history interpreted and criticized in different ways, and a common public set of institutions? Most citizens accept such internal restrictions within each societal culture.

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Shouldn’t we avoid confusing these internal restrictions with the imposition of particular views about the good life? Must those internal restrictions be rejected, even if they are appropriately constrained by a charter of individual rights and by policies that seek to protect the collective rights of minority cultures within such a society? Moreover, the notion of an unrestricted fundamental individual right is a pure abstraction that never exists in practice. We already are aware of the fact that freedom of speech is constrained by laws against hate literature. Freedom of association is constrained by anti-gang laws. The right to physical integrity is constrained by the right to self-defence. The right of the public to be informed is constrained by the right to privacy. Even the right to life is constrained by laws on abortion and euthanasia, medical aid in dying, and laws concerning assisted suicide. So similarly, it might be argued that we can acknowledge the need to constrain the rights of citizens by “imposing” a common public structure of culture, as long as it is compatible with the preservation of minority cultures within the people. In other words, by allowing for collective rights that impose reasonable restrictions on individual rights, we are doing nothing more than applying some additional reasonable restrictions on individual liberties. Most societies are organized around a common public language, a common public history, and a set of common public institutions, and it is perhaps unnecessary to abandon those policies in order to go beyond the traditional nation-state model, for in the context of a multination state we must allow each societal culture within the state to foster its own common public identity. As a matter of fact, allowing component peoples to do so is precisely what can ensure the stability, viability, and legitimacy of the multination state itself. It may not always be possible to impose a single lingua franca, a single common culture, and a single common history when the state is multinational, so citizens must then rely only on a very thin common public identity. It might then be wondered how such a state could survive. However, this discrepancy may be corrected by adopting a politics of recognition toward the component peoples that allows them to impose reasonable restrictions, such as those that follow from fostering a common public identity. Of course, Kymlicka agrees with the importance of societal cultures and that societal cultures must have self-determination, but he somehow does not agree that the reasonable internal restrictions of societal cultures can be justified in their own right, for they apparently are acceptable to him only if they are instrumental for their external protection, and he seems unwilling to consider the promotion

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and protection of a societal culture for a majority or for a whole people as a promotion and protection of their collective rights. Of course, some would want to discard reasonable internal restrictions imposed by a societal culture upon its members, simply by trying to draw a difference between two sorts of restrictions on individual rights: those that are created by the individual rights of other individuals, and those created by the collective rights of an encompassing group. It is then claimed that the constraints imposed on individual freedoms by the freedoms of other individuals can be tolerated because in this case they serve the general purpose of increasing individual liberties for everyone. And the idea is that internal restrictions imposed by collectivities do not meet this requirement. But this answer won’t do as an argument against collective rights. The justification for their rejection was that they restrict individual liberties, but now that we show that all individual liberties are constrained, we are told that there is a specific kind of restriction, which comes from collective rights, that is unacceptable. This looks very much like a circular argument. The issue was initially whether individual rights and liberties could reasonably be restricted or not. Indeed, the argument was supposed to be against there being restrictions on individual liberties. But according to the individualist, it now appears that individual liberties cannot be restricted by collective rights. This amounts to another expression of the initial uneasiness about collective rights as such and it is not about restrictions on individual liberties. Clearly, this resembles a circular argument and cannot count as an argument against collective rights. If the argument is that collective rights are unacceptable because they impose restrictions on individual liberties, we can reply that systems of individual liberties themselves always constrain individual liberties. But if the argument concerns the source of the restriction, then the problem is about collective rights as such, and not about the fact that they impose restrictions, but we then need an independent argument against them and not simply an argument that they impose restrictions on individual rights. Of course, the ultimate argument is that the particular restrictions that are imposed on individual liberties by a system of collective rights are precisely the restrictions that one finds unacceptable. But I have argued that we must distinguish between the restrictions that stem from the requirement of a common language, a common structure of culture, and a common history, and those that stem from imposing a particular character of culture. And I have argued that the former are

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acceptable in principle as well as accepted in practice in most, if not all, societies. Even if Kymlicka makes the distinction between the character and the structure of culture, he tends to conflate the two notions, when it is time to determine whether or not some internal restrictions are intrinsically acceptable. He surprisingly chooses to interpret internal restrictions as the imposition of cultural characters, and not as the imposition of a particular structure of culture. I have argued that this does not do justice to a reasonable regime of collective rights that aim to implement a common public identity. In other places, he simply describes the imposition of common languages, cultures, and histories as instances of “nationalism,” but he offers us no reasons to distinguish between nationalism and the defence of the collective rights of a people. If we accept this equation, we have to accept the reasonable character of some internal restrictions, whether or not they are also instrumental for external protections. But if we do so, then it appears that collective rights compete with individual rights, and that no particular hierarchy holds between these two sorts of rights. This, in turn, casts doubt of the possibility of deriving an argument for collective rights simply by invoking individualistic arguments. By ruling out reasonable internal restrictions, Kymlicka gives a truncated picture of group rights. He fails to show that individual rights must not be culturally restricted at all. Of course, he accepts nationbuilding policies, as long as they are appropriately constrained by a system of individual liberties and a regime of group-differentiated rights for minorities. But he fails to notice that nation-building policies provide the best instance of the exercise of collective rights, for they seek to secure the self-determination of the people as a whole. Since Kymlicka himself does not argue against nation-building policies, but rather seeks to constrain them, he should not have rejected collective rights that impose internal restrictions on individual liberties. So why does he think otherwise? It is because he theoretically wants to restrict the use of group-differentiated rights to minorities. This is more than just a terminological fiat, for it fails to do justice to a very important class of group rights. It provides a distorted picture of the issue that can be explained only by Kymlicka’s willingness to force collective rights into an individualistic Procrustean bed. There is another difficulty. If we try to individuate collective rights by reference to the object of the right, and not also partly by reference to the subject of the right, we are then unable to explain the difference

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between the cultural demands made by individual immigrants and those made by the members of welcoming national communities, for both could in principle have equal legitimate moral claims to cultural protection. Indeed, how can we decide who must be integrated into whose community if, in both cases, we are in the presence of individuals who claim protection for their own societal culture? We are naturally inclined to resolve this contentious issue by saying that immigrants have an obligation to integrate within the welcoming community. They do so because welcoming communities have the collective right to survive and flourish, and they would not be able to survive if immigrants failed to integrate. At least this is true of immigrant societies such as Canada, Great Britain, and the United States. We are naturally inclined to believe that integration policies are reasonable internal restrictions on the individual liberties of immigrants. But this is not an available option for Kymlicka, and not only because he does not allow for internal restrictions. The most important problem here is that the subject of the right is irrelevant, according to Kymlicka. He must try to find a way to justify the integration of immigrants without having recourse to the rights of the welcoming community, and thus be seen as a genuine bearer of rights, for he wants to say that the subject of group-differentiated rights need not be collective entities. But then how can he explain the intuition that immigrants are clearly obliged to integrate? Kymlicka tries to avoid the issue by suggesting that an immigrant has renounced her linguistic and cultural affiliations (1995, 96). In other words, he avoids the issue of determining which individual right overrides the other, by saying that being an immigrant amounts to renunciation of one’s rights. Of course, most immigrants accept the need to integrate. Most learn the language of their welcoming community and are willing to be part of its culture. But in countries of immigration like Canada, Australia, or the United States, a growing number of immigrants are able to live in local immigrant communities in which they can keep their own language, culture, and history. So it is wrong to suggest that they have renounced speaking their own language and renounced an attachment to their own original culture. Most of the time, immigrants take great pains to adopt a new country and a new language, a new culture, and a new history. So it cannot be claimed that they have renounced their allegiance to their own national identity. Even if they are willing to integrate, they are not willing to assimilate. Therefore Kymlicka’s hypothesis is empirically false. He is wrong to interpret the willingness of immigrants

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to integrate as proof that they have decided to abandon their language, culture, and history. He is also wrong to interpret the criticism that I have just made as suggesting that immigrants are unwilling to integrate. Everyone accepts the fact that most immigrants are willing to integrate. The question is whether they also wish to abandon their own language, culture, and history. I claim that they do not. I claim that members of an immigrant community and members of the welcoming community both want to keep their own language, culture, and history. But if we consider only individuals and their moral claims, we are unable to distinguish between the two sorts of claims and thus are unable to derive immigrants’ obligation to integrate. Once again, ethical individualism proves to be a shaky foundation for a theory of group rights, for on its ground we are unable to justify immigrants’ obligation to integrate. That is, we are unable to do so without additional false empirical hypotheses. We ask immigrants to integrate (but not necessarily assimilate) into their welcoming community. But why can we do so? Why can’t they refuse such integration? Would it not be the other way around? Perhaps members of the welcoming community should integrate into the immigrant communities. Why not? The answer is obviously related to the collective rights of the welcoming community. But since Kymlicka sees the individual as the ultimate bearer of rights, and since he is unwilling to accept internal restrictions, he must somehow try to explain why the individual right of a member of a welcoming community should supersede the individual right of the immigrant to cultural protection. And here no answer is forthcoming. Since he is unable to distinguish between claims of members of a welcoming community and claims of members of an immigrant community, Kymlicka is thus unable to explain why we intuitively tend to think that immigrants must integrate. This is why he postulates an ad hoc and convenient empirical hypothesis that immigrants, by definition, have renounced their linguistic and cultural affiliations. But this ad hoc stipulation is false and conceals a genuine defect of the theory. Let us consider one last difficulty. Kymlicka wants to derive justification for a regime of group-differentiated rights by relying solely on individualistic grounds. But he cannot just invoke the importance of societal cultures for individuals in general by saying that they provide the condition for implementation of a system of liberties. Such an argument would indeed be founded ultimately upon individual values, but it is clearly insufficient. As we saw, it cannot serve as a basis for the

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protection of each particular societal culture. It is compatible with the existence of just one large societal culture that embraces all citizens of the world. If we argue simply that societal cultures, as contexts of choice, are important in general for the individual, we cannot rule out having only one societal culture for everyone. The problem is, of course, that we seek to justify the protection of each particular societal culture. True, we could initially translate a normative argument that societal cultures are important in general into institutional measures that could ensure the protection of each of them. But we could not rule out as morally problematic the assimilation of some of these cultures into a single assimilating society. The social fact of assimilation and even assimilation policies could be pursued in perfect accordance with the principle. So we need to add an additional principle. Could it be simply that individuals want their own culture to be protected? This, I am afraid, will not do either, for individuals have many different allegiances. If individuals have multiple identities, they may prefer to preserve many other allegiances instead of their own societal culture. If for a majority of citizens the most important groups that can be promoted and protected are all of those other groups, then we are not in a position to identify societal cultures as groups that are entitled to a regime of group rights. Since rational preferences concerning group allegiances vary from one citizen to another and vary through time for a single individual, we cannot rely simply on the willingness of individuals to preserve their favourite group allegiance in order to justify a regime of group rights for societal cultures. Kymlicka thinks that, among all groups, societal cultures can legitimately claim group-differentiated rights. So there must be an additional premise in the argument that enables him to identify societal cultures as legitimate subjects of cultural protection. The appropriate missing premise is that individuals rationally prefer a regime that can guarantee protection for their own national affiliations, that is, their own societal culture. In other words, it is claimed that the moral psychology of individuals confirms the importance of societal cultures as a primary social goods for individuals. If we are to provide an individualistic justification for the protection only of societal cultures, then Kymlicka must claim that cultural affiliations occupy the first position in the minds of everyone (Kymlicka 1989, 166). Unfortunately, Allen Buchanan and many others have argued convincingly that individuals do not always see their own societal culture as a primary good (Buchanan 1998b). So it is wrong to suggest that people

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agree on the primacy of their own affiliation to their societal culture. Rational preferences may vary from person to person, and from time to time for a single individual. Indeed, some even give a very low priority to their own societal affiliation. So we cannot justify a regime of group rights for societal cultures by considerations pertaining to the existence of a rational preference in the moral psychology of citizens. Even worse, if we tried to impose a single ranking of allegiances on that basis, we would violate the principle of equal respect for individuals. We would be imposing a particular hierarchy of group affiliations that would go against the particular hierarchies of many individuals. Of course, Buchanan’s argument presupposes that Kymlicka is right in trying to seek individualistic justification for group rights. According to Buchanan, the only justification for group rights is to be sought in the rational preferences of individuals. And he agrees with Kymlicka that individuals do give the highest priority to their different “cultural” affiliations (Buchanan 1994). But he disagrees with Kymlicka on the privilege afforded to peoples, for there are many other cultural groups (religious, ideological, etc.) that can also claim cultural protection. He believes that there are no individualistic justifications for the privilege afforded to peoples, or societal cultures, among all cultural groups (Buchanan 1998b). Thomas Pogge made a similar argument based on the principle of equal respect (Pogge 1997). This line of argument can also be pursued even further, and it can be shown to further damage collective rights. If Buchanan and Pogge are right, the only way to harmonize a theory of group rights with the rational preferences of individuals is to allow for recognition of many different cultural, linguistic, religious, ethnic, and ideological groups in the public realm. There are thus many equally good candidates for a regime of collective rights. But now, if the justification must be founded upon the rational preferences of individuals, we must inevitably deal with a proliferation of groups competing with each other for recognition. It will then be tempting to conclude that this leads to a reductio ad absurdum of most theories of collective rights (Weinstock 1999). So we have every reason to believe that Kymlicka’s individualistic justification for collective rights fails. He is unable to account for a large class of group rights that involve reasonable internal restrictions, unable to account for the collective rights of national majorities or whole peoples, unable to justify theoretically the obligation of immigrants to integrate, and unable to provide an individualistic justification for the privilege afforded to societal cultures. The conclusion is that

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one may have to choose between ethical individualism and a politics of recognition. This is not a happy conclusion, for we have reason to believe that most liberals will choose the former. But this is not a reason for failing to defend the latter. Liberal philosophers must have the courage to abandon ethical individualism and embrace a politics of recognition for peoples. Kymlicka may be right to claim that, among all the groups, societal cultures are special. But he is wrong in trying to derive this claim from ethical individualism.

a third major influence: john rawls The version of liberalism that I endorse relates to the late work of John Rawls. It is the version known as “political liberalism” (Rawls 2005). This particular account is based on “political” or “institutional” conceptions of persons and peoples. It provides a framework that is compatible with both an individualistic and a communitarian point of view about persons and peoples. Whatever our metaphysical beliefs about personal identity and social ontology, we have to acknowledge the irreducible diversity of moral, religious, and metaphysical points of view and find a means to establish a sincere consensus among one another. We must do so without relying on a particular metaphysical foundation. Political liberalism provides the means for achieving this. I fully endorse this approach, in particular because, as we shall see, it provides an independent justification for ascribing rights to peoples. Indeed, it is impossible to overstate the importance of Rawls’ innovation in liberal thinking. As I shall seek to show, Rawls’ political liberalism provides a framework that is much more hospitable to collective rights. According to Rawls (1993, 1999), peoples are moral agents. They are autonomous sources of valid moral claims. They are the owners of rights. As mere rational agents, states do not own rights such as the right to independence and self-determination; it is to peoples that we ascribe such rights. Rawls went so far as to develop a second original position (understood as a stance guaranteeing an impartial point of view) that brings into play the representatives of peoples. So his doctrine of political liberalism quite naturally calls for the establishment of rights and obligations for peoples as well as for persons, and this is more than promising for those interested in the collective rights of peoples.

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Rawls’s liberalism is political and not metaphysical. It is based on a political and non-metaphysical conception of the person and the people. The neutrality of the state must be achieved not only in the different conceptions of the good and the different religions, but also in different philosophical and metaphysical conceptions of the person (Rawls 2005, 144). One does not understand the political liberalism of Rawls if one does not understand that he opposes a liberalism having metaphysical foundations.6 In order to achieve this metaphysical neutrality, Rawls had to renounce the psychological laws that he postulated at the time of Theory of Justice (2005, 86–8). He now defends positions so general in philosophy of mind that they are neutral on different conceptions of the person (31–2n34). He illustrates this neutrality with the example of Saul of Tarsus (31). He develops a political conception of the person (29–35) and a political conception of the people (40–3; 1999, 23). However, one may wonder how this new approach accommodates collective rights for peoples. We have to look at the matter very carefully in order to understand its impact on the issues at stake in this book. In what follows, I shall describe how political liberalism leads to an account of peoples that allows for collective rights, while still remaining liberal in a very deep sense. In order to achieve this task, I shall be concerned to show that in his later works Rawls does not rely on ethical individualism. I shall underline the importance of peoples, not only for The Law of Peoples, but also for Political Liberalism. Of course, Rawls never really considered the case of stateless peoples. With the exception of a very short passage in The Law of Peoples (1999, 38), he never discusses the issue of stateless peoples. The ambition of this book is to fill this gap. I intend to develop a liberal account of stateless peoples inspired by Political Liberalism, understood as a particular version of a liberal political philosophy that avoids any commitment to ethical individualism.

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3 Rights, Recognition, and Political Liberalism

departing from ethical individualism I shall now examine John Rawls’s theoretical framework more closely.1 In his later works, he has developed an approach that is hospitable to collective rights for peoples. The most important feature of this approach is the departure from ethical individualism. Liberalism is interpreted almost unanimously as a doctrine that logically implies ethical individualism. This latter doctrine can be defined as involving three fundamental claims: (1) persons are prior to their ends, (2) they are the ultimate sources of valid moral claims, and (3) individual autonomy is the most fundamental liberal value. This view generally leads to an argument against collective rights (Appiah 2005; Barry 2002; Hartney 1995; Johnson 2000; Kukathas 1992; Narveson 1991; Nussbaum 2003; Tamir 1999). But political liberalism offers a version of liberalism that differs significantly from this classical version. It is based on a political or institutional conception of persons and peoples. As a political doctrine, it is in a position to acknowledge the existence of any reasonable political agent with an institutional identity. Now, political agents include not only individuals, with their institutional identity of citizens, but also national groups, with their institutional identity of societies (not to mention legal persons and sentient animals). These political agents must all be treated with equal respect. But if peoples and persons as political agents deserve equal respect, we must critically examine individualism (which gives more importance to the individual) and collectivism (which gives more importance to national groups). But this is precisely what political liberalism is able to do, because it has emancipated itself from ethical individualism. So under political liberalism, (1) we are not assuming that persons are prior to their ends, because we

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remain neutral toward both liberal individualism and communitarianism. Political liberalism (2) treats peoples and not only persons as ultimate sources of valid moral claims. Finally, for political liberalism, (3) toleration-as-recognition for the purpose of stability, and not autonomy, is the most important liberal value.2 So political liberalism does not rely on the three main hypotheses generally associated with ethical individualism. This particular aspect has generally been misunderstood in the literature. Most interpreters have continued to interpret Rawls as the proponent of ethical individualism. No one took seriously the suggestion that he really wanted to distance himself from the comprehensive views of Kant and Mill (Rawls 2005, 37, 78, 145). It is assumed that Rawls remains mostly a Kantian philosopher giving primacy to individual rights (Audard 2009). Rawls stands out from the ethical individualism of Kant and Mill. He believes that the individualistic liberalism of Kant and Mill constitutes a comprehensive moral doctrine. He also thinks that “it would be unreasonable to use political power to enforce our own comprehensive view” (2005, 138). Rawls wants to defend himself against the accusation of being neutral and favouring some form of individualism (196n31). Liberalism appeals not only to ideas of the good life conceived as “purely instrumental, or else those that are a matter of preference or of individual choice” (Rawls 2005, 173). Thus, Rawls writes, “Political liberalism is unjustly biased against certain comprehensive conceptions only if, say, individualistic ones alone can endure in a liberal society, or they are so predominant that associations affirming values of religion or community cannot flourish” (2005, 199). A little further, he adds, “The liberalisms of Kant and Mill may lead to requirements designed to foster the value of autonomy and individuality as ideals to govern much if not all of life. But political liberalism has a different aim and requires far less” (199). See also Rawls (200), where he says, “Beyond the requirements already described, justice as fairness does not seek to cultivate the distinctive virtues and values of the liberalisms of autonomy and individuality, or indeed of any other comprehensive doctrines. Justice as fairness honors, as far as it can, the claims of those who wish to withdraw from the modern world in accordance with the injunctions of their religion, provided only that they acknowledge the principles of the political conception of justice and appreciate its political ideals of person and society.” Rawls defends the full political autonomy of citizens, but not their ethical autonomy: “Justice as fairness emphasizes this contrast: it af-

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firms political autonomy for all but leaves the weight of ethical autonomy to be decided by citizens severally in light of their comprehensive doctrines” (2005, 78). He does not consider society as an association of individuals (40–3). He thinks that justice as fairness is wrongly accused “to regard political institutions as purely instrumental to individual or associational ends, as the institutions of what we may call a ‘private society’” (201). For Rawls, “It is incorrect to say that liberalism focuses solely on the rights of individuals; rather the rights it recognizes are to protect associations, smaller groups, and individuals, all from one another in an appropriate balance specified by its guiding principles of justice” (221n8). An almost indissoluble connection between liberalism and ethical individualism, present in the minds of so many political philosophers and political scientists, partly explains why the originality of Rawls’s political liberalism was overlooked.

peoples and political liberalism It may very well be that Rawls no longer relies on ethical individualism as a basis for a liberal political philosophy. However, we may still remain unconvinced about the relevance of political liberalism for a liberal theory of collective rights. The reason may be that from Theory of Justice to Political Liberalism, the same set of basic principles are introduced and concern individuals, not groups. There is no explicit reference to the rights of peoples as a whole. There are obvious reasons for this. The principles are those that apply to a single society, that is, a society that contains no minority national groups whatsoever. If we ignore The Law of Peoples, it appears that Rawls fails to address the issue of collective rights for peoples. As we shall see, this can be explained by the methodology Rawls wishes to adopt. In what follows, I shall be concerned with showing that the traditional individualistic interpretation is not quite right. Understood as societies, peoples occupy a central position in Rawls’s theory, even within Political Liberalism. The Basic Structure as Object of a Theory of Justice The primary subject of a theory of justice is the basic structure of society (Rawls 2005, 11, 16). The rights and freedoms afforded in such a system are not based on the properties of individuals considered in isolation, separated from other individuals. Nor is Rawls merely saying

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that the limits of one’s freedoms are where the freedoms of others begin. Instead, he is defending the application of a holistic system of rights and freedoms in the basic structure of a society and arguing that this system of rights and freedoms must be equally available to everyone. Thus the first principle of justice states, “Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all” (5). In addition to being a holistic system of rights that must be implemented in the basic structure of society as whole, it is a system of rights that can be apprehended by anyone who is reasonable and not only rational. Such a person has a certain sense of justice and is able to adopt an impartial bird’s-eye view of society as a whole – that is, someone who is able to think about what constitute the collective interests of society as a whole. This system can thus be seen as one that a society as a whole chooses to provide for itself. The constitutional rules that translate those normative principles are the result of a right to self-determination by the population as a whole. Of course, persons deliberate and democratically approve those principles. These are not merely the result of a monological original position under the veil of ignorance, for they can also be the result of an overlapping consensus among members. Nevertheless, everyone sees the principles as those that are good for his or her own society as a whole. In other words, the principles are believed to be those that our society must provide for itself. Rawls believes that a sincere consensus among citizens can be achieved regarding the system of rights that our society must have. This is because the principles are not approved from the perspective of a purely rational agent considering a set of rationally acceptable primary goods. Instead of establishing the principles purely from the perspective of a rational agent (as in many arguments developed in Theory of Justice), in Political Liberalism, Rawls also appeals to the sense of justice present in citizens who have the features of moral persons. In other words, the primary goods and principles are not just those that I would accept for my own rational interests, they are also those that a sense of justice reveals about society as a whole (Rawls 2005, 106). When a sense of justice is involved and not only individual rationality, we take a bird’s-eye view of what is good for society as a whole. The system of rights and freedoms thus appears to be an institutional arrangement that society is entitled to provide for itself. So, far from merely ascribing rights only to individuals, the two principles of justice should also be seen as offering a system of

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rights for society as a whole. In addition to the fact that justice applies to the basic structure and to the fact that it is the sense of justice that is being mobilized, those who reflect upon the basic primary goods do so as citizens who are expected to live their whole life in their own society. In other words, they see themselves as parts belonging to a whole. An analogy could make the point. Consider an orchestra. As autonomous agents, members have their own rational interests but, as part of the orchestra, they must also consider the interest of the orchestra as a whole. When they do so, they consider the fact that they are part of a whole, and that they expect to spend their career as members of that orchestra. Even if all members participate in the determination of the interests of the orchestra as a whole, their interests are not reducible to individual interests. Similarly, the basic primary goods (and the principles of justice that stem from them) are not just the result of the intersection of individual rational interests. The primary goods are those of members acting as true citizens who intend to lead their whole lives within their own society (Rawls 2005, 178).3 Indeed, for Rawls, full autonomy is “realized in public life by affirming the political principles of justice and enjoying the protections of the basic rights and liberties; it is also realized by participating in society’s public affairs and sharing its collective self-determination over time” (77–8). Together the above features provide a reason to adopt a holistic reading of what is going on in Political Liberalism. In Theory of Justice, the principles of justice were already meant to apply primarily to the basic structure and not to the relations between individuals, but now, in Political Liberalism, they are also the result of applying our sense of justice (not just their rationality), thus adopting a perspective that considers what is good for society as a whole, and it is done for the purpose of citizens who belong to a society in which they expect to live an entire life. Constructivism Rawls does not invoke objective moral principles or natural rights for individuals. Instead, he develops a constructivist method based on a certain self-representation of the person. This was already the case in Theory of Justice. But in Political Liberalism, it is also a self-representation applicable only to individuals in the political sense of the expression, and therefore it applies to the relational properties that bind these individuals to their society of belonging (Rawls 2005, 89–129). Political liberalism increases the distance between Rawls’s theory and a theory

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of natural rights. The individual subject of rights is the person understood in his political, institutional identity and therefore does not exist independently of an institutional complex. The status of citizen (or permanent resident or refugee, etc.) is not an intrinsic property of individuals and is to be understood more as a relational property, in the sense that it does not exist independently of the institution that gives it that status. These properties are dependent on the particular society in which they are allocated. This, by the way, is one of the reasons why Rawls does not confuse societies with associations of individuals (40– 3). Societies are not defined as associations of citizens, because it is the other way around: societies are presupposed by the relational properties involved in being a citizen (or permanent resident or refugee, etc.). Under the veil of ignorance in the original position, an individual is able to conclude that society as a whole should adopt a system of rights to be implemented in the basic structure. So even if the rights and liberties that are stated in these principles are those of individuals, the content of the consensus under the veil of ignorance concerns a people and its collective right to establish a system of rights in the basic structure of society. Political Stability We have just seen that the principles form a system that applies to the basic structure of society. They are principles that a society as a whole should implement, according to citizens who have a sense of justice and who see themselves as part of society for their whole lifetime. We have seen that citizens are to be defined by the relations they have with their own society and that this explains why societies should not be seen as associations of individuals. Does it mean that the system of rights and liberties is both a system of individual rights and a system that society as a whole has the collective right to provide for itself? It could be so. Be that as it may, it could still be replied that the principles are in the end instrumentally implemented for the sake of individual rights and freedoms. The ultimate justification for the collective right would therefore be individualist. However, this is not what Rawls is defending. The principles serve the purpose of stability for the society as a whole (Rawls 2005, 38, 65). They are instrumentally justified by the need to resolve the problem of stability.4 Indeed, Rawls argues that the system of rights and liberties is implemented for the sake of greater stability within society (Rawls 2005, 140–

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4). He says explicitly in the introduction that he developed political liberalism in order to solve the problem of stability (xv–xvi). Political stability may therefore be seen as having value. It is, however, not intrinsically valuable, because it is derived from our self-representations as moral agents and from the fact that society is a system of mutual cooperation for the benefit of everyone. Without stability, no mutual cooperation is possible and we are thus unable to maintain our selfrepresentation as a moral agent capable of acting in accordance with our beliefs and desires. Therefore, political stability must be seen as an important value. Let me dwell for a moment on this crucial point. It is part of our selfrepresentation that we see ourselves as having two moral powers: a sense of justice and rationality. These are the powers that citizens and peoples have. As rational agents, we see ourselves as capable of conducting our lives according to our plans. However, persons and peoples are at the same time engaged in a system of cooperation that reveals the interdependence of persons and the interdependence peoples. Our ability to conduct our lives rationally is therefore conditioned by the ability to maintain stability among persons in the basic structure of a single society and among peoples in the global basic structure. If instability takes place in a basic structure, given our interdependence, this affects the ability of persons and peoples to conduct their lives in accordance with their rational plans. This is how the political value of stability can constructively be derived: from a premise concerning our self-representation as a moral person or people, and from the interdependence of persons and peoples. Rawls then argues that political stability can take place only if a system of rights and liberties equal for all is itself implemented. It would then be stability “for the right reasons” (Rawls 2005, 388n21, 390, 392). We saw the different ways in which society as a whole is present in Political Liberalism. First, we saw that members agree on the idea that society as a whole should give itself a system of rights in its basic structure. We also saw that the constructivist approach applying to citizens presupposes the existence of society as a whole. Finally, the principles of justice were seen as serving the purpose of political stability of society as a whole. These three ideas show that the principles of justice within a single society are not reducible to a collection of individual rights and freedoms, for they also reveal the existence of a people that determines itself by establishing a system of rights and freedoms. True, it is a system of rights and liberties for persons, but, at the same time, it is a system

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of rights that society as a whole is entitled to establish for the sake of maintaining its own political stability. Do we have additional reasons to believe that, in a certain sense, according to Rawls, society as a whole may be the subject of collective rights? Where do we find further evidence for that claim? Let us first remind ourselves that Rawls distinguishes civic/negative liberties and political/positive liberties in the first principle. The first kind of rights relates to things that the state must refrain from doing, like violating freedom of expression, freedom of association, and freedom of conscience. These are principles of non-interference. These rights create an obligation of the state not to interfere in individual affairs. The second relates to active roles that citizens must play, such as the right to vote, the right to run for elections, and the right to participate in deliberative procedures. We could call these “principles of empowerment.” The first thing to note is that, for Rawls, these last principles cannot be reduced to norms of non-interference. The second thing to note is that, as political liberties, they are part of the basic liberties of each citizen (Rawls 1971, 61; 2001, 44; 2005, 291). Are political liberties to be understood really as principles of empowerment? In his replies to Habermas (Rawls 1995), Rawls describes civic and political rights as instances respectively of the “liberty of moderns” and the “liberty of ancients.” He argues that political liberalism is perfectly compatible with classic republicanism.5 By “classic republicanism,” we must understand the Athenian version according to which citizens must assume a certain number of responsibilities for their own society (Rawls 2001, 143). Rawls makes it abundantly clear that his view is opposed to a civic humanism that treats political involvement as part of a virtue ethics, that is a theory that enhances the virtues of mind and character that would realize our essence as a political animal, understood in the Aristotelian sense. Civic humanism is a comprehensive doctrine that cannot be invoked in the context of political liberalism. Rights are not to be explained on the basis of obligations that we have concerning the “capacities” of persons or peoples. It is the other way around. Obligations are consequences that follow from there being rights in the first place. Whenever there is a subject of a right, there has to be an agent that is the subject of an obligation. We may therefore interpret political liberties and the liberty of ancients as implying that society as a whole is the subject of a right that induces obligations on the part of its citizens. The obligations of citizens are not sui generis and do not stem from a virtue ethics. They are imposed

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upon them as a side effect of there being rights that society as a whole is able to exercise. The system of rights and freedoms does not make individuals the sole holders of rights. It also imposes obligations upon them, which amounts to recognizing the existence of rights that society as a whole possesses. Many readers will be baffled by an interpretation of Rawls suggesting that society as a whole is the subject of rights. There is not much explicit talk of it in Political Liberalism because Rawls wants to radically separate at least two applications of justice: within a single society between persons, and within international society between peoples. He wants to separate the treatment of these two issues. This is why he considers models that are not only ideal, as opposed to non-ideal, and abstract, as opposed to applied, but also simplified, as opposed to complex. In a complex society there may be persons and groups with different ethnic identities. In Political Liberalism, Rawls examines an application of justice to a closed society, without immigration, without contact with other societies, not containing national groups, reproducing its culture from generation to generation, in which one can enter only by birth and from which one can go out only through death (Rawls 2005, 12, 18). It is the very simplified model of a real society. It cannot be used to say that in a real society containing many subgroups organized into their own societies, Rawls would recognize only a system of individual rights. Even more importantly, for our actual purposes, since he wants to discuss rights and obligations of persons within a single society separately from the rights and obligations of peoples in the law of peoples, he does not want to raise the issue of the rights that a people has when he is discussing the responsibilities that persons must assume as citizens. But if political liberties are cast as principles for the liberty of ancients, then it is hard not to describe them as obligations and society as a whole as a subject of rights. Rawls wrote a book called The Law of Peoples. This book should not be understood merely as a contribution to the theory of international law. Rawls insists that the rights and obligations are those of peoples and not states (Rawls 1999, 4, 17, 25–6). Peoples are moral agents, sources of legitimate moral claims (17, 27, 35, 44, 62). Rawls develops a political conception of the people understood from its institutional organization (23). Peoples are even subject to a second original position (10, 17, 32–4, 115). Here too the model is simplified, for the peoples that he considers are those that are organized into states. But Rawls admits that there could be additional principles applicable to complex

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societies, and it is in this sense that he also recognizes the right to selfdetermination, the right of secession, and the right to federate (38). Be that as it may, we may now understand more the connection that holds between Political Liberalism and The Law of Peoples. If in this latter work, Rawls refers explicitly to peoples, they are not completely ignored in Political Liberalism. As a matter of fact, they play a crucial role in the overall argument of the book, even if they do not occupy centre stage. To repeat, full autonomy is for Rawls “realized in public life by affirming the political principles of justice and enjoying the protections of the basic rights and liberties; it is also realized by participating in society’s public affairs and sharing its collective self-determination over time” (Rawls 2005, 77–8). How can we explain the fact that so many interpreters tend to ignore the crucial importance of peoples for Rawls? Perhaps one reason is that the publication of The Law of Peoples has been greeted with harsh criticism. Many philosophers have decided simply to ignore it or to treat it as foreign to the spirit of his previous books. Another reason is that Rawls’s contribution on the rights of peoples has been supplanted by more sophisticated works done by contemporary philosophers, even if they subscribe to a variant of ethical individualism. Kymlicka (1995), Buchanan (1994), Tan (2000), Newman (2011), and Casals (2006) have tried to develop a liberal account of group rights, but they also think that the only way to do so is to try to show that it is compatible with ethical individualism. Of course, there are those who, like Parekh (2000), McDonald (1991b), and Jovanovic (2012), correctly believe that collective rights cannot be derived from ethical individualism, but they feel for that reason that the correct account must not be liberal. Both camps agree on the existence of an almost logical connection between liberalism and ethical individualism. I beg to differ. I believe that there is no such logical connection between the two doctrines. The connection is a historical one. Rawls’s political liberalism is a version of liberalism that avoids a comprehensive individualistic foundation. So I intend to prove that the two sides of this debate are wrong, and I shall do so by developing a liberal theory of collective rights. Political liberalism is committed to respect all political agents that are present in the political realm. Since it relies on political conceptions of persons and peoples, it avoids committing itself to ethical individualism and is able to recognize not only persons understood in their institutional identity of citizens, but also peoples understood in their institu-

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tional identity of societies, or societal cultures. The claim is not that persons are no less artificial than states or nations. Persons may be defined primarily as real, embodied human beings, but, in the context of a theory of justice concerned mainly with the basic structure of society, we need to consider only their institutional identity as citizens, permanent residents, or registered aliens with id cards having certain rights and obligations, and remain agnostic regarding the intrinsic features of persons themselves. This move allows us to look at individuals and national groups as having similar features, for peoples too have an institutional identity, and they too can count as moral agents. It would also be wrong to suggest that I am treating persons as if they were ontologically just like small states (whereas Kant suggested looking at states as if they were moral persons). The mistake here would be to think that the political conceptions of persons and peoples are ontological, but they are not. Neither must they be understood as fictional entities, since I am not committed to anything concerning what they are, from an ontological point of view. In a way, political persons and peoples are treated as things that exist for us. We simply assume that they exist and we take their existence for granted without raising ontological issues and discussing their ontological status.

rawls criticized In developing his law of peoples, Rawls wanted this account to both capture the essence of actual international law and provide a normative foundation for international law. So he devised a political concept of peoples. Rawls explicitly claims that he is making use of a political concept of peoples, similar to the political concept of persons. So clearly, we are dealing here with another instance of the framework of political liberalism. On the basis of political liberalism and of a political concept of peoples, he introduced a second original position, where the representatives under the veil of ignorance are those of peoples. Rawls insists that the subjects of the rights and obligations in this second original position are peoples and not states, treats peoples as moral agents, and ascribes them collective rights and obligations. Who could ask for more? Peoples that own a legitimate sovereign government have, among other things, the right to independence, according to Rawls, but there are also rights for peoples that do not own a state. These have a right to self-determination and may even have the right to secession under certain conditions. He argues also that there must be rules for forming a

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federation of peoples. Once again, I repeat, who could ask for more? Within political liberalism, it appears that we are able to introduce sideby-side a regime of individual rights for persons and a regime of collective rights for peoples. Nonetheless, the reception of his Law of Peoples was lukewarm. Many Rawlsians expressed their disappointment.6 Even though I agree with most of their criticisms, I do not think that the problems result from the general framework of political liberalism, or from his acknowledgment of rights for peoples. The main difficulty comes from his realistic approach to international relations and from the predominance of the nation-state framework that, in the end, dominates his thought. He did not agree with the idea that we were now engaged into a global basic structure. A second difficulty stems from the fact that in order to achieve an overlapping consensus on principles of justice in a given society, Rawls thought that there must be a tradition of experiencing moral pluralism within that society. Political liberalism needs to be based on crossreferenced consensus and arguments flowing from public reason. But he believes that in order to meet these constraints, we have to exploit consensuses that are already present in the political tradition. It is only in such a tradition that we can experience the irreducible and reasonable pluralism of moral, metaphysical, and religious points of view. This seems to condemn liberalism to be nothing more than a product of our Western political culture. Consequently, according to Rawls, international consensuses including all decent peoples will inevitably have to transcend the liberal framework. It is in this way that he was led to embrace a certain form of moral relativism (Rawls 2005, 228–9; see also Tan 2000, 172).7 A third mistake was to fail to underline the structural relationship between liberalism and democracy. He thought that the consensus among peoples did not require in each of them the presence of a true democratic structure in which individual citizens could exercise their rational autonomy. Liberal Western societies are societies in which the institutions are organized around individualistic conceptions of persons and peoples, while communitarian societies are societies in which the institutions are organized around communitarian conceptions of persons and peoples. He was eager to establish a minimal consensus among individualistic and communitarian societies, but he thought that communitarian societies had to be decent hierarchical societies, i.e., societies in which the basic civic liberties are respected but not political liberties as such. In these societies, there is no electoral process,

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as such, and only a certain kind of minimal consultation of the population. As a matter of fact, he thought that persons could not enjoy full rational autonomy within communitarian societies. So he did not notice that there could be, in principle, what I shall later describe as communitarian democracies. I shall return later to these three failings. For the moment, let me just emphasize that they are intimately linked with one another. First, in our day and age, it may be argued that we have transcended the old Westphalian model presupposed by Rawls. There is a global basic structure that perhaps does not replace the domestic basic structures but that is at the very least superimposed upon them. Second, this global basic structure makes it possible to experience, at the international level, the irreducible and reasonable pluralism of different moral, religious, and metaphysical conceptions. Non-liberal societies that have no historical encounter with irreducible and reasonable pluralism can thus experience this pluralism within the global basic structure. So, in principle, they are able to become liberal societies even if they do not have a tradition of experiencing pluralism. This can also lead them to embrace democracy. Indeed, the Arab Spring has revealed a genuine possibility that some countries could exemplify the model of a communitarian democracy up to a certain point. If these alternative options were possible, it would allow us to reinstate the universal character of liberalism. So political liberalism should not be blamed for the failure of a Rawlsian approach to the law of peoples. The problem comes not from political liberalism but rather from the Rawlsian endorsement of the old Westphalian model and the correlative failure to see the emergence of a global basic structure. It comes also from the failure to see that there are other ways, apart from a historical political culture, that can lead one to experience pluralism, for it can also be experienced within the global basic structure. And it comes from the failure to appreciate the required connection that prevails between liberalism and democracy, as well as the correlative failure to acknowledge the possibility of a communitarian democracy that respects the fundamental principles of liberalism: not only the basic civic liberties but also the basic political liberties. In this sense, I am in complete disagreement with Kok-Chor Tan’s explanation of the failures of The Law of Peoples.8 Tan traces the problems encountered by Rawls back to the fundamental principles of political liberalism, and seeks to show that liberal individualism is a more promising philosophical framework for thinking about the interna-

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tional order, about the law of peoples, and about minority rights. This book offers arguments that prove him wrong.

rethinking rawls’s legacy No matter the intrinsic merits of Rawls’s contribution to the law of peoples, it has to be acknowledged that, unfortunately, Rawls has focused his attention only on peoples that are organized into states. He thought it was useful to begin with this methodological simplification and to leave it to others to develop theories about the right to internal self-determination, about the right to secession, and about the rules governing federations among peoples. Perhaps at the same time, his methodological simplification also reveals that he places great emphasis on nation-states and seems to give less importance to multinational states. But this is precisely the failing that the present work intends to repair. I seek to formulate a liberal theory of collective rights that takes into account the situation of national groups that have no sovereign government, and I plan to achieve this goal using the resources of political liberalism.9 It may come as a surprise to find inspiration in Rawls in order to formulate a theory of collective rights for national groups, including minorities like indigenous peoples. Rawls has not written anything on this subject. Worse, his work is very often interpreted as the epitome of liberal individualism. Does he not acknowledge only individual rights? However, this interpretation not only ignores The Law of Peoples, it also mistakenly disregards the fact that a Rawlsian theory of justice at the domestic level also takes place within the framework of a very simplified model, that is, a closed society without immigration, minority peoples, and other national groups. Thus Rawls writes, I assume that the basic structure is that of a closed society: that is, we are to regard it as self-contained and as having no relations with other societies. Its members enter it only by birth and leave it only by death. This allows us to speak of them as born into a society where they will lead a complete life. That a society is closed is a considerable abstraction, justified only because it enables us to focus on some main questions free from distracting details. At some point a political conception of justice must address the just relations between peoples, or the law of peoples as I shall say. In these lectures I do not discuss how a law of peoples might be

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worked out, starting from justice as fairness as applied first to closed societies. (2005, 12) It is important here to notice the implications of such a simplification. It is not just an external simplification ignoring the relationship of a given society with other societies located in different territories. It is also an internal simplification, because we are assuming, first, that the only way to enter this society is through birth and the only way to leave it is through death. So it is a society that does not involve migration or immigration (see also Rawls 2005, 40–1, 68, 135–6). Furthermore it is also assumed that this society is “conceived as existing in perpetuity: it produces and reproduces itself and its institutions and culture over generations and there is no time at which it is expected to wind up its affairs” (18). In other words, not only do we have individuals only entering through birth and leaving through death, doing this as it were from within a single generation. It is also assumed to be that way from a diachronic perspective. It is not only assumed that a society is now to be closed. It is assumed that it has always been closed and that it will therefore involve a single culture that reproduces itself through time. Rawls thus provides us here with another feature of the internal simplification involved in a closed society. It is a culturally homogeneous society, since it reproduces its culture over generations. Finally, and this is just a logical consequence that follows from excluding the law of peoples, a closed society cannot involve minority peoples, for the only way to deal with a society concerning minority peoples would be to rely on the law of peoples. Now Rawls precisely states that he wants to exclude the issues relative to the law of peoples. So this is a third aspect of the internal simplification involved in the concept of a closed society. Not only is it a society without immigration and without cultural minorities, it is also a society devoid of minority peoples. One must not conflate the distinction between simplified models versus complex accounts on the one hand, with the distinctions between abstract theory and applied philosophy, or between ideal theory and non-ideal theory. Certainly Rawls is keen to develop ideal theories and eager to formulate his account in abstract terms. But here I am alluding to another distinction that is often left unnoticed. It is the fact that Rawls offers only a model of society and takes into consideration only one application of justice. In both Theory of Justice and Political Liberalism, he considers only an application of justice to the members of a single society. But there are many other applications of the concept of

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justice. It may also apply to the relations between peoples in the society of peoples, to the justice between generations, to animal justice, or perhaps even to ecological justice. Now in any given real and complex society, these different concepts of justice are bound to apply simultaneously. But Rawls completely ignored the complex issues raised by the simultaneous application of various concepts of justice. It is important to keep that in mind when one reads Rawls. For if we ignore the simplification involved in the model for justice as applied to a single society and map the theory directly unto real societies, then Rawls appears to be a staunch individualist. In short, it is only if we ignore the fact that Rawls works within extremely simplified models that we are tempted to read him in Theory of Justice and Political Liberalism as advocating only individual rights. A similar simplification takes place at the level of the law of peoples. Here, Rawls is assuming that all peoples have their own sovereign government. He writes, This account of the Law of Peoples conceives of liberal democratic peoples (and decent peoples) as the actors in the Society of Peoples, just as citizens are the actors in domestic society. Starting from a political conception of society, political liberalism describes both citizens and peoples by political conceptions that specify their nature, a conception of citizens in one case, of peoples acting through their governments in the other. Liberal peoples have three basic features: a reasonably just constitutional democratic government that serves their fundamental interests; citizens united by what Mill called “common sympathies”; and finally, a moral nature. (1999, 23) Just as society in the first original position was understood as devoid of immigrants, cultural minorities and minority peoples, so it is assumed in the second original position that we are dealing initially with a similar kind of homogeneous people. Rawls thus writes, As for a liberal people being united by common sympathies and a desire to be under the same democratic government, if those sympathies were entirely dependent upon a common language, history, and political culture, with a shared historical consciousness, this feature would rarely, if ever, be fully satisfied. Historical conquests and immigration have caused the intermingling of groups with dif-

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ferent cultures and historical memories who now reside within the territory of most democratic governments. Notwithstanding, the Law of Peoples starts with the need for common sympathies, no matter what their source may be. My hope is that, if we begin in this simplified way, we can work out political principles that will, in due course, enable us to deal with more difficult cases where all the citizens are not united by a common language and shared historical memories. One thought that encourages this way of proceeding is that within a reasonably just liberal (or decent) polity it is possible, I believe, to satisfy the reasonable cultural interests and needs of groups with diverse ethnic and national backgrounds. (1999, 24–5; my own emphasis) The idea seems to be that even if we were to begin with a society held together by common sympathies like language, culture, and shared historical consciousness, eventually we could be able to adapt the model so as to include in our concept of society, groups with different ethnic and national identities. Peoples can eventually be multilingual, multicultural, and multi-ethnic. But we must begin with the simple cases of peoples that have their own government and are initially quite homogeneous, and then modify the model accordingly, in order to adapt ourselves to the more complex cases. In the simplest case, the law of peoples would involve the eight principles,10 but Rawls acknowledges that this list is quite incomplete (1999, 37). In addition to the right to independence, for instance, suitable for peoples with a sovereign government, Rawls acknowledges that, in reality, societies can be quite complex, and even that there are stateless peoples. This is why he talks about the possibility of adopting principles concerning the self-determination of peoples and even principles regarding the secession of peoples, as well as principles governing federation of peoples (Rawls 1999, 38; see also note 45 where Rawls briefly discusses the failed attempt at secession of the South in 1860–61). These principles are not contained in the initial list, but they would apply to complex societies “where all the citizens are not united by a common language and shared historical memories.” These principles would enable us “to satisfy the reasonable cultural interests and needs of groups with diverse ethnic and national backgrounds.” Clearly, the peoples referred to on page 38 of The Law of Peoples are not organized into sovereign states, for they are stateless peoples exercising their self-determination, attempting secession, or seeking to organize themselves into a federation.

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So it appears that when we look at the more complex cases of societies, it is no longer true that the only principles that apply are the two principles discussed in Theory of Justice or Political Liberalism. The reason is that in a society that is not closed, there are immigrant groups, cultural minorities, and stateless peoples. So one must be very careful when one maps the two models, for persons and peoples, onto real sovereign societies or the real society of peoples. The models that Rawls has developed are not meant to apply straightforwardly to reality, because they are extreme simplifications of a reality that is much more complex. Of course, the principles of the theory of justice and the principles in the law of peoples are meant to apply to reality. But it would be a mistake to think that Rawls is committed only to a regime of individual rights when the society is multi-ethnic, multicultural, or multinational. In these latter cases, there are additional principles to apply, like those that relate to the right of self-determination, the right to secession, and the right to a multinational federation of peoples. It is clear that Rawls did not engage in such a development. Apart from what one reads on page 38 of The Law of Peoples, it is hard to find a place where he discusses the rights of cultural minorities, immigrant groups, or minority peoples. My interest in the law of peoples is not just to account for the claims of peoples forming whole populations organized into sovereign states, but to account also for the claims of those stateless peoples and those of other national groups, whether they are extensions of neighbouring national majorities or communities arising out of immigration. In particular, I would like to examine liberal arguments that justify the entrenchment of collective rights in the constitutions of states that would include such national groups.

more questions and queries The reader might find it interesting to hear that liberalism can be political and not necessarily be based on ethical individualism. She might even be persuaded by the suggestion that political liberalism remains neutral between communitarianism and ethical individualism. This is, after all, what comes up from a careful reading of Rawls (2005), where he repeatedly argues against the confusion between political liberalism and the comprehensive views of Kant and Mill. The reader may also be convinced that the Rawlsian version of political liberalism, as opposed, say, to the version defended by Charles Larmore (1999), can allow for collective rights, for this is again something that follows from textual ev-

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idence (Rawls 1999). Moreover, she can perhaps also be willing to generously follow my argument far enough to accept that the apparent absence of collective rights in Theory of Justice and Political Liberalism must be explained by Rawls’s commitment to simplified models. Again, there is ample textual evidence to that effect, since, as we have seen, the first application of justice concerns closed societies without immigration, cultural minorities, and minority peoples, while the second application of the concept of justice concerns, in its initial application, homogeneous peoples that are organized into sovereign governments. These radically simplified models remain useful, because they allow us to separate two very different topics: a theory of justice for a single society of citizens, and a theory of justice for a society of peoples. I have argued that these two kinds of principles can inspire us in accounting for complex societies composed of many different peoples, many cultural minorities, and many immigrant groups. Even if the reader were convinced by all those claims, there would remain serious objections to consider. It is far from obvious that Rawls would have given no priority to the rights of persons over the rights of peoples. Is Rawls really committed to maintain the existence of two equal sources of valid moral claims? Does he really want to establish a balance between these two types of rights? First Objection: An Extension of the First Original Position? The first argument against this interpretation is that the second original position, involving representatives of peoples, is an extension of the first original position. There seems to be a relation of subordination between the law of peoples and the principles of justice established in the first original position. Since we initially establish the principles in the first original position and then work out the principles in the second one, this suggests that there is a lexical order between the two levels. Since in the first original position, the principles under consideration concern only individuals, this presumably shows that individual rights have a priority over collective rights. How can we answer this objection? When Rawls talks about the second original position as an extension of the first one, he is not establishing a hierarchy among the principles formulated in the two original positions. He is merely generalizing the method of the original position and the veil of ignorance. The “extension” in question is the extension of the method. It is a matter of procedural justice and does not involve

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a lexical order in the substantial principles. The objection also wrongly presupposes that in the first original position we are dealing only with persons and not with peoples. But according to Rawls, the principles of justice established in the first original position apply in the context of a “self-contained national community” (Rawls 1971, 457). This reveals in many ways the importance of national communities for Rawls. First, the principles refer to a system of equal liberties for all. It is not just an aggregate of individual rights. It is a system of rights equally distributed among all the members of society and applied to the basic structure of that society. Second, as we saw, this systematic character of civic and political liberties can be interpreted as something that a people is in a position to establish, maintain, and develop for itself. So it stems from the right of a people to adopt the constitution of its choice. It comes from a collective right exercised by the people as a whole. It is in this sense that the principles of justice are to be understood, not just as an aggregate of individual rights. The system of equal rights and liberties is created by the people as a whole. Third, peoples are in another sense crucial ingredients, even in the first original position, for, as we saw, they are sources of obligations for citizens. Let us now consider a second objection to the suggestion that there is an equal balance between the two basic principles and the law of peoples. Second Objection: No Obligations for Individuals? Like the first objection, this second objection also suggests the existence of a hierarchy of rights. In The Law of Peoples, there are obligations that peoples have to persons, but there are apparently no similar obligations that persons have to peoples in the first original position. This asymmetry between the two levels would presumably reveal a hierarchy of the rights of persons and the rights of peoples. However, as we saw, this also appears to be false. We have argued that political liberties could be seen as obligations that citizens have toward society as a whole and that society as a whole is a subject of rights. But can we argue that the rights enjoyed by individual citizens are more important that the obligations that they have? Conversely, could we argue that the obligations that a people has toward individual citizens are much more important than the rights that they enjoy? In trying to answer this objection, let us first remember that Rawls imposes no hierarchy in the first original position between civic and political liberties. Nor does he impose a hierarchy between the rights and obligations of peoples in the second original position. Now,

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it is true that in his previous work, he gave in some sense a certain priority to the liberty of moderns over the liberties of ancients (Rawls 1971, 201). The liberty of ancients, as political involvement, was treated as instrumentally essential for the full deployment of negative liberties. Similarly, in Justice as Fairness, Rawls thought that the liberty of ancients was at once instrumental and essential for the liberty of moderns (Rawls 2001, 143). The instrumental character of the liberty of ancients suggests a relation of subordination, although it will also be equally important if it is essential for the second kind of liberties. An arm may be instrumental for a hand and at the same time be essential for it. Nevertheless, some may want to use these passages as an indication that there is, after all, an asymmetry between the principles in The Law of Peoples and those that are described in Political Liberalism. In The Law of Peoples, peoples have obligations to individuals that cannot be compared with the obligations of individuals to their own people. The latter have only an instrumental role to play in the establishment of a system of civic liberties, while the obligations of peoples toward individuals in The Law of Peoples are as important as the rights of peoples themselves. Fortunately, Rawls has clarified his position, in his answer to Habermas. Indeed, Rawls (1995, 156n39) stresses the equal importance of the liberty of ancients and the liberties of moderns.11 He now seems to adopt a very different position, for he clearly no longer places any hierarchy between these two kinds of liberties. Political liberties have value notably because they are a primary social good. He argues that he always thought that self-government did not just have an instrumental value (Rawls 1971, 233f). But now, there is an internal link between public and private autonomy (Rawls 1995, 161–2). Public and private autonomy are both co-original and of equal weight (Rawls 1995, 163). There are then obligations that citizens have toward their own society that are symmetric to those that a people has toward its own citizens. Third Objection: Peoples are Not a Domestic Issue A final attempt to reinstate a hierarchy between the two sorts of rights, individual and collective, would be to underline the fact that, for Rawls, collective rights belong first and foremost to the application of justice in international law. In this reading, the collective rights of peoples would come to play a role only in international relations, but they would almost have no bearing on justice at the domestic level. Now as

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we already saw, this argument misses one crucial element in the theory. It is the fact that Rawls makes use of simplified models. It is absolutely wrong to simply map onto a real society the principles that were arrived at in the first original position and say that these are the only principles that apply within such a society. The two fundamental principles of justice apply only in the extremely simplified contexts of closed societies, in which there are no minority peoples, no cultural minorities, and no immigrant groups. Real societies are characterized by the presence of various national groups such as minority peoples and various minority fragments of peoples, such as immigrant groups and extensions of neighbouring nations. So it is simply false to interpret Rawls as saying that his two principles of justice are the only ones that we must accept in a complex multinational society. Can we claim that his law of peoples applies only in the context of international relations? Here again, this ignores the fact that the eight principles apply only in the context of a simplified theory in which all peoples are organized into sovereign governments. But Rawls acknowledges that there are also principles in addition to these eight initial ones that would concern self-determination, secession, and federations of peoples. In other words, in a complex society, the individual rights of persons and the collective rights of peoples are bound to occur side-by-side without a hierarchy.

a “corporate” conception of peoples If we understand peoples as having an institutional identity, not only corporations but also groups with a “corporate” identity (using Peter Jones’s terminology) may be described as moral agents (Jones 1999a, 365). As a matter of fact, the institutional conception of peoples looks very much like the “corporate” account of Peter Jones. It is opposed to the “collective” account of Joseph Raz, which is an aggregative view that reduces group interests and group rights to those of individuals. Interestingly, Jones observes that the corporate view is endorsed by Rawls: “One, perhaps surprising, exponent of corporate group rights is John Rawls. He ascribes various rights to ‘peoples’ and his insistence that the liberal conception of the person must not be transposed from liberal to non-liberal societies seems to rule out a ‘collective’ understanding of those group rights. Moreover, the rights of peoples appear to have a fundamental rather than a derivative status for Rawls or, at least, as fundamental a status as his approach allows” (365n25).

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As opposed to the “collective” account of Raz (1986) (understood as implying only a collection of individuals), Jones suggests that Rawls subscribes to a corporate view of the people. Of course, corporations are genuine agents, but corporations are not the only moral agents. The corporate account must not be restricted to corporations, for peoples too have a corporate identity. In order to have a corporate identity, it is not necessary to be legally incorporated. A group may exhibit a certain kind of corporate identity as soon as it is institutionally organized. As Jones suggests, “On the corporate conception, a group does have moral standing qua group and it bears its rights as a single integral entity rather than as so many individuals who possess a joint claim” (1999a, 363).12 He is also perfectly right to claim that the rights of peoples have a fundamental status for Rawls and are not derived from individual rights or interests of persons. In this third chapter, I have shown that political liberalism may be hospitable to collective rights and that Rawls himself has paved the way for such a development within the liberal tradition. Taking its distances from ethical individualism, he was in a position to accommodate peoples without engaging in complex ontological issues. He introduced a political concept of people similar to the political concept of a person. There is a difference in our conceptual scheme between asking what I should be doing, and asking what we should be doing as a people. It is because there is initially such a difference between these two sorts of questions that John F. Kennedy’s following statement made sense: “Ask not what your country can do for you, ask what you can do for your country.” There would be no choice to make if there were no difference between our interests as individuals and our interests as members of a people engaged in its collective self-determination. To put the matter differently, there are “objective” and “subjective” epistemological criteria for peoples, and a view that remains ontologically neutral must accept this dual account. I mentioned before that they present themselves in the political realm as societies, or societal cultures. This is an “objective” criterion. The “subjective” criterion relies on the habit of referring to a group as having a sense of belonging to the institutional organization of their group, or as exhibiting a certain form of collective consciousness, or as wanting to survive as a distinct group. Within political liberalism, we can appeal to these last features without buying into the aggregative conception of peoples. Someone who holds an aggregative conception will try to explain peoples only in terms of those subjective features. A defender of the more

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organic view will want to show that it is the organicity of peoples that explains their enduring property. But with the political conception, we appeal only to common-sense concepts of persons and peoples. These are concepts of folk politics just like those in folk biology, folk psychology, and folk physics. How can we accommodate collective rights within a liberal theory? The initial answer just given indicates the orientation that I wish to take. By adopting political conceptions of persons and peoples, the distinction between the two becomes obvious: as citizens (permanent resident or refugee) and as societies (sovereign or not and with or without government), they have distinct institutional identities exerting distinct kinds of influences on the course of things in the political arena. So they are two distinct moral agents with distinct rights and obligations. I leave the reader with a final thought to close down this chapter. Since Rawls adopts true collective rights for peoples, these suppose not only external protections, but also reasonable internal restrictions on their members. Now even within simplified models, in which society is closed and exemplifies only one people, that people is also the subject of rights and not only its members. The two applications of the concept of justice, initially separated to apply within a simple society and to a society of peoples, can be applied simultaneously to a society exemplifying a single people, for it is a society in which the people and its members are both subjects of rights and obligations. The state might not be entitled to force its members to comply with these obligations; nevertheless citizens do have obligations toward the rights of their own people.

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4 The Value of Cultural Diversity

In this chapter, I intend to develop within the framework of political liberalism a theory of justice that is founded on the fundamental principle of toleration as respect for the sake of political stability, or for short, “stability for the right reasons,” as Rawls would put it. Since respect is a certain sort of recognition and it plays an essential role in the establishment of political stability, we can say that in a sense political liberalism is based on a theory of recognition. Just like Axel Honneth, we make use of a broad, foundational concept of recognition that encompasses different sorts of struggles: cultural, socio-economic, and political. Rawls is best known for his work on socio-economic justice, but his Law of Peoples shows also a concern for cultural recognition, since it expresses a respect for external cultural diversity exemplified by the diversity of peoples. What is absent from Rawls is a concern with complex societies that exhibit internal cultural diversity and in which one finds many peoples and/or many minority fragments of peoples. It would be wrong to restrict the discussion of cultural diversity to peoples, while restricting socio-economic justice to individuals, for there are problems of socio-economic justice among peoples and problems of cultural recognition among individuals. There are cultural and socio-economic problems both inside a people and outside, in the relationships between peoples. A complete theory of justice would therefore have to formulate principles dealing with political representation, socio-economic justice, and cultural recognition for persons and peoples, both within the state and in international relations. It would have to deal with specific issues of political, cultural, and socio-economic equality as well as political, cultural, and socio-economic differences.

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The multi-dimensional approach to justice is inspired by the twofold perspective introduced by Nancy Fraser (1996, 2000, 2001; Fraser and Honneth 2003). Like her, I wish to defend a specific principle of cultural recognition in addition to a socio-economic distribution principle. I shall do so with the intent of establishing a parallel between the difference principle and politics of difference. I shall have to ignore the third realm also discussed by Fraser (2005), which involves the concept of political representation and so shall not formulate principles concerning representation, participation, and deliberation. I shall also have to ignore issues related to the existence of other institutional agents in the political realm: legal entities or corporations, whether these are unions, companies, or non-governmental organizations (ngos). Of course I shall have also to ignore non-human animals and environmental rights. In what follows, I concentrate on issues related to persons and peoples as well as minority fragments of peoples. I also ignore the non-national societal cultures of cities, provinces, federated states, cantons, regions, and landers. I concentrate on national societal cultures alone. My intention is to examine the internal structure of complex societies and to discuss the status of stateless peoples and their own internal minorities.

two sources of valid moral claims So far, I have given reasons to believe that political liberalism is compatible with collective rights for peoples. First, these groups are conceived of in strictly institutional terms, and not in terms of a predetermined social ontology. The political conception of peoples supposes at most a national self-image accepted by a critical mass of citizens, a set of shared institutions that cement the relations among such citizens, a historical trajectory, and the existence of a territory in which all of this is taking place. Next, political liberalism is also detached from ethical individualism, and it respects both communitarian and individualistic conceptions of persons and peoples. The conjunction of all these ideas (a political conception of peoples, the enfranchisement of ethical individualism, and the acknowledgment of a deep pluralism), together with the fundamental political principle of toleration as respect for the sake of political stability, opens the way to taking communities into account in the public space. These ideas authorize us to say that political liberalism is a relatively hospitable framework for collective claims.

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However, we have not yet seen the argument that forces us, in a way, to accept a dual rights regime: for persons and for peoples, especially if the goal is to justify recognition in the sense of esteem, and not only in the sense of equal respect. In this chapter, I begin by showing that, as agents in the public sphere, peoples are worthy of respect. In that minimal sense, they will already be the subjects of collective rights. Next, I argue that insofar as peoples are as a matter of fact sources of cultural diversity, the respect for peoples is at once a respect for cultural diversity. Now if political stability is our fundamental aim, and if respect for cultural diversity is essential for political stability, then respect of cultural diversity will itself become an objective to pursue. If, thereafter, cultural and socio-economic disparities occur between individuals and between peoples, we have the obligation to intervene to reduce these disparities as much as possible. Political liberalism thus makes it possible to accept not only the principle of equal respect but also a principle of esteem, and this is because a politics of cultural difference and the difference principle are both required to reduce socio-economic and cultural imbalances. Now, a politics of cultural difference expresses our attachment to the value of cultural diversity and the difference principle expresses our attachment to the value of the diversity of natural endowments. In other words, we have to recognize that peoples have differentiated collective rights. Socio-economic and cultural disparities must be fought with the difference principle and with a politics of difference respectively. In this way, we move from equal respect to a politics of esteem that expresses our attachment to cultural and natural diversities. In this argument, we affirm a principle that asserts the value of cultural diversity, but not by treating it as a primitive moral principle. It is derived from the principle of equal respect for peoples and from the observation that there are cultural imbalances among peoples. It is also derived from the fact that it plays an essential role in the achievement of political stability. There is now a consensus on this principle, as is shown by the unesco Convention adopted in 2005. The principle adopted in the unesco agreement shows that we have to defend and promote peoples because they play an important role in the preservation and promotion of cultural diversity. I do not want to simply present arguments in favour of collective moral rights at the cultural level, which would amount to adopt a politics of collective cultural recognition. I also want to show that, when based on toleration as respect and thus on a primitive form of recognition, political liberalism can also lead to collective moral rights at the socio-

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economic level. I hold that political liberalism makes it possible for us to derive not only a politics of cultural difference for persons and peoples, but also a socio-economic difference principle for persons and peoples. I shall be able to show that this doctrine leads to the acceptance of two distinct, autonomous regimes of moral rights, for persons and for peoples, dealing with both equal dignity and difference, on both the socio-economic and cultural levels, within and outside sovereign states. For collective rights to be admitted, we have to be able to identify a certain class of collective agents who can be considered moral agents. Reasoning in this respect can also provide arguments that make it possible to identify which groups are likely to be the subjects of collective rights. Among the possible groups, I would like to give special status to peoples and minority fragments of peoples. I shall have the opportunity to explain this exclusive choice later. In the following pages, I shall simply explain why peoples should be considered as a subject of collective rights. The question later will be, Why come to the defence of this kind of group and not other groups? Why should we restrict collective rights to peoples (and minority fragments of peoples)? What is so special about peoples? Are peoples more “important” than cities? Why not favour supranational political organizations instead? In this chapter I simply want to establish an argument in favour of including peoples in the list of those groups who are entitled to collective rights, with special attention to those who exist within existing states.

six arguments for collective rights Let us now consider a first argument for allowing collective rights to peoples. As we have seen, according to some, collective entities are important only because they are essential to individual well-being. It is thought that even if groups cannot be reduced to individuals, their claims are important only if they influence individuals (Kukathas 1992, 112). It may even be acknowledged that without peoples, we would never have been able to establish systems of individual rights and freedoms. Peoples form cultural structures that bring together political, economic, education, and cultural institutions. These institutions provide a context of choice in the sense that individuals have various options and the possibility to choose what suits them in these institutions, so as to promote their own conception of the good life. It is because we were born with a certain freedom to choose in a context of choice provided by our society that a system of rights and freedoms emerged. It

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could even be argued that the cultural structure of a national group conditions and favours the establishment of democracy and a system of rights and freedoms. There is a close relationship between a national community and the possibility of establishing a set of rights characteristic of a liberal democracy. The above remarks give us an initial reason for thinking that peoples should be treated as important. From a sociological point of view, they are societal cultures that condition the very possibility of creating all sorts of subgroups. A people is a “social union of social unions,” and this union can exist only within the framework of a societal culture, since the system of rights and freedoms that can be established favours the flourishing of different particular social unions. This first argument underlines the fact that peoples offer a context of choice and are useful for exercising liberal individual rights. It is an argument that underlines the fact that peoples may often favour internal cultural diversity. This first argument is not the only one available. Here is another one. Even though not all citizens may recognize the importance of the people, this group always appears in allegiance rankings. Different individuals certainly rank their allegiances differently, and of course the importance placed on the people may vary from one individual to another and even over time for a single individual. Nevertheless, it can be plausibly claimed that peoples appear somewhere in all allegiance rankings. We all have one or more national allegiances that we would want to mention somewhere in those rankings, no matter what importance we place on such affiliations. Furthermore, peoples condition the very possibility of different allegiance rankings. This is a third argument. As a context of choice, it enables one to entertain various allegiances like our district, our city, our fellow workers, our professional association, our religious group, our people, our country, our supranational organizations, etc. In other words, it conditions the very possibility of producing a mental chart of group allegiances. Individuals are not always aware of this, and it can lead them to assign little importance to their national allegiance. However, unlike cities, professional associations, and supranational organizations, peoples have this important role to play. It is paradoxically because of peoples that we are in a position to prefer other group allegiances and even to denigrate our national allegiances. In order to see the important nature of national identity, we need only to look at certain aspects of societal cultures. This will count as a fourth argument for allowing peoples to enjoy collective rights. I am

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thinking in particular about language. Even if a people, as an encompassing societal culture, may sometimes be multilingual and be composed of a number of simple societal cultures (in which case it is a multi-societal people), and even if a people’s language is not always different from that of other peoples, language is a major identity-determining ingredient in the cultural structure of any given societal culture. Now while it is easy for us to imagine ourselves outside of any membership in an association, city, village, or any supranational organization, it is not easy to imagine ourselves outside of any linguistic community, and consequently outside of any societal culture. Of course, we can imagine ourselves outside of our own societal culture, but this means only that we have joined another one. Therefore, on the psychological level and not just on the sociological level, societal cultures are important, even if they do not always rank first among our allegiances. Of course, some stateless individuals identify themselves with no specific people. What can be said about them? They often are individuals with multiple national identities, but who have no rational preference for any of them. They also place little importance on all these national allegiances. However, described in this way, they are not real counter-examples because they too would have great difficulty imagining themselves outside of any linguistic community. We thus accept a psychological hypothesis that enables us to identify the important nature of peoples. Some brandish the fact that individuals can have multiple identities as proof that national allegiance no longer constitutes a distinctive form of allegiance. However, if I am right, the opposite is true. If they had only one choice, many individuals would perhaps not mention national allegiance as important and would very often mention a different group or association. However, if they are given the opportunity to mention several groups, they always will include their national group, although they may perhaps rank this national allegiance differently. Multiple identities are thus what make it possible for us to see the important nature of the people. Multiple identities serve to reveal the fact that national allegiance is present in all mental rankings. I conclude from this that it is also possible to defend a social psychology thesis in favour of the importance of the people in general. The psychological claims that we just made may also serve as a basis for arguing that peoples (and minority fragments of peoples) are the only groups that deserve collective rights. But for the moment, my purpose is just to prove that they should at least be among the good candidates for collective rights.

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However, the above sociological and psychological arguments cannot justify giving rights to all specific peoples. Even if, on the basis of what has just been said so far, we were to give rights to different peoples, we could say nothing against systematic assimilation or against the possibility that all peoples should be integrated into a single larger people. Under such a hypothesis, the above-mentioned benefits could be wholly maintained, because individuals would still have a cultural structure. They could continue to identify with their people to various degrees, except that there would be only one people. In other words, the sociological and psychological arguments that we have just considered do not make it possible to give value to specific peoples as such. At most, they make it possible to give value to peoples in general. We need another argument to justify giving collective rights to a variety of peoples. Can we say that all individuals have sentimental ties to their own people or that their people is the object of their rational preference? If we could argue in this way, it would not be peoples in general that would be given value, but each specific people, because each individual would give greater value to his or her specific national allegiance. Unfortunately, as we have seen, this line of argument is blocked. Degrees of attachment and rational preference vary systematically from one individual to the next, and for a single individual over time. This prevents us from granting moral value to all national groups. Some might want to argue that enormous problems would be created if an individual were torn away from his or her culture. This may be so, but it does not have an impact on the moral value of the group. It may for prudential reasons convince us not to assimilate minority groups, but it cannot lead us to respect the diversity of national societal cultures. We have to look elsewhere in order to come to a lasting justification based on more solid and commonly shared moral foundations. Here are the two arguments that are intimately connected with one another and that together imply that we respect each people and not only peoples in general. The first one concerns the fact that all peoples contribute to external cultural diversity. Even if a people does not offer a large context of choice and cannot fulfil the goal of achieving internal diversity, it may still play a role in achieving external cultural diversity. It may do so because it has a distinct language, or distinct set of institutions, or distinct history. Insofar as external cultural diversity must be respected, it is hard to deny that peoples play an important role in this regard. Notice here that at this point we are trying only to justify respect for all peoples. We are not yet arguing for the fact that

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peoples must be esteemed. Notice also that the argument that we just introduced is based on the suggestion that external cultural diversity must itself be something that deserves respect. We are not yet arguing that it is a value. Here is a final sixth argument. In order to show that all peoples should be respected, we should argue in addition that a beneficial impact on political stability results from applying the principle of toleration as respect between peoples. This would be a consequentialist justification. Even if it were not initially considered beneficial, violent confrontation among peoples could lead to a modus vivendi. We would recommend a modus vivendi among peoples to put an end to violence. Then we would gradually see the benefits flowing from the modus vivendi in the political stability that it generates. In the long term, this could encourage us to transform toleration conceived of as a simple modus vivendi into toleration understood in the sense of respect. The preservation of the dignity of all peoples would thus be secured. Of course, political stability can be created between peoples that are in a domination relationship. However, this does not negate the idea that the stability generated by toleration understood in the sense of a modus vivendi can create a degree of respect between peoples, because stabilized domination relations are not really a modus vivendi based on toleration. We should not confuse a modus vivendi based on toleration with stability induced by domination. This latter kind of stability is not desirable. In contrast, a modus vivendi among equal peoples can be worthwhile in that it can lead to the establishment of true respect and thus a true stable society. Once toleration among equals has insinuated itself into relationships and has engendered stability, we can hope to see the emergence of respect among peoples. This involves considering all peoples to be the same as others, all having the right to equality and self-determination. This is still an equal treatment policy applying to peoples, and not yet a politics of difference, but it is a useful point of departure that allows us to accept that all peoples have collective rights to equal dignity. Initially, experience of conflict and diversity are seen as conditions that can be controlled in the form of a modus vivendi among peoples. However, as such forms of modus vivendi create stability in the relations among peoples, national diversity is increasingly seen as an unavoidable, irreducible fact that has to be respected. Just as human rights appear to be the only reasonable way to deal with irreducible diversity of points of view and values at the individual level, analogous considera-

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tions at the level of national communities would be at the origin of a law of peoples. We would move from a modus vivendi to a principle of respect for all peoples. We would be led to adopt a set of principles asserting equal respect for persons and peoples. The remarks that I have just made should not be interpreted as a universal socio-historical claim. There are many counter-examples against a sequence of events that starts from violence and then moves to toleration as a modus vivendi and then to toleration as respect. Neither would I want to rely on a particular philosophy of history and subscribe to a teleological account in which we would inexorably be led from violence to modus vivendi and then to toleration as respect between persons and between peoples. From a socio-political point of view, I am rather more favourable to an approach that begins by noticing certain reciprocal recognition among persons and among peoples and afterwards defending a normative point of view suggesting that this recognition should be generalized. This would be more in the spirit of what Rawls calls a “realist utopia.” The account would then be partly empirical and partly normative. According to this approach, the empirical facts inform the normative approach, and vice versa. There are certain facts that suggest that good relations among peoples lead to more stability. It may also be observed that very old conflicts may reoccur, even when we thought that they had disappeared. This may reinforce our conviction that we should try to establish reciprocal recognition in order to resolve once and for all these very old conflicts. The fifth and sixth arguments that we have just developed are closely connected. We have argued that peoples play a role for external cultural diversity. However, this can count as an argument only if external cultural diversity itself is to be respected. We wish to deny that it intrinsically deserves to be respected. Instead, I wish to argue that it must be respected because it is instrumental for the achievement of political stability. But this was our final sixth argument. We argued that peoples must be respected, and the main reason was that their respect yields political stability. Political liberalism is a doctrine that begins precisely by adopting a perspective like the one just mentioned. First, we notice the importance of toleration as respect for a given type of political agent. Then it is claimed that persons, peoples, and “legal persons” are three types of players in the public forum (in addition to sentient animals), and they command respect. However, recognition is a two-way street. There has to be reciprocal recognition among the different agents in the political

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realm. Next, we note that the reciprocal recognition involved is not a set of psychological attitudes entertained by all political agents. Rather, it is a system of principles treating political agents as moral agents. In the framework of political liberalism, the principle of toleration understood in the sense of respect must apply to all political agents. This has to include peoples (and sentient animals) and not only individual or legal persons. We have adopted a strictly institutional description of peoples and have freed ourselves from ethical individualism as well as taken into account all political agents. Then the six arguments that we have deployed allow us also to accept that peoples are autonomous sources of valid moral claims, in other words, autonomous in relation to individual claims, even if all individuals participate in the determination of these claims. Since they are agents acting in the political sphere and we are situated in political liberalism, the six arguments that we have developed are all that is required to treat all peoples as moral agents. Here, of course, it is crucial to distinguish the cultural structures and the cultural characters of peoples. When we talk about all peoples, we refer to their cultural structures and not their characters. The argument in favour of the respect of all peoples is thus as follows: 1 Peoples can be described in a purely political, non-metaphysical way, as having an institutional identity. 2 Political liberalism does not suppose a commitment to ethical individualism. It is no longer claimed that individuals are the only source of valid moral claims. 3 As entities with institutional identities, peoples themselves can therefore be agents in the political space. 4 The six arguments developed above justify treating all peoples with respect (considering their cultural structure) and thus treating them as moral agents. 5 Political liberalism requires toleration as respect for all moral agents intervening in the political space. 6 Therefore, political liberalism commands respect for all peoples and not only all persons. By “peoples” I am, of course, referring to strictly institutional entities and not to collections of persons gathered around sets of beliefs, values, purposes, and aspirations. After all, there are certain beliefs, values, purposes, and aspirations that are completely reprehensible, so this is not the sense in which all peoples can command respect.

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But why should we move in that direction? Why should we want to adopt a system of collective rights for all peoples, in addition to the principles that should be adopted for persons, legal bodies, and sentient animals? The ultimate argument, I believe, is that this system would yield political stability. For Rawls, persons and peoples may or may not have an intrinsic value as entities existing in the real world, but Rawls does not want to argue in favour of there being such moral facts. His constructivism prevents him from relying on any statements referring to moral facts concerning agents. There are several points connected with this. First, persons and peoples per se are not considered as such in Political Liberalism. Rawls considers them only as citizens and societies (or societal cultures, as Kymlicka would call them). Second, the respect for persons and peoples is not an intrinsic value from the point of view of political liberalism (although we can think of it as intrinsically valuable from the point of view of metaphysics), not even when they are described as citizens and societies. The principle of toleration as respect that is owed to each of them is instrumentally valuable only because it secures external cultural diversity and the political stability of society. For Rawls, political stability can be derived from our self-representations as moral agents and the fact that society is a system of cooperation for our mutual benefit. It is the most important value in the political realm. This interpretation fits neatly with what Rawls (2005, xvi–xviii, 38, 65) says is the main problem that he attempted to solve with his political turn. He argued that the whole point of the work was trying to solve the problem of stability. Our interpretation also jibes with Frank Vandenbroucke’s interpretation (Vanderbroucke 2001, chapter 8). Other theories may also take political stability to be the most important value, including conservative theories. But political liberalism states that liberal values are an essential requirement for political stability. Now if something A is essential to realize something B, which has value, A is no less valuable than B. This is why persons and peoples are “autonomous sources of valid moral claims.” They may be treated as moral agents with valid moral claims if their respect is instrumentally essential for achieving an even more important goal, namely political stability. This is “stability for the right reasons” (Rawls 2005, xliii). Let me end this section with a further thought. Persons and peoples have relational properties. For instance, persons may be citizens. They can also be recent immigrants or permanent residents or even refugees.

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These are all relational properties. They are not intrinsic properties. Of course, someone may think that, ontologically speaking, all persons are “political animals” or “self-interpreting animals.” These metaphysical claims may be true, but political liberalism is precisely the view that we consider persons under the description of these relational properties without asserting that these properties are essential to persons or not. A similar remark can be made concerning peoples. They are to be described as societies or societal cultures. They may be organized into sovereign states or may have a governmental identity that is less than a sovereign state, or even less than a governmental organization. We are not assuming that concepts such as citizens, recent immigrants, or refugees and permanent residents, are to be analyzed in terms of metaphysical persons having certain essential properties. We are considering them under their institutional guise. Just like an aircraft considers individual passengers and not metaphysical persons that also have the status of passengers, we can talk about citizens instead of referring to metaphysical persons having some properties. It is only under their political description that we talk about them. The situation is similar for peoples. They also have an institutional identity more or less recognized or acknowledged by the state or the international community. This identity is a relational property. Peoples are organized into societies. They must not be understood in the metaphysical sense of having the essential property of being societal cultures. The whole idea of political liberalism is not to talk about peoples apart from their having those relational properties. We talk about peoples under a description, if you will. So Rawls is not committed to say that, from the ontological point of view, they do or do not have intrinsic value. He may remain neutral on this issue. Saying that we can refer to some of them as having the institutional identity of being organized into sovereign states does not mean that we confuse the law of peoples and international law, where the main subjects of the rights are states, independently of the fact of being peoples. It is important to stress that, for Rawls, peoples and not states are subjects of rights. It is one thing to consider peoples only under the description of being organized into sovereign states, and it is quite another to refer to states as separate entities that would themselves be subjects of a certain number of rights. We can coherently argue in favour of a political conception of peoples and also for the idea that peoples and not states are the subjects of the rights. States are rational agents, but peoples, organized into states or through some other form

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of institutional organization, must be treated as moral agents, for they are sources of valid moral claims. Peoples see themselves as moral agents. Since the society of peoples is, like a single society, a system of cooperation for mutual benefit, stability must be secured in the society of peoples in order to protect the self-representations of peoples as moral agents. The respect that we owe to peoples is intimately linked to the political stability of the society of peoples. Since that respect is essential for realizing political stability, we can secure the fact that peoples organized into states see themselves as moral agents.

peoples as sources of cultural diversity I now come to the second stage of my argument. Even if respect is more than a simple modus vivendi and we have an argument showing that all peoples should be respected, it does not yet justify a proactive policy of protecting and promoting all peoples. Respect for peoples is not sufficient to justify a politics of difference, cultural pluralism, or positive action policies. Respect is one thing and esteem is quite another. In order to justify proactive policies, we need to show that peoples have value and can be the object of our esteem. The strategy I wish to adopt is to establish a justification for the protection and promotion of peoples. They do not necessarily have intrinsic value. We wish to remain neutral concerning this issue. We have suggested instead that a system of collective rights expressing toleration as respect for all peoples and all minority fragments of peoples is instrumental for political stability. Before we move along, I wish to reflect on one claim that we have made. Without arguing that cultural diversity is a value, we nevertheless have suggested that it must be respected, and we also argued that peoples contributed to cultural diversity, and that this is why they must also be respected. We have argued that peoples are sources of cultural diversity, with the additional premise that cultural diversity is instrumental for stability. As external and internal sources of diversity, all structures of cultures should be respected. However, many questions and criticisms could be raised against this thesis. Can we really claim that peoples are sources of cultural diversity? Is cultural diversity not created by something other than the people? Consider customs, traditions, works of art, fashions, languages, religions, etc. Are they not clear instances of cultural diversity created by individuals? But it may be argued that peo-

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ples and not only persons are primary sources of such differences. Persons are certainly an important source of cultural diversity, but these differences would not have occurred if humans had not developed separately, by grouping themselves into different peoples in different territories. So peoples also count as important sources of cultural diversity. It should then be argued that cultural diversity is itself instrumental for political stability. Let us consider now how it could be argued that peoples contribute to cultural diversity. Peoples are sources of cultural diversity for at least two reasons. They can be external or internal sources of cultural diversity. As an external source, a people distinguishes itself from other peoples by language, institutions, history, context of choice, or crossroads of influences. From one people to another, language is not always by itself a distinctive identity marker, but it is always part of a people’s cultural structure, and it can indirectly forge a distinct national identity, even if it is a language also spoken by other peoples. First, it can filter the influences that act on the people. Influences from societies that speak the same language will be the main ones. For instance, the cultural elements that a French-speaking people tends to retain come in particular from French-speaking countries, especially France, and this can be explained by language. Naturally, a French-speaking people will also be influenced in significant ways by non-French-speaking countries, but the influence of French-speaking countries will be crucial because of the language. Second, language also creates a shared space for public deliberation. It can facilitate the emergence of a specific consensus in the population and serves to determine the cultural destiny of the people. Thanks to deliberation, language can help to forge a unique identity in distinct institutions located at distinct crossroads of influence and in distinct geographical areas. In other words, it consolidates social cohesion among members of the people because communication is a condition sine qua non for relations with others and is a crucial factor in the emergence of consensus. The result of all of this is that language can play a major identity-determining role within a people, even if it is not unique to the people. This is true even if the distinctive nature of the people does not depend uniquely on language, because other factors, such as those I have mentioned (institutions and history in particular), contribute to forming a distinct national identity. Cultural diversity would not be so strong if human beings were not grouped in different areas and did not have different languages, different institutions or different histories.

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Peoples can also be internal sources of cultural diversity. Indeed, great diversity is often found within the borders of a people. This occurs especially in democratic societies that, historically, have been led to permit a wide variety of associations. In democratic societies, there is a reasonable and irreducible pluralism of religious, moral, and metaphysical beliefs. Internal diversity is also sometimes reflected at the ethnic level. Within a single society we can have many different peoples or minority fragments of peoples living side-by-side. But it is not necessary to have internal cultural diversity in order to participate in cultural diversity as such. Some indigenous groups, such as many Amerindian, Inuit, and Métis peoples, are each relatively homogeneous if one considers them from moral, religious, metaphysical, and ethnic standpoints, but they nonetheless contribute to cultural diversity because, externally, they are profoundly different from other cultures. For historical reasons that can be explained by conquest, racism, and political domination, the context of choice offered by these national cultures may sometimes be narrow (their context of choice does not offer access to a very wide range of cultures), but indigenous peoples nonetheless have features that enrich the world’s heritage. They may not always have great internal diversity, but they profoundly contribute to external diversity, and they do so perhaps more than many other cultures by being very different and coming from older civilizations. If external diversity could be illustrated by the exemplification of a specific crossroads of influences, internal diversity is provided by the context of choice. The important point to note is that a people can play an important role in cultural diversity even if its internal context of choice is rather restricted. A societal culture is more than just a context of choice. It is also a cultural structure that is part of a crossroads of influences and that can be distinguished externally from other cultures. Of course, we can imagine a people that would not be very different from others on the external and internal levels. Although it could still be worthy of respect, it would then be difficult to give a value to a specific people of this kind, if it is very similar to another people. If we resist the suggestion that peoples have intrinsic value and accept that they gain their value only if they contribute to cultural diversity, then we have no reason to oppose the assimilation of such a people with another similar people. This is true, but it must be noted that this situation is very rare. If anything, it is the exception rather than the rule. Different populations occupying different territories with different sets of institutions at different times in history will be confronted with dif-

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ferent crossroads of influences and will therefore generate different contexts of choice leading to distinctive histories. Even their language will tend to differ from a similar language spoken in different territories. I have argued that peoples should be respected by liberal philosophers on the basis of arguments purporting to show that they are moral agents, and political liberalism is required to treat with respect all moral agents that have a distinctive institutional identity in the political space. I have claimed that peoples are moral agents that should be treated with respect since they contribute to cultural diversity. However, an objection is that nationalism often goes precisely against internal and external cultural diversity, and peoples very naturally act in cavalier and assimilatory ways toward the cultural minorities within their borders. It could be argued that nation-building policies are designed to run against cultural diversity and that peoples naturally have a tendency to be nationalists. If anything, peoples seem to be adversaries, not friends of cultural diversity. So how can peoples participate in cultural diversity? In this case, we are not merely referring to the possibly homogeneous nature of some peoples on the moral, religious, and aesthetic levels, but rather to the ethnic, cultural, and political cleansing policies that representatives of a people could want to establish within the borders. In such cases, peoples are instrumentally against internal cultural diversity. Nationalism can also take imperialist, colonialist, and expansionist forms directed against other peoples, and thus go against external cultural diversity. Is there any need to say that nationalism is unacceptable under such circumstances? Of course I accept these arguments, and it is precisely because of those arguments that I have put some constraints on the idea that peoples deserve respect. I claimed that they deserve our respect because they can contribute to internal and external diversity. But those claims must also be understood as suggesting that peoples deserve our respect only if they do contribute to internal and external diversity. So even if very often peoples behave in violent ways (xenophobia, systemic racism, oppression, ethnic cleansing, occupation of territory, colonization, genocide, etc.), we need to see that the deep reason why these behaviours are unacceptable is that they go against cultural diversity. Of course, even if peoples are in fact major sources of cultural diversity, they can also at least as often be against it. In order to justify nationalism, we cannot simply claim that in many cases peoples are sources of cultural diversity. We also have to add a normative argument. I have argued that peoples as such were important sources of cultural

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diversity, sometimes from an external point of view and sometimes from an internal point of view. This potential role in developing cultural diversity could be used precisely to develop a normative criterion that permits us to distinguish good nationalism from bad nationalism. By giving nationalism respect only insofar as it serves the cause of diversity, we are precisely led to take a critical view on those nationalisms that do not serve the cause of cultural diversity. We can praise the merits of nationalism when it takes the form of claims that support cultural diversity. However, as a consequence, we also have to reject those nationalisms that go against that very same value. It is often said that the quality of a nationalist venture can be measured by the way it treats minorities. This normative point confirms that we are right to see a close link between the worth of peoples and the relationship that they entertain with cultural diversity. For nationalism to be morally acceptable, it must never seek to eliminate cultural diversity within its borders or outside its borders. Of course, if a society is relatively homogeneous in its customs and at the ethnic level, it does not necessarily mean that it is against internal cultural diversity. It is sufficient for it to be a democratic society and one in which everything is done in order to guarantee its contribution to cultural diversity. There is no need for a society to be ethnically diverse and to have a diversity of values for it to satisfy the normative principle of internal cultural diversity. It is necessary only not to do anything to prevent it from becoming pluri-cultural and poly-ethnic. As soon as such a culture authorizes the possible emergence of internal diversity and does not attack any form of internal or external cultural diversity, it meets our requirements. Problems may arise when the society is confronted with major sources of internal diversity. Its capacity for openness will then be tested, and the same problem will arise when it faces external cultural diversity. Let us now move to the issue of a politics of cultural pluralism and, therefore, to a politics of esteem that seeks to value cultural difference. How can we show, on the basis of the principle of toleration as respect, that persons and peoples are not only sources of valid moral claims and are worthy of respect, but also subjects of a politics of recognition? Should we claim that they have intrinsic value? According to the approach under consideration, persons and peoples are not necessarily ends in themselves and do not necessarily have intrinsic value. In the argument under consideration, persons and peoples could also be worthy of political esteem insofar as their contribution would have become

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uncertain and problematic because of various cultural imbalances such as xenophobia, systemic racism, political domination, ethnic cleansing, or genocide. If they are worthy of our esteem, the reason cannot be that their contribution to cultural diversity is said to have intrinsic value, because political liberalism is not supposed to appeal to primitive moral truths asserting that some moral fact holds. We must develop a constructivist argument.

the value of cultures We shall now try to circumvent this difficulty and try to avoid the argument that would consider the value of cultural diversity as an independent factual norm used in order to adjudicate whether a people is worthy of recognition. As already mentioned, cultural diversity has at least two aspects: it concerns cultural expressions of the individuals and the societal cultures of peoples. Individual cultural expressions include expressed views about the good life and the common good, innovations related to intellectual property, artistic creations, clothing, habits, etc. Collective cultural expressions include language, institutions, history of public institutions, traditions, customs, monuments, literary heritage, national holidays, etc. In accordance with a general constructivist argument for the value of cultural diversity, this means that we should be able to conclude that we must value the diversity of individual cultural expressions and the diversity of societal cultures. Let us now consider the cultural diversity of peoples and the diversity of individual cultural expressions. How can we succeed in justifying our defence of these two values? This is another question we have to answer. We cannot simply be content to assert that persons and peoples are two sources of valid moral claims that are worthy of respect (in addition to “legal persons” and sentient animals). We cannot simply assert that persons and peoples (and “legal persons” as well as sentient animals) have value and derive these conclusions from a primitive principle asserting the value of cultural diversity. We also need arguments to justify the value of cultural diversity as such. If we were able to show that cultural diversity is a value that has to be defended and promoted, and if peoples serve the cause of such diversity, then we would also be in a position to defend and promote the value of all peoples. There are thus two principles to consider: the principle asserting the value of diversity of individual cultural expressions

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(pvdce) and the principle asserting the value of diversity of societal cultures (pvdsc). The diversity of individual cultural expressions and the diversity of societal cultures are not just worthy of respect: by virtue of the pvdce and pvdsc we would assert their value. The equal respect that we owe to different persons and different peoples would not as such require that we promote diversity. However, the pvdce and pvdsc would precisely allow us to do just that. By virtue of these two principles, we would have to promote the cultural expressions of persons and peoples. We would thus go from political respect to political esteem. If peoples have value because of their instrumental role in achieving cultural diversity, what are the arguments in favour of the principle of the value of cultural diversity? In a way, our foundational question concerning peoples has just been deferred and is now transferred to the very idea of cultural diversity itself. In what sense can we say that cultural diversity is valuable? First, there are comprehensive justifications. According to some, the pvdsc is acceptable because of the benefits that cultural diversity affords for the individual. For others, the pvdsc is instrumentally valuable for the survival of the human species. Still for others, the pvdsc is intrinsically valid. However, political liberalism cannot invoke comprehensive justifications of this kind. The justifications have to be based on public reason, that is, on arguments that avoid making use of comprehensive justifications. We have already noted that peoples may be moral agents and may be sources of valid moral claims as political agents in public space, and it is often because they are also major sources of internal and external cultural diversity. We could also note that the convention on the diversity of cultural expressions shows that there is a consensus on the principle asserting the value of societies’ internal and external cultural diversity (pvdsc) in addition to the pvdce. But where does the consensus come from? Can we provide arguments based on public reason to justify this consensus? On the basis of the pvdsc, we would be able to conclude in favour of a politics of recognition for peoples, such as policies of cultural pluralism (including multiculturalism and interculturalism), but in the framework of political liberalism we cannot invoke it as a primitive moral principle, or as an independent moral truth. That would amount to asserting the intrinsic value of cultural diversity, which would be equivalent to introducing a comprehensive justification. We must derive the principle from premises in an argument based on public reason.

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an argument based on toleration as respect of institutional identities The best argument runs as follows. First, it is argued that all members (persons and peoples) of society are mutually interdependent and that society (domestic or international) forms a basic structure understood as a potential system of cooperation. Whether or not cooperation flourishes in a given society, the interdependence of agents within such a society induces by itself a pressure for transforming that society into a system of cooperation for their mutual benefit. Second, persons and peoples see themselves as rational agents pursuing their goals and defending their interests in accordance with their own conception of the good life or their conception of the common good. On the basis of these two premises, we can conclude that it becomes increasingly difficult to see ourselves as able to behave as rational agents if instability arises and a growing number of members become unable to act in accordance with their own plans. Increasing instability induced by cultural domination, oppression, xenophobia, systemic racism, ethnic cleansing, and genocide threatens the very possibility of maintaining life plans for anyone (persons and peoples). In this sense we are in able to derive a fundamental political principle asserting the importance of the political stability of society. The preservation of our self-representation as moral agents in addition to the fact of our mutual interdependence induces a norm concerning the need to preserve the unity of society as a whole, and thus political stability. Fourth, it may be argued that a system of collective rights for peoples and of individual rights for persons is essential for the political stability of society as a whole. Fifth, noticing that there are cultural imbalances between persons and between peoples that threaten the political stability of society,1 we can justify the need to protect and promote the distinct cultural expressions of persons and peoples by adopting a system of individual rights for persons and collective rights for peoples. Notice that nowhere in this argument do we find mention of a moral fact asserting the value of cultural diversity. That is, nowhere does it occur as a premise in the argument. If it occurs anywhere, it is as a consequence of the conclusion that we need to protect and promote the distinct cultural properties of persons and peoples. For by so doing, we express our attachment to the value of cultural diversity. Far from suggesting that cultural diversity is a primitive moral fact, the above argument shows that it is the other way around. We have an independent

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justification for the protection and promotion of peoples that, as a side effect, amounts to the expression of an attachment to the value of cultural diversity. We have seen that the principle asserting the value of cultural diversity ramifies into two distinct principles. In addition to distinguishing between the internal and external dimensions, we also have to identify the principle affirming the value of diversity of individual cultural expressions (pvdce) and the principle affirming the value of diversity of societal cultures (pvdsc). These two distinctions should not be confused, because internal diversity can refer to both diversity of individual expressions and diversity of societal cultures, at least if the society in question is multinational. This also applies to external cultural diversity, which can be located at both the individual and collective levels. If we need political stability because we see ourselves as collective rational agents and all collective agents are interdependent, we have to respect all national societal cultures for the sake of political stability. But what must we do when we find a cultural imbalance in the basic structure in favour of a national majority at the domestic level or in favour of a specific societal culture at the global level? In order to correct the imbalance, and given that we are in the same domestic basic structure or in the same global structure, we have to protect and promote societal cultures both in the domestic and international spheres. But by so doing, we are expressing our attachment to the pvdsc. Thus, the pvdsc seems to be a consequence of the argument and not a premise. A similar argument could be made in favour of the pvdce.

an analogy with the difference principle The principle of toleration as respect understood as essential for political stability also has a socio-economic dimension. It is also at the origin of the principle asserting the value of diversity of individual talents for persons and of the diversity of natural resources for peoples. From the principle of toleration as respect and the knowledge that political stability must be reached, the observation of socio-economic domination relations among persons and among peoples in a society’s basic structure, or in the global basic structure, implies principles that express our attachments to the diversity of individual talents or to the diversity of collective natural resources. Given the existence of cultural or socio-economic imbalances in an interdependent world, the principle of toleration as respect must, in

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order to continue to be effective, translate into a firm commitment to promoting diversity. To justify an active promotion of diversity, we need only accept a principle of toleration as respect and then accept the fact that respect is essential for political stability (a political stability that itself has constructively been derived from the interdependence thesis and the self-representations of individual and collective agents). We then note that there are socio-economic imbalances among persons and among peoples at both the domestic and international levels. For the sake of stability in the national basic structure or in the global basic structure, value will then be afforded to persons and peoples, and this will entail that we cherish the diversity of natural endowments: individual talents for persons (pvdit) and natural resources for peoples (pvdnr). The question was, How do we get from the equal respect that we owe to persons and peoples to their positive promotion in the form of the pvdce, pvdsc, pvdit and pvdnr? The answer differs, depending on whether what is in question is cultural or socio-economic differences, but the structure of the argument is the same. These various principles of diversity (cultural expressions / societal cultures, individual talents / natural resources) are all based on the principle of toleration as respect for the sake of political stability. The effective promotion of the pvdce and the pvdsc can be understood as an application of a politics of difference. The defence of the pvdit and the pvdnr amounts to asserting a socio-economic difference principle similar to the one discussed by Rawls. Indeed, the difference principle illustrates a case of asserting the value of diversity of natural endowments for persons. It concerns the socio-economic imbalances among persons applied at the domestic level. If Rawls had been favourable to a similar principle for peoples, the difference principle for peoples would have been an instance of a principle asserting the value of the diversity of natural resources belonging to peoples. The difference principle, as developed in Rawls (1971, 101), expresses our attachment to the diversity of individual talents. It is “an agreement to regard the distribution of native endowments as a common asset” (Rawls 2001, 74). This requires an explanation, especially since I wish to extend the principle to the law of peoples. In what follows, I present Rawls’s argument in favour of the difference principle as applied to individuals within a single society in parallel to an argument for a similar principle for peoples in the global structure. Persons do not deserve to be rewarded for their talents (Rawls 2001, 74–5). But they have the right to private ownership of their own tal-

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ents. Similarly, peoples should not be rewarded for their natural resources, but as peoples they have property rights over their natural resources. However, the interdependence of individuals within a society and the interdependence of peoples within the global basic structure force us to restrict the right to benefit from goods flowing from the development of such talents and natural resources. A people has no property rights over individual talents (75), and the global human community has no property rights over peoples’ natural resources. There are no collective property rights applying to individual talents, just as humanity as a whole has no property rights to natural resources situated on the territory of a specific people. However, there is a common good over which a people has rights, namely the distribution of talent, and there is a common good over which humanity as a whole has rights, namely, the distribution of natural resources. Defending persons and peoples thanks to a difference principle applied within a people and a difference principle among peoples amounts to asserting these rights. Humanity as a whole does not own natural resources, but the diversity of natural resources is a common advantage, and the difference principle applied at the international level among peoples seems to be a way of asserting this. This seems to involve sharing the benefits flowing from the cooperative surplus that results from development of natural resources. We do not take it for granted that the diversity of natural resources is a shared advantage as if it were an objective moral fact. We do not presuppose this normative principle as an independent premise so that we shall then be able to derive the international application of the difference principle. Indeed, it is the other way around, for those who agree on the international difference principle are in fact agreeing as a side effect to see the variety of natural resources as a common good. The international difference principle expresses an attachment to this value. The principle asserting the value of diversity of natural resources, which is seen as a natural advantage for humanity as a whole, elucidates part of the meaning of the international difference principle, that is, it reveals one of its consequences. By applying the difference principle, we express in particular the idea that humanity as a whole has rights concerning the diversity, variety, and complementary nature of the natural resources of all peoples. According to Rawls, the distribution of talent is a common good for society as a whole. However, he does not presuppose the validity of this principle. It is rather a conclusion that follows from the equal respect

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owed to persons and the imbalance in the basic structure between persons, to which we react by adopting the difference principle. According to Rawls, this principle amounts to an assertion that we value the diversity of talents. To put it differently, the pvdit is implied and not presupposed by the difference principle.2 To assert the difference principle is to assert the value of diversity of natural endowments. Initially, we were committed only to ensuring equal respect for persons and peoples. The fact that there are structural socio-economic inequalities in society’s basic structure at the domestic level leads Rawls to defend a difference principle. In order for each individual to develop his or her natural endowments as he or she wishes, it is not sufficient to assert a principle of equal respect for persons, because when there are structural injustices at the socio-economic level in a world where political stability is to be reached, the defence of the principle of equal respect requires state intervention in the form of a difference principle. I have formulated a similar argument for peoples. Once the international community has taken action to accomplish its duty to help peoples in distress, to remedy past injustices to disadvantaged peoples, and to ensure equality of opportunity among all peoples, structural inequalities may remain among them. They will be just only if they remain after we maximize the wealth to be distributed to poorer peoples. Indeed, some peoples are not in distress, have not been exploited, and are capable of developing their natural resources, but they may still need some of the international cooperative surplus, at least if international political stability is to be reached, because such a transfer of resources expresses our attachment to the diversity of natural resources. Now after having applied a difference principle at the international level, in other words, a maximin principle of justice among peoples, inequalities will remain among peoples but they will no longer by unjust. They will be justified by the fact that we have first maximized the transfer of resources to the least fortunate peoples. In an ideal theory, all societies would have to apply the difference principle to their members, and the international community as a whole would be responsible for applying an international difference principle. All persons, conceived of as political persons in the global basic structure, would benefit from the difference principle within their respective societies. An organization should, if necessary, be responsible for enforcing, at the international scale, the difference principle with respect to persons within each society. An international organization would also have to be responsible for enforcing the international difference prin-

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ciple to all peoples. We also have to point out that the international cooperative surplus must be given to peoples and not to their states. This means that it is not sufficient to transfer the international cooperative surplus without overseeing how it is used by the state. Rawls rejects, wrongly I think, the application of such a principle among peoples.3 The analogous principle for peoples asserts the value of diversity of natural resources. This calls for international initiatives to distribute the cooperative surplus to less fortunate peoples. The duty that we have to peoples does not require us to show that dominant peoples have exploited poorer peoples. Even if there were no exploitation, there could be unjustified domination. It would be unjustified whether or not it was caused by other peoples. An international difference principle must be implemented, because otherwise we would go against the fact that we want to respect all peoples. Peoples must be able to develop themselves with their own natural resources, but circumstances for which rich peoples are not responsible might nevertheless have created structural inequalities among peoples. If we respect all peoples and realize that we are in a basic global structure, this socio-economic imbalance forces us to actively intervene in order to maximize the minimum held by peoples. The structure of the argument is basically the same, whether what is in question is the pvdit or pvdnr. In both cases, equal respect has to lead to a socio-economic difference principle, given the inequalities at the domestic and international levels. Rawls formulated the difference principle only for individuals because, as far as peoples are concerned, he accepted only a duty to intervene for peoples in distress, what he called “burdened societies.” He also confined the application of the difference principle to the domestic sphere in some liberal societies, refusing to admit that persons in all societies should benefit from it in ideal theory. Finally, he formulated only a socio-economic difference principle and did not foresee that an analogous argument could be made on the cultural level. But for our purposes, it is important to see how Rawls came to adopt a socioeconomic difference principle for persons at the domestic level. In order to be achieved concretely, the equal respect owed to persons must be accompanied by effective promotion of diversity of talent, given the domination present in the basic structure of society and our interdependence in a system of cooperation for our mutual benefit. The difference principle is the ultimate expression of the promotion of this kind of diversity. I am therefore only generalizing the same argument

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structure from persons to peoples and from the domestic to the international levels. Moreover, I do this not only for socio-economic imbalances but also for cultural imbalances. As a premise in the argument, the principle of toleration as respect for the sake of political stability is at the origin of the difference principle and of the politics of difference both for persons and peoples, and on both the domestic and international levels. The premise of equal respect owed to persons and peoples leads to a general promotion of diversity, once it has been combined with the observation that there are cultural and socio-economic inequalities among persons and peoples (in addition to the claims that stability is valuable and that respect is essential to it). Collective cultural diversity, diversity of cultural expressions, diversity of individual talents, and diversity of natural resources become positive values that are affirmed as belonging to humanity’s heritage. In order to politically esteem all peoples and to place value on their differences, we need more than toleration in the sense of respect, but we cannot rely on an objective moral truth. We must be able to constructively demonstrate the obligation to secure diversity. And we do this as soon as we derive from our conception of persons and peoples a political principle of toleration as respect for the sake of political stability, which itself leads to the adoption of policies that seek to minimize differences among persons and peoples. I hope that the reader sees at this point why it was so important in the argument to constructively demonstrate a principle such as the pvdsc. With such a principle, we are able to do more than just assert in general the value of a societal culture, or context of choice, because, as we have seen, this is compatible with the existence of a single societal culture, or single context of choice. By demonstrating that cultural diversity is a common asset of humanity as a whole, we are finally in a position to show that each distinctive societal culture is valuable. We are able to arrive at this conclusion without having to use the false premise that persons have a mental chart of group allegiances, at the top of which one finds one’s own societal culture.

caveats and clarifications Let me immediately clarify a number of things. We have argued in a way that commits us to the value of cultural diversity. The point is not to claim that assimilation becomes unacceptable under this principle. The principle first has to be weighed against individual rights and free-

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doms. In some cases, the balance may require that some “cultures” disappear. However, these would be cultures understood in the sense of character and not structures. The former can disappear when they are in conflict with internal or external cultural diversity, or when they unduly constrain the freedom of their members. I am thinking in particular about cultures that impose traditions by force on all their members or that refuse to comply with democratic principles. Those “cultures” can disappear, even though we want to defend all cultural structures, since they have a positive impact on cultural diversity at the internal or external levels. The simultaneous application of principles such as those that assert individual freedoms and those that assert the value of cultural diversity inevitably leads to tensions and to reasonable restrictions on all sides. This balance can result in the preservation of all structures of cultures and the rejection of the idea that all characters of cultures are beneficial. Furthermore, and most importantly, there is no obligation to preserve a culture in which the members fail to maintain a will to survive as a people. There must be a demand for recognition by the population as a whole. We are thus neither condemning all forms of assimilation nor adopting a radically preservationist approach. Another very important objection has to be discarded immediately. Under the present approach, it appears that persons and peoples contribute to the diversity of talents and cultural expressions (persons) as well as to the diversity of natural resources and societal cultures (peoples). So it seems that they are all full contributing members of domestic society or of the society of peoples. But what can we say about those persons and peoples that are totally unable to meet these expectations? Indeed, what about those individuals who are less than full citizens of society? They can be recruited among immigrants, refugees, or permanent residents, but even more urgently, among those who are incapacitated, who have suffered important injuries, or who are in the course of losing their autonomy. Are we committed to say that we cannot value what they are? Similarly for peoples, what if a people is burdened with numerous conditions that do not allow it to contribute to cultural diversity or to the development of its natural resources? Here it is important to emphasize several points. What these persons need is not to be declared valuable but rather to be helped or assisted. In this regard, Rawls has admitted another fundamental principle that must have lexical priority over the two fundamental principles of justice applicable to the domestic society. Thus he writes, “Finally, as one might expect, important aspects of the principles are left out in the brief state-

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ment as given. In particular, the first principle covering the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic needs be met, at least insofar as their being met is necessary for citizens to understand and to be able fruitfully to exercise those rights and liberties. Certainly any such principle must be assumed in applying the first principle” (Rawls 2005, 7n7). This idea opens up the possibility of a Rawlsian concern for those who are less than full citizens and also for those who are less than fully autonomous human beings. There should perhaps be a duty of assistance for burdened persons, similar to the duty of assistance of burdened peoples in the law of peoples. In that way, we would not have to restrict the rights of persons and peoples to those persons and peoples who are full participants in a system of cooperation for the benefit of everyone. In addition to a duty of assistance to those who do not enjoy the full status of citizens, there must also be a duty of assistance to all burdened peoples (Rawls 1999, 37). Then, just as we need to grant some rights to individuals who are not full citizens, we must also reinforce the rights of stateless peoples to internal self-determination and justifying their right to secession, when their right to internal self-determination is not respected. This is a central concern of the present book. So the account must and can go beyond the case of full citizens and sovereign peoples. A Rawlsian theory of justice can and must include other persons and peoples having also relational properties. For persons, we can think of refugees, recent immigrants, and permanent residents. These are persons who do not yet enjoy the full rights of citizens but who nevertheless deserve our respect. It must also include citizens who are in the course of losing their autonomy or those who are suffering from deep psychological deficiencies. For peoples, we can think of ethnic, cultural, socio-political, diasporic, and multi-territorial peoples, and we must also include burdened peoples. By allowing all these institutional entities to have rights, we are not reintroducing the idea that persons and peoples have an intrinsic value, for these other persons and peoples are also considered in their institutional properties. So let us not forget that the Rawlsian approach can authorize principles of justice that have lexical priority over all other principles. There could be duties of assistance to persons and peoples. The measures we adopt in this case, to persons and peoples, apply to institutional entities that already exist or to new institutional entities that we could create.

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If this is correct, then one should not forget that Rawls’s insistence in favour of citizens and peoples as full members of domestic society or as full members of the society of peoples does not require ignoring those that are less than full cooperating members. Moreover, our duty of assistance to persons and peoples must have lexical priority over all other principles.

from toleration to recognition We should perhaps apply the same ideas concerning the pvdce and the pvdsc. These are principles that illustrate a politics of recognition understood as a politics of cultural difference. Earlier on, we introduced a very general concept of toleration as respect for the sake of political stability. Now, respect is a form of recognition, but in this context the word recognition expresses a very general concept, similar to the one introduced by Axel Honneth (1996). When the term refers to a politics of cultural difference, it is closer to the use introduced by Iris Marion Young (1990), Charles Taylor (1994), and Nancy Fraser (1996, 2000, 2001). Individuals have cultural identities and they express these identities in various ways. However, this does not confer merit on them, and they should not be remunerated for the very existence of these cultural expressions. Peoples as whole populations do not have rights concerning the cultural expressions of these identities. However, since individuals can be in situations in which they cannot easily express their cultural identities, the state should intervene to ensure that, in principle, every individual can express his or her identity adequately. This can be achieved by a law system that allows for reasonable accommodation of cultural practices, by a state that would allow for open (or inclusive) secularism, and by adopting a politics of cultural pluralism (multiculturalism or inter-culturalism). There can also be laws against discrimination related to the cultural expression of gender, sexual orientation, ethnic origin, “race,” or religious belief, or specific anti-racist laws targeting certain extreme forms of discourse (anti-Semitism, Islamophobia, hate speech). At another level, there are artistic cultural expressions that must be financially supported by the state, but here also, the state does not own these individual creations. The only cultural good that a people as a whole may have is not the cultural expression of individuals themselves, but rather the existence of the diversity and complementarity of these cultural expressions (pvdce), and this is indeed what

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is expressed when a state chooses to protect and promote the various expressions of individual identity through specific policies. On the collective level, peoples have forms of cultural infrastructure (museums, libraries, archives, ancient monuments, archaeological sites, cinematographic industries, weekly magazines, universities, concert halls, etc.). They own their cultural wealth, and the international community must be respectful of these infrastructures. But there is a clear international cultural imbalance that justifies more than just respect. Politics of difference must therefore be implemented if we truly respect all peoples. So, for instance, culture should be removed from free trade agreements. Countries should be entitled to impose taxes and quotas on the importations of some cultural goods if this puts their own industries in jeopardy. Every people is entitled to have an adequate cultural infrastructure, and be able to maintain and develop it. By allowing the adoption of measures such as taxes and quotas on cultural importation, in effect we express our attachment to the principle of cultural diversity or diversity of societal cultures. By imposing quotas on distribution of some foreign cultural content or by setting import duties, greater cultural balance could be fostered among peoples. Since peoples do not own individual cultural expressions, they do not own the goods that flow from such expressions either. We have to reject the concept of collective creation to which some want to subordinate individual creativity. It does not have to be understood as belonging to a people’s collective creativity, but the people may become the real owner of the cultural good once it is in the public domain. Indeed, once a certain period of time has passed since its creator’s death, a work enters the public domain. In principle, it should then be used by anyone in the world, but not without minimal restrictions. Since it now belongs to the people as a whole, it can be reasonable to impose duties and taxes on exporting and importing such cultural products. The taxes imposed by the country of origin on the use of cultural products that have entered the public domain could be used to express our attachment to the principle asserting the value of the diversity of societal cultures. We cannot simply apply free market rules to culture. Neither do we need to justify such taxes by invoking the problematic concept of collective creation. Even if the work that has entered the public domain is an individual creation, the people as a whole may become the owner once it has entered the public domain, and it has the right to tax the use of the work outside the people’s borders, because the work is part of the people’s cultural heritage, and free trade does not apply to culture.

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Thus, peoples can also impose reasonable constraints limiting individual freedoms with respect to culture. For even if individuals all over the world can have access to works of art once they have entered the public domain, there are reasonable restrictions on the transmission of cultural goods that are part of a people’s heritage. Rawls is probably right to suggest that the market economy has to apply universally, whether the economy is socialist or capitalist. However, free market rules (supply and demand, absence of protectionism, free trade) should not apply to culture (and perhaps not even to agriculture). I shall not develop further the analogy between the principle of socio-economic difference and the politics of cultural difference with respect to persons and peoples. This analogy supports Nancy Fraser’s approach, which reflects our concern with both distribution and recognition (in addition to political representation). My most important disagreement with Fraser concerns the beneficiaries. They cannot be limited to persons; peoples must also be included. I thus also differ on what she says about the general principle governing redistribution and recognition. In this respect, Fraser talks about the principle of participative parity. That principle is acceptable, first, only if it is not restricted to persons but is also applied to peoples. In its acceptable version, the principle should seek to favour integration of persons in the national community, and integration of peoples in the international community. Second, although parity of participation for persons and peoples is a good thing, it should not be understood as governing the politics of distribution and recognition all by itself. We also have to take into consideration the fact that the ultimate goal is political stability. Some will be tempted to suppose that a politics of cultural difference or politics of recognition (in the narrow sense) involves an unjustified intrusion of identity issues in the business of a theory of justice. However, if I am right, distributive justice issues are also very often recognition issues in the sense that it often involves esteem. Moreover, the discussion about cultural diversity illustrates the sense in which the stakes involve both recognition and distribution. Partisans of distribution will be right to see distribution issues in the granting of collective rights to communities insofar as such rights can be seen as entailing consequences for distributive justice. Partisans of recognition will see recognition issues even in distributive justice issues, because at the same time these often involve issues of recognition. I think both sides are right, and that this confirms Fraser’s perspective. But all of this results from the principle of toleration as respect for the sake of political sta-

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bility that is at the foundation of political liberalism. Now, as already mentioned, toleration understood in the sense of respect is also another form of recognition, and this is why I would like to suggest that Axel Honneth is also right. So here is a list of principles that can be derived from the basic principle of toleration as respect. The principle of equal respect owed to persons implies first and foremost a duty to help persons in distress. It is equivalent to the principle asserting the duty to help peoples in distress, as formulated in the second original position (Rawls 1999, 37). Then there is a duty of assistance to help persons and peoples become full participants in society. This could mean, for instance, putting in place a universal health-care system. Rawls himself alludes to it in Political Liberalism (2005, 7; see also 7n7). According to Rawls, the principle is even lexically prior to the other principles of justice. Thus, we want to speak about a duty to help persons. The principle applies also to peoples that must become full participants in international society. Third, persons and peoples also must have full rights and freedoms. There have to be reparations when freedoms are violated by political domination or by infringement of, and interference in, civic liberties. The same applies with respect to peoples’ territorial integrity and self-determination. Fourth, the rules of distributive justice imply not only formal equality at the level of the rights and freedoms of persons and peoples. They also require the establishment of a system that makes possible a true equality of opportunity for persons (a universal education system for all, so that all persons can develop their talents) and a right to equal development for peoples, so that all peoples can develop their natural resources. Even when a state secures respect for individuals’ basic rights and freedoms, there may still be structural inequalities that prevent some persons from developing their talents. This may be because the education system is not sufficiently developed, or because there is unemployment, or because jobs do not match talents. Faced with such structural imbalances, we have to react in a way that allows every citizen to develop his or her talents equally. This is an equal opportunity principle. The same principle applies at the level of peoples to the basic structure needed to develop their natural resources. Fifth, once these injustices have been corrected, we have to ensure that the cooperative surplus is distributed. In other words, we need to produce wealth to maintain distribution to those who are poorer. Once the various measures have been taken, no other inequalities can be con-

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sidered unjust. Inequalities among persons and among peoples can be considered unjust only if we do not distribute to the poorest persons and peoples the cooperative surplus resulting from the additional wealth produced. The surplus is the additional wealth that remains after we have fulfilled our duty to help persons and peoples in distress, repaired all the injustices caused to persons and peoples, established a system guaranteeing equality of opportunity for persons and peoples, and employed incentives to maximize efficient production. The wealth remaining after all these duties have been discharged is the cooperative surplus. The only acceptable inequalities are those that make it possible to maximize the cooperative surplus to be distributed. This is the meaning of the difference principle. It takes the form of a maximin principle of justice for persons, expressing our attachment to the pvdit, and for peoples, expressing our attachment to the pvdnr. After a difference principle has been institutionalized, there will probably remain unequal treatment among persons and among peoples, but the inequality will no longer be unjust. In parallel with the difference principle, there must also be principles translating a politics of cultural difference for persons that expresses the attachment of society to the pvdce and a politics of difference for peoples that expresses the attachment of the international community to the pvdsc.

conclusion In this chapter, I have tried to show that liberal toleration allows us to derive various principles, including the one asserting the value of cultural diversity. I began by showing that political liberalism has to give equal respect to persons and peoples. Next, I indicated that peoples may also serve the cause of internal and external cultural diversity. I argued that respect among peoples has to translate into a politics of difference, once imbalances have been observed among different cultures. Promotion of cultural diversity flows from this observation if we respect all peoples equally. I have shown that there is a structural similarity between the arguments on distributive justice and arguments asserting the value of cultural diversity with respect to both persons and peoples. Finally, I have shown that a true balance has to be established among the rights of peoples and the rights of persons. Persons do not have intrinsic value, but a system of individual rights implementing equal respect is instrumentally essential for stability and

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is valuable for this reason. Those who are less than full citizens induce a duty of assistance to create conditions that will enable them to exercise their full potential as citizens. Burdened persons require our assistance in the form of basic interventions to secure their most urgent needs. The respect that we owe them is even more basic than the respect that we owe to the full cooperative members of society. Similar considerations should apply to peoples. Their self-representation as moral agents can be preserved in an interdependent world only if political stability is secured. When they are less than sovereign peoples, they are entitled to an assistance that will enable them to exercise their full potential as peoples. When they are burdened peoples, they require our assistance in the form of basic interventions to secure their most urgent needs. Here too, the respect that we owe them is even more basic than the respect that we owe to the full cooperative peoples in the society of peoples. Fully cooperative peoples that, in addition to individual rights, respect other peoples as well as their internal minorities deserve our respect. And when imbalances persist, those who are less favoured culturally or economically are entitled to a politics of difference and to the difference principle. We have seen that peoples can play an instrumental role in the protection and promotion of cultural diversity. They can do so in two different ways. When they provide a large context of choice, they favour internal cultural diversity. When they are distinct from all the other peoples, they contribute to external cultural diversity. At times, peoples may harass minority groups or attack other peoples, but in so doing, they lose their right to be esteemed, and this is because by doing so they go against the preservation of political stability for the right reasons.

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5 The Universality of Political Liberalism

As we shall see in this chapter, even though I subscribe to political liberalism, I want to take some distance from certain aspects of Rawls’s version. Among other things, I reject the idea of allowing the inclusion of decent hierarchical societies under the veil of ignorance in ideal theory. Of course, we owe them respect, but this should be a matter of adopting a certain modus vivendi and not a matter of including them in the ideal theory of international justice. My hope in this chapter is to argue in favour of the universality of political liberalism. This discussion might at first sight appear to be beyond the focus of the present book, but it is not. Granting the claim that political liberalism is really hospitable to collective rights for peoples, it would still not be very convincing if the price to pay was to abandon the universal character of liberalism. So we have to show that the principles adopted in the first original position are good candidates for an overlapping consensus among liberal peoples and can appear in the list of principles on which partners can agree in the second original position. The debate between liberals and communitarians has deeply influenced Rawls. In the domestic case, he developed a conception of justice based on a political conception of persons and thus compatible with both individualistic and communitarian conceptions of the person. Analogously, the methodology of the veil of ignorance and the original position, if applicable at the level of relations among peoples, should also include liberal and communitarian societies. As a matter of fact, whether our people is liberal or communitarian is known to participants under the veil of ignorance in Rawls’s version, for there are two stages in this second original position: one involving liberal individualistic societies and one involving communitarian societies.

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In the law of peoples, communitarian societies are present under the veil of ignorance as decent hierarchical societies. These would be societies that have a very different political culture and that are not democracies. They involve a respect for basic human rights and a consultation process but they are not fully democratic societies. This is because, for Rawls, societies that do not share Western political culture inevitably cannot be full-blown democracies. Consequently, even if we exclude outlaw states, benevolent absolutisms, and burdened societies, the consensus among peoples at the international level in ideal theory cannot include only democratic societies. According to Rawls, the overlapping consensus must be one that is reached with decent hierarchical societies. Thus, he writes that to tolerate also means to recognize these nonliberal societies as equal participating members in good standing of the society of peoples (Rawls 1999, 59). So it should not come as a surprise to learn that the principles on which societies can agree under the veil of ignorance in ideal theory cannot include democratic principles. In short, a consensus cannot be reached on the requirement of political liberties, equality of opportunity, and the difference principle. I disagree with this watered down version, according to which the only universal liberal principles would be restricted to civic liberties. This problem will be resolved by introducing the concept of a communitarian democratic society, which, in turn, will require the development of a concept of rational liberty acceptable for communitarian and individualistic societies. The concept of a communitarian democracy is introduced because it is not necessary to have experienced pluralism in our historical political culture in order to become fully democratic. Communitarian societies with a very different historical background can become fully democratic. For Rawls, the only universal liberal principles are civic liberties. For some, this is the core of liberalism, and there are then different ways of instantiating these basic principles within each society. Some societies will be democratic, other societies will not be. Some societies will incorporate a principle of equality of opportunity, other societies will not do so. Some societies will adopt the difference principle, others will not. Seen in this way, Rawls would be subscribing to a kind of liberal pluralism. But for many others, since most of the liberal principles Rawls himself wanted to adopt are no longer universal, the resulting situation looks more like a form of moral relativism. Rawls realizes that the adoption of just a meagre core of liberal principles such as the civic liberties looks very much like abandoning the

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universalism of liberalism, granted that, according to many, liberal societies must be fully democratic. In order to control the damage created by this impression, he argues that the “consensus” that can be reached with decent hierarchical societies is the same as the one that would be reached between liberal societies. In order to achieve this result, he proposes two distinct stages in the second original position. The first stage includes only representatives of liberal societies, and the second one includes both liberal and decent hierarchical societies. Rawls then argues that the consensus reached in the second original position is in no way different from the consensus reached among liberal societies. In this way, he hopes to remove the impression of relativism, for moral relativism would seem to be inevitable only if certain principles could be acceptable for liberal societies and not for other societies. The argument may not seem very convincing, however, for there are principles that should normally have been adopted among liberal peoples, like democratic institutions, the equality of opportunity, and perhaps even the difference principle. In other words, there should be principles common to the internal functioning of all liberal societies. In trying to prevent those charges from being made, Rawls makes a certain number of suggestions. First, he argues that the law of peoples must not be confused with a jus gentium, understood as the intersection of the domestic principles adopted by all the societies involved under the veil of ignorance (Rawls 1999, 3n1). If we were to proceed in accordance with a jus gentium, there would certainly be an asymmetry between the principles adopted by liberal societies and those adopted by decent hierarchical societies, but this is a result that Rawls does not wish to arrive at. How are we then to understand the law of peoples? It looks as though the principles adopted in the second original position are principles that societies could reasonably accept to defer at the level of a supranational organization. Liberal societies would presumably not want a supranational organization to control the way they practise democracy and this is why the democratic principle should not appear in the overlapping consensus, not even among liberal societies. The other claim made by Rawls that supposedly serves to calm down the worries of liberal minded intellectuals is that not all liberal societies agree on the two basic principles. The difference principle would not apply even among liberal peoples (Rawls 1999, 117). It is not among constitutional essentials (Rawls 2001, 48–9; 2005, 230). Thus, the law of peoples should contain only a minimal set of principles. Presumably, for Rawls, the only universal liberal principles are the basic civic liber-

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ties. Now those liberties are secured in the second original position, even when we include decent hierarchical societies. It is hard to resist the idea that this strategy is deployed only in order to arrive at a similar result, whether decent hierarchical societies are included or not included under the veil of ignorance. Indeed, if liberal societies accept the same list of principles for themselves, when compared with the list of principles adopted with decent hierarchical societies, then the consensus achieved with these other societies cannot be described as an unacceptable compromise. Unfortunately, the justifications for accepting all these arguments and for accepting the inclusion among liberal societies of a minimal set of principles in the constitutional essentials seem rather weak. We are left with an uneasy impression that the whole enterprise is part of a rhetorical strategy that cannot conceal a moral relativism that plagues the whole account. If liberal peoples would make explicit a complete common set of principles, then, pace Rawls, there would be many important differences between a law of peoples for liberal peoples and a law of peoples including decent hierarchical societies. This may be partly the reason why Rawls argues against an international difference principle, even among liberal peoples. He thinks that it is a principle that decent hierarchical societies would not accept. So it is a principle that should not be accepted in the law of peoples per se, not even among liberal peoples. In this way, he would achieve his goal in showing that the second stage of the second original position (inclusive of decent hierarchical societies) is by no means a compromise and remains “liberal,” when compared with the first stage involving only liberal societies. We can partly share with Rawls his understanding of the law of peoples. First, it is not a contribution to international law, because it states normative principles and thus reflects on what international law should be. Second, international law applies to the relations among states, while The Law of Peoples deals with norms applying to peoples. Nevertheless, Rawls is perhaps wrong to distinguish a law of peoples from a jus gentium, understood as what is commonly accepted between and within each society, because even at the level of concepts, the only “universal” or “cosmopolitan” concept of persons that can be accepted by political liberalism does not transcend societies. It is rather, as in jus gentium, the result of an overlapping consensus between all the concepts of citizenship that are accepted within different societies. If we were to adopt such a strategy, the consensus reached among liberal societies in the second original position could, in addition to his

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eight principles, involve the two basic principles that had been established in the first original position. It would thus be wrong to argue that only civic liberties can be imported, but this is exactly what Rawls is doing, since what is left of the first original position is only the sixth principle stating that peoples are to respect human rights. We must criticize Rawls for refusing to extend to all liberal peoples in ideal theory the political liberties, the equality of opportunity, and the difference principle, granted that these have already been established within each liberal society in the first place. Since political liberalism remains neutral between different conceptions of the good, different religions, and different metaphysical conceptions of the person, it may be expected in ideal theory that each liberal society could agree on a similar set of basic principles. It is quite clear that a relativist turn has occurred in Rawls (2005, 1999). He is right to suggest that respect is due to decent hierarchical societies, but we nonetheless should make sense of this only within non-ideal theory. If we have to abandon the universality of democratic principles, the equality of opportunity, and the difference principle in ideal theory, we abandon fundamental liberal ideals, period. Even if liberal toleration is recommended with respect to decent hierarchical societies, ideal theory should take into account only democratic societies. To admit decent hierarchical societies in ideal theory is to allow an important imbalance to take place between collective rights and individual rights. If we did that, we would favour the self-determination of peoples and their collective rights over individual rights, because these societies ignore the political liberties and thus fundamental liberties of their citizens. This is my first reservation. Let us consider another difficulty. Rawls was unable to consider the possibility of communitarian democratic societies. These are societies that base their legal, political, and educational systems on a particular view of the good, or on a particular religion, while remaining democratic, with an electoral system, political parties, free press, and deliberative procedures. He thought that in order to concretely realize the ideals of a truly liberal democracy, a society requires a democratic tradition. This reveals the historicism that now plagues the account. For him, liberal principles are historically situated and cannot be adapted to societies that do not have this kind of tradition. According to Rawls, political liberalism is essentially the product of the Western democratic political culture. This is because within that tradition, we have experienced an irreducible and reasonable moral pluralism. Other societies

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do not have such a historical experience of pluralism, so they cannot easily become fully democratic. This is the second reason why I distance myself from Rawls. I do not believe that political liberalism is irremediably condemned to flourish only under a certain historical political culture. In other words, I reject his historicist characterization of liberalism. If we take into consideration the existence of an emerging global basic structure involving transnational agreements, communication, and economic exchanges, it is possible that a society with a fairly homogeneous historical political culture would come to experience pluralism at the global level. If so, that society could become democratic. There is another unacceptable assumption here. It is the suggestion that Western societies have become more tolerant than nonWestern societies. However, political liberalism offers lessons to be learnt for both sorts of societies. Western societies have shown intolerance toward communitarian societies relying on the quasi-religious dogma of ethical individualism. This is my second reservation. At the heart of the problem lies the concept of rational autonomy. It may be argued that a society cannot become democratic if its members cannot develop a certain rational autonomy. But communitarian societies appear to be precisely the kinds of societies in which citizens do not enjoy full rational autonomy. In a communitarian society, individuals are not prior to their ends. Their identity is constituted by the moral and religious principles that they inherit from their community. It is then presupposed that in order to develop their rational autonomy, persons must be prior to their ends. Therefore, there cannot be communitarian democracies. I disagree with this appreciation. It can be argued that a person can be rationally autonomous as long as she is able to reflect upon her actual practices, is able to engage in secondorder evaluations about her first-order evaluations, what Taylor calls “strong evaluations,” and is able to perform thought experiments in which she sees herself very differently from what she is right now. It is possible to acquire these abilities even within a communitarian society. And if a whole population does so, then this population can become democratic. It will have reached a certain level of capacity for exercising its own rational autonomy in this minimal sense and thus will be ready for a fully democratic system. To have rational autonomy in this sense, it is not necessary to have an identity that is prior to one’s ends. This is the view generally associated with the individualist liberal tradition. The person cannot be identified with a certain set of beliefs, values, and ends. It is opposed to a com-

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munitarian identity that involves the idea according to which beliefs, values, and ends constitute our identity. But as we have defined it, rational autonomy may be exercised in the context of a process of discovery of what we are. While adopting a reflexive attitude on our practices, deploying strong evaluations, and developing thought experiments, we may be searching for our authentic identity and discover the true beliefs, values, and ends that constitute our identity. A communitarian person can permanently delve into this kind of introspective reflection and do so in the larger process of a search for her authentic self-realization. And the process can terminate in the provisional discovery of a certain moral nature: beliefs, values, and ends inherited by a community of dialogue. So rational autonomy is compatible with a communitarian identity. Since the concept of rational autonomy is required by a democracy, it appears that if a whole population shares this ability, that society can be democratic. Now, given that it is compatible with a communitarian identity, it follows that there can be democratic communitarian democracies. This is my third criticism. There is more than one way of thinking about persons, peoples, citizenship, rational autonomy, democratic process, society, primary social goods, and the separation between the public and private spheres. These concepts can be applied in different ways within different societies. They can be applied differently in individualistic societies and communitarian societies. Nevertheless, in principle, all societies can be liberal in the political sense and also be democratic in the sense of accepting that the population can exercise minimal rational autonomy.

a change of perspective The brief criticisms that I have just made of Rawls are all interrelated. The Rawlsian desire not only to practise liberal toleration for decent hierarchical societies but also to include them in the ideal theory can be explained largely by his inability to conceive of citizenship, rational liberty, democracy, and society in different ways. If he had been able to adapt these concepts to a communitarian society, he would then have been able to accept the possibility of democratic communitarian societies and therefore the possibility of universally accepting political liberties. Eventually, we could even come to a fully liberal consensus under the veil of ignorance.

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His inability to adapt his conceptual apparatus to communitarian democracies can be explained for the most part by the fact that he sees political liberalism as essentially the product of Western democratic experience. The broadest possible consensus among all peoples, a consensus that aspires to universality, has to include societies that do not share the same traditional political culture, and therefore, according to Rawls, the consensus has to go beyond the traditional ideal of liberal democracy. But Rawls would not have been obliged to arrive at this conclusion if he had not tied political liberalism to the specific historical experience of Western political culture. The argument is also very paternalistic, because it suggests that democracy has been reached in Western societies and is not available to societies with a different tradition. It may be argued instead that Western societies are very far from having reached the goal of democracy, for many look much more like oligarchies. It may also be claimed that Western societies are also tyrannical in a certain way because, as argued by Rawls himself, the imposition of a comprehensive Kantian or Millian conception of justice is a kind of tyranny. To repeat, Rawls believes that “it would be unreasonable to use political power to enforce our own comprehensive view” (Rawls 2005, 138). Western societies increasingly tend to impose ethical individualism as a fundamental value to all members of society. They have yet to tolerate communitarian practices. Even worse, ethical atomism induces an atomization within society that can lead to anomia. Why was Rawls unable to detach the liberal tradition from its historical anchoring? I think he was unable to do this partly because he did not see the new cosmopolitan potential flowing from the emergence of a global basic structure. Thus, Rawls did not see the possibility that societies with a quite different traditional culture could experiment with the irreducible pluralism of reasonable moral ideas within the global structure, which would provide a different way of adopting liberal principles. He did not see the emergence of a true global scale of political democracy emerging at the transnational level. He thought that the concepts of citizenship, rational liberty, democracy, and society were condemned to univocal descriptions and to being the products of Western culture. In other words, he has remained caught in the grips of the old Westphalian model where everything occurs at the level of the nation-state. Finally, he remained with simplified models and did not discuss the complexity of real societies. If he had done so, he would have quickly

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come to the conclusion that real peoples are increasingly societies of immigration. The number of immigrants is growing in many countries, and immigrant minorities have more technological means to maintain links with their countries of origin. As such, our societies are increasingly microcosms of the global society. Therefore, if political liberalism is in some way applicable in principle within Western societies of immigration, it should also be the case at the international level. The issues that are raised here may appear to have no immediate, obvious impact on our theme, which concerns a politics of recognition in the form of a liberal theory of collective rights. However, it is important to show that consistent arguments can be made in favour of a law of peoples inspired by Rawls’s political liberalism, but that would not at the same time betray liberal ideals. The opponents of a Rawlsian law of peoples will rush to assert that there is a link between the insufficiencies of Rawls’s law of peoples just noted and the ambition to formulate it within in a political liberal framework. A number of theorists see this attempt as in direct opposition to a cosmopolitan system, for they believe that in such a system, the subjects would be individuals, that is, persons as moral entities having intrinsic value and existing independently from their status in actual societies. In short, they tend to oppose an account based on political liberalism that leads to moral relativism, particularism, and the domination of collective rights of peoples over individual rights, to an account based on ethical individualism that leads to cosmopolitanism, universalism, and the domination of individual rights over collective interests. The reasoning is more or less as follows. The only way to introduce collective rights for peoples in accordance with liberalism is to have recourse to political liberalism. The classical individualist version can only accept group-differentiated rights. However, political liberalism leads to historicism, liberal toleration of decent hierarchical societies, and ultimately to abandonment of the universality of liberal ideals. Detractors of collective rights will also insist that the law of peoples logically implies the predominance of the nation-state model in international law. Furthermore, there is an inevitable tension between the consensus that could arise among peoples and the one that could be initiated by individuals. Rawls resolves the tension in favour of peoples, because he acknowledges the right to self-determination for peoples that do not even recognize the full range of political liberties for their citizens. Toleration of decent hierarchical societies that are not democratic reveals a spirit of compromise on liberal ideals that can be explained only by

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the willingness to maintain good relations among all decent peoples. State sovereignty is thus more important than human rights. In order to avoid such distressing consequences, it seems we have to reject Rawls’s law of peoples, renounce political liberalism, and opt instead for cosmopolitan law among persons based on ethical individualism. I would now like to explore the conditions that would make it possible to view the universality of liberalism positively. I seek to describe the conditions that could realistically favour the propagation of political liberalism as a universal system of principles. In short, I ask, How concretely can political liberalism become a universal political philosophy? If Rawls has renounced universality up to a certain point, perhaps it is not because of political liberalism, but because he has a neo-realist conception of international relations. He may have overlooked the growing importance of the global basic structure, which is based on political, cultural, and economic relations, exchanges, and communication, as well as transnational and supranational institutions. This does not foreshadow the end of states, but it has nonetheless become a reality. The question that comes to mind immediately is whether political liberalism must go hand-in-hand with a neo-realist conception of international relations. It seems that it is compatible with the admission that there is a global basic structure. Rawls also neglects the growing importance of participatory democracy of peoples in various supranational organizations in addition to their participation through social networks, ngos, and regional exchanges within a global civil society.1 This can have an impact on the redefined appropriations of modern concepts such as society, citizenship, rational autonomy, and democracy, even by societies that do not have a pluralistic tradition. It seems that nothing prevents political liberalism from accepting this possibility. Finally, growing immigration is also an important factor in numerous societies. It is thus becoming increasingly pointless to distinguish among the principles that should guide us at the international level and those that should guide us at the domestic level. Nothing prevents us from admitting all these facts, even if we adopt political liberalism. So those who think that political liberalism logically entails moral relativism, a neo-realist conception of international relations, and the priority of collective rights of nation-states over individual rights, are mistaken. If political liberalism is not the culprit, then the admission of collective rights for peoples, which is a consequence of adopting political liberalism, is not to blame either. So we see

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the interest that we have in formulating a universal version of political liberalism. Liberal universalists will no longer put the blame on Rawls’s propensity to accept collective rights for peoples. It will appear possible to be universalist and allow for this kind of rights. In order to become a true international liberal, it is not necessary to be an ethical individualist. In the remaining part of this chapter, my ambition is to show that the abandonment of political liberalism and the law of peoples amounts to throwing the baby out with the bathwater. It is possible to defend the idea of a second original position that includes peoples and not persons, without renouncing the universality of liberalism. In other words, we have to accept two regimes of rights, one for persons and one for peoples, then include toleration for decent hierarchical societies in a non-ideal theory, and finally reject the nation-state model of international relations along with the historicist and relativist conception suggested by Rawls. In short, I am trying to defend a law of persons and peoples that is valid both domestically and internationally, and one that is also resolutely liberal. From my point of view, the adoption of a second original position that involves peoples should not be understood as resulting from a desire to make states predominant over individuals. It simply creates a second sphere of application of justice in the society of peoples, in addition to the law applicable to citizens within a single society. We should not confuse Rawls’s adherence to the neo-realist nation-state model in international law with the acceptance of a second original position involving peoples. The nation-state model of international relations is probably what prevents Rawls from endorsing a true internationalist position that would include both individual rights and the rights of peoples. As we have seen, the deepest source of the problem lies elsewhere. The problem is that Rawls thought it was necessary to invoke the weight of Western tradition in order to strengthen his concepts of the person, rational liberty, democracy, and liberalism. Indeed, consensus on fundamental liberal concepts and principles must result from public reason arguments, which, according to Rawls, flow primarily from Western political culture. For example, the consensus on the political conception of the person does not rest on an agreement following a purely speculative rational discussion, but on the lasting hold of an identity-based selfimage in the minds of people belonging to Western political culture. At the same time, the doctrine of political liberalism itself appears to be culturally marked.

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What explains Rawls’s new approach? The answer seems to me to be as follows. The best way to make the political version of liberalism persuasive is to experiment with the reasonable pluralism of comprehensive doctrines. This is in particular the case of the concept of the citizen, which results from the clash between comprehensive conceptions of the person. Now such conceptions can be deployed side-by-side only within democratic societies. In other words, Western democracies are at the origin of the reasonable, irreducible pluralism of opposing comprehensive doctrines. Since the political conception of liberalism gains its complete meaning in societies in which we have to try to manage such diversity, political liberalism emerges only in societies flowing from long-lasting democracies. If we then want to come to a consensus on the law of peoples at the international level, we inevitably have to go beyond the liberal democratic framework. In ideal theory, this brings us to apply liberal toleration to non-democratic societies, such as decent hierarchical societies. But that amounts to giving primacy to the state as opposed to the basic rights and freedoms of individuals, since societies are welcomed under the veil of ignorance, even if they do not recognize the political liberties of their citizens. This is, in short, a neo-statist version of international relations. However, all of this is based on the idea that the experience of irreducible reasonable pluralism has to flow only from a democratic society, or at least from a society that has experimented with pluralism in the past. However, it seems that, pace Rawls, a communitarian society with a communitarian tradition could take the opposite path and be led to democracy through the experience of an irreducible pluralism of comprehensive conceptions experimented within the global basic structure. The possibility of dialogue conducted at the level of relations among peoples can lead to deeper mutual understanding. Since political liberalism no longer imposes a comprehensive concept of the person, the primacy of individual rights, and the value of autonomy, dialogue can be established more easily. If there were various ways to achieve the democratic ideal, to apply the concepts of rational autonomy, and to conceive of the separation between the public and private spheres, some societies that have no prior experience of democracy could be led to institute democracy, and they could succeed even though they may be communitarian societies. They could be led to embrace democracy if international relations were themselves a little more democratic. At the same time, Western societies would also learn quite a lot from the same international experience, for they would come to realize that ethical in-

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dividualism is itself a particularism from which they must learn to detach themselves. Thus, instead of reducing political liberalism to a product of the Western public tradition, we have to see it as something that can have many different forms and not only the one that stems from the Western manner of realizing these ideals. Historically, liberalism has been based on ethical individualism. It can and must now move away from that heritage, which comes from Kant and Mill, if it is to be applicable to other societies. Political liberalism may finally provide a way of doing this. When it is seen in this way, we must not think in terms of “exporting” liberal ideals outside the Western world. After all, the idea that we should export liberal ideals is a racist idea that presupposes white supremacy. Rather, we are devising a framework accessible for very different kinds of societies and one in which all societies learn something from engaging in relationships with others. In the case of individualist societies, a lot can be learned from countries in which society takes the shape of a communitarian democracy. The question I want to raise is, Under what conditions can the fundamental values of liberalism be conceived of as universal? Perhaps those who resist the idea of universalizing liberal ideals harbour scruples that can be explained by the existing attachment to the Western version. Some hold the even more serious prejudice that non-Western societies cannot achieve democracy. The other equally problematic presupposition is the belief that Western societies have managed to achieve the democratic ideal, even if, in some so-called democratic societies, the system is closer to the archaic model of authoritarian societies. All advocates of liberalism have to promote the fundamental values of freedom of expression, association, and conscience; individuals’ right to life and physical integrity; male-female equality; the right to vote; the right to privacy; the right to live in harmony with one’s sexual orientation; the right to property, etc. These principles seem to have to be invoked against Muslim fundamentalists who bury gay people alive and treat women as inferiors. Indeed, we can wonder what principles other than those of liberalism can be invoked against Osama bin Laden. Fundamentalists who endorse Islamic jihad deny the separation between religion and politics as well as between ecclesiastic power and state power. They also promote the use of violence to achieve their ends. They deny the reality of axiological pluralism and the diversity of religious beliefs. They deny human rights. Yet can we truly defend Western democracies that are responsible for the killings of hundreds of thousands civilians living in Iraq, Afghanistan, Libya, Syria, Soudan, and So-

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malia? Can we defend the universality of liberal values if they are based on a comprehensive theory having its roots in Western metaphysics? The problem is that most liberal philosophers endorse a version of liberalism that is based on such a comprehensive doctrine: ethical individualism. All of the comprehensive theses related to ethical individualism come from the West. These metaphysical assumptions leave Western societies with anomia, atomization, and loss of any sense of community. Western individualist societies and not only communitarian societies have to learn more about toleration as respect for the sake of political stability. There are many ways of concretely realizing liberalism. This doctrine can be based on ethical individualism; this is the version endorsed by most contemporary liberal authors influenced by Kant and Mill. However, there is also Rawls’s political liberalism, which is based on toleration as respect for the sake of political stability. Contrary to what so many people have been repeating for so many years, in his later works, Rawls does not defend ethical individualism. He no longer defends a comprehensive theory. He remains neutral on the thesis that individuals, from the point of view of their personal identity, are “prior to their ends.” He agrees that peoples are autonomous sources of valid moral claims. Personal autonomy is not the liberal value par excellence. Finally, toleration as respect for the sake of political stability is a constructive principle that is the theory’s point of departure. While ethical individualism is a product of our Western societies, Rawls’s political liberalism seems at first sight to be “universalizable” precisely because of its neutrality on various comprehensive theories. We could see it as a compromise between Western societies and nonWestern societies. There are therefore many different ways of realizing the ideals of political liberalism: in individualistic liberal societies but also in communitarian democracies. In any case, this is the hypothesis that I would like to examine. Individualistic societies are composed of individuals who see themselves as prior to their ends. But if they endorse political liberalism, these societies will also allow for collective sources of valid moral claims and endorse a principle of toleration as respect for the sake of political stability. Communitarian democratic societies are made possible by the presence of members who exemplify a certain form of rational autonomy that does not entail that persons or peoples are prior to their ends and that is compatible with a process of self-discovery of one’s moral identity. This can be done as long as rational autonomy involves no more than reflexivity, strong evaluations,

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and thought experiments. Nevertheless, if they endorse political liberalism, they will accept that individuals are valid sources of moral claims and also accept as a fundamental principle toleration as respect for the sake of political stability. However, the question remains: How can we envisage the democratization of communitarian societies? For even if it can be shown that persons belonging to communitarian societies can, in principle, be rational autonomous citizens, this would show at best that, at least in principle, they are able to engage into a democratic society. But how could it be possible to move from an undemocratic society to a society where the potentialities of rational autonomous agents would be put in practice? In order to answer this question, I shall examine the three major obstacles that I have just been describing. First, I consider the fact that Rawls did not acknowledge the existence of a “global basic structure.” Next, I look at the link Rawls identified between political liberalism and Western political culture, which amounts to adopting a relativistic view toward liberalism. Finally, I study the difficulty raised by the fact that Rawls used only simplified models and never discussed complexity. I show that, in each of these three cases, major changes have to be made to the theory so that it can acquire true universal virtues. In conclusion, I try to show that political liberalism has greater universal potential than Rawls thought.

a global basic structure It may seem unlikely that a consensus could be achieved at the international level on liberal principles that have been agreed upon in the domestic sphere. Indeed, I have already noted that to gain access to the political conception of the person, we have to experiment with the reasonable pluralism of comprehensive conceptions. Now, by definition, communitarian societies do not experiment with any pluralism of comprehensive conceptions within their societies. They are not societies that have a variety of conceptions of the common good or of the good life. Very often, members of such societies unanimously consider their religious or moral identity as an essential component of their personal identity. In such cases, if there is no irreducible diversity of comprehensive conceptions to be managed, there is little chance that a commonly shared political liberal view will emerge. The problem is that Rawls does not believe strongly enough in the existence of what Allen Buchanan (2000) has correctly called the “glob-

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al basic structure.” He allows only for a “society of peoples” (Rawls 1999, 3). We know that, for Rawls, justice applies to the basic structure of a society. The basic structure is the set of the society’s basic social, political, and economic institutions. In Rawls’s work, the basic structures that are important are those of societies organized into “self-contained national communities” (Rawls 1971, 457). Yet the world economy is increasingly becoming globalized, and there are more and more supra-national institutions, including economic, political, and non-governmental organizations. This should lead us to conclude that there is a global basic structure. The global basic structure is a society of peoples embodied in a system of cooperation in which all peoples are interdependent. How does this get us further ahead? Rawls thought that only in societies where there is reasonable pluralism can the political conception of the person be deployed. It is only by acknowledging such pluralism that we can agree to manage identity conflicts by imposing a shared framework in the form of an institutional identity applying to all persons. But in the framework of a global basic structure, peoples are led to experience reasonable pluralism even if they do not experience it on the domestic front. Citizens belonging to individualistic and communitarian societies increasingly see themselves as containing different sorts of citizens who are equal to the citizens of other societies, even if they are at the same time very different from themselves. My point is that the common status that they enjoy in the global basic structure with all other citizens leads to a common conception of the citizen that can exist despite huge differences in their respective societies. This conception is the political conception of the person in the global basic structure. Now by experiencing the irreducible and reasonable pluralism of moral, religious, ethnic, and metaphysical conceptions present in the global basic structure, citizens can see how very different citizens can share a common identity. So in a way, they are able to imagine within their own society how they could themselves be these other citizens. Being able to do this supposes an ability to detach themselves from their own particularism. It is possible for communitarian citizens to reach a level where they can go beyond their own moral identity and become international citizens. The same kind of remarks applies to citizens in the Western world who have adopted an individualistic conception of themselves. They are also able to detach their status of citizen from their comprehensive self-understanding. It may be their experience in the global basic structure that enables them to do this and not necessarily their own historical experience.

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Similar remarks apply to peoples. Communitarian and individualistic peoples have no way to detach themselves from their moral identity just by relying on their own traditions. But within the global basic structure, they can experience the irreducible fact of pluralism and see that they are simultaneously identical to and very different from other peoples. Liberal philosophers may thus not need to renounce their principles at the international level. This is because we can believe in the possibility that, in a global structure characterized by a reasonable pluralism of comprehensive conceptions, commonly shared international concepts of persons and peoples might emerge in a global basic structure. Even though some societies have not yet managed to engender reasonable pluralism on their own, they may become sufficiently open to experiment with reasonable pluralism as they integrate into the global basic structure and see themselves as members of a society of peoples in the political sense. They will then be able to see themselves as political peoples and could then be favourably disposed to the principles of political liberalism. However, it would be a mistake to think that only non-Western societies are targeted by these remarks, for they apply as well to Western societies with their individualistic bias and their tendency to denigrate all forms of communitarianism. I said that taking the global basic structure into account would make it possible for us to glimpse the possibility of universalizing liberalism. This does not mean that the method of the original position and the veil of ignorance apply across the board to all individuals, irrespective of their own peoples and historical experience. Instead, we should see that, thanks to the global basic structure, persons and peoples have access to concepts of a person and a people that can be commonly shared and that can be useful to understand their own society. Along the way, they will then be able to develop their own specific concepts of citizenship, person, rational autonomy, democracy, and society, but they will do so partly under the influence of the basic concepts construed out of their experience in the global basic structure. It also means that it could be possible to come to an international consensus on these minimal concepts of a citizen and a people. Rawls already admits the possibility of an international agreement with decent hierarchical societies on shared political conceptions of citizens and peoples, and he also admits the universal validity of the veil of ignorance methodology. However, in the modified version that I am suggesting, we would be able to go further because the consensus could lead individualistic and communitarian democracies to agree on a jus gentium containing a set

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of principles, including political liberties, equality of opportunity, and the difference principle. The increasingly global nature of the economical, legal, and political institutions enables us to envisage the possibility of experiencing an irreducible diversity of comprehensive conceptions of the person and of peoples on the international scale. Thus, even if communitarian societies do not have the historical experience with reasonable pluralism, they can discover the virtues of liberal democracy by experiencing the diversity of comprehensive conceptions in the global basic structure. For instance, they can sometimes more directly assess the benefits of a democratic regime through the votes that take place in international forums such as the United Nations. They may see it in their interest to become democratic in order to be admitted into supranational structures such as the EU. Similar remarks apply to liberal societies with their individualistic bias. Thanks to the emergence of a global basic structure, the conditions conducive to establishing political liberalism are very slowly being fulfilled around the world. In The Law of Peoples, Rawls seems to be less optimistic. He develops two rounds in the methodology of the second original position. The first round gathers only representatives of liberal peoples. In the second round, they are joined by decent hierarchical societies. As I said, these two steps were meant to show that the principles are the same in both cases. In this way, it would be wrong to suggest that compromises have been made in the negotiations leading to a consensus with societies that are less than fully democratic. But we have seen that this way of proceeding is somewhat artificial, because Rawls has excluded from the consensus among liberals very obvious principles that are shared by liberal societies. With a global basic structure, things become different. We could accept a single round of deliberation in the second original position, including all of the peoples (liberal individualists and communitarian democracies) that share a common core of concepts, though they may apply them differently in their respective societies. Specifically, communitarian democratic and individualistic societies can imagine themselves being very different from what they are as they experience societies in the global basic structure that are indeed very different from what they are. Being able to reflect and imagine ourselves being very different is a process of deliberation that is at the core of our rational autonomy and more generally of our ability to determine what we are and what we want to be.

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However, perhaps I am getting ahead of myself. The problem is that even if the experience of pluralism is possible with the emergence of a new global basic structure, we have no recourse to shared political traditions that bring together and generate consensus on these concepts among all members of the international community. We do not have a traditional pool of common reflective judgments that we could weigh against our initial intuitions and that would enable us to derive global principles of justice by achieving a reflective equilibrium. The method of reflective equilibrium is especially effective when the data are spread over a long period, because we then have access, even if our perspective is purely monological, to a shared set of reflective judgments. Unfortunately, in the present case, liberal and communitarian societies do not have access to a commonly shared tradition. This is where the methodologies of overlapping consensus and public reason can prove useful. They provide an alternative to the methodology of the original position and the reflective equilibrium, and makes it possible to see how a consensus could emerge with no need for recourse to tradition.

overlapping consensus and arguments based on public reason For Rawls, the methodology of the original position under the veil of ignorance is just a way to arrive at norms of justice. After that, it is always possible to question those very same principles when the time has come to translate them in a constitution. There are two different ways to approve constitutional principles. Rawls believes that we can arrive at the same principles through an overlapping consensus starting from our comprehensive views. He also thinks that we must be able to argue for any principle with the use of public reason alone. Imagine that we arrive at principles through the monological method of the veil of ignorance. Then imagine that the same principles are the object of an overlapping consensus. Finally, let us suppose that we are able to argue for the same principles with arguments based on public reason alone. The idea is that this process is precisely what can take place when members of Western and non-Western democracies confront each other in a global basic structure. They gain access at basic concepts of citizenship, societies, and rational liberty. Since Rawls saw political liberalism as a product of Western political culture, and since non-Western societies also have their own political

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traditions, he thought that any international consensus among all populations on Earth (and not just those in Western Europe) would be on principles that can be found at the intersection of democratic and nondemocratic regimes. Rawls thus thought that he had to give up political freedoms, equality of opportunity, and the difference principle. This is why some theorists have been inclined to see Rawls’s law of peoples as a contract situated outside a satisfactory liberal perspective, and even as no longer really being “liberal” in inspiration.2 It may be interesting to note that Rawls would not have ended up with such disappointing results if he had been able to incorporate the central elements of public reason and overlapping consensus in a global basic structure. What is important is that, from this perspective, it does not seem necessary to permanently link political liberalism with Western political culture. We are no longer required to confine ourselves to the veil of ignorance method and seek a reflective equilibrium between our initial intuitions adopted in a monological stance and the reflective judgments of our shared public culture. If we are allowed recourse to a common global basic structure, real consensus can emerge among partners that do not share the same political culture. Agreements on principles of justice can occur in the global basic structure between persons and peoples that apply the political principle of toleration as respect for the sake of political stability. Unfortunately, in light of his work on the law of peoples (Rawls 1993, 1999), it seems that Rawls did not fully appreciate the extent to which a global basic structure is already present. If we take into consideration the emancipating critical virtues of uninterrupted deliberation unhindered by political domination, and if such deliberation focuses on both concepts and on substantial principles, it may be possible to reach an overlapping consensus on the central concepts of a theory of justice among peoples that have different political traditions. This would open the way to agreement on human rights as well as on the rights of peoples that, while remaining political and not metaphysical, could break free from the constraints of tradition, for what would be in question would be concepts and principles that we now subscribe to and that are the objects of a new consensus. Repeated consensual agreement in an international deliberative society within a global basic structure should be considered as having universal scope and should give us good reason to think that political liberalism can be extended to the international sphere. It is no longer necessary to share a democratic tradition in order to share the same principles of justice.

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However, an obvious objection has to be raised at this point. Is public reason and overlapping consensus in a global basic structure that we introduce to assist Rawls’s political liberalism also a product of Western political culture? In other words, the procedural norms of public reason and overlapping consensus that are meant to be guidelines in the discovery of common principles between very different societies could in fact presuppose Western norms. There is an apparent circularity between the thesis that the people’s will is prior to constitutional principles, and the fact that the discussion leading to the adoption of constitutional principles must be conducted only in a society where basic freedoms are already secured. Indeed, is democratic deliberation prior to the principles, or should we recognize that the principles themselves favour the emergence of democratic deliberation? The answer lies in recognizing that public reason and overlapping consensus also do not need to be thought of in relation to the historical anchoring that favoured their emergence. We can acknowledge that they appeared historically in democratic societies but argue at the same time that they are free from that tradition. This requires that public reason be freed of the individualistic framework in which it is often formulated. It suffices to reformulate the principles in a way that is strictly political and not metaphysical. I have already indicated how this could be done: by treating public reason and the search for overlapping consensus not as alternative methods to the veil of ignorance but as complementary methods, using them as a way to double check what has been achieved through the veil of ignorance and making them part of the political experience of toleration. If a public reason divorced from a comprehensive account of rational autonomy were subject to an agreement among members of societies as different as the individualistic and communitarian political societies, public reason would then be separated from the individualistic tradition. Of course I would also like to add that public reason and the search for an overlapping consensus have to apply not only among persons, but also among peoples. In sum, it could be argued that the confrontation of Western and non-Western societies in a global basic structure not only can yield a common set of concepts and eventually a common set of principles, but also a common methodology involving the veil of ignorance, overlapping consensus, and the production of arguments based on public reason alone. Here we are facing two difficulties that are, in the end, symptoms of the same problem. Historically, communitarian societies have not experimented with the pluralism of reasonable comprehensive concep-

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tions, or the ideas that form the foundations of liberalism. This is a first difficulty. The second one is that Rawls’s methods of the veil of ignorance, the use of public reason, and overlapping consensus seem anchored in the individualistic history of Western political culture. How can we break free of the historicist bonds that hinder universalization of liberal principles? I have already noted that the existence of a global basic structure would make it possible to envisage communitarian societies experiencing pluralism of reasonable comprehensive conceptions. Similarly, largely individualistic societies would clash with communitarian societies and they would learn from them toleration toward communitarianism. In this way, they could come to an overlapping consensus on fundamental concepts such as peoples, persons, rational autonomy, democracy, citizenship, and society. In my view, this could be possible as long as these concepts were detached from the ethical individualism that is characteristic of Western societies. We would tend to distinguish peoples as societies forming structures of cultures from peoples understood with a character of culture. We would be able to distinguish persons as citizens belonging to a society from persons in the metaphysical sense. We would adopt a minimal sense of rational autonomy involving reflexivity, strong evaluations, and the ability to perform thought experiment. We would understand democracy as a system in which everyone can enjoy such rational autonomy. We would understand citizenship as a political status that can welcome individuals who see and express themselves as individualists or as communitarians. We would also understand society as distinct from associations of individuals and political communities. Furthermore, we would become convinced about the virtue of reaching overlapping consensus on these various issues and would become concerned with formulating arguments that apply across the board to all societies. This would be conducive to the emergence of liberal and communitarian societies that are both democratic and tolerant toward each other. It would be with such partners (liberal societies and communitarian societies) that, in ideal theory, a consensus could be reached on certain international principles of justice. The beginning of this whole process is the experience of a reasonable and irreducible pluralism in the global basic structure. This is a sensitive point that will help us to understand more precisely why Rawls thinks he has to rely on the foundations of Western tradition. Political Liberalism begins by looking at the origins of toleration in modern times, and this leads him to mention religious wars. The West experienced many re-

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ligious wars before managing to achieve a certain modus vivendi. Then, gradually, through trial and error, the modus vivendi yielded to toleration, understood in the sense of respect, and then to democracy. Thus, if we are in the Western political tradition, we can rely on certain givens. However, there is no teleology on which we can base our arguments that could enable us to conclude that there is a necessary passage from one concept of toleration based on a modus vivendi to stability in political relations. The violence of the religious wars did not lead inevitably to a modus vivendi, and the modus vivendi did not necessarily lead to toleration. And toleration does not necessary lead to stability. Moreover, once stability is established, it need not be based on respect among religions. But even if it does so, it may be in the individualist sense of forcing religion into the private sphere. No toleration is bound to occur for those religions that are communitarian. It was against a backdrop of these givens that Rawls developed his later thought. However, the problem is that he did not see any possibility of the emergence of democratic regimes in the non-Western world. This might be seen as a double insult, since, first of all, Western societies often fail to be truly democratic, and second, non-Western societies may sometimes succeed more in this venture. However, we could even talk about a third level of insult, since very often the Western world has prevented democracy from happening by supporting authoritarian regimes. All these unacceptable positions explain why Rawls did not consider the possibility of communitarian democracies that still might be liberal in the political sense. That being said, Rawls must be praised for realizing that Western societies that would support only individualistic practises and reject communitarian practices would themselves be in a sense tyrannical. He can also be applauded for recommending toleration as respect for decent hierarchical societies. Once again, the reason why he failed to see the possibility of communitarian democracies was that he thought that nothing in their political culture could create favourable conditions for democracy to emerge in communitarian societies. Crucially, he did not even see the existence of a global basic structure. If he had done so, he could have accepted that, in ideal theory, there could be communitarian democracies, since, in principle, communitarian societies can experience the clash of religion and morality within the global basic structure. But as a matter of fact, this is also true of Western societies, for even if they have experienced the clash of religion and morality, they have yet to experience the clash between different metaphysical conceptions of the

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person. Western societies tend to presuppose an individualistic conception of the person and treat ethical individualism as if it were a religious doctrine. In order to establish shared principles of justice in international society, partners need to accept the principle of equal respect in the global basic structure. It may thus be that conflicts are inevitable and that there will have to be further struggles for reciprocal recognition to emerge. Modus vivendi will appear here and there, and perhaps over time the players will see an additional interest in maintaining such provisional agreements. This could engender a certain level of respect. These reflections force us to admit that the theory remains largely utopian. However, can we at least show that it is a realistic utopia? For political liberalism to aspire to universality, the global basic structure has to be consolidated in such a way that it can provide favourable conditions for experimenting with diversity. Public reason and overlapping consensus also have to be established in order to favour the emergence of a consensus between populations with very different political traditions. How can such results be achieved? In an intermediary phase, violent conflicts will have to lead locally to provisional modi vivendi, and these provisional modi vivendi will have to translate into stability, and the stability into mutual respect. In sum, political philosophy has to feel authorized to make a controversial prediction based on the supposition that societies would tolerate both individualistic and communitarian practices and ways of life. What can be said in order to justify such optimism? In addition to welcoming communitarian democracies in ideal theory, we can and must in non-ideal theory practise toleration as respect toward decent hierarchical societies. What else could be said to authorize optimism?

thinking about complexity So far, we have seen that Rawls based his later theory on consensus inherited from tradition, and that he remained largely indebted to a traditional conception of the basic structure because he did not take sufficient account of the existence of a global basic structure. Rawls was thus not favourably disposed to recognize the possibility of achieving overlapping consensus on liberal and democratic principles among individuals from very different societies. I take a more optimistic point of view based both on the fact that there is a global basic structure and that we have the possibility of developing public reason and overlapping con-

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sensus in this global basic structure. However, we have also seen that the establishment of public reason and consensus at the international level remains quite utopian, even when it is freed of its metaphysical foundations. How can we predict that violence between peoples at the international level can lead to the use of international public reason and an overlapping consensus? Are there solid empirical foundations for such optimism? According to many, including Rawls himself, the answer seems to be no. It seems it would be too utopian to hope to establish full liberal principles and democratic ideals at the planetary scale. However, perhaps Rawls thinks this because he does not realize the extent to which many Western democratic societies are themselves characterized by ethnic, cultural, and national pluralism. According to Rawls, political liberalism has started to take root in our democratic societies, but these societies also sometimes bring together many different peoples. They are in fact very often poly-ethnic, multicultural, and pluri-national societies. They sometimes bring together many immigrants from around the world. If consensus can be renewed (and not simply maintained by the weight of tradition) and can emerge among a people containing individuals coming from different societies, is this not a good reason to conclude that it is possible to come to the same kind of agreement among all peoples in a global structure? Are we not right to assume that contemporary societies resulting from immigration are microcosms of international society? Of course, liberal ideals are not yet fully achieved in our own societies. Charters of rights and freedoms are often flouted, equality of opportunity is often only formal, and the difference principle is most often ignored. In short, our societies have a long way to go to comply with liberal ideals. We also cannot claim to give deliberative democracy the role that it deserves. However, who can deny that our societies are characterized by consensus on some liberal principles, and who can ignore the increasingly frequent demands of citizens in favour of effective deliberative democracy? This makes me want to say that if a liberal consensus can be renewed and maintained in our own societies, and if our societies are ethnically complex, then it is reasonable to imagine that the same consensus can be achieved at the global scale. This ideal becomes a realistic utopia. We do not need to base our arguments on a Hegelian teleological vision. Since liberal principles in our societies sometimes pass the test of democratic deliberation, we have the right to make normative arguments in favour of the principles of political liberalism at the international level, without falling into an inappropriate utopian dream. Since

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there is a global basic structure and our basic local structures are ethnically complex, renewed consensus in our societies can be considered as an initial approximation of the consensus that is possible worldwide. In my view, the greatest obstacles to achieving these goals within Western societies are intolerance toward communitarianism that, in our day and age, has led to Islamophobia, targeting mostly citizens coming from Arab countries, and white supremacy, which still characterizes North American social attitudes toward Afro-Americans and African countries in general. It is important to note that we are not here merely stating what should be in ideal theory. We are not defending a teleological view of history with a happy ending. Existing forms of political liberalism that would meet the realistic utopia sketched above can be used as norms for action. In other words, given that there are already instances that meet the criteria imposed by such a realistic utopia, we can recommend extending them to many other situations. The debates that occurred within the un on the rights of indigenous peoples, those that sometimes take place in Europe on a constitutional treaty for the European union, or those that led to the unesco declaration on cultural diversity are examples. These cases empirically anchor the idea that such an utopia can be generalized, and this is what makes the proposed utopia realistic. The problem is that Rawls thought about political reality in a very abstract way; it is not only that he placed great importance on theory in comparison with case studies, or that he gave ideal theory great importance in comparison with non-ideal theory. Rather, it is that he remained with simplified models and did not examine complex models. In the simplified framework of a closed society that one enters only by birth and leaves only by death, there is no interpenetration of societies, no societies resulting from immigration, no minority national groups, and so no multinational states. Consensus is always local and has no real international scope. The problem is that, in the original position, citizens are described as belonging to an independent national community. The individuals in question all have the same ethnic identity. The advantage of this simplified model is that it allows for a methodological separation between two distinct ways of applying the concept of justice: between individuals and between peoples. By functioning within the simplified framework of an ethnically homogeneous society, Rawls saved himself the trouble of having to raise the problem of justice between peoples in the course of reflecting on the application of justice in a single society. Sim-

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ilarly, at the level of his law of peoples, he supposed that peoples are homogeneous and that their political organization is a state. He thus saved himself the trouble of having to immediately apply his law of peoples in the complex situation of a real sovereign state. In the simplified frameworks that he adopted, the two principles of domestic justice and his international law of peoples appear to be occupying separate places. Yet if he had discussed complex situations, he would have been led to reflect more on international applications of principles adopted at the domestic level and domestic applications of principles adopted in his law of peoples. In short, he could have admitted that the two orders of law have to live side-by-side in both the international sphere and in real sovereign states. If Rawls had thought about things in this way, he would have seen the international potential of political liberalism. Simplified models may seem methodologically useful, but they can also be explained by the fact that Rawls felt deprived of realistic arguments for taking an optimistic view on the possibility of political liberalism for both Western and non-Western countries. If I am right, his pessimism was not entirely well founded because the global basic structure makes it possible to experiment with irreducible, reasonable diversity of comprehensive conceptions. So all the countries of the world can experiment the validity of a fundamental principle of toleration. It is possible to have a positive view concerning the emergence of an overlapping consensus and a public reason within the global basic structure. Finally, real experiences of toleration within societies resulting from immigration or within the global basic structure provides realistic anchoring for this utopia.

communitarian democracies I have underlined three features of The Law of Peoples. First, Rawls endorses a neo-realist conception of international relations that fails into account for the existence of a global basic structure. Second, he thinks that a true democratic society can appear only if the political culture of the community takes its root in the experience of deep diversity and toleration between irreducible and reasonable views about the good life. Third, he has been concerned strictly with simplified models. Ultimately, these features of the law of peoples can also explain why he was unable to imagine how a population could become democratic if it did not have a political culture in which one could experience a reasonable and irreducible pluralism. So any consensus at the international level would

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have to be reached with a non-liberal society. These could be the real causes that explain why Rawls developed a conservative law of peoples. Political liberalism is not responsible for the mess. It is Rawls’s endorsement of the Westphalian political model, his ignorance of the global structure, and his inability to think about complexity that explain why he was unable to conceptualize communitarian democracies and accept the universality of all the liberal values that he defended in the domestic case. Those theoretical postures do not constitute political liberalism. It is possible to be a political liberal, acknowledge the existence of a global basic structure, renounce historicism, and embrace complexity. In turn, these moves allow us to introduce the concept of a communitarian democracy as the true interlocutor under the veil of ignorance. In a communitarian society, rational autonomy is incompatible with the ability to revise beliefs, values, goals, and aspirations while remaining the same individual, because new values are values that citizens discover in themselves and that shape their identities in new ways. Within such a society, persons and peoples cannot conceive of themselves as adopting different values without, at the same time, seeing themselves as becoming different individuals or peoples. In individualist liberal societies, rational autonomy is defined differently, because it makes it possible to include the ability to revise one’s own conceptions of the good while still remaining the same person. The society as a whole can also be seen as prior to its ends. The practices that are functions of specific beliefs, goals, values, and aspirations are relegated to the private sphere. This conception, though, is largely individualistic. I have argued that individualistic societies should open themselves to communitarian societies. The main justification for intolerance of communitarian societies is that these are precisely intolerant. If we are to argue in favour of toleration as respect for these societies, we must show how they could themselves become tolerant. We should never forget also that Western “tolerant” states are very often actually rogue states that do not hesitate to kill or defend authoritarian regimes if these things are of their own interests. How can a communitarian society that sees itself as homogeneous with respect to values become tolerant? How could it achieve toleration and allow for a diversity of points of view? Experiencing different societies and different citizenships at the international level, it is able to imagine its own citizens entertaining various views about the good life and the common good. Even if the majority of its citizens shares the same view about the good life and even if society as a whole adopts a particular view of the common good, it has become able to imagine

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how citizens and society could become different persons and different peoples. So citizens can allow other citizens within their society to think differently of themselves and of their society. Imagine a nonneutral society that does not separate politics and religion, with a constitution containing religious principles and political parties defending religious views. Imagine that their education system involves the teaching of religion and that their immigration policy contains a preference for immigrants who share the same religion. This is certainly not a liberal democracy. But imagine also that they explicitly recognize the rights of religious minorities in the same constitution. They also allow dissident minorities to exist and assert their own identity, their own authentic being. There is an electoral system with political parties representing these minorities or arguing for a strong separation between religion and the state. There is no censorship and debates freely take place on the place of religion in politics. There is a free press, freedom of expression, and freedom of association. There are schools teaching the religions of religious minorities and schools where only secular teaching takes place. The state also ensures that a percentage of immigrants were automatically accepted in a proportion that corresponds to the proportion that they already represent within the state. In such a case, could we not say that we are dealing with a communitarian democracy? In an individualistic society, being truly democratic does not require recognizing explicit minority rights for specific religious groups having specific conceptions of the good life, whereas it is an unavoidable requirement in a communitarian state in order to correct what would otherwise be a total absence of neutrality. Up to a certain point, we do the same in a liberal society where days off correspond to old religious holidays. In this case, we can allow for special rights that religious ethnic groups can claim in order to respect their own religious practices. In a communitarian democracy, special rights like these would systematically be applied. We manage to tolerate one another mutually because we are able to imagine how we could have come to a different consensus on what we are. In order to be tolerant of a minority, a democratic communitarian state need not necessarily presuppose a perfect moral homogeneity or religious unanimity, for it presupposes only the presence of a majority that shares the same conception of the common good or of the good life. It imposes its comprehensive view in the constitution and in public institutions. However, since the majority group has the ability to imagine itself in another consensus situation and is able to represent it-

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self as becoming another community, its members know that the community’s identity is nothing other than the result of self-discovery occurring through the expression of a majority vote, and this goes hand-in-hand with the recognition of dissident minorities. Instead of having a neutral state that does not compromise itself on a specific conception of the good life, we have a state that explicitly promotes a majority point of view, but it is one that also must explicitly exempt minority groups from application of its policies. There have to be explicit policies that protect and promote communitarian minorities. It can do this because, as a democratic society, it can conceive of itself as in principle able to become another political community. It can imagine itself in a very different communitarian consensus. The main point is this. If an individualistic liberal society achieves justificatory neutrality by avoidance, a communitarian democratic society can achieve the same result by explicitly committing oneself to a particular morality, religion, or philosophical doctrine while also defending and promoting minority groups that have a differing morality, religion, or philosophical doctrine. I have implied that communitarian societies can, on the basis of the rational autonomy of its citizens, allow for democratic deliberation on the level of society as a whole. I have also just indicated how the ideal of neutrality could be achieved in a communitarian society. In this sense, they look very much like liberal societies. However, this way of seeing things can appear strange. It supposes, first, an attempt to appropriate the concept of rational autonomy and to apply it to a very wide variety of societies, including communitarian societies. Second, in the same breath, it implies a refusal to choose between the individualist and communitarian visions on a comprehensive theory. This raises another important issue, which is pointed out by Kymlicka and taken up by Tan: Why does the ideal of autonomy have to be accepted in political contexts and be rejected in non-political contexts (Kymlicka 1995, 160; Tan 2000, 23n14)? Here both Kymlicka and Tan appear to make use of a comprehensive concept of rational autonomy. Such a concept requires that the person be prior to one’s ends. Political liberalism then seems to be accepting that the communitarian person connects her own identity with a particular moral identity in the private sphere but accepts a comprehensive concept of rational liberty in the public sphere. It may then be wondered why the communitarian person would accept such a compromise. Kymlicka and Tan do not make use of the concept that I in-

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troduced earlier on and that is perfectly adaptable to a communitarian person. This in turn entails that they do not see how a communitarian person could accept an individualist concept of rational autonomy in the public sphere. It is correct to say that, in a sense, rational autonomy is accepted in all political contexts under the veil of ignorance, as portrayed in ideal theory, but it is because democratic communitarian societies, like liberal societies, can accept a minimal concept of rational autonomy understood in the sense implying only reflexivity, strong evaluations, and thought experiments. This kind of rational autonomy may be deployed by a person who is prior to her end, but it may also be deployed by a person engaged in self-discovery. In contrast, real autonomy, understood in a sense that supposes belief in a moral psychology of a specific type, is in a way “excluded” in all democratic political contexts because it does not take into consideration communitarian persons. Rational autonomy in the minimal political sense does not create such damage for communitarians. The other mistake is perhaps that Kymlicka and Tan tend to map the political/moral distinction onto the distinction between public and private spheres. Their argument rests on a particular way of understanding the separation between the political conceptions of persons and people, and the moral conceptions of persons and peoples. It is important to underline the fact that the moral conceptions are not private. They can be publicly expressed. It should be clear that individualist and communitarian identities are present in the public space. Their debate is not to be treated as a private matter, and the same remark can be made about their moral identities themselves. The political sphere is not to be equated with what is public, but rather with what is the common public identity of everyone. It is precisely because their identities are public that they are able to experience how the same kind of citizen can have a totally different moral identity. It is this experience that enables them to conceive a concept of citizenship that is detached from a particular moral identity. Individualist and communitarian identities, although public, are not part of their common public identity, and this is why it must be possible in the political arena for them to develop arguments based on public reason alone. If we were to relegate moral identities to the private realm, communitarian identities would not be treated equally. But moral identities are publicly expressed. The political conception of person as a citizen and of people as a society are the results of an agonistic (not antagonistic) clash between individualistic and communitarian public identities. So political liberalism is not ask-

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ing the communitarian to keep his or her own moral identity in the private realm. Rather, it is asking both individualists and communitarians to realize what they have in common in the public sphere. In sum, we have two different conceptions of personal identity. Both of them are public and both of them are excluded from our political identity of citizen and society. The concepts of citizenship, rational autonomy, and democracy do not rest on a comprehensive theory and are perfectly adaptable to a communitarian society. So we should not consider it fake when these concepts are applied to communitarians, and we should not consider these concepts as biased in favour of a comprehensive individualist theory. Essentially, political liberalism is based on a principle of tolerance between individualists and communitarians. In a contemporary “individualist” society, the individualist majority point of view can seem to colour the way we conceive of a citizen’s political identity. Is this still a bias in favour of a comprehensive individualist vision? Not really, if it is at the same time a society in which individualists and communitarians agree to live together as citizens, and one in which it is possible to transform itself into a communitarian society. In a contemporary individualist society, we should tolerate and respect the public presence of various identities. In any such society, we shall see different degrees of trends towards individualism or communitarianism. However, if both points of view truly practise tolerance, both types of society will be understood primarily as different ways of conceiving a common public identity: one in which the state achieves neutrality of justification and independence, or one in which the state supports the comprehensive views of the majority and of the minorities. Political liberalism does not require that none of the characteristic features flowing from a comprehensive conception appear in society. It can accept that every society will be coloured by various comprehensive visions. What is important is to see that what is in question are particularist features of identity, and that societies do not all necessarily involve the same particularist features. Societies coloured by individualist features know that they might transform themselves into communitarian societies, and communitarian societies know that they could transform into individualist societies. This way of understanding societies is the true common denominator for liberal democratic societies and communitarian democratic societies. How can communitarian societies think of themselves as being able to become individualist societies if they really are communitarian? Does

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it require that they think of themselves as able to abandon their very conception of the good life, and thereby essentially subscribe to the individualist way of thinking? Is this so-called bridge between the two types of society in fact a one-way street? If so, it would mean that an individualist can imagine herself becoming communitarian because she has the ability to detach herself from any particular comprehensive view, but that a communitarian cannot imagine herself becoming individualist without renouncing to her particular view of herself. But this is not how we should view things. For the individualist to be able to represent herself as becoming communitarian, she has to imagine herself in a way that would tie her intimately to her beliefs, values, and ends. Similarly, the communitarian needs only to imagine being able to separate herself from her beliefs, values, and ends. Both individuals are able to do this because they make use of a neutral concept of rational autonomy, and both can continue in their private and public life to remain individualist or communitarian. Nevertheless, on the basis of their respective experience of an irreducible and reasonable pluralism, they are able to construe a common public identity that transcends their own particularist identities. Whether they are part of a Western secular state or a non-Western type of political arrangement insisting more on the full recognition of all particularisms, they can imagine how their society could become the other type of society. The apparent bias in favour of individualism occurs when we try to imagine a place free of any comprehensive vision. Do we not then have access to a sphere of impartiality that is in principle unavailable to communitarians? It is true that we do not usually describe the communitarian point of view as able to allow this kind of impartiality. However, this zone of impartiality does not mean that the individualist point of view is right. Rather, it is to be understood as resulting from the clash between individualists and communitarians, and from the experience of tolerance between them. Of course, communitarian citizens living in a non-Western society do not think about their own societies as free of any comprehensive vision, but they can imagine the passage from one comprehensive vision to another, because they are able to see themselves as able to become another society. This is the openness that makes it possible to think of society as transcending comprehensive views. Communitarians can imagine what an individualist self-representation would be like, and vice versa. To do so, they do not have to think of themselves as detached from a conception of the good life. A thought experiment can allow a communitarian person to imagine herself as

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becoming another person, one who would see herself as prior to her ends. However, since it is only a thought experiment and it entails becoming another person, it is compatible with a communitarian conception of the person. Some will say that this reformulation of Rawlsian political liberalism involves changes that are unacceptable to those who want to retain the orthodox version, because it amounts to no longer admitting that comprehensive theories and the public sphere are watertight compartments. This is partly because we misunderstand political liberalism as implying a sharp distinction between the private and the public and confusing this distinction with the political/comprehensive distinction. Indeed, in various ways, individualist and communitarian conceptions colour the different societies that we are considering. Some societies are more individualistic, while others are more communitarian. In order to gain a good understanding of how political liberalism can authorize enlightened versions of this kind, we have to return once more to the political conception of the individual. Political persons do not lack specific moral identities. It is just that they have only the capacity to see themselves as able to free themselves of their specific moral identity while still remaining the same citizen. Tolerance in the sense of respect means being able to put oneself in someone else’s shoes, to imagine being the Other. We can thus imagine ourselves becoming communitarian when we are individualist, and becoming individualist when we are communitarian. This is precisely what it means to be a citizen. In order to gain access to citizenship, there is no need to completely abandon both comprehensive visions and relegate them to the private sphere, as would be the case in classic liberal societies. The method of avoidance is a useful tool to provide arguments based on public reason alone. It is not a norm that relegates comprehensive views in the private domain. What I have just said about persons applies in exactly the same way at the societal level. Societal cultures are at once structures of cultures and characters of culture. This distinction is similar to the one between the political identities and the moral identities of persons. Specific societies are involved in “individualist” or “communitarian” undertakings. However, at the same time, since they are democratic, they know that they could transform themselves into very different societies. An “individualist” liberal society can imagine itself becoming “communitarian,” and a “communitarian” society can imagine itself transforming into an “individualist” society. Communitarian philosophers will see the two

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types of democratic society as examples of two substantial conceptions of the good life, and therefore as two distinct societies, whereas liberal philosophers will see them as examples of two democratic societies that are prior to their ends. What is important is that both types of society are able to imagine themselves in an impartial zone that transcends their specific individualist or communitarian features. Their difference lies in their ways of conceiving neutrality. Individualists see the fundamental institutions of society as neutral, and they thus consider peoples as prior to any beliefs, values, purposes, and aspirations. In contrast, communitarians see society as always situated in a particularist stance, since peoples are always defined in terms of specific beliefs, values, purposes, and aspirations. Communitarians have to think of society in a democratic manner, and individualists have to accept communitarian societies. Both the individualist and the communitarian comprehensive conceptions have to make a distinction between their substantial debate and the stakes involved in their co-existence in a common political venture. Both groups can continue thinking that the other is mistaken and trying to convince the other. However, they can and must also create a political space that takes the other into account. Both can accept that there are at least two political ways of living together: in Rawls’s manner, with a clear-cut separation between the political (common public) and non-political (public) spheres, and in which metaphysical issues are raised as little as possible when it is time to provide arguments based on public reason, or in the manner of democratic communitarian societies, who reserve public political spaces for the majority minority points of view. These two approaches go hand-inhand with two different conceptions of neutrality, independence, and secularism within the state. These values can be secured in the individualistic state by the neutrality and independence of the state, but we have to realize that there is another way of achieving neutrality in the political space. It is by preserving and promoting all comprehensive views: those of the majority and those of minorities. There used to be a time when one could have hoped to mention Israel and Turkey as good examples of communitarian democracies. However, the “Jewish” state of Israel (not its society as a whole) has become belligerent. Through its occupation and colonization of the West Bank and the apartheid regime imposed in Gaza, it has behaved toward Palestinians in and outside its territory as a rogue state. There is also no longer any hope under the Erdogan regime of witnessing a moderate Muslim state in that country as long as it treats its Kurdish minority vi-

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olently and transforms itself into a theocratic regime by eliminating political opposition and systematically attacking freedom of the press, as well as freedom of expression of dissident voices like those of intellectuals and university professors. A better example could perhaps have been India if the Hindu nationalists in power had been respectful of the Islamist minority, and this minority was willing to renounce its misogynistic personal laws. Western philosophers and political scientists would perhaps be able to understand all these issues a little more if they were a little more acquainted with the writings of non-Western philosophers and political scientists. In this regard, perhaps we should be more familiar with the works of people like Rajeev Bhargava (1998, 1999, 2004).

universality recovered What would an agreement uniting liberal and democratic communitarian societies look like? In these various societies, there would be no hierarchy of individual and collective rights. This would allow each society to interpret the same principles in distinct ways and conceive the balance between the two orders of law in different ways. By not placing the rights in a hierarchy, each society would be able to live in compliance with its way of seeing relations between individuals and communities. This would make it possible to accept communitarian societies in which there is no clear separation between church and state, so long as they are democratic, they respect dissident minorities, and they protect and promote religious minorities. Conversely, individualist liberal societies would have to give rights to minority groups that want to experience traditional relations between the individual and the group, so long as these minorities respect human rights, including exit rights. Toleration would be required for societies organized around a comprehensive view, so long as such societies endorse individuals’ civil and political rights and freedoms, as well as minority rights. Thanks to their democratic nature, these communitarian societies ensure the protection of individuals who prefer freedom over community allegiance. They would thus have to authorize exceptions and ways of exiting from their society. Toleration would also be required of societies that prefer the individualistic lifestyle, so long as they respect the rights of other peoples and the rights of their own internal minorities. Members would have to accept that the democratic process can lead to a communitarian society in which institutions are infused with a specific conception of the

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common good and the good life. This would be acceptable so long as the society took minority rights into account and allowed democratic debate of its basic policies to take place. Western democratic societies could also be led to accept the harmonious superposition of different legal systems, so long as basic human rights are respected, including male-female equality. Of course, sharia law could not be accepted, and we must continue research on how to deal with legal pluralism (Bhargava 1998, 1999, 2004; Eisenberg 2006, 2009; Modood 2000, 2007; Spinner-Halev 2000). This doctrine can lead to the development of a true international liberalism or, if one prefers, a cosmopolitan nationalism understood as involving a universal charter of individual and collective rights applicable to persons and peoples. The charter would include (1) a set of individual rights for persons and collective rights for peoples at both the international and domestic levels, (2) with no hierarchy between individual and collective rights, and (3) supranational authorities having the right to intervene in states when they violate these rights.3 Cosmopolitanism is compatible with nationalism so long as we recognize that a cosmopolitan person is not an individual living outside all societies, but is rather the result of an overlapping consensus among all democratic societies concerning citizenship. The cosmopolitan citizen may be seen a citizen of the world, but only in the sense of what is common between all situated and anchored citizens belonging in different national societal cultures. International law is a jus gentium. The notion of a cosmopolitan citizen is acceptable so long as we do not assert the supremacy of individual human rights over group rights. The two regimes of rights have to cohabit with no hierarchical relations. Similarly, nationalism is compatible with cosmopolitanism so long as it is nothing more than the promotion and defence of a law of peoples. It must not be nothing over and above the protection and promotion of the collective right to self-determination for peoples. It must not adopt protectionist policies, nor reject societal initiatives of national preference, and it must welcome refugees. How can political liberalism lead to cosmopolitan nationalism? First, in principle, political liberalism makes it possible to formulate a cosmopolitan notion of a people. A cosmopolitan people is the result of an overlapping consensus among all liberal democratic peoples (including communitarian democracies). It cannot be a benevolent absolutism, an outlaw state, or a burdened society. It is a political people that is respectful of other political peoples belonging to the global basic

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structure and who are subject like themselves to the law of peoples. A cosmopolitan person is the result of an overlapping consensus among all citizens belonging to liberal democratic peoples (including communitarian democracies). These definitions make it possible to take a favourable view to extending individual rights (which are usually defined in the framework of the nation-state) beyond the borders of the nation-state in the global basic structure. This has already been pointed out by cosmopolitan philosophers, even though they have done so from an individualist perspective (Beitz 2000; Buchanan 2000; Caney 2005; Held 1995; Kuper 2000; Pogge 1994; Tan 2000). In the same way, we can cast a favourable eye upon an extension of the law of peoples, initially formulated at the level of interstate relations, to take into account all peoples, including stateless peoples. Cosmopolitan nationalism rejects Rawls’s neo-realist framework in favour of an approach that accepts the global basic structure. It accepts peoples’ right to self-determination at both the domestic and international levels, and human rights at both the international and domestic levels. It agrees that a people’s economic situation can sometimes be caused by the activities of other peoples in the global basic structure, and it does not seek to include decent hierarchized societies in ideal theory. We must tolerate and respect these societies, but as a modus vivendi in a non-ideal theory. Finally, toleration must also translate into taking into account “democratic communitarian societies” within ideal theory. Political liberalism can thus aspire to universality, thanks to the direction taken since Political Liberalism, so long as Rawlsians recognize the existence of a global basic structure, apply public reason and overlapping consensus in this global basic structure, and move away from simplified models to embrace more complex societies. These are major amendments to the theory. However, we have to note that the ideas defended here more or less restate Rawls’s own ideas. The notion of basic structure, which I have chosen to apply to the international sphere, is also borrowed from Rawls. Moreover, Rawls was the first to have thought of the central ideas of political liberalism, and as we saw he was openly favourable to the ideas of public reason and overlapping consensus. Finally, he himself presented his theory as a methodological simplification, which amounts to authorizing and even inviting expansions that would take into greater account the complexity of our societies. We need to think with Rawls and against Rawls to reveal the cosmopolitan potential of his theory. In the best of all cases, it is quite certainly a “realistic utopia.”

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6 A Liberal Theory of Collective Rights

I have finally come to the stage where we can begin the discussion on collective rights as such. Now that we have an account of liberalism that is not based on ethical individualism, and now that we have shown that political liberalism is hospitable to a politics of recognition for peoples while also, in principle, being capable of remaining a universal doctrine, our foundations are solid enough for us to look favourably on the possibility of formulating a liberal theory of collective rights. This is what I intend to do in the remaining part of this book.1 I would now like to propose a version of a politics of recognition that would take the form of a liberal theory of collective rights for peoples – to be added to a theory of individual rights for persons (in addition to legal persons and sentient animals). Of course it is possible to defend a politics of recognition without subscribing to collective rights. Axel Honneth’s work provides a good example of such an approach. Conversely, it is also possible to defend the collective rights of peoples to external self-determination and subscribe to the homogeneous nation-state model as the only possible form of political organization. In that case, we are dealing with a use of the collective rights apparatus that excludes a politics of recognition for stateless peoples and other national groups within the state. The approach that I defend is located, in a way, between these two extremes because I adopt a version in which a politics of recognition amounts to a regime of individual and collective rights and, at the same time, I accept collective rights for minorities.

collective rights: based on interests or choices? The first decision to take concerning collective rights is related to their nature. There are at least two schools of thought: are they based on in-

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terests or on choices? Newman (2011) offers a clear example of a theory based on interests, while Kymlicka (1995) offers a clear case of a theory in which they are based on choices. Under the first account, they enjoy the right as beneficiaries. Under the second approach, the only rights that are acceptable are those that allow the group to self-determine itself. Quite naturally, the authors who treat collectivities as the subjects of group rights tend to be more favourable to an interest-based approach. Those who, on the contrary, often treat individuals as bearers of group rights have a tendency to be choice theorists. So we have to decide on what basis we can ascribe collective rights: on the basis of interests or on the basis of choices made by the group?2 As we shall see, my own approach is more or less interest based. Under my account, the subject of the right is a group, and the objects of collective rights form a subset of collective interests. But what is less clear is whether or not the restrictions imposed on interests in the case of collective rights turn the interest-based theory into a choice-based theory. As a matter of fact, along with Moltchanova (2009), I would be inclined to say that, at the level of groups, “the will account of rights covers the same incidents as does the interest account” (27). Not all collective interests can count as a collective right. If we impose adequate conditions on the set of interests and relax the conditions under which an agent can be said to be able to make choices, then collectivities (peoples) might be able to act collectively, and the interests for which they can claim rights are those that are based on their capacities as self-determining peoples. So ascribing them rights would not force us to treat their rights as just interest-based. They would both be interest based, and based on choices made by these collectivities. This is precisely what is going on in the particular version advocated here. The fundamental interests of peoples relate to the maintenance and development of their own identity as peoples. Under political liberalism, it is their institutional identity that must be protected and promoted. Peoples must therefore have the right to maintain and develop their basic economic, social, cultural, and political institutions, which amounts to ascribing them a right to self-determination. In other words, the fundamental interests of peoples are those that allow them to choose how to maintain and develop themselves. I shall not dwell on the various concepts of agency that are appropriate to collectivities such as peoples. Some have introduced a fairly weak notion of agency involving only collective intentional action and collective choices (Preda 2012).3 Some believe that a robust version may

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apply to collectivities involving control over one’s life, a capacity for autonomy, for deliberation, reflection, and revision (Pettit 2003). Be that as it may, it is quite clear that if a minimal concept of rational autonomy can be developed, such as the one previously described – involving reflexivity, strong evaluations and thought experiments – it might be extended to the group as a whole. In order to find our way out of these difficulties, it is important to be reminded of the institutional conception that was introduced in the introduction of this book and in our ability to circumvent some of the ontological obstacles that could impose themselves upon us. In particular, there are two temptations that we must resist. The first one is the idea that “only human beings have ontological status, and are the only full-blown agents” (Preda 2012, 241). Against this view, Glen Weyl (2009, 145) makes the argument that individuals are no more “unitary” than groups. As Preda puts it, “Individuals can be just as divided, and hardly more rational or consistent than groups are” (2012, 244). The other mistake is to assume that we have to deal with entities having a certain ontological status. If instead we decide to travel ontologically light in accordance with political liberalism, we are going to deal with peoples understood in the institutional sense. And in that sense, a group may have institutional representatives. These can act on behalf of the people. And if they are entitled to do it, the intentional action can then be attributed to the people. This is why David Copp (1979), for instance, is in a position to ascribe intentional actions and decisions to peoples. Conversely, as argued by Jones (1999a), what he calls the “corporate” conception of a people is not incompatible with an interest based theory of rights: “The contrast I have drawn here is not meant to imply that the corporate conception is incompatible with an interest theory of rights. A proponent of the corporate conception may hold that a group’s interests must play a defining role in identifying its rights” (364). Many institutional goods are collective in the sense of serving only the rights of collectivities and, insofar as they are, they deal with the interests of peoples. But not all collective interests are objects of rights. It may very well be a collective interest for a people to have a very competitive economic infrastructure, but this may not always be essential to preserve and promote its identity as a people. Among the collective interests, we have to identify a subclass of institutional goods that play a major role for the identity of peoples. We could mention various rights such as the right to maintain and develop

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a language, a right to benefit from self-government, a right to a fair representation in the legislative assembly of the encompassing state, a right to equal economic development, and various other forms of intra-state autonomy arrangements such as the right to have its own internal constitution, the right to federal asymmetry, the right to have a special juridical status, etc. However, it is hard to distinguish independently from context which collective interests play a role in the identity of a people or of a minority fragment of people, and which ones do not. Still, these all relate to the self-determination of peoples. The collective interests of peoples that are the objects of rights coincide with claims related to their self-determination and self-preservation. I want to begin by formulating general constraints that have to be imposed on a theory of collective rights. These constraints will then translate into conditions imposed on the kinds of groups that can count as subjects of the rights. In chapter 7, we shall discuss issues related to the subjects of collective rights. We shall also see why national groups are the only good candidates possible. In chapter 8, we shall reflect on the very nature of the objects of the rights. Finally, in chapter 9, we shall look at the conditions that must be met in order to institutionalize collective rights.

constraints on collective rights There are three sorts of constraints to consider. We shall first examine the general constraints that apply to all rights, whether they are individual or collective rights. We shall then examine more specific constraints applying to collective rights proper. And finally, I shall look at general entitlement conditions for collective rights imposed by political liberalism. Formal Constraints on Rights in General First, there are formal constraints that, according to Rawls, should be imposed on any kind of rights. Presumably, they should also be imposed upon collective rights. I am referring here to the constraints of generality, universality, finality, publicity, and ordering of conflicting claims that Rawls imposes under the veil of ignorance in order to find basic principles of justice for a single society. However, these constraints should not only be acceptable for a single society. They should be imposed in trying to find basic principles for a society of peoples.

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generality The constraint of generality is the idea that the right must be formulated in very general terms, without nominative references. Just as there is a right to exercise one’s freedom expression and one’s freedom of association, there should be, for instance, a general right to selfdetermination and a right to equal development that all peoples would have, whether they are sovereign or not and whether they are indigenous or not. This is not to say that the account must avoid a multitargeted approach like the one adopted by Will Kymlicka (2007). We can agree with Kymlicka that, ultimately, there should be “made-tomeasure” sets of principles for each separate group: for indigenous peoples, for other stateless peoples, for immigrant groups, and, I should add, for peoples organized into sovereign states. The constraint of generality nowhere forces us to reconsider the soundness of such a multi-targeted approach. Generic rights are not the only ones to meet the constraint. Targeted rights identify different sorts of groups and remain general enough. Of course, within the constitution of a country, these very same general rights could find a particular nominative adaptation, but the right on which this nominative statement would be based should not be nominative. universality The principles must have a universal character in the sense that they must apply equally to every member. So all members are concerned with the application of the right. For instance, all peoples should be entitled to self-determination. All contiguous diasporas, as well as noncontiguous diasporas, should have the same rights. finality The finality constraint tells us that if we are to talk about rights, it must be because we want some interests to be protected for a long period of time. This is a reasonable constraint to be met for the law of peoples. No matter how we construe peoples from an ontological point of view, they should be treated as having a fairly long term of existence. So the rights that peoples have should be entrenched in a constitution, for they must also be meant to last for a very long time. They can be entrenched in the constitution of a country, or be entrenched in international conventions and declarations, but this institutionalization of the rights is a condition that must be met if they are to endure.

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publicity The publicity condition suggests that the rights must be approved as a matter of consensus. This amounts to an assertion that the rights must be publicly supported. Citizens approve those rights, feel committed to them, and know that this is also true of a critical mass of other citizens. This constraint must not be confused with the idea that the right must be exercised. A population may wish not to exercise its right but nevertheless insist on having the right – that is, be able to use it, if necessary. ordering of conflicting claims The ordering of the rights is important for Rawls, because he thinks that otherwise instability could ensue. This constraint must also apply to the law of peoples. So, for instance, a tension persists between the right to self-determination of a stateless people and the right to territorial integrity of the parent state. One way to proceed in trying to order these rights consists in differentiating different instances of application of the rights. In transitional justice, for instance, and specifically when a new sovereign state is created, the principle defending the territorial integrity of the newly created state would have primacy over the principle of self-determination for stateless peoples. But once the state would be well established, it would be the other way around. The state would have to respect the right to internal self-determination of its stateless peoples, for otherwise, these peoples would be entitled to secession. So even if there might not be a right that has an absolute priority over the others, there are contexts of application when the issue of ordering the rights must be raised. In both scenarios (transitional justice and normal context of justice), the priority is determined by the ultimate goal of stability. The rights must yield political stability. Specifically, the right to preserve territorial integrity could have priority over self-determination of internal minorities during transitional justice, and the right to self-determination could have priority over territorial integrity in other circumstances. So the rights must be general and universal, must endure through time, must be a matter of public acceptance, and must be well ordered. Specific Constraints on Collective Rights In addition to the five formal constraints that apply on rights in general, there are also at least five specific conditions that apply to collective

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rights. The owners of the rights must be groups and the objects of the rights must be institutions. These institutions must first and foremost be produced and enjoyed by groups. The specific goods produced by these institutions must relate to collective features that can primarily only be possessed by the groups as a whole. Finally, the group must have the right to those goods. Let us now consider these constraints more closely. groups as subjects of rights A collection of individuals may create its own institutions, but this is not necessarily an instance of exercising collective rights. It may be an instance of individual rights if it is the result of exercising one’s freedom of association. So in what case can we say of a collection of individuals exercising its right to create, maintain, and develop institutions that it does as a matter of fact exercise a collective right? The subject of the right must be a group that cannot be reduced to an association of individuals. In the case of political liberalism, it should not be because the group is ontologically irreducible. It should be because it is treated as a distinct institutionalized political agent. A people organized as a society and thus around a basic structure is a good candidate because, as Rawls has emphasized, it cannot be confused with an association. Of course, some rights held by individuals may exist only because they belong to groups. Nevertheless, they remain individual rights. One must not confuse collective rights whose subject must always be some collective, with those rights that are related to a group but that are held by the members of the group. If we allow for collective rights to be held by individuals only by virtue of being related to a group, then we enlarge the set of collective rights to an extent where it can apply to all sorts of agents and concerning all sorts of objects. And then the notion of collective rights loses its specificity, because there is no more distinction between individual and collective rights. If, for instance, some parents in Western Canada are entitled to send their children to French schools or if indigenous citizens are entitled to practise fishing and hunting for their own subsistence on a given piece of land, these entitlements relate to individual practices and interests and so are a matter of individual rights, even if they presuppose particular groups of people, and even if these individual rights are afforded to them on the basis of belonging to a particular group. In any case, we are referring here to a very minimal requirement that does not appear to be very controversial. There seems to be a consen-

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sus on the idea that in order to be collective, a right has to apply to a group as a whole. objects as institutions The second requirement concerns the objects of the right. These objects must be institutions, understood in a very wide sense, including in principle all sorts of things such as schools, libraries, museums, social institutions, religious institutions, juridical institutions, governmental institutions, economic institutions, fiscal institutions, institutional representation, self-government, constitutions, and territorial jurisdictions. The scope of the concept may be quite wide and may apply to many different sorts of things. Of course, this does not mean that all groups are entitled to benefit from all these institutions. It refers only to the kind of things to which some groups may be entitled. Nevertheless, institutions appear to be very plausible candidates indeed, for they seem to be the kind of things that groups as a whole can demand. An individual cannot, as such, demand institutions. These are objects that can be requested only by groups. participatory goods A third constraint for a right to be collective is that the object of the right can first and foremost be produced and enjoyed in a group. This constraint is introduced because individuals can also benefit from institutions in some way. But here we are suggesting that the very existence of the institutions must be such that it requires first and foremost the existence of a group having a right to institutions and a group that enjoys these institutions. That is, in order to enjoy some institutional good on a personal level, there must be an institutional good that the group must enjoy in the first place. For instance, although an indigenous citizen is entitled to fish and hunt on a given piece of land, it is only because there is a participatory good produced and enjoyed in the first place by its indigenous people, namely an ancestral right. To give another example, even if francophones in Western Canada enjoy the right to send their children to French schools, they can do so only because French minorities have minority linguistic rights. If it is possible for indigenous and francophones individuals to enjoy these particular rights, it is only because there are other rights that their groups have. So the connection between the subject and object of the right must be this. There has to be a group enjoying and producing the good for it to count as a collective right, and

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this is a requirement for being also able to benefit from an associated right on a personal level. benefit ting the group as a whole The first three specific conditions imposed on collective rights are important and necessary, but they are by no means decisive and sufficient. It is not enough to say that collective rights are such that there is a group that first and foremost enjoys institutions. A group of citizens living in a city may enjoy institutions such as police stations and fire stations, and there is no way for individuals to benefit from these institutions unless a group has access to these institutions. The institutions serve the group and are collectively produced. Nevertheless, the situation is not one in which these groups enjoy “collective” rights if the purpose of police stations and fire stations is just to guarantee the security and physical integrity of the citizens, for these properties apply to individuals. So even if an institution may only first and foremost be produced by a collective and enjoyed by a collective, it is not necessarily a matter of collective right. Consider also a religious group creating its own religious institution. Even if individuals have access to the good, there may be an institutionally organized group that has created and benefitted from that institution. However, if the good produced serves only to protect, reinforce, or enhance properties of individuals, namely their religious beliefs, we are not then considering a collective right. A collective right cannot rest on the existence of a group producing and benefitting from the same individual good only – namely the protection, reinforcement, or enhancement of a religious belief – because this property is an individual property. It is similar for homosexuals benefitting from a constitutional right that allows them to marry. For it to become a constitutional provision, same-sex marriage is an institutional good that must be produced by a collective and enjoyed by many individuals, but it nevertheless constitutes a good for individuals. In order to have collective rights, we need to have a collective property produced by the institutions that benefits the group as a whole. What is crucial is that the good produced by these institutions must be a “collective good,” one that is enjoyed by the group as a whole, and one that contributes to the integrity and identity of the group as a whole.4 Contrast the above situation with the following one. In this new case, we still have a group that creates its own religious institutions, and it is only as members of that group that individuals are able to enjoy these

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institutions together. In short, we still have a group that produces and enjoys these institutions. These institutions still produce an individual good, namely the protection, reinforcement, or enhancement of a religious belief. But in addition, religion creates bonds among members and enhances the social cohesion of the group as a whole, such as a national group. In this case, there appears to be something that benefits the group as a whole. Consider also the example of the francophone community living in Ontario, Canada. At one point, the government of Ontario considered the possibility of closing down the Montfort Hospital, which was a francophone institution providing services for the French population of Ontario. In closing down the hospital, the government ensured that francophones would benefit from services in French at the Ottawa hospital, a bilingual institution. But the francophone citizens fought in the courts for the preservation of their hospital, and ultimately they won, by invoking the principle of necessary protection of minorities, that is, a principle that, according to the Supreme Court, is contained implicitly in the constitution of Canada as one of its main underlying principles. The crucial thing to note is that the Montfort hospital was not only providing individuals goods such as hospital services, but also a collective good in the sense that it served the social cohesion of the francophone minority as a whole. Specifically, an institution of their own crystallizes their will to live together as a group. So for there to be a collective right, there has to be an impact of the collective good on the identity of the group as a whole. It is not sufficient that the good is produced and enjoyed by a group of individuals. The good that is produced must preserve the integrity, interests, and self-determination of the group as a whole. This can be so, even if the institutions also provide individual goods. Religious institutions and hospitals produce goods that are beneficial for individuals but, as institutions, they can also be collective goods if the institutions themselves establish, maintain, or develop the identity of the group.5 Language provides another good example in that regard, since it is perceived as an institutional good benefitting the group as a whole, even if individuals also benefit from the good. As a matter of fact, anything that reinforces the common language of a group reinforces the social cohesion of the group as a whole and so its identity as a group. Of course, this presupposes that language is a collective property, but the view of language that needs to be accepted is just one that is based on folk linguistics. Without engaging in the debate between Chomskyan

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individualists and Wittgensteinian “communitarists,” we can simply acknowledge the Saussurian view of language as group related. Language is not only a matter of individuals (parole), it is also an institutional matter (langue). This latter feature explains why the protection and promotion of an institution in a given language may count as providing a collective right. We do not need to settle the debate between Chomskyans and Wittgensteinians in order to acknowledge the institutional presence of language in society. entitlement The last condition is the obvious one, that the group must be entitled to that right. For instance, an immigrant group may not be entitled to have an entire set of institutions. Indigenous peoples may not have the right to have their own sovereign states (although they might have the right to associate with the state of their choice, under certain circumstances). So if we are referring to collective rights, it must be because the group is entitled to the right. This means that the object of the right is required for the establishment, preservation, or development of the group as a whole. So we have outlined the general constraints that must be met by an interest in order to be described as a collective right. In addition to the five formal constraints that apply on any rights, there are specific constraints applying to collective rights. The subject of the right is a group and the object of the right is an institution. The institutions can only be enjoyable by individuals if groups are to enjoy them in the first place and the goods produced by these institutions must be collective goods that serve the integrity of a group as a whole. Finally, the group as a whole must be entitled to those goods. General Entitlement Conditions for Political Liberalism We have formulated ten constraints that must apply to collective rights. The last stipulates that the group must be entitled to the object of the right. But what entitles a group to benefit from such rights under political liberalism? Under what general conditions is a group entitled to benefit from collective rights when the general philosophical framework adopted is that of political liberalism? I shall state these general conditions first and then discuss some of them in more detail in the next two chapters.

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institutionalized groups As subjects having interests, the groups have to be minimally institutionalized groups of individuals who conceive of themselves as belonging to the same group. So the subject of the right is an institutionalized group. The glue that holds the group together is nothing but a set of institutions. The ten previous conditions did not stipulate anything about social ontology. Here we are saying that we intend to avoid any commitment in social ontology. This constraint is required because political liberalism forces us not to appeal to social ontology. I am defending a political conception of peoples in accordance with John Rawls’s theory (1999, 23, 34). institutional identity The object of the right is a good that makes it possible to establish, preserve, or develop the institutional identity of the group. Political liberalism is agnostic on whether the right is intrinsic or not to the group as such, independently from its institutional identity. This is a variant on benefitting the group as a whole. The good has to be a collective property that plays a role in the maintenance, integrity, and development of the people as a whole. It is just that here we specify that the good plays a role in the institutional identity of the group. Political liberalism may involve itself into identity politics, but since it must avoid metaphysics, the only relevant identity under consideration is an institutional identity. daily plebiscite The obligation to satisfy the interest flows from the fact that there is a sufficient number of individuals wanting to protect and maintain its institutional identity. A group can have a right not only “where the numbers warrant,” but also when the population wants to maintain its integrity. Of course, this may include indigenous peoples containing hundreds of individuals. Political liberalism requires that some kind of subjective support by the population takes place: a will to survive as the subject of the right. primacy of rights over obligations Since we are endorsing political liberalism, we do not define rights in terms of obligations but rather define obligations in terms of rights. This is a way of asserting the primacy of justice over conceptions of the

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good. Of course there must be a subject of the obligation as a consequence of having a right. For example, it can be the state that contains the group in question. However, other groups and other members of the state also have to be ready to shoulder some obligations. liberalism The institutions of the group that owns the interest have to protect and promote individual freedom and equality. Otherwise the account could not be described as liberal. Ultimately, the account will be liberal if and only if the collective rights of peoples as a whole (and those of various minorities) are no more important than the individual rights of persons (Réaume 1994). holism The population as a whole must have a national consciousness. Members must accept the idea that the group plays some role in a person’s identity. They accept “anti-individualist” arguments, such as those of Hilary Putnam (1975) and Tyler Burge (1979), or, to use the terminology of Philip Pettit (1996) and Charles Taylor (1985a), “holist” arguments, which for the present purposes means essentially the same thing. This is possible from the point of view of political liberalism, as long as these arguments of Putnam and Burge are interpreted as thought experiments that do nothing more than reveal the conception that we have about ourselves (Rawls 2005, 31–2n34). structure of culture The group that has the interest has to be described in terms related to the structure of its culture and not its character. This does not require us to exclude groups defined on the basis of a conception of the good life or of the common good, but it forces us to note that these groups can be subjects of the right only as cultural structures. It is not as communitarian groups that we consider them subjects of rights, but as cultural structures. Otherwise, the account would not be liberal. sustainability We must be able to presume the sustainability of the group having the interest. It must be a group that has existed for a long time or that is presumed to have a long life. Groups that are presumed to have ephemeral lifespans cannot be subjects of collective rights.

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democratic support We saw above that the group with the interest must have a collective desire to live together, but now we claim in addition that the object of the right must have democratic support (whether or not it chooses to exercise that right). If this desire does not come from the group itself, there is no point in promoting the group’s identity. Only those groups that are fully democratic can meet this requirement. Groups that are not fully democratic may command some respect, and may be given some rights for that reason, but in the strict sense of ideal theory, only democratic groups are fully eligible. instrumental value Another feature of this liberal account is that peoples as societies do not necessarily have intrinsic value. Instead the respect that is owed to peoples stems from the result of imposing a system of rights that applies equally to all peoples. But what justifies the establishment of such a system of rights? My answer has been that it serves the purpose of political stability. Under the political liberal account, political stability is a value that can be derived from the self-representation of peoples as rational agents and the fact that they are mutually interdependent in the society of peoples. Stability is to take place if we are to pursue rational ends. Of course, the political stability that really counts is the one reached for the right reason. Now, the claim of political liberalism, as I see it, is that a system of rights for all peoples, together with a system of rights for persons, is essential for political stability. I have already argued for these claims previously in the book, so I shall not rehearse the arguments all over again.

moral collectivism? Now that we have laid down the principles that structure our account of collective rights, it is time to consider possible objections to the theory. We can fairly easily dispose of the objection that all theories of collective rights lead to collectivism. By requiring the theory to be consistent with liberalism, we show instead that we need to achieve a balance between individual rights and collective rights, and not that we need to assert the primacy of collective rights over individual rights or the opposite. In the public sphere, we have to resist both ethical individualism and moral collectivism. They are controversial comprehensive doctrines, and political philosophers have to free

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themselves as much as possible from an implicit acceptance of doctrines of this kind. We have to avoid ranking these two series of principles. Individual rights are just as inalienable as the rights of peoples, and like the fundamental rights applicable to peoples, they must not be subordinated to any other principle. The only way to correctly institutionalize the principles is to enshrine them in the constitution without ranking them. The recognition of “deep diversity” is compatible with political liberalism, so long as our conception of liberalism does not involve ethical individualism. Individual rights and freedoms are fundamental and cannot be subordinated to other principles, but that does not mean that all other principles must be subordinated to individual rights and freedoms. This is because collective rights are just as fundamental and cannot be subordinated to any other principle. We must subscribe to a form of axiological pluralism at the moral level, and try to establish a balance between these two sorts of rights. It has been repeated often enough: a politics of recognition has nothing to do with the idea that the collective rights of peoples have absolute priority over the fundamental freedoms of individuals. Both types of rights have to be seen as equal. Both are fundamental, inviolable, and inalienable. Concrete management of these two orders of rights probably requires reasonable limitations on all sides. However, in each case, the courts have to make decisions based on an axiological pluralism designed to maintain a balance between these two orders of rights. We can, and indeed we must, be anti-individualist and anti-collectivist liberals. Consequently, the protection of societal cultures have to be placed on the same footing as liberal ideals. Many think that individual rights impose reasonable limitations on collective rights, and that this proves that we are condemned to giving some priority to individual rights, but collective rights also place constraints on individual rights. Thus, there has to be a balance between the two.

a communitarian conception? Liberal philosophers who are opposed to collective rights often use certain classic authors, such as John Rawls, to justify their reluctance. Indeed, Rawls says that fundamental rights and freedoms have primacy over any conception of the good life or of the common good. He prais-

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es the merits of systems of individual rights and freedoms, as opposed to perfectionist or utilitarian ideas. He strongly supports the primacy of rights over obligations, and notoriously opposes an approach that would in any way shift away from the impartiality required to carry out a successful liberal policy of neutral justification. This gives the impression of total indifference to collective rights. However, confusion quickly worms its way into the arguments of those who use this great liberal thinker to establish their individualist liberal dogmas. Most of the time, such sceptical philosophers think that we can deduce a necessary opposition to collective rights from the set of liberal principles that we have just mentioned. I will thus begin by trying to dissipate the many forms of confusion that are presupposed. Confusing National Groups with Interest Groups First, the protection of collective rights should not be confused with the protection of a specific conception of the common good or of the good life. Liberal philosophers who confuse these two kinds of protection are probably under the influence of the homogeneous nation-state model that has historically been that of liberalism. For the mononational liberal state to fully achieve its ideal of neutrality with respect to various conceptions of the good, it has to abstain from defending specific interest groups. And when one is under the spell of the nationstate model, the only possible minorities are those of interest groups. This is why there is a tendency among liberal philosophers to assimilate the claims of national minorities (minority peoples) with those of groups that defend particular moral views. Liberal philosophers and political scientists have been liberal nationalists. If one is to indulge oneself in some kind of nation-building policy within a liberal framework, one has to be wary of all those minorities at the service of their interest groups. However, stateless peoples and national groups in general cannot be reduced to interest groups. It is true that liberal philosophers have to remain neutral on promoting specific conceptions of the good life. Whether what is in question is a habit, custom, or specific lifestyle, liberal philosophers should neither promote them nor mourn their disappearance. However, this has nothing to do with the attitude that liberal philosophers should have toward collective rights. There are only a few instances of the homogeneous nation-state. There are many multinational states and many

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mono-national states that are not culturally homogeneous. So it is simply a mistake to assimilate all national groups to particular interests groups, and individualist philosophers cannot base their views on this kind of assimilation to support their orthodox positions. Specifically, the argument confuses institutional goods such as language, self-government, group representation in decision-making bodies, the right to own and manage schools, etc., and specific goods demanded by special interest groups such as unions, corporations, religious associations, ngos, local groups, and community groups. Institutional goods as such do not express specific conceptions of the good life or particular conceptions of the common good. We should not confuse the interest that a linguistic community has in maintaining its own language and the interests of lobbies such as companies, unions, and religious groups. Linguistic communities are not associations of persons sharing the same conception of the good life or the same values, because language is not a “value” among others. Rather, it is a condition of possibility for a system of values, because in order to exist (or for them to be “discovered”), they have to be articulated in a linguistic medium. The liberal state’s necessary neutrality on all conceptions of the good cannot be used in this sense to counter the demands of a minority on the survival of its own language. Yet this is a mistake that individualist philosophers often make. Ignoring the Law of Peoples The above wrong-headed argument also encourages the mistake of claiming that Rawls rejects collective rights. This seems particularly wrong in light of Rawls’s later writings. Indeed, Rawls (1993, 1999) recognizes that peoples have collective rights. Thus, using Rawls against admitting collective rights is at best false. Of course, he repeatedly says that individual rights must have precedence over conceptions of the common good, utilitarian principles, and perfectionist values. He even points out that the state is not required to defend any specific interest group or to promote any specific conception of the good life. If, by its inaction, such values disappear from society, we should not become upset about it. All of these remarks are perfectly right and are good descriptions of Rawls’s thought, but they are no help in identifying Rawls’s attitude toward collective rights. Rawls recognizes that peoples have rights, as can be seen in his work on the law of peoples.

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Ignoring Simplified Models The other huge mistake is to suppose that the model of a just society represented in Theory of Justice or Political Liberalism maps automatically to real societies. This neglects the fact that the model is deeply simplified to take into account a society that would take the form of a closed society that we enter by birth and that we leave by death. For simplification, Rawls does not consider the case of pluri-cultural societies. For methodological reasons, his considerations focus in general only on the simplified case of a mono-national society. Thus, we cannot conclude from what he says in his two major works that he would be opposed to a politics of recognition for societal cultures within multinational states, for he explicitly wants to ignore such complex cases. His law of peoples, which is initially developed in the framework of an international society in which all peoples have their own states, is also a deep simplification. It can apply in principle to more complex cases inside sovereign states that are composed of several peoples. The eight principles of a simplified law of peoples would then need to be augmented by principles of self-determination, secession, and federation. If this reading of Rawls is correct, it would be wrong to claim that he rejects a politics of recognition for national groups. Confusing Structure and Character Peoples and minority fragments of peoples do not need to involve a partial commitment to a specific conception of the common good or a point of view about the good life, if the communities in question are treated as societal cultures (Kymlicka 1995, 101–5), described primarily in terms of a shared public language, shared public institutions, and a shared public history. Individuals are individuated partly in relation to such specific forms of membership. They belong to a linguistic group, have a cultural identity, are members of a people, and thus have a specific communal identity, but these characteristics should not be confused with a given moral identity. The distinction that Rawls makes between institutional identity and moral identity is especially useful in this context (2005, 30–1). Moral identity may vary, but the individual does not change if his or her institutional identity remains the same. Similarly for peoples, there are two dimensions in a societal culture: the structure and the character. When we refer to peoples as societal

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cultures passing through time, we are referring to a partially fixed structure with a changing character. The debate has become muddled, because we do not distinguish between two very different issues. The first concerns the debate between individualistic liberalism and communitarianism, and it raises the problem of knowing whether moral principles, values, and objectives do or do not constitute our identity. The second issue concerns the debate between the rejection and the admission of collective rights. Yet it is possible to avoid commitment to communitarianism while accepting collective rights for peoples. Like persons, peoples can have an institutional identity that is, in principle, detachable from their moral identity. This shows that the liberal-communitarian distinction simply cannot be superimposed on the distinction between persons and peoples. Confusing Liberalism 1 and Liberalism 2 Like Charles Taylor, I would tend to say that there are two kinds of liberalism: liberalism 1, which asserts the absolute priority of individual rights over collective rights and of the individual over society, and liberalism 2, which makes some room for what Taylor calls “collective goals” in addition to individual freedoms (1994, 59 and foreword). Using Taylor in my argument may not be very convenient. Taylor uses the expression “collective goals,” instead of speaking of collective rights, because of his leaning towards communitarianism. As a good communitarian philosopher, he rejects the idea that justice can have priority over the common good, and for the same reason also rejects the idea that rights can have priority over obligations. For him, rights are products derived from the capacities of persons or peoples and from duties to respect those capacities. He is thus inclined not to speak of collective rights, and he prefers to speak of collective goals. However, if we can eliminate the communitarian bias that is at the centre of Taylor’s thesis, we can reformulate liberalism 2 from a perspective that is not communitarian. Liberalism 2 then looks like an anti-individualist, anti-collectivist version of liberalism. It recognizes the primacy and inalienable nature of individual rights and collective rights without ranking the two orders of rights. We can subscribe to the basic claims of liberals because we can assert that: 1 political persons and political peoples are not individuated in terms of a specific moral (individualist or communitarian) identity;

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2 individual rights are fundamental and cannot be subordinated to any other principle; 3 justice has priority over the good and rights produce obligations and not the converse; 4 the state must be impartial and must engage in neutral justification with respect to any specific vision of the common interest. As societal cultures, peoples are individuated in institutional terms, that is, as structures of cultures. I can acknowledge the primacy of rights over obligations because, unlike Charles Taylor, I do not seek to define rights as derived from the obligation to respect the essential capacities of human beings. Much to the contrary, in a perfectly liberal spirit, I consider rights to be primary and obligations to be derived from rights. Obligations are created by the fact that there are various rights holders. Persons have duties to both other persons and peoples, while peoples have duties to both persons and other peoples. In sum, seeing the group in terms of the notions of cultural structure and context of choice, in conformity with the constraints imposed on the theory of collective rights, allows us to get rid of the objection that such a theory involves implicit acceptance of a communitarian philosophy and, more generally, of a philosophy that subordinates rights to a conception of the good. The reason is that, under the present account, the only goods that are eligible to become objects of collective rights are those that relate to the institutional identity of the group. If the institutional identity of the group is defined in terms of cultural structure, the only eligible objects will themselves be related to the structure and not to the character of the group. Indeed, it is by confusing the objects of collective rights with specific communitarian goods that some liberals have been led to reject such rights and prefer a system of individual rights and freedoms. However, the institutional goods that the state has to promote, namely, schools, school boards, hospitals, libraries, museums, federalism, self-government, etc. for peoples and various other rights for minority fragments of peoples, are neutral institutional goods that do not convey any specific conception of the common good or of the good life. Moreover, these are goods that are difficult to explain only on the basis of a system of individual rights and freedoms.

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provisional conjectures Even if we may initially agree in principle with the morality of collective rights, for some the concrete establishment of a system of such rights seems to enter into tension, if not in contradiction, with the deeply diverse nature of society. For example, the question can be raised about the choice of concretely institutionalizing a set of collective rights for a people that contains minorities within its borders. It is then argued that if the larger society itself benefits from collective rights, this will play against the will of those minority groups.6 Of course, my answer to this is that collective rights should also be afforded to these internal minorities. The problem is supposed to be that any recognition of a national identity X would go against the diversity that makes up group X. However, invoking diversity and the multifaceted nature of identity as a way to raise problems for the recognition of collective rights for group X can be self-defeating. Indeed, the idea of protecting and promoting X’s distinctive identity was meant as a way to respect diversity. The same logic can then be applied to the internal minorities themselves. If the members of X belong to different groups and if their own identity is recognized, then they can and should also accept the distinctive identity of X itself. The identities of the internal minorities are compatible with a commonly shared public identity within X. In such circumstances, there is no reason to be offended by the fact that X has collective rights of its own. It is also problematic to justify an injustice (misrecognizing X) by invoking the danger of X misrecognizing its internal minorities. It should be remembered that, under the present account, X is a stateless people whose identity must be reckoned with. What sort of citizen support is required to ensure that there is national awareness shared by all members of a highly diverse society? This is the underlying question raised by the objection that giving rights to X could have a negative impact on a subgroup of X. Can one identify with X but at the same time share an identity distinct from X with others in a larger group? It seems that this is possible, since most of us have multiple identities. But what are the exact requirements? Must we require sentimental attachment, undying loyalty, patriotic feeling, rational preference, or shared narrative identity for someone to be part of an overall entity? Not necessarily. Identification with a national group X requires only that we assume a shared public identity (the same cultural structure or the same aggregate of cultural structures), and then, while assuming that identity entertain a national self-image, as well as a col-

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lective desire to live together (Renan’s daily plebiscite), which are compatible with a variety of degrees of attachment, allegiance rankings, and narrative identities. The allegiance to a people, understood as a common public identity, does not require adherence (allegiance) to an exclusive identity or self-representation. Membership in a people is compatible with multiple allegiances and multiple identities, and thus with many different self-images, including at the national level. As we have seen, there can be “nations within nations,” or peoples within peoples. This is possible when the inclusive national identity is understood as a common public identity, associated with the recognition in the constitution of minority public identities, and such that these are supported and funded by the state. If this is right, then there seems to be no reason why a subgroup of X would object to X acquiring collective rights because, in a way, X is also its own group. It has also often been pointed out that diversity, multiple identities, and the dynamic nature of identity were incompatible with a single homogeneous long-lasting collective subject. And since enshrining collective rights in a constitution is doing just that, it has been argued that we should resist institutionalizing collective rights. But I have argued that we should distinguish between the structure and character of culture. Now even if these two dimensions are equally open to transformation, the changes that take place at the level of character is much more frequent and systematic. The suggestion, then, is that the features of the structure of culture last long enough to allow for their entrenchment in a constitution. A theory of collective rights based on Rawls’s political liberalism must be able to deal with certain traditional objections. Since the proposed theory has no social ontology or comprehensive commitments, it cannot be accused of reifying collective entities. I believe I can also counter objections that the theory commits one to essentialism or authoritarianism. Without going into any details, let me state bluntly that no essentialism is taking place here, because we are dealing only with political concepts and refrain from committing ourselves to anything that would go beyond what takes place in the political realm. The accusation of authoritarianism also falls flat, since I have been concerned to impose a democratic principle in support of the principles of justice. Now that this chapter is drawing to a close, the question arises of what impact such arguments can have on the ferocious resistance that so many people show toward the idea that peoples can have collective rights. In addition to the theoretical resistance from certain individu-

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alist thinkers, there is a resistance that can be explained only by political reasons. Some would use any means to avoid recognizing the right to self-determination of stateless peoples. Seen from this angle, my argument can be perceived in two different ways. First, it can be seen as an ideal theory of justice that describes what has to be done in existing states in order to recognize national groups. However, at the same time, faced with political intransigence motivated by nation-building requirements, this argument also provides moral ammunition for political action. Given the impossibility of obtaining recognition from the encompassing state, stateless peoples can use the moral arguments in the present book to give legitimacy to a secessionist approach. However, there are other equally important obstacles that I would describe as psychological and that explain the visceral resistance of many theoreticians to collective entities in general, but also to nationalism and promotion of the collective rights of peoples. Even if some may sometimes criticize economic neo-liberalism, they are psychologically inclined to function mentally in a neo-liberal world, composed of cosmopolitan individuals. Such people can only find it difficult to accept the affirmative character of minorities that express the need to protect and promote their collective rights. For those people, a politics of recognition is perceived as an inappropriate, unpleasant, problematic intrusion that stirs up suspicions and controversy. However, this political stance is itself suspicious because it is justified as an official worry about the capacity of the minority people to recognize its own minorities. The true story may instead very well be that collective rights for minorities create obstacles to their aspirations and to the achievement of their nationalist agenda. Such persons strongly support political authorities that are inclined to rebuff the demands of minority peoples. They belong to majorities that never experience the fragility of their own culture, and so they take it for granted by ignoring it or by identifying it with a universal culture. Collective demands that stem from a minority national societal culture are then experienced by these persons as the sudden appearance of a foreign intruder who speaks with a dissident, discordant voice and who must, for this reason, automatically be despised and silenced. I do not claim to have been able to counter these forms of psychological resistance because their foundations extend far beyond the scope of this book. However, I hope I have managed to initiate a number of philosophical arguments, block certain escape routes, and dissipate the aura of legitimacy surrounding ethical individualism and the rejection of collective rights.

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7 The Subjects of Collective Rights

The preceding chapter took the form of a synthetic proposition combining all of the considerations developed in the first five chapters of this book into a unified theory of collective rights. The goal was to sketch the broad outlines of a liberal theory of collective rights. We now have to provide a more precise answer to the question of what constitutes the subject of collective rights. After answering this question, we shall examine various objections. Several authors criticize the idea that peoples can be subjects of collective rights.1 However, we have to ponder the fact that most if not all peoples without a sovereign state are involved in a battle for their rights. This, at least, is the case for the Catalan, Basque, Scottish, Walloon, Flemish, Quebec, Acadian, Alsatian, Corsican, Roma, Chechen, Palestinian, Kurdish and Tibetan peoples, etc., and it is also true for all indigenous peoples. So why do so many theorists adopt a critical stance concerning the legitimate claims of all those peoples? In addition to reservations motivated by political reasons, there are also worries that have their basis in a number of philosophical objections. It is the latter that I wish to examine in this chapter. I want to answer certain questions concerning the granting of collective rights for peoples. Many philosophers like Michael Hartney (1995) believe that the incorporation of collective rights into a constitution stems from an approach that is counter to ethical individualism – which, they would say, is the basis of liberal philosophy. There are also those like Anthony Appiah (2005, 2006a, 2006b) who fear that formal recognition would lead to essentialism (for a reply, see Courtois 2005). Others take up the Habermasian distinction between formal and informal spheres, and recommend that the recognition of groups be relegated to the informal sphere

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(Benhabib 2002; Habermas 1995, 2005). For instance, Seyla Benhabib (2002) has a narrative conception of collective identity and believes that it is far too changeable to be the object of a lasting recognition in a constitutional text. In a similar vein, Melissa Williams (1995) thinks that justice for groups has to be political, not juridical. Jean-Marc Ferry (1996) allows for a formal symbolic recognition, but he confines it to commemoration and symbolic atonement and thinks that there is no need for institutional arrangements that would give substance to a symbolic recognition. There are also those who, influenced by the ideas of Jocelyn Maclure (2003), Patchen Markell (2003), and James Tully (2001), believe that what is most important is not formal recognition. They think it is more important for a people to unveil its identity and for the encompassing entity to note this unveiling via a politics of acknowledgment, even if this falls short of a politics of recognition. Although I cannot review all these philosophical objections or counter-arguments, I intend to examine a large number of them succinctly. I want to give a brief overview of a set of arguments that can be developed in answer to those who are opposed to including collective rights for peoples in a constitutional text. I shall try to show that all of these objections can be answered if one adopts a certain version of liberalism based on the political principle of toleration as respect. In this chapter, I concentrate on objections related to the subjects of collective rights. We have already seen that some authors refused to allow for collective rights if this is to mean that the subject of the right is a group. The only group-related rights that they can accept most of the time are those that persons have by virtue of their being part of a group. This is the concept of “group-differentiated rights” advocated by Will Kymlicka (1995). Although Kymlicka is also willing to accept cases where the group also is the subject of the right, Kymlicka must state, in order to be consistent with ethical individualism, that group rights must be subordinated to individual rights. The interests of individuals in the end are the ultimate justifications for group-differentiated rights, even when the subject of the right is a group. It is also the view of Torbisco Casals (2006), Graff (1994, 213), Hartney (1995, 221), and Raz (1986, 208). Similarly, Ellis (2005, 200–1) says that there are no “group-inherent rights” and that there are just “group-specific rights,” and these roughly correspond to Kymlicka’s concept of group-differentiated rights. This view must be contrasted with the one, inspired by Taylor (1994), according to which, as in Newman (2011) and Moltchanova (2009), the subject of a collective right is always a collectivity, even if in their case

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also the justification must be individualistic. Taylor (1994) justifies the acknowledgment of collective goals on the basis of personal dignity. Moltchanova, for instance, argues that “groups organized around selfdetermination can possess primary rights,” but she wants to “derive group rights from individual rights to collective goods” (2009, 26). My view is closer to Brett (1991), Freeman (1995), Jones (1999a, 1999b), McDonald (1987, 223), Parekh (2000, 213–19), Réaume (1988, 1994, 2000, 2003), and Van Dyke (1985, 1995), who argue in favour of group rights owned by groups and who do not wish to derive these rights on the basis of an individualistic justification. I believe that it is possible to do this without reifying the subject of the right and without falling into the traps of essentialism. Neither are we forced to embrace the idea that groups have intrinsic value or to renounce our endorsement of political liberalism.

did you say “collective rights”? We know what an individual right is, but what is a collective right? Intuitively, we can say that a collective right is a right such that (1) the subject of the right is a group, (2) the object of the right is an institution (created and enjoyed by many individuals), (3) the institution concerns some collective aspect of the group, and (4) it plays a major role in the maintenance or development of the group as a whole. However, what are the targeted groups? I have given reasons for choosing to include peoples and minority fragments of peoples in the list of best candidates. But why should we exclude other groups?2 For example, can’t we include unions, clubs, companies, professional corporations, religious associations, and various interest groups? I think that we should resist the temptation to include all legally constituted social groups in the list of entities that can be subjects of collective rights. The main reason is that most of their interests can be taken into account by an individual rights regime or by rights given to “corporate persons” understood in the legal sense. Let us consider unions, clubs, companies and professional corporations in a general manner. Must their right to exist, or, if one prefers, their right to preserve their group integrity, be taken care of by collective rights? Are we dealing with anything that cannot be taken care of by an individual rights regime? Does freedom of association not suffice to guarantee these groups the right to exist? It probably does. However, once they have been created, can we not acknowledge that they

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have rights that are distinct from individual rights? Indeed, there are distinct rights granted to legally constituted associations, but the subjects of such rights are not really groups taken as a whole. They are corporate persons, legal entities. They may have rights that are distinct from those of individuals, but they are not collective rights. We must not confuse corporate persons (in the legal sense) and groups taken as a whole. If a single person holds all the shares in a company, the company can legally count as a corporate person, even though it does not represent a group. However, even when more than one person is represented by the corporate entity, we still have no guarantee that the rights claimed can be collective rights and not individual rights. A union that demands the right to strike represents many individuals, but it represents their individual interests insofar as the working conditions that it is trying to improve relate to conditions experienced by individual workers. The ultimate justification for a union’s actions is in relation to individual interests. Moreover, the exercise of the right to strike is spread over a collection of individuals. The right to strike claimed by the union cannot be exercised except through individual actions, even though such actions will not be effective unless they are numerous. For unions to continue to exist, it may perhaps be sufficient to preserve freedom of association and to consider individual socio-economic rights as legitimate, along with the rights given to corporate persons. The legitimacy of a union is based precisely on these different types of rights. It is thus not necessary to introduce a new category of rights in addition to those we give to individual persons and legal corporate persons in order to account for the rights of a union. We do not have to increase the list of rights, in addition to freedom of association, or the list of socio-economic rights, such as the right to work, the right to equal pay for equal work, and the right to health and safety. It thus seems that legally constituted associations cannot claim collective rights. We would probably be wrong to look at legal entities of this kind in order to identify the relevant groups. Perhaps instead we should choose slightly more informal groups, or groups that are not pure legal entities. Can we count as subjects of collective rights people with the same sexual orientation, left-handed people, people with high iqs, feminists, and groups of workers? The problem is that in all these cases, we are dealing with groups of persons sharing certain individual features. They are brought together by individual characteristics. The defence of their group interests will thus inevitably be a defence of individual interests, because it will be a function of those individual char-

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acteristics. “Collective” interests of this kind are aggregative and are distributed as individual rights. The other problem is that such groups seem to be nothing more than aggregates of individuals. To clear things up, let us return once again to the discussion of the preceding chapter. It is true that for many liberal thinkers, the only admissible “collective” rights are rights that, in the end, serve the interests of individuals. Such thinkers will thus be inclined to reduce collective rights to rights that people have by virtue of their membership in a group, but are such rights really collective? Rights that citizens have by virtue of their membership in a city, village, district, or region concerning institutions such as police stations and fire stations are examples of such rights. They are collective in the sense that they have a participatory nature. Not only are many people required to create such goods, but many people are also and above all required to benefit from them. As I wish to construe it, a participatory good is a collective good in the dual sense of production and consumption. In addition, they can be claimed by a collection of individuals by virtue of their being part of a certain group. Nevertheless, they are meant to secure the physical integrity of individuals and are therefore claimed and enjoyed by individuals. Under that account, collective rights would be individual rights, the objects of which are institutional goods provided to them, because these individuals belong to a certain group and are numerous enough. Yet how could an individual be entitled to institutional rights if, by definition, the good in question requires a very large number of individuals claiming the right? Must we not then consider that the subject of the right is a group? Not necessarily. For example, think of the right of French speakers to demand educational institutions in French everywhere in Canada. The Canadian constitution provides protection of this right so long as the number of children is sufficient. There is indeed a restriction imposed on the number of persons. Otherwise the claim could not be raised to the rank of a right, but this restriction is applied to individual claims nonetheless and it is one that concerns individuals. They have to be in sufficient number to claim goods such as access to schools, but the group in question is nonetheless just an aggregate of individuals. The right to have access to a school in one’s own language is an individual right. It is clearly an individual right, even though the good can be claimed only if a sufficient number of people demand it. In any case, this way of seeing things would make it possible to satisfy the requisites of individualistic liberalism. So-called collective rights

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would be nothing but a special kind of individual rights. However, collective rights are rights whose subjects appear to be non-aggregative groups. It is probably accurate to say that the object of a collective right is an institutional good, but as we saw in the previous chapter, that criterion is not sufficient. Among other things, there has to be a group that demands and enjoys an institutional good. The right must benefit the group as a whole (concern a collective property of the group) and serve to establish, maintain, or develop the identity of the group. In short, the right has to be institutional, communal, and individuating. The reason we are inclined to see a sort of collective right in the right to access to a school is probably because we feel, rightly, that an individual could not have a right to access to a school in his or her own language if the group to which he or she belonged did not have collective rights to own schools and control them. The reason individuals are able to claim access to institutional goods is very often because there is a group to which those individuals belong that can claim collective rights to own, develop, maintain, and create such institutions. Thus, French speakers living in Western Canada can claim access to schools in French if the number of students is sufficient because the Frenchspeaking community in Canada has collective rights. As a matter of fact, this collective right is the correlate of the protection of minorities, an underlying principle in the Canadian constitution. In the same way, individuals belonging to indigenous peoples have hunting and fishing rights on certain lands because, as peoples, they have ancestral collective rights. Of course, under certain conditions, individuals can have the right to access institutional rights, in particular the right to be served in their own language and to send their children to schools where students are taught in their language. But in order to speak of collective rights, we probably have to speak of rights that certain communities have to create, promote, protect, develop, change, and manage their own institutions. Now, let us go back to our initial topic. We have seen that associations, clubs, businesses, and corporations cannot be treated as subjects of collective rights. We have also seen that in order to identify the kind of groups that may be justified in claiming specific rights of a collective nature, membership in the group may have to be other than legal. The link that unites the members have to be other than just a simple legal construction. However, we have also seen that the group in question cannot be described on the basis of a collection of individuals who share the same individual features. What is needed is not only a form

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of allegiance that can be assimilated into a more “organic” group, but also the presence of group features that are the objects of rights and that cannot be reduced to an aggregate of individual features. We can think of a group resembling an orchestra of musicians. Ronald Dworkin uses this example to describe allegiance to a liberal “community” (Dworkin 1989). We might think that the link one might have with an orchestra could be sufficiently organic to make the orchestra resemble a complex informal unit and one that is not merely legal. An orchestra has an organic nature because each member feels as if he or she belongs to it as part of a whole. Moreover, at first sight, the characteristic features of an orchestra do not seem to be reducible to a simple aggregate of individual features. Even if the fact of playing music in a group does not exist unless there are individuals who play, there are effects of playing in a group that are emergent properties. The orchestra’s playing is thus not just the sum of the playing of each member. Of course, the orchestra does not exist independently of the set of musicians who compose it, but there is a form of osmosis in the orchestra that allows us to speak of emergent properties. The orchestra creates group effects that are not just the sums of its parts. The orchestra’s interests are also not simply reducible to the interests of its members. Even if no one has sufficient authority to make decisions concerning the orchestra as a whole, and even if every member has to contribute to formulating the orchestra’s interests, it does not follow that the orchestra’s interests can be summed up as an aggregate of individual interests. If the orchestra’s interests do not exist independently of the interpretation of its members, it is not because of the aggregative nature of the orchestra’s interests, but because each member contributes to interpreting its interests. Each member can express an opinion about the orchestra’s interests as an orchestra. The reflection in which the members are involved brings into play collective considerations, and the orchestra’s will is nothing other than the decision adopted by a majority of members. The members will not ask only whether their individual interests are satisfied. That is probably important, but the most relevant issues that members can raise concern the interests of the orchestra itself. For example, they may ask, “Is this contract good for the orchestra? Should the orchestra’s interests take precedence over those of individuals? Did the orchestra sound good yesterday?” In order to answer these questions, individual musicians have to invoke reasons that concern the group to which they belong. It thus seems that there is indeed an informal group that is not a purely legal creation and has interests as a

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group, even if from a strictly democratic point of view those interests have to be determined by the majority of the individuals who belong to the whole. In the end, there is a general interest that goes beyond the sum of individual interests. Insofar as the orchestra is not just the sum of its members, we seem to be in the presence of a collective subject. It is an organized set of members. What brings the individuals into a group is not individual features but instead the fact of having an institutional collective identity. As soon as the members decide to form an orchestra, comply with the decision, choose a name for it, and set up regular meetings to play, they are linked by those institutional arrangements, whether or not they are codified. Even before becoming incorporated and gaining the status of a legal entity, the orchestra can have an institutional identity. From my point of view, the institutional identity is what provides the leavening of identity that links all the members into an apparently “organic” unit. Here we are no longer referring only to the institutional goods that are produced. As an institutional good, orchestral music is probably created and consumed by many individuals, but in this case there is also the entity that produces the music and that is itself collective because, from the point of view of identity, it is already institutionally individuated as a group. Have I finally managed to identify a subject of collective rights? Not really. The reason is that the link to this kind of group is voluntary. More precisely, we can imagine a world in which there would be no orchestras and where people and society as we know them would not be fundamentally different. In that world, for instance, there could be only solo musicians and singers. As musicians, members of orchestras can easily imagine themselves not belonging to any group of that kind. There is an associative aspect to musicians’ participation in an orchestra that does not allow us to consider this kind of group an undeniable social entity that has to be taken into account. Indeed, for a group to receive collective rights, it has to play an absolutely capital role in all of our lives, whether we appreciate it or not. I do not doubt that a musician belonging to a symphony orchestra could, after many years in a career, come to a point where the orchestra would have played an essential role in his or her life. Similar considerations surely apply to the members of an audience who have attended orchestral music for a large portion of their lives. However, this is not the case for the vast majority of other citizens, and even those to whom considerations of this kind apply could easily imagine that they might not have belonged to an or-

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chestra or not attended an orchestral performance. They do not define themselves on the basis of their part in an orchestra, even when the orchestra has played a crucial role in their lives. In any case, orchestras do not meet the general conditions imposed on rights mentioned in the previous chapter. If they are not good candidates for collective rights, it is first and foremost because they do not meet these general requirements. For instance, there are no non-nominative general principles to be accepted concerning all orchestras. Thus, orchestras do not meet the generality requirement. Notice also that orchestras do not meet the universality condition either, for it serves no useful purpose to have principles applying to all orchestras in the world. The rights of orchestras, if there were such things, would have to relate to particular cases, for there are distinct contracts applying to different orchestras. There are no constitutionalized “rights” for orchestras. There are thus no universal principles concerning orchestras that we should want to constitutionalize. Furthermore, orchestras are not present in all group allegiances. Most people are not members of orchestras or listen to them. Moreover, the workings of an orchestra do not necessarily respect democratic principles. Some orchestras do respect the principle, but others do not. Finally, the stability of society is not affected by the different rules adopted by an orchestra. We should be looking for features that would meet the various conditions that were alluded to in the previous chapter. We want to meet a requirement of generality and universality, and this rules out orchestras. In particular, we have to meet the condition stipulating that the group must be characterized strictly in institutional terms to avoid any ontological commitments. We want the right to benefit the group as a whole and not only its members. This rules out unions and various corporations. We want the account to remain liberal as stipulated in the “liberalism” condition. This rules out religious organizations, since the promotion of religious groups by the state would go against liberal neutrality. Perhaps we have to identify an institutional group (that is not necessarily set out in law) with characteristic features that are not simple aggregates of individual characteristics and in which membership is unavoidable and largely involuntary, to meet the holistic condition. This rules out aggregative groups or mere collections of individuals. We need to find an institutional organization that has collective properties but that is universal enough to play a role in the institutional identity of its members. That is, it must be a type of entity that is present in all allegiance rankings, that may even be responsible for the very

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possibility of entertaining a mental chart of allegiances with different rankings, and also a type of entity that we can hardly represent ourselves as deprived of. The only good candidates seem to be peoples and minority fragments of peoples. These types of groups have all the relevant objective and subjective features just described. Moreover, they appear to be the only groups that meet all these requirements. They include peoples without governmental organization, peoples that are politically organized but have no sovereign government, and peoples that form sovereign states. Of course, the links that one entertains with one’s minority or people is only partially involuntary. It is possible to stop using one’s language, let oneself be assimilated into another group, or leave one’s country of birth. However, the crucial fact is first that we are born involuntarily into such groups and, especially, if we tear ourselves away, we always adopt another language, join another national community, or live in another country. We cannot avoid belonging to one or more peoples. I have thus managed to identify a group that seems to play a crucial role in our lives, no matter what importance we may give it. It is an informal community that exists independently of being recognized in law, that is institutionally organized, that involves collective properties, and to which we are involuntarily attached. We can imagine not belonging to an orchestra, but it is difficult to imagine not belonging to any national community whatsoever. This may already be a good reason to consider peoples (and minority fragments of peoples) as the only subjects of collective rights. It is important to note that this way of seeing things does not necessarily commit us to Clifford Geertz’s primordialist point of view (Geertz 1963), for it would involve us in a comprehensive doctrine. The same remarks apply to the work of Luigi Luca Cavalli-Sforza (2001). In the end, I am simply describing a self-image that occurs in our day and age. I am not even opposed to a modernist conception of the people similar to that defended by Benedict Anderson (1991), Ernest Gellner (1983), and Liah Greenfeld (1992, 2004), for these various accounts capture at least some of the concepts of peoples that were introduced in this book. At most, I am committed to recognizing with Smith (1988) that peoples have emerged from ethnic groups, or what he calls “ethnies,” who may also be called “peoples.” Three features characterize the special status of peoples. They are institutional entities, involving collective properties and playing a role in the identity of all persons. Furthermore, these peoples can be described as being present in the mental charts of everyone, responsible for the

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very presence of such mental charts in the minds of everyone, providing conditions of possibility for the exercise of our freedoms and liberties, and one of the most important sources of cultural diversity. These are features that explain the unique importance of peoples, when compared to any other groups. I mentioned that all citizens have a certain national awareness. What about people with no country? Are they not counter-examples? Not really. As I said before, those who have no country are people with multiple national identities, who give those identities the same weight in terms of allegiance, and who consider them comparatively unimportant when they rank their own rational preferences. Those without countries indeed do not care about various national allegiances and have no feeling of belonging. National allegiances are the ones they rank lowest in their list of group allegiances. Nonetheless, this definition still shows us that those with no countries do have membership ties to national groups. The links may take many different forms, may not be ordered hierarchically, and may be at the bottom among their allegiance rankings, but they are nonetheless ties of belonging. Peoples thus appear among the allegiance rankings of all individuals. As I just said, in order to belong to a people, it is not necessary to have a very strong feeling of allegiance. It is also not necessary to place the people very high in one’s set of rational preferences. There need not be a particular sense of loyalty or a high emotional attachment. It suffices to see oneself as belonging to the people in question. In national identity, there is a certain degree of identification, but it need be nothing other than a representation about oneself. It does not require exclusive membership, because individuals can belong to several peoples at once. In short, there are no peoples without national awareness, but national awareness is nothing other than a form of self-image. The other important “subjective” component is the desire to live together, and stateless persons do not make positive contributions to the desire to live together. However, as soon as a majority of individuals in a people has such a desire, the people exists and has a collective desire to live together. I have finally managed to identify an informal, “organic” group that is in a certain way omnipresent in our lives, appears in all allegiance rankings, and to which we are linked in a quasi-involuntary manner. Given the role that such groups play in our lives, we can presume that they could be good candidates for collective rights. Can the characteristic features of such a group be reduced to individual facets? Let us consider one of the most important features of a people: language. All

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national groups define themselves in part by their language. This does not mean that they always distinguish themselves by their language or that they place high value on it. No matter what value is placed on it, language plays an important role in identity. Alone, it does not always play a distinctive role in relation to other peoples, because two distinct national groups can share the same language, but it can help to create a different identity. This also does not mean that national groups cannot include a number of languages. However, they would then define themselves in terms of their multilingual nature. In short, whether or not the language is distinctive, whether it is unique or not, important or not, and a source of attachment, it is at the heart of national identity. Yet can it be reduced to individual properties? From a very informal common sense perspective, we can argue that language is an institutional good. Furthermore, this institutional good is constitutive of national identity. Ergo, national identity cannot be reduced to a set of individual features. However, this argument should not be read from a metaphysical perspective, because it suffices to see that language occurs in public space with a certain institutional identity. The fact that language is an institutional good in the public arena makes it possible to define the features of a people as collective features because, unlike other institutions, language is an institutional good owned and claimed by a community and one that plays a role in the institutional identity of that community. Language helps to forge the institutional identity of the people, and it is because of this institutional identity that a people may enter the public arena with distinct moral claims.3 Nonetheless, do we need to subscribe to controversial comprehensive theses in order to support that view of language? Not necessarily, because here I am not adopting a particular position on the nature of language. A deflationist approach has inhabited the present work so far, and I wish to restrict myself to facts relating to the social phenomenology of language. I leave the concept of an institutional good unanalyzed. It is certainly not a primitive concept, but we need not and we must not go beyond its phenomenal presence in political reality. We apprehend subjects of collective rights on the basis of their institutional identity and not their metaphysical identity. I am not even arguing that this institutional dimension is at the same time part of the group’s metaphysical identity. Thus, I am not taking a position on the true nature of language, and when I claim that the institutional presence of language in the public space is part of what constitutes group identity, I am alluding to the institutional identity of the group, not its

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metaphysical identity. Here again it is possible to draw an analogy with persons. In the public space, they often have an institutional identity as citizens, and there is no claim that their metaphysical identity is partly institutional. So I am not even saying that their status as citizens is part of what constitutes their personal identity. I am not saying anything of that sort when I assert that the institutional dimension of language is constitutive of group identity. In previous chapters I have argued that peoples should be owners of collective rights because of their presence in all our mental group allegiances, because they were responsible for the very existence of mental rankings, and because it is hard to imagine oneself outside of all societal cultures. I also insisted that peoples were responsible for internal and external cultural diversity and that they could be responsible for political stability. In this chapter, I have been arguing that they are also the only kind of group that has all of these features. Consequently, we inevitably have to give a place to all sorts of national groups: ethnic, civic, cultural, socio-political, diasporic, multi-territorial, and multi-societal peoples, as well as to minority fragments of peoples, such as contiguous and non-contiguous diasporas.

will the real subject of collective rights please stand up? So far, I have advanced the hypothesis that political liberalism can accommodate the recognition of collective rights without having to justify those rights on an individualistic basis. Of course, liberal philosophy is characterized by the promotion of fundamental individual rights and freedoms. However, it can also be accompanied by the protection and promotion of principles other than principles concerning individuals. Principles can, for example, be non-liberal without being illiberal. Consequently, even if promoting collective rights were to mean defending non-liberal principles, these rights would not necessarily be in contradiction with liberal principles. However, I have not contented myself with using only an argument in favour of the compatibility of these two orders of rights. I also wanted to argue that collective rights should be kept in balance with individual rights. There could thus also be fundamental collective rights equally important and equally inalienable without hierarchy when compared with individual rights. If collective rights appear to contradict individual rights, it is only because we wrongly take for granted the presence of a logical connection between

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liberalism and ethical individualism. We have also seen that major arguments based on liberal principles can be invoked to justify giving some value to peoples as such. I have not only mentioned the importance of peoples for establishing systems of individual rights and freedoms, but I also pointed out that toleration in the sense of a modus vivendi can engender liberal toleration, understood in the sense of respect among peoples, as the impact of applying a modus vivendi on the stability of international relations becomes clear. Understood in this way and combined with the awareness that there are imbalances among peoples in both the internal basic structure and the global basic structure, toleration as respect leads to a politics of difference, which translated our attachment to a principle asserting the value of cultural diversity. The beneficiaries of these policies have to be peoples for the reasons that were already mentioned. Nonetheless, some think that recognizing the collective rights of groups is in contradiction with liberalism when such rights constrain persons’ individual freedoms. However, this argument has to be rejected because, as we already saw, liberals themselves accept the suggestion that individual rights and freedoms must be constrained. Individual freedoms are already constrained by other individual freedoms. Here, of course, one could retort that liberalism can accept constraints only if they are imposed by other individual freedoms. However, liberals also accept that individual (negative) freedoms can be limited by positive freedoms, that civic freedoms are limited by political freedoms, and that individual rights are constrained by the citizen’s duty toward society. What is in question here is not just a set of limits imposed by other negative liberties, but by positive liberties understood as responsibilities. Electoral and representative democracy, deliberative democracy (participation of citizens in public debate), and referendums can be described as rights, but they are first and foremost responsibilities and, as such, are instances of the liberty of ancients. Political liberalism accepts that individuals are free because they have the capacity to shoulder responsibility for their goals. They adjust their aspirations in light of the contribution that they can reasonably expect to make (Rawls 2005, 34). They limit their demands to what is authorized by the principles of justice. Assuming responsibility for their goals means adjusting their goals so that they can be achieved with the resources that they can reasonably expect to obtain in return for their contribution. Thus, the liberty of ancients limits the liberty of moderns.

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The idea that individual freedoms can be limited in one way or another is not new. Consequently, there seems to be no reason to object to limits imposed by a regime of collective rights. Of course, it is possible to respond that constraints on individual freedoms can be authorized only if they do not flow from acceptance of collective rights. What bothers individualists is not the constraints that collective rights engender, but the very concept of collective rights. It is not because collective rights impose unacceptable constraints that some consider individualism as having to be accepted. The situation is instead that because they uncritically accept individualism, collective rights automatically become unacceptable as constraints. My hypothesis is that liberalism is compatible with acceptance of collective rights. However, the following conditions must be satisfied: 1 The subjects of the rights must be restricted to national groups understood as (partial) societal cultures – as cultural structures belonging to a crossroads of influences and offering a context of choice. Such groups should be the only ones that can be subjects of collective rights. This is the conclusion that we are entitled to draw, given the importance granted to national groups. Subjects of collective rights have to be recruited only among the various types of peoples and minority fragments of peoples. 2 The groups also have to be described in terms that are not communitarian. The groups in question are identified by their cultural structure, whether or not they also have a unique character. A distinction has to be made between a people and a “community of destiny” if, by the latter expression, we imply implicit adhesion to a commonly shared collective undertaking. In short, we have to renounce the idea of attributing rights to a people if the only reason is that it directs a common action to a specific goal. This is true even when the people concerned defines itself on the basis of a commonly shared conception of the good life or of the common good. We require a notion of the social group that does not suppose the idea of common action or adherence to a commonly shared system of beliefs. We can refer to communitarian peoples without taking into account the beliefs, values, purposes, or aspirations that bring their members together, and this is why even communitarian peoples can be given rights. For example, the Jewish people also defines itself in terms of a religious identity but, as a subject of collective rights, we must refer to its cultural structure.

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3 We do not claim that all collective interests of such groups are collective rights. We accept the fact that many constraints apply that make it possible to raise only a small set of interests to the status of collective rights. The only collective goods that can be objects of rights are institutional, communal, and identity-based goods. 4 Finally, it is of course also necessary that we give up tying liberalism and individualism so closely together. The originality of this position stems mainly from the justification designed to give national groups equal respect and afford them value. As subjects fully present in the political arena, along with individual and corporate persons, peoples (and minority fragments of peoples), understood in terms of their institutional identity as societal cultures, have to be respected with equal dignity by political liberalism. They are equally important sources of legitimate moral claims. Once this stance is accepted, we can give them value through proactive intervention when imbalances occur among peoples in the global or internal basic structure. Such interventions take the form of a policies of cultural pluralism, and they are equivalent to affirming the principle of the value of cultural diversity.

a major objection that is easy to counter Kymlicka argues that societal cultures have value only because of their benefits to individual freedom. He was thus led to insist that it is the context of choice that makes societal cultures worthwhile. This allowed him to explain why peoples can have greater rights than minorities resulting from immigration. Peoples are societal cultures that offer a complete set of institutions, a broader range of options, and thus a more extensive set of possibilities for fully achieving the liberal ideal. In short, peoples offer a greater context of choice than minorities resulting from immigration. However, one of the most crucial objections to Kymlicka’s theory is that it is less favourable to peoples that were decimated and that are now unable for that reason to offer a very wide range of options. If a group’s value is based on the fact that it provides a very broad context of choice, groups that offer smaller contexts of choice should receive less complete sets of rights. However, this is deeply unjust, because the group in question may find itself in a state of relative decrepitude as the result of actions by the majority group. Worse, the state might be tempted to employ tactics to decimate minority groups within its bor-

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ders. The result of such actions would reduce the contexts of choice offered by minority groups, which would make them less eligible for protection on the basis of Kymlicka’s criterion. I consider this objection decisive. However, I think that the present argument in favour of collective rights for peoples is not vulnerable to it. I began by defining peoples as having minimum institutional identities, and not as having to be organized politically. In this way, we can include among the subjects of collective rights peoples that have a minimum institutional identity, such as indigenous peoples organized on reserves. This is already a result that allows me to give importance to groups that cannot offer a very wide context of choice. Collective rights can be given even to peoples that, like the Acadian people, are not politically organized at all into governmental institutions. Indeed, I also said that peoples can be sources of both internal and external cultural diversity. Thus, even when the group does not offer a very broad context of choice, it can contribute to external cultural diversity. Since I, unlike Kymlicka, have not committed myself to basing the value of peoples only on context of choice, and since the people in question can contribute to external cultural diversity and not only internal diversity through the context of choice, such a people could be the subject of collective rights. For instance, an indigenous people that would be reduced to a few hundred individuals could be an instrument of external cultural diversity. Its institutions could be minimal, but they could still be different from the institutions of other peoples. Can we not use the same kind of argument against the present approach by pointing out that I have committed myself to considering as beneficiaries of rights peoples that have avoided assimilation, while peoples who have not been able to avoid assimilation are deprived of such rights? This time the objection concerns a people that would contribute to neither internal nor external diversity, not only because of the poverty of its context of choice, but also because it has lost its distinctive features. In this respect, the objection could use the Huron people as an illustration. The Huron language has vanished almost completely; there remain only a few hundred words. So the Hurons no longer contribute very much to internal or external diversity. Can they still be subjects of a cultural pluralism policy? According to the present account, we are committed to preserving the rights of peoples because they are subject of equal respect and they play a role in preserving political stability. However, suppose that a people’s institutions were completely destroyed and that it had been completely assimilated. By hypothesis, it

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would no longer contribute to internal or external diversity, nor would it contribute to political stability. Am I not committed to denying them collective rights? I do not think that this criticism is warranted. I have committed myself to saying that under certain conditions, such as the will of the population to survive, respect for individual liberties and contribution to political stability, the assimilation of this people is a loss to humanity. The fact that it was assimilated is a tragedy. Under my account, there were reasons to protect and promote the group. So I should not be blamed for the assimilation of such a group. On the contrary, those who are to be blamed are those who are reluctant to apply the principles I am fighting for. It is problematic to use a historical example of assimilation that exploits our legitimate feeling of outrage in order to refute a theory that is trying to prevent this kind of a tragedy. The theory that I am proposing aims to explain why we are right to feel outrage. Historical examples of assimilation of peoples should engage our responsibility to those peoples who are in danger of extinction or assimilation. We have a responsibility to intervene. We probably cannot give rights to a people that has already been assimilated, but my position is that we should have promoted and protected their rights instead of leaving them to their fate. Those who imply that I cannot justify the protection and promotion of an assimilated people and that this is a reason to reject my theory do not understand the theory. Indeed, a theory like mine has to be invoked to explain why we have an intuition that injustice has been committed against such peoples. What is important to note is that, unlike Kymlicka, I can justify major, strong intervention for peoples who have suffered huge wrongs and find themselves reduced to their simplest form in terms of context of choice. Such peoples sometimes contribute to external diversity, often contribute to political stability, and always deserve equal respect, even though they may no longer contribute much to internal diversity.

peoples and minority fragments of peoples However, the above argument in favour of peoples seems to create another problem. It seems to weaken the distinction that I am trying to establish between peoples and minority fragments of peoples, such as contiguous and non-contiguous diasporas. Is a people that lacks complete institutions comparable, say, to a minority that results from immigration? Indeed, the line between these two sorts of national groups

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is often blurred, and we must perhaps acknowledge the existence of a continuum instead of referring to them in terms of strict categorical distinctions. Nevertheless, in general, there are many different ways to set them apart in two different categories. First, let us note that the distinction between the different types of groups is clear enough in sociological composition. There is very often, first, a difference in numbers: peoples are frequently more numerous than contiguous diasporas, which are in turn very often larger than minorities resulting from immigration. There are many exceptions to that rule, but it fits with the prototypes of each kind of group. A second and perhaps more important difference is that minority fragments of peoples do not represent themselves as forming peoples all by themselves, while the members of peoples see their group as constituted by a whole population sharing the same language(s), institutions, and history. Contiguous and noncontiguous diasporas do not see themselves as forming peoples in and of themselves alone.4 Third, peoples exhibit a nationalist behaviour while minority fragments of peoples in general do not. That is, peoples have political ambitions over a certain territory, they justify their claims on self-determination, and in general they ask for a certain form of selfgovernment. In this sense, even if they could sometimes be less numerous in absolute figures than contiguous diasporas or even immigrant groups, peoples should nonetheless be given rights to selfgovernment if they make this request. As home of a people with a distinct institutional identity composed of a language, a set of institutions, and a history, offering a distinct context of choice in a specific crossroads of influences, it is important to secure their identity as peoples. Here is a fourth difference between peoples and minority fragments of peoples. In general, contiguous diasporas do not require governmental institutions. But there seem to be many counter-examples. The case of Kosovo is interesting, because its population did not see itself as a people as such, since it saw itself as a contiguous diaspora of the Albanian people. However, under the Yugoslavian federation, Kosovo was granted autonomous status. The Yugoslav government was not morally compelled to do so, but this is what it did. Then the government decided to remove this status in 1989 by adopting constitutional amendments. Ultimately, it performed a certain kind of ethnic cleansing that was on the verge of turning into genocide. The international community intervened to stop the massive killings that were taking place. Ultimately, Kosovo voted for its independence and the international community recognized the new state. Here we seem to have a

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clear case of secession performed by a contiguous diaspora, and this seems to run counter to the claims I made concerning the different kinds of demands and different kinds of rights of peoples and contiguous diasporas. However, it is important to note that I am not opposed to special selfgovernment rights for the population of Kosovo, even if this minority sees itself only as an extension of the Albanian people. I am committed only to say that it did not have a general right to intra-state autonomy. But since it was granted a special right, removing the right was an injustice that demanded reparation. But why should the reparation take the form of an independent state? The ethnic cleansing that was taking place is surely part of the answer, but more generally, it must be noted that sometimes all sorts of variables come into play in any concrete cases. The ideal theory that I am proposing may suffer exceptions and it is sometimes impossible to implement our normative ideals. All sorts of circumstances may interfere with ideal norms. So I am not opposed to the sovereignty of Kosovo. There may be good practical reasons for allowing it to secede, given the ethnic cleansing of Kosovars by Slobodan Milosevic. For practical reasons, we can arrive at this conclusion, but I would argue that, in general, contiguous diasporas do not have a right to secede. Nevertheless, in this particular case, it might have been the only way out of the ethnic cleansing. I am not committed to distinguishing between peoples and minorities resulting from immigration only on the basis of lines drawn between complete societal cultures (peoples) and incomplete societal cultures (minorities resulting from immigration). My criterion includes more generally their contribution to political stability. Minority fragments of peoples are defined in part on the basis of a cultural group located in a different country: the neighbouring national majority (for contiguous diasporas) or the people of origin (for non-contiguous diasporas). The promotion and protection requirements in favour of national groups apply first and foremost to peoples because they are, in a way, the nerve centres of political stability. The protection and promotion of contiguous diasporas are then complementary actions in that they help to strengthen and preserve political stability.5 Next come immigrant groups, which have to be shielded to complete the protection of national groups in general. We can thus see why rights have to be ranked. The goal of political stability requires different steps to be undertaken and thus a different lexical priority to be given to peoples, contiguous diasporas, and non-contiguous diasporas. In general, peoples

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as such have the right to various forms of self-government if they wish, while contiguous diasporas can demand institutional collective rights such as public financing for schools, colleges, universities, and hospitals. Non-contiguous diasporas can aim for adoption of policies of cultural pluralism and for poly-ethnic rights (exemptions, reasonable accommodation, after-hours courses in their own language at schools, etc.). I would also like to note that the inequality of treatment between peoples and the various types of diaspora communities is only an apparent violation of the principle of equality. Such equality can truly be ensured if all peoples are treated equally, all contiguous diasporas also, as well as all non-contiguous diasporas. Treating contiguous and noncontiguous diaspora communities as if they were peoples would be in contradiction with the spirit of the principle of equality of peoples. Let me deal with another objection, before moving along. Kymlicka’s argument for justifying a distinctive kind of protection for stateless peoples (or “national minorities,” to use his terminology) as opposed to immigrant groups was that they provide a full context of choice. We saw how this argument was vulnerable to criticism, but what about the present account? I am also drawing a distinction between whole peoples and immigrant groups. This time, it is argued that, in a way, equality is perfectly preserved, because notwithstanding special cases, in general all peoples should be treated equally, as well as all contiguous diasporas and all contiguous diasporas. Now, it could be replied that it is a very weak consolation for an immigrant group that they are treated equally if they are told that the people located in their country of origin is treated equally. This would certainly be unsatisfactory if immigrant groups were afforded no rights whatsoever, and especially if they were entitled to have the same rights as the people forming their welcoming community. However, immigrant groups do not represent themselves as forming whole peoples all by themselves, and they do not ask for self-government. Moreover, they do have rights, and the state that welcomes them is compelled to grant them those rights. So this objection falls flat.

a metaphysical conception of peoples? The institution-based conception of peoples allows me to dispense with a number of traditional objections. In order to attribute rights to peoples, do we not have to conceive of them as irreducible social entities, in other words, as collective organisms or macro-subjects? Are we not

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committed to a problematic social ontology?6 Do we not have to postulate that the subjects of collective rights are entities in which real individuals are only component parts? Not necessarily. We accept an institution-based conception of a people as a cultural structure accompanied by national awareness and the will to survive. This institutional identity is compatible both with an individualist ontology, by virtue of which the people would be only an aggregate of individuals, and with a collectivist ontology, by virtue of which the people would be a collective organism. Despite this metaphysical disagreement, all parties can agree to disagree and accept that peoples may be apprehended from a purely political, non-metaphysical perspective. We take them as they appear in the political space, in other words, with their institutional identity. We do not postulate social organisms, though this does not mean that we reject such a conception either, for the conception of peoples as mere collections of individuals is also a metaphysical thesis. Recall the Rawlsian concept of society that is neither a political community nor an association. Remember also that we do accept the purely institutional character of citizen for persons. A similar approach should be taken with peoples. In the political sense, that is, in the sense of political liberalism, peoples can demonstrate different degrees of institutional organization. They can be sovereign states like the United States, Great Britain, or France, federated states like Quebec, quasi-federated states like Catalonia, Galicia, and the Basque country, or governments that have benefitted from devolution of power within a unitary state, like Scotland and Wales. They can also be autonomous indigenous territories, like Nunavut and the future Nunavik, or indigenous reserves organized politically in accordance with Canada’s Indian Act. Finally, they can also have an institutional organization that does not even suppose a political government, like the Roma, Acadians, and Alsatians. In all cases, those who live in such sets of institutions have had a certain national awareness for a very long time. In other words, they have long seen themselves as having the properties that I have associated with peoples. These are the subjects of collective rights that we speak of when we adopt a political, non-metaphysical perspective. Let us continue our examination of the basic objections to introducing peoples as possible subjects of rights. An argument by analogy is often used against acceptance of subjects of collective rights. For many authors, it is difficult to define peoples but easy to define persons. Such authors take for granted the existence of individual persons,

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as if they were irreducible metaphysical entities that went without saying. The analogy should then authorize us to speak of a people in the same way as being also an unproblematic metaphysical entity. Now, since this is indeed problematic, the authors conclude that we have to renounce collective rights. However, the argument is based on a metaphysical approach to persons and peoples, and this is precisely what political liberalism recommends that we avoid. The argument is also based on a naive conception of the metaphysics of persons. What is a person? In philosophy there are as many debates on this question as there are on peoples. Thus, we cannot claim that the metaphysics of persons is less problematic or less controversial. Why then is there a desire to draw a distinction between the two issues on the metaphysical level? I fear that the answer is that a double standard is being used. The argument by analogy is an objection that is constantly brought up against collective rights, and yet the same problems affect the notion of person. Both are difficult metaphysical entities to define. Must we accept a neo-Lockean, an anti-reductionist, an animalist, or a narrativist conception of persons? The truth is that the notion of a person is no less problematic from a metaphysical point of view than the notion of a people. Yet we have no trouble accepting individual rights for persons. So why can we not accept collective rights for peoples? Other authors have a different way of using an argument based on an analogy involving persons and peoples. They do not hesitate to adopt a purely institutional and political conception of the person, and they then think, rightly, that they are free of any obligation to produce a metaphysical theory of personal identity. However, these very same authors suddenly adopt a different attitude toward peoples. They raise metaphysical questions only about peoples. They imply that it is not possible to achieve an institutional and non-metaphysical description of peoples in an analogous way. The question then arises in its complete simplicity: why not also accept an institutional conception of peoples? However, perhaps the contrast lies in the fact that persons are concrete and peoples abstract. Are we not in this sense making a dubious analogy involving subjects of individual rights and subjects of collective rights when we seek to defend the latter? The subjects of individual rights are real persons, flesh-and-blood human beings. What real organism could be the substrate for collective rights? We meet persons in the street, but we do not encounter peoples. In order to maintain the analogy, are we not forced to postulate a kind of macro-subject or collective organism in which individuals are nothing more than cogs? The

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answer is no. When there is a public demonstration involving a large number or persons belonging to the same people, from the Mohawk reserve say, we are in the presence of a concrete sample of a people. We can thus meet a people in the street. Peoples are no less concrete than persons. Conversely, persons are no less abstract than peoples. The political, non-metaphysical conception of a people has an equivalent at the individual level. In most cases, subjects of individual rights are persons in the political sense, that is, citizens. However, the notion of a citizen is no less abstract than that of a people in the political sense. Indeed, from a strictly empirical point of view, we meet flesh-and-blood individuals in the street, but not citizens. Peoples in the institutional sense are social constructions, but so are persons in the political sense of citizens. Political liberalism is a form of constructivism in the sense that we do not postulate metaphysical entities having natural rights and do not even postulate moral facts. We work with institutional identities in the political realm, and argue for a system of rights equally available for all in the basic structure of society. All citizens must have the same rights, all permanent residents and all refugees. The method that we use in order to formulate these rights does not rely on the postulation of real capacities (Taylor 1994), anthropological interests (Habermas 1972), or fundamental psychological propensities (Honneth 1996). It rests on the results of a reflective methodology like the original position (Rawls 1971, 1999, 2005), applied to a certain institutional conception of persons and peoples. When we proceed in this way, peoples and not only persons can be the subjects of rights. Thus, those who postulate subjects of collective rights are not making use of an unjustified analogy. They are not raising a metaphysical entity to the collective level, because they are not subscribing to a metaphysical approach at the personal level either. If it is possible to establish an analogy involving the two levels, it is only because, at the individual level also, subjects of rights are citizens. The only reason why the analogy may seem problematic is that we are either taking a controversial metaphysical reading of the notion of person for granted, or projecting onto peoples an unwarranted social ontology. Of course, we can object that, apart from citizens, refugees, and permanent residents, there are other subjects of individual rights, such as animals, fetuses, and persons kept alive artificially. In these various cases, perhaps we are not dealing with agents who function in a system of social cooperation for their mutual advantage. However, if we continue to give rights to such individuals who are less than fully participating citizens, the cate-

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gories will be abstract nonetheless, constructed and community relative. Our concepts of animals, fetuses and persons artificially kept alive will partly be abstract, constructed and community relative. In the framework of political liberalism, we always need to propose a definition that will slice through reality and transform it into an abstract category. These abstractions are familiar and have no ontological import. At best they are concepts of folk politics or social phenomenology.

kukathas’s objections What are the arguments of liberal thinkers against admitting cultural rights, the subjects of which would be peoples and other national groups? Chandran Kukathas, for example, suggests a catalogue of arguments against recognizing groups. His arguments interest me because they all have the same target: the problematic nature of postulating a collective subject. Kukathas argues, for example, that groups are not fixed, unchanging entities (1992, 110). He thus presumes that the only subjects susceptible to claiming rights have to be fixed and unchanging. Yet persons also change constantly. They are also not fixed unchanging entities, but we give them rights. Kukathas says that groups form and disappear, but this is also true of individuals. Persons come and go, but that does not prevent us from recognizing the rights of all persons. Similarly, peoples come and go, and this does not prevent us from recognizing that all peoples have rights. Clearly, this argument does not stand up to examination. On the basis of what has just been said, we can respond to another objection. Partisans of collective rights are often accused of succumbing to essentialism. In other words, there would be a tendency to reify groups to the point of making them into entities that are objective, ahistorical, and unchanging. Yet the fact of adopting a political, non-metaphysical conception of the subject of collective rights shields us from the essentialism accusation. Are Peoples Objective Entities? Peoples are institutional entities, and institutions exist in folk politics even if they are not purely objective entities. The conception of peoples is partly objective and also partly intentionalist, since it involves a self-image. There is no people without national self-awareness. Kukathas holds that social groups do not in some sense exist independently of the

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idea that individuals have of them, in the hope of contrasting the two types of identity. However, the same remark applies to persons in the political sense. Persons also do not exist independently of the idea that they have of themselves. Conversely, citizens and societies are not pure fictions. They have partially objective properties. In the case of peoples, they have a language, as well as economic, social, and cultural institutions in a factual historical trajectory on a certain territory. Are Peoples Ahistorical Entities? No again. There was a time when peoples did not exist, and someday they will be no more. The fact that peoples come and go is not that important. It is possible to imagine that one day another type of social organization will supplant the nation. Could it be cities? Will there be a world government? These are possible, no matter our hypothesis about when peoples first appeared. Whether they date from several thousand years ago, since early in the Middle Ages, or from modern times, the result is the same. We are thus not postulating entities that have always existed and will always exist. This remains true, even if it is very difficult if not possible for us to see ourselves outside of any societal culture. The reason is that if cities or a world government takes over, these new entities will perform all the old functions of societal cultures. What is important is that the same remark applies to persons in the political sense. Institutional persons also have a relatively recent origin, whether one is a modernist or pre-modernist. Whether one adheres to the liberty of moderns or to the liberty of ancients, citizens are also historical, contingent entities. As townspeople or as “citizens of the world,” the old functions of the “citizen” will be reproduced at another level with new features. These remarks apply in the case of particular peoples and particular persons. They all come and go. Are Peoples Unchanging? In other words, are we not postulating collective entities with features that always remain the same and that thus have an unchanging nature? Indeed, this problem arises no matter how ancient the people in question is. During the time that a people exists, does it have unchanging features? We can acknowledge that peoples’ identities change over time. The seven kinds of peoples have appeared one after the other in history: ethnic,

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cultural, diasporic, civic, multi-territorial, socio-political, and multisocietal peoples. One kind of people often transforms into another. A people’s characteristic features are not always the same over time. We are thus in a position to acknowledge the changing nature of peoples in many different ways. First, the character of culture changes constantly, even if the structure of culture remains the same. Actually, the structure of culture also changes, even if at a different pace, as with the disappearance of Gaelic for the Irish people. Then a people may transform into different sorts of people, such as passing from the ethnic, to the cultural, and then to the civic sorts of peoples. Finally, peoples might eventually disappear and be replaced by cities or by a world government. So we can dispense with the objection concerning the people’s so-called unchanging nature. Must We Reject the Analogy Involving Persons and Peoples? Kukathas goes on to say that groups do not exist independently of institutions. Perhaps, but it is not clear why that should constitute an objection to allow for collective rights and, once again, what Kukathas says is also true of persons under the present account. The formation of groups is probably the product of environmental influences. However, persons are also most probably the products of environmental factors. Of course, every person is a being in flesh and blood, but in the context of political liberalism, it is not as a being in flesh and blood that persons have rights, no matter what our position on animal rights. Indeed, in political liberalism, those who have individual rights are persons understood in the institutional sense. According to Rawls, an individual has a social, public, institutional identity, and it is as such that individuals are affected by the society’s basic structure.7 These are the subjects that have rights, and not hypothetical human beings whose nature would be pre-social and pre-political. This is why Rawls wants to claim a degree of neutrality on natural law. The analogy involving persons and peoples is thus maintained. As we have seen, according to Kukathas, peoples are non-natural modern entities, unlike individuals, who would be natural entities. However, even if we accepted the modernist description of most peoples and admitted that individuals were in a certain sense “natural” entities, this would not prove much. Each time that we try to appeal to so-called human nature, we realize that it is extremely problematic and controversial. The problem is that on the one hand, individuals de-

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scribed in this way are not clearly subjects of rights, because it is as citizens that they can claim rights (or refugees, permanent residents, landed immigrants, or “citizens of the world,” but then again in a jus gentium). And there could be all sorts of persons: incapacitated persons, fetuses, persons in a vegetative state, etc. On the other hand, peoples also exist in different forms and not only in the form of civic peoples, as mono-national sovereign states. They can be ethnic, and in that sense they are also up to a certain point “natural.” But if ethnic peoples are also subjects of rights, it is not because of this but indeed as a result of their institutional status. When they are not, properly speaking, “ethnic,” in the very restrictive sense supposing a common ancestry, they take the form of groups that are variations on the ethnic groups that originally existed. Peoples thus also have natural historical roots, just as persons do, but in both cases it is their institutional identities that make them able to claim rights. Moreover, it is not certain that the appropriate framework for liberalism is a natural rights theory. For Rawls, liberalism is a political rather than a metaphysical doctrine. In order to justify attributing rights, it is not necessary to base one’s argument on the idea that persons or peoples have natural capacities that have to be respected. In fact, the most natural sort of individual subjects of rights (human beings in a vegetative state, for instance) also have an institutional nature recognized by the state, and the most institutional sort of peoples (the sovereign state, for instance) have ethnic roots, when considered from a historical perspective. Are Peoples Not Lasting Long Enough? Others hold that peoples do not have a long-term existence. Here, the problem of collective rights arises when we wish to institutionalize them. Indeed, even if moral collective rights are a priori acceptable, we have to show that institutionalizing them is also acceptable. This amounts to admitting the plausibility of enshrining them in a constitution. Yet constitutions include clauses that can be applied over the long term. Thus, according to many, the problem is that we have to resort to a primordialist conception of the origins of peoples, as in Geertz (1963), and so cannot employ a modernist conception, similar to Hobsbawm (1983), Gellner (1983), or Anderson (1991). However, this way of seeing things is mistaken. Even if peoples had to be seen as modern entities, that would not be sufficient to prevent us from making them subjects of rights. Indeed, while not claiming that they are

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permanent, do not peoples, as well as national groups in general, have sufficient lastingness? Their existence is much longer than the lifespan of a constitution. Non-Nominative Persons vs Nominative Peoples? If there is an asymmetry between persons and peoples, here is where it lies. In any multinational country, peoples are less numerous than persons and last longer. As a matter of fact, they are so much less numerous that it would be possible in principle to name each one of them in a constitution. Thus it is normal to want to name certain peoples in constitutional texts, while it would be abnormal to name each and every single person. This apparent asymmetry does not reveal anything problematic about peoples, because there are always fewer peoples than there are persons. The distinction between the non-nominative presence of persons in a constitution and the nominative presence of peoples in these documents is no indication that the former is universal while the other is particularistic. There are particularistic and universal features belonging to persons as well as peoples. There are generic rights belonging to peoples as much as there are concerning persons. There is a politics of equality to be implemented for all peoples and not only a politics of difference. Conversely, there is a politics of difference to be implemented for persons and not only a politics of equality. Neither can we claim that collective rights for specific peoples go against the generality condition imposed in the previous chapter, because there are very general collective rights for peoples asserting that all peoples have the right to self-determination. It is on the basis of this general principle that specific peoples can claim rights. The situation is similar in the case of individual rights. The only remaining asymmetry is that persons are more numerous than peoples. They cannot all be named, while it is possible to name all the peoples contained in a sovereign state. Reification? What haunts Kukathas is the danger that groups be reified. According to him, liberalism has to be against recognizing majorities and creating permanent minorities (1992, 114). However, what is he afraid of? If a group is destined to be a minority in an area for a long time, is it not better for it to have rights? Granting collective rights to a long-lasting minority is a way of protecting it against the tyranny of the ma-

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jority. In such cases, we can adopt a policy of cultural pluralism that is perfectly consistent with liberal principles. This way of seeing the enshrining of national groups in constitutional texts takes into account factors related to duration. In multinational and pluri-cultural societies, it should be normal to refer explicitly to peoples and other specific national groups. This should not be surprising or upsetting. Even if they do not have the status of primordial entities, and even if we understand them in the institutional sense, most such groups last longer than the constitutional texts themselves. So they should be acknowledged by the encompassing state. Furthermore, stateless peoples are themselves very often minorities, and it is likely that their minority status will be permanent. One thing is certain: it is not by ignoring minorities that we can help them with respect to self-determination. Kukathas’s reluctance once again seems to lack any foundation. Can Religious Groups Be Subjects of Collective Rights? Why restrict the subjects of collective rights to peoples and other sorts of national groups? Apart from peoples, the best candidates for collective rights seem to be religious groups. Do we really have to exclude religious groups as subjects of collective rights? Are we going to say that they do not have collective rights? What about collective rights for religious groups? On this point, I would like to propose the following response. (1) Persons undoubtedly have rights such as freedom of conscience, belief, and association with respect to religion. They thus have religious rights, but those rights are individual rights. (2) Religious associations that are incorporated can probably have distinct rights as corporate persons. However, those are rights that they have as legally constituted persons. (3) It can also be claimed that national groups have the right to adopt the religious institutions of their choice. The state that does not promote a specific religious faith nevertheless has to protect this negative collective right. However, it is a negative right: a Western state does not have the right to impose a specific religion on peoples and does not have the right to prevent them from adopting the institutions of their choice, as long as these respect individual rights and respect other peoples. Furthermore, the negative rights that national groups have to create their own religious institutions are not rights that they have as religious groups. They are rights that they have as societal cultures. Even if a minority societal culture may also be a religious

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group, it is not as a religious group but as a minority societal culture that it has the negative collective right to adopt the religious institutions of its choice. (4) Yet what can be said about our policies of cultural pluralism for minorities resulting from immigration and historical minorities that have distinct religious practices? Are we not required to promote minority cultures in the name of cultural pluralism, and would we not then be promoting such groups as religious groups? Indeed, there are cases in which it seems acceptable to do so. For example, very often, even in democratic societies, state holidays reflect the traditional religious practices of the majority, which is unfair to members of minorities who practise a different religion. In such cases, it is appropriate to give certain minorities special compensatory rights that enable them to circumvent the official practices. This is a case of special rights that compensate for the residual presence of some of the majority group’s traditional religious practices. However, even in this case, these are special rights that the groups have as historical minorities, minorities resulting from immigration or minority peoples. We do not need to refer to these groups as religious groups. The rights are thus not held as religious groups but as national groups. In all cases, it is not necessary to give collective rights to groups other than national societal cultures or to minority fragments of peoples. From the point of view of political liberalism, we certainly do have to preserve religious diversity. Indeed, this is one of the major advantages of Rawls’s political liberalism. However, it is not necessary to do so by recognizing that religious groups have collective rights. Only national groups are subjects of collective rights. Our reluctance to grant collective rights to religious groups stems from the fact that the liberal state cannot protect and promote a particular view of the good life. There are indeed cases where a religious group does not simply promote a particular faith but more generally creates bonds among members of a national group, and in that case the state may support the group, but as a national group not as a religious group. Do we have to go so far as to tolerate “non-liberal” peoples with instituted religious practices and give them collective rights? Theories based on the principle of toleration are often criticized, rightly, for leading to excessive toleration for illiberal states. Thus, Rawls was criticized for limiting application of all his principles of justice to the domestic sphere of Western societies and for including undemocratic societies (decent hierarchical societies) under the veil of ignorance in ideal theory. The consensus achieved under that veil was unsatisfying. He was ac-

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cused of abandoning the universality of many fundamental principles of political liberalism. In general, such criticism seems to be entirely justified. The challenge facing theories of collective rights is to frame toleration without harmful consequences, such as those that led Rawls to a certain form of moral relativism. That being said, peoples (or minority fragments of peoples) forming communitarian democracies may enjoy collective rights. These national groups can subscribe to the principles of political liberalism. This thorny question is important, and the works of Bhargava (2004), Eisenberg (2009), Parekh (2000), Rawls (1999), and Spinner-Halev (2000) suggest possible responses. For my part, I have introduced the concept of a democratic communitarian society. It may not solve all of the specific problems that could arise, but it sheds light on the type of society that liberal thinkers have to respect, protect, and promote in ideal theory. In addition to recognizing the negative collective rights of minority groups to adopt the religious institutions of their choice, special legal rights for associations considered as legally constituted corporate persons, classical individual rights (freedom of conscience, belief and association), and special rights for minorities within societies that promote residual religious practices in their institutions, we can also recognize the collective rights of those peoples that take the form of democratic communitarian societies. Democratic communitarian societies can adopt institutions of their choice. What is important is to note that in order to do so, they must tolerate, in the form of positive policies, all of the rights mentioned above for their own internal minorities. Democratic communitarian societies are societal cultures, and it is as such that they can enjoy collective rights. But they achieve liberal neutrality not by adopting secular institutions. They do so by positively supporting all religions: those of the majority and those of minorities. So there are many different ways of conceiving how secularism is to be concretely implemented within societal institutions. It can be done by a secular state that removes all traces of religion in its institutions, or by protecting all groups (majority and minority groups) that entertain various attitudes toward religion (including atheists and agnostics).

conclusion Groups that are subjects of collective rights do not have to be conceived of as involuntary affiliations from which we cannot extricate ourselves.

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Of course we can extricate ourselves, but it is a very long and difficult process and one that always ends up into a new group. This explains why they are also not simple associations to which we are attached only by an act of will. Peoples, contiguous diasporas, and non-contiguous diasporas are not reducible to associations that are based only on their members’ collective desire to live together. We can imagine ourselves outside of all particular associations, but not outside of all societal cultures. This is why they have the special feature of being part of the selfimage of all citizens. This supposes a distinction between membership in a national community and membership in an association. It is a distinction that Rawls himself makes in the presentation of the fundamental ideas of political liberalism. Are we right to suggest that national societal cultures appear in the charts of allegiances of everyone? What about stateless persons? As I have described them, stateless persons may have many different national allegiances, which rank them very low in their mental chart and have no preferences between these affiliations. But even if this is so, it means that in order to describe what they are, we have to refer to their societal culture or to the many societal cultures to which they belong. We have to postulate that many national societal cultures figure in their mental chart of allegiances, albeit in a very weak form. Stateless persons have to acknowledge the fact that with the languages that they have learned, they belong to one or many different linguistic communities. In that sense, their situation is similar to that of a free-rider. They benefit from their presence within different linguistic communities without assuming any obligations towards them. But this moral judgment is irrelevant for the main argumentative purpose at hand. Even in such an extreme case of stateless persons, we have to postulate in their minds the presence of one or many national societal cultures. In that sense, we are able to determine that national societal cultures are universally present in all mental charts. In addition to being the only groups that meet the conditions expressed in the previous chapter, they have a distinctive subjective presence in the minds of everyone. This is what makes them special among all groups.

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8 Objects of Collective Rights

In this chapter, I examine the objects of collective rights. What are they? As we mentioned, they are institutional goods, that is, they are a subclass of institutional goods. They are goods that also present themselves as both collective and identity related. They are collective, not only in the sense of being participatory (produced and consumed by many) but also in the sense of being related to collective features of the group. Examples of collective goods are language (in the Saussurian sense of “langue”), constitutions, governmental, juridical, social, and economic institutions, as well as museums, libraries, and other elements of cultural heritage. The institutional goods that we are looking for can provide benefits to individuals, but it is not only because of those individual benefits alone that they can be the objects of collective rights. In the case of a certain number of institutional goods, it is first and foremost in order to fulfil the expectations of national groups. Among all institutional goods, those that we are looking for are those that not only serve the interests of national groups, but also those that protect, promote, and consolidate their institutional identity. These are collective goods like, for instance, rights to self-determination, rights to self-government, ancestral rights, rights to asymmetric federalism, rights to participate in a constitutional dialogue, rights to have an internal constitution, and rights to have specific goods like hospitals, schools, colleges, and universities.

three immediate criticisms to counter We have defined collective rights intensionally and, up to a certain point, extensionally. Intensionally, they are institutional goods enjoyed by national groups that serve their collective interests and play a role in

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their identity as a national group, and they are based in interest as well as based on choices. Extensionally, in the last paragraph I just gave examples of institutional goods. I shall now be led to discuss a particularly fundamental right. It is one that in a way justifies many other particular collective rights. It is the right to self-determination, which can usefully be understood as the right for a people to maintain, develop, and create institutional, collective, and identity-related goods. Peoples want to be able to maintain, develop, and create these goods, and for this reason they want to be able to exercise control over them. However, before entering this discussion, I shall look at some objections that have been formulated against giving such goods to collectivities. I shall concentrate mostly on theses defended by Michael Hartney. But even before that, I wish to discard three confusions about the object of collective rights. The first one comes from an apparent difficulty that confronts the defender of collective rights. It can be framed into a question. Is circularity not implied if we identify peoples with an institutional component (a cultural structure) and describe the object of the right as based on an interest to maintain and develop one’s own institutions? If groups are individuated on the basis of institutional features, why do we have to give them rights concerning specifically those identity-related features? Does the object of a right not have to be different from the subject of the right? My answer to this question makes use of an analogy with individual rights. Persons are at least partly physical bodies, and one basic human right is the right to protection of one’s physical integrity. So there is a similar presence of the same entity referred to in the object and the subject of the right. To take another example, individual subjects of rights are citizens, but they have the right to have their integrity as citizens protected. The fact that the object of these rights concerns their physical integrity or their integrity as citizens does not prevent them from being rights. There is no circularity in the fact of recognizing that they have an identity that is also the object of rights. Much to the contrary, the reason persons have rights is precisely the fact that these institutional goods concern an aspect of their identity. I have even used this fact to formulate a criterion that permits us to distinguish interests that are rights from those that are not. The same remark thus applies to collective rights. The institutional goods that peoples have in virtue of the proposed criterion are goods that have an impact on their institutional identity. This is why the object of the right refers to aspects related to their identity as subjects of the right.

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A group’s linguistic identity can both define what the group is and constitute an object of rights for that group. As a matter of fact, it is important to restrict the true objects of rights to those features that relate to the identity of the group. So no circularity is involved here at all. Institutional goods are all the easier to be treated as objects of collective rights when they are important components of identity. The fact that institutional goods have to be related to identity shows clearly that they also have to appear in the identity of the groups concerned. Far from revealing circularity in the argument, this can be seen as a justification for demanding the introduction of a right. Even if a national group is individuated on the basis of an institution such as language, we can, and even must, recognize the collective linguistic rights of that group. Protection of that institutional good is obvious and unavoidable, specifically because the group’s integrity depends on it. Far from being a circular argument, the link between the object of rights and the subject of rights reveals the criterion that the object must meet to be a collective right. It has to be related to the nature of the subject in question. Here is a second objection. The claim is that the object of the right is an institutional good that plays a role in the identity of the collective agent. It is suggested that by ascribing this kind of right, we provide a certain kind of recognition to that agent. Indeed, since the very beginning of this book, I have argued in favour of a politics of recognition and the suggestion was that one good way to do this was to make room for the ascription of collective rights. But at the same time, political liberalism stipulates that the subjects of the right are persons and peoples (and other national groups) that are considered from the perspective of their institutional identity. This kind of identity is a relational property of being citizens or being societal cultures. But as relational properties, these features of persons and peoples are themselves objects of recognition. And so it appears that in order to be the subject of rights, we have to be recognized. Thus there appears to be another kind of circularity here. Our main claim has been that in order to recognize, we should ascribe rights. But at the same it seems that we are committed to the claim that in order to be the subject of right, we have to be recognized. An even worse consequence seems to follow. If we have to be recognized in order to enjoy rights, then the state can simply fail to recognize the agent in order to circumvent the obligation to ascribe rights. How do we get away from this apparent circularity and how do we counter the objection that follows? It is important to insist on the fact

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that the institutional identity granted at the very beginning is not necessarily just. We can be treated as second-class citizens, and therefore as members of society located in a basic structure that is both ineffective and unjust. In this regard, we must distinguish between two different sorts of recognition: acknowledgment and recognition properly speaking. Under my account, recognition requires the ascription of rights. But this is not so for acknowledgment. As recognition theorists, we can help ourselves with weaker forms of recognitions such as acknowledgment. If the agent discloses publicly her own ideal identity, then the state has no choice but to acknowledge it. As such, this act of acknowledgment is not yet a true recognition. The institutional identity afforded by the state may very well be that of a second-class citizen. Now this is the only relational property that the agent must already exemplify in order to have a certain institutional identity. And so this is how one circumvents the apparent circularity. There is first a level available for acknowledgment that qualifies agents as potential subjects of rights. And then there is another level where we do ascribe them those rights. In this latter phase what takes place is a true politics of recognition that presupposes the level where agents have been acknowledged. Political liberalism is based on a political conception of the person. But as I said repeatedly, this political identity need not be citizenship. There can also be refugees, recent immigrants, permanent residents, people owning a “green card,” etc. The normative principles afforded by political liberalism not only serve to protect those individuals or groups that already enjoy a full set of rights. It may also be useful to emancipate those persons or groups whose existence has been acknowledged, but not in an appropriate way. There is, however, an entirely opposite reason for worrying about the link between the subject and object of collective rights. This is a third objection. If, in order to enjoy a right to preservation and promotion of an institutional good, we have to already be an institutionally organized collective entity, does this not lead to recognition of already emancipated communities only, and to the misrecognition of those that, for various historical reasons, have not managed to achieve such emancipation? I have already answered this question. Peoples have to be promoted and protected if they play a role in the maintenance of cultural diversity. If they have been decimated and thus no longer have much internal diversity, they can still contribute to external diversity. However, do we not have to admit the possibility of peoples without any institutional identity? I think that the most decimated peoples still

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have a minimum institutional identity: a language, representatives, rituals, celebrations, a history, symbols, flags, traditions, dress, etc. This answer offers another way of replying to previous objections. It was argued that if recognition was afforded to peoples having an institutional identity, this last identity, in turn, had to be established by the state. Therefore the argument already presupposes a certain sort of recognition that we are seeking to implement. It was also argued that in order to avoid having to recognize a particular national group, the state could choose not to recognize the group and thus choose to deny the institutional identity on the basis of which the group claims to be entitled to a politics of recognition. Our reply is simply that many aspects of an institutional identity rely on the agent itself. The Acadian people, for instance, established by itself a language, a history, a flag, a newspaper, and various celebrations. So it is responsible for creating its own institutional identity. The argument that we were considering falsely assumes that the institutional identity of a national group can be established only by the state, but there are many institutional aspects that are created by the group itself. So no circularity is involved. So a population that has the characteristics of a people with a minimal self-established institutional identity can claim the right to be recognized as a people. A politics of recognition does not apply only to peoples that are already politically organized or whose identity has been already recognized or acknowledged in some way by the state. Peoples that are not politically organized in a government can have the right to be recognized. This right gives them an access to political institutions if they want, or at least the right to maintain the integrity of their institutional identity. Furthermore, they may have these rights even if they choose not to exercise them.

hartney’s criticism In his famous article on collective rights, Michael Hartney recognizes that the very existence of a group and its growth can be considered in a certain sense a good for the group as a whole that does not deliver clear benefits for individuals. However, this is not morally relevant, because the existence and growth of the group are, according to him, nonmoral goods. Moreover, moral goods for the group, if there are such things, are not intrinsic but contingent. According to Hartney, they become morally relevant only if they are brought into relation with intrinsic goods, and the only intrinsic goods that exist are individual

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goods. By virtue of the “value-individualism” defended by Hartney – which I have called “ethical individualism” – all goods are individual from the point of view of justification (Hartney 1995, 207). Contrary to Hartney, I think that the existence of a group and its growth can be a moral good. It can be so if the group is a national group and thus occupies all mental charts of allegiance and is responsible for the very existence of mental charts of allegiance, in addition to being represented as part of our identity. In that case, it deserves our respect. It does so especially if it also makes possible the exercise of our individual rights, and is an ultimate source of internal and/or external cultural diversity. In that case we may avoid commitment to the idea that agents can have intrinsic value, whether these agents are individuals or groups. The notion of an intrinsic value is foreign to an approach like mine that is based on a constructive methodology, and thus on a methodology that must avoid recourse to natural rights. All persons and all peoples must be respected as political agents and as societies for all the reasons mentioned above, but the ultimate reason is political stability. Furthermore, in addition to respect, the distinctive value of citizens and societal cultures must also be established and it is based on the esteem that they generate. That esteem is a function of their contribution to the diversity of talents or diversity of cultural expressions (for citizens) and the diversity of natural resources or societal cultures (for peoples). These two diversities have value because they also serve the purpose of political stability. However, in the end, the most important difference with Hartney is that, contrary to what he thinks, ethical individualism is not a doctrine that is constitutive of liberalism. As I have shown, political liberalism is a version of liberalism that has freed itself from ethical individualism, and it provides a framework that is hospitable to collective rights. This version does not postulate intrinsic moral goods. It treats all players in the political sphere as autonomous sources of valid moral claims because of their instrumental role in preserving political stability, whether those players are persons, or peoples (in addition to sentient animals and legal persons).1 Hartney holds that ethical individualism is incompatible with a collective rights regime. I am in perfect agreement with him on this point. Furthermore, Hartney is probably right to say that the existence of a collective right cannot be justified on strictly individualist bases, because the real subject of a collective right is a group, and the ultimate justifications for giving it such rights refer to basic needs that are relat-

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ed to the group. But according to Hartney, we thus have to choose between an instrumental justification of collective rights that supposes the intrinsic value of individual goods and a justification that supposes the intrinsic value of collective goods themselves. According to him, a collective good that is not derived from the value that individuals place on it is inevitably a good that must have intrinsic value. Yet, as we have seen, peoples can have a derived, instrumental value because they can play a positive role in guaranteeing political stability. Peoples thus have no intrinsic value as such, but their value is also not derived from the value that individuals place in them. In political liberalism, since peoples have institutional identities, some collective goods can seem morally important because they play a role in maintaining the group’s integrity. This applies to institutional, collective, and identity-related goods, that is, goods that concern communities first and foremost, and that are essential to maintaining, developing, and even creating a group’s specific institutional status. Hartney recognizes that goods can be “collective” in a certain sense, but it is in a sense different from the one we have just examined. According to him, such goods have value individuals ascribe to them. There are three sorts of candidates for the title of collective good, and according to Hartney all three are consistent with value individualism. 1 First, the accessibility of the good can be considered; it is collective if a number of people have access to it. Fire protection services, police, educational systems, and legal systems are all good examples. They are institutional goods but they serve individual interests. Of course, if an isolated individual demands such institutions, he or she does not automatically have the right to them. Those who want them have to be numerous enough to justify establishing them. This is why we can, if we want, describe such goods as “collective,” but it is only because they are accessible to a collection of persons. A number of people have to benefit from the good to justify its creation, development, and maintenance (Hartney 1995, 207). In sum, this is a collective constraint applied to consumption of a good. However, the ultimate interest remains individual. 2 Some goods are related to collective action. In other words, production, and not just use, of the good may be collective. Musicians’ participation in an orchestra and speakers’ participation in a linguistic community are illustrations of what is meant by “collective action” in this case. When collective participation is required for

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the production of the good, it is participatory. We can thus be tempted to describe collective goods as participatory (Hartney 1995, 207). However, in this case again, they can serve individuals insofar as it is those individuals’ interests that are at stake. 3 Some goods are considered collective because individuals benefit from them as members of a group. For example, according to Hartney, self-determination is a good that individuals can enjoy because they belong to a people. Education rights in one’s own language can also be claimed by virtue of membership in a linguistic minority. This is why we can speak of school as a collective good (Hartney 1995, 208). However, the ultimate interest is once again individual. These are senses in which Hartney thinks we can be authorized to speak of the collective nature of goods. However, these are only collective aspects of such goods, according to him. In all three cases, the goods are justified on an individual basis. We have to agree with Hartney on the collective consumption and production of goods. Even if the access to a good is mediated by collective consumption or collective production, it does not follow that the ultimate beneficiary is a group, because the ultimate justification can be individual. Understood in this way, collective goods can ultimately still be individual goods. Fire and police services can be instrumental in ensuring individual safety. Ultimately, orchestras and conversations can be instrumental for individual culture. Thus, even if a good is given to an individual as the result of his or her membership in a group, the good can remain individual. However, Hartney goes further, because he subscribes to ethical individualism, a doctrine that he thinks is inseparable from liberalism. He argues that the only acceptable collective goods are those that are justified on individualist bases. Hartney is probably right to claim that the right to education in one’s own language is an individual right and remains individual, even if it is limited by an accessibility provision stipulating that there has to be a sufficient number of beneficiaries. Even if schools are goods that are accessible only to a sufficiently large set of persons, and the number of persons has to be an important factor in the creation of the school, the right to education in one’s own language remains an individual right. School is also a participatory good insofar as there have to be several people (teachers, principals, support staff, and students) to really produce the good. However, this also does not suffice to make it collective. What is crucial is the ultimate justifi-

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cation. Partisans of ethical individualism will say that education in one’s own language is an individual right as the result of membership in a given linguistic group. Generally, cultural rights for such partisans are rights that individuals have because they belong to a given culture. This is where the problem arises, as I have explained many times. It is very difficult to explain why some individuals might have rights to schools but others not, unless we base our argument on the collective rights that belong to the group of which the individuals in question are members. The same remark applies to individual hunting and fishing rights held by persons belonging to indigenous peoples. It is difficult to explain the differentiated rights of indigenous persons if we do not base our arguments on those peoples’ ancestral rights. Finally, if we are committed to value individualism, then we will never be able to understand the hostile reaction of Franco-Ontarians to the closure of Montfort hospital, since hospital services in French were going to be provided at the Ottawa Hospital in compliance with Ontario’s Law 8. If this is correct, then it is clear that collective rights cannot be reduced to rights that individuals have by virtue of their membership in a group. On the contrary, the individual rights that persons have because of their membership in a group presuppose the existence of group rights. Of course, “value individualism” has nothing to do with ontological individualism. Hartney can acknowledge the existence of ontologically irreducible collective entities. Groups may not be reducible to collections of individuals (Hartney 1995, 208). The fundamental problem concerns the moral, not the ontological, status of these groups. However, the individualists’ open-mindedness to a collectivist social ontology does not make their position any less dogmatic or any less mistaken. If persons have rights to collective goods by virtue of their membership in a group, it is because the group has collective rights. However, Hartney does not see things this way. Since he is obsessed by the intrinsic good of persons, he considers that individuals are the real holders of cultural rights. In order to see Hartney’s mistake, we need only ask whether an immigrant can, in the name of an individual cultural right, refuse to integrate into the host community. Why are we inclined to make a distinction between an immigrant’s cultural rights and those of a member of the host community? What justifies our intuition that the immigrant has a duty to integrate into the host community, while the opposite is not true? If Hartney were right, both individuals, the immigrant and the member of the host community, would be on equal

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footing. So why are we inclined to accept that the situation is not symmetrical? Remember that the argument used by Kymlicka to explain this asymmetry is that the immigrant has in a way given up his or her language by choosing to immigrate to the new country. However, this argument is not sound. As argued before, most immigrants never renounce the links that unite them with their language and culture when they move to a new country. If they can live in an ethnic quarter, they will do so. If they can continue speaking their language, they will. Logically, they must consider that they have the right to keep their language and culture. Nonetheless, are we not tempted to say that immigrants have an obligation to integrate into their host community, and that members of the host community do not have a similar obligation to integrate into immigrant communities? Even if the state has to promote immigrants’ languages and cultures through policies of cultural pluralism, it quite certainly does not have to ensure that members of the host community integrate into immigrant citizens’ cultures. Yet why is there this asymmetry for host community citizens if both have individual cultural rights? I fear that the answer requires that we stop treating cultural rights as first and foremost individual rights. They are also collective rights. When the players are groups and not individuals, the asymmetry appears clearly and makes it possible to justify our intuition that obligations to integrate are asymmetrical. Can individualist philosophers use another argument to get around this problem? Is it possible to say that the asymmetry can be explained by the immigrant groups’ inability to meet the sustainability condition? Children of immigrants could choose to adopt the language of the host community, and we may think that the group will then assimilate into the host community. If so, it won’t last very long. This is why members of such groups cannot claim individual cultural rights. Giving them rights without ever meeting the sustainability condition could lead to a situation where some could invoke these rights even if there were almost no individuals left in the group to claim them. This makes no sense and can be invoked as the basic reason for the asymmetry. In contrast, members of the host community can claim such rights because their group is not endangered. This answer is also unacceptable because it cannot account for the situation that takes place in countries of immigration. The problem is that in countries of immigration, new immigrants are constantly arriving, so that from one generation to the next, the community always has the same number of people with the same language of origin, even if some

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members assimilate. We can thus anticipate that the community could last over time. This is why, as argued previously, they could claim rights to benefit from policies of cultural pluralism. Yet no matter what rights the community has, they cannot be the same as those of the host community. Individualist philosophers thus cannot explain the asymmetry between the rights of immigrants belonging to immigrant communities and those of the citizens belonging to the host community. Furthermore, the argument about the potential unsustainability of the group indirectly shows the importance of basing individual cultural rights on group rights. Individual cultural rights cannot be claimed if the group is not sustainable, and this indicates that the group itself has to be able to claim collective rights. However, is there not another argument that we can use to justify the asymmetry? For example, can we recommend integration of immigrants into the host society to avoid ghettoization of a group that is constantly strengthened by the arrival of new residents in the area where it lives? The integration obligations could be explained by the need to ensure full, complete participation as citizens. If this were the goal, it would be understandable why their situation would not be the same as that of members of the welcoming group. In order to prevent ghettoization, it is necessary to refuse to give them the same individual cultural rights as those held by members of the host community. This is why, according to this argument, members of immigrant communities have an obligation to integrate. However, this answer hides an even deeper reason that reveals the collective nature of the rights in question. Indeed, why should we avoid ghettoizing immigrants? Above all, what kind of ghettoization should we fear? Is it not what would isolate them from a welcoming society that has every right to exist as a society? If we fear ghettoization, is it not because we want to ensure everyone is “in the same boat”? It is difficult to see what other factor could justify a difference between the cultural rights of immigrant individuals and the cultural rights of individuals belonging to the host community. After all, no one would ever dream of forcing the host community to integrate into communities resulting from immigration. So why impose the opposite? If we take a completely individualist point of view, we are unable to say why. For partisans of collective rights, the explanation is disarmingly simple. The asymmetry can be explained by referring to the collective rights held by the host community. The reason the individual has the right to cultural membership and is not obliged to integrate into an immigrant

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community is because he or she belongs to a national group that can claim institutional goods of that kind. An individual cultural right is an individual benefit that flows from the group’s collective right to have cultural institutions. Thus, when we put ourselves back in the group perspective, we see why persons belonging to immigrant communities have an obligation to integrate. However, is this to say that immigrants have no cultural rights? Of course not, but their rights are limited and constrained by the obligation to integrate. Does this mean that a hierarchy is imposed on the various groups? Of course not. Equal protection for languages and cultures requires equal protection for the national societal cultures, as well as equal protection for all contiguous diasporas and for all non-contiguous diasporas. If anything, on the contrary, we are forced by the principle of the equality of all cultures to distinguish peoples and minority fragments of peoples. Of course, the protection and promotion of minority fragments of peoples is not secured just by protecting and promoting the foreign country from where they or their parents come. There have to be specific protections afforded to them, but that does not mean that we must allow them the same rights as whole peoples. I am imposing an obligation to integrate into the host community. Is this a rule that violates the fundamental precepts of liberalism? We have seen that political liberalism has freed itself of the individualism characteristic of the comprehensive versions advanced by Kant and Mill. This is why Rawls can admit without contradiction the existence of two autonomous sources of valid moral claims, namely, persons and peoples, and two original positions in which the subjects are persons and peoples, respectively. Goods claimed by peoples do not have to be justified on the basis of benefits that they can deliver at the individual level. They can also place reasonable constraints on individual freedoms, just as individual freedoms can limit collective rights. In light of this answer, we can see Hartney’s contribution differently. In his defence, we can say that, at the time, Hartney was unaware of the theoretical possibility offered by the new conception of liberal ideals that is called political liberalism. However, now that we see the true worth of this theoretical alternative, the individualist premises of Hartney’s argument weigh heavily, and challenging them makes it possible to take a new, favourable view on giving rights to communities. At most, Hartney’s argument makes it possible to show that collective rights are not compatible with value individualism. I am in agreement with him on this because it is precisely the lesson that we learned from

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examining Kymlicka’s theory. Contrary to what Kymlicka claims, liberal individualism simply does not have the resources to make sense of collective rights. This is more or less the same argument that Hartney uses, but he considers that value individualism is a necessary part of liberalism, and thus he rejects collective rights. I am trying to free liberalism of value individualism, and this is why I have a different attitude on such rights. There is a final move that liberal individualists might want to make in order to show the compatibility of collective rights held by people and value individualism. According to Altman and Wellman (2009) the exercise of the right of a people to self-determination is a collective action, and the right of a people to self-determination is a collective right. One reason is that it is wrong to say that the exercise of the right requires the consent of each and every individual within the people. It requires only the consent of the majority. I wholeheartedly agree with this account. But the authors also argue that the account is compatible with value individualism. For them, value individualists can coherently claim, first, “that an individual can be disrespected as a group member” (Altman and Wellman 2009, 39). Second, they also argue that disrespect for the group on a certain decision it makes can amount to disrespect for the individuals who constitute the group. Putting those two ideas together, they conclude that such a violation constitutes a failure of recognition and respect for each individual member in her role as member of the group. In other words, each citizen is wronged when her state’s right to self-determination is disrespected (38). It is not clear to see why they think they are in a position to defend the second premise in their argument. It is not clear how they can claim that disrespect for the group amounts to disrespect for the individuals who constitute the group, that is, for each and every member of the group. But there is no reason to apply a logic different from the one that they used in order to determine whether the exercise of self-determination is collective. It seems intuitively that if disrespect is shown to the people, then here too, it can be said that it offends the majority. It does not matter if disrespect is not directed at everyone and not felt by everyone. We therefore must make a difference between disrespect for the people and disrespect for members of that people. The individuals in the group who do not consent to the exercise of the right to self-determination do not necessarily feel disrespected by those who would violate the right of the majority to self-determination.

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On the contrary, they could even be very happy, since it would implement their own view. Of course, I am not suggesting that all those who are against self-determination will necessarily be happy if the encompassing state shows disrespect to the people. It is possible to be against self-determination but still be committed to the will of the people, expressed by the majority of citizens. Here I am only suggesting that it would be absurd to conclude that no disrespect was shown to the people because a single individual did not feel offended by the failure of the state to respect the right of self-determination for the people. So it is not clear at all that the violation of the right to selfdetermination of a people is a failure of recognition “for each individual member in her role as member of the group.” Therefore, it is not clear at all how the views of Altman and Wellman are compatible with value individualism.

collective interests According to proponents of collective rights, collective interests are more than aggregates of individual interests. Hartney asks what makes them irreducible. According to him, there are two ways of understanding such non-reducibility. If we were to agree with Denise Réaume (1988), we would have to say that when an interest is collective, it is not “individualizable.” In another sense, an interest is collective when it can take precedence over the interest of the majority. Let us look at these two arguments and see how Hartney reacts to them. Interest in a collective good can be collective in the sense of not being individualizable. This could mean that it cannot be claimed individually and is to be enjoyed collectively and is not reducible to an aggregate of individual interests. According to Réaume, persons do not have individual interests in those collective goods that are participatory goods. Hartney is not convinced by this argument. According to him, interests can be individualized. Members of an orchestra have an interest in the orchestra’s survival. They thus have individual interests in maintaining a participatory good. The interest is individualizable because all individual members of the orchestra have an individual interest in the orchestra remaining in operation. A fortiori, the same applies to members of the audience and more generally to those who enjoy listening to orchestras. Réaume’s idea is nonetheless that collective interests in participatory goods cannot be reduced to collections of individual interests. They

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may also involve individual interests, but that is not the end of the story. All members of the orchestra may have an individual interest in the good operation and sustainability of the orchestra, since these are in their interests, but they can also think about the orchestra’s interest as an orchestra. They can say what they want for themselves, but also what they think should be the orchestra’s interests. Even though they have individual interests in the orchestra’s existence and prosperity, they can make the distinction between their individual interests and the orchestra’s interest. In both cases, we give our opinion, but sometimes we refer to individual interests, while in other circumstances we refer to collective interests. Even if we can have an individual interest in the prosperity of our country, and even if we are collectively invited to have a say in the nature of our collective interests, a collective interest is not a collection of individual interests. I would like to insist on the fact that all of this is compatible with the idea that collective interests also very often entail individual interests and go hand-in-hand with them (Hartney 1995, 209). However, for his criticism of Réaume to be decisive, Hartney needs to show that all thoughts that individuals have about the orchestra’s well-being can be reduced to thoughts about the well-being of individuals, and this way of seeing things does not seem well founded. The confusion lies in the fact that the collective interest is in a certain sense individualizable, but it is so only in the procedural, not the substantial sense. A people’s interest depends in a way on individual interpretations of the collective interest. However, even though individuals help to determine the collective interest, the collective interest is not an aggregate of opinions on individual interests. At best, it involves an aggregate of opinions concerning the nature of the collective interest. I say “at best” because, as a matter of fact, it is rather a function from the opinion of the majority. The collective will is subject to the democratic principle interpreted on the basis of the rule of absolute majority. It is nevertheless irreducible to the individual interests of that majority. For all these reasons, the collective interest cannot be reduced to a sum of individual interests. Hartney provides proof that he is in the claws of this confusion when he examines the other interpretation of collective interest. This interpretation supposes a possible conflict with the interests of members of the group. According to Hartney, if collective interests are more than simple aggregates of individual interests, then it has to be possible for the group’s interests to conflict with the interests of most of the group’s members (Hartney 1995, 209). Those who defend collective rights thus

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have to subscribe to this idea. It is true that in certain cases, collective interests may go against the substantial interests held by the majority. In a certain sense, I also agree with Hartney that we have to reject this way of defending collective rights, but only if it means that the collective interest can go against the opinion held by a majority of the members. In that case, it would be very clearly illegitimate, since it would be undemocratic. However, there is no risk of this result if we do not confuse procedural and substantial issues. We must accept a procedural constraint to the effect that the collective interest has to result from the interpretation shared by a majority of members. But at the same time, the majority may approve a collective interest that runs counter to the individual interests of the majority. Since Hartney does not distinguish the procedural aspect from the substantial aspect, he concludes that for a collective interest to go against individual interests in the substantial sense, it must also go against the will of the majority, but this is not so. A majority in a population can subscribe to a collective interest that restricts their own individual interests. Furthermore, it is not clear why collective interests should, in principle, oppose individual interests. After all, there can be a convergence of interests. For example, it seems that in the course of the evolution of the human species, it was necessary for groups to establish the institution of language. Setting up a linguistic institution can meet social cohesion needs, and thus group interests, but it can also meet individual interests, in particular that of communicating with others. The convergence of interests may not be a form of useless over-determination, because it may be a necessary reinforcement without which the linguistic institution would not have appeared or been maintained. Yet is it possible that a collective interest could go against the interests of the majority of the individual members of a group? This possibility probably does have to be accepted in principle, but it becomes less controversial if what is in question is not something that can go against the majority’s wishes. After all, the majority of individuals can, in principle, be disposed to accept a constraint that goes against their own individual interests. Consequently, I think that it is perfectly possible to introduce a notion of collective good that is appropriate for a theory in which the subjects are groups. We have to abandon Hartney’s value individualism. We have to endorse political liberalism and adopt an institutional conception of groups. This is also a theory that is empirically anchored in some of our most fundamental intuitions concerning the duty of integration of immigrant citizens, and it is consistent with existing prac-

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tices. Collective interests cannot be individualized, but they are subject to a democratic constraint and can also be convergent sometimes with individuals’ interests.

charles taylor The conception that I have just sketched out somewhat resembles that of Charles Taylor. According to Taylor, we have to be attentive to objects of mutual interest. He thinks that we have mutual interests because we are beings who engage in dialogue. We have a dialogical identity. This does not mean that we have information about other people’s mental states or that other people have information about ours. We must not confuse mutual knowledge about monological mental states and the dialogical situation in which we find ourselves. What are these objects of mutual interest? In order to fully understand what is in question, Taylor makes distinctions between various kinds of goods. 1 There are individual goods that are consumed privately: eating a meal at home, watching a video, doing one’s hair alone, etc. 2 There are also individual goods that are provided collectively but need not be: restaurants, theatres, hair salons, etc. 3 However, even when the only way of providing the good is in a form that serves more than one person, it may be nothing more than an individual good on which all individuals converge. Some goods can be made available only if more than one individual demands them. Providing such goods requires establishing complex institutions that cannot be created for just one individual. They are goods that can be provided only collectively, even though they are individual goods: national defence, police, and fire protection. These goods are described as “common” or collective to make it clear that they are provided collectively, and especially to indicate that they could not be delivered otherwise. 4 Finally, we come to another level when we consider collective goods that, in addition to being provided collectively and not being possible otherwise, are not even individual goods. Such goods cannot be instrumentally reduced to benefits for the individual. For example, according to Taylor, a conversation is a shared action that is not reducible to the coordination of different individuals’ actions. The good is collective, not only because it is produced and consumed by more than one person, or because it would be

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impossible to have a conversation alone, but also because it cannot be reduced to a good that serves only the individual. The problem with this example is that it reduces collective goods to interactions between individuals. A conversation is a type of interaction between individuals. It is a relation, and in that sense it may look more like something involving intersubjective properties and not really collective properties. But even if we were to unsatisfied about this specific example, others could be more convincing. Now, according to Taylor, when the goods in question are conversations, peoples, or civic friendship, they are immediately common, in the sense that they can be experienced only if one is in a group. In the case of civic friendship, the beneficiary is always a group, because the good is provided collectively, it is addressed to a community, and can be delivered only collectively. Its raison d’être is not strictly individual, because peoples are institutionally organized for various converging reasons, some of which are individual and others collective. They are all at once objects of collective rights and subjects of those rights. The subjects and objects are institutional, collective, and identity-related entities. Taylor goes further when he asks about the tie that links us to a republic. Indeed, it is a good that is provided collectively. It is also in its very substance collective and cannot be provided otherwise. Finally, it is different from mediately collective goods offered in concert halls and theatres, and from individual goods that can be provided only collectively (civil security and military defence). It is a good that is shared immediately (Taylor 1995, 191). My first reservation, as it was just pointed out, is that Taylor’s views on dialogical identity tend to influence his understanding of collective goods. It is not clear whether peoples and republics are sets of common institutions or whether they are reducible to types of relations among individuals. When he refers to conversations and to civic friendship, we tend to read him as referring to things that involve relations between individuals, or relations of the individuals within a republic. Taylor notes, for instance, that the link to a republic is a good based on the meaning of a shared destiny, in which the sharing itself has a value (Taylor 1995, 191–2). So perhaps it is not the institutions themselves (the republic, the state, the people, etc.) that are goods but rather our relations to them. Taylor seems to find ultimate value in civic friendship, in our link to a republic, in our belonging to a people, and in our participat-

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ing in a conversation, but these seem to be construed as involving only relational properties of individuals. But language is not only a matter of parole (speech) it is also a matter of langue (language). It is not only a matter of the pragmatics of discourse, it is also a matter related to a set of conventional rules contained in dictionaries and grammar. It is not only a matter of expressing beliefs, it is also a matter of conveying meanings. Conversations presuppose the institution of language, and civic friendship presupposes the governmental institutions of a state. Here is my second reservation. As we know, in Taylor’s work, sharing the same destiny involves a presupposition of the existence of shared values. In this case, the values in question include language and culture, but Taylor thinks it is also possible to share specific values, goals, and aspirations. Here the confusion lies in failing to distinguish “values” that relate to the structure of culture from “values” that belong to the character of culture. These are two very different sorts of particularism. This confusion ends up encompassing a societal plan, that is, a given set of social values. We can accept everything that Taylor advances except this last part of the argument, in which he says that sharing specific values is necessary to partake in an immediately shared common good. As we saw, we have to distinguish, on the one hand, a society with shared public language, institutions, and history, at a specific crossroads of influences and offering a shared context of choice from, on the other hand, a political community with shared aspirations understood as a community of destiny, which supposes a shared undertaking and collective goals. In this case, in addition there are commonly shared actions, aspirations, and purposes. Taylor defends collective interests just as much as he defends individual interests. He does so from the perspective of a liberal state. However, according to him, a liberal state can win the loyalty of its members only if it is also a republican state in which every citizen shoulders his or her share of obligations. In turn, a republican state is possible only if it makes responsible citizens feel they have obligations. Machiavelli, Montesquieu, and Tocqueville have all tried to define the conditions for a free society in terms of a political culture in which voluntary participation of this kind can flourish. In a society where such participation is not coerced, citizens have to want to identify themselves with the state. In other words, patriotism is required (Taylor 1995, 187). It is not possible to implement a republic in which citizens accept some obligations if they are not patriots. According to Taylor, patriotism is based

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on a communitarian conception of society understood as a community of destiny. This explains why there must be specific shared values. In sum, Taylor’s position amounts to claiming that liberalism is acceptable only if it goes hand-in-hand with a republican, patriotic, and communitarian point of view. In effect, Taylor (1995, 182) reformulates Sandel’s arguments (1982) against liberal philosophers: accepting Rawls’s difference principle presupposes a very high level of solidarity among parties to the contract, but Rawls describes them as indifferent to one another (Taylor 1995, 183–4). According to Taylor, Sandel’s real question is whether the redistribution envisioned by Rawls can be maintained in a society that is not bound together in solidarity around a strong sense of community. Could a strong community of this type be forged on the basis of simple acceptance of principles of justice (Taylor 1995, 184–5)? Sandel’s answer is, of course, negative. Taylor goes in the same direction, and this is why he is led to link institutional identity with a specific moral identity. Generally, Taylor holds that liberalism is possible only if it is accompanied by a conception that gives great importance to the community. However, in the end, that community has to be a community of values. I agree with Taylor and Sandel that principles of justice can take root only in a strong societal unity, whether it is a national community or a larger one understood as an aggregate of national communities. I also agree that peoples, like persons, have both an institutional identity and a moral identity. I am reluctant to accept only the “has to be” part at the end of the previous paragraph. As a defender of political liberalism, I agree that it is possible for societies very different from ours to come to agreement on a single set of specific principles. A communitarian society of this kind can also be a society in line with the principles of political liberalism. However, in order to comply with political liberalism, there is no need to subscribe to the same set of specific values, purposes, and aspirations. We may have to be republicans and perhaps must all be patriots, but we need not be communitarians, for there are also societies built around ethical individualism. It is also wrong to suggest that the mere fact of wanting our people to continue existing, with its language, institutions, and history, is already a purpose similar to a set of specific values. I think that the specificity involved in a cultural structure should not be confused with the specificity involved in the character of that culture. These are two different sorts of particularism. A national societal culture is an immedi-

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ately shared good that can be distinguished from the specific goods involved in communities sharing the same goals and aspirations. In a nutshell, Taylor is first a holist in the sense that there are social facts that ultimately cannot be explained only by an essential reference to individuals and individual properties (Taylor 1995, 181). He would also, I suppose, accept anti-individualism in the philosophy of mind, that is, the view according to which our mental contents are individuated in terms that relate to the social conventions of the community. Furthermore, he acknowledges in his social ontology the existence of groups understood as certain sorts of organisms, but he does so with two provisos. These social organisms are not supra-individuals with a self-consciousness of their own (Taylor 1979, 96n1). The other proviso is that the cement that binds these groups together is the set of moral values (“collective goals”) of the group. This is where Taylor sides with communitarians (MacIntyre, Walzer, and Sandel) and against liberals (Rawls, Dworkin, Nagel, and Scanlon). But this is not to say that he rejects value individualism, for, as we saw in Taylor (1994), the ultimate justification for group protection and recognition is the dignity of the individual and the obligation to respect her “capacities.” This is why Taylor finds lots of interest in Humboldt whom he describes as a holist individualist (Taylor 1995, 185). The same idea is perfectly well articulated in Newman (2011). What this approach misses is the possibility of explaining the “organic” character of groups by avoiding metaphysical commitments. It also confuses two sorts of particularism and neglects the possibility of referring to the structure of the culture of the people, and thus in purely institutional terms (as opposed to its character or “collective goals”). Finally, it misses the possibility of justifying the protection of peoples on the basis of the benefits they can generate for political stability.

a liberal argument in favour of the right to self-determination I am now in a position to discuss another major impact of political liberalism on the theory of collective rights. Thanks to this doctrine, we can formulate an institutional and political description of peoples, and accept that they are sources of legitimate moral claims. But we can also clarify the objects of collective rights: they are collective, identity-related institutional goods that are immediately shared. Moreover, as previously announced, we can also produce an argument in favour of the

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collective right par excellence, namely, the right to self-determination. If peoples have to be understood in an institutional sense and if they are to be respected in accordance with the principle of toleration as respect, then they have the right to exist, and to maintain and develop their identity. In other words, they have the right to maintain and develop their institutional identity. This means that they have the right to preserve the integrity of their economic, social, and cultural institutions and that they should also be able to determine what kind of political control can be accepted over their own institutions. But this is precisely the right to internal self-determination. If we respect people and treat them as sources of valid moral claims, then some peoples that do not have control over their own institutions can demand the right to self-government. Peoples that already have selfgovernment can demand that their political and fiscal independence be protected. In some circumstances, they can also demand a special status or an asymmetrical federal system. Peoples without government can have the right to self-government even if they do not want to exercise that right. What is similar in all these demands? The simple answer is: the right of peoples to be free. However, what is the right to freedom when applied to peoples in the institutional sense? It is the right to maintain, develop, create, and control their own economic, social, and cultural institutions, and the right to determine its political status. But this right is nothing other than the right to internal self-determination. Indeed, the right to internal self-determination is the right of a people to develop its economic, social, and cultural institutions and the right to determine its political status within the state. This is exactly how the right to internal self-determination is defined. It is a right that peoples have if we define them in the institutional sense and if they are entitled to respect. And we have justified its existence by a general argument that was possible because, in political liberalism, peoples are understood as having an institutional identity whose protection and promotion requires what is involved in the definition of internal self-determination. We also have good reasons to claim that the most fundamental object of the right applicable to peoples is the right to self-determination. In general terms, this right establishes a people’s right to maintain and develop its own institutional identity. The many different objects of collective rights, such as poly-ethnic rights, representation rights, equal development rights, self-government rights, the right to a special legal status, the right to asymmetrical federalism, and the right to secession,

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are variations on the right to self-determination. All these rights, except for the last one, the right to secession, are instances of a right to internal self-determination. The right to secede, by contrast is, as we shall see, an instance of the right to external self-determination. Peoples can have many different interests, and only some of those interests can be raised to the status of collective rights. The interests that are rights are those that are related to the protection and promotion of their institutional identity, and the latter involves the basic economic, social, cultural, and political infrastructures of their society. Now, as we just saw, the right to protection and promotion of their institutional identity is more or less similar to the usual definition of the right of self-determination. In a way, once established, this notion provides us also with a kind of necessary condition that an interest has to meet in order to be a collective right. It is a normative principle that can guide us in determining whether a given collective interest is a right. A society might have a collective interest in becoming wealthy, but that would not constitute a right, because it is not necessary to be wealthy in order to self-determine and thus to maintain its institutional integrity. It is because peoples have institutional identities that self-determination, understood as maintenance of institutional integrity, is related to identity, and this is what makes it possible to discriminate between collective interests that are rights and those that are not. So here is how we can derive a right to self-determination for peoples from political liberalism: 1 In the institutional sense of the expression, peoples are individuated on the basis of their institutions and cannot survive except through those institutions. 2 Peoples are moral agents and autonomous sources of valid moral claims. 3 As institutional agents in the political realm, they have the right to be respected and thus to exist, and to maintain and develop themselves. 4 The right to self-determination is the right of preserving and developing their institutions. 5 Ergo, peoples have the right to self-determination. To put it differently, since peoples are sources of valid moral claims, they have the right to maintain their identity as a people. Since that identity is institutional, they have the right to preserve their in-

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stitutional identity. But this precisely amounts to claim their right to self-determination. The right to self-determination is often understood as a right to selfgovernment, but this is only one specific political interpretation of the right. The reason these two rights tend to be conflated is that the best way for a people to survive institutionally is to exercise some political control over its own institutions, and this may often be interpreted as requiring self-government. However, a people can demand the maintenance of its institutional identity without demanding governmental autonomy. The Acadian people has a non-governmental institutional identity, and it does not wish to demand such political control in order to maintain its identity. Yet it would never want to give up its right to self-determination. Whether or not the good demanded is a set of governmental institutions, it is indeed an institutional good. Demanding the good amounts to claim the right to self-determination.

the right to internal and external self-determination The right to self-determination for a people is similar to the right to freedom for a person. Just as persons have the right to be free, peoples have the right to self-determination. All specific objects of rights that can be demanded by peoples are specific instances of this general right. Persons have the right to maintain their physical integrity, to develop their capacities as citizens (freedom of conscience, thought, expression, and association) in the political realm, and to exercise their political freedoms creatively (e.g., they have the right to vote, participate in the deliberation process, and be appointed to positions involving political responsibilities). In the same way, the right to self-determination for peoples can be broken into specific rights to maintain, develop, create, and control their own institutions. This can lead to ancestral rights, the right to self-government, the right to adequate representation in the state assembly, the right for a special juridical status among different federated states, the right to asymmetrical federalism, the right to have one’s own constitution, the right to establish language laws, rights to equal economic development, rights to develop one’s natural resources, and so on and so forth. However, there are at least two sorts of rights to self-determination: external and internal. The right to external self-determination is the

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right to have its own state or the right to be part of the state of its choice. It may apply to peoples who already own a state as long as they behave in accordance with a law of peoples and recognize their own internal minorities. Indeed, certain peoples who own a state do not deserve to have one and therefore do not have the right to own a state, given their behaviour in systematically violating the collective rights of their own minorities. The right also often involves violation of the territorial integrity of a state. It is so for those peoples who did not have a state in the first place, but would have a right to secede, given the failure by the encompassing state to recognize them. Territorial integrity can also be violated, not in order to create a new state (right of secession), but to create links with another existing state (right of association). As we just saw, the right to internal self-determination means the right for a people to develop economically, socially, and culturally within the encompassing state. It is also the capacity to determine its political status within the encompassing state. This right may concern the entire population of a state, but it may also involve a minority people within that state. Since peoples are defined institutionally and are sources of valid moral claims, they have a basic right to internal self-determination. Stateless peoples that are almost entirely encompassed within the borders of a state automatically also have such a right.2 This basic right is not a remedial right. That is, what is in question is a right that exists even if the people suffers no injustice. Even if the people’s institutions have not been destroyed by the encompassing state and the encompassing state has not violated any human rights and no annexation has taken place, the people still has the right to internally self-determine itself within the encompassing state, which means that the encompassing state has specific obligations that are unrelated to the duty to repair some wrong that was done in the past. At the institutional level, the right can be translated in many ways. Internal self-determination can be given a weak meaning, a canonical meaning, and a robust meaning. In the weak sense, it implies that the people has the right to elect its own representatives within the encompassing state, that a large proportion of the representatives have to be members of the people, and that they can play an important role in the government of the encompassing state. This is consistent with the idea that the people might not have its own governmental institutions within the encompassing state. In the canonical sense, internal self-determination implies a certain form of self-government, such

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as that of a federated state in a federation, a region in a quasi-federal state, or a government designated by virtue of an administrative devolution of powers in a unitary state. In the more robust sense, internal self-determination applies to a federation, a quasi-federation, or unitary state that already includes a number of equally existing autonomous governments. It would mean that the state has to carve out made-to-measure constitutional arrangements for the people. Specifically, this means that each people would be given a constitutionally recognized institutional arrangement tailored to it within the encompassing state. Examples of this are giving special juridical status to the government of the people in question, asymmetrical federalism, decentralization of specific powers, fiscal decentralization in favour of the political entity, limitations on the encompassing state’s spending power, rights to international representation with respect to issues that fall under the jurisdiction of the autonomous government, etc. In this ultimate manifestation of internal self-determination, what would be in question would no longer be simply rules concerning the existence of an equal autonomous government. It would involve a very sophisticated, unique form of self-government. The people’s existence would be enshrined in the constitution, and the specific arrangements for the people would be identified. The people would therefore be given a different institutional status within the state. As we can see, these are very different interpretations of the principle of internal self-determination. We could add that the right also implies a right to participate in the constitutional conversation and a right to write one’s own internal constitution. Roughly speaking, the different implementations of the right to internal self-determination would then fall into at least five distinct categories: political representation, participation in constitutional conversation, self-government, internal constitution, and special juridical status. Unfortunately, international law recognizes only one category of internal self-determination, namely political representation, but this view is extremely reductive and blatantly unsatisfactory. Are these five distinct interpretations of the same right? Which is the right one? I think that we do not need to choose between these interpretations, because they can be understood as variations on the same theme and as contextualized translations of the same idea. They translate the same idea differently in different contexts. In a unitary state in which two national groups are of the same size, the weak version may suffice, because the groups would be represented by an equivalent num-

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ber of representatives and ministers, and no imbalance would occur. We would then have a consociational arrangement. In a very large country with very different socio-economic regions, the canonical interpretation might be preferred. It might be important to ensure that peoples have autonomous governments so that they can self-determine. This might take the form of federal, regional, or devolutional types of substate arrangements. In a unitary state where a stateless people is in a minority and where the remaining part of the country forms a majority agreeing on fundamental issues, or in a regional or federal state where the minority people is situated in only one of the regional/federated states, the robust interpretation may be required. We could say that stateless nations are automatically eligible to each of the five forms of internal self-determination mentioned at the end of the previous paragraph. However, from one country to the other, there would be different ways of implementing the principle, depending on the context and what is requested by the stateless people. I said that self-determination often takes the form of self-government. This is reflected in both external and internal self-determination. External self-determination is equivalent to the possession of a sovereign state. It is the most complete form of self-government. Internal self-determination involves mechanisms that do not go so far as full, complete political autonomy.

buchanan’s theory Let us now look more closely at issues related to the right to external self-determination. As I said, this is the right to own a state, but very often, authors associate it with one of its instances only, namely the right to secede. So let us closely look at this right. According to Allen Buchanan, there are two main theories of secession: “primary right” theories and “remedial right only” theories. Primary right theories stipulate that some groups may unilaterally secede in the absence of past injustice. Remedial right only theories suggest, on the contrary, that unilateral secession can be justified only if an important harm has been caused to the seceding group by the encompassing state before they decided to secede. Buchanan subscribes to the remedial account of secession. He believes that no group, not even a people, is entitled to secede if it has not been subject to moral harm. He also believes that peoples are not unique among all cultural groups and are not even entitled to a general primary right to internal self-determination. So a fortiori, they

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do not have the right to unilaterally secede unless they are victims of prior injustices. In what follows, I shall criticize Buchanan’s version of the remedial right only theory. I shall then develop an alternative account. I agree with Buchanan and against primary right theories that peoples do not have a primary right to secede. But, against Buchanan, I argue that peoples are unique among all cultural groups. They are special among all groups for reasons that were already discussed. They are the subjects of a general primary right to internal self-determination, that is, a general right to be free and equal within the encompassing state. The right to internal self-determination is the right of a people to “dispose of itself.” The right to secede is the right to violate the territorial integrity of the encompassing state. I believe that there are prima facie good reasons for resisting the idea of a general primary right to secede, and that the general right to selfdetermination can be given adequate expression by acknowledging the existence of a primary right to internal self-determination. The existence of many ties that bind stateless peoples to the encompassing state invites us to think that secession involves important changes that can be justified only if the seceding peoples have suffered important injustices. Consequently, there should be only a remedial right to secession. But since I accept a primary right to internal self-determination, this account allows me to enrich the list of just causes for secession. Buchanan’s own list of remedial considerations is much too conservative. He accepts only a limited list of remedial conditions. Violation of the primary right to internal self-determination is, in my view, an additional just cause for seceding. I shall also want to argue in the next chapter that this alternative version of the remedial right only theory meets the constraints, imposed by Buchanan himself, upon the institutionalization of the principles governing secession. In the end, it will appear that my own version of the theory fares much better than Buchanan’s in satisfying these constraints. The most important difference with Buchanan is perhaps that the right of external self-determination is under my account not just the right to secede. It is the right to own a state, and it also affects peoples that already own a sovereign state. The remedial theory of secession is just one instance of a general theory stipulating that peoples must comply with certain moral principles in order to exercise their right to external self-determination. In the case of stateless peoples, this means that secession must be remedial. In the case of a people that already owns a

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state, it means that it must recognize the right to internal self-determination of its constitutive peoples. If does not do so, then it does not have the right to own the state. This generalization avoids the criticism that has often been levelled against Buchanan, namely that he has a prejudice in favour of existing sovereign states. It is not true of my own account, because the just cause theory of external self-determination that I am advocating applies as much to sovereign peoples as to stateless peoples. The right of a stateless people to secede is justified by the failure of the sovereign people to comply with its moral obligation to respect the right to internal self-determination of its stateless peoples. Buchanan holds that cultural groups may instrumentally acquire a moral value for individuals and can, for this reason, be subjects of collective rights (Buchanan 1994, 2004, 410–15). They acquire such an instrumental value because they are social goods for individual agents. For this reason, cultural groups are entitled to cultural protection. Buchanan also holds that peoples are just one among many other cultural groups (religious, linguistic, immigrant, ideological, etc.), and, as such, they do not deserve to have rights not granted to any other groups, and this includes the right to self-determination (Buchanan 1998b).3 As a matter of fact, no group has a primary right to internal self-determination, that is, a general right similar to the right that persons have to be free and equal. Buchanan also rejects the idea that peoples, or any other cultural group, for that matter, could have a primary right to secede, that is, a general right to violate the territorial integrity of a state and one that they would have in the absence of past injustice. However, all cultural groups could legitimately secede if there were a special right to do so, that is, some kind of privilege, similar to a special provision occurring in a particular contract. In this case, the contract would be a constitution. More importantly, and this is what I want to discuss in the remaining part of this chapter, cultural groups could legitimately secede if it was necessary to rectify some past injustice. It is this last case that allows us to talk about a remedial right to secede. In most of his writings, Buchanan accepted two fundamental remedial motivations: systematic violations of human rights (as with the Kurds in northern Iraq) and annexation of territories (as with the Baltic states in the former ussr). In these cases, secession would be acceptable only if there were no other solutions and if these motivations were not overruled by other more important moral concerns. In his later works on the subject, Buchanan has added a further condition (2003, 2004). This new condition stipulates that a people is en-

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titled to unilateral secession when confronted with the state’s persisting violation of previous agreements affording a minority group some limited form of self-government within the state (2004, 357–9).4 If, for instance, the constitution enshrines a special right to intrastate autonomy agreements, which would be similar to a special clause in a contract, and if the encompassing state systematically violates this special agreement, this would provide further moral justification for secession. Violations of past agreements on self-government, such as in Kosovo, could prima facie count as good reasons for secession (Buchanan 2004, 357). But even if Buchanan adds this additional remedial condition, there is still no primary right to secede, and there is still not even a general primary right to internal self-determination. There are just special rights or general remedial rights. It is also important to emphasize that Buchanan’s remedial right only theory concerns only the grounds for a unilateral right to secede. Buchanan is willing to recognize that consensual secessions are morally permissible, even in the absence of past injustice. That is, he has nothing to say against secession that results from negotiation, deliberation, and agreement between the different parties. So let us focus only on a general right to secede as opposed to a special right, and be concerned only with unilateral secession, as opposed to a negotiated agreement reached between a seceding people and the encompassing state. Like Buchanan, I am favourable to a general remedial right to unilateral secession but, contrary to Buchanan, my account implies that peoples are somehow unique and entitled to unique rights.5 I am committed to the existence of a general primary right to internal self-determination for peoples, as distinguished from a primary right to secession as such, and committed to treating violation of this right as a just cause for seceding. Peoples have a basic, general right to self-determination, but the crucial question is whether that right is internal or external. I am supposing that it is only an internal right. Stateless peoples do not have a basic general right to external self-determination. I think that peoples do not have such a basic right, and one reason is that different forms of internal self-determination can capture the substance of the right to self-determination. The right to self-government can be satisfied by the institutionalization of a federated entity within a federation. The right to equal economic development can be provided by a certain degree of fiscal autonomy. The right to social development can be ensured by the grant of specific powers. The right to cultural development can be

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satisfied by complete power to regulate language, culture, telecommunications, education, and immigration. International representation can take the form of recognition of an international role for federated entities. Consequently, it is clear that external self-government is not the only way that the right to self-determination can be satisfied. If we adopt a consequentialist approach, we can even claim that the initial plausibility of granting a basic right to secession clashes with an international situation in which there are many hundreds of stateless peoples and dozens of multinational states. If stability is at stake and can be weighed against moral claims, we then have to renounce a basic right to secession. Peoples do not have a general, unilateral, basic right to external selfdetermination, in other words, a right to have sovereign political institutions. Even if, in theory, the ideal would be for all peoples to have their own states, moral principles cannot be adopted without taking into account consequences that would flow from their institutionalization. Stateless peoples do not have a primary, moral, general, unilateral right to external self-determination. As Buchanan (1998a) has shown, such a basic right to secession could not really be institutionalized. I will come back to this in the last chapter. However, stateless peoples have a general, unilateral, basic right to internal self-determination. We need only accept a secession right conceived of as a remedial right. If the encompassing state refuses to give a minority people representation within its institutions or violates the rights and freedoms of its citizens, or annexes the minority people’s land, or goes against constitutionally enshrined principles concerning the intrastate autonomy of the minority people, then that people has the right to secede. Even more importantly, minority peoples have a right to secede conceived of as a remedial right if their encompassing states violate their right to internal self-determination. This is an idea also defended by James Tully (2006, 163). In short, I have three basic criticisms of Buchanan. 1 Peoples are special insofar as they are among the ultimate sources of cultural diversity, identity, and political stability. 2 They alone have a general, unilateral, basic right to internal self-determination. Consequently, they enjoy this right even if no past injustice has been inflicted upon them. They have this right to recognition because we have established their instrumental role in maintaining political stability. The fact of having a right to self-

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determination is equivalent to having the right to preserve the group’s identity as a people. 3 Even though this theory is, as in Buchanan’s work, a theory about remedial secession, unlike him I accept that violating the right to internal self-determination is an additional justification to exercise a remedial right to secession (in addition to lack of representation in institutions, unjust annexation of territory, human rights violations, and violation of intrastate autonomy agreements).6

many sorts of collective rights? I have mainly examined one general object of collective rights: the right to self-determination. However, this object of collective rights can be approached from many different angles and it gives rise to several sets of specific rights. Indeed, it should be noted that the right to internal selfdetermination often takes the form of a right to economic, social, and cultural development within the encompassing state. We can also speak of cultural rights that peoples can claim, as can be seen from the Convention on Cultural Diversity, and of socio-economic rights, such as the right to have sufficient infrastructure to develop its own natural resources. We should also be able to speak of a right to equal treatment on both the socio-economic (equal development) and cultural levels (equal value of cultural structures). Finally, there are rights of peoples to be recognized in their difference (difference principle and politics of difference). Ideally, these specific distinctions and ramifications of the right to self-determination must not be left uncommented upon, and, in conclusion, I would like to deal with certain important features that they exhibit by making other important distinctions. We have to distinguish the rights of peoples from the rights of national groups such as contiguous and non-contiguous diasporas. Peoples occupy territories in different ways. If it is co-extensive with a country, a people can occupy all of the land of a sovereign state. It is the case for civic peoples and multi-societal peoples. However, there are also majority peoples, such as the Flemish in Belgium or the English in Great Britain, and minority peoples, such as the Walloons, Scots, and Catalans. Minority fragments of peoples occupy land as an extension of a neighbouring national majority or neighbouring people, in other words, as a contiguous diaspora, as is the case of the Russian minority in the Baltic countries, the Serbian minority in Bosnia, and the Palestinian minority

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in Israel. Minority fragments of peoples can occupy land as minorities resulting from immigration and as historical minorities that still maintain close links with a distant national community. Despite this very great diversity, in the end there are only three cases that need to be considered, and consequently only three types of collective rights to introduce: 1 internal and external self-determination rights for peoples, whether or not they are sovereign, and whether or not they form a majority; 2 the institutional rights for national groups understood in the sense of contiguous diasporas; and 3 poly-ethnic rights for non-contiguous diasporas, whether they are historical minorities or minorities resulting from immigration. Will Kymlicka has already recognized two of these kinds of rights: self-determination rights for peoples and poly-ethnic rights for immigrant groups. In Kymlicka (2007), he introduces a separate category of rights for indigenous peoples, distinct from the rights held by the other sorts of peoples that he calls “national minorities.” Under the present account, I use the word people to refer both to indigenous peoples and to “national minorities” in Kymlicka’s sense. I also treat as “peoples” national groups such as the English and the Flemish that form majorities in a sovereign territory. I also consider the citizens in a sovereign country as peoples. So my concept of a people is not restricted to stateless “national minorities” that are not indigenous. It encompasses a wide variety of national groups, since I recognize the existence of at least seven different sorts of peoples. However, these must not be confused with contiguous diasporas. I am introducing an intermediary category between peoples and non-contiguous diasporas, to recognize the distinctive nature of minorities that are related to a national community located nearby. Such groups have the right to greater protection than immigrant communities, because in general they have different needs, but they are not peoples with self-determination rights. Communities resulting from immigration and other non-contiguous diasporas can be the objects of policies of cultural pluralism, such as multiculturalism or inter-culturalism, while contiguous diasporas are entitled to various institutional rights. At first sight it thus seems possible to neutralize the problem raised by the different ways that national groups occupy areas in different countries. We need accept only three

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distinct categories of rights corresponding to three major categories of national groups. As peoples, diasporic peoples and multi-territorial peoples do have self-determination rights that need to be defined. However, this issue is also related to the problem raised by contiguous diasporas, because these are sometimes integral parts of a multi-territorial people, such as the Kurds. In this case, we have to provide them with institutional rights within each sovereign territory and with self-government rights for the whole multi-territorial people. In the same way, a non-contiguous diaspora community can sometimes be part of a diasporic people. In this case, we have to adopt policies of cultural pluralism within each sovereign territory and self-government rights for the diasporic people as a whole. The problem that arises when we treat these three sorts of national groups (peoples, contiguous diasporas and non-contiguous diasporas) differently is that it seems to lead to discrimination among these groups. However, this is not the case. The right to self-determination and more specifically the right to self-government applies to all peoples, whether or not they are sovereign, and supposes a complete set of protective measures. Whether what is in question is a sovereign state or a non-sovereign government, the rights concern political powers. In contrast, contiguous diasporas cannot, in general, claim such powers and instead have institutional rights as a general rule while remaining under the authority of the host community. The institutional goods include schools, colleges, universities, hospitals, social services centres, etc. Non-contiguous diasporas can demand some protection by virtue of a general policy of cultural pluralism. Is this unjust? In order to show that no injustice is implied by such differentiated treatment, we first have to remember that the present approach rigorously defends the equality of all peoples, the equality of all contiguous diasporas, and the equality of all non-contiguous diasporas. We have to remember that each group enjoys the differentiated protection that is given to other groups in its category. For example, the fact of having greater rights for the people of which it is an extension provides a contiguous diaspora with indirect protection insofar as it ensures a certain cultural vitality.7 Since the people from which it is an extension is protected by self-government rights in a contiguous area, the community’s identity is made more stable. Thus, to assess the degree of protection given to a contiguous diaspora, we have to take into account not only the institutional protection that it

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has been given as such, but also the protection given to the neighbouring national majority. If, as I recommend, the latter has the right to determine its own government, this has to be taken into account in our assessment of the protection given to the contiguous diaspora. The latter is an indirect beneficiary of the protection provided to the entity of which it is an extension. Therefore, in order to truly measure the protection given to a contiguous diaspora, we have to examine the combination of the neighbouring national majority’s right to selfgovernment and the community’s institutional rights properly speaking. In the same way, a policy of cultural pluralism for non-contiguous diasporas seems to provide an even weaker set of protective measures, and this can also initially make it appear as if they were being treated unfairly. There is no promise to provide immigrant communities with specific institutional goods, such as schools and hospitals. At most, there is a commitment to promote the language and culture of the concerned groups in a general way, in exchange for their integration into the host community. This can mean applying measures exempting certain groups from complying with a certain calendar of holidays. It can mean regulations permitting reasonable accommodations on clothing, and it can mean anti-racism policies, participation quotas in government, and even negative freedoms enabling groups to adopt institutions of their choice. Finally, it can mean tolerating non-liberal (but not anti-liberal) practices that members of the group voluntarily choose. Nonetheless, all of this is weaker than the institutional rights of contiguous diasporas and the rights to self-government of peoples. However, once again, to fully understand the logic underlying my reasoning, it has to be kept in mind that all immigrant groups are equal to all other immigrant groups. In addition, to describe all of the relevant measures pertaining to immigrant groups, it has to be added that the countries of origin of immigrant communities have full rights to self-determination. In our day and age of telecommunication and social networks, where immigrant groups continue to maintain strong links with their country of origin, the right to self-determination of these countries is an additional safeguard for them. The only difference is that, as with contiguous diasporas, the poly-ethnic rights of immigrant communities are under the political control of the host community. However, if that community applies a policy of cultural pluralism similar to the one I have just described, the basic interests of the non-contiguous diaspora will be respected.

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All of this amounts to guaranteeing national groups a complete set of equal basic rights. With the three sorts of rights, we provide equal protection for peoples, their contiguous diasporas, and their noncontiguous diasporas. Each of these groups benefits directly or indirectly from the equal protection that is given to the various sorts of groups.

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9 The Institutionalization of Collective Rights

As we come to the end, we need to identify another set of problems. They all concern the issue of institutionalizing collective rights. The most serious problem in this respect is related to the tensions that might arise between a society’s majority and minorities if rights are given to the society as a whole. Can a system of collective rights be institutionalized without any negative effects on internal minorities? After all, it could be a magnificent idea on paper but have harmful consequences when applied. For example, are those who want to promote collective rights for peoples able to recognize the fundamental diversity of their own society, which makes it very difficult to describe in just one way? Are we not always condemned to postulate homogeneity when we attribute collective rights to a group? These are some of the questions that can be raised when thinking about the institutionalization of collective rights. Some might be inclined to recognize that the argument I have been making throughout this book has some merit, but nonetheless object to institutionalizing collective rights because of a whole new set of considerations related to social stability. In short, we need to distinguish moral rights from positive or legal rights, that is, those contained in constitutional texts. The argument I have presented so far offers justifications for moral collective rights, but not necessarily for legal rights. I may have succeeded in evading a relatively large number of problems so far, but I may not yet have fully passed the test of institutionalization. This is the issue to which I want to devote most of this last chapter.

from moral rights to legal rights In the preceding chapters, I managed to close in on the nature of collective rights. They are rights possessed by peoples, they concern goods

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claimed, produced, and mostly consumed by groups (even if individuals may also benefit individually from the good), and they are related to the maintenance, development, and creation of collective institutions that make it possible to guarantee a people’s integrity and identity as a people. They are thus institutional, collective, identity-related goods. I have taken much inspiration from the work of Denise Réaume and Charles Taylor in order to grasp the true nature of the objects of collective rights, though I do not claim that they are intrinsic goods. They have value only through the instrumental role that they play in political stability. In order to adopt this perspective, we have to renounce ethical individualism, espouse political liberalism, and avoid committing ourselves to communitarianism. We have also seen that these collective goods all involve, in one form or another, a right to self-determination. Have I completed my task? Not yet. We need to distinguish between moral rights and legal rights. Moral rights are justified philosophically on the basis of general principles, but the question remains whether their institutionalization can be authorized. I now propose to examine two arguments against enshrining collective rights for groups. This time, the idea of collective legal rights will be under attack. From the very beginning of this book, I have been concentrating only on the problem of collective moral rights, without reflecting on specific arguments that could emerge once we reached the stage of their institutionalization in the form of legal rights. But sooner or later we have to face the suggestion that it could be better if we were to leave moral collective rights in the informal sphere of civil society. This would be a way of recognizing collective rights without enshrining them in a constitution. The first argument against institutionalizing collective rights that I want to examine comes from Michael Hartney (1995). The other argument is inspired by considerations from Allen Buchanan (1998a) and applies essentially to the idea of incorporating a right to secession in a constitution. Hartney defends a radical argument against collective legal rights. He holds that admitting collective moral rights would be sufficient to make these rights legal. However, since there are no collective moral rights, we cannot justify their existence in a constitutional text. We thus have to avoid constitutionalizing such rights. It is important to note that we can accept special legal collective rights without moral justification, but only for prudential reasons. However, Hartney’s argument concerns the possibility of enshrining moral collective rights. Hartney

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argues that if there are moral collective rights, then there is sufficient reason to enshrine them. The problem is, once again according to him, that no such rights are forthcoming. Hartney notes that, generally, we have to distinguish three sorts of interests: interests that do not engender moral rights, interests that engender moral rights, and interests that engender legal rights conceived of as rights that we can institutionalize. Some interests can entail obligations, but nonetheless do not generate rights. According to Hartney, for there to be reasons to accept certain rights, there also has to be moral justification. For example, there can be an interest in preserving the culture of a group, and that can engender an obligation to preserve the group’s culture. However, this does not mean that the group has the right to have its culture preserved. A moral reason has to be given. The moral justification for protecting the group’s culture is, according to Hartney, that the individual gives greatest importance to protecting his or her culture. Once the moral reason has been formulated, we can then speak of rights. However, the moral reason involves individual interests. The subject of the right is therefore the individual (Hartney 1995, 212). This is why there are no collective moral rights. Ethical individualism does not make it possible to engender collective moral rights. In the end, it will always be a question of individual rights. Finally, Hartney argues that the only admissible legal rights have to be moral rights. The conclusion is thus that there cannot be collective legal rights. Linguistic, religious, and ethnic communities are intermediaries between individuals and government. Those communities cannot have interests that are separate from those of their members, unless they can have interests that go against the interests of their members and against the government. However, according to Hartney, no such collective interests can be consistent with value individualism (Hartney 1995, 217). There are also no rights held by society as a whole that can contradict individuals’ basic rights. The common good can be invoked, but it cannot trump individual rights (ibid.). Hartney began by wondering whether communities have rights. This led him to ask whether there could be rights that are not individual. This last question can be posed in relation to the object of, the interest in, and the exercise of a right (Hartney 1995, 218). (1) Hartney accepts that there are certain “group rights,” but they acquire moral value only through the benefits they bring to individuals. (2) For him, collective interests are aggregates of individual interests and thus entail only individual rights. (3) A right can be exercised collectively, even if it is not a

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collective right. There are thus no rights that cannot, in principle, be held by individuals. This means that, from the conceptual point of view, there are no moral rights that apply to collective entities (219). That being said, as soon as we accept that the true subjects of rights are individuals, Hartney has no objection to speaking about “collective rights” to describe certain rights held by individuals. We can accept that the object of a right is sometimes collective (though the interest is justified on individualist bases), that the interest involved is collective (though it remains an aggregate of individual interests), and that the right is exercised collectively (though this is compatible with the idea that the real beneficiary is the individual). These provisos do not change much with respect to the bottom line. On the substantial level, rights remain individual: they are claimed and possessed by individuals, and justified on individualist bases. More generally, Hartney accepts (1) that communities are important for the well-being of individuals. He also accepts (2) that it is possible to give legal rights to communities, but says that the true subject of rights is not the group, but a legally defined corporate body. Finally, he accepts (3) that the members of a community can have moral rights to the protection and preservation of their community (Hartney 1995, 220–1). However, groups as such cannot be subjects of legal rights, and this is for reasons of principle: a prerequisite is that they be subjects of moral rights, and they cannot be. If we consider existing legal rights that are not individual rights, our attention is drawn to corporate rights. Hartney recognizes that in the sociological sense, a corporation is a group, but it cannot act collectively, possess property, or enter into contracts as a social group. In the legal sense, it can do all of these things, but then at that level it is not a group. In such cases, it is a corporate body in the legal sense: a fictional person. Many legal rights that are considered collective are in fact those of corporations. The argument in favour of collective rights confuses those two levels. It goes as follows: 1 Corporations and states have legal rights. 2 Corporations and states are collective entities. 3 Thus, some collective entities have rights. In the sociological sense, (1) is false and (2) is true. In the legal sense, (1) is true but (2) is false. The argument is thus fallacious because it makes use of expressions that do not have the same meaning from one premise to the next (Hartney 1995, 215).

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We have just seen that the rights of corporations can be accepted and involve legally defined corporate bodies. However, can we not admit the logical possibility of legal collective rights? Hartney considers the two following theses: 1 Religious, ethnic, and linguistic communities can be important for the well-being of their members. 2 It is conceptually possible to give legal rights to these groups (Hartney 1995, 216). To go from (1) to (2), we have to establish that groups have collective moral rights, and we are not able to do so. But can we not accept at least the logical possibility of collective moral rights? Hartney thinks not because: 1 In the strong sense, moral rights protect goods and interests that are of fundamental importance to the well-being of individuals by imposing rights and obligations on others. 2 Individuals have moral rights in relation to other members of society and the government. Some collective goals may be morally important, but governments nonetheless have no moral rights in relation to citizens (Hartney 1995, 216). In sum, Hartney accepts that there are legal rights held by corporations, but he concludes that, from the legal point of view, corporations are not collective entities. Next, he wonders whether we can give legal rights to legal entities insofar as they are collective entities from the sociological point of view. Hartney’s response to this question is negative, because it would suppose that such collective entities would have collective moral rights. Yet they cannot have them, because moral rights actually serve individuals, and governments have no moral rights in relation to individuals. I think that Hartney’s arguments are decisive, irrefutable, and compelling if the only acceptable version of liberalism is the one based on ethical individualism. Thus, paradoxically, I am in agreement with him on a number of points, because he shows the close connection between value individualism and the rejection of collective rights. However, as I have shown, there is a political version of liberalism that can welcome collective entities and make them moral agents once they have been apprehended in terms of their institutional identity. Political liberalism

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recognizes peoples that enter the public space with the institutional identity of a national societal culture. Hartney failed to consider political liberalism and the possible disconnection of liberalism and ethical individualism. He also failed to acknowledge the existence of peoples that have an institutional or quasi-corporate identity. Quite apart from sociological collectives and individual legal bodies, there are populations that are partly individuated by a set of institutions that binds people together. The institutional identity of a people has nothing to do with the legal identity of a corporation. The Scottish, Welsh, Catalonian, Basque, Flemish, Corsican, Alsatian, Acadian, and Quebec peoples have a presence in political space as distinct societal cultures, and this is so whether or not they are formally recognized in a constitutional text. But neither are we taking a position on the ontological status of peoples. Rather, we are simply acknowledging their distinct institutional identity in the political realm. And since we have freed ourselves from ethical individualism, moral justifications do not have to be individualist. In the framework of political liberalism, individualist scruples are no longer justified. We need only accept a balanced regime of individual and collective rights to take into consideration the valid moral claims of citizens and societies. The upshot of previous chapters is that we have been able to redeem collective moral rights. Now, recall that, from Hartney’s point of view, if we manage to do this, we create conditions favourable for incorporating such rights in a constitution. This is precisely what I have done. However, we are now going to see that there can also be objections to enshrining a collective right to self-determination. Hartney’s argument against collective legal rights is based on moral principles that flow from his penchant for what he calls “value individualism.” However, there is another way of framing the problem of incorporating moral rights in a constitutional text. We can legitimately describe the problem as flowing from considerations related to social stability. A moral right can seem a priori legitimate and appear attractive to accept as a moral right, but practical considerations can lead us to revise our initial judgment. For example, should we institutionalize a general, unilateral, primary right to self-determination? The question can be split into two distinct parts, depending on whether what is at issue is internal or external self-determination. A primary right to secede probably cannot be easily institutionalized, but we can think that the primary right to internal self-determination is a rule that, if institutionalized, would lead to the greater stability and sustainability of

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multinational states. It would set limits on the encompassing state’s nation-building endeavours, but it would also help to defuse the separatist impulses of minority nationalists. What about the slippery slope argument? If granting internal self-determination rights (right to self-government, to participation in constitutional conversation, to political representation, to an internal constitution, to special status entailing asymmetrical federalism, opting out with financial compensation, etc.) leads, in the end, to secession, why recognize such rights? I agree with Kymlicka that even if the slippery slope argument were valid, stability would nonetheless be guaranteed in another way. In fact, it would be a way for secession to occur progressively in a peaceful manner. However, I do not think that the slippery slope argument is valid. Indeed, I think that we probably have to be wary of this argument, because it looks like a pretext for refusing formal recognition and gives free reign to state nationalism. Should we enshrine in the constitution a primary right to internal selfdetermination and a right to secession conceived of as a remedial right? The resistance to do so may have its source in the fear that this presupposes essentialism. Is there not a danger of reifying peoples by constitutionalizing their rights? But the problem arises no more for peoples than it does for persons. We saw that peoples live and die like persons. National self-images change over time, just like the self-representations of individuals. The right to internal self-determination can change, depending upon context and time. The same goes for persons, since rights to abortion, euthanasia, and assisted suicide are partly functions of the evolution of our concept of a person. These changes are consistent with enshrining principles in a constitution, so long as we do not view the constitutional text as sacred. It is only because we see it as a sacred text that we are inclined to expel from it the shifting entities that are peoples – although once again the same remarks could be made concerning persons. Enshrining principles is consistent with the dynamic nature of identity so long as we accept the dynamic nature of constitutional principles themselves. A constitution is supposed to be like a living tree. It must not be a straitjacket. Constitutions are not eternal; they evolve over time in accordance with our conceptions of persons and peoples.

buchanan’s theory under scrutiny I am now coming to remarks concerning the institutionalization of the right to external self-determination. Buchanan correctly rejects the pri-

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mary right theory, which supposes a right to secede even if there has been no injustice made against the stateless people. Here, I want to concentrate on one of Buchanan’s criticisms. According to him, institutionalizing the primary right theory inevitably leads to insurmountable difficulties. Buchanan compares his remedial right only theory of secession with some primary right theories according to which peoples, as such, have a collective right to self-determination and are entitled to secede on the basis of their attributes, even in the absence of past injustice, as in the attributive primary right theories of Avishai Margalit and Joseph Raz (1990), as well as Margaret Moore (2004). He also criticizes associative theories that do not necessarily target peoples and that do not necessarily invoke a right to self-determination. Nevertheless, these are theories purporting to show that, under certain circumstances, a population in which individuals exercise their right to vote on secession could be entitled to secede, even in the absence of past injustice. In this case, secession is justified on the basis of a democratic decision to do so, as in the associative primary right theories of Harry Beran (1984) and Christopher Wellman (1995). I want to concentrate on one specific argument formulated by Buchanan against primary right theories. The criticism affects both versions of the primary right theory, and it is one that concerns the institutionalization of a primary right to secede. Specifically, it concerns the application of the principles governing secession in a constitutional order or in an international treaty. For a moral right to self-determination to be institutionalized, it has to be enshrined in the constitution of the country or in international law, and that very fact has to induce stability. If turning it into a legal right produces the opposite effect, there are grounds for rejecting it. According to Buchanan, there are four criteria that together determine whether a particular right to secede can be institutionalized (1998a, 237–9). The first criterion is that we must not contradict progressive principles of international justice (Buchanan 1998a, 237). Thus, the secession clause has to be in harmony with international law as we know it in its most progressive aspects. The second criterion is that the theory has to be minimally realistic. This criterion would be satisfied if the international community could accept the theory in the near future (ibid.). Third, institutionalization of the secession principle must not translate into general incentives to secede, which could cause instability at the international level (238). Finally, by virtue of the principle of moral ac-

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cessibility, the principle has to be formulated in a way that makes it compatible with the diversity of values accepted in various societal cultures. It has to be morally accessible to a very broad international audience, and consequently be consistent with a variety of values and points of view (239). Buchanan shows that the primary right theory fails the test of these four criteria. 1 The primary right to secession goes against progressive aspects of today’s law. Indeed, present-day international law arguably recognizes only one kind of right to secession, namely secession as a remedial right. The idea is that, in general, it is the failure to comply with fundamental basic rights that would justify secession. 2 It is not realistic to propose institutionalization of a primary right to secession. The international community will always oppose enshrining such a right. 3 Once enshrined, a primary right to secede would certainly establish unprecedented international instability. This would happen because there are many stateless peoples around the world. 4 Finally, it could be argued that primary right theories also fail to be applicable to a wide range of societies, at least when compared with Buchanan’s own account. He thinks that appealing to the violation of human rights as a source of justification for seceding is something that can be universally acceptable, given the universality of the un Charter of Human Rights. These are the objections raised by Buchanan against the institutionalization of a primary right to secede.1 By the same token, he supposes that his own theory of secession best meets these four conditions (1998a, 239–44). I tend to agree with Buchanan that his remedial theory of secession is in a much better shape than primary right theories. However, I will try to show that the modified version of the theory of secession as a remedial right, as described in the preceding chapter, is even more in line with the criteria proposed by Buchanan, while Buchanan’s version has numerous failings, even when it is assessed on the basis of its own criteria. So I now wish to criticize Buchanan’s theory using his own criteria. His first criterion concerns compatibility with progressive aspects of international law. He presents his own account as compatible with, but more generous than, the one accepted in international law. The reason

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is that he describes international law as restricting the right to secede only to colonial societies.2 But in fact, Buchanan’s account is in a sense more conservative than current international law. The first reason is that international law leaves the secession process partly in the political arena, even when no consensus is reached between the parties. Unilateral secession is not entirely constrained by law; that is, the process of secession is legally constrained only in some cases. International law does not license all cases of secession, but it also does not automatically treat cases that fall outside the law as illegal. Many cases of secession are neither legal nor illegal as far as international law is concerned. As we have seen, Buchanan acknowledges the possibility that two successor states could reach an agreement on secession quite independently of international law, but he does not seem to allow for unilateral secession to take place if it is not on the basis of his short list of moral principles. In international law, secession is, up to a certain point, to be assessed on a case-by-case basis. Of course, there are legal principles on the territorial integrity of sovereign states, but international law would also treat as sovereign a people that would assert its sovereignty after a democratic decision, if it were also able to exert control over its own territory and if it were able to get recognition from the international community. This is the ‘“principle of effectivity.” Applying the principle does not amount to licensing the exercise of a primary right to secede. It implies only that secession is to be left partly in the realm of political relations among peoples. The principle of effectivity comes after the seceding process has been achieved, provided that secession is supported by citizens, no minorities are oppressed, control is exerted over a certain territory, and the international community approves it. We could interpret the effectivity principle as a remedy that we must accept in the absence of a complete list of remedial conditions for secession. I share with Buchanan the hope that an international body could assist in the process of secession with the aid of a more comprehensive set of principles, and I am against the suggestion that the process of secession should be left entirely in the hands of sovereign states,3 but I do not think that Buchanan’s own list of principles is more progressive than actual international law, because the principle of effectivity could allow a people to secede on the basis of a just moral principle that we have not yet considered. Some nationalist movements could have very good moral justifications for seceding, and they could be inclined to make use of the principle of effectivity because it is the only way for them to achieve secession. It is true that the principle of effectivity also opens the

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door to all sorts of secessionist movements, including those that do not have very good moral credentials, but perhaps allowing the process of secession to take place in the political arena is an unavoidable outcome, in the absence of a more comprehensive set of seceding principles. Another reason, apart from the principle of effectivity, for saying that Buchanan’s account is more conservative than actual international law comes from the provisions included, for instance, in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, adopted by the United Nations in 1970.4 International law not only allows a people to secede if it is a “colony,” or if it is “oppressed,” that is, if it is under the domination of an external power. It also allows secession if various other conditions are met. In the Declaration on Friendly Relations among States, it is claimed that a people could be justified to secede if it were (1) under a colonial power, (2) if it were under the oppressive control of a foreign power, or (3) if its right to internal self-determination (however interpreted) were violated. By renouncing at least one explicit condition (condition 3), Buchanan appears to be even more conservative than actual international law. I shall return to this list of justifications for unilateral secession shortly, but for the moment, let us note that in addition to being more progressive than Buchanan’s, these provisions run against Buchanan’s ideas. The Declaration on Friendly Relations among States treats peoples as unique among all cultural groups, acknowledges that they have a primary right to internal self-determination, and recognizes that they could be entitled to secede if this right were violated. In other words, international law admits precisely what Buchanan rejects. So Buchanan’s theory does not seem to satisfy his own first criterion. Of course, he could insist that his own criteria must match only the “progressive” aspects of international law, and he could then rule out by fiat the violation of the internal self-determination by declaring it to be not a progressive aspect of the law. But the test of institutionalization, thus understood, would no longer be a test, for it would repeat the theory by stipulations instead of confronting it with independent data. I now want to return to the difficulties affecting Buchanan’s account in relation to the institutionalization of a right to secede. Buchanan’s theory commits him to saying that the remedial right to secede could apply to any cultural group and not only to peoples.5 As a result, Buchanan does not appear to satisfy the second criterion either. Indeed, the theory does not seem to be minimally realistic, be-

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cause one can doubt that the international community would ever want to grant a remedial right to secede to all cultural groups, instead of just to peoples. The United Nations has assisted selfdetermination for peoples in Eritrea, East Timor, and Western Sahara, but it has never favoured secession for cultural groups in general. Of course, one could question whether the new African countries that were created during decolonization were really united “peoples,” but for the purpose of the present argument, the important point is that the international community treated them as such. So it is clear that the international community would never accept that religious, ideological, linguistic, and immigrant groups could secede, unless of course they also constitute peoples. Violation of territorial integrity by cultural groups would be an instance of partition, not of secession.6 There may be some instances where there is no alternative to partition, but this has nothing to do with a right to self-determination.7 As far as the third criterion is concerned, the one related to perverse incentives, it can also be claimed that Buchanan’s remedial right account could itself lead to great instability. I believe it would do so for two opposite reasons: because it is in one sense too liberal and because it is in another sense too conservative. It is in a sense too liberal because it accepts a very large number of seceding groups. Imagine what would happen if, as suggested, there were no distinction between peoples and other cultural groups, and in particular no difference between minority peoples, contiguous diasporas, immigrant groups, linguistic communities, religious groups, ideological groups, etc. In principle, all those groups could be entitled to secede from an encompassing state. Imagine what would happen if all cultural groups were able to use secession as a threat in their power struggle against the encompassing state. It is clear that this would lead to great instability. Of course, Buchanan imposes a very strict list of justifications: violation of rights and liberties and unjust annexation of territory. But still, since there are clearly hundreds of places all over the world where rights and liberties are being violated, implementation of Buchanan’s ideas could themselves cause great instability. At the same time, Buchanan’s account is in another sense too conservative. A people that felt it was treated unjustly by its encompassing state would be inclined to see the three remedial conditions imposed by Buchanan as unjust. Some members of the community would come to believe that their national struggle could not be fought successfully

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within the framework of international law. It would convince some that the only remaining solution to their problem is violence. Finally, Buchanan’s theory does not seem to satisfy his fourth criterion either. His approach is individualistic. It focuses exclusively on violation of individual rights and freedoms. Because of this individualistic bias, it cannot clearly be described as morally accessible to the whole of humanity. Buchanan embraces ethical individualism, a doctrine that provides the foundation for a specific version of liberalism, which has its roots in the Western Enlightenment tradition. It is a comprehensive doctrine according to which (1) personal identity is prior to moral identity, (2) individuals are the ultimate sources of moral worth, and (3) autonomy is the most fundamental liberal value. It is not easy to see how this version of liberalism could be “exported” and imposed outside the Western world.

and the winner is? The theory that I propose scores well on Buchanan’s test. However, we have to accept that peoples are institutional entities that must be treated as moral agents and as sources of valid moral claims. They are agents with collective rights, and among those rights, there is the primary right to internal self-determination. I argue that violating this right is a major moral wrong that justifies secession. This theory works better than Buchanan’s on to the criteria justifying the institutionalization of a right to secession conceived of as a remedial right. Consistency with Progressive Aspects of International Law International law recognizes that peoples have a right to internal selfdetermination and that if this right is violated, there is justification for secession. The Declaration on Friendly Relations among States reasserts that all peoples have the right to internal self-determination: “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right, freely and without external interference, to determine their political status and to pursue their economic, social and cultural development and that every State has the duty to respect that right in accordance with the provisions of the Charter.” However, the key sentence of the declaration is, “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any

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action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.”8 A people cannot violate the territorial integrity of a state if the latter respects the equality and self-determination of its constitutive peoples. By doing so, the state would be representative of the whole population without distinction of race, creed or colour. All peoples have the right to self-determination and have the right to be treated equally. These are rights that peoples have to equally develop themselves economically, socially and culturally and to determine their political status within the encompassing state. If a state respects these principles, its constitutive peoples may not violate the state’s territorial integrity. However, the opposite also seems to be true. Violating any of these principles can legitimize secession. As far as the first criterion is concerned, my amended version of the theory of the remedial right to secede thus fares better than Buchanan’s own theory. It is more in line with progressive aspects of international law. One reason is that, pace Buchanan, peoples have rights that other groups do not have. Moreover, they have a primary right to internal selfdetermination. International law also recognizes that violation of the right to internal self-determination is a justification for secession. Buchanan does not mention this.9 We can even say that he is opposed to it, since he recognizes only three justifications for secession. Yet violation of internal self-determination is one reason that would justify secession by virtue of international law. A people can secede if it cannot self-determine within the state. Buchanan’s theory thus overlooks the right to representation within the state, the right to self-government, or the right to a special status and asymmetry. Therefore, even if we are in agreement with him that the right to secession is acceptable only as a remedial right, we do not have to restrict as he does the list of conditions justifying the exercise of this right. In addition to human rights violations, territory annexation, and breaking of prior agreements on intra-state autonomy, we have to add the violation of the right to internal self-determination (absence of an adequate representation, violation of the right to self-government, or failure to accept special status and asymmetry).10 By considering violation of human rights, historical annexation of territory, and breaking of prior agreements as the only

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possible wrongs, Buchanan takes a position that is more conservative than today’s international law. Minimal Realism The amended version that I propose does not have the defects of Buchanan’s theory. It supposes that only peoples can secede. It also supposes that peoples have a primary right to internal self-determination. Above all, my theory supposes that violating this right would justify secession. Is the international community disposed to accept such an arrangement? It should be noted that it has already assented to a declaration going in this direction. In the Declaration on Friendly Relations among States, the international community has already committed itself to it. I claim that the international community could eventually transform this declaration into a convention, and I believe that achievement of this prediction makes my secession theory a minimally realistic position. More precisely, there may very well be conditions that could convince sovereign states to accept normative principles governing any secession process. The reason is that the spread of democracy and globalization all over the world could create favourable conditions for other waves of secession. Stateless peoples could find democratic support for secession, knowing very well that they would be able to maintain their access to a large free economic market. This would destabilize sovereign states, and it is for this reason that they could be tempted to adopt a convention inspired by the 1970 declaration. Perverse Effects According to Buchanan, instability comes from hasty acceptance of the nationalist principle according to which each people should have its own state, a principle he rightly challenges. His position necessarily translates into the possibility of making sense of multinational states. However, it could very well be necessary to recognize that stateless peoples have a right to internal self-determination in order for them to agree to remain part of a multinational state. By rejecting the right to internal self-determination, Buchanan adds fuel to the fire and shows his favours for the status quo. He thereby creates the instability that he is seeking to eliminate. True, he suggests that there would be good prudential reasons for states to adopt intrastate autonomy arrangements.

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He simply denies that there is an obligation to do so. However, if sovereign states are not compelled to respect the right to internal self-determination, they surely will not take any such initiative. We have to accept something other than just poly-ethnic rights. In particular, we have to introduce primary rights to internal self-determination (including rights to adequate representation, self-government, and special status) as recommended in international law. Indeed, how can we expect a people to agree to yield its sovereignty to an encompassing state and also renounce the right to be recognized by that encompassing state? Is that not an ideal recipe for instability? There has to be no violation of human rights, no annexation, no disrespect for prior agreements, and no misrecognition. All these conditions may be required if one is to reach for the goal of stability, in addition to the goal of justice. In fact, instability can be created precisely because principles of justice are not met. The amended theory that I propose makes existing multinational states sustainable by attenuating instability within such states. Moral Accessibility Political liberalism welcomes not only societies that would be organized around individualist principles, but also societies that are organized around a communitarian conception of the good life or of the common good. In that sense, it is clearly more morally accessible than Buchanan’s account.

changing the criteria Buchanan (2004) gives up trying to include consistency with progressive international law in his list of criteria for institutionalization. This change of direction should not be surprising, because on a number of points his ideas are obviously in contradiction with international law, as we saw it. However, Buchanan adds two other criteria. The first concerns the capacity to claim land. To enshrine a right to secession in the constitution, we have to be able to agree on rules governing land claims. We also have to be able to agree on a set of principles governing the transition to sovereignty. Concerning the first problem raised by Buchanan, we can point out that, to a large extent, the seven different sorts of peoples that I have introduced are territorially defined. It is clear in the case of civic and

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multi-societal peoples, because their frontiers coincide with those of sovereign states. It is also clear in the case of socio-political peoples, the frontiers of which are determined by the boundaries of federated states in a federation, of regions in a quasi-federation, or of jurisdictions after devolution in a unitary state. Finally, ethnic, cultural, multi-territorial, and diasporic peoples are also all territorially concentrated. Their territories coincide with the territory that they physically occupy. But when they have justifications to secede, can they claim these territories? Here the principle of uti possidetis juris generally has to be followed in order to implement secession. It applies during the transition to secure stability during the seceding process. It is a principle of international justice. By virtue of this principle, after sovereignty, a secessionist state would retain the borders that it had before sovereignty. Of course, this principle will not always be easy to apply if the secessionist community does not have a legally defined territory before secession. However, in most cases, the principle can be applied concretely and unproblematically, as long as we adopt clear criteria for occupancy. For a stateless people without previous legally recognized borders, the adequate occupancy criterion would be determined by the physical presence of the people on the territory. The International Court of Justice applied the uti possidetis principle during decolonization. It was also applied when Yugoslavia and the Soviet Union were dissolved. It was applied in the negotiated separation of the Czech Republic from Slovakia. In sum, compliance with the principle of uti possidetis within transitional justice is a source of great stability and can be applied to decolonization, secession, dissolution, and negotiated separation. Of course, the countries that are formed following such secession, decolonization, and dissolution have sometimes remained very unstable, but the problem does not lie in the application of uti possidetis. The real problem is that these countries have not agreed to enshrine collective rights for their minorities in their constitutions. The principle of uti possidetis is not the only thing required to ensure stability of an area. Among other things, a regime of collective rights for minorities has to be set up, and minorities have to be able to exercise internal self-determination. The uti possidetis principle must have application in the context of transitional justice, but it is not a principle that can be invoked all the time. Minority peoples have a right to internal self-determination within a secessionist state, and if this right is violated, minorities will also have the right to violate the territorial integrity of the newly

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formed state. The solution to the problem posed by the presence of stateless peoples within a secessionist people rests on a delicate balance between the application of the principle of utis possidetis and the application of the rights of peoples to internal self-determination. The balance can be reached if the uti possidetis principle is meant to apply only during the transition. It is a principle of transitional justice, while the right to internal self-determination is a right that applies during non-transitional periods. Concerning the other new criterion of institutionalization introduced by Buchanan on the rules governing transition, we can take inspiration from advances made by the Supreme Court of Canada on the question of transition procedures. In its August 1998 Reference re the secession of Quebec, the Court ruled that the process has to be framed by principles such as those of democracy, rule of law, and primacy of the constitution, federalism and protection of minorities. A secessionist people must hold a referendum on a clear question, and the outcome must be a clear majority in the sense that there must be no doubt that the majority is absolute. Negotiations have to follow in order to divide debts and transfer powers, as well as to determine a possible economic union. These rules set out the transition process fairly concretely. Is my theory of secession based only on moral principles, or can it also pass the test of institutionalization? This is a question that our discussion of Buchanan’s theory now allows me to answer. My version of the remedial theory recommends enshrining a right to internal self-determination in the constitution and authorizes unilateral secession if the encompassing state violates that principle. Can this theory be institutionalized? We have seen four criteria for assessing the institutionalization of self-determination principles: consistency with the progressive aspects of international law, acceptability by states in a nottoo-distant future, the absence of perverse incentives, and moral accessibility. The reason why it performs better than Buchanan’s theory of remedial secession is that it establishes additional justifications, such as the violation of the basic right to internal self-determination. Of course, it is also a theory that recommends the creation of an international body responsible for enforcing the Declaration on Friendly Relations among States. That international body would have the responsibility to determine whether the state has formally recognized its stateless peoples in its constitution and if it has met those obligations. We cannot let the courts inside the country make those decisions, especially if the judges are not elected but rather appointed by the politi-

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cians in power. But is it realistic to think that the International Court of Justice could one day assume such responsibilities as the assessment of claims to sovereignty by stateless peoples? In a way, it has already done so in the case of Kosovo in its recent ruling. And as I said, the international community has already agreed to sign the Declaration on Friendly Relations among States. The next move would be to adopt a convention to that effect. I also mentioned that the un has assisted the self-determination processes in Eritrea, South Sahara, and East Timor, and there is no reason why it should stop short of a more systematic involvement, including one that would apply this convention. Of course, the above considerations pertain to future possible outcomes. In the meantime, how can we get close to the ideals discussed above? For one thing, the seceding people and the encompassing state could agree on a list of experts who would have to assess the legitimacy and legality of the seceding process. But even if that were not possible, the international community already intervenes to recognize new sovereign states. As we have seen, this is a constitutive element in the doctrine of effectivity. In sum, I accept only a remedial right to secede. A primary right to secede cannot be justified on deontological bases, and it cannot be institutionalized for the reasons given by Buchanan. But contrary to Buchanan, I accept a primary, unilateral general right to internal self-determination, and this principle entails a crucial difference with Buchanan’s theory, since the failure of the state to respect this right provides an important new just cause for secession. By failing to meet its obligations, the people of the encompassing state as a whole loses its right to external self-determination. My theory is not justifiable simply on solid deontological bases. It is also justifiable for reasons relating to stability. It secures the stability of the multinational state that would comply with the right to internal self-determination of its internal minorities. But even if the slippery slope argument were true, it would also favour stability, for we would have found the means to ensure a peaceful transition to secession.

the democratic conditions for institutionalization Chandran Kukathas rightly points out that groups are not homogeneous (1992, 113), and he believes that if we give collective rights to such groups, we risk favouring the majority (114). However, is this an

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argument against the incorporation of collective rights in a constitution, or an argument in favour of complementing the collective rights of the population as a whole, with collective rights for the minority groups that it encompasses? For those who defend collective rights, the problem does not arise. We have to guarantee collective rights for internal minorities, and not just for the encompassing group in which they are found. If those who criticize collective rights want to raise the problem of minorities within minorities, they must not overlook the obvious recourse open to those who defend such rights. In order to protect a minority group against the collective rights given to the group within which it is found, we can guarantee that the minority group also has collective protection. The principle of protection of minorities should be accepted concurrently and simultaneously with the democratic principle interpreted according to the rule of absolute majority. The minority protection principle can then be used to constrain the secession process as such. This is how the Supreme Court of Canada sees things in Reference re the secession of Quebec. The democratic principle and the minority protection principle are two of the four principles that underlie the Canadian constitutional system (along with the federalism principle and primacy of law and the constitution). If we accept an axiological pluralism of principles with equal value, these four principles constrain the secession process. Another common criticism can also be neutralized quite easily. According to Kukathas, there are gaps between the elite and the masses. The masses are interested in material benefits, while the elite is interested in traditional symbolism (1992, 114). However, what are we to understand by this? That the elite tends to be the only one to defend the community? To go from this to the claim that peoples are artificial and imposed from above is a step that should not be taken, because that would entail a misunderstanding concerning the capacity of the masses to rework a received ideology. Kukathas’s conception seems to be based on a non-liberal description of individuals, according to which they allow themselves to be indoctrinated by the elite and are unable to exercise rational autonomy. However, let us consider a more direct objection to institutionalization. Some individuals in society may not want to preserve the group’s cultural integrity or to defend collective rights. For example, while some members of indigenous peoples think that their people has land rights that should be maintained, others think that their community should

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be free to use the land as an economic good that can be sold (Kukathas 1992, 114–15). If that were to happen, there would certainly be a major conflict within the group. Thus, even though collective rights may appear morally irreproachable, their implementation might disturb the democratic course of events. The only possible solution has to be to respect the democratic principle.11 If a majority of indigenous individuals wish to give up their land and sell it, then we have to presume that the majority also does not want to defend the group’s collective land rights. If this were to remain the situation for a long time, we would have to conclude that the people does not really have the will to assert its collective territorial rights, and there would no longer be any reason to defend them. The same thing applies concerning the group’s decision to authorize the extinguishing of their ancestral rights. Once again, we have to apply the majority principle. This would not lead to the disappearance of all collective rights, but it would authorize us to extinguish specific rights. But here the ethics of discourse must come into play. The conditions under which indigenous peoples were led to extinguish their rights were, to put it mildly, forced upon them. They most probably would never have freely offered to extinguish their rights. Can we go so far as to imagine that the majority of a people could be in favour of its own extinction as a people? I know of no clear examples, but we have already pointed out that, in principle, all individuals can see themselves as members of a people yet not want that people to continue existing. In order to justify the protection and promotion of national societal cultures, individuals thus also have to want their own national societal culture to be promoted and protected. Without that will, assimilation would never be a reprehensible evil. We thus have to recognize that the incorporation of collective rights of a people in a constitution cannot be required if there is no collective will to live together by the stateless people and if there is no specific demand that the people be protected. In that sense, the objection raised by Kukathas cannot be raised, because I accept constraint of the enshrinement of collective rights by adopting a democratic principle. However, this response remains unsatisfactory, because it does not yet sufficiently frame the problem of minorities. How should we deal with the problem of minorities within the group if those minorities are dissident? I will come to this in a moment, but first I would just like to show that my perspective makes it possible to deal with another objection, which has been formulated by Habermas (1994). It is to

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the effect that enshrining collective rights in a constitution would lead to an obligation or duty to maintain the group against the will of its members. From a perspective respecting the democratic constraint, the group exists only if its members continue to see themselves as its members, and only if they have a collective desire to live together in the group. Without such ideas about identity, the group would cease to exist. The reason we are thinking about enshrining collective rights in the constitution is that the collective desire to live together tends to last over time. Another requirement is that the majority of the members want the group to be protected. It is out of the question to protect a group against its will. If the group no longer wants to exist, we change the constitution and we remove any reference to its collective rights.

minorities within minorities We have to wonder about the problem posed by dissident minorities. The democratic argument that we mentioned in the preceding section is not entirely legitimate if the opinions of the majority and the minorities do not change over time. The problem occurs especially when the minorities involved are national and what is at stake has to do with identity. This is because the majority can always impose its will “democratically” on the dissident minority. The problem comes from the fact that recommending politics of recognition means giving importance to collective claims and not just individual demands. This supposes that groups and not just individuals are sources of legitimate moral claims. Yet what would happen to minorities that do not subscribe to the objectives of the majority? Opponents constantly raise this difficulty against the incorporation of collective rights. Indeed, it is often pointed out that giving collective rights to a specific group runs the risk of leading to the oppression of minorities living in the same space as the group that has been recognized. In any case, it risks imposing obligations and duties that minorities may not want to accept. To the question of whether there is not a risk that a protected minority might bully its own minorities, I have answered yes, but to prevent this, those other minorities have to be given rights. We can agree with the need to protect minority groups found within larger minorities that are protected by collective rights (Green 1994; Eisenberg and Spinner-Halev 2005). However, this answer also may not be entirely satisfactory. In order to illustrate the problem, let us imagine that the majority within the group chooses to secede from the encompassing entity

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within which the people is found. The answer I have just given could be understood as having the following repercussions. The entire population will secede, despite the minority’s wish not to engage in such a process, but the new state will offer guarantees to the minority groups that are opposed to secession. In other words, since respect for the minority takes the form of a set of collective minority rights, it is a set of protective devices that have no impact whatsoever on the decision concerning the secession process itself. How is the will in question really the will of the people if a large minority of individuals sees things differently? How can we ignore the wishes of the minority if there is a referendum on secession, especially if the minority is itself a people? Some may be tempted to accept a rule other than simple majority as the yardstick for interpreting the democratic principle, so as to counter the abuses that can flow from applying the principle on dissident minorities found within the people’s borders. However, this would in no way solve the problem, and would actually create a new one. Even with a 60 per cent majority, there is still a risk of violating a minority’s rights and, in addition, there is a risk of violating those of the majority. In such a case, the danger is that we would be replacing the tyranny of the majority by the tyranny of the minority. What would this translate into in concrete terms? First, when a decision made by the majority goes against the desires of the minority, the members of the minority community have to have the right to withdraw from the group. They must not be forced to stay in the group. In the case of secession, this means that dissident members who prefer to stay in the earlier state can leave the seceding area. However, this solution is not always practical and, in most cases, if not all, it is totally wrong. It does not counterbalance the potentially negative effects of the democratic principle, and it looks strangely like ethnic cleansing. A better solution is to allow the minority the right to try to persuade the majority to go back on its earlier decision. However, here again, this may not be sufficient, especially when the majority and the minority are separate cultural groups that might continue to reproduce the same disagreements. We also cannot require only preservation of the institutional minority rights to which the group can legitimately aspire, because that has nothing to do with the fundamental issue concerning exercise of the right to external self-determination. It seems to me that the real solution must go along the following lines. When the minority concerned is itself a people, then decisions

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flowing from a majority choice concerning secession also have to be accompanied by measures that enable the minority to make its point of view heard concerning its own interests. In other words, we have to deal with the complexity of identity using complex political arrangements that take everyone’s interests into account, even concerning secession. Concretely, supposing that the minority people would wish to remain in the parent state after secession, a compromise could be reached concerning the possibility that the parent state and the new seceding state would become involved in a joint administration. They would share jurisdiction on the territory occupied by the minority people. The problem is also troubling when the minority in question is an internal contiguous diaspora, that is, an extension of a national majority located in the parent state. In such cases, we cannot simply make sure that the minority can exercise some kind of internal self-determination within the new successor state. We have to come up with complex solutions that take into account the demands of the minority. In the case in question, namely, that of the secession of a group that might take with it minorities found in its area, even though they may not desire secession, we have to imagine complex arrangements, such as political and economic partnership agreements with the previously encompassing state. That solution would entail not completely cutting links with the parent state. The two sovereign states should keep the economic union that kept them together and therefore maintain free trade, a trade union, a common market, and a common currency. In this way, the dissident minority within a secessionist group could maintain close ties with the community in the preceding state. Its rejection of secession could be heard in some way, since the newly created sovereign state would maintain ties with the preceding state. Generally, multinational federalism and sovereignties in an economic union are two forms of political organization that take into account the interests of the majority as well as those of minorities. The most intricate problems concern indigenous peoples, who have been constantly betrayed and excluded from constitutional arrangements and reforms. If a people containing indigenous peoples secedes from a parent state, the only political leverage of the indigenous peoples would be to exercise their own right to external self-determination by maintaining their political association with the parent state. If they somehow feel threatened by the new state and feel that they must violate the territorial integrity of the new state, can we deny them this right by invoking the uti possidetis principle? One solution could be for the

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parent state and the new state to jointly have political jurisdiction over these indigenous peoples in the course of a transition and during a certain period of time. That would count as a certain kind of amendment to the uti possidetis principle, since the parent state would still be politically responsible for them, even if they were located in the territory of the new state. After such a transition period, they could then choose to be part of the new state or choose with a just cause to exercise their right to external self-determination.

civic integration I have considered the problem of institutionalizing collective rights for groups in terms of the consequences for minorities within such groups. The problems that I have considered all stem from tensions that can crop up when a minority is forced into a group against its will, as the result of the exercise of a collective right by the group as a whole in a given territory. The criticisms that I shall now consider concern arguments that, in contrast, refer to problems that are supposed to arise in the group as a whole as the result of minority collective rights. The idea this time is to analyse the negative consequences for life in a group that flow from granting minority rights. The majority-minorities structure remains the same, but instead of looking at the wrongs that the majority could inflict on minorities if it has collective rights, the goal is to convince us of the wrongs that institutionalizing minority collective rights would entail for the social cohesion of the group as a whole. In other words, we have to examine an argument that is the opposite of what has been considered so far. Instead of objecting to collective rights because they harm minorities, we examine an objection to such rights inspired by the difficulties that they would cause for the majority that grants them. We can discover a social cohesion problem at the level of the society as a whole by examining in greater detail the consequences of concrete management of a system of minority rights. Among such rights, let us consider, for example, a contiguous diaspora’s right to maintain schools in its own language. In order to describe more clearly the problem that this could pose at the level of the society as a whole, we can suppose that, given various factors relating to demographic mobility, the contiguous diaspora loses some of its members and is increasingly reduced in number. What consequences would flow from giving collective rights to such a shrinking community? Does giving it rights oblige us

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to intervene and take proactive measures to ensure the group’s survival? Some might think that to secure the integrity of the group in question, the demographic loss would have to be compensated by increasing immigration and giving special rights to immigrant children to be educated in the minority’s language. In such a case, worry would flow from the apparent recognition of two categories of citizens resulting from immigration. One category would be obliged to send its children to the majority’s schools, while the other could have the right to send its children to the minority’s schools. Is this not unjustifiable discrimination between two categories of citizens? Is not the social cohesion of the group as a whole threatened by the existence of different citizen statuses? Is this not inevitable if, from the beginning, we choose to recognize a minority’s language rights? Are we not required to guarantee the integrity of its educational institutions, and does this not mean that, if the minority population shrinks, differentiated rights have to be given to immigrants? If we answer yes to all the above questions, it can be argued that the mistake was to grant minority rights to the contiguous diaspora in the first place. The idea could be that we should not have done so, because of the harm that it causes to the social cohesion of the society as a whole. Maybe then the French people were right to impose the assimilation of such minorities and the assimilation in general of minority peoples having distinct languages. However, let us suppose that we choose instead to grant collective rights to the contiguous diaspora. The question may be raised, If there were a substantial drop in population of that group, would the state be obliged to ensure a migratory flow in the minority’s favour? Otherwise the minority would have too many institutions, or institutions that would be too large for the number of people who could benefit from them. This problem could arise for both educational and health-care institutions. The supposition is that if there were a substantial drop in the number of minority speakers, the fact that their rights are enshrined would force the government to intervene directly at the level of immigration so as to ensure that their numbers rise. The reason would be that recognition of their enshrined rights is interpreted here as supposing the need to preserve the same number of institutions, even if they are too numerous after a possible departure of minority speakers. We have to explain the reasons for the drop in population. If it results from involuntary assimilation, then the state has the obligation to act by securing a sufficient number of immigrants speaking the lan-

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guage of that minority to replace those who were assimilated. If it results from voluntary migration by members of the contiguous diaspora, even if strong measures have already been taken by the majority to protect the minority’s language, then the drop in population may then interpreted as a decrease in the minority’s desire to live together, and it may not impose further obligations on the majority. Indeed, if the departures can be explained by the mobility of minority-speaking citizens, then there is no need to preserve the exact same number of schools, hospitals, and universities. Thus, maintaining the existing rights of a national minority does not necessarily require maintaining their numbers as they were before some members of that community left. We need only maintain all of the community’s institutions in accordance with the community’s needs. If, for a reason related to the voluntary mobility of its members, the minority’s numbers decrease, we need only ensure a sufficient number of institutions to meet the needs of the minority members remaining. It is only in this sense that we should understand maintenance of existing rights. So in order to preserve the collective rights of this minority, should we give special rights to certain categories of immigrants? Would that be unjust? My answer is that the society’s obligations toward a contiguous diaspora should not entail compensation when there is a drop in numbers if that drop is explained by voluntary choices. The question still arises whether a recognition policy taking the form of collective minority rights is not a measure that could keep a minority alive artificially. It could be argued that even if the appropriate policy requires adjustments in accordance with the minority group’s demographics, flexibility in this respect requires that we restrict ourselves to administrative measures that can be adjusted in accordance with the real needs of the minority remaining within the territory, instead of resorting to collective rights. In this case, the objection makes use of an argument against enshrining collective minority rights, but not against administrative measures. To put it differently, there is agreement with administrative measures, but not with collective rights, because the changing situation requires flexibility, while collective rights are inflexible. This objection does not take into account the fact that many different norms adopted by national governments are also, in a sense, measures adopted to “artificially” preserve the language of the people as a whole. Think, for instance, about the Charter of French Language adopted in Quebec. Without measures such as this, large segments of

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the population could have been assimilated into another larger, closely situated group (more than 300 million English speakers), especially since the language of that other group is influential. Just as we intervene using legislation that protects the language of the majority, we also have to intervene in the legal sphere to protect the collective rights of national minorities. If we choose to include language laws in the constitution of the country, we have to do the same for the collective rights of minorities. In short, it is hard to accept the argument that minority rights artificially maintain the life of minorities, given the fact that majorities do the same for themselves through their constitution, institutions, and policies. Here it could be replied that there is a difference between the two kinds of protections by claiming that the purpose of language laws is to establish a language of citizenship and participation in civic nationalism, whereas recognition of minority rights creates ethnic divisions. But this reply fails to realize that that civic nationalism is always subordinated, wittingly or unwittingly, to the interests of a specific majority. Indeed, if this were not the case, why would the language of citizenship have to be the language of the majority? The reason we choose the language of the majority as the language of citizenship is that within the national societal culture there is a national majority. “Civic” nationalism is acceptable so long as we are aware of the values that it defends, and in the case in question, the rules of living together favour the national majority. This is why palliative measures are required. If we accept a shared public identity based in part on recognition of a shared public language, we have to try to harmonize this with the fact that there are minorities within that societal culture. Civic nationalism is too often an alibi used by those who, in the end, favour the assimilation of minorities. If the promoters of civic nationalism want to claim innocence in this respect, they have to prove their point by agreeing to enshrine collective minority rights in their constitution. Finally, a last objection concerns the difficulty of ensuring that a public identity is shared by citizens who have different social institutions such as schools, colleges, universities, and hospitals; different cultural institutions, such as libraries, museums, newspapers, and radio and television stations; different political institutions such as city councils and different economic institutions, such as banks, companies, and stock exchanges. Would it not weaken the social cohesion within a society? This is an important objection, but I still think that the best way to ensure the integration of minorities into a larger society is to recognize

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their collective minority rights. I have already pointed this out that recognition has to be reciprocal. Without the minority’s will to participate in an encompassing political community, the majority has no obligation to recognize its rights. However, conversely, if the majority does not recognize the minority’s rights, the latter has no obligation to integrate into the encompassing society. In order to establish a national identity shared by national minorities and national majorities, both groups have to recognize a common national allegiance on the condition that both see the overall encompassing people in the same way: as an inclusive society (people or nation) made up of a national majority and national minorities. A policy of inclusion has to be accompanied by a politics of recognition. The explicitly pluri-cultural nature of the encompassing society has to be part of the shared public identity of all citizens. Can this arrangement make it difficult to construct a civic identity? My answer is that recognition is an effective means to guarantee the allegiance of members of different minorities. If they are recognized in their difference, members of the minority will feel more attached to the political community to which they belong. Is there not a danger of ghettoization? This is a crucial issue and we have to be aware of the difficulties that it raises. We have to ensure that the majority and minorities cohabit in such a way that the latter are integrated into the political community without being assimilated into the majority. We have to recognize their difference without thereby harming their integration. In Quebec, for instance, where there is a community of English Quebeckers that oscillates around 800,000 persons, the danger of assimilation is virtually absent. English Quebeckers live in a country where the majority is English-speaking and on a continent populated largely by English-speakers. They speak the international language par excellence: English. Moreover, they have many services in English. They have English-language primary and secondary schools, English colleges, English school boards, universities, hospitals, and local community services centres that provide services in English. These various institutions are funded largely through public money. Of course, they have television and radio stations in their language, as well as newspapers. In short, English-speaking Quebeckers live in an environment that allows them to maintain their linguistic and cultural heritage. Of course, they created many of these institutions. Not all of them are the fruit of government intervention, but the Quebec government funds them out of public money, and this is a guaran-

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tee of Quebeckers’ will to keep them in Quebec. Logically, all that remains is to enshrine their rights in a constitution, which would reassure the minority about the will to guarantee their existing rights. In order to ensure their integration into Quebec society, a policy of interculturalism is implemented, up to a certain point. In contrast with a policy of multiculturalism, such a policy implies reciprocal recognition, the obligation by the state to secure the rights of the minorities but also the obligation of minorities to integrate into the common public institutions of society as a whole. Learning French is compulsory in primary schools. There are also plans to create complete French immersion sessions in French colleges. In Quebec, the language of work is officially supposed to be French, at least for companies with fifty employees and more. Many English Quebeckers know that they could have to learn French in order to find work in Quebec. This has been the case since Act 101 (eventually labelled the Charter of French Language) was adopted in 1977. Earlier generations of English Quebeckers were able to escape the requirements of integration, but this is no longer the case for the “children of Bill 101.” In addition, while English-speakers have the right to use English on commercial signs, French has to dominate the signage. This right was established by Bill 86, which amended Act 101, according to which there had to be French only on commercial signs. Next, Act 101 stipulates that immigrants must send their children to French-language primary and secondary schools. It should also be said that, generally, the Quebec government increasingly tries to favour the intake of immigrants with French-language skills. At least, it gives points to immigrants who can integrate into the French-speaking majority. Quebec has relative autonomy in immigration, and thus has some influence over the choice of immigrants in the language they speak. These correctives have seemed essential, because a very large number of immigrants used to integrate into the English-speaking community in Quebec, and they always tended to send their children to English schools. Under the Charter of French Language, this can no longer be the case. It is only once they reach college that young immigrants can continue their studies in English. As a result of all these measures, there was a substantial temporary drop in the number of children enrolled in English schools. They no longer recruit immigrant children as they did before. Since these correctives have been applied, the English-speaking clientele of English schools has tended to stabilize. Do the measures that I have just described suffice to secure the integration of all into Quebec’s society? The result of these policies is that

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two-thirds of English-speaking Quebeckers now speak French. Moreover, when we ask Quebec citizens whether they can express themselves at a basic level in French, over 90 per cent say they can. Since the key to integration is language, we can think that the battle is being won. Of course, a number of huge problems still remain. A very large number of immigrants assimilate into the English-speaking community in Quebec. The proportion of immigrants who integrate into the Englishspeaking community is greater than the proportion of English-speakers in Quebec. The reason the English-Quebec community does not grow is that English-speaking Quebeckers are extremely mobile, and many of them leave Quebec to work elsewhere in North America. We also know that within twenty years, people whose mother tongue is French will be in the minority on the Island of Montreal. This could cause integration problems. It is true that to compensate for the lack of French-speakers on the island, we can count on the many French-speakers living to the south and north of Montreal, and who come into the city to work every day. However, many businesses do not yet apply measures appropriate for ensuring that French becomes the language of work. In any case, it is clear that seeking such a balance holds the key to a solution for the problems created by the will to maintain both an inclusion policy for the shared civic identity in Quebec and a recognition policy for the minority of English-Quebeckers. Let us now return to the question at issue. The objection concerns the difficulty of ensuring a public identity shared by communities who have different institutions. Could this not undermine social cohesion? I think that we can accept a shared public identity based on common public language, institutions, and history without renouncing a recognition policy for minority groups that have the right to public protection for their own public language, institutions, and history. The solution may be to adopt a policy of interculturalism and to increase the number of companies that are compelled to make French as the language at work (not only companies with fifty employees or more, but rather companies with ten employees or more). It is essential to think about new models of the nation-state, and the best way of doing so is probably to try to go beyond the traditional opposition between the ethnic people and the civic people. Increasingly, contemporary peoples can see themselves as poly-ethnic and pluri-cultural. Such peoples do not need to renounce a civic identity based on the pedestal of shared public language, institutions, and history, but it has to be accompanied by a recognition policy applying to the differ-

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ent components of society. The citizens of such a nation-state can all claim to belong to a single unique society and accept that certain identity-related features, such as language, institutions, and history, are shared, while at the same time giving formal recognition to the fact that this society is composed of a diverse population that includes an encompassing people, a national majority, and one or more national groups (minority peoples, contiguous diasporas, and non-contiguous diasporas). So we have to renounce the old conception of civic society conceived as something that must obliterate differences. Conversely, the components of a people conceived in this way are not necessarily ethnic themselves, since they can each encompass populations with ethnic origins. Specifically, and above all, the national majority is nothing more than a linguistic group with distinct institutions and its own history. What makes it special is that it gathers together an absolute majority of individuals sharing the same language, institutions, and history. Now, persons of different ethnic origins can belong to this group. The same remark applies to national groups such as contiguous diasporas. They have the distinctive features of constituting minority language groups within the territory and of being extensions of national majorities located in neighbouring areas. They may themselves be multi-ethnic. Finally, non-contiguous diasporas refer to populations whose primary language is often different from the one spoken by the national majority and other national groups, and who come from distant countries. These communities cannot be considered ethnically homogeneous, because the countries they come from are themselves very often poly-ethnic. In short, civic and multi-societal peoples, national majorities, contiguous diasporas, and non-contiguous diasporas are all poly-ethnic groups that have a great deal of internal diversity. Recognizing these groups has nothing to do with an ethnic policy, especially if such recognition is accompanied by the construction of a shared civic identity involving shared language, institutions, and history.

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Conclusion

Let me recall the normative framework that I favour. I try to cast my account of peoples and my concept of recognition in accordance with political liberalism. This account is a variant of liberalism that no longer entails ethical individualism. The classical liberalism of Kant and Mill assumes that persons are “prior to their ends,” that persons are the ultimate sources of moral worth, and that autonomy is the most important liberal value. The political liberalism of John Rawls implies three features that can be contrasted from this initial version. First, he introduces a political conception of persons (2005, 29) and a political conception of peoples (1999, 23). He is thus neutral in the debate between communitarians and individualists, which is at once a moral and an ontological debate. He does not assume that persons are prior to their ends, nor does he claim that persons are defined by their beliefs, goals, values, traditions, or views about the common good, or views about the good life. His account of the law of peoples “conceives of liberal democratic peoples (and decent peoples) as the actors in the Society of Peoples, just as citizens are the actors in domestic society” (ibid.). Peoples are neither “associations” nor “political communities” if, by the latter, we mean a community endorsing the same religious beliefs, the same moral values, or the same philosophical doctrines (2005, 15). Second, he also treats persons and peoples as two autonomous sources of legitimate moral claims, and this goes with the presence of two different original positions (1999, 30–5). Persons and peoples are both moral agents in the political realm, and their moral claims should not be subordinated to one another (17, 27, 35, 44, 62). Rawls seeks an appropriate balance between the individual rights of persons and the collective rights of peoples. These two sorts of rights should not be put in

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lexical order. Finally, he sees toleration as respect (or as recognition) for the sake of political stability and not autonomy as the most important liberal value (16, 18–19, 60). With reference to decent societies, thus Rawls writes, “Here to tolerate means not only to refrain from exercising political sanctions – military, economic, or diplomatic to make a people change its ways. To tolerate also means to recognize these nonliberal societies as equal participating members in good standing of the Society of Peoples, with certain rights and obligations” (59). Toleration as respect (or as recognition) is not an independent moral principle. As distinct from the version espoused by Charles Larmore (1999), Rawls’s version of political liberalism is based on a political principle of toleration-as-respect that stems from the political sphere, and not on the moral attitude of tolerance-respect for others. It is not an intrinsic value all by itself. It is instrumental for political stability. This means that the principle is nothing other than a norm that will find its way in the constitutional essentials of society for the sake of political stability. Political liberalism thus has three main features that must be contrasted with the classic version of liberalism. The political conception of persons and peoples, the claim that both of these agents are autonomous sources of valid moral claims, and the political idea of toleration-as-respect for the sake of political stability provide a version of liberalism that has disenfranchised itself from the ethical individualism contained in the classic versions of Kant and Mill. This explains why political liberalism is much more hospitable to a politics of recognition, even when the latter is cast in terms of a system of collective rights for peoples. For when it is understood as respect for others, the principle of toleration as respect is a form of recognition. So political liberalism is itself a form of a politics of recognition. Moreover, since it is committed to respect all agents in the political sphere, toleration as respect entails respect for other peoples as well as respect for other persons. Agents acting in the political sphere become moral agents if they apply this principle of toleration as respect. Finally, as a constructive theory of justice, the recognition of persons and peoples takes the form of a system involving two sets of rights for persons and peoples. With this general normative account in the background, let me recall the normative constraints associated with the concept of people. Since I endorse political liberalism, I adopt a political conception of peoples. As we have seen, peoples, in the political and not in the metaphysical sense, are groups that come equipped with a certain institu-

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tional identity in the political space. Just as persons, in the political sense, are considered to have an institutional identity of citizens, peoples understood in the political sense also have an institutional identity. That is, we maintain a neutral ontological position on whether peoples should be considered as mere aggregates of individuals or as complex social organisms. These metaphysical issues are set aside when we adopt a political conception. It is also important to note that the institutions that shape the identity of peoples are not necessarily governmental institutions. For instance, the Acadian, Alsatian, or Roma peoples are identified by sets of institutions that characterize them in the political space, although these are not governmental institutions. Among the relevant features of the Acadian people, we could mention a language with a distinctive accent, a shared history, and certain institutional features such as schools, colleges, universities, a flag, spokespersons, and annual celebrations. But Acadians do not have an autonomous government. Nevertheless, national groups that do not have more-or-less official governmental organizations must be treated with respect and recognition. Together, the institutions of a people form a “societal culture,” that is, a “structure of culture” embodied in a certain character, existing in a crossroads of external (moral, cultural, social, economic, and political) influences coming from other peoples and offering an internal context of choice (a set of moral, cultural, social, economic, and political options). The cultural character is constituted by the beliefs, aims, values, projects, ways of life, customs, and traditions shared by a critical mass of the population at a given moment. These are to be contrasted with the three essential elements that, in its simplest form, compose the structure of culture: a common public language, common public institutions (those in which the common public language is spoken primarily), and a common public history (that relates to the common public institutions). Language is at the core of the structure of culture, and it plays a crucial role in shaping a distinctive identity among a people. But it need not be a distinct language. Two peoples can share the same language and yet be very distinct from one another. This is because they may have different institutions, different histories, different crossroads of influences, and different contexts of choice. The character can change, even if the population maintains essentially the same structure through time. The structure of culture also changes through time, but at a different pace, and it can remain the same even though cultural characters have changed completely.

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To illustrate how the structure of culture must be contrasted with the character, it is important to consider each of its three main features. First, the linguistic component of the structure does not necessarily convey only one conception of the common good or of the good life. It can be used to express a wide range of beliefs, aims, values, projects, ways of life, customs, and traditions. Therefore a reasonable and irreducible pluralism of points of view may take place by way of a people’s language. Second, this is also true of the common public institutions. They are not necessarily the reflection of a set of particular norms, customs, and traditions. They too can represent an irreducible pluralism of values and points of view. The very normative principles that govern those institutions may also change while the institutions remain in place. Finally, the common public history is essentially defined by a common heritage of public institutions and not by adopting a specific narrative. In principle, it is compatible with an irreducible diversity of stories and interpretations. The common public history is thus not necessarily the reflection of a commonly shared narrative identity. Once peoples are understood as structures of culture embodied in various characters through the passing of time, and when they are seen as existing in a crossroads of influences and offer contexts of choice, we owe them respect, as long as they respect the civic rights of persons and respect other peoples, as well as minority fragments of peoples. These collective rights constitute a necessary condition for a politics of toleration as respect that is owed to peoples. The respect due to peoples must not take precedence over the respect due to persons, but the same remark applies to persons: they do not take precedence over peoples. I advocate an axiological pluralism in which the rights of peoples must be kept in balance with the rights of persons. Still in accordance with political liberalism, peoples do not exist without a collective will to survive and without a national consciousness. The population must be perceived by a majority of its members as forming a community centred upon one or more common public languages, a set of common public institutions, and a common public history. Peoples are not just objective entities that remain the same through time, with essential characteristics, and to which they belong involuntarily. They must have a collective will to survive as peoples, as emphasized in Ernest Renan’s metaphor of the “daily plebiscite” (Renan [1882] 2010). National self-representations may vary from one group to another and may also vary through time.

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This yields many different sorts of peoples based on different sorts of national self-consciousness. The objective features of a people (forming societal cultures) and subjective features (national self-representation and the will to survive as a people) are taken at face value. It is not suggested that one of those features is predominant and that the other may be reduced to it. It is also in this sense that the account remains ontologically neutral. The existence of peoples does not depend just on the perceptions of its members. This would amount to a claim that peoples are fictional entities. I want to avoid any such ontological claims. I accept that among the constituents of a people, we have to take in consideration an element of self-awareness. Peoples do not exist without such an ingredient. However, its objective features need not be reducible to its subjective features. Peoples are not reducible to what individuals perceive them to be. There are objective and subjective components to a people. It is wrong to suggest that the objective features do not count and that national identity depends on nothing other than the perception of their members. Let me recall one final feature of the present account of peoples. Any account of peoples must be compatible with the acknowledgment of diversity, of multiple identities, and of the dynamic character of national identity. Since the nature of the people is determined by the prevailing national consciousness entertained by a majority within the population, it is bound to change. It is fairly easy to acknowledge diversity under my account, since I adopt a diversified account of national identity. In addition to those peoples that are organized in sovereign states, I am thus in a position to accept within a single sovereign state the presence of ethnic peoples (based on common ancestry), cultural peoples (based on a same language, culture, and history) and socio-political peoples (based on same non-sovereign governmental institutions for a group having the same common public language, institutions, and history), as well as minority fragments of peoples such as continuous diasporas (kin minorities) and discontinuous diasporas (immigrant groups). I also can acknowledge multiple identities in a variety of ways. Immigrants may simultaneously identify with a foreign people and with their new welcoming national community. Individuals may also have multiple citizenships. And even more importantly, it is possible to identify with an ethnic, cultural, or socio-political people while reaffirming loyalty to an encompassing people contained in a sovereign state in

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which these national identities are embedded. One can at once belong to an indigenous people and to the Canadian or to the Quebec people. One can be an Acadian or a Quebecker and also be part of the Canadian people. One can be an English Montrealer and be part of the Quebec people. Finally, the diversity of peoples that I introduce also enables me to account for the dynamic character of national identity. An ethnic people may turn into a multi-ethnic cultural people after awhile if it becomes clear in the mind of everyone that individuals with different ethnic origins may share the same societal culture. Also, an ethnic or cultural people may become a socio-political people if the people achieves some kind of self-government. Finally, an ethnic, cultural, or socio-political people may turn into a civic people or a multi-societal people if it becomes a sovereign state containing a single people or containing several peoples. In addition, minority fragments of peoples may come to form peoples all by themselves after awhile, if their members no longer identify with a foreign country or with a neighbouring people but keep their sense of belonging to a single societal culture. All of these facts clearly illustrate the dynamic character of national identity. This is the framework that I have invoked in order to formulate a theory of collective rights for peoples and minority fragments of peoples. I have just extended the law of peoples to the case of complex societies, as Rawls never has done, for he developed only simplified models for single societies and a society of peoples. Nevertheless, we have seen that the politics of difference that is added to the existing Rawlsian framework does for cultural identity what the difference principle does for socio-economic justice. I have shown the deep connection that holds between Political Liberalism and The Law of Peoples. I have also shown that some corrections can be made to the theory that shows the universal potential contained in political liberalism. It is not an account that must lead to moral relativism. I have imposed various conditions on a theory of collective rights that prevent the account from having a bias in favour of communitarianism or collectivism. Collective rights were defined as having groups as subjects of the rights and institutions as objects of the rights. I restricted the subjects of the rights to national groups, since they have the features of being at once institutional, communal, and an important source of identity and cultural diversity. I restricted the range of collective interests that are available for collective rights to those that play a role in the maintenance, development, and creation of institutional identity of a people or

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a minority fragment of peoples. I ended by discussing various problems in the institutionalization of collective rights. Everything seems to indicate that the main obstacles to institutionalizing collective rights can be removed. Critical reactions are reminiscent of the worries of those who are offended when a charter of rights and freedoms is enshrined in the constitution of certain countries. Critics thought that such a charter would open a Pandora’s box of demands from individuals belonging to minorities. Such worries have mostly vanished. In the same vein, I believe that a similar fate awaits worries about the enshrinement of a collective rights regime. I do not believe that the courts will be burdened with an avalanche of demands made on behalf of various groups, especially since we restrict the eligible groups to peoples and minority fragments of peoples. Such concerns often come from jurists who are against recognizing collective rights on the pretext that it is a kind of legal fetishism. That is, they denounce what is purportedly a naive belief in the virtues and efficiency of constitutional provisions. This illusion lies in the suggestion that formal rights will resolve all the problems of discrimination against minorities. However, without compromising ourselves in favour of an individualist position, can we agree to enshrine individual rights and freedoms, but object to collective rights? What justifies these double standards? By enshrining individual rights in a constitution, do we really believe that we are resolving all the problems and taking into consideration all the practical solutions that must be adopted to solve discrimination, unemployment, class struggles, concentration of capital, etc.? Surely not, but this has not prevented us from adopting a regime of individual rights. Similarly, I want to argue that the same considerations apply to a regime of collective rights. It is certainly not sufficient to resolve political tensions, but it might be a necessary condition for achieving these goals. The real problem may not lie in the legal fetishism of some, but rather in the individualist resistance of others. We cannot denounce the legal fetishism involved in the entrenchment of certain rights but not in others, depending on whether the rights in question are collective or individual. Thus, unless one decides for matters of coherence to engage in a lost battle in favour of a constitution deprived of a charter of individual rights, the best option is perhaps to devote our energy to designing sets of balanced individual and collective rights, and ensure that the courts will be able to make enlightened case laws by producing well-weighed decisions in light of these principles.

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Indeed, we must not forget that there is a real political war being waged on these issues. Some authors conduct a relentless state nationalist battle that, although it may not be explicitly described in this way, is nonetheless motivated by the desire to neutralize minority nationalism for the sake of state nationalism. This book, while theoretical, participates in this political struggle by taking a position that seeks to find a balance between majority and minority nationalism. I acknowledge the existence of nationalism in political reality, instead of taking refuge in the illusory approach according to which we could transcend this reality. Indeed, much of this book was devoted to unmasking this subterfuge. In this respect, I note that the main authors who are aggressively against collective rights and nationalism in contemporary political philosophy come from countries that are nation-states, and that one of their aims has been to implicitly or explicitly defend the traditional nation-state model. The profound inertia that faces us when we try to defend collective minority rights stems largely from this entirely nationalistic tendency to defend the nation-state model as the only form of political organization. There is no other explanation for the resistance we encounter in Germany, France, and the United States when we try to defend group rights. Nationalism has always been an important feature of the kind of political philosophy practised in Germany, France, Britain, and the United States, in the sense that the authors never discussed the problem explicitly. They took for granted that the main political issues were elsewhere. There was no concern at all for nationalism, because they were discussing ways of conceiving the nation-state model. Should it be a constitutional monarchy or a republic? Should it be a federation or a unitary state? Should that state be democratic or theocratic? Should it be liberal or republican? Should it be conservative or progressive? Should we have a senate? Should we have a charter of rights in the constitution? But except for very few authors, they never asked whether it should be mono-national or multinational, and whether minorities should have collective rights. The issue of nationalism had been resolved in the form of the nation-state model. This is the background that explains the nervousness with which thinkers receive the idea of giving rights to minorities. Academics coming from nation-states have not yet gotten over their own nationalism, and this is why they devote much of their energy to relentlessly tracking down all minority nationalist tendencies. Classical liberal philosophers and Jacobin repub-

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licans see the splinter in the eye of the other, but not the beam in their own. In both cases, the endorsement of ethical individualism or, if one prefers, the primacy of the individual over the group is like a mantra or a religious belief that cannot be questioned. Ethical individualism is presented as being above all suspicion, but it is an ultimate attempt to obscure the active omnipresence of state or majority nationalism in politics. This is, at least, how things originally appeared. Ethical individualism was intimately linked with nation-building before it spread and became part of the orthodoxy in political philosophy. Today, even those who embrace cosmopolitanism and have no interest in nationalism or identity issues reaffirm this individualist credo, sometimes even thinking that they can use it to limit state nationalism. Most of the time, though, their indifference toward issues related to nationalism is just a side effect of the indifference of state nationalists themselves. State nationalists have educated cosmopolitan philosophers. Just like them, they want to discuss other issues primarily and avoid the issue of nationalism as much as possible. Similar remarks apply to their ethical individualism. It has been inherited from state nationalists. It is in the name of ethical individualism that they have come to criticize state nationalists. Of course, this threatens the domination of the nation-state model, but it does so without questioning its individualistic foundation. For the liberal nationalist, this is a real bargain, especially when cosmopolitans make it possible to clear away all obligations to minority rights. The liberal or Jacobin republican state nationalist precisely endorses ethical individualism and claims to be able transcend all forms of particularistic features by taking refuge behind the soothing discourse of individual rights. To a large extent, then, the cosmopolitan individualist fails to really threaten the nation-state model. Thus, he does not worry about criticizing France when it opposes the European Charter for Regional or Minority Languages, or when the Constitutional Council rules that planned reforms to give Corsica greater autonomy are unconstitutional. No one will denounce the hypocrisy of requiring all new members of the EU to respect minority rights, even though there is not the slightest clause to this effect in the draft constitutional treaties applying to states that are already members. A conspiracy of silence binds state nationalists together, and cosmopolitan individualists cannot be counted upon to shake that tree.

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The axiological pluralism on which my theory is based is designed to flush out this mistake. I maintain the inalienable nature of individual rights, but I try to find a balance between them and the collective rights of peoples and other national groups. I am deeply convinced that we cannot find a remedy for nationalism if we close our eyes to it. On the contrary, I think that it is only by making it explicit that we will be able to tame it.

The Catalan Parliament

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Glossary

Anti-individualism vs individualism (philosophy of mind). A debate concerning different views about mental contents. It is sometimes conflated with the debate between internalism and externalism. In the strict sense, internalism is the view that mental contents are individuated internally and thus without any relation to the external environment, while externalism argues that they are individuated in relation to the physical environment. When it is distinguished from the debate between internalism and externalism, individualism is the view according to which mental contents are individuated independently from the social environment, while anti-individualism argues that they are individuated in relation to other individuals and perhaps even in relation to the linguistic norms of a community present in the social environment. Axiological pluralism. The view according to which we should adopt sets of norms of different kinds (e.g., individual rights for persons and collective rights for peoples) without imposing a hierarchy between these different sorts of norms. Basic structure of society. The set of norms that determine the role that each member of society plays within the basic economic, social, cultural, and political institutions of that society. Character vs structure of culture. The character of culture relates to the beliefs, values, customs, ways of life, historical narratives, views about the good life, and views about the common good adopted by a critical mass of the population for a certain period of time. The structure of culture refers to (1) the common public language(s), (compatible

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with the recognition of minority public languages), (2) the common public institutions, that is, those in which the common public language is mainly spoken (compatible with the recognition of the public institutions of minorities), and (3) the common public history of the public institutions (compatible with the recognition of the public histories of minorities). Civic humanism. An ethics of civic virtue promoting excellence in the behaviour of all citizens who exercise their political liberties. Civic nationalism. A form of nationalism that is opposed to ethnic nationalism, understood as the view according to which the borders of the state should coincide with the borders of the people by a process of nation-state building. The expression civic nationalism may first be used in the negative sense of rejecting ethnic nationalism. Thus it favours forms of political organizations that are inclusive of all citizens within a certain jurisdiction. In the more restricted sense associated with the concept of civic people, it is a certain form of nationalism according to which the borders of the state should coincide with the borders of the people by a process of state-nation building. Classic republicanism. This is a view based on the Athenian conception according to which society compels each citizen to exercise his political liberties understood as responsibilities, and therefore as duties toward society as a whole, which may then even be taken as a subject of rights. It must not be confused with Philip Pettit’s understanding of republicanism, which implies the idea of freedom as non-domination. Classic republicanism is compatible with a certain kind of methodological collectivism, that is a vertical form of determination of society over individuals (viz. the determination of a linguistic community), while Pettit’s conception implies ontological holism, that is, only the horizontal interdependence of individuals (viz. dialogical identity). His brand of republicanism rests on holist individualism. Collective rights. These are rights whose subjects are groups and whose objects are institutional, as opposed to individual rights (applying to persons), rights of corporations (special rights whose subjects are legal persons), and group-differentiated rights, which may sometimes be held by individuals by virtue of their belonging to certain groups.

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275

Communitarian society. This is a society governed by norms that express a comprehensive view of society, that is, sets of norms for religious belief, personal identity, a conception of the good life, or a conception of the common good. According to that view of society, individual selfrepresentations are determined by the community. They do so by internalizing the particular comprehensive view of their society. A communitarian society can be democratic (1) if, in addition, it has an electoral system in which debates can take place and the election of certain political parties can lead to a very different comprehensive view, (2) if there are exit rules, (3) if the practice of dissident minorities is recognized and supported by the state, and (4) if citizens have a minimal form of rational autonomy. Comprehensive approach (or comprehensive view). This approach is based on metaphysical conceptions of the person and the people, religious beliefs, particular moral beliefs, or particular ends. In general, a democracy should allow for different comprehensive views to flourish. Rawls introduced the notion, and it must not be confused with a communitarian view, for Rawls also considers the ethical individualism of Kant and Mill as the basis upon which a comprehensive approach to liberalism can be formulated. Their approach to liberalism is comprehensive because it is based on a metaphysical view of the person as “prior to her ends.” Political liberalism is an attempt to develop liberalism independently from any comprehensive views. Constructivism. When applied in the context of a theory of justice, constructivism implies that principles of justice cannot be derived from premises asserting moral facts. When justice is to be applied to a single society, they are constructed on the basis of self-representations of persons as moral agents. When the principles are to be applied in a society of peoples, they are based on self-representations of peoples as moral agents. Contiguous and non-contiguous diaspora. A contiguous diaspora is a minority fragment of a people of a particular kind, and thus a certain kind of national group that is not representing itself as forming a nation all by itself. It is an extension of a certain people in the territory of another people. It is sometimes called a “kin minority,” and it refers to a population that happens to be on the “wrong” side of the border, since the

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vast majority of the population sharing the same nationality is located just on the other side. It may or may not see itself as part of that other nation. Examples include the Russian populations in the Baltic states, which perhaps do not clearly identify themselves with the Russian nation, or the Serbs in Bosnia and the Palestinians in Israel who do identify themselves with the neighbouring people. The borders may be those of a foreign country, such as for the Hungarians in Slovakia, the Tyrolians in South Tyrol, or the Basque population in France. But they may also be internal borders, such as the French Belgian population living in Brussels inside Flemish provinces. Finally, a contiguous diaspora may also be a part of a multi-territorial people, such as the Kurds in Iraq continuous with the whole Kurdish people of Kurdistan, or the Mohawk population of Ontario, continuous with the Mohawk people of Akwesasne. A non-contiguous diaspora is another kind of minority fragment of a people that does not represent itself as forming a people all by itself. It is a minority that still identifies itself with the people of a foreign country. This may be because they were born in that foreign country. But they may also still identify themselves with these countries after many generations, such as the second generation of Pakistanis living in Great Britain or even Black Africans living in the United States. Finally, they can also be part of a diasporic people like the Roma in Romania. Cooperation (system of ). This notion refers to the idea that we are mutually interdependent and that, as such, for our own rational interests we tend to adopt a tit-for-tat strategy in order to resolve recurring prisoners’ dilemmas. The kind of cooperation that results from such a realization is reciprocal altruism. It is less than true moral altruism but more than mere egoism. For Rawls, society is a system of cooperation for mutual benefits, which means that the members are mutually interdependent and tend for that reason to be reciprocal altruists. Cultural rights. These are individual rights (e.g., rights to intellectual property) or collective rights held by various national groups (e.g., language laws), as a form of equal (e.g., anti-discrimination laws) or differential (politics of difference) recognition. They contrast with socio-economic rights, which can be claimed by individuals as a form of equal (equality of opportunity) or differential (difference principle) distribution between persons, or claimed by groups as a form of equal (equal development) or differential (difference principle) distribution between peoples. Collective cultural rights may be claimed by peoples

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organized into sovereign states (viz. the Convention on the Expression of Cultural Diversity) or by stateless peoples (recognition of a distinct society, a special status, asymmetric federalism, official bilingualism, etc.) Decent hierarchical society. This is a society that is not belligerent or absolutist and that respects basic civic rights such as freedom of expression and freedom of association. It is not democratic, for it involves only consultation procedures without an electoral system and therefore does not respect political liberties. Nor does it implement policies designed to favour equality of opportunity and even less the difference principle. It is a society that never experienced in its political culture the irreducible and reasonable diversity of moral, religious, or metaphysical views. Nevertheless, Rawls believes that it should participate in the second stage of the second original position in the search for a true consensus in ideal theory on different norms to be adopted in the law of peoples. An alternative view would be to respect such societies in the form of a modus vivendi in non-ideal theory. Ethical individualism. In this is the view, persons are prior to their ends, that is, are not defined by their beliefs, values, or goals that they pursue. In addition, it is the view according to which individuals are the only ultimate sources of valid moral claims and individual autonomy is the most important liberal value. Global basic structure. This is a society of peoples that would tend to exemplify a system of cooperation for mutual benefit. Of course, that actual system of cooperation may be totally unjust, but all societies are now mutually interdependent. It is important to note that Rawls did not believe that the international society of peoples was such an interdependent system. Group-differentiated rights. This is the view advanced by Will Kymlicka about group rights. Group-differentiated rights are minority rights held inside a sovereign nation-state by individuals and only sometimes also by groups, but they always concern goods that can be claimed only because individuals belong to groups. Whether claimed by persons, indigenous peoples, or “national minorities” (non-indigenous stateless peoples), in the end they always serve the autonomy of persons. The ultimate justification for allowing these rights is therefore individualistic. Group-differentiated rights are cultural rights held by minorities. They

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are justified as external protections against a dominant cultural group, and never as internal restrictions imposed upon members inside the group for the sake of social cohesion of the group as a whole. Their raison d’être is the protection of a context of choice that conditions the exercise of individual freedoms and liberties. They must therefore never impose limits upon the rights and freedoms of individuals. Institutional identity. This is the identity of a person or of a people as assumed by political liberalism. Applied to a person, it may involve citizenship or a somewhat thinner status such as recent immigrant, permanent resident, or refugee. Applied to a people, it may involve full sovereignty, or a somewhat thinner status such as a non-sovereign government, or institutional features such as language, historical heritage, schools, colleges, universities, hospitals, libraries, museums, flags, as well as celebrations, anniversaries, and commemorations. The institutional identity of a person is to be distinguished from the moral identity of that person. Similarly, the institutional identity of a people is its structure of culture and is to be distinguished from the character of culture of that people. Interest-based vs choice-based theory of rights. An interest-based theory of rights may be justified in order to account for the rights of children, profoundly handicapped persons, persons in a vegetative state, and animals who are sentient beings. These individuals or groups of individuals may be unaware of the interests that they have in protections that would be beneficial to them. Nevertheless they may be entitled to rights. However, there are interests that are not clearly a matter of rights, and it may be hard to discriminate among all interests to determine which ones are rights. Those opposed to this view argue that the only acceptable rights are those that a person or a group chooses to claim. An alternative account would be to treat rights as interests understood as valid moral claims that persons or groups choose to request, although there are sometimes exceptions to that rule allowing that certain representatives claim rights in favour of those who are not in a position to determine their own interests. Internal vs external diversity. Peoples may contribute to the diversity of cultures in two different ways. They may offer a diversified internal context of choice for the population. Different moral, cultural, political,

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and social options are available for the population as a whole. That same population may itself contribute to this internal diversity by allowing different groups to flourish, like religious groups, political groups, groups with different sexual orientations, ethnic groups, cultural movements, and languages. Peoples also contribute to external diversity by being different from all other peoples in many ways. They may have a distinct language, different institutions, and a different history. By being located in a certain geographical area during a certain time, they are subject to a specific crossroads of influences that is distinct from any other society in the world. Even if they share a particular feature such as language with other peoples, they may differ from them because of their specific institutions, history, and crossroads of influences. A population that has been decimated and unjustly treated may for these reasons fail to provide a large context of choice internally, but it may nevertheless contribute to diversity when compared externally with other peoples. Conversely, a population that is similar to another in many respects (Canada and the United States) may nevertheless be valuable because of its rich internal cultural diversity. Internal vs external self-determination. The right to internal selfdetermination is a people’s right to develop itself economically, socially, and culturally, and the right to determine its political status within a sovereign state. It may take different forms, depending on the valid moral claims that the people make. It may involve political representation, self-government, participation in the constitutional conversation, the creation of its own internal constitution, and/or the formal recognition of a politics of difference. The right to external self-determination is a people’s right to have a sovereign state. It may be through secession, in which case the seceding people creates its own state. It may be through association, in which case, as in secession, the territorial integrity of the parent state is violated, but this time by choosing to be part of another already existing state. It can also take the form of a people’s right to have the state that it already possesses. Violation of territorial integrity for a stateless people may be justified when it is colonized or politically oppressed, or when its right to internal selfdetermination is violated. The people belonging to the parent state loses its right to own a state and its right to maintain its own territorial integrity if it violates the internal self-determination of a stateless people occupying this territory.

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Liberty of ancients vs liberty of moderns. The liberty of ancients refers to the set of political (positive) liberties interpreted as citizens’ political obligations to become involved in the political reality of their own people. According to a particular view, it stems from a people’s right to secure its own social cohesion, social unity, and political stability. The liberty of moderns refers to the set of civic (negative) liberties interpreted as citizens’ rights to act in accordance with their own rational preferences without interference from the state. The liberal state is obliged to guarantee a system of such rights to its population. Modus vivendi. A rational agreement based on prudential motivation in non-ideal theory. It is opposed to a true consensus where the endorsement is based on public reason in ideal theory. Moral (person or peoples). This notion belongs to the self-representation of persons or of peoples. Persons and peoples see themselves as having first two moral powers. They see themselves as reasonable, that is as having a sense of justice, and see themselves as rational agents, acting in accordance with their own ends. Persons and peoples also see themselves as free, that is able to exercise their rational autonomy and revise their conceptions, and equal, and therefore as able to participate equally in the determination of just principles. In the context of political liberalism, these self-representations apply to political agents, that is citizens and whole societies. In democracies, the rational autonomy of the people, their rational preferences, and their actions are determined by the majority of their citizens. National minority. A certain sort of stateless people, in Will Kymlicka’s terminology. It is to be distinguished from indigenous peoples and from immigrant groups. As contrasted with immigrant groups, it aspires to a certain form of self-government. As contrasted with indigenous peoples, it cannot claim ancestral rights. According to Kymlicka, recognition of national minorities is compatible with the nationstate model. Neo-realism (international relations). A contemporary philosophical and political view about international relations that sees them still dominated by the interactions between nation-states. It is a view that downplays the role of supranational organizations such as the United Nations, unesco, and the European union.

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Ontological neutrality. In addition to religious-state neutrality (secularism) and moral-state neutrality (neutrality of justification and not neutrality of treatment or of consequential effects), the state must show an ontological neutrality toward different philosophical views about the person (individualism and communitarianism). Among other things, it must not be based on ethical individualism, since that doctrine presupposes a certain view of the person as “prior to her ends.” Overlapping consensus. For Rawls at the time of Theory of Justice, the method of original position under the veil of ignorance was the main way to arrive at a consensus on principles of justice. With Political Liberalism, this method no longer appears to be the only tool at our disposal. Reasonable individuals and groups having different comprehensive views about religion, morality, or metaphysics may nevertheless be able to deduce from their own beliefs, values, and practices a common set of principles of justice. This agreement is what Rawls calls an overlapping consensus. The principles that are obtained by an overlapping consensus may reinforce those that were arrived at under the veil of ignorance in the original position. These principles will be acceptable as long as it is possible to also arrive at them through the use of public reason alone. Peoples. These are populations that form societies or societal cultures in the political space. They are structures of cultures incorporated into characters of culture. They have objective features such as languages, institutions, and historical trajectories on given territories, and also subjective features such as a self-representation and the will to survive as a group (Renan’s daily plebiscite). There are different sorts of peoples (ethnic, cultural, civic, multi-societal, socio-political, multi-territorial, and diasporic). In each case, specific features are added to the basic common features that belong to all societal cultures. It may be a reference to a common ancestry, to a common multi-ethnic language, culture, and history, to a mono-societal country, to a multi-societal country, to a common public language, culture, and history with a non-sovereign government on a continuous territory or to a diaspora. There are also different sorts of minority fragments of peoples, which should not be confused with whole peoples: contiguous diasporas (kin minorities) and non-contiguous diasporas (e.g., immigrant groups).

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Political esteem vs political respect. Respect and esteem are two concepts of recognition that have been developed by Axel Honneth since 1992. For him, the first leads to a politics of equality, recognizing the equal dignity of individuals in a system of rights. The second one, esteem, leads to a politics of difference, recognizing the specific contribution of individuals in the workforce. In the context of the present work, political respect and esteem apply to citizens when justice is applied in a single society and to peoples when justice is applied in the society of peoples, and it concerns culture and not only socio-economic reality. Political stability. This is the ultimate value of political liberalism. When justice is applied within a single society, the choice is not only between treating the system of rights and liberties as intrinsically valuable in itself or treating it as instrumentally valuable for individuals, for it can also be described as instrumental for political stability. However, political stability is not an end that can be sought for itself, no matter what. According to Rawls, the goal to be achieved is political stability “for the right reasons.” This means that the system of rights and liberties for persons and for peoples is essential for stability. The value of political stability is not a primitive moral fact. It is derived from our self-representations as moral rational agents and the fact that we are in a system of cooperation for mutual benefits. Because of the mutual interdependence of persons and peoples, instability would affect our self-representation as agents capable of acting in accordance with our life plans (our conception of the good life and our conception of the common good). This is why political stability is so important. Poly-ethnic rights. In Kymlicka’s terminology, these rights can be claimed by ethnic groups. For him, these groups are essentially immigrant groups. They do not seem to include other sorts of non-contiguous diasporas, such as second-generation Pakistanis in Great Britain or AfroAmericans in the United States. Their rights are to be distinguished from the those of self-government and self-determination that can be claimed only by “national minorities.” Poly-ethnic rights include, for instance, reasonable accommodations, rights that result from a policy of multiculturalism, or a policy of inter-culturalism, and special rights such as quotas in employment or rights to have working days that differ from those of the majority.

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Rational autonomy. The capacity to revise what we inherit from our traditions, customs, beliefs, and values. In classic liberalism, this capacity means that the person is prior to her ends, and thus not defined by any tradition, custom, belief, or value. But if the capacity to revise is seen as a process of self-discovery, then it is also possible to accept rational autonomy without making the individualistic assumption that a person is metaphysically distinct from traditions, customs, beliefs, and values. Therefore, rational autonomy is also compatible with communitarianism. But after revision has taken place, it would then be another person. In its most basic form that can be adapted to communitarian democracies as well as individualist liberal societies, it involves three things: reflexivity, strong evaluations, and the capacity to perform thought experiment. Realistic utopia. It is the theoretical attempt to formulate ideal norms under the veil of ignorance that can also be accepted by all citizens, or to formulate norms that are justified by public reason alone but that can also be the result of an overlapping consensus between on comprehensive views. It can also be seen as the attempt to develop a conception of justice that can be extracted at the same time from our political culture. It is the reconciliation of ideal theory with stability, and of reason with rationality. It is also present in the idea that the formulation of just principles must seek to achieve a reflective equilibrium between our intuitions and an available set of pondered judgments. It can also be understood as the normative adoption of a general approach based on concrete cases that appear to already locally realize our ideal norms. Finally, it is also present in the hope of developing a strong consensus on norms, despite the irreducible and reasonable moral, religious, and philosophical pluralisms that characterize our societies. Reflective equilibrium. A method that indefinitely seeks to reconcile our intuitions about justice not only with pondered judgments of particular situations (narrow reflective equilibrium), but also with more general views about just principles (wide reflective equilibrium). Societal culture. In Kymlicka’s theory, this term incorporates two essential elements: a cultural structure and a particular character of culture in which the structure is concretely realized. The cultural structure may change, but it can also remain the same, even when the character of

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culture changes. The structure/character distinction coincides with the political and moral characterization of society, as well as the political and moral aspects of a person, in Rawls’s terminology. Toleration as respect. In classical liberalism, toleration as respect involves respect for the autonomy of individuals. The value of the autonomy of persons supersedes toleration as respect. In political liberalism, toleration as respect is a relation that may apply between individualists and communitarian citizens. If the first sorts of citizens value their autonomy more, the second sorts of citizens value their community affiliations more. Toleration as respect is a certain form of recognition. It can hold between persons, but is can also hold between peoples and between persons and peoples. In political liberalism, toleration as respect is essentially instrumental for political stability. Westphalian model (international relations). A conception of international relations according to which these relations are understood as being dominated by nation-states and the respect for their sovereignty.

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chapter one 1 International Covenant on Civil and Political Rights, General Assembly resolution 2200A (xxi) of 16 December 1966. 2 Article 27 stipulates, “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” 3 For arguments explaining why there is a need for recognition, see Axel Honneth (1996) and Charles Taylor (1994). 4 For such an account, see Margaret Moore (2004), David Miller (1995, 2000), and Kai Nielsen (1998, 111–12). 5 The concept of political person is like a “module” that can be attached by citizens to their different comprehensive doctrines (Rawls 2005, 12–13, 145). 6 Here, I also follow Rawls (1999, 23). 7 For the distinction between the structure and character of culture, see Will Kymlicka (1989, 162–168). 8 61/295. United Nations, Declaration on the Rights of Indigenous Peoples, 2007, http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. 9 See Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 scr 217, s 125. 10 It is unfortunate to note that the literature is replete with references to the Quebec population as the “Québécois people.” The occurrence of the French adjective Québécois in an English text suggests that the people of Quebec is composed only of French-speaking individuals. But I shall not

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follow this ethnolinguistic trend. In the case of Quebec, the people must include all the citizens of Quebec. The inclusive concept of people is entirely legitimate if it goes hand-in-hand with recognition of the collective rights of internal minorities. 11 Allowing different concepts of peoples also offers a very simple solution to the debate between modernists and pre-modernists. Modernists like Benedict Anderson (1991), Liah Greenfeld (1992), and Ernest Gellner (1983) see the origin of nations as intimately linked with various modern features such as print capitalism, liberal individualism, or the development of an educational system. Pre-modernists, by contrast, see nations emerging from “ethnies” that were there for quite some time and long before the development of the modern state. See Anthony D. Smith (1988). But if I am right, modernists and pre-modernists simply rely on divergent uses of the term nation. As we shall see, there are many different uses of the term people. 12 Here I use the word ethnic in a more restrictive sense than usual and not in the more traditional, wider cultural sense. 13 I owe the expression to Radha Kumar (2004).

chapter two 1 For a thorough analysis of the concept of strong evaluation and its relation to personal identity, see Arto Laitinen (2003). 2 See Taylor (1994, 34): “My own identity crucially depends on my dialogical relations with others.” 3 Of course, it has also had its detractors: Brian Barry (2002), Chandran Kukathas (1992, 1997), Susan Moller Okin (1999), Jeremy Waldron (1995), and Iris Marion Young (1997), to mention just a few, have developed arguments against his account. Yet it has had a major influence, in particular on authors such as Allen Buchanan (1989, 1994), David Miller (2000), Kok-Chor Tan (2000) and Neos Torbisco Casals (2006). 4 What follows is to a large extent taken from Seymour (2004). 5 For a recent attempt to defend the cultural rights of majorities, see Orgad (2015). 6 Rawls writes, “In this discussion I shall make some general remarks about how I now understand the conception of justice that I have called ‘justice as fairness’ (presented in my book A Theory of Justice). I do this because it may seem that this conception depends on philosophical claims I should like to avoid, for example, claims to universal truth, or claims about the essential nature and identity of persons” (1985, 223).

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chapter three 1 The two original proponents of political liberalism are Larmore (1990a, 1990b, 1999) and Rawls (2005). See also Cohen (2009). For an overview, see Young (2004). For an overview of Rawls’s political liberalism, see Davion and Wolf (2000) and Weithman (2010). For an overview of Rawls’s law of peoples, see Martin and Reidy (2006). For an overview of Rawls’s political philosophy, see Freeman (2003, 2006a). 2 Kok-Chor Tan rightly notes that liberal toleration is not equivalent to a modus vivendi. It is instead a respectful attitude (2000, 23). 3 For a full treatment of these ideas, see Rawls (1982). 4 This interpretation is shared by many authors. See, for instance, Brian Barry (1995), Hyunseop Kim (2015), Jon Garthoff (2016), and Paul Weithman (2010). 5 “With classical republicanism so understood, justice as fairness as a form of political liberalism has no fundamental opposition … classical republicanism does not presuppose a comprehensive religious, philosophical, or moral doctrine” (Rawls 2005, 205). 6 Charles Beitz (2000), Allen Buchanan (2000), Simon Caney (2005), Andrew Kuper (2000, 2004), Thomas Pogge (1994, 2001), Kok Chor Tan (2000), and Philippe Van Parijs and John Rawls (2003) took turns in making their disagreement heard. 7 Instead of “moral relativism,” some could be tempted to talk about “moral pluralism.” However, since, according to Rawls, the only remaining universal values of liberalism are the basic civic liberties, leaving out political liberties, equality of opportunity, and the difference principle, the first label may be more appropriate. 8 See Tan (2000, 109, 176). 9 I agree with Victoria Costa (2011, chapter 8) that it is possible to develop a normative theory of cultural pluralism by using the resources of political liberalism. Contrary to her, however, I intend to show that political liberalism can accommodate collective rights for peoples and not only minimal cultural rights. 10 The law of peoples should stipulate that: 1 “Peoples (as organized by their government) are free and independent, and their freedom and independence is to be respected by other peoples.” 2 “Peoples are equal and parties to their own agreements.” 3 “Peoples have the right of self-defense but no right to war.” 4 “Peoples are to observe a duty of non-intervention.”

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5 “Peoples are to observe treaties and undertakings.” 6 “Peoples are to observe certain specified restrictions on the conduct of war (assumed to be in self-defense).” 7 “Peoples are to honor human rights.” 8 “Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.” 11 Amy Gutman (2003) shares that interpretation, along with Gerald F. Gaus (2007, note 105), and Daniel A. Dombrowski (2001). 12 See also Jones (2016) in which he still opposes a collective and a corporate account of group rights. I fully endorse the corporate view, but with a different terminology. My collective rights correspond to his corporate group rights and do not have anything to do with Raz’s collective view. Raz’s characterization of group rights should have been called more appropriately the “aggregative” view.

chapter four 1 I refer to many different things by the word imbalance, in addition to the things that I already mentioned. A people may violently or not force minorities to adopt a particular religion (or a particular view about the good life or a particular view about the common good). But even if it does not do that, it can nevertheless impose by force a particular structure of culture upon minorities (a common language, for instance). And even if it does not do that, the rule of majority may obtain in such a way that constantly defeats the aspirations of minorities. 2 “It is not said that this distribution is a common asset: to say that would presuppose a (normative) principle of ownership that is not available in the fundamental ideas from which we begin the exposition. Certainly the difference principle is not to be derived from such a principle as an independent premise. The text of Theory mentioned above is commenting on what is involved in the parties’ agreeing to the difference principle: namely, by agreeing to that principle, it is as if they agree to regard the distribution of endowments as a common asset” (Rawls 2001, 75). 3 One of the most important Rawlsian scholars, Samuel Freeman, also appears to be against a global difference principle. He writes, “Nothing comparable to the basic structure of society exists on the global level … Rather than ‘global basic structure,’ Rawls refers to ‘the basic structure of the Society of Peoples” (lp, 61)” (Freeman 2006b, 39). I agree that the global basic structure cannot be compared to the basic structure of socie-

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ty, but I fail to see why this should remove hope for a global difference principle. The diversity of natural endowments for peoples is as important as the diversity of natural endowments for persons. The views about the common good for peoples vary as much as the views about the good life for persons, and the ties that bind different citizens together in societies of immigration looks very much like a microcosm of the global society of peoples.

chapter five 1 According to some authors, Rawls may have failed to appreciate the internal connection between liberalism and democracy. The point has been emphasized in Gutmann (2003). This might explain why he was then led to abandon political liberties as part of the law of peoples. However, as we shall see, his response to Habermas suggests that he wishes to emphasize this connection. So I tend to explain the exclusion of political liberties as a consequence of his neo-realism. He did not think a communitarian democracy was possible. The only possible interlocutors under the veil of ignorance in his law of peoples are decent hierarchical societies. These societies have consultation procedures but not a democratic system. 2 See, for example, Beitz (2000), Buchanan (2000), Caney (2005), Kuper (2000), and Pogge (2001). 3 For studies of cosmopolitan nationalism, see Jocelyne Couture (2000, 2004), Jocelyne Couture and Kai Nielsen (1998, 2005), Thomas McCarthy (1999), Jeff McMahan (1997), Stephen Nathanson (1989, 1997), Kai Nielsen (1998–9, 2000, 2003a, 2003b, 2004), and Samuel Scheffler (1999). For criticism of nationalism based on cosmopolitan individualism, see Barry (1999), Beitz (1983, 1991, 1994, 2000); Habermas (1997), Held (1995), Kuper (2000), Nussbaum (1996, 2000), Pogge (1992, 1994, 2001), Ryan (2006), and Waldron (1995, 2000).

chapter six 1 The literature on collective rights is already quite extensive. It has undergone major developments over the last thirty years. If we confine ourselves to the Anglo-American world, we could mention Baker (1994), Felice (1996), Galenkamp (1998), Green (1991a, 1991b, 1994), Hartney (1995), Ignatieff (2000), Ingram (2000), Jones (1996, 1999a, 1999b), Jovanovic (2005, 2012), Kymlicka (1989, 1995, 2001, 2007), Kymlicka and

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Notes to pages 140–8

Patten (2003), L. May (1987, 1992), S. May (2007), May, Modood, and Squires (2004), McDonald (1987, 1991a, 1991b), Newman (2004, 2007, 2011), Orgad (2015), Réaume (1988, 1994, 2000, 2003), Shapiro and Kymlicka (1997), Sistare, May, and Francis (2001), Taylor (1994), Torbisco Casals (2006), Tully (1995), and Van Dyke (1985, 1995). For a comprehensive survey of the Canadian contributions, see Cardinal (2001). For a classification, see Levy (1997). While taking these different contributions into consideration, I propose an original theory based on political liberalism. Ellis formulates very well what is at stake: Some think of the function of rights as the protection of a range of important interests; others think of it as the protection of those choices that constitute autonomy. There are familiar objections to each of these views. If the function of rights is to protect interests, then it seems odd that we have a right sometimes to choose actions that are against our own interests; this sounds more like the protection of autonomy. On the other hand, the view that rights protect only autonomy makes it hard to understand how children, say, can have rights. (2005, 200–1) According to Wellman (1995), rights involve acting, and only agents can act. Hence only agents can possess rights. With a robust conception of agency, Wellman believes there can be no group rights. My notion of collective good differs from that of Réaume (1988). She considers collective goods to be those goods that can be enjoyed only in a group and not at all on an individual basis. Examples are civic friendship, conversation, choral singing, dancing a waltz, etc. These goods cannot be enjoyed on an individual basis. See also Taylor (1985a) for a similar view. My account of collective goods differs in two ways. First, I accept as collective goods in general those such as a police service that could also be available to individuals only (private police). More importantly, I am concerned to identify the collective goods that are good candidates for collective rights, and these, I believe, are the goods that secure the identity of a group taken as a whole. Under my account, collective goods are indeed first and foremost claimed, enjoyed, and produced by groups of individuals, but in addition they must also preserve the integrity of the group as a whole. The difference can be illustrated by the distinction between a religious association whose interests serve and benefit individuals, and the religious institutions of a people or of a fragment of people that secures the integrity of the group. As we shall see in the next chapter, political liberalism allows for a group to have the collective right to establish, maintain, or develop its religious

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institutions. This is possible in a communitarian democracy, as long as citizens are entitled to imagine a different sort of identification with religion, and all minorities are also entitled to establish, maintain, and develop their own religious identity. 6 See Green (1994). For a discussion, see Eisenberg and Spinner-Halev (2005).

chapter seven 1 Here is a typical reaction: “Individuals are natural units: organized collectivities are constructed ‘units.’ Ethnoculturally defined peoples are, I believe, groupings whose ‘unity’ can be made to appear or disappear depending on which ‘ties that bind’ one may wish to emphasize for political, anthropological, sociological, or historical purposes. The conception of a given ethnoculturally defined people replete with its rights and obligations is a politically and emotionally powerful fiction – but it is a fiction and nothing more. Fictitious entities have no rights” (Graff 1994, 194). 2 For arguments purporting to show that many other groups should be entitled to group rights, see, for instance, Pogge (1997) and Buchanan (1998b). 3 A similar view is to be found in Brett (1991) and Réaume (1994). 4 Of course, these opinions on whether members see their group as forming peoples are not constitutive of the definition of the group. Our definition of a people would be circular if we were to analyze it in terms of opinions of the members that they form a people. The notion to be defined would then occur within the definition. Rather, I am using the opinions about oneself to provide an external epistemological criterion. 5 In general, contiguous diasporas should not have the right to secede. Margaret Moore (2004, 99n48) argues against my distinction between peoples and contiguous diasporas on precisely this ground. She is worried that by making such a distinction, only minority peoples are entitled to rights to self-determination but that national minorities – defined as “minority extensions of neighbouring nations” – are not. I am surprised to read her defending a right to secede not only for peoples but also for all sorts of national groups. Allowing these groups to secede opens the way for partition, irredentism, ethnic cleansing, and more generally, a tremendous international instability. Therefore, her views are here extremely problematic. For a convincing argument, see Kumar (1997).

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6 For a discussion, see Carol Gould (2001, 43). For Gould, the reduction of any collective right can be envisaged even if a reduction is not immediately apparent. The alleged collective right is extremely complex but ultimately supervenes on or even consists in certain individual rights (50). 7 We could also argue that the best way to defend animal rights would be, not by endorsing an animalist conception of the person, but by assimilating domestic animals to a certain class of citizens that would have been deprived of their autonomy. In addition to persons, we can think of all sorts of other agents present in the political realm: juridical entities, peoples, animals, incapacitated persons, fetuses, etc.

chapter eight 1 Referring to legal persons as sources of valid moral claims may sound problematic. But this does imply that companies and individuals should be treated without considering their respective socio-economic position. In particular, we should never endorse or justify abusive strategic lawsuits against public participation launched by companies against individuals. 2 For the purposes of my demonstration, I shall leave aside the rights that diasporic and multi-territorial peoples might have. It is clear that these peoples also have a right to internal self-determination in various locations. 3 Buchanan uses the term nation and not people. In what follows I continue to use the word people. I do not think that anything important turns out from this terminological difference. 4 See also Buchanan (2003, s. 2). 5 As I shall argue below, non-contiguous diasporas (like immigrant minorities) and contiguous diasporas, understood as extensions of national majorities on other territories, may also derivatively acquire similar sorts of rights, but it is precisely because they can be seen as extensions of national majorities in other territories. If these minorities do not see themselves as constituting peoples, in a certain sense they may enjoy the right to “self-determination,” but in this case, it does not necessarily imply a right to self-government, and the failure to comply with their rights does not lead to a justification for secession. There should be other ways to repair the failure of the state to respect their rights. 6 In the Catalan edition of his very first book on secession, Buchanan states that the Catalan people is entitled to secede because the Spanish constitutional court rejected many clauses contained in the new Autonomous Status voted in Catalonia in 2006. Buchanan (2013, 19–20)

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writes, “In my judgment, a stronger case for Catalonia having the nonconsensual right to secede can be made on the basis of allegation that Spain has not shown good faith in responding to Catalan pleas for greater intrastate autonomy.” This evolution in Buchanan’s thought on secession is most welcome. 7 Of course, these protections are additional to those that contiguous diasporas can claim for themselves. Margaret Moore has misunderstood this point in her criticisms of my views. She writes, “It is unclear why it would matter (normatively) to the Croat in Bosnia, the Irish in Northern Ireland, the Anglophone in Quebec (in the event of full secession), that somewhere else on the globe there is a country called Croatia, Ireland, or Canada that is representative of their culture (but is not the state in which they live)” (1999, 191–2). According to my account, contiguous diasporas have institutional rights for schools and hospitals, for instance. So I am not suggesting that they should rely only on the existence of a neighbouring culture in order to secure their own culture.

chapter nine 1 We could interpret Buchanan as providing a consequentialist argument. Problems regarding the application or institutionalization of moral principles would then have important implications at the moral level and would force us to revise what was seen as initially plausible from a moral point of view. But the argument could also be interpreted as raising a problem only from the point of view of stability. According to this account, there are at least two distinct ways to approach the problem of secession. It can be appreciated from a moral perspective or it can be raised from the point of view of stability. A theory of secession will be well founded if it allows us to answer issues concerning both justice and stability. The problem of the institutionalization of principles regarding secession would then concern only an argument related to stability, namely the stability of the international community. If we follow this path, showing that a theory is unable to answer issues concerning stability is an important defect, but it is not one that forces us to question the argument concerning the initial plausibility of moral principles, it is just an additional argument. If we were to argue in such a fashion, we would adopt a deontological account. If, by contrast, the issue of institutionalization were decisive in determining whether we should adopt a certain moral principle, we would commit ourselves in favour of consequentialism. It is clear that Buchanan is a deontologist. In what follows, I shall be neutral

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on the particular interpretation that must be given to the problem of institutionalization. I will not assume anything about the moral implications of this issue. Those who agree with Buchanan and are inclined to read his criticisms as providing a consequentialist argument will be tempted to question the very plausibility of the moral claims made by primary theorists. Those who reject this reading will be inclined to think that primary theories must be appreciated as dealing with issues of justice and of stability. Buchanan’s argument will then be seen as showing that primary right theories have a problem in dealing with the issue of stability. For the purpose at hand, I shall remain neutral on these different uses of Buchanan’s arguments, although it is clear that in the present book I favour a consequentialist approach. See, for instance, Buchanan (2003, s. 3), where he writes, “The deficiencies of existing international law regarding secession motivate the project of developing principled proposals for reform. At present international law recognizes only a very narrow set of circumstances under which the unilateral right to secede exists as an international legal right, namely, when a group is subject to colonial domination.” For an argument favourable to the constitutionalization of the right to secede at the level of the sovereign state, see Weinstock (2001). In my view, confining the right to secede at the level of the state would not be sufficient, for it would allow for abuses. There needs to be an international body responsible for implementing international conventions, including those that are related to secession. un General Assembly Resolution 2625 (xxv). Annex, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, General Assembly Official Records: Twenty-fifth Session, suppl. no 8 (A/8028), 24 October 1970, 131–4. From now on, I shall refer to this document as the Declaration on Friendly Relations among States. Of course, this is just a declaration and not a convention, but international law should not be understood as involving only a list of conventions. Even if declarations do not have the same binding power, they must be considered as relevant in any theory of secession. In any case, we should be inspired by declarations in order to formulate progressive views. And if we do, we shall observe that international law contains measures that are more progressive than the ones that are put forward by Buchanan. By “cultural groups,” I take Buchanan to include not only my seven sorts of peoples, as well as the different minority fragments of peoples, but also religious groups, women, homosexuals, and racial groups.

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6 I agree with Radha Kumar when she writes that we must distinguish “ethnic partition from negotiated secession or a dissolved federation on two grounds: demography and borders. When an existing administrative unit leaves a state, it is secession; where new borders have to be carved out of existing units, it is partition. And where a mono-ethnic or singlereligion state is created from a multi-ethnic or multi-religious state, it is ethnic partition” (Kumar 2004, 248). 7 Until now, the international community has even refused to grant secession to the Serbs within Bosnia, and it only reluctantly accepted secession by the Albanian Kosovars within Serbia. One reason is that these groups do not describe themselves as peoples. They are rather what we could call “contiguous diasporas.” They illustrate the case of national groups that do not perceive themselves as constituting an entire people, and thus are not “minority peoples,” in the sense that they are extensions of neighbouring national majorities (respectively, the Serbs of Serbia and the Albanians in Albania). At the same time, the international community has accepted the secession of Bosnia, Croatia, and Slovenia, and it did so precisely because, among other things, they could legitimately claim to be peoples. In so doing, it may have been influenced by the fact that Bosnia, Croatia, and Slovenia were republics within former Yugoslavia and thus were already recognized as having distinct territories, but this does not prove that the international community did not treat them as peoples. It may mean that having a formally recognized territory is very often a crucial constitutive component of national identity for the international community. The international community is aware that there are numerous contiguous diasporas all over the world, and especially in the Balkans, and this is why it is extremely reluctant to allow for secession to take place when the group does not form a nation all by itself. This does not imply that Kosovo should have remained a province of Serbia. It implies that when the international community decided to allow for secession to take place for Kosovars, its decision was based on prudential considerations, and not on the basis of a general right. 8 See also Article 1 of the Vienna Declaration and Programme of Action, a/conf.157/24, 25, the un World Conference on Human Rights, June 1993. 9 Curiously enough, this is also true of Will Kymlicka (2007). He thinks that national minorities, that is, stateless minority peoples that are not indigenous, do not have much protection in international law. The only provision that applies to them is Article 27 of the International Covenant on Civil and Political Rights (iccpr). Preda makes the same assertion

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(2012, 252n60). Like Kymlicka, she claims that article 27 grants rights to members of national minorities and does not envisage group rights. But Kymlicka and Preda ignore the right to internal self-determination that all peoples have and that is present in many un documents, including Article 1 of iccpr! The article stipulates, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” As a matter of fact, according to the Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 scr 217, “The existence of the right of a people to self-determination is now so widely recognized in international conventions that the principle has acquired a status beyond ‘convention’ and is considered a general principle of international law” (114). It is also clear that, in all these documents, the notion of a people is not restricted to whole populations of sovereign states. The Supreme Court once again: “It is clear that ‘a people’ may include only a portion of the population of an existing state” (ibid.). Finally, in all those documents, a reference is made to all peoples and not only to a subset of peoples, like those belonging to the old African colonies. So pace Kymlicka and Preda, “national minorities” do have an internationally recognized right to internal self-determination, and it is simply false to pretend that the only protection they have is located in Article 27 of the iccpr. In accordance with his multi-targeted approach, I share Kymlicka’s hope that one day, we shall have for the benefit of minority peoples (or “national minorities,” as he wishes to call them) a declaration similar to the one that was designed for indigenous peoples. However, the generic right of self-determination described in Article 1 of the covenant clearly serves as a stronger launching pad for the recognition of that kind of right. As it now stands, Article 27 does not apply to minority peoples and is not the relevant resource available for them. Therefore Kymlicka is totally wrong in suggesting that national minorities can rely on Article 27 only. Again, the reason is that they can rely on the generic right asserting that all peoples have a right to self-determination. Article 27 applies only to ethnic minorities such as immigrant groups. 10 We could also add the violation of the procedural right to participate in the negotiation concerning constitutional reform, although as far as I can see, this latter right cannot be derived clearly from any un documents, apart from the Declaration on the Rights of Indigenous Peoples. 11 Recall conditions of the daily plebiscite and holism in chapter 6, in the list of conditions constraining the application of collective rights.

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References

Altman, Andrew, and Christopher H. Wellman. 2009. A Liberal Theory of International Justice. Oxford: Oxford University Press. Anderson, Benedict. 1991. Imagined Communities: Reflections on the Origin and Spread of Nationalism. London: Verso. Appiah, Anthony Kwame. 1994. “Identity, Authenticity, Survival: Multicultural Societies and Social reproduction.” In Multiculturalism, ed. Amy Gutman, 149–63. Princeton: Princeton University Press. – 2005. The Ethics of Identity. Princeton: Princeton University Press. – 2006a. “The Case for Contamination.” New York Times, 1 January. – 2006b. Cosmopolitanism. New York: W.W. Norton. Audard, Catherine. 2009. John Rawls. Montreal and Kingston: McGill-Queen’s University Press. Baker, Judith, ed. 1994. Group Rights. Toronto: University of Toronto Press. Barry, Brian. 1995. “John Rawls and the Search for Stability.” Ethics 105 (4): 874–915. – 1999. “Statism and Nationalism: A Cosmopolitan Critique.” In Global Justice, ed. Ian Shapiro and Lea Brilmayer, 12–66. New York: New York University Press. – 2002. Culture & Equality: An Egalitarian Critique of Multiculturalism. Cambridge, ma: Harvard University Press. Beitz, Charles R. 1983. “Cosmopolitan Ideals and National Sentiment.” Journal of Philosophy 80 (10): 591–600. – 1991. “Sovereignty and Morality in International Affairs.” In Political Theory Today, ed. David Held, 236–54. Cambridge: Polity. – 1994. “Cosmopolitanism, Liberalism and the States System.” In Political Restructuring in Europe: Ethical Perspectives, ed. Chris Brown, 123–36. London: Routledge.

298

References

– 2000. “Rawls’s Law of Peoples.” Ethics 110 (4): 669–96. Benhabib, Seyla. 2002. The Claims of Culture: Equality and Diversity in the Global Era. Princeton: Princeton University Press. Beran, Harry. 1984. “A Liberal Theory of Secession.” Political Studies 32:21–31. Bhargava, Rajeev, ed. 1998. Secularism and Its Critics. Oxford: Oxford University Press. – ed. 1999. Multiculturalism, Liberalism and Democracy. Oxford: Oxford University Press. – 2004. “The Majority-Minority Syndrome and Muslim Personal Law in India.” In The Fate of the Nation-state, ed. Michel Seymour, 327–56. Montreal and Kingston: McGill-Queen’s University Press. Brett, Nathan. 1991. “Language Laws and Collective Rights.” Canadian Journal of Law and Jurisprudence 4 (2): 347–60. Buchanan, Allen. 1989. “Assessing the Communitarian Critique of Liberalism.” Ethics 99:852–82. – 1994. “Liberalism and Group Rights.” In In Harm’s Way: Essays in Honour of Joel Feinberg, ed. Jules L. Coleman and Allen Buchanan, 1–15. Cambridge: Cambridge University Press. – 1998a. “The International Institutional Dimension of Secession.” In Theories of Secession, ed. Percy B. Lehning, 227–56. London: Routledge. – 1998b. “What’s So Special about Nations?” In “Rethinking Nationalism,” ed. Jocelyne Couture, supplement, Canadian Journal of Philosophy 22: S283–S309. – 2000. “Rawls’s Law of Peoples: Rules for a Vanished Westphalian World.” Ethics 110:697–721. – 2003. “Secession.” Stanford Encyclopedia of Philosophy. – 2004. Justice, Legitimacy, and Self-Determination. Oxford: Oxford University Press. – 2013. Secesión: Causas y consecuencias del divorcio político. Barcelona: Ariel. Burge, Tyler. 1979. “Individualism and the Mental.” In Studies in Metaphysics. Midwest Studies in Philosophy, ed. Peter A. French. Minneapolis: University of Minnesota Press, 4:73–121. Caney, Simon. 2005. Justice beyond Borders: A Global Political Theory. Oxford: Oxford University Press. Canovan, Margaret. 1996. Nationhood and Political Theory. Cheltenham: Edward Elgar Publishing. Cardinal, Linda. 2001. “Collective Rights in Canada: A Critical and Bibliographical Study.” National Journal of Constitutional Law 2 (2): 165–225. Cavalli-Sforza, Luigi Luca. 2001. Genes, Peoples and Languages. Berkeley: University of California Press.

References

299

Cohen, Joshua, ed. 1996. For Love of Country: Debating the Limits of Patriotism. Boston: Beacon. – 2009. Philosophy, Politics, Democracy. Cambridge, ma: Harvard University Press. Copp, David. 1979. “Collective Actions and Secondary Actions.” American Philosophical Quarterly 16:177–86. Costa, Victoria. 2011. Rawls, Citizenship, and Education. New York: Routledge. Courtois, Stéphane. 2005. “Are Multiculturalist Theories Victims of the ‘Cultural Essentialism’ Fallacy?” Human Affairs 15 (2): 149–65. Couture, Jocelyne. 2000. “Cosmopolitan Democracy and Liberal Nationalism.” In Nationalism and Ethnic Conflict: Philosophical Perspectives, ed. Nenad Miscevic, 261–82. Chicago: Open Court. – 2004. “Nationalism and Global Democracy: Between the Myth of Community and the Mirage of the Global Village.” In The Fate of the Nationstate, ed. Michel Seymour, 69–89. Montreal and Kingston: McGill-Queen’s University Press. Couture, Jocelyne, and Kai Nielsen. 1998. “Liberal Nationalism, Both Cosmopolitan and Rooted.” In “Rethinking Nationalism,” ed. Jocelyne Couture, Kai Nielsen, and Michel Seymour, Canadian Journal of Philosophy 22:S579–S662. – 2005. “Cosmopolitanism and the Compatriot Priority Principle.” In The Political Philosophy of Cosmopolitanism, ed. Gillian Brock and Harry Brighouse, 180–95. Cambridge: Cambridge University Press. Davion, Victoria, and Clarke Wolfe, eds. 2000. The Idea of Political Liberalism. Lanham, md: Rowman and Littlefield. Dennett, Daniel. 1988. “Why Everyone Is a Novelist.” Times Literary Supplement, 4459 (September 16–22): 1016, 1028–9. Reprinted as “The Self as a Center of Narrative Gravity,” in Self and Consciousness: Multiple Perspectives, ed. F. Kessel, P. Cole, and D. Johnson, 4–237. Hillsdale, nj: Erlbaum, 1992. – 1989. “The Origins of Selves.” Cogito 3:163–73. Reprinted in Daniel Kolak and R. Martin, eds., 1991, Self & Identity: Contemporary Philosophical Issues. New York: Macmillan. – 1992. “The Reality of Selves.” In Consciousness Explained, 412–30. Boston: Little, Brown. Dombrowski, Daniel A. 2001. Rawls and Religion: The Case for Political Liberalism. New York: State University of New York Press. Dworkin, Ronald. 1989. “Liberal Community.” California Law Review 77 (3): 479–504. Eisenberg, Avigail. 2006. “Identity, Multiculturalism and Religious Arbitration: The Debate over Sharia Law in Canada.” In Sexual Justice/Cultural Jus-

300

References

tice, ed. Barbara Arneil, Monique Deveaux and Rita Dhamoon, 211–30. New York: Routledge. – 2009. Reasons of Identity: A Normative Guide to the Political and Legal Assessment of Identity Claims. Oxford: Oxford University Press. Eisenberg, Avigail, and Jeff Spinner-Halev, eds. 2005. Minorities within Minorities. Cambridge: Cambridge University Press. Ellis, Anthony. 2005. “Minority Rights and the Preservation of Languages.” Philosophy 80:199–217. Felice, William F. 1996. Taking Suffering Seriously. The Importance of Collective Human Rights. New York: suny Press. Ferry, Jean-Marc. 1996. L’éthique reconstructive. Paris: Éditions du Cerf. Fraser, Nancy. 1996. “From Redistribution to Recognition?” In Justice Interruptus. New York: Routledge. – 2000. “Rethinking Recognition.” New Left Review 3:107–20. – 2001. “Recognition without Ethics?” Theory, Culture and Society 18 (2–3): 21–42. – 2005. “Reframing Justice in a Globalizing World.” New Left Review 36:1– 19. Fraser, Nancy, and Axel Honneth. 2003. Recognition or Redistribution? London: Verso. Freeman, Michael. 1995. “Are There Collective Human Rights?” Political Studies 43:25–40. Freeman, Samuel, ed. 2003. The Cambridge Companion to Rawls. Cambridge: Cambridge University Press. – 2006a. Justice and the Social Contract: Essays on Rawlsian Political Philosophy. Oxford: Oxford University Press. – 2006b. “The Law of Peoples, Social Cooperation, Human Rights, and Distributive Justice.” Social Philosophy and Policy 23 (1), 23–61. Galenkamp, Marlies. 1998. Individualism versus Collectivism: The Concept of Collective Rights. Rotterdam: Gouda Quint. Galeotti, Anna Elisabetta. 2002. Toleration as Recognition. Cambridge: Cambridge University Press. Garthoff, Jon. 2016. “Rawlsian Stability.” Res Publica 22 (3): 285–99. Gaus, Gerald F. 2007. “On Justifying the Moral Rights of the Moderns: A Case of Old Wine in New Bottles.” In Liberalism: Old and New, vol. 24, pt 1, ed. Ellen Frankel Paul, Fred Miller Jr, and Jeffrey Paul, 84–119. Cambridge: Cambridge University Press. Gellner, Ernest. 1983. Nations and Nationalism. Ithaca, ny: Cornell University Press. Geertz, Clifford. 1963. “Primordial and Civic Ties.” Excerpt from “The Inte-

References

301

grative Revolution: Primordial Sentiments and Civil Politics in the New States.” In Old Societies and New States, 107–13. New York: Free Press. Gould, Carol. 2001. “Group Rights and Social Ontology.” In Groups and Group Rights, ed. Christine Sistare, Larry May, and Leslie Francis, 56–63. Lawrence: University Press of Kansas. Graff, James A. 1994. “Human Rights, Peoples, and the Right to Self-Determination.” In Group Rights, ed. Judith Baker, 186–214. Toronto: University of Toronto Press. Green, Leslie. 1991a. “Are Language Rights Fundamental?” Osgoode Hall Law Journal 25:639–69. – 1991b. “Two Views of Collective Rights.” In “Collective Rights,” ed. Michael McDonald, special issue, Canadian Journal of Law and Jurisprudence 4 (2): 315–27. – 1994. “Internal Minorities and Their Rights.” In Group Rights, ed. Judith Baker, 100–17. Toronto: University of Toronto Press. Greenfeld, Liah. 1992. Nationalism: Five Roads to Modernity. Cambridge, ma: Harvard University Press. – 2004. “Is Modernity Possible without Nationalism?” In The Fate of the Nation-state, ed. Michel Seymour, 38–50. Montreal and Kingston: McGillQueen’s University Press. Gutmann, Amy, ed. 1994. Multiculturalism and the Politics of Recognition. Princeton: Princeton University Press. – 2003. “Rawls on the Relationship between Liberalism and Democracy.” In The Cambridge Companion to Rawls, ed. Samuel Freeman, 168–99. Cambridge: Cambridge University Press. Habermas, Jürgen. 1972. Knowledge and Human Interests. Boston: Beacon. – 1994. “Struggles for Recognition in the Democratic Constitutional State.” In Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann, 107–48. Princeton: Princeton University Press. – 1995. “Reconciliation through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism.” Journal of Philosophy 92 (3): 109–31. – 1997. “Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight.” In Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal, ed. James Bohman and Matthias Lutz-Bachmann, 113–54. Cambridge: mit Press. – 2005. “Equal Treatment of Cultures and the Limits of Postmodern Liberalism.” Journal of Political Philosophy 13 (1): 1–28. Hartney, Michael. 1995. “Some Confusions concerning Collective Rights.” In The Rights of Minority Cultures, ed. W. Kymlicka, 202–27. Oxford: Oxford University Press.

302

References

Held, David. 1995. Democracy and the Global Order: From the Modern State to Cosmopolitan Governance. Cambridge: Polity. Hobsbawm, Eric. 1983. The Invention of Tradition. Cambridge: Cambridge University Press. Honneth, Axel. 1996. Struggles for Recognition. Cambridge, ma: mit Press. Ignatieff, Michael. 2000. The Rights Revolution. Toronto: Anansi. Ingram, David. 2000. Group Rights. Lawrence: University Press of Kansas. Johnson, James. 2000. “Why Respect Culture?” American Journal of Political Science 44 (3): 405–18. Jones, Peter. 1996. “International Human Rights: Philosophical or Political?” In National Rights, International Obligations, ed. Simon Caney, David George, and Peter Jones, 183–204. Boulder, co: Westview. – 1999a. “Group Rights and Group Oppression.” Journal of Political Philosophy 7 (4): 353–77. – 1999b. “Human Rights, Group Rights, and Peoples’ Rights.” Human Rights Quarterly 21 (1): 80–107. – 2016. “Group Rights.” Stanford Encyclopedia of Philosophy. https://stanford.library.sydney.edu.au/archives/spr2016/entries/rights-group/. Jovanovic, Miodrag. 2005. “Recognizing Minority Identities through Collective Rights.” Human Rights Quarterly 27:625–51. – 2012. Collective Rights: A Legal Theory. Cambridge: Cambridge University Press. Kim, Hyunseop. 2015. “A Stability Interpretation of Rawls’s The Law of Peoples.” Political Theory 43 (4): 473–49. Kukathas, Chandran. 1992. “Are There Any Cultural Rights?” Political Theory 20:105–39. – 1997. “Liberalism, Multiculturalism and Oppression.” In Political Theory: Tradition and Diversity, ed. Andrew Vincent, 132–53. Cambridge: Cambridge University Press. Kumar, Radha. 1997. “The Troubled History of Partition.” Foreign Affairs 76 (1): 22–34. – 2004. “Settling Partition Hostilities: Lessons Learned, the Options Ahead.” In The Fate of the Nation-state, ed, Michel Seymour, 247–70. Montreal and Kingston: McGill-Queen’s University Press. Kuper, Andrew. 2000. “Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons.” Political Theory 28 (5): 640–74. – 2004. Democracy beyond Borders: Justice and Representation in Global Institutions. Oxford: Oxford University Press. Kymlicka, Will. 1989. Liberalism, Community and Culture. Oxford: Oxford University Press.

References

303

– 1995. Multicultural Citizenship. Oxford: Clarendon. – 2001. Politics in the Vernacular. Oxford: Oxford University Press. – 2007. Multicultural Odysseys. Oxford: Oxford University Press. Kymlicka, Will, and Alan Patten, eds. 2003. Language Rights and Political Theory. Oxford: Oxford University Press. Laitinen, Arto. 2003. Strong Evaluation without Sources on Charles Taylor’s Philosophical Anthropology and Cultural Moral Realism. Jyväskylä Studies in Education, Psychology and Social Research 224, University of Jyväskylä. Larmore, Charles. 1990a. Patterns of Moral Complexity. Cambridge: Cambridge University Press. – 1990b. “Political Liberalism.” Political Theory 18 (3): 339–60. – 1999. “The Moral Basis of Political Liberalism.” Journal of Philosophy 96 (12): 599–625. Levy, Jacob. 1997. “Classifying Cultural Rights.” In Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka, 22–68. New York: New York University Press. Maclure, Jocelyn. 2003. “The Politics of Recognition at an Impasse? Identity, Politics and Democratic Citizenship.” Canadian Journal of Political Science 36 (1): 3–21. Margalit, Avishai. 1996. The Decent Society. Cambridge, ma: Harvard University Press. Margalit, Avishai, and Joseph Raz. 1990. “National Self-Determination.” Journal of Philosophy 87 (9): 439–61. Markell, Patchen, 2003. Bound by Recognition. Princeton: Princeton University Press. Martin, Rex, and David Reidy, eds. 2006. Rawls’s Law of Peoples. Oxford: Basil Blackwell. May, Larry. 1987. The Morality of Groups. Notre Dame, in: University of Notre Dame Press. – 1992. Sharing Responsibility. Chicago: University of Chicago Press. May, Stephen. 2007. Language and Minority Rights: Ethnicity, Nationalism and the Politics of Language. London: Routledge. May, Stephen, Tariq Modood, and Judith Squires, eds. 2004. Ethnicity, Nationalism, and Minority Rights. Cambridge: Cambridge University Press. McCarthy, Thomas. 1999. “On Reconciling Cosmopolitan Unity and National Diversity.” Public Culture 11 (1): 175–208. McDonald, Michael. 1987. “The Personless Paradigm.” University of Toronto Law Journal 37:212–26. – ed. 1991a. “Collective Rights,” special issue, Canadian Journal of Law and Jurisprudence 4 (2).

304

References

– 1991b. “Should Communities Have Rights? Reflections on Liberal Individualism.” Canadian Journal of Law and Jurisprudence 4 (2): 217–37. McMahan, Jeff. 1997. “The Limits of National Partiality.” In The Morality of Nationalism, ed. Robert McKim and Jeff McMahan, 107–38. Oxford: Oxford University Press. Miller, David. 1995. On Nationality. Oxford: Oxford University Press. – 2000. Citizenship and National Identity. Cambridge: Polity. Modood, Tarik. 2000. “Anti-Essentialism, Multiculturalism, and the ‘Recognition’ of Religious Groups.” In Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman, 175–95. Oxford: Oxford University Press. – 2007. Multiculturalism. Cambridge: Polity. Moller Okin, Susan. 1999. “Is Multiculturalism Bad for Women?” In Is Multiculturalism Bad for Women?, ed. Joshua Cohen and Matthew Howard, 7–24. Princeton: Princeton University Press. Moltchanova, Anna. 2009. “Collective Agents and Group Moral Rights.” Journal of Political Philosophy 17 (1): 23–46. Moore, Margaret. 1999. “Nationalist Arguments, Ambivalent Conclusions.” In Nationalism and Ethnic Conflicts, ed. Nenad Miscevic, 177–96. Chicago: Open Court. – 2004. The Ethics of Nationalism. Oxford: Oxford University Press. Narveson, Jim. 1991. “Collective Rights?” In “Collective Rights,” ed. Michael McDonald, special issue, Canadian Journal of Law and Jurisprudence 4 (2): 329–45. Nathanson, Stephen. 1989. “In Defense of Moderate Patriotism.” Ethics 99:535–52. – 1997. “Nationalism and the Limits of Global Humanism.” In The Morality of Nationalism, ed. Robert McKim and Jeff McMahan, 176–87. Oxford: Oxford University Press. Newman, Dwight. 2004. “Collective Interests and Collective Rights.” American Journal of Jurisprudence 49:127–60. – 2007. “Putting Kymlicka in Perspective: Canadian Diversity and Collective Rights.” In Accommodating Cultural Diversity: Contemporary Issues in Theory and Practice, ed. Stephen Tierney, 59–78. Burlington: Ashgate. – 2011. Community and Collective Rights. Oxford: Hart Publishing. Nielsen, Kai. 1998–9. “Cosmopolitanism, Universalism and Particularism in an Age of Nationalism and Multiculturalism.” Philosophic Exchange 29 (1): 4–39. – 1998. “Liberal Nationalism and Secession.” In National Self-Determination and Secession, ed. Margaret Moore, 103–33. Oxford: Oxford University Press.

References

305

– 2000. “Cosmopolitan Nationalism.” In Nationalism and Ethnic Conflict: Philosophical Perspectives, ed. Nenad Miscevic, 299–319. Chicago: Open Court. – 2003a. Globalization and Justice. Amherst, ny: Prometheus Books. – 2003b. “Toward a Liberal Socialist Cosmopolitan Nationalism.” International Journal of Philosophical Studies 11 (4): 437–63. – 2004. “Are Nation-states Obsolete?” In The Fate of the Nation-state, ed. Michel Seymour, 153–72. Montreal and Kingston: McGill-Queen’s University Press. Nussbaum, Martha. 1996. “Patriotism and Cosmopolitanism.” In For Love of Country, ed. Joshua Cohen, 2–20. Boston: Beacon. – 2000. For Love of Country? A New Democracy Forum on the Limits of Patriotism. Boston: Beacon. – 2003. “The Complexity of Groups: A Comment on Jorge Valadez.” Philosophy and Social Criticism 29 (1): 57–69. Olson, Eric T. 1997. The Human Animal: Personal Identity without Psychology. New York: Oxford University Press. – 2007. What Are We? A Study in Personal Ontology. New York: Oxford University Press. Orgad, Liav. 2015. The Cultural Defense of Nations: A Liberal Theory of Majority Rights. Oxford: Oxford University Press. Parekh, Bhikhu. 2000. Rethinking Multiculturalism: Cultural Diversity and Political Theory. London: Macmillan. – 2008. A New Politics of Identity: Political Principles for an Interdependent World. Basingstoke: Palgrave Macmillan. Parfit, Derek. 1984. Reasons and Persons. Oxford: Oxford University Press. – 1995. “The Unimportance of Identity.” In Identity, ed. Henry Harris, 13–45. Oxford: Oxford University Press. – 1999. “Experiences, Subjects, and Conceptual Schemes.” Philosophical Topics 26, 217–70. Pettit, Philip. 2003. “Groups with Minds of Their Own.” In Socializing Metaphysics, ed. Frederick F. Schmitt, 167–94. Lanham, md: Rowman and Littlefield Publishers. Pogge, Thomas. 1992. “Cosmopolitanism and Sovereignty.” Ethics 103:48–75. – 1994. “An Egalitarian Law of Peoples.” Philosophy and Public Affairs 23 (3): 195–224. – 1997. “Group Rights and Ethnicity.” In Ethnicity and Group Rights, ed. Ian Shapiro and Will Kymlicka, 187–221. New York: New York University Press. – 2001. “Rawls on International Justice.” Philosophical Quarterly 51 (203): 246–53.

306

References

Preda, Adina. 2012. “Group Rights and Group Agency.” Journal of Moral Philosophy 9:229–54. Putnam, Hilary. 1975. “The Meaning of Meaning.” Minnesota Studies in the Philosophy of Science 7:131–93. Rawls, John. 1971. Theory of Justice. Cambridge: Harvard University Press. – 1982. “Social Unity and Primary Goods.” In Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams, 159–85. Cambridge: Cambridge University Press. – 1985. “Justice as Fairness: Political Not Metaphysical.” Philosophy and Public Affairs 14 (3): 223–51. – 1993. “The Law of Peoples.” Critical Inquiry 20 (1): 36–68. Repr. in On Human Rights: The Oxford Amnesty Lectures 1993, ed. Stephen Shute and Susan Hurley, 41–82. New York: Basic Books. – 1995. “Political Liberalism: Reply to Habermas.” Journal of Philosophy 92 (3): 132–80. – 1999. The Law of Peoples. Cambridge, ma: Harvard University Press. – 2001. Justice as Fairness: A Restatement. Cambridge, ma: Harvard University Press. – 2005. Political Liberalism. New York: Columbia University Press. Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Réaume, Denise. 1988. “Individuals, Groups, and Rights to Public Goods.” University of Toronto Law Journal 38:1–27. – 1994. “The Group Right to Linguistic Security: Whose Right, What Duties?” In Group Rights, ed. Judith Baker, 118–41. Toronto: University of Toronto Press. – 2000. “Official-Language Rights: Intrinsic Value and the Protection of Difference.” In Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman, 245–72. Oxford: Oxford University Press. – 2003. “Beyond Personality: The Territorial and Personal Principles of Language Policy Reconsidered.” In Language Rights and Political Theory, ed. Will Kymlicka and Alan Patten, 271–95. Oxford: Oxford University Press. Renan, Ernest. (1882) 2010. Qu’est-ce qu’une nation? Reprint, Whitefish, mt: Kessinger Publishing. Renault, Emmanuel. 2000a. “Entre libéralisme et communautarisme: une troisième voie?” In Où en est la théorie critique?, ed. Emmanuel Renault and Yves Sintonnier, 251–68. Paris: La Découverte. – 2000b. Mépris social: Éthique et politique de la reconnaissance. Paris: Éditions du Passant. – 2004. L’expérience de l’injustice: Reconnaissance et clinique de l’injustice. Paris: La Découverte.

References

307

Ryan, Alan. 2006. “Cosmopolitans.” New York Review of Books 53 (11), 22 June. Sandel, Michael. 1982. Liberalism and the Limits of Justice. Oxford: Oxford University Press. Scheffler, Samuel. 1999. “Conceptions of Cosmopolitanism.” Utilitas 11 (3): 255–76. Seymour, Michel. 2004. “Collective Rights in Multination States: From Ethical Individualism to the Law of Peoples.” In The Fate of the Nation-state, ed. Michel Seymour, 105–29. Montreal and Kingston: McGill-Queen’s University Press. Shapiro, Ian, and Will Kymlicka, eds. 1997. Ethnicity and Group Rights. New York: New York University Press. Shoemaker, Sydney. 1985. “Critical Notice of Reasons and Persons.” Mind 94:443–53. Reprinted as “Parfit on Identity,” in Reading Parfit, ed. Jonathan Dancy, 135–48. Oxford: Basil Blackwell, 1997. Sistare, Christine, Larry May, and Leslie Francis, eds. 2001. Groups and Group Rights. Lawrence: University Press of Kansas. Smith, Anthony. 1988. The Ethnic Origins of Nations. Oxford: Wiley-Blackwell. Spinner-Halev, Jeff. 2000. Surviving Diversity: Religion and Democratic Citizenship. Baltimore, md: Johns Hopkins University Press. Tamir, Yael. 1999. “Against Collective Rights.” In Multicultural Questions, ed. Christian Joppke and Steven Lukes, 158–80. Oxford: Oxford University Press. Tan, Kok Chor. 2000. Toleration, Diversity and Global Justice. Philadelphia: Pennsylvania State University Press. Taylor, Charles, 1979. Hegel and Modern Society. Cambridge: Cambridge University Press. – 1985a. “Atomism.” In Philosophical Papers, vol. 2, Philosophy and the Human Sciences, 187–210. Cambridge: Cambridge University Press. – 1985b. “The Person.” In The Category of the Person: Anthropology, Philosophy, History, ed. Michael Carrithers, Steven Collins, and Steven Lukes, 257–81. New York: Cambridge University Press. – 1985c. “Self-Interpreting Animals.” In Philosophical Papers, vol. 1, Human Agency and Language, 45–76. Cambridge: Cambridge University Press. – 1985d. “What Is Human Agency?” In Human Agency and Language: Philosophical Papers, vol. 1. Cambridge: Cambridge University Press, chap. 1. – 1989. Sources of the Self: The Making of the Modern Identity. Cambridge: Cambridge University Press. – 1991. “The Dialogical Self.” In The Interpretive Turn: Philosophy, Science, Culture, ed. David R. Hiley, 304–14. Ithaca, ny: Cornell University Press.

308

References

– 1994. “The Politics of Recognition.” In Multiculturalism: Examining the Politics of Recognition, ed. Amy Gutmann, 25–73. Princeton: Princeton University Press. – 1995. “Cross-Purposes: The Liberal-Communitarian Debate.” In Philosophical Arguments, 181–203. Cambridge, ma: Harvard University Press. Thomson, Judith J. 1997. “People and Their Bodies.” In Reading Parfit, ed. Jonathan Dancy, 202–29. Oxford: Basil Blackwell. Torbisco Casals, Neus. 2006. Group Rights as Human Rights: A Liberal Approach to Multiculturalism. Dordrecht: Springer. Tully, James. 1995. Strange Multiplicity. Cambridge: Cambridge University Press. – 2001. Introduction to Multinational Democracies, ed. Alain-G. Gagnon and James Tully, 1–34. Cambridge: Cambridge University Press. – 2006. “Reimagining Belonging in Circumstances of Cultural Diversity.” In The Postnational Self, Belonging and Identity, Public Worlds, ed. Ulf Hedetoft and Mette Hjort, 10:152–77. Minneapolis: University of Minnesota Press. Vanderbroucke, Frank. 2001. Social Justice and Individual Ethics in an Open Society. Berlin: Springer-Verlag. Van Dyke, Vernon. 1985. Human Rights, Ethnicity and Discrimination. Westport, ct: Greenwood University Press. – 1995. “The Individual, the State, and Ethnic Communities in Political Theory.” In The Rights of Minority Cultures, ed. Will Kymlicka, 31–56. Oxford: Oxford University Press. Van Parijs, Philippe, and John Rawls. 2003. “Three Letters on The Law of Peoples and the European Union.” In “Autour de Rawls,” special issue, Revue de philosophie économique 8:7–20. Waldron, Jeremy. 1995. “Minority Cultures and the Cosmopolitan Alternative.” In The Rights of Minority Cultures, ed. Will Kymlicka, 93–119. Oxford: Oxford University Press. – 2000. “What Is Cosmopolitan?” Journal of Political Philosophy 8 (2): 227–43. Walzer, Michael. 1983. Spheres of Justice. New York: Basic Books. Weinstock, Daniel. 1999. “La boïte de Pandore.” In Nationalité, citoyenneté et solidarité, ed. Michel Seymour, 17–40. Montreal: Liber. – 2001. “On Some Advantages of Constitutionalizing a Right to Secession.” Journal of Political Philosophy 9:182–203. Weithman, Paul. 2010. Why Political Liberalism? Oxford: Oxford University Press. Wellman, Carl. 1995. “A Defence of Secession and Political Self-Determination.” Philosophy and Public Affairs 24 (2): 142–171.

References

309

Weyl, Glenn. 2009. “Whose Rights? A Critique of Individual Agency as the Basis of Rights.” Politics, Philosophy and Economics 8 (2): 139–71. Williams, Bernard. 1973. Problems of the Self. Cambridge: Cambridge University Press. Williams, Melissa. 1995. “Justice toward Groups.” Political Theory 23:67–91. Young, Iris Marion. 1990. Justice and the Politics of Difference. Princeton, nj: Princeton University Press. – 1997. “A Multicultural Continuum: A Critique of Will Kymlicka’s EthnicNation Dichotomy.” Constellation 4:48–53. Young, Shaun, ed. 2004. Political Liberalism. New York: suny Press.

310

References

The Catalan Parliament

311

Index

Altman, Andrew, 207 association, 145, 164–5, 194 axiological pluralism, 20, 153, 266, 272 Bhargava, Rajeev, 136, 193 Buchanan, Allen, 39–40, 221–6, 237– 49 Caney, Simon, 138, 287n6, 289n2 Canovan, Margaret, 23 citizenship, 8, 107; in a global basic structure, 122; language of citizenship, 258 collective goods, 148, 177, 195, 201– 2, 212 collective interests, 140–2, 177, 208– 11 collective rights, 29–41, 70–9; constraints on collective rights, 142–5; institutionalization of collective rights, 255–7; liberal theory of collective rights, 139–42, 164, 159, 160; object of collective rights, 197, 226–30; subject of collective rights, 162–7, 171, 178, 191–2. See also rights

collective will, 21, 267. See also national consciousness collectivism, moral, 152–3 common good. See culture: structure of community, political, 130, 213, 259 consequentialism, 293n1 context of choice, 17, 19, 70–1, 265 cosmopolitanism. See nationalism: cosmopolitan Courtois, Stéphane, 162 Couture, Jocelyne, 289n3 cultural infrastructures, 96 culture, character of, 11, 18–21, 56–7, 188, 265–8; minority, 191–2; national, 194; societal, 10–14, 17–21, 31–41, 71–2, 157, 177, 265; structure of, 10–11, 18–19, 36, 151, 266–7 democracy, 108, 112, 122–3; communitarian democracy, 102–7, 114, 127–36, 193; democratic principle, 251, 253 diasporas: contiguous, 16, 179–82, 227–30; non-contiguous, 16, 179– 82, 227–30. See also minorities:

312

Index

fragments of peoples; peoples: diasporic difference principle, 69, 87–92, 99 diversity, cultural, 20, 79–84, 178; external, 73–80; internal, 71, 81 duty of assistance, 94, 95, 98, 100 Dworkin, Ronald, 168, 215 essentialism, 160, 186, 237 esteem, 69, 79, 83, 92, 200. See also recognition Fraser, Nancy, 68, 97 Freeman, Michael, 164 Freeman, Samuel, 287n1, 288n3 Galeotti, Anna Elisabetta, 26 Geertz, Clifford, 171, 189 Gellner, Ernest, 6 Green, Leslie, 252, 289n1 (ch. 6), 291n6 Greenfeld, Liah, 23, 171, 286n11 group-differentiated rights, 29–32 Gutmann, Amy, 289n1 (ch. 5) Habermas, Jürgen, 25, 50, 163, 185, 251, 289n1 (ch. 5), 289n3 Hartney, Michael, 199–208, 209–11, 232–6 holism, 151 humanism, civic, 50 identity: communitarian: 130–1; institutional, 10–11, 17, 150, 169, 173; moral, 25, 26, 131–2, 156; national, 71–2, 80, 160, 172–3, 259; of peoples, 265; personal, 10, 25, 132; public, 261 indigenous peoples. See under peoples

individualism, 29; anti-, 215 institutional goods, 197. See rights: objects of institutional identity. See identity institutions of a people. See culture: societal; identity: institutional integration, civic, 255–62 interculturalism, 260–1 Jones, Peter, 64–5, 141 jus gentium, 103–4 justice, 26–8, 45–7, 61–4, 94, 97–8; distributive, 97–9; theory of, 67; transitional, 144, 247–8 Kant, Immanuel, 44, 53, 60, 108, 113, 114, 206, 263, 264 Kukathas, Chandran, 249–52, 186–8, 190–1 Kymlicka, Will, 10, 29–41, 130–1, 163, 178, 227, 237 Laitinen, Arto, 286n1 language, 18–19, 80, 172–3, 213; as collective property, 148–9, law, 258–62. See also culture: structure of liberalism, 26–8, 41–2, 44–5, 151, 157–8; based on ethical individualism, 29, 43–5, 113–14, 200, 271; based on value individualism, 200, 201–2, 207. See also political liberalism liberty, civic, 50, 62; individual, 35; of ancients, 50, 63; political, 50, 62, 63 MacIntyre, Alasdair, 215 Maclure, Jocelyn, 163 Margalit, Avishai, 28, 238

Index

Markell, Patchen, 163 Mcdonald, Michael, 52, 164, 290n1 Mill, John Stuart, 44, 58, 60, 113, 114, 206, 263, 264 Miller, David, 285n4, 286n3 minorities, 159, 227, 258; ethnic, 4, 285n2; fragments of peoples, 16, 179–82, 180, 226–7; within minorities, 252–5. See also diasporas: contiguous; diasporas: non-contiguous minority groups. See minorities: fragments of peoples modus vivendi, 74–5, 123, 175 Moore, Margaret, 238, 285n4, 291n5, 293n7 multiculturalism, 260 nation, 13. See peoples national consciousness, 13, 21, 151, 267 national groups. See minorities: fragments of peoples; peoples nationalism, 6, 23, 82–3, 270–2; civic, 258; cosmopolitan, 137–8 national minorities. See minorities: fragments of peoples neutrality, 42, 132, 135, 154 193 Newman, Dwight, 52, 140, 163, 215, 289–90n1 Nielsen, Kai, 285n4, 289n3 ontology, 183; individualism, 203; social, 9, 10, 150, 160 overlapping consensus, 46, 102, 119– 24 Parekh, Bhikhu, 28, 52, 164, 193 patriotism, 213–14 peoples, 49–54, 59–60, 65, 78–84;

313

changing nature of, 188; civic, 7–8, 15, 22, 246; civic/ethnic dichotomy, 7; conception of, 182–9; cultural, 15; diasporic, 15, 21–2, 228; ethnic, 15; indigenous, 7, 149, 254–5; law of, 103–4; as moral agents, 76–9; multi-societal, 15, 20, 22; multi-territorial, 15, 228; political conception of, 17–24, 264–5; rights of, 52, 61–4; socio-political, 15, 22, 247; stateless, 4–9, 22; status of, 171–2 person, 10, 52–3, 75–8, 99, 190, 218; concept of, 237; in the global basic structure, 90–2; legal, 75–6; liberal, 263; rights of, 62; stateless, 194 Pettit, Philip, 141, 151 pluralism, 105–6, 116–19, 125 Pogge, Thomas, 40, 138, 287n6, 289nn2–3, 291n2 political identity. See identity political liberalism, 41–2, 109–15, 264; as recognition of collective rights, 75–8; general entitlement condition for, 149–52; universality of, 136–8, 109–15, 264 politics of cultural pluralism, 260–1 politics of difference, 69, 96–7, 268 principle, difference. See difference principle principle asserting the value of diversity of individual cultural expressions (pvdce), 84–5, 87, 88 principle asserting the value of diversity of individual talents (pvdit), 88, 91 principle asserting the value of diversity of natural resources (pvdnr), 88, 91

314

Index

principle asserting the value of diversity of societal culture (pvdsc), 85–7, 88 principle of effectivity, 240–1 principle of empowerment, 9, 50 principle of uti possidetis juris, 247–8 public reason, 85, 111, 119–24 Putnam, Hilary, 151 rational autonomy, 106–7, 128, 130–1 Rawls, John, 53–5, 56–60, 67, 77–8, 90–1, 107–15, 155–6, 263; on application of justice, 51, 57; on conception of justice, 101; on liberalism, 41–2; on the veil of ignorance, 48, 101. See also political liberalism Raz, Joseph, 64–5 realistic utopia, 75, 138, 125, 126, 127 Réaume, Denise, 208–9 recognition, 5–9, 95–9, 197, 264; of collective rights, 159; cultural, 67– 9; politics of, 8, 34, 85, 139, 161; reciprocal, 75–6 reflective equilibrium, 119 republicanism, 50 respect, 20, 75, 79, 207, 264; principle of equal, 40, 69. See also toleration rights, 43–53; constructivist approach to, 47–8, 185; individual, 165–6; legal, 231–7; moral, 231–7; object of, 146, 150, 157; polyethnic, 182, 227, 229; subject of, 48, 51, 145–6, 197; system of, 46–8; theory of, 27, 148–9. See also collective rights

Sandel, Michael, 214, 215 secession: primary right theory of, 221–6, 236–38, 237–43, 244; remedial right only theory of, 221–26, 238, 244; right to, 221–4, 238–9, 246 self-determination, 196, 215–21; external, 221–6; internal, 216, 219– 21, 247–8. See also secession Smith, Anthony D., 171, 286n11 society, 49, 53, 58, 191; closed, 59, 65, 69, 72, 134, 164; communitarian, 54, 106, 222; decent hierarchical, 54–5, 102–5, 285; global, 118; liberal, 138, 142; non-liberal, 110, 136, 272. See also peoples sovereignty, 5–6, 240 Spinner-Halev, Jeff, 137, 193, 252, 291n6 stability, political, 20–1, 48–53, 77, 86–7, 264 state, encompassing, 5, 6, 9, 11, 12; multinational, 3–23 structure: basic, 45–7, 86; global, 55, 106, 110, 115–19 system of cooperation, 49, 77, 86, 91 talent, 88–9, 98. See also principle asserting the value of diversity of individual talents Tamir, Yael, 43 Tan, Kok-Chor, 55, 130–1 Taylor, Charles, 25–9, 157–8, 211–15 toleration, 98, 123, 128–9, 192; principle of toleration, 74–5, 77, 86–7, 98 Tully, James, 163, 225

Index

Van Dyke, Vernon, 164, 289–90n1 Van Parijs, Philippe, 287n6 Walzer, Michael, 28, 215 Weinstock, Daniel, 40, 294n3 Wellman, Christopher H., 207

315

Westphalian conception of international relations, 3 Williams, Melissa, 163 Young, Iris Marion, 95, 286n3

316

Index