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Citizenship and Rights in Multicultural Societies
 9781474467919

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CITIZENSHIP AND RIGHTS IN MULTICULTURAL SOCIETIES

Citizenship and Rights in Multicultural Societies

Edited by Michael Dunne andTiziano Bonazzi

K E E L E U N IV E R S IT Y PRESS

First published in 1995 by Keele University Press Keele, Staffordshire © respective contributors Transferred to digital print 2014 Composed by KUP Printed and bound by CPI Group (UK) Ltd Croydon, CRO 4YY

ISBN 1 85331 112 X

Contents

Foreword

7

Acknowledgements

9

Bibliographical Note

11

Contributors

12

Introduction: Multiculturalism, the Nation-State and Citizenship Michael Dunne and Tiziano Bonazzi

15

Part Is Multiculturalism and Citizenship in the Liberal State To Share or not to Share? The Liberal Treaty Revisited Antonella Besussi The Concept of the Nation and the Question of Nationalism: The Traditional ‘Nation State’ versus a Multicultural ‘Community State’ Hans Koehler Political and Juridical Approaches to Justice toward Groups Melissa S. Williams

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Part II: Citizenship and Rights in Multicultural Britain When Culture Becomes Race: Religious Identities and the Nation Kadiatu Kanneh The Political Sociology of a Multicultural Society John Rex ‘A Union without Cohesion’: Religion, National Identity and the ‘British Constitution’ in the Nineteenth Century John Ballance

69 79

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Part HI: Citizenship and Rights in Multicultural Europe and America Multiculturalism and Constitutional Values in Germany Volkmar Gotz Constitutional Equality and the Anti-Discrimination Principle in France: The French System in Comparative Perspective Guy Scoffoni

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127

America and Multiculturalism Robert Schmuhl

141

Rights in a Pluralist State: The Case of Spain Pablo Lucas Murillo de la Cueva

153

Legal Rights, the New Minorities and Multiculturalism in Contemporary Italy Giuseppe De Vergottini

169

Part IV: Constitutional Rights and Constitutionalism in Multicultural Societies Minorities and Protected Minorities: Constitutional Models Compared Roberto Toniatti

195

Constitutions and Rights in Central and Eastern Europe A. E. Dick Howard

221

Creating Citizens for aConstitutional Democracy Walter F. Murphy

235

Postscript: Multiculturalism in Europe and America Michael Dunne

265

Index

283

Foreword

In April 1991 the University of Sussex was host to a conference com­ memorating the US Bill of Rights and entitled ‘W riting a National Identity: Political, Economic and Cultural Perspectives on the Written Constitution’. Sponsored by the British Fulbright Commission, with supporting funds from the US Embassy in London, the Sussex Ful­ bright Colloquium was organized by Vivien Hart, Reader in American Studies, and Shannon Stimson, then Visiting Fulbright Professor and now Professor in the Department of Political Science at the University of California, Berkeley. Participants from the British Isles, continental Europe and North America joined members of the Sussex faculty in examining the texts and contexts of written constitutions and the mutual influences of European and American political models. The proceed­ ings of the Sussex Fulbright Colloquium, edited by Vivien Hart and Shannon Stimson, have been published by Manchester University Press as Writing a National Identity: Political, Economic and Cultural Perspectives on the Written Constitution, Fulbright Papers no. 11 (1993). The Sussex Fulbright Colloquium was one of the opening programmes in the work of the Cunliffe Centre for the Study of Constitutionalism and National Identity. The Cunliffe Centre is named to commemorate the work of Marcus Cunliffe, the first Professor of American Studies at the University of Sussex. The Centre provides professional and institutional links between scholars in Europe and North America working across such areas as law, political science, history, literature and cultural studies - areas in which Marcus Cunliffe made such distinguished contributions to scholarship. The second conference in this series was held at the Universita degli Studi di Bologna from 15-17 April 1993, in the magnificent Palazzo Hercolani, home of the Centro di Studi Politici A de Tocqueville. The local organizer was Professor Tiziano Bonazzi of the Dipartimento di Politica, Istituzioni, Storia. The bulk of the funding for the Bologna Colloquium was supplied by the Commissione per gli scambi culturali fra l’ltalia e gli Stati Uniti (the Fulbright Commission in Rome). Addi­ tional funding came from the Johns Hopkins University Center in Bologna. The British Council, through its offices in Rome and Bologna, was also a major supporter of the Bologna Colloquium.

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The theme of the Bologna Colloquium was ‘Multiculturalism and Citizens’ Rights in Europe and America’. More than fifty scholars and practitioners (with some thirty different academic and professional affiliations) attended the Colloquium; and among their number were constitutional lawyers, political scientists, historians, literary scholars as well as Africanists and other area-specialists. Among the main topics of discussion were the ideological, cultural, ethnic and linguistic under­ pinnings of the modern secular state. Was it sufficient for the liberal state simply to accept or tolerate religious diversity, for example? Or was there a responsibility, even a need to foster such variety in the interest of new and unpredictable social-cultural syntheses? Particular attention was also given to minority rights in central and eastern Europe; and what multinational structures existed for defining and protecting human rights. Following the pattern set in April 1991 at Sussex, the Bologna Colloquium concluded with a planning session. The Law School of the University of Notre Dame undertook to host a third colloquium in September 1994, on the theme of ‘Professionals as Guarantors and Protectors of Rights’. Colloquium III in this series has taken place, under the direction of Associate Dean Walter F. Pratt, Jr., of the Notre Dame Law School.

Acknowledgements

We are delighted to have this opportunity to thank Professor Carlo Chiarenza, Direttore della Commissione per gli scambi culturali fra Tltalia e gli Stati Uniti for the great contribution the Italian Fulbright Commission in Rome made to financing the Bologna Colloquium of April 1993 on ‘Multiculturalism and Citizens’ Rights in Europe and America’. We also wish to thank the Johns Hopkins Bologna Center for its support and hospitality. The British Council, particularly through its officers in Bologna and Rome (Tony Buckby, Martin Rose and Angela Oakes-Ash), provided constant moral support and practical help; and the Casa Isolani in Bologna was a splendid venue for the opening recep­ tion. After the Colloquium itself the Associazione Roberto Ruffilli, under its President, the Hon. Senatore Romano Baccarini, was generous in helping to bring the work of the Colloquium to a wider audience, notably through the publication of an Italian version of the papers and the organizing in Forli of a seminar in the Facolta di Scienze Politiche of the Universita degli Studi di Bologna on the theme ‘11 Cittadino come Arbitro’ in April 1994. (It is appropriate to remember in the con­ text of the themes of the Bologna Colloquium that Roberto Ruffilli was himself the author of a notable work, La Questione Regionale dalVUnificazione alia Dittatura (1862-1942), Pubblicazioni dell’Istituto per la Scienza dell’Amministrazione Pubblica: Studi e Testi no. 2 (Giuffre, Milano: 1971).) In editing the English-language version of the Bologna papers, the British editor has increased the debts he owes to the scholarly and technical expertise of colleagues at Sussex and further afield. As ever, the members of the Information Services and Inter-Library Loans sections of the University of Sussex Library have been helpful and resourceful; and a special word of thanks to Joan Benning is due. The University Computing Service has rescued many false starts and abortive pro­ grammes: thanks here to Leila Burrell-Davis, Mark Foster and David Hitchin in particular; and, in the School of English and American Studies, thanks to Julie Carr for computer help. To quote an apt and well-meant phrase, the colleagues named carry the palm for a bigger team. More recently in Oxford, Rosamund Campbell (St Antony’s Col­ lege); Elizabeth Martin, Robert McNeil and Martin Smith (Bodleian

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Library); and the librarians of the Taylor Institution have shared their bibliographical knowledge. In London, the staffs of the Library of the Royal Institute of International Affairs, the Reference Center of the Embassy of the United States of America and the Institute of Advanced Legal Studies of the University of London have been as helpful as ever. In The Hague, the Librarians of the Peace Palace have been especially resourceful. I wish to thank also the staff of the Belgian, French, German, Italian, Netherlands and Spanish Embassies in London for sending documentary materials and providing information; as did the Maison Frangaise in Oxford and the Instituto Cervantes in London. Mustapha Hogga, of the University of Marrakech, and Raymond Legeais, of the University of Poitiers, have kindly helped me with technical and legal information. Finally - and most warmly - I offer special thanks to the staff of Keele University Press for commissioning this volume and bringing the work of the Bologna Fulbright Colloquium into a wider, international forum.

Tiziano Bonazzi, Bologna Michael Dunne, Sussex and Oxford

Bibliographical Note

Editors of a work dealing with multiculturalism face a dilemma: whether to preserve difference or seek conformity. Fortunately, we can have both - and conform to local differences! For bibliographical purposes, the place of publication is given in the local form recorded by the publishing-house: e.g. Padova rather than Padua. In the main text and substantive notes, the usual English form is given: e.g. Nuremberg rather than Niirnberg. Where a publisher gives two places in the same country (e.g. Berkeley and Los Angeles), only one is cited. Where the places refer to more than one country (e.g. Wien and Tubingen), then both are given. Referencing books and journals in a variety of languages presents some problems, notably in typographical consistency. The general rule followed in this volume is to offer more rather than less bibliographical information, to help readers locate materials. Since the same book or periodical can often display internal typographical inconsistencies, the format used here has aimed at clarity rather than some ideal, impossible consistency within one language, let alone between a number.

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Contributors

THE EDITORS Tiziano Bonazzi is Professor of American History in the Faculty of Political Sciences, University of Bologna, and Director of the Bologna Seminars: Italia-USA. Professor Bonazzi is an intellectual historian who has published widely in the areas of American colonial and revolutionary history, political theory and the history of historiography. Michael Dunne teaches at the University of Sussex. A specialist in the history of US foreign relations, he is a guest-lecturer at the Netherlands Institute for International Relations at The Hague and currently a mem­ ber of the European Studies Centre at St Antony’s College, Oxford, where he is writing a sequel to his earlier work on the International Court of Justice. *

*

*

John Ballance, formerly of the University of Sussex, is now Tutor/ Counsellor for the Open University. His primary research interest is the history and character of religious nationalism, particularly in the British-Irish context. John Ballance is a member of New Dialogue, a cross-party group working for permanent peace, democracy and good relations between Britain and Ireland and within Ireland. Antonella Besussi has taught at the University of Pavia, where she graduated in philosophy, and is now Assistant Professor in the Faculty of Political Sciences at the University of Milan. She has held visiting research posts at Cambridge and Harvard. She has written on classical and contemporary liberalism; and her current research is on public space and political sharing. She is the author of Societa migliore. Principi e politiche del New Deal. Giuseppe De Vergottini has held chairs in Public Comparative Law and Constitutional Law at the University of Bologna. His theoretical interests include national defence and emergency powers, federalism and parliamentary procedure. He has served as Legal Adviser to the Italian President, and has been Secretary of the Italian Constitutional

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CONTRIBUTORS

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Law Association. The author of Diritto costituzionale comparator Giuseppe De Vergottini is completing a volume on Italian constitutional law. Volkmar Gotz, who took his doctorate at the University of Frankfurt, is Professor of Public Law at the University of Gottingen and director of the European sections of the Institutes of Public International Law and Agricultural Law, where he specializes in constitutional, administra­ tive and European Community law. Volkmar Gotz has been a judge of the Supreme Court of Administrative Justice for Lower Saxony since 1971. His work on police law (Allgemeines Polizei- und Ordnungsrecht) is now in its eleventh edition. A. E. Dick Howard is White Burkett Miller Professor of Law and Public Affairs at the University of Virginia. A Rhodes Scholar and twice Fellow of the Woodrow Wilson Center, Dick Howard has been involved in constitutional drafting for Virginia and for countries in Latin America, central and eastern Europe, Asia and southern Africa. He has been named by Washingtonian magazine as ‘one of the most respected educators’ in the United States. Kadiatu Kanneh, a graduate of the University of Southampton and former visiting scholar of Dartmouth College, is Lecturer in English at the University of Sussex. Her interests and publications are in post­ colonial theory, Black literatures, feminisms and issues of race and representation. Her doctoral dissertation, on pan-Africanism in three continents, will be published as African Identities. Hans Koehler is Professor of Philosophy and Chair of the Department of Philosophy at the University of Innsbruck. He has lectured widely in the United States, Europe and Japan; and he has been honoured in India, Switzerland and Austria for his work on conflict resolution through the International Progress Organization. Hans Koehler’s publications range from Skepsis und Gesellschaftskritik im Denken Martin Heideggers to Democracy and the New World Order. Pablo Lucas Murillo de la Cueva, presently Professor of Constitu­ tional Law at the University of Cordoba, has served as both Counsel and Chief of Staff to the President of the Spanish Supreme Court and the General Council of the Judiciary. Professor Lucas Murillo de la Cueva has taught at the University of Bologna, as well as at a number of Span­ ish universities. Among his works are Sistemaspoliticos contempordneos and Informdtica y proteccion de datos personates. Walter F. Murphy is McCormick Professor ofJurisprudence at Prince­ ton University. A former US Marine Corps officer and a graduate of Notre Dame and the University of Chicago, Walter Murphy has won

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honours for his doctoral dissertation (1957), his study of Congress and the Court (1962), and his novel, The Vicar o f Christ (1979). His is joint author, with Joseph Tanenhaus, of Comparative Constitutional Law. John Rex is Professor Emeritus of Sociology at the University of Warwick. A former adviser to UNESCO, he has held appointments at the Universities of Durham and Aston; has been President of the International Sociological Association’s research committee on racial and ethnic minorities; and was Associate Director of the Centre for Research in Ethnic Relations. Among his many works are Race and Ethnicity and The Ghetto and the Underclass. Robert Schmuhl is Departmental Chair and Director of Graduate Studies in the Department of American Studies at the University of Notre Dame. He has contributed essays to the Boston Globe, the Chicago Tribune, the Philadelphia Inquirer and the Washington Post. Among his many books are The Responsibilities o f Journalism, Statecraft and Stagecraft: American Political Life in the Age o f Personality and Demanding Democracy. Guy Scoffoni is Professor of Public and Comparative Law in the Faculty of Law, Politics and Economics at the University of Avignon. He serves as Director of the Centre de Droit Europeen et Compare, co­ ordinating a collaborative project between research institutes in Avignon, Aix-en-Provence and Montpellier on fundamental rights in the United States, Canada and Europe. Guy Scoffoni studied at the Universities of Aix-en-Provence and UCLA, and took his Doctorat d’Etat in compara­ tive law from Paris II. Roberto Toniatti is Professor of Comparative Constitutional Law at the University of Trento. He has held visiting professorships in law and political science at the Universities of Virginia, Delaware and UC Galway; and he has been Professor of Italian and Comparative Constitutional Law at the University of Bologna. W ith publications on judicial review, European Community law and national security, Roberto Toniatti is the author of Costituzione e direzione della politica estera negli Stati Uniti dAmerica. Melissa S. Williams is Assistant Professor of Political Science at the University of Toronto. She received her AB from Bryn Mawr and her AM and PhD from Harvard University, where her thesis was awarded the Leo Strauss prize by the American Political Science Association. Melissa W illiams’s work on the problematics of liberalism will be pub­ lished as Voice, Trust and Memory: Marginalized Groups and the Failings o f Liberal Representation.

Introduction: Multiculturalism, the Nation-State and Citizenship M ichael Dunne andTiziano Bonazzi

Multiculturalism and the Nation-State A century and a half ago the young Alexis de Tocqueville wrote his brilliant study, Democracy in America . In one of his most powerful - if lesser known - sections Tocqueville described the condition of the ‘Three Races of America’: White, Black and Red, with the first dynamic, the second degraded and the third doomed.1 Fifty years earlier his compa­ triot Crevecoeur had written not just about the ‘new man’ formed on the frontier in revolutionary times but also about the persistence of dif­ ferent European characteristics among the colonists.2As these two classics show, the racial and ethnic complexity which is the United States was seen early on. To put the same point in more modern language: the United States has been a multicultural society since its political foun­ dation. But this simple fact is often ignored. Such deliberate neglect or even simple ignorance can be seen most clearly in the great moments of American expansion: in the years before the Civil War; then at the turn of the century; and finally during the Cold War. The ideology of Manifest Destiny in the 1840s and the more elaborated ideologies for overseas imperialism at the time of the SpanishAmerican War were variations upon the theme of White, and more specifically Protestant, Anglo-Saxon, superiority, all couched in terms of a contrast to other racial-ethnic-religious groups at home and abroad.3As for the Cold War, here the picture is more nuanced but still unmistakable in its essence. The European phase of the Cold War brought a number of ethnic groups (‘hyphenated Americans’) into the fold of 100% Americanism, notably the Catholic, Irish Americans. In Asia, where the Cold War was fought on very hot terms, American political, strategic and military thinking was conditioned by decades of fear and condescen­ sion towards those whom White Europeans had long before dubbed ‘Orientals’. Contemporaneously, and in marked contrast to the two earlier episodes, US leadership of the Free World in the struggle for the allegiance of the unaligned, overwhelmingly non-White Third World was often said to be undermined by continuing racial discrimination stateside. Civil rights for African Americans became, in other words, a weapon as well as a goal in the global battle for hearts and minds. (Such

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racial-political equations could be re-drawn for a different political conclusion: in the United States, as in South Africa, opponents of racial equality usually invoked Soviet communism as the enemy of the Whites and exploiter of the Blacks.) The preceding sketch is a reminder of two striking and connected features of American history: one is the persistence and ubiquity of racial-ethnic variables; the other is the many ways these aspects of Ame­ rican history have been simply bypassed or subsumed and adapted to reinforce an image of a homogeneous society. ‘We are all Republicans, we are all Federalists’, said Thomas Jefferson in his First Inaugural. At the peak of the Cold War, successive Presidents would argue that we were all Americans - now. It has, of course, become fashionable to identify the United States with the struggle for human rights. Yet we need to think historically about such a claim. When in the late 1970s President Jimmy Carter sought to raise issues of human rights to the forefront of American foreign policy (not least to distinguish his administration from that of Richard Nixon), the American Right was scathing and Carter was denounced as naive. Later though, under President Ronald Reagan, such a rhetorical campaign became not simply accepted but scarcely questionable to his supporters. It is important to remember, however, that such pronouncements as the United Nations’ ‘Universal Declaration of Human Rights’ (1948) had been anathema to many Americans, notably their elected legislators in the US Senate. For decades on Capitol Hill human rights declarations were denounced as socialistic and attacks on American racial segrega­ tion.4 More recently, as Washington has once again found the United Nations a useful vehicle to advance the national interest, the suprana­ tional rhetoric has returned - selectively.5 And what of Europe? The term is, of course, problematical: Europe from the Atlantic to the Urals (so cutting Russia in two)? and from the Arctic ocean to the Mediterranean (thus drawing the line against north Africa)? Even if we take only the European Union, we can see that social-cultural variables affect not just interstate but also intrastate conditions. At one level there are linguistic and religious minorities long-resident in so-called nation-states. Spain is a prime example of the first, linguistic, category; the United Kingdom and France have linguistic and religious minorities; while Belgium is the most obvious case of a state waging continuous efforts to balance both linguistic and ethnic differences. There are also minorities which are defined (by the majority, host population) as temporary inhabitants, such as economicallydriven guest-workers and politically-terrorized asylum-seekers. (Here Germany provides the best evidence for both groups.)6 And what of the families of such inhabitants, especially those children born in their new native land? Once the discussion turns to such recent arrivals and their offspring, then it is clear that the focus has shifted from indigenous

INTRODUCTION

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minorities to immigrants. Likewise the frame of concern has enlarged from immigration to include that of its source, emigration, notably from eastern and southern Europe and northern Africa. While Italy and France are most relevant in this latter respect, western Europe, the Europe of the European Union, is now being seen as 'Fortress Europe’, putting up barriers against would-be immigrants.7 Migration within and across political borders has been a feature of European history since long before the creation of nation-states. Migra­ tion is one of the more obvious structural devices of that classic of pre-unification (and pro-unification) Italian literature, Alessandro Manzoni’s, I promessi sposi, set in early seventeenth-century northern Italy. (And, to anticipate a theme in the following essays, the work itself was linguistically purified to one form of Italian, the Florentine, having undergone its 'rinsing in the Arno’ - risciacquatura - before the publi­ cation of the definitive edition in 1842.) Nation-states, justified on Unitarian, national grounds, have invariably contained and even acquired non-nationals. Italy provides an example of this form of territorial and political expansionism in the twentieth century.8 But a striking though often neglected case is ‘Britain’. The term is placed within quotation marks because it disguises the English domination of three other distinct groups and territories in the two main British Isles: the inhabitants of Wales, Ireland and Scotland.9 (A religious minority of settlers from Scotland was used, of course, to help hold down the Catholic majority in Ireland; and the legacy still remains.) The result of such factors as migration and the heterogeneity of nation-states is nothing less than the long-lived multiculturalism of states wherein, on the contrary, the dom­ inant ideology has been one of homogeneity , be it linguistic, religious, ethnic - even racial uniformity.9 Race can be an explosive term, with highly prescriptive connotations. Ethnicity, on the other hand, seems less deterministic, more neutral, simply descriptive. Without a lengthy discussion of how each term has been used in modern history, we can note that characteristics once called racial (and implying immutability) have become described as ethnic, a term which suggests greater autonomy for the signified subject. Biology and its laws have been replaced by sociology and custom. Such, at least, appears to be the meaning of the verbal shift; but it is not certain that the corresponding conceptual change has been fully made.10 The preceding paragraphs can be summarized as follows: the United Sates, throughout its history an amalgam of different racial, ethnic, religious and linguistic groups, has invariably been presented as a homo­ geneous people. Black slaves, Red Indians, Brown Hispanics are seen as the exception (when seen at all) to the White rule; and mutatis mutandis religious diversity has been hidden under the two blankets of secular deism and Protestantism.11 In Europe, the narrow Europe of this essay, the continuous change in the cultural and ethnic mixtures of nation­

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states has been conceptually frozen and politically defined as the his­ torical essence of the people, the ontological centre around which the nation-states have been reciprocally identified. Thus the British (or, more accurately, the English) people who worry about immigration and the presence of new cultures are themselves the descendants of immi­ grants and creatures of recent cultural growth. The point may be made by thinking of a cross-section of a tree-trunk. The concentric circles on one plane represent all the years of the tree’s life, not a single moment; and what is often taken as the essence of a country’s culture is the accu­ mulation of innumerable ingredients added over countless years.12 To stress the cultural diversity over time of any particular nation-state is neither to deny the reality of political power nor to neglect the sociol­ ogy of such political power. The m ultiethnic , mz/Mingual United States of the late nineteenth-early twentieth century was governed and directed by a Washington-Wall St. axis which was conspicuously W hite, AngloSaxon and Protestant - what two generations later would be called the WASP establishment. In Europe comparable elites have held similar formal and informal power. Such elites were male, certainly in the public sphere; and it would be some decades, even in places some generations, before women would hold political rights on equal terms with males. The question remained, of course, whether such deju re equality meant de facto equality. The obvious case in point has been the (unsuccessful) struggle for the Equal Rights Amendment in the United States since the passage in 1920 of the Nineteenth Amendment extending the suffrage to women on equal terms with men. Our micro-history of the modern North Atlantic world reveals, then, a number of features. Most countries are considered and described as nation-states; yet ethnic, religious and linguistic diversity is widespread within many of them. For some states (e.g. Germany) such diversity is seen to come not from the presence of an indigenous, ‘autochthonous’ population (as in Spain) but rather from recent immigrants, religiously and linguistically (and so culturally) different from the host population. In the United States, many new waves of immigration have given a salience to existing minority cultures. In Great Britain, and especially England, recent political events at home and abroad - rather than immigration per se - have perhaps contributed most to the rise, even the ‘resistance’ of non-White groups. These are only a few of the many aspects of life in states with diverse cultures. And, contemporaneously, the Europe which is made up from these separate states is said to be suffering its own ‘identity crisis’ and searching for a new ‘legitimacy’. Strong, even apocalyptic stuff; but those with only a reasonably good memory will know that such anxieties may be current but are not unprecedented.13 But what is multiculturalism? These introductory remarks have suggested that the term is misleading, implying (as it does) that some

INTRODUCTION

19

cultures are homogeneous. But as the American case shows, the ordi­ nary, everyday use of the term multiculturalism can place the stress on either side of the pairing of multi + culture. Is a particular nation-state characterized by openness and variety - a market-place or bazaar of cultural options? Do there exist many, separate cultures? Or is the reality - or at least the social goal - a closely-woven cloth fashioned by a myriad of cultural hands? A historical answer might be that both images are necessary: at any one time, now as much as in the past, cultures can be distinguished from one another, can be seen to interact and also stay apart. (Intermarriage, so-called, captures all these elements.) Yet a sociologist would surely insist upon asking whether any set of cultures was socially, economically, politically stronger or weaker than the others, separately or in combination. That is to say: Does it pay or cost to belong to one group or another? and is there any choice in the matter? We return to some of these issues in the Postcript.

Citizenship and Multiculturalism The papers presented at the Bologna Fulbright Colloquium showed three main methods of approach. Given that multiculturalism exists, that it is a fact of contemporary life in north America and Europe, how do individual countries address issues of citizenship, the term under­ stood as the formal possession and active enjoyment of equal political and social rights across the whole population? (It may be noted that in the UK, citizen is a term of only recent currency; while in the USA, the citizenship alluded to in the original Federal Constitution has taken generations to be defined in practice through legislation, formal amend­ ments, judicial interpretations - and the Civil War!) One group of contributors (Dick Howard, Walter Murphy and Roberto Toniatti) analysed various constitutional means of establishing and preserving equal rights for all citizens, though each contributor was aware that a basic philosophical question is begged by such a formal procedure: how is the citizen-body to be defined? Acknowledging 1) that citizenship is about the possession and use of political rights; and acknowledging 2) that political rights are a) not the same as social rights and b) not extended to every individual within a particular political unit; on what grounds, then, can the differential allocation of rights be justified? States limit political rights by age, for example, as once such political rights were limited on the basis of race and sex. States also limit political rights by nationality; and in some states, nationality depends as much if not more on lineage (ius sanguinis) than place of birth (ius soli). Germany is an obvious case of this juridical approach; while in recent decades British immigration and nationality legislation has come up with the inter­ mediate notion of ‘patriaP status - what may be thought of as the

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citizenship and immigration equivalent of the ‘grandfather-clause’ in the racially-segregated United States.14 The constitutional approach of the three contributors also raises the question of the possible gap between the letter and the spirit of the law. All constitutions (even unwritten ones) are verbal constructions. How are they to be interpreted? W hat philosophical principles will inform a reading of such texts? And, in the case of dispute, how is the disagree­ ment to be resolved? Behind such profound dilemmas as these lies an even more serious problem in political theory. As the writing arid ratifi­ cation of the US Constitution showed all too clearly, constitutionalism is a device and an ideology opposed to the principle of simple majority rule. So we see the paradox that constitutionalism is advanced by propo­ nents of a free society, of democracy - all the while they are defending a philosophy and strategy set against the expressed will of the majority. In contemporary American writing on these topics we can see the spirit of John C. Calhoun riding high, but in disguise. It is just not fashionable to advocate explicitly such elitist arguments for providing a ‘concurrent majority’, i.e. a blocking minority to thwart ‘the will of a mere numerical’ or ‘tyrannical’ majority.15The writers of The Federalist Papers were not embarrassed to oppose a principle which was not by any means widely held; while more recent advocates, like Francis Fukuyama, are both coy and obscure in their anti-democratic thinking.16 One answer to the problems raised by textual and political disagree­ ments is to call for a spirit of toleration, a virtue which can be promoted by an educational system designed to produce citizens. An alternative solution is to rely less on the sharing of values and more on the need to share power. This second approach is part of the rationale for pro­ moting (rather than simply accepting) pluralism: the greater the number of contenders for power, the less their individual chances of achieving sole power; and so both the opportunities and the reasons for compro­ mise and partnership are increased. As the preceding remarks suggest, a theme running through the constitutionalist approach is the worry that the numerical majority in alliance with a strong state poses a danger to rights - rights which are thought of as pre-political, natural, inalien­ able rights. This indeed was a line of logic which ran through much of the discussion at the Bologna Colloquium. Was the state less a guarantor and protector of rights and more a threat - not simply to the enjoyment but even to the possession of rights?17 More specifically, was the liberal state, in fact if not in theory, the political representation of a particular socio-cultural group despite that state’s pretensions to universality? If so, if the state was thus culturally and socially conditioned, would it, could it defend the (natural) rights of all the inhabitants of its political space? Is was just this sort of concern which lay in the multi-layered premises of those papers which addressed the philosophical nature of the liberal, nation-state. In their different ways, Antonella Besussi, Hans

INTRODUCTION

21

Koehler and Melissa Williams reasoned that the liberal, even pluralist nation-state is culturally specific and therefore biased against some of its members (the citizens). Individually (but, ultimately, collectively) these three authors argued that there must be more je/^-awareness to allow other selves to flourish. Indeed, drawing on very different epistemological systems (from Hegel and beyond Rawls), some contributors proposed that there was both a logical and psychological need to understand others if we were ever to be able to understand ourselves. So the participants in the Colloquium were encouraged to see (through a model as old as Plato) that the extensive political structure of the state and the inner psychological workings of the individual citizen have matching charac­ teristics. To (try to) know one’s self we must (try to) know one another.18 The third main group of papers in this collection focuses upon spe­ cific countries. A set of five (Part III in this volume) deals with Italy, Germany, Spain, the United States and France. These are the essays by Giuseppe De Vergottini, Volkmar Gotz, Pablo Lucas Murillo de la Cueva, Robert Schmuhl and Guy Scoffoni. In Part II, three other scholars, John Ballance, Kadiatu Kanneh and John Rex, analyse multiculturalism within the British Isles. The British case is perhaps the most surprising; for it is little known even in England how much ideas of religion and ideals about race have contributed to the political and ideological shape and historical evolution of the British state. (It may be thought that the English are less steeped in than blind drunk to their collective history. But this formula may be only another version of the adage that one person’s history is another person’s myth.)19 The other case-studies revealed some quite different situations. Spain offers a model of dual identity - rather like Belgium, which often figured as a point of comparison in the volume. One may be Catalan and Span­ ish; Spanish and Galician. (The term, ‘Spanish’, of course, disguises the historical, linguistic and political pre-eminence of Castile/Castilla.) What English-speakers call Belgium (Royaume de Belgique/Koninkrijk Belgie) has offered citizen-identification as Belgian and Flemish; Walloon and Belgian. Yet if this is the common ideal, the contemporary tendencies in each country are quite opposite. The Spanish model of dual identity seems to be deepening throughout the country, where it is actively promoted by the central and regional authorities; while in Belgium the direction is towards greater separation politically and culturally between the two main linguistic blocs of Flemings and Walloons.20 The history of Ger­ many, meanwhile, shows the unification of one language-group, one racial group (so it was said); and neither category fits easily with any notion of linguistic or parental diversity. Such a formal discrepancy does not mean the impossibility of a multicultural society in Germany: it simply means that the concept of ‘being German’ will undoubtedly change. France and the United States present some interesting points of similarity and contrast, with the common roots of both trends in the two

22

CITIZENSHIP AND RIGHTS

countries’ republican origins. Constitutional rights are often concep­ tualized as individual rights against the state; yet it is the state which guarantees such rights. On another level, students of the French and American systems recognize the simple distinction between rights and equality d eju re and the reality on the ground de facto. A cynic may read the gap as a mark of widespread social hypocrisy; but in both societies the disjunction can be used as a warning sign of serious and dangerous socio-economic divisions. Where the two systems differ is in their juridical response. For the Americans are famous for having promoted affirmative action (’positive discrimination’); while in France even the fostering of such group rights, such privileges (or favourable exemptions from the general law), is constitutional and jurisprudential anathema. Since there has been such a backlash (or ‘whitelash’) against the egali­ tarianism informing affirmative-action programmes and jurisprudence, it is worth noting that a misleading school of thought has grown up in the USA. It is often asserted that American constitutional law has always been concerned with individual rather than group rights. This is both formally untrue, as even the most superficial reading of the original 1787 Constitution shows - let alone many provisions in the Bill of Rights and subsequent Amendments. But, more significantly, the inaccurate assertion misses the sociological-historical point that these allegedly individual rights were accorded to particular groups, most obviously the suffrage. As with the fashionable doctrine of the ‘original intent’ of the framers, the contemporary social intent of the individualist analysis shines clearly through the jurisprudential rhetoric: attacking group rights is a theoretical and highbrow way of attacking particular pieces of legis­ lation designed to promote a more egalitarian society. Granted there are gaps in the systems between constitutional and legal theory on the one side and social reality on the other. W hat then holds the whole together? The inspirational answer is consensus: the existence of shared social-cultural values which both cross the gaps and seek to narrow them. Melissa Williams, thinking especially of Canada, stresses process more than substance and puts the emphasis upon creat­ ing a dialogue in which the ‘spirit of impartiality’ may flourish. An answer couched in terms of consensus may fit the US case best, for values rather than race or culture have been the avowed essence of Americanism, whatever the actual historical practice. In France, so-called republican values have been more contested over time; and any consensus may lie more in pride in a shared language or in a sense of belonging to a French history in which the Revolution of 1789 is only one episode. (It is not fanciful to see the Guides Michelin as epitomizing this latter view.) If the consensual basis of the modern nation-state is problematic, so too is the state itself; yet it was mainly within the parameters of the state that the Bologna Colloquium investigated questions of citizenship, rights and multiculturalism. For the state provides the major political

INTRODUCTION

23

space in which these issues are debated and realized.21 In western Europe and North America the current trend appears to be towards interstate integration, with the European Union and the North Amer­ ican Free Trade Area as the most obvious examples. In eastern Europe the national-ethnic element in the building and maintenance of states is now to the fore. Meanwhile in Italy unity and separation are the two chief spatial tendencies, both fostered and countered by opposing poli­ tical, economic and ideological forces.22 On another level we see signs of the obsolescence of the nation-state as transnational, even global har­ monization takes place. Yet for all the power of para-state forces, they use, invariably and perhaps necessarily, the political state not just as an arena but also as a fulcrum for leverage and as a bastion of defence. So capital flows across boundaries while employing the political power of specific states to lower costs and weaken the power of labour through de-regulation. Contemporaneously Islam transcends political limits while individual Muslims may seek to establish an Islamic republic (as in Algeria or Egypt).23 The participants at the Bologna Fulbright Colloquium were (unsur­ prisingly) aware of the contemporary attractions of the so-called American model to the present constitution-writers and nation-builders of eastern Europe; but equally they were cautious about the complete transferability of one system to another place, given the sheer differ­ ences between the two spheres (if an Early Republican term may be used).24 The participants were also aware of the gap between the high rhetoric of declarations and events on the ground. A nice case in point comes with the Declaration of Seneca Falls in 1848, when supporters of women’s rights adopted the form and adapted the language of the Declaration of Independence of 1776 to expose the gendered limits of the universalism of Jefferson and his fellow drafters. But it may be remembered that the early campaign for women’s rights had its political, agitational and ideological roots in the campaign against slavery; while after the Civil War the campaign for women’s equality was often at odds with the struggle for African American equality. Thus we see neatly set out the historical reality that rights action and discourse are necessarily problematical, for all the insistence on universal and timeless human rights and values. Yet for all the healthy scepticism about the limits of rhetoric; for all the awareness that the general language of one period and one situation may carry subversive messages to different listeners; for all our knowl­ edge that fine words have accompanied undesirable actions - there is still much to be taken from one vision of the richness and diversity that has marked America; a vision which can surely stand as an ideal of shar­ ing, difference and equality between people. As is fitting to the setting of the Fulbright Colloquium in the University of Bologna’s Centro di Studi Politici A de Tocqueville, the words are those of Tocqueville himself,

24

CITIZENSHIP AND RIGHTS

that unsurpassed sceptic and celebrant of the American myth. As he reflected on the movement of people, of immigrants , from Europe to America and then on from the Atlantic seaboard towards the West, Tocqueville wrote: des millions d’hommes marchent a la fois vers le meme point de Phorizon; leur langue, leur religion, leurs mceurs different: leur but est commun. On leur a dit que la fortune se trouvait quelque part vers Pouest, et ils se rendent en hate au-devant d’elle.25 The question remains whether we can all together find the means so that all of us can enjoy the diversity and share in the common goal (but commun) of a multicultural society - our fortune.

NOTES

1.

2.

3.

4.

5.

6.

7.

Alexis de Tocqueville, De la Democratic en Amerique, 2 vols. (Charles Gosselin, Paris: 1835), II, Chap. 10: ‘Quelques considerations sur l ’etat actuel et Pavenir probable des trois races qui habitent le territoire des Etats-Unis’. J ohn Hector S t. J ohn [Michel-Guillaume-J ean de Crevecoeur], Lettersfrom an American Farm er (London: 1782), esp. Letter III: re-issued with an Introduction by Michael T. Gilmore (Dent & Sons, London; E. P. Dutton, New York: 1971). Albert K. Weinberg, Manifest Destiny: a Study of Nationalist Expansionism in American History (The Johns Hopkins Press, Baltimore: 1935), remains the best introduction. The key episode (though often misunderstood) was the so-called Bricker Amendment controversy o f 1954. It is set in the context o f decades by Natalie Hevener Kaufman, Human Rights Treaties and the Senate: a History o f Opposition (University o f North Carolina Press, Chapel Hill and Lon­ don: 1990). See, e.g., George Bush speech to the UN General Assembly on a Tax Universalis’, New York Times, 24 September 1991, p. A6. For the current Clinton administration’s arguments, see Department o f State, ‘Annual US Reports Review Global Human Rights Situation’, 1 February 1995 (USIS, London: 1995). Douglass B. Klusmeyer, ‘Aliens, Immigrants, and Citizens: the Politics o f Inclusion in the Federal Republic o f Germany’, Daedalus 122 (Summer 1993), pp. 8 1 -1 1 4 . Martin Baldwin-Edwards and Martin A. Schain (eds), ‘The Politics o f Immigration in Western Europe’ (Special Issue of), West European Politics 17 (April 1994); ‘Special Section: Migration and the New Europe’, Ethnic and Racial Studies 16 (July 1993), pp. 4 5 9 ff, with much statistical infor­ mation; Christian De Brie, ‘Batir la Forteresse Europe: Les immigres dans l’etau policier’, Le Monde Diplomatique, December 1994, pp. 1, 22-3. For a brief, broad survey, see Sarah Collinson, Europe and International

INTRODUCTION

8.

9.

10.

11.

12. 13.

14.

15.

25

Migration (Pinter Publishers for the Royal Institute o f International Affairs, London and New York: 1994). The barriers are being raised most obviously against Islam: see Mohammed Arkoun and Mariano Aguirre, ‘L’Occident en quete d’un “Ennemi Total”’, Le Monde Diplomatique, ibid., pp. 24—5. For a brief introduction to the linguistic minorities in contemporary Italy and the different centres o f economic, political and cultural power in the process of ‘unification’, see Sergio Salvi, Le Lingue tagliate. Storia delle minoranze linguistiche in Italia (Rizzoli, Milano: 1975). Cf. Franco Demarchi (ed.), Minoranze linguistiche fra storia e politica = Sprachliche Minderheiten zwischen Geschichte und Politik (Gruppo Culturale Civis, Trento: 1988); Mariselda Tessarolo, Minoranze linguistica e immagine della lingua: una ricerca sulla realta italiana, Collana del Dipartimento di Scienze delPuomo dell’Universita di Trieste, no. 3 (Angeli, Milano: 1990). Hugh Kearney, The British Isles: a History of Four Nations (Cambridge, Cambridge University Press, 1989); Bernard Crick (ed.), National Iden­ tities; the Constitution o f the United Kingdom (Blackwell Publishers, Oxford: 1991). James G. Kellas, The Politics ofNationalism and Ethnicity (Macmillan, Lon­ don: 1991); Thomas Sowell, Race and Culture: a World View (BasicBooks, New York: 1994). Ray Allen Billington, The Protestant Crusade, 18 0 0 -18 6 0 : a Study of the Origins of American Nativism (Macmillan, New York: 1938); Ernest Lee Tuveson, Redeemer Nation: the Idea o fAmerica's M illennial Role (University o f Chicago: Chicago and London: 1968). On an American mission in the context o f constitutionalism, see Michael Lienesch, New Order of the Ages: Time, the Constitution, and the Making ofModem American Political Thought (Princeton University Press, Princeton: 1988), esp. Chap. 8. Cf. W alter Connor, ‘W hen is a Nation?’, Ethnic and Racial Studies 13 January 1990), pp. 92-10 3 . Stanley Hoffmann, ‘Europe’s Identity Crisis Revisited’, Daedalus 123 (Spring 1994), pp. 1-23; cf. (special issue) ‘A New Europe?’, ibid. 93 (W inter 1964); Anthony D. Smith, ‘National Identity and the Idea of European Unity’, International A ffairs 68 January 1992), pp. 55-76; Soledad Garcia (ed.), European Identity and the Search fo r Legitimacy (Pinter Publishers for the Eleni Nakou Foundation and the Royal Institute o f International Affairs, London: 1993); Bernard Cassen, ‘Culture et Pouvoir: Legi timer une Europe Supranationale,’ Le Monde Diplomatique, Septem­ ber 1993, p. 32. The grandfather-clause originated in the North to stop the Irish voting. For the US Supreme Court’s ruling it unconstitutional, see Guinn vs. United States, 238 US 347 (1915). The quotations are readily available in Gerald M Capers, John C. Calhoun - Opportunist: a Reappraisal (University o f Florida Press, Gainesville: 1960), pp. 191-208, esp. pp. 194-5. For the key texts, see Calhoun’s ^ Disquisi­ tion on Government and A Discourse on the Constitution and Government o f the United States, edited by Richard K. Cralle in 1953 and re-printed in C. Gordon Post (ed.), John C. Calhoun, A Disquisition on Government and Selections from the Discourse (Liberal Arts Press, New York: 1953).

26 16.

17.

18.

19. 20.

21. 22. 23.

24.

25.

CITIZENSHIP AND RIGHTS Francis Fukuyama, The End o f History and the Last Man (The Free Press, New York; Hamish Hamilton, London: 1992). One o f the divisions in the American New Right is the philosophical gap between avowed populists o f the Pat Buchanan/H. Ross Perot variety and the cultural elitists. Such questions prompted the theme o f the September 1994 Notre Dame Law School Colloquium on ‘Professionals as Guarantors and Protectors o f Rights’. See the Foreword to this volume. For a stimulating introduction to the interrelated problems o f linguistic, cultural and professional translation and awareness, see Martin Weston, An English Reader's Guide to the French Legal System (Berg, Oxford and New York: 1991). (There is a nice ambiguity in the book’s title.) William Wallace, ‘Foreign Policy and National Identity in the United Kingdom’, International A ffairs 67 (January 1991), pp. 65-80. The details may be found in A. Alen and L. P. Suetens (eds), Het federate Belgi'e na de vierde Staatshervorming (La Charte, Bruges [Brugge]: 1993). There is, o f course, a recognized ‘German community’ (deutschsprachige Gemeinschaft) in Eupen and Sankt Vith, some 68,000 people or 0.68% of the Belgian population: 1991 Census figures in Moniteur beige, 15 October 1991. Robert H. Jackson and Alan James (eds), States in a Changing World: a Contemporary Analysis (Clarendon Press, Oxford: 1993). Enzo Mingione, ‘Italy: the Resurgence o f Regionalism’, International Affairs 69 (April 1993), pp. 305-18. Michael Mann, ‘Nation-States in Europe and Other Continents: Diversi­ fying, Developing, Not Dying’, Daedalus 122 (Summer 1993), pp. 115 -4 0 ; Robert B. Reich, ‘W hat is a Nation?’, Political Science Quarterly 106 (Sum­ mer 1991), pp. 193-209. Louis Henkin and Albert J. Rosenthal (eds), Constitutionalism and Rights: the Influence o f the United States Constitution Abroad (Columbia University Press, New York: 1990), esp. Andrzej Rapaczynski, ‘Bibliographical Essay’, pp. 405-62. For the language o f the ‘two spheres’ and the projection o f the American model, see Michael Dunne, ‘Hemisphere and Globe: the Terms o f American Foreign Relations’, International A ffairs 70 (October 1994), pp. 701-2 0 , esp. pp. 704, 716ff. Tocqueville, Democratic en Amerique, II, p. 202. The words may be ren­ dered: Millions o f people are marching together towards the same point on the horizon. Their languages, their religions, their customs differ; but they have a common aim. They have been told that their future is to be found somewhere towards the West; and they are hurrying to reach it.

Part I Multiculturalism and Citizenship the Liberal State

To Share or not to Share? The Liberal Treaty Revisited Antonella Besussi

1 Modern political philosophy starts against the background of a city in conflict, with a latent and inherent predisposition towards civil war. Underlying this predisposition is the dissolving of the reassuring bound­ aries which in the ancient city separated the world of the deprived of unequal rank from that of the people of equal rank. The latter were the ones allowed to live the only kind of existence proper for human beings - that is, a political existence - and who were, therefore, entitled to make decisions on the common future. The levelling of hierarchies and, above all, the failure of the political validation of natural hierarchies (so that whoever is naturally of unequal rank is excluded from the political status of equal) highlight the plurality of interests and beliefs which identify the different potential subjects entitled to political decision-making power. This process coincides with the dangerous - because potentially ungovernable - release of differ­ ences. In this new situation the many can no longer be reduced to the one by simply being trapped in the net of an order in which everyone is given just one unavoidable duty, namely to acknowledge the asym­ metrical status - whether advantageous or disadvantageous, equal or unequal - that fate has given to him/her.1 In the state of nature (the hypothetical state of nature as disorder, from which modern political philosophy sets out), many single different subjects claim superiority by reason of their own difference. But, pre­ cisely because their claims are given equal value, they may fail to be reconciled. The crucial move is then to assert equality among different people as a political resource in order to remove conflict. This is, of course, the opposite approach to the previous use of differences: as natural endowments responsible for the increase in conflict. W hat the transition to a new, agreed upon order actually shows is that natural equality only allows for a consensual solution to political conflict. Such consensus consists in every single subject giving up the political acknowledgement of a superior validity of his/her different claims.2 Choosing politics, then, means sharing a standard for claims. This standard has two tasks. First, it decides whether claims can be settled

29

30

MULTICULTURALISM AND THE LIBERAL STATE

politically. (This implies that everyone is committed to make such claims commensurable with similar claims put forward by any other person.) Second, if this is not the case, claims can keep their incom­ mensurability only if they become politically irrelevant. The modern city is unnatural and pacified: it artificially reduces the plurality of the many by defining itself as the place where different individuals acknowl­ edge one another and treat one another as similar. The modern city ratifies a radical incompatibility between civil peace and those differ­ ences which do not surrender to the reductionist action of politics. The value of politics, therefore, lies in its ability to minimize the conflict among commensurable diversities and to depoliticize the conflict among incommensurable diversities.3 Assuming that the release of uncontrollable differences inevitably leads to the war of all against all, modern political philosophy identifies as its most urgent task governing the ‘diversity of manners’ underlying the natural disorder, a task which politics must solve artificially. Govern­ ing diversities requires, as it were, taking the sting out of differences. Individuals will accept this operation (which penalizes them in a way, since they can no longer politically assert all their claims) only if such a rule guarantees equal value to some claims and fulfils them. It is, therefore, the benefits deriving from an agreement on justice which leads to the removal of diversities from politics. These benefits derive from an agreement which establishes the fairness of some claims and the ways to fulfil them and, above all, promises to afford equal value to fair claims put forward by anyone.4 The persistence of the modern city is undoubtedly to be attributed to the merits of the liberal programme, which treats the modern city as the city of ‘similarity’ (or the city of the citizens). It is far too easy to draw the conclusion that this political programme is showing some signs of weariness and that the modern city is gradually losing its significance as a desirable place to belong to whenever injustice becomes intolerable with far too many promises of equality remaining unsatisfied.5 Such shortcomings certainly help to explain the fragility and the increasing difficulty of the ‘city of the moderns’ surviving as a city of similarity; but it is still an insufficient explanation. It is an insufficient explanation especially for those who refuse to consider moving towards a new kind of city as a desirable option, although they recognize its inevitability and, indeed, at times very clearly feel their coming closer to another type of city. Such resistance may express a nostalgic attachment to a political programme whose performance is increasingly inadequate. This resis­ tance may also express a biased dislike for the new city, the postmodern city of dissimilarity. A retrospective view is needed to understand this prejudice. In other words, we must look at the particular defects and misdeeds which can be attributed to the distinctive features of the liberal political programme

THE LIBERAL TREATY REVISITED

31

to see whether or not there are intrinsic original limits which would explain the disappointing results. It is necessary to verify whether such limits can be amended and the results redressed; whether such assump­ tions are still of vital value; or, on the contrary, whether the departure from liberalism and the retreat from the modern city can no longer be postponed.

2 The postmodern city offers a suitable site for examining ex post the liberal political programme. Living in the postmodern city only means sharing a territory, or, as some have said, sharing walls. Inside the post­ modern city no more efforts are made to reduce the many to the one, to reconcile released differences with the task of preserving a common identity. Such efforts would only express either a philosophical illusion or tyrannical reductionism. Thus the distance between differences can­ not be reduced. Indeed the claims which both individuals and groups derive from the differences separating them resist any operation aimed at making such claims commensurable: they keep their mutual incom­ patibility. From this point of view, it is ‘politically incorrect’ to assume that there is a space which everyone can gain if s/he gives up something more for her/himself. Since this space would necessarily b e public, that is a place of exclusive nature and with the arbitrary power to create homo­ geneity, there would be no room for an area free from particularity, where different people could, at least, make the value of their specific differences and loyalties recognizable to other different ones, and thereby convincingly communicate to each other the normative commitments which his/her differences originate.6 The boundaries of the postmodern city seem to be transitional, since they deny stable membership. Indeed, everyone can join many different ‘us’ groups and try out a variety of loyalties, sometimes compatibly and sometimes not. Yet, looking at the postmodern city more closely, it is clear that some of the borders dividing the different ‘us’ groups are, in fact, very rigid. They circumscribe an exclusive area with limited admis­ sion, as people are not actually free to chose their loyalties, but rather have to fulfil certain requirements that naturally ascribed memberships impose. These specific memberships of such ‘us’ groups are not just some of all possible memberships; they do not create transitional and unstable commitments. On the contrary, they set fixed priority mem­ berships which enjoy the same privileged status as the ‘us’ of citizens in the modern city. ‘Political correctness’ then lies in complying with these specific citizenships and in stressing the higher cogency of the constraints which these citizenships impose on those belonging to them. These assumptions lead to only one conclusion: the city of dissimilarity

32

MULTICULTURALISM AND THE LIBERAL STATE

can be peaceful only if the extraneousness between differences creates mutual indifferences among different individuals or groups. This is a possible outcome in a city made up of small communities, economically self-sufficient and working as autonomous political entities. Unfortu­ nately, given the rather unrealistic character of this hypothesis, we come to the conclusion that the postmodern city is necessarily highly conflictual. This is even more the case because differences among the many are conceptualized not only as the differences covered by plurality (that is, differences among similars, e.g. differences among human beings) but also as differences deriving from dissimilarities (that is, differences among dissimilar beings, e.g. differences between men and women).7 Since neutral or equal rules, which could settle disputes, cannot by definition be enforced, the fair decision cannot be suggested by decision­ making criteria that are somehow independent of the different interests at stake. On the contrary, the right decision results from negotiation between conflicting parties, whereby each party tries to gain the greatest possible advantage by arguing for their own point of view. In the one case, political realism (or Thrasymachus’s argument) accounts for the strategy used to leave conflict behind. In another case, the argument of a ‘heterogeneous public’ is adopted: that is, a public space which dif­ ferent individuals can use to justify the validity of their specific claims. These justifications are not put forward to others, but rather against others and they succeed by universalizing their own specific character. Yet such cases can still be treated within the categories of politics because the resources of politics (even politics of a particularistic and ‘non-empathetic’ kind) can mediate among divergent interests. However, the postmodern city is also the ‘post-political’ city of gangs and of timeless and endless radical conflicts, where the juxtaposition ‘friendenemy’ is both always found and yet is constantly changing. There is no public space for politics in the postmodern city; and indeed the urban territory prohibits contact among different subjects by segregating the well-off in fenced-off communities and leaving the poor in permanent ghettos with or without walls.8

3 In the postmodern city the liberal compact devised to settle civil dis­ putes is clearly suspended. Its fundamental tenets seem to be unrealistic. It is therefore necessary to examine the meaning of such principles in order to assess if they can be updated or if they must be rejected. (It is my belief that it is highly unlikely that they can be merely confirmed.)9 The liberal solution to conflict requires, first of all, that people acknowledge the radicality of the divergences underlying conflict.

THE LIBERAL TREATY REVISITED

33

There are differences among individuals as to what is worth being fully and ultimately valued. Since these differences generate incompatible loyalties and commitments, they can produce political conflicts. How­ ever, given the lack of any common decision-making criterion, such conflicts may become unmanageable because they produce not only divergent arguments but also completely heterogeneous ways of reason­ ing and establishing values. Let me remark that, if in the postmodern city the assumption of conflict is both preamble and epilogue (it seems that the desirability of a peace treaty itself is questioned), then in the modern city the same assumption of likely conflict is used to endorse a conclusion on the possibility of reaching an agreement despite diver­ gences. Between the similar assumption and the different conclusions there are two decisive theses: 1) a boundary must be drawn between what can be shared and what cannot be shared; only the criterion of the political can possibly do this. It is therefore possible to share political principles even if there are non-political issues; and 2) the non-political divergences must be restricted in order to meet the need for an agree­ ment. This can be achieved: i) by ruling out the idea that diversity (to which such divergences can be attributed) is politically significant (which means that what is politically relevant is the universality which divergences remove); ii) by giving preference to the value of freedom over and above the value of diversity (for the modern individual is one who links compliance with political commitments to non-convention­ alism in non-political commitments); iii) by restraining acceptable diversity (which means that citizenship is denied to those differences likely to generate the non-political divergences which could throw into question the boundary fixed between the political and the non­ political). Let us examine the thesis concerning the political character of the agreement. It is impossible not to notice that the liberal programme confirms the possibility of a political agreement which actually avoids differences, rather than asking for their mediation or their settlement. Since the terms of the agreement must be shared by all, and since cohabitation anyhow implies having something in common, the parts of the agreement are presented in the minimalistic terms of intentional avoidance of the more controversial matters. However this means ignor­ ing the fact that only someone who is already inclined to accept the liberal solution will accept its methods: i.e. s/he will be willing to place the value of the agreement above the value of her/his differences and leave out of consideration her/his specific unshared reasons.10 Political consensus, therefore, ends up being rather restricted. Liberal political imperatives have neither completely negative features - they are not just the requirements for avoiding civil war (according to the logic of a Hobbesian solution) - nor, alternatively, have they completely positive features - that is to say, that they do make the superiority of

34

MULTICULTURALISM AND THE LIBERAL STATE

public liberal values explicit. The Hobbesian move is not accepted, because true membership of a pacified city is based on sharing the prin­ ciples of the agreement and not on prudential reasons, according to which it is better to cohabit peacefully with someone who can be neither converted nor conquered. The demand for liberal commitments is ham­ pered by the minimalism of a view tending either to be as non-assertive as possible or else, in its less disputed way, to gain the highest possible consensus. The wish to make the agreement easier can lead to presenting its content as modestly as possible, thereby reducing its intrinsic values (such as equal citizenship, the rule of law, civil liberties and tolerance) to meaningless bureaucratic or administrative procedures.11 Certainly, the liberal political agreement can include diverse types only if it allows itself to be put forward in prudential terms. On the other hand, if we reject the Hobbesian solution, we must reject it decisively and openly acknowledge that we cannot accept every diversity and that the contro­ versial implications of liberal political principles must be explained without ignoring the fact that we might have to resort to coercion to endorse them. (Slavery and racial segregation, after all, were not defeated just by the good arguments of liberals.)12 The political modesty of the liberal agreement seems to imply an under-valuation of the conflicts which the agreement should settle. In order to minimize the harmful impact of non-political loyalties on non­ political public identities, one overlooks the fact that in modern cities politics very often shifts into the public area matters which were once felt to be private. Moreover, one fails to draw the necessary implications from the fact that the most intense social disagreements raise problems of acknowledgement, for they introduce new or neglected identities. Such conflicts cannot be solved by calling upon principles of distributive justice only.13 In the modern city, which liberalism unfortunately tends to compare to a city pacified after religious wars, conflict shows the features of a borderline event. It is restricted as much as possible to the political domain of justice and is set free to express itself in the non-political domain of unnegotiable ideals (the ‘metaphysical domain’). Politics must be kept untouched by the ‘metaphysical’ conflict as much as possible, for this is, in its turn, politically undecidable. (The most intractable struggles are fo r the sake o f the highest things .) If religious wars are the paradigm of ‘metaphysical’ conflict, then the choice between freedom and equality, between Locke and Rousseau, or between Whigs and Tories, is the paradigm of a political conflict which must be solved by principles of justice. However, this is quite an ‘outdated’ version of possible disputes. Is it still reasonable to believe that the solution offered to settle those disputes is adequate? Is the very same equality invoked by Lincoln against slavery still sufficient to oppose any injustice or ill-treatment of people?14

THE LIBERAL TREATY REVISITED

35

4 Let us now move on to the thesis on the restriction of diversities. The first step towards justifying this thesis concerns the removal of diver­ sities from politics. The diversity aiming at political legitimation through war is neutralized by making such diversity politically undecidable (and therefore harmless to the health of the city). The underlying idea is that if diversities were free to express themselves politically, they would not limit themselves to this, but would rather end up going beyond the poli­ tical border and generate an uncontrollable situation, in which everyone would claim superiority for his/her difference or would enforce through coercion the universality of his/her difference. A clear boundary must therefore be drawn between the views endorsed by a divergent and uni­ versally shared ‘us’, the ‘us’s’ of citizens, and the various views endorsed by divergent and locally shared ‘us’s’. Universality is the political side of diversity, because it allows for the diverse subjects to be acknowledged as politically similar, while still being non-politically different. That is to say that the public value of each subject is set irrespective of those features which make a person become a specific person and which gener­ ally keep some people either above or below equal rank. The blindness of justice and its invulnerability to contingency guar­ antee the status of equals to different people. Yet in order to succeed in its result, do we necessarily have to remove from politics all those differences which cannot be linked to conflicting claims on resources and social chances? It is really necessary to refuse to acknowledge that plurality does not incorporate dissimilarity and that the many opposed to the one are not at all of the same kind? It sometimes seems that liberals tend to make ‘strong’ inclusion depend on the homologation of extremely different forms of exclusion, as if the more the differently illtreated ones are equalized, the easier will be their protection against ill-treatment. However, the protection of equal citizenship requires neither evasion nor reductionism. On the one hand, the link between some specific features of people and the exclusion tied to such features must not be removed from public attention. On the other hand, no difference underlying specific discriminations can be attributed to just one basic inferiority (that is, a poor endowment of indispensable resources). It is only a partial solution to claim a minimum share of common benefits for men and women who are discriminated against by reason of differences which can be absorbed only with difficulty.15

5 A view of the agreement limited to politics as distributive justice suggests that the different subjects are similar not only because everyone enjoys equal public rank, but also because they share a public culture

36

MULTICULTURALISM AND THE LIBERAL STATE

and the normative understanding of the self which such culture suggests. This is the Whitmanian or ‘Faustian’ idea of a self-determining indi­ vidual, a person who is free to choose, who takes on responsibilities and accepts consequences.16 These individuals will not find it hard to chose specific aims, to which they pledge loyalty, and still remain free to disengage themselves when membership of the ‘city of similarity’ asks for it. They will not find it very hard to accept the division of competencies required by the liberal political programme between the political and the non-political. It is obvious that, no matter how normatively effective it is in the modern city (even though less and less authoritative), the interpretation of selves as individuals giving priority to justice is not universally shared. More­ over, sharing this view not only implies adjusting one’s claims over scarce resources to a quite rigid standard of which resources are really indispensable and which claims are fair. It also implies adopting a mixed feeling of both involvement and detachment towards non-political commitments. The second requirement is particularly crucial in settling the bound­ ary between the city of similarity and the city of diversity. Indeed, the most dangerous differences for liberal peace-makers have always been those which cannot be treated with the resources of politics, that is the intractable differences depending on ‘metaphysical’ loyalties (and the adjective shows the strategic role that religious conflict plays in the liberal political programme). ‘Metaphysical’ loyalties are, by definition, locally shared in what have always been thought of as ‘churches’ and ‘clubs’ with free access and, especially, with the right to exit. Now, the churches which the modern peace treaty aims at controlling are some­ thing like moral fraternities, which people join in order to enhance specific loyalties. Such ‘churches’ can, albeit problematically, endorse an uncon­ ventional view of partial memberships. After all, those memberships are chosen . the loyalties implied here give an important meaning to our lives; but, to the extent that we are free to prefer them, we are also free to question them or to prefer other ones (or none at all).17 When partial memberships are decided by naturally ascribed criteria, however, ‘churches’ are no longer ‘clubs’ with free access based on voluntary membership. Beside the fraternities open to worshippers of moral ideals, there are the ‘tribes’ aggregated on natural features which have the status of political ideals. In this case, the very same specific features which liberals have always considered as arbitrary criteria for the fair treatment of the different individuals are now considered by many people as the only acceptable standard for settling their own public value as different subjects. According to what we might call the ‘tribalistic’ outlook, people can correctly put forward legitimate claims only as members of different tribes. Whoever claims the right to shape his/her political identity on the basis of tribal membership, cannot but

THE LIBERAL TREATY REVISITED

37

reject the idea of a ranking of priorities shared by all citizens. Each tribe, therefore, becomes a separate city, whose inhabitants tend to use the term ‘us’ as a pronoun to affirm the impossibility of sharing more widely something held in common locally, a specific loyalty which requires dissociation from all universal loyalty. Moreover, if the optimization of the social and economic position of the tribe’s members in society is a basic aim of tribal culture, then the resulting tribalistic attitude is that someone both claims to share the resources of the city of similarity while refusing, at the same time, to share the values of similarity (or those principles of justice which everyone should accept as standards for measuring legitimate claims). There are, therefore, two results: on the one hand, it is only tribal membership which decides which claims are to be fulfilled. (‘As a mem­ ber of tribe X, I must be accorded the right to receive something more and/or something different from what I would be given by the principles of citizenship.’). On the other hand, the tribalist must commit him/ herself to justifying his/her demands by underlining the universal char­ acter of his/her tribal commitments. He/she can present as a basic interest an interest which would be considered of minor importance in the common priority ranking. Political sharing is rejected with respect to the costs of citizenship; while, conversely, political sharing is neces­ sarily accepted when the benefits of citizenship are claimed.

6 For the liberal political programme, surrendering to tribalism means the final entrance into the postmodern city and the end of the tasks of the programme itself. But we should admit the insufficiency of the old peace treaty - if this is, indeed, the case - rather than stubbornly re-affirm its more impractical elements. For instance, if the ‘Whitmanian-Faustian’ ideal of the individual is less universally accepted, it is better that we admit this and be ready to face its implications. Once again, we need to abandon our hesitation and declare that the politics of diversity is acceptable only to the extent that it is comple­ mentary to the politics of similarity. This might even require dramatic adjustments of universalistic assumptions, but cannot possibly demand their removal.18 ‘Anyone’ is not a pronoun describing ghosts who are sim­ ilar to one another because they lack an identity. ‘Anyone’ is what claims equal dignity and respect in each of us, no matter what our church or our tribe is, no matter if we have one, many or no church at all. The acknowledgement of similarity must be integrated into the acknowl­ edgement of uniqueness, with the onus on the supporters of similarity to prove that letting openly-accepted differences out into the open continues to be compatible with membership of the modern city.

38

MULTICULTURALISM AND THE LIBERAL STATE

The new treaty must therefore involve a trade-off between new opportunities and new responsibilities. This requires first of all that specific identities must be ratified in their ‘nakedness’, as it were. Their legitimation is in no way implicit in general identities (the identities between similarities), nor is it automatically secured by or derived from them. However, their unquestionable character does not mean that the benefits deriving from the acknowledgement of uniqueness are to be considered unconditional. They are not unconditional, because they are neither free of charge (benefits deriving from public protection cost in terms of partial availability to do one’s own share as one of the similar ones), nor absolute (not all claims of uniqueness can receive maximum fulfilment, because this would mean reducing the politics of differences to the continuation of war by other means, therefore favouring a return to war).19 We expect that some of the supporters of a politics of difference will not accept the terms of the new treaty. Here the final terms of the old treaty are called into play, the ones dealing with the unacceptability of those differences which tend to be radically incontestable.20 By refusing any commensurability not only between claims of uniqueness and the value of similarity, but also among different claims of uniqueness, such differences transform the typically autonomous character of tribal claims into secessionism. Such irreducible tribalism seems, in fact, to demand a physically separate existence for itself. In such a solipsistic world, the tribe’s members can hardly be accorded any endorsement of the supe­ rior status s/he expects by reason of her/his difference. This leads her/him to refuse similarity as a standard for inferior people. Anyone identifying her/himself with this frame of mind cannot possibly live in the modern city. Nor, perhaps, in any city at all.

NOTES

1.

2.

On the relationship between unity and diversity in the ancient city, see Arlene W. Saxonhouse, Fear ofDiversity: the Binh ofPolitical Science in Ancient Greek Thought (University o f Chicago Press, Chicago: 1992). On the transition from classical politics to modern politics, see Salvatore Veca, Questioni di giustizia: corso di filosofia politica (Einaudi, Torino: 1991). See the analysis o f Thomas Hobbes in De Give, where two passages are especially relevant. In the first (Chap. I, Sec. XIII), Hobbes states: ‘But it is easily judg’d how disagreeable a thing to the preservation either of Man-kind, or of each single Man, a perpetuall War is: But it is perpetuall in its own nature, because in regard o f the equality o f those that strive, it cannot be ended by Victory ...’ Later (Chap. V, Sec. VI) Hobbes adds: ‘Since therefore the conspiring o f many wills to the same end doth not suffice to preserve peace, and to make a lasting defence, it is requisite that in those necessary matters which concern Peace and selfe-defence, there

THE LIBERAL TREATY REVISITED

3. 4.

5. 6.

7. 8.

9.

10.

39

be but one w ill of all men. But this cannot be done, unlesse every man will so subject his w ill to some other one, to wit, either Man or Counsell, that whatsoever his w ill is in those things which are necessary to the common peace, it be received for the wills o f all men in generall, and o f every one in particular.’ Thomas Hobbes, De Give, the English version entitled in the first edition, Philosophicall Rudiments Concerning Government and Society, a Critical Edition by Howard Warrender: The Clarendon Edition o f the Philosophical Works of Thomas Hobbes, III (Clarendon Press, Oxford: 1983), pp. 49, 88. See Bernard Yack, ‘Community and Conflict in Aristotle’s Political Philo­ sophy’, Review of Politics 47 (fanuary 1985), pp. 9 2 -11 2 , esp. p. 110 n. 4. Classical contractualism and neo-contractualism have, o f course, different problems (political obligation vs. distributive justice), but they share the reductionist move towards differences. See Ralf Dahrendorf, The Modem Social Conflict: an Essay on the Politics o f Liberty (Weidenfeld & Nicolson, London: 1988). In the postmodern city the conflict relies precisely on the heterogeneity o f languages, so that the fact that X is right or wrong does not mean any­ thing to Y. Applying the same rule to incommensurable languages means treating unfairly at least one o f the two parties. Justice, therefore, does not have anything to do with consensus, but only has to underline the dissent caused by the application o f unnatural rules. See Jean-Fran£ois Lyotard, The Postmodern Condition: a Report on Knowledge, trans. from the French by G eoff Bennington and Brian Massumi, with a foreword by Frederic Jameson (Manchester University Press, Manchester: 1984); idem, Le Differend (Editions de Minuit, Paris: 1983). In my opinion the best answer to this thesis is the one by Jurgen Habermas in his Der philosophische Diskurs der Modeme. See The Philosophical Discourse o f Modernity, trans. from the German by Frederick Lawrence (MIT, Cambridge, MA: 1987). For the difference between plurality and diversity, see Saxonhouse, Fear of Diversity, p. 22. Danilo Zolo, II Principato democratic. Per una teoria realistica della democrazia (Feltrinelli, Milano: 1992); Iris Marion Young, ‘Polity and Group Difference: a Critique o f the Ideal o f Universal Citizenship’, in Cass R. Sunstein (ed.), Feminism and Political Theory (University o f Chicago Press, Chicago: 1990), pp. 117 -4 1. Cf. M. Crispigni, “‘Qualcosa di travolgente”: i conflitti impolitici’, in M. Ilardi (ed.), La Citta senza luoghi. Individuo, conflitto, consumi nella metropoli (Costa & Nolan, Genova: 1990). For a less ‘unpolitical’ definition o f post-political conflicts, see Alberto Melucci, LLnvenzione del presente. Movimenti, identita, bisogni individuali (II Mulino, Bologna: 1982). His more recent argument is in LLnvenzione del presente. Movimenti sociali nelle societd complesse (II Mulino, Bologna: 1991). I am not referring to a particular author but rather to a paradigm. Yet, in contemporary liberal tradition, this paradigm is identified with an author. See, therefore, John Rawls, Political Liberalism, John Dewey Essays in Philosophy no. 4 (Columbia University Press, New York: 1993). The overlapping consensus (Rawls, Political Liberalism, pp. 133-72), which anyone could express towards principles o f justice without having to abandon his/her differences, does not seem to solve this problem: W alt

40

11.

12. 13.

14. 15.

16.

17.

18. 19.

MULTICULTURALISM AND THE LIBERAL STATE Whitman, W oody Allen and a Protestant could quite easily sign the liberal agreement without necessarily having to remove their non-political commitments. This would not be the case with Ezra Pound, Cardinal Ratzinger or a Jehovah’s Witness. See P. Neal, ‘Justice as Fairness: Political or Metaphysical?’, Political Theory 18 (February 1990), pp. 24-50, esp. p. 47, n. 1; Brian Barry, ‘How Not to Defend Liberal Institutions’, in R. Bruce Douglass, G. M. Mara and H. S. Richardson (eds), Liberalism and the Good (Routledge, New York and London: 1990), pp. 44-58; Stephen Macedo, Liberal Virtues: Citizen­ ships Virtue and Community in Liberal Constitutionalism (Oxford University Press, New York: 1990). See Stephen A. Gardbaum, ‘W h y the Liberal State Can Promote M oral Ideals after AH’, H arvard Law Review 104 (April 1991), pp. 13 5 0-7 1. As Jurgen Habermas summarizes: ‘the new conflicts are not sparked by problems o f distribution, but concern the grammar o f forms o f life’: Habermas, ‘New Social Movements’, Telos 49 (Fall 1981), pp. 33-37, at p. 33, n. 1. For a plausible meaning o f the term ‘grammar’ employed here, see Elizabeth H. Wolgast, The Grammar o f Justice (Cornell University Press, Ithaca and London: 1987). See Rawls, Political Liberalism, p. xxviii. See e.g. Iris Marion Young, Justice and the Politics o f Difference (Princeton University Press, Princeton: 1990); Susan M oller Okin, ‘Humanist Liberalism’, in Nancy L. Rosenblum (ed.), Liberalism and the M oral Life (Harvard University Press, Cambridge, M A and London: 1989), pp. 39-53. On the ‘Faustian vision’ o f life endorsed by liberalism see Brian Barry, The Liberal Theory o fJustice. A Critical Examination o f the Principal Doctrines in A Theory o fJustice' by John Rawls (Clarendon Press, Oxford: 1973), p. 127. If the leading proponents o f democratic individuality are, as George Kateb maintains, Emerson, Thoreau and Whitman, it is only Whitman, with his faith in constantly being ‘in and out o f the game’, who, in my opinion, encourages a non-problematic co-existence o f extreme experimentalism in private life with ‘good citizenship’. See George Kateb, ‘Democratic Individuality and the Claims o f Politics’, Political Theory 12 (August 1984), pp. 331-6 0 ; idem, ‘Democratic Individuality and the Meaning of Rights’, in Rosenblum, Liberalism and the M oral Life, pp. 183-206. Kateb’s essay in Political Theory is one o f three (the others by Michael W alzer and Samuel H. Beer) on ‘The Resources o f American Liberalism’: ibid., pp. 3 15-86. I do not mean to deny that there might always be a peaceful co-existence between membership o f ‘churches’ and political membership: the political thesis o f Catholics on abortion shows the contrary (together with the fact that politics can bring ‘metaphysics’ back on to its agenda). See Axel Honneth, Kampfum Anerkennung: zu r moralischen Grammatik sozialer Konflikte (Suhrkamp, Frankfurt am Main: 1992). In a world in which, as Hans Magnus Enzensberger observes, ‘every underground-train can become a Bosnia in miniature’, Richard Rorty seems to be particularly convincing. See Enzensberger, Aussichten a u f den Biirgerkrieg (Suhrkamp, Frankfurt am Main: 1993), p. 30; Rorty, Contin­ gency, Irony and Solidarity (Cambridge University Press, Cambridge: 1989).

THE LIBERAL TREATY REVISITED

20.

41

According to Rorty, moral progress does not rely on philosophical justi­ fications o f solidarity, but rather on ‘the ability to see more and more traditional differences (of tribe, religion, race, customs and the like) as unimportant when compared with similarities with respect to pain and humiliation - the ability to think of people widely different from ourselves as included in the range o f “us” ibid., p. 192. See Jean L. Cohen’s brilliant points on the self-limiting character o f the new social movements: Cohen, ‘Strategy or Identity: New Theoretical Para­ digms and Contemporary Social Movements’, Social Research 52 (Winter 1985), pp. 663-716, esp. pp. 665-6 n. 4.

The Concept of the Nation and the Question of Nationalism: The Traditional ‘Nation State’ versus a Multicultural ‘Community State’ Hans Koehler

1 The traditional nation-state is based on an authoritarian ideology in terms of the ethnic, religious and regional status of the individual (the citizen). This ideology corresponds to a centralist power structure and to the regrettable fact that population groups which differ from majority populations (in terms of their ethnic, religious, cultural orientation and so forth) do not enjoy equal rights. (Examples of this denial of basic rights are numerous even in the member states of the European Union.) The often un-reflected equation of nationality and citizenship fails to provide proper legal (constitutional) safeguards for human rights in the sense of peoples’ (ethnic) rights.1The inhuman result of such an ‘ideo­ logy of equation’ can best be studied by analysing the present ethnic strife in the territory of former Yugoslavia, where regrettably - with the help and tacit approval of European and United Nations diplomats nationalist and chauvinist policies are being re-introduced as major factors shaping international relations. A clear conceptual distinction should be made between citizenship (which is related to the state as a subject of international law) and nationality (which refers to a community or a people that has common roots in terms of language, culture, race, etc.). The common English usage of the term ‘nation’ is extremely misleading; for nationality and citizenship are not necessarily identical.2 I may belong to the Slavic nation (for example, as a member of the Slovenian minority in Carinthia); but at the same time I may be a citizen of the Austrian state. I may belong to the German-speaking national minority (as a Tyrolean living in South Tyrol), but actually be an Italian citizen. In such a case, nobody would consider me a member of the Italian nation. In the same way, the Arabs - living in more than twenty sovereign states - would not consider themselves as members of more than twenty different nations: they all belong to one Arab nation that is politically organized in a number of sovereign entities.

43

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MULTICULTURALISM AND THE LIBERAL STATE

Only a clear distinction between these two conceptual levels (nation and state) will pave the way for a philosophy that encourages cultural dialogue and multicultural respect among nations, which is itself the basis for the understanding of a political entity (state) in the sense of a multicultural society and which is the only guarantee for peaceful co­ existence among nations, both on the national (i.e. intra-state) and on the international (i.e. inter-state) level. The over-emphasis on state sovereignty in the traditional nation­ state confirms the prevalence of the authoritarian ideology mentioned above: the individual citizen is held hostage by an abstract entity that is articulated in the central power of the state.3 Every subjection of the individual to another authority that disposes of him means alienation: that is, negation of his will and of his status as an autonomous subject.4 The individual characteristics of the citizen (in regard to his nationality, socio-cultural orientation etc.) are completely absorbed by his subjec­ tion to the one nation (equated with the state) to which he is supposed to belong. Traditional power politics - as typically expressed in an aggressive, chauvinist foreign policy - is the concomitant expression of such an orientation towards the abstract entity of the state.5 The political concept of representation is one of the expressions of the undemocratic nature of such a political equation: all individuals liv­ ing in a certain territory and under the same legal authority are perceived to be represented by the state’s legislators as a whole. The doctrine of the state as the primary subject of international law is ideologically reinforced by this doctrine of representation.6 This creates a false, mis­ leading sense of unity, when in reality each citizen enjoys inalienable rights both as an individual and as a member of a group. (The national slogan of the United States, e pluribus unum , should not be misunder­ stood in the sense of such an abstract unity of its citizens.) The abstract concept of representation merely does away with these differences and does not meet the requirements of a multicultural society, with a vast variety of perceptions of what the political entity they all share might and should be.7 Representation completely absorbs and finally negates the autonomy and individuality of the citizen. (One often completely ignores the remains of absolutism as manifested in the privileged posi­ tion of the representative vis-a-vis the citizens and the communities forming a particular state.)8 A truly multicultural society can be based much better on the para­ digm of direct (participatory) democracy than on the authoritarian or oligarchic concept of decision by proxy (as in the case of political repre­ sentation).9 Long ago Hans Kelsen pointed out the fictitious character of representation which - in its holistic vision of the ‘people’ as an ontological entity or unity above all individuals - is not compatible with the basic requirements of democracy.10 The underlying undemocratic ideology of representation can best be illustrated by referring to Carl

THE NATION AND NATIONALISM

45

Schmitt’s quasi-ontological justification of the concept of representation in regard to the nation as a whole ( Volksganzes), which is completely compatible with earlier German ideology.11

2 A truly democratic system can only be based on socio-cultural self­ comprehension along the lines of an inter-cultural dialogue. Only if the citizen understands himself not as the representative of ‘the’ nation being equated with the state - but as an individual belonging to a certain community (national group) without pretending that his group ideally represents the state as a whole; only under these circumstances might we expect that a given value system related to a certain cultural (national) identity will transcend the uncritical and naive universality which it possesses as long as it is expressed in a merely instinctive manner. The cultural self-comprehension of each nationality in a given state should be seen as a dialectical process similar to the fashion in which each individual attains consciousness for him/herself.12 Each context of action has as its origin a self-comprehension that has not yet been critically developed or examined. (This is best expressed by the German term, Vorverstandnis, as introduced into philosophicalhermeneutic discourse by Martin Heidegger and Hans-Georg Gadamer.13) We allude here to the ideological and normative principles that would form the individual as well as the collective life in a typical manner. It is this un-reflected (implicit) self-comprehension that we have to bring to critical attention. Only in this way can we succeed in the aim of a con­ structive dialogue between various cultures and lifestyles as the basis for peaceful co-existence in a global system of interdependence. The level of truly critical consciousness, however, can only be attained if we are willing to compare our own system to one that is different from our own: it is the ‘other’ (the object) that constitutes the precondition for such a quality of consciousness on the part of the subject. Conscious­ ness may thus be said to be essentially the process of distinguishing from the subject what is not the subject. It is in this fundamentally dialectical process between subject and object that we find the essence of reflection.14 W hat we think to be true in the case of attaining selfconsciousness may positively be said also in the case of the realization of our own national, social, and cultural value systems. Awareness and consciousness of one’s own value system presupposes necessarily the existence of other systems. In the dialectical interdependence of cultural and value systems we find the conditio sine qua non for any critical perception of these systems. As we have argued, consciousness is attained from the dialectical interdependence between subject and object: the more I am able to

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perceive myself as being distinct from as wide a range of objects as possible, the more I will succeed in defining my own point of view, i.e. develop my own identity. In other words, the wider the subjective horizon of experience, the easier it is to attain critical self-reflection. By applying this to one’s own value systems we arrive at the following point: we find in the variety of possible systems of values and cultures the unique opportunity to gain a clearer and more critical consciousness of our own systems. This could be the basis of a philosophy of the multi­ cultural society and of the ‘political correctness’ necessarily related to it. Here we find the principle of the subject-object dialectic in the con­ crete realm of application.15 If we are to understand this hermeneutic principle correctly in the cultural-philosophical sense, we may postulate that transcending the horizon of one’s own tradition is the very precon­ dition for a better understanding of that very tradition. This means, in turn, that one’s own tradition and culture, if understood as an isolated and ‘elevated’ phenomenon, has less impact and significance. For criti­ cal perception, the awareness of cultures different from our own is of paramount importance. Self-comprehension, self-awareness, cannot be drawn simply from one’s own history. It would be right to consider this process indispensable and essential: for only in limitation, i.e. in the awareness of other systems independent of our own, may we experience shape and structure at all. A socio­ cultural system may be said to last only in such a creative and critical limitation, i.e. awareness of its own limits. A cultural system, therefore, must be experienced as being different from some other system in order to be perceived at all. A political society, understood in this dialecticalhermeneutic sense, consists itself only in such a reciprocal acceptance. Responsible, mature self-comprehension, therefore, is only possible when we are able and willing to go beyond the realm and the sphere of influence that have been shaped by our own history and cultural and national traditions. We must even be confronted with traditions and cultural systems that have not been influenced by our own value systems. This dialectical process works effectively towards a more humanistic, that is humane and tolerant, attitude, because it creates the precondi­ tions for a reduction of aggressiveness towards traditions and cultures that are not our own, which are originally perceived as ‘alien’. These cultures, in turn, will then be experienced as being a necessary point of orientation in order to define one’s own identity. We must reach a level of self-comprehension where we do not con­ sider our state of being preconditioned as a possible taboo. Any cult of exceptionalism - or nationalism for that matter - will impede a full understanding of these preconditions and will make a tolerant attitude towards other cultures impossible. From this it follows that the true and genuine progress of humanity must be based on tolerance and respect for each other’s culture and value system. In the age of mass commu­

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nication, mankind is developing towards a global multicultural society. Major conflicts may only be avoided if we abandon traditional ethno­ centric attitudes and learn to accept the existence of other cultures different from our own.16

3 If we take this concept of cultural self-comprehension seriously - as the basis of the democratic system of any given state and of the relations between sovereign states (i.e. under international law), then we would have to adapt our vision of a unified Europe to this philosophy of multiculturalism.17 ‘Europe’ would then have to be perceived as a community of peoples (i.e. citizens belonging to various socio-cultural groups) and not as a collection of nation-states. The normative quality o f‘sovereignty’ would then not be attributed to the abstract state but to the concrete citizen as an individual and as a member of a particular community (through, for example, the person’s nationality or religious identity).18 For some decades now, we have seen visions of a federalist ‘Europe of the regions’ along the lines of a truly multicultural conception of a Europe des ethnies .19 Such a model could also be applied, of course, in other continents, where artificial borders have been drawn by the former colonial powers and artificial nations (‘state-nations’) have been created irrespective of the historical facts and the will of the respective ethnic communities. This conception would imply that ‘national’ rights are not merely seen as ‘minority rights’, but as general rights of each citizen in any given state. This necessarily implies that the state should not be defined on the basis of (say) a particular nationality or religion whatever the size of the respective community may be. Nor should it be equated with the concept of the ‘nation’, because this would inevitably eliminate the genuine legal rights of each national minority group. The infamous policy of ‘ethnic cleansing’ witnessed in BosniaHerzegovina is a result of this totalitarian equation of state and nation. Any identification of the state with a particular nationality, culture, or religion is a kind of totalitarianism, whether we find it in the form of a racist system (as in South African apartheid), in the doctrine of a state religion, or in the exclusively national character of a state as the political entity of a specific national community. Racism and discrimination against all the other communities that do not belong to the ‘state­ shaping’ group is always the underlying ideology. Since the West has passed through the Age of Enlightenment and since international human rights’ instruments have been adopted, there should be a common awareness (which internationally so far does not exist) of the normative requirements of a democratic polity: namely the ethnic and religious neutrality of the state. Only such neutrality will

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make a multicultural society viable.20 But such neutrality, of course, must not be confused with ethical neutrality in regard to the value system which is common to all communities: namely the universal principles of human rights. This neutrality and the related attitudes of tolerance and mutual respect for each other’s culture is still lacking in many legal (constitutional) systems, even in Europe.21 The totalitarian trend of shaping all citizens, including the members of minority groups, to conform to a single national, ethnic, religious or cultural identity is still very much alive in Europe. The present ethnic strife in the Balkans and in the Caucasus is only one of many signs that the foregoing philosophical-idealistic vision is not shared by the populations or population groups (including the politically active elites) in many states. And further proof is given by the racist attitudes found in several European Union countries. Ethnic hostilities and aggressive attitudes may only be overcome or avoided if the socio-cultural self-comprehension of nations develops towards what may be called an ‘inter-cultural dialogue’ and an aware­ ness of the common characteristics of all human beings. Only if we are able to develop a state doctrine that clearly separates state and nation shall we leave behind the traces of racism, totalitarianism, and discrimi­ nation against minorities that we find even in the developed societies of the West. We have to realize and accept that one nationality may exist in several states and that the basic criterion of state-citizenship is not race, nationality, or religion but each individual’s basic human rights as a citizen; as a member of a political community that defines itself on the basis of shared values as expressed in a certain constitution; but not in the glory of a ‘nation’ and its ‘unique’ history. Such a concept of ‘diversity in unity’ is perfectly compatible with a unified state, as Carl Degler explains in his analysis of the US political system.22 In Degler’s analysis, the interdependence of ethnic and cultural communities within the United States has created a community, a ‘holistic history’, wherein ‘each racial and ethnic group has in turn been shaped by its interaction with others and with the past that all citizens have played a part in shaping.’ (But Degler is conscious that the ‘long-overdue recognition of diversity’ in the United States may ‘leave [...] out the larger story of the United States as a whole’.) There is no rule that a given nation (nationality) should be unified under the sovereignty of one single state.

4 We may conclude that a multicultural society as envisaged in this analysis would imply the redefinition of the status of the citizen as a true cosmopolitan. Priority would be given to the individual’s status as a member of the universal community of mankind rather as a member

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of a particular race, nation, or state. In the final analysis, this would imply a restructuring of international law by abolishing the traditional concept of ‘national’ (i.e. state) sovereignty as the cornerstone of the system of international norms - as incorporated in the United Nations Charter - in favour of the citizen as the primary subject of international law. The understanding of international relations in terms of traditional power-politics - related to state power and state sovereignty - must be replaced by a concept of partnership which is based on the principles of mutuality and solidarity among the citizens and the respective national, cultural and religious communities. Such a goal is still very far away from reality so long as hostility towards the ‘alien’ (in terms of culture, way of life, or value system) is one of the driving forces behind the re-shaping of the European map and of the maps of several other regions - after the end of the controls and restrictions imposed by the Cold War. For we should note that a similar situation exists in the Caucasus, in the Middle East and in many other parts of the Third World, where the colonial policies of European nation-states created almost insurmountable problems in the definition of the respective ‘national’ identities alongside the ethnic and religious composition of the indigenous peoples. The term ‘United Nations’, however, may serve as an indicator of the direction that the development towards a new international system, a new ‘world order’, should take.23 The world community should be based not on states and state sover­ eignty, but on the different peoples and the specific community structures created by them with regard to their national, cultural and religious identities.24 W hat this means is that a truly new world order has to be more than a new pattern of power relations among states. Such an order must create the normative framework for the involvement of the citi­ zens, not only within the respective state communities but also within global political bodies. This would create an alternative to traditional state representation as practised in classical diplomacy, which too often ignores the rights of cultural, religious and ethnic minorities. In the final analysis, a multicultural society within the state is based on principles that transcend the traditional philosophy of the state and state sovereignty. And a political community structured along these lines would not face the threats of fragmentation, re-segregation and tribalization, which some pessimists fear threaten today’s multicultural America.25 Such a multicultural society must be based on the idea of a truly inter-national community of sovereign citizens. (The traditional term, ‘international’, should be replaced by the term ‘inter-state’, in order to distinguish clearly the conceptual levels of state and nation.) This implies an inter-cultural dialogue based on the application of democratic rules in international relations. Only this will guarantee a ‘new world order’ of peace and justice among all nations.

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NOTES

1. 2. 3.

4.

5.

6.

7.

8.

9. 10. 11. 12.

13. 14. 15.

For a detailed description o f this concept, see Edmond Jouve, Le Droit des Peuples, Que sais-je no. 2315 (Presses Universitaires de France, Paris: 1986). For the distinction, see James Kurth, ‘Toward the Postmodern W orld’, Dialogue 100 (No. 2, 1993), pp. 8 -13. For a detailed analysis o f the concept o f sovereignty and its legalphilosophical implications, see Hans Kelsen, Das Problem der Souverdnitdt und die Theorie des Volkerrechts: Beitrag zu einer reinen Rechtslehre. 2nd ed. (Mohr, Tubingen: 1928; Scientia, Aalen: 1960). As I have argued in Democracy and Human Rights: Do Human Rights Occur with Particular Democratic Systems? (International Progress Organization, Wien: 1990), esp. pp. 14ff. Albert F. Reiterer, Die unvermeidbare Nation: Ethnizitdt, N ationalist und nachnationale Gesellschaft (Campus, Frankfurt am Main: 1988), esp. Chap. 3: ‘Nation als eine Hegemonialstrategie: Gesellschaft und Staat’. Cf. Kurth, ‘Toward the Postmodern W orld’, p. 8. The problem o f the legitimacy o f parliamentary systems (qua oligarchic power-structure) is discussed in Hans Koehler (ed.), The Crisis o fRepresen­ tative Democracy (Lang, Frankfurt am Main and New York: 1987). See also Koehler, Democracy and the New World Order (International Progress Organization, Wien: 1993), pp. 19ff. For the authoritarian ideology o f the political concept o f representation, see Hans Koehler, Philosophie - Recht - Politik: Abhandlungen zurpolitischen Philosophie und zur Rechtsphilosophie (Springer, W ien and New York: 1985), esp. pp. 27-45: ‘Die Reprasentationslehre: zum Problem des Idealismus in der politischen Theorie.’ For a general critique o f the concept and practice o f ‘liberal’ represen­ tative democracy in the industrial societies o f the North, see Noam Chomsky, Deterring Democracy (Verso, London and New York: 1991), esp. pp. 3 3 Iff. For a specific critique o f the American political system, see W illiam Greider, Who W ill Tell the People: the Betrayal ofAmerican Demo­ cracy (Simon & Schuster, New York: 1992). Cf. Benjamin R. Barber, Strong Democracy: Participatory Politics fo r a New Age (University o f California Press, Berkeley: 1984). Hans Kelsen, Vom Wesen und Wen der Demokratie. 2nd ed. (Mohr, Tubingen: 1929; Scientia, Aalen: 1963). Carl Schmitt, Verfassungslehre (Duncker & Humblot, Berlin: 1954), esp. pp. 208ff. A. O. Sanda, ‘Cultural Self-Comprehension in Ethnically Plural Societies: the Case o f sub-Saharan Africa’, in Hans Koehler (ed.), Cultural SelfComprehension in Nations (Erdmann, Tubingen and Basel: 1978), pp. 4 1-56 . See esp. Hans-Georg Gadamer, Wahrheit und Methode: Grundziige einer philosophischen Hermeneutik (Mohr, Tubingen: 1960). The reference here is to dialectical epistemology as elaborated by Georg W ilhelm Friedrich Hegel in his Phdnomenologie des Geistes (1807). I have provided a general philosophical and epistemological analysis in Die Subjekt-Objekt-Dialektik in der transzendentalen Phdnomenologie: das

THE NATION AND NATIONALISM

16. 17.

18.

19. 20.

21. 22. 23.

24.

2 5.

51

Seinsproblem zwischen Idealismus und Realismus, Monographien zur philosophischen Forschung no. 112 (Hain, Meisenheim am Gian: 1974). Gudrun Grabher (ed.), International Progress Organization, 19 7 2 -19 9 2 (International Progress Organization, Wien: 1992), esp. p. 4. For the application o f this philosophy in a concrete political situation, see Daniel Cohn-Bendit and Thomas Schmid, Heimat Babylon: das Wagnis der multikulturellen Demokratie (Hoffmann & Campe, Hamburg: 1992), esp. Chap. 8. It is my judgement that the sovereignty o f the individual citizen is the justification of the claim to sovereignty o f the collective subject (or state) in international law: cf. Koehler, Foreign Policy and Democracy: Recon­ sidering the Universality of the Democratic Principles (International Progress Organization, Wien: 1988). Guy Heraud, LEurope des Ethnies, Realites du Present no. 3 (Presses d’Europe, Paris: 1963). James Kurth argues that the United States ‘no longer resembles a nation­ state, but rather a multicultural regime’; and that this multicultural America is the ‘model for much of the world in the postmodern future’: Kurth, ‘Toward the Postmodern W orld’, p. 12. Carl Degler, ‘A Challenge for Multiculturalism’, Dialogue 98 (No. 4, 1992), pp. 36-40. Ibid., esp. pp. 39-40. Frank Barnaby (ed.), Building a More Democratic United Nations, Proceed­ ings o f the First International Conference on a More Democratic UN (Frank Cass, London: 1991). Erskine Childers, ‘Empowering “W e the Peoples” in the United Nations’, in Hans Koehler (ed.), The United Nations and the New World Order (International Progress Organization, Wien: 1992), pp. 23-36. See esp. Arthur M. Schlesinger, Jr., The Disuniting ofAmerica: Reflections on a M ulticultural Society (W. W. Norton, New York: 1992).

Political and Juridical Approaches to Justice toward Groups Me//sso S. Williams

M y inquiry begins with the premise that the tensions between the fact of social difference and the aspiration to democratic equality is one of the central theoretical and practical conundrums of our day. Fundamentally, the challenge is to redefine democratic equality in the face of the failure of liberalism’s old standard of difference-blindness. The standard of difference-blindness is no longer adequate to define justice, because standards or principles that have th t form of difference-blindness often function to reinforce the privilege of some groups and the disadvantage of others. I want to argue that it is possible to distinguish two broad approaches in recent attempts to reconcile equality and difference what I am calling the ‘juridical’ and the ‘political’ models of justice toward groups. I will argue that the political approach not only has important advantages over, but is actually implicit (although unde­ veloped) in, the juridical approach. Nonetheless, the political approach itself leaves us with unanswered questions that are so fundamental that it renders the aspiration to justice itself suspect. In particular, it leads us to a precipice at which we must choose whether to abandon the ideal of justice as impartiality altogether. Before I proceed, I should explain that by ‘social difference’ I mean difference defined along group lines, and particularly along the lines of what I will call ‘ascriptive groups’. Ascriptive groups can be charac­ terized by three distinctive attributes: (1) generally, membership in them is not experienced as voluntary; (2) generally, membership in them is not experienced as mutable; and (3) generally, there are negative meanings assigned to group identity by the broader society or the dominant culture. There is some blurring along the edges, of course - but the paradigmatic ascriptive groups are race, sex and ethnicity.

Attractions of the Juridical Model W hy might democratic theorists committed to the ideas of equality and individual freedom favour a juridical approach to the definition of jus­ tice? First, of course, is the conviction that an indispensable element of justice is the impersonal rule of law. The impartiality of justice, so

53

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understood, encompasses the commitment to treat like cases alike, and enables citizens to regulate their actions according to settled, known rules. Individuals’ freedom to pursue their conceptions of the good life depends upon their knowing in advance the just limits on their actions. The attraction of a juridical conception of justice is not only that it protects the interests of freedom, but also that it appears to secure citizens’ interest in being treated as equals. Above all, the notion of impartiality as impersonality guarantees that citizens’ standing as bearers of just entitlement does not vary according to differences that are arbi­ trary from a moral point o f view .1 Together, these elements of ‘justice as regularity’ incline liberal theorists toward a procedural approach to the definition of principles of justice. Thus John Rawls, for example, characterizes his original posi­ tion as a model of pure procedural justice: assuming that the features of the initial situation have been appropriately specified, the principles affirmed within it will be fair, ‘whatever they happen to be’.2 The notion that justice should be defined procedurally does not automatically dictate the relationship between justice and the political sphere. But if we take Rawls as our model, the answer to this question is abundantly clear. As noted above, the priority of the right over the good also requires the priority of the just over the political. The principles of justice that have been defined through a procedural framework are conceived as limits to permissible individual and governmental action. Indeed, Rawls acknowledges that a primary purpose of a liberal con­ ception of justice is that: it fixes, once and for all, the content of the basic rights and liberties, takes those guarantees o ff the political agenda , and puts them beyond the calculus of social interests.3 This last point makes clear a final reason why some liberals prefer a juridical model for defining principles of justice. By making justice prior to politics, we can ensure that justice is not subjected to the many distorting imperfections of the political sphere. Because politics must take account of particular circumstances and allow some role for the expression of interests in the policy-making process, it offers many opportunities for considerations of interest and for relations of power to shape political outcomes. If justice is meant to guarantee the equal standing of all citizens and to secure an order of known rights and obligations, it must not be left vulnerable to the political fray.

Social Difference in the Juridical Model: Okin and Kymlicka In Justice , Gender and the Family, Susan Moller Okin offers both a cri­ tique and a reconstruction of Rawls’s original position as an analytic

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55

device that we can use to define workable standards of justice for liberal democratic societies. In her critique, Okin observes that Rawls’s own characterization of the original position, despite its occasional claims to gender neutrality, in fact contains many implicit assumptions that would tend to reinforce the current inequality of women in the gendered structure of social institutions. In particular, his characterization of par­ ties to the original position as heads of families and as individuals who expect to be members of the paid work-force upon entering society suggests an implicit assumption that the parties are the male heads of relatively traditional families.4 Moreover, although Rawls does regard the family as a ‘school of justice’ in the third section of A Theory o f Justice , he seems simply to assume there that families in a well-ordered society are just. However, given that the parties to the original position are heads of families, there is no basis for such an assumption: the principles of justice are chosen against a background in which families already exist. Thus, despite Rawls’s occasional insistence on the formal equality of women, and his initial suggestion that the family is a part of the basic structure of society that ought to be regulated by shared prin­ ciples of justice, these concerns receive no attention in the process of reasoning through which he constructs his theory of justice. As Okin’s argument makes clear, however, the social structure of gen­ der relations and the nature of the family certainly raise issues of justice. In a society where domestic labour - the maintenance of the household and the rearing of children - is performed predominantly by women, women’s inequality in other spheres is virtually assured. Okin argues that even if we limit our attention to the primary goods which Rawls expressly discusses, it is not difficult to see that a gender-structured soci­ ety makes it impossible for women to enjoy those goods equally with men. The liberty of free choice of occupation, for example, remains unfulfilled so long as women are expected to perform the larger part of domestic labour, as it imposes the constraint of a ‘double work day’ on them. The equal value of political liberties is out of reach in a genderstructured society, again because political involvement is time-consuming and women who bear responsibility for domestic labour have precious little time for political activities. Finally, and perhaps most importantly, the primary good of the social bases of self-esteem are less secure for girls and women than for boys and men, who grow up in a society in which women are subordinated to men. However, Okin argues, Rawls’s own characterization of the family as a school of justice suggests that the original position can be a tool for feminist criticism, and not merely the locus of Rawls’s failure to attend to the relation between justice and gender. For Rawls regards the family as a school of justice insofar as it is in the family that we learn to treat others on a basis of respect and reciprocity, where we can learn to ‘put ourselves into an other’s place and find out what we would do in his

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position’.5 In fact, Okin points out, it is precisely this skill that the original position calls upon us to employ: The veil of ignorance is such a demanding stipulation that it converts what would, without it, be self-interest into equal concern for others, including others who are very different from ourselves. Those in the original position cannot think from the position of nobody ... They must, rather, think from the perspective of everybody , in the sense of each in turn. To do this requires, at the very least, both strong empathy and a preparedness to listen carefully to the very different points of view of others.6 Thus, if we reconstruct the original position so that the parties are ignorant of their sex but aware of the existing gendered structure of society, we will be led to revise the Rawlsian characterization of justice in several ways. As the above examples of Rawlsian primary goods sug­ gest, once we assign the parties the task of reasoning not from the standpoint of the ‘least advantaged member of society’ generally speak­ ing, but specifically from the standpoint of women, we will certainly and explicitly include the family within the basic structure of society that is to be regulated by principles of justice. Ultimately, Okin argues, we will conclude that justice for women depends on the eradication of a gen­ dered structure of society altogether. As this analysis demonstrates, despite Rawls’s own oversights: the feminist potential of Rawls’s method of thinking and his conclu­ sions is considerable. The original position, with the veil of ignorance hiding from its participants their sex as well as their other particular characteristics, talents, circumstances, and aims, is a powerful concept for challenging the gender structure. Once we dispense with the traditional liberal assumptions about public versus domestic, political versus non-political spheres of life, we can use Rawls’s theory as a tool with which to think about how to achieve justice between the sexes both within the family and in society at large.7 In adapting Rawls’s original position as a tool for feminists, Okin also implicitly adopts a juridical model of justice toward women. The just obligations of citizens toward one another can be defined by a process of reasoning which enables us to regard the interests of all members of society as equally deserving of recognition. The original position, suit­ ably modified to incorporate information that would encourage the parties to evaluate principles of justice from the standpoint of women, is a device which enables us to articulate standards of justice that can effectively regulate basic social institutions, including the gender rela­ tions within them. As Okin puts it: ‘relations between the sexes that could be agreed upon in the original position ... are therefore ju st from all points o f view\s Moreover, the standards of justice that result from such

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reasoning can be used to criticize existing social policies and to generate new social policies. Okin’s observations about justice and gender lead her directly to advocate laws to regulate the distribution of household income within the family, the distribution of a couple’s incomes after divorce, the payment of child support, and the like. Like Okin, W ill Kymlicka has recently offered a reconstruction of liberal views of justice that attempts to accommodate the concerns of a marginalized group - cultural minorities - in a manner consistent with fundamental liberal commitments.9 In contrast to Okin’s belief that women’s distinctive claims can be accommodated through a system of gender-neutral laws, Kymlicka concludes that a conception of justice that takes account of the differences between cultural minorities and members of a majority culture cannot rest on a system of uniform rights for all citizens, but requires special collective rights for minority cul­ tures which protect their ability to survive. What is especially innovative in Kymlicka’s approach is his insight that collective rights can be under­ stood as emanations from the duties that societies owe to individuals. Kymlicka’s defence of collective rights for minority cultures begins with a distinction between political communities, which are defined both territorially and by a regulative conception of liberal justice, and cultural communities, which are defined by such things as a shared history and language. Although the two types of community sometimes overlap, they play different roles in the lives of individuals: political communities define the sphere within which individuals ‘exercise the rights and responsibilities entailed by the framework of liberal justice’; whereas cultural communities provide the context ‘within which individuals form and revise their aims and ambitions’.10 Kymlicka’s argument for the recognition of cultural membership within the framework of a lib­ eral conception of justice turns on his claim that cultural membership is an essential component of individuals’ moral agency, their ability to identify and pursue a way of life they can affirm as good. This is so, he argues, because cultural structures provide the context that gives mean­ ing to specific ways of life and define the understandings of the good life that will resonate with individuals’ self-understandings: [I]t’s only through having a rich and secure cultural structure that people can become aware, in a vivid way, of the options available to them, and intelligently examine their value.11 Viewed in this way, Kymlicka argues, cultural membership is such an important prerequisite of individuals’ ability to pursue a conception of the good that it should be regarded as a primary good in the Rawlsian sense, a good whose equal enjoyment by all citizens should be assured by a liberal conception of justice.12 Unfortunately, the importance of cultural membership has been neglected by liberal theory because of an unexamined assumption that

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the political communities to be regulated by liberal conceptions of justice are culturally homogeneous nation-states. In fact, most contem­ porary political communities contain a number of different cultural communities, with the consequence that we cannot assume an easy harmony between the rights and responsibilities of the political commu­ nity and the definitive characteristics of cultural communities. In practice, Kymlicka argues, two central features of a liberal order stand in some tension with the security of minority cultures: the liberties of the market and the rights of the political process both function (albeit uninten­ tionally) to erode minority communities’ ability to sustain themselves as distinct communities. Because liberal freedoms make it possible for members of the majority to move into and gradually take control of the land and resources that are the lifeblood of minority cultures, they make it difficult, if not impossible, for minority communities to sustain their distinctive traditions and practices. Liberal freedoms tend to press minorities toward assimilation into the majority culture, and so grad­ ually destroy a minority’s distinctness as a culture.13 Without some adjustment to liberal principles - some qualifications of standard liberal rights and freedoms - members of minority cultures enjoy the primary good of cultural membership to a lesser degree than do members of the majority culture, who can (and do) take the survival of their culture for granted. Moreover, because cultural membership is given by birth rather than choice, individuals should not be held morally responsible for their unequal possession of this good.14 Members of minority cul­ tures thus have a strong justice-based claim for measures to protect their cultures from destruction, even if such measures would qualify or amend rights that have hitherto been viewed as definitive of a liberal order. On these grounds, Kymlicka supports minority cultures’ rights to regulate their membership, to limit non-members’ rights of mobility and resi­ dence within minority communities, and to continue culturally significant activities (such as hunting and fishing in certain areas or of certain species) that non-members might not have the right to pursue. As this brief overview of Kymlicka’s argument for collective rights suggests, the logic of Kymlicka’s reconstruction of liberal principles, of justice bears important similarities to Okin’s reconstruction. One of Kymlicka’s central insights is that prevailing understandings of justice fail to satisfy the ideal of impartiality because of hidden assumptions that those who are to be regulated by a conception of justice belong to a single, homogeneous culture. Contemporary liberalism, particularly the liberalism of Rawls or Ronald Dworkin, ignores or overlooks the per­ spectives of cultural minorities as it constructs theories of justice. This observation leads Kymlicka to correct the omission at the level of prin­ ciples. This he accomplishes by showing why, in Rawls’s view, cultural membership should be regarded as a primary good, and how, in Dworkin’s scheme, being a member of a minority culture is something against

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which his desert islanders would purchase insurance.15 Kymlicka’s view seems to be that once these correctives are made, liberal views of justice will no longer work systematically to the disadvantage of cultural min­ orities. The work of justice thus becomes a problem of application, of balancing out the competing principles affirmed within the conception of justice, a project to which Kymlicka has not yet addressed himself in any depth. Many of his remarks suggest that this work is most likely to be done by agents of the state, the ‘judges and politicians’, the ‘political elite’, whose judgements about what impartiality requires will be newly informed by the value of cultural membership.16 Admittedly, to my knowledge, Kymlicka has not yet publicly articulated his view of what the process of interpreting justice should be, since his concern has been ‘with what the principles being enforced ought to be - not with who ought to have the power to determine, interpret, and enforce those principles’.17 Without further elaboration, however, Kymlicka’s impor­ tant critique of Rawls and Dworkin leaves intact their treatment of justice as a moral concept that can be defined analytically and applied juridically. As we have seen, both Okin and Kymlicka are committed to a liberal conception of justice and its beginnings in equal concern and respect or a view of citizens as free and equal persons. But both see that the false universalism of prevailing liberal conceptions of justice in fact results in understandings of justice and rights that work to undermine the equality of a particular social group. Not coincidentally, I think, both focus on ascriptive groups. Okin and Kymlicka persuasively argue that some birthgiven attributes should be taken into account in our reasoning about justice, as they have a profound significance for their bearers’ ability to pursue meaningful lives on terms of equality with other members of their political communities. Nonetheless, the relevance of these differ­ ences should not lead friends of liberal justice to despair: the machinery that was used in the initial construction of principles of liberal justice can be re-tooled. Cultural membership can be included as a primary good in the Rawlsian scheme, or as something whose loss should be insured against in the Dworkinian scheme. The domestic sphere can be included in the domain of justice. Just replace the old parts with these new ones, and then the machine will run as smoothly as before, generating prin­ ciples of justice that do treat all individuals as equals. And although these new standards of justice will be just as difficult to apply as the old ones were - the skills of practical judgement will remain as difficult as before - there is no reason why, in principle, they cannot be applied in the same way as their predecessors. They will define both the objects and the limits of public policies, and judges will use them as the principles guiding their decisions in particular cases. Again, the model of justice is fundamentally procedural and prior to politics. Justice is conceived as something that is defined analytically and applied juridically.

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Justice and Social Difference in the Political Model If we re-examine the process of reasoning by which both Okin and Kymlicka arrived at their modifications to the liberal conception of justice, however, we find that their logic should lead us in a different direction. For the reason why the Rawlsian and Dworkinian models needed revising was that they had been constructed from a point of view which, notwithstanding its aspirations to universality, was in fact partial. The failure of Rawls and Dworkin to account for the reasonable claims to recognition that can be raised from the standpoint of cultural minori­ ties or from the standpoint of women was not a product of any hostility toward these groups, but, most likely, resulted from the fact that the partiality of their own perspectives was not apparent to them. Of course, Rawls and Dworkin are not the only mortals whose views of what justice requires of us are partial in this way. In this postmodern age, it is now a commonplace to observe that our constructions of justice - as of any system of value - are influenced (if not determined) by the social positions we occupy. This is not to say, as some postmodern theo­ rists might, that justice is chimerical, or that the possibility of a shared understanding of justice is closed off altogether. But it does mean that we should not suppose that we, as individuals toiling away in the clois­ tered halls of academic life, can construct principles of justice that anticipate the standpoints of all relevant others. The insights of Okin and Kymlicka into the partiality of Rawlsian and Dworkinian concep­ tions of justice might have led them to see that the idea that we can construct a justice-defining procedure is inherently flawed. Several legal and political theorists have been reaching the conclu­ sion that the only way to avoid the pitfalls of a false impartiality is directly to introduce the perspectives o f marginalized groups into the institutional contexts in which we define and apply and enforce conceptions o f justice.1* Because any representation of the perspectives of those groups by individuals who are not members of them is likely to present their views through a distorted lens, this means that the critique of impartiality leads inexorably to an argument for the specific self-representation of groups whose voices have been excluded from deliberations about justice. If we are dedicated to a justice which does not exclude the distinctive interests and perspectives of marginalized groups, the articu­ lation of the content of justice must proceed through a political as well as a philosophical process of argumentation. In short, the critique of impar­ tiality leads to a model of justice which is political, not juridical. The political approach to defining justice, then, enjoins us to create public spaces in which group difference can be recognized, affirmed, and can inform policy. Despite the differences between political approaches to justice toward groups, each rests on the view that justice remains unfulfilled so long as some groups remain silenced. We cannot under­

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stand what it means to treat others as equals until we have an under­ standing of how existing practices affect their most fundamental interests. And because of the partiality of our own experience, it is impossible to understand that through projecting ourselves into others’ points of view in a process of abstract reasoning. Therefore we need to confront the actual particularity of others’ experience in order to reflect on what our just obligations toward them may be. Moreover, it is important that members of marginalized groups relate that experience directly, not only because they are the best authorities on the subject of their own sense of injustice but also because we would not show them much respect if we only attended to accounts of their experience that were not their own (As even Edmund Burke recognized, we need to listen to the voices of the suffering in order to know that they are suffering.) According to the political model, our duties of justice are not defined prior to a process of political discourse, but within it. Justice does not merely define the boundaries within which politics can take place, but is itself re-shaped as a result of a public deliberation. Justice is not defined analytically, but discursively.

Dangers of a Politicized Justice A political model for understanding and defining justice, however, has potentially devastating problems of its own. Most important is the ques­ tion of whether justice as a regulative ideal can survive once we perceive what Iris Marion Young has called the ‘impossibility of impartiality’.19 When the command to attend to the particularity of perspectives on issues of justice enters the public sphere, we seem to be in danger of losing any firm ground from which we can evaluate the competing justice claims of different social groups. The fact that the perspectives on justice of mem­ bers of relatively privileged groups are different from the perspectives of marginalized groups means, of course, that there is conflict among com­ peting understandings of justice. In other words (with due regard to John Locke): who shall judge which of the conflicting interpretations of justice is the one that ought to be regulative for the community as a whole? This is the question that advocates of a politics of difference have yet to resolve. It seems undeniable that the difference-based critique of liberal universalism has resulted in an absolute loss in terms of the ideal of impartiality. And, of course, this has disturbing implications for the possibility of jus­ tice itself and throws us back to the attractions of a juridical conception of justice. One of the advantages of a notion of justice as impartiality is that it defines an authoritative position, a standard that can be legiti­ mately enforced. Thus the loss of impartiality would also seem to threaten a crucial part of what we understand by justice, i.e. its connection to the

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rule of law. Without rules and principles that are sufficiently settled to be objects of general public knowledge, individuals’ sense of living within a just and stable order is insecure. To that extent, their freedom is also insecure. Moreover, the insecurity that would come from politicizing justice might be more likely to affect members of marginalized groups than members of privileged groups. A public discourse of justice might result in what Kymlicka refers to in a different context as ‘the dictatorship of the articulate’.20 Because marginalized groups have had fewer resources with which to develop their argumentative skills, it seems likely that their arguments in a public discourse about justice will have less per­ suasive power than the arguments of relatively privileged groups, and that in any event members of marginalized groups will be more diffident in advancing their views. On some views of justice (including Kymlicka’s and Okin’s), the first commandment is to ‘protect the vulnerable’. From this standpoint, a juridical model of justice, particularly if it is revised incrementally through a process of attending to the perspectives of marginalized groups within the boundaries it defines, is essential to protect marginalized groups from re-definitions of justice that may work to advantage privileged groups even more than do current understandings of justice. Moreover, the formal protections that form a part of a system of justice are especially important to members of marginalized groups, for symbolic as well as protective reasons. Patricia Williams puts this point especially powerfully: For the historically disempowered, the conferring of rights is symbolic of all the denied aspects of their humanity: rights imply a respect that places one in the referential range of self and others, that elevates one’s status from human body to social being. For blacks, then, the attainment of rights signifies the respectful behavior, the collective responsibility, properly owed by a society to one of its own.21 Now, advocates of a political approach claim that we do not have to abandon constitutional limits such as rights in adopting the political model. But it is not clear whether this claim is sustainable in view of the critique of impartiality. That is, we are still left with the question: who shall judge which rights are essential to a workable conception of justice? To assign that power of judgement to marginalized groups themselves would be to privilege their interpretations of justice over others. This does not resolve the question of what justice is but merely re-assigns the power to define justice in a biased way. The question, then, is whether we can save impartiality from the difference-based critique. In order to clarify what is at stake here, let me distinguish between three different kinds of impartiality. First, there is the impartiality of the laws or principles of justice themselves. They do

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not prefer some individuals over others, but assign rights and responsibil­ ities to all alike, without bias. The postmodernist critique of impartiality, especially as presented by Iris Young, insists that we have lost the ability to believe in the possibility of this sort of impartiality. Any particular determination of the content of justice is certain to privilege some per­ sons in relation to others. I must agree that this seems to me a valid working hypothesis, particularly in the light of the difficulty of perceiving our own bias. No matter how thorough-going our efforts to achieve impartiality - as I believe the efforts of Rawls, Okin and Kymlicka have been - there will be social perspectives that we will not anticipate, and some of them will almost certainly be perspectives that bear on the question of what it means to treat others as equals. Although I think we should continue to use the ideal of impartial laws and principles as the guide to our judgement, as its aspiration, we must never suppose that we have achieved it. The second element of impartiality is disinterestedness, that is, being in a position where one’s interests are simply not affected one way or another by a particular dispute. Although this may still be available to us in a narrow sense, in a particular dispute within civil society, we cannot be disinterested in the matter of defining general principles or obligations of justice themselves. A community’s regulative principles of justice inevitably affect all of its members, or virtually so. But there is also a third element of a just or impartial character which tends to be overlooked, namely, the impartiality of the individual who attempts to interpret the requirements of justice in good faith. What distinguishes this individual is a spirit of impartiality, a will to prefer her just obligations over her narrow self-interest. This last kind of impar­ tiality, it seems to me, is the kind that it is essential to have among citizens who participate in a public discourse about justice. In order to understand the justice claims of those whose perspectives and experi­ ences are radically different from our own, we must engage in the work of putting aside our own interests and attempt to understand how justice looks from the other’s point of view. But this requires a characteristic which is much more an attribute of will than of mind. I believe this is what Rawls has in mind when he writes of the capacity for a sense of justice as one of the two moral qualities that we must suppose citizens to possess. I think it also resonates with Ronald Beiner’s discussion of the relevance of friendship (philia) for citizenship and for political judge­ ment. As Beiner puts it in one passage: ‘To judge is to judge-with, to judge-with is to be a friend.’ He further elaborates that judgement must be ‘“cool and sober’, although at the same time informed by sympathy that arises out of common involvement.’221 think that perhaps a more minimalist analogue of philia in modern democratic societies is trust: in order to engage in a shared dialogue about justice, citizens have to be able to trust one another to judge each other’s arguments in the spirit of

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impartiality, to prefer justice to narrow or selfish ends. As the abovequoted passage from Patricia W illiams’s book illustrates, what is at stake for marginalized groups is their membership itself, their claim to be acknowledged as entities toward whom duties of justice are owed. It is for this reason that the politics of difference is, fundamentally, also a ‘politics of recognition’.23 There is no point in engaging in the difficult work of articulating justice from your point of view on the margins of society unless those who are listening have a will to treat you justly. Your story is likely to sound very strange to them, and they will only find the patience to listen if they put a will to justice prior to their other interests, including their interests in efficient decision-making. But this founda­ tion of trust is precisely what is missing for members of marginalized groups in contemporary liberal democracies. Their full status as mem­ bers of the political community is far from assured. Thus, although it is true that the ways in which procedural views of fairness reproduce some groups’ marginalization are not forms of inten­ tional discrimination, we cannot assume that the political will exists to engage in the kind of dialogue that would be an indispensable part of treating members of those groups with equal concern and respect. Inter­ group hostility is still profound; the spirit of impartiality does not permeate modern multicultural societies. In short, we confront the problem that Rousseau encountered in the construction of his Social Contract: we know what the ideal - and even the necessary - character of citizens looks like in a society capable of justice, but it seems that we cannot get there from here. In these circumstances, we might be tempted to conclude that we ought to settle for the flawed impartiality of a justice that is defined prior to politics. Certainly I think that the difference-equality conundrum challenges us to re-conceive the relationship between justice and politics, and that neither the political nor the juridical model of justice toward groups has yet accomplished that important and difficult work. But I am inclined to favour the political model insofar as it points more clearly toward institutional mechanisms which can approximate the third kind of impartiality, the spirit of justice that individuals must have if they are to be able to participate in a discursive redefinition of equality. NOTES

* I am grateful to the Connaught Committee, University o f Toronto, for fund­ ing this project. In addition, I wish to thank Edward Andrew, Judith Baker, Victoria Kamsler, Annabelle Lever and David Welch for their helpful discussion and written comments on earlier versions o f this article. 1.

See e.g. Judith N. Shklar, American Citizenship: the Quest fo r Inclusion (Harvard University Press, Cambridge, MA: 1991); Charles Beitz, Political Equality (Princeton University Press, Princeton: 1989).

JUSTICE TOWARD GROUPS 2. 3.

4. 5. 6. 7. 8.

9. 10. 11. 12.

13.

65

John Rawls, A Theory of Justice (Harvard University Press, Cambridge, MA: 1971), p. 235. John Rawls, ‘Justice as Fairness: a Briefer Restatement’, (Cambridge, MA: unpublished manuscript), p. 158. M ore recently, in his Political Liberalism, Rawls modifies this statement. There he argues that it is not the content o f all basic rights and liberties that he believes should be fixed ‘once and for all’, but certain specific rights and liberties. In particular, Rawls singles out the equal liberty o f conscience, which removes questions o f religious truth from the public forum, and the principle o f equal civil and political liberties, which takes the possibility o f serfdom or slavery off the political agenda. John Rawls, Political Liberalism, John Dewey Essays in Philosophy no. 4 (Columbia University Press, New York: 1993), p. 151. This clarifi­ cation alters substantially the meaning o f Rawls’s earlier discussions o f removing items from the political agenda, particularly when viewed in the light o f his new discussion o f public reason in Political Liberalism. Toge­ ther, these revisions in Rawls’s liberalism move it strongly in the direction o f discursive democracy, in which the meaning and content o f funda­ mental principles o f justice and o f political morality are debated within deliberative assemblies o f citizens or elected legislators. To this extent, Rawls has moved away from what I have labelled the ‘juridical’ approach toward defining justice and toward what I am calling the ‘political’ approach. Even so, Rawls has not specifically addressed the place o f marginalized groups in his discussion o f public reason. For an explanation and articu­ lation o f ‘discursive democracy’, see Joshua Cohen, ‘Deliberation and Democratic Legitimacy’, in Alan Hamlin and Philip Pettit (eds), The Good Polity: Normative Analysis o f the State (Basil Blackwell, Oxford: 1989), pp. 17-47. Susan M oller Okin, Justice, Gender, and the Family (Basic Books, New York: 1989), esp. p. 95. Ibid., p. 100 (quoting Rawls). Ibid., pp. 10 0 -1 (emphasis in original). Ibid., pp. 10 8 -9 (emphasis in original). Ibid., p. 180 (emphasis added). In this passage Okin acknowledges the importance o f incorporating the perspectives o f those with traditional (perhaps religious) beliefs about the family into our reasoning from the original position. W ill Kymlicka, Liberalism, Community and Culture (Oxford University Press, Oxford: 1989). Ibid., p. 135. Ibid., p. 165. Ibid., p. 166. Rawls defines primary goods as ‘things that every rational man is presumed to want. These goods normally have a use whatever a person’s rational plan o f life.’ Rawls, Theory o fJustice, p. 62. The economic liberties that erode minority cultures (and particularly the aboriginal cultures with which Kymlicka is principally concerned) include the rights to buy and sell property, which may, for example, transfer control o f tribal lands to members o f the majority culture. On the political side, mobility and voting rights may mean that members o f the majority culture will gradually become an electoral majority in a region, again

66

14.

15. 16. 17. 18.

19. 20. 21. 22. 2 3.

MULTICULTURALISM AND THE LIBERAL STATE wresting control over the fate o f the community from members o f a minority culture. For further discussion, see Kymlicka, Liberalism, Com­ munity and Culture, pp. 146-9. This is an important point, the flip side o f the idea that we are morally responsible for the choices we make and for the burdens they impose on others. The notion o f responsibility for our ends is what leads liberal thinkers like John Rawls and Ronald Dworkin to favour resource-based rather than welfare-based theories o f justice. For Kymlicka’s lucid discus­ sion o f this point, see Kymlicka’s analyses in Liberalism, Community and Culture, pp. 184-7, and ‘Two Theories o f Justice’, Inquiry 33 (March 1990) , pp. 9 9 -11 9 . It is important to note that this logic entails that we should not hold members o f any ascriptive group responsible for their group membership. Kymlicka, Liberalism, Community and Culture, pp. 166-9, 187-9. Ibid., p. 154; idem, ‘Liberal Individualism and Liberal Neutrality’, Ethics 99 (July 1989), pp. 883-905, esp. p. 902. Kymlicka, Liberalism, Community and Culture, p. 197. Martha Minow, Making A ll the Difference: Inclusion, Exclusion and American Law (Cornell University Press, Ithaca and London: 1990); Anne Phillips, Engendering Democracy (Penn State University Press, University Park; Polity Press, Cambridge: 1991); Iris Marion Young, Justice and the Politics o f Difference (Princeton University Press, Princeton: 1990); Jennifer Nedelsky, ‘The Challenge o f Multiplicity’, Michigan Law Review 89 (May 1991) , pp. 15 9 1-16 0 9 ; Melissa S. Williams, ‘Voice, Trust and Memory: Marginalized Groups and the Failings o f Liberal Representation’, PhD. dissertation, Harvard University, 1993. Young, Justice and the Politics o f Difference, p. 104. Kymlicka, ‘Liberal Individualism’, p. 901. Patricia Williams, The Alchemy ofRace and Rights (Harvard University Press, Cambridge, MA: 1991), p. 153. Ronald Beiner, Political Judgment (Chicago University Press, Chicago: 1983), pp. 82, 124-5. See Charles Taylor, ‘The Politics o f Recognition’, in Amy Gutmann (ed.), Multiculturalism and ‘The Politics of Recognition'': an Essay by Charles Taylor, with Commentary by Amy Gutmann, Steven C. Rockefeller, Michael Walzer and Susan W o lf (Princeton University Press, Princeton: 1992), pp. 25-73.

Part II Citizenship and Rights Multicultural Britain

When Culture Becomes Race: Religious Identities and the Nation Kadiatu Kanneh

l The relationship between radical racial identities and cultural pluralism has come to represent a conflict between a politics of opposition and one of relativism. The claiming and mobilization of race as a political and historical self-identification has been caught in close affiliation with racism as the indirect condition and regulator of racial identity. Narra­ tives of race rely, in part, on a contextual and global understanding and memory of racial terror, dispossession, survival and defiance. Race, as a metaphor of resistance, based on memories of exclusion, the realities of power, and structures of belonging, is formed by, and grows out of, histories of racism. Reaction to the separation of race from racism, in favour of a relativist semantics o f‘culture’, has split, in Britain, between two arguments. One is a refusal to be defined by a racism which insists on the separation of groups by visible and imagined characteristics. The other is a resistance to a wishful dissolution of power relations into a notion of several cul­ tures needing a horizontal space of dialogue. What becomes complicated is the confused double-speak between race and culture, both of which in turn depend on a highly contextualized understanding of boundaries and histories. The shift between the terms, where each may stand in for the other or signal to radically different politics, can be explored with reference to two other interrelated terms: religion and nation. How race and culture operate as defining terms of identity and policy rely on their articulation with nation, with citizenship and ‘Britishness’. Religious identity has been a crucial mediating term within these structures, often emerging from or into race, culture and nation, either as radical resis­ tance or as popular mythology. In the language of multiculturalism or liberal anti-racism in Britain, the term ‘race’ has been moved to that of culture in ways which often slide the holism and exclusivity of essentialist racial categories onto a notion of cultural difference. While politely side-stepping relations of power and institutional racism, culture merely becomes a determinist substitute for race. As Paul Gilroy puts the issue:

69

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Very often, these mutually unintelligible and exclusive ethnic cultures just happen to be the same as the groups which common sense tells us are ‘races’.1 The discourse of multiculturalism often unfolds within a fixed construc­ tion of national identity as a core, invariant given, which remains at the centre of ‘other’ separate cultures. An image of British tolerance of a pluralism of cultures, exotically at a distance from the British way of life, leads away from any recognition of the nation as an ideologically con­ tested space. Instead, ‘other’ cultures are managed as calcified autonomies beyond an implicitly racialized nation. ‘Cultural pluralism’ promotes a notion of separate but already equal co-existence - equal, that is, in terms of civil, legal and economic rights, but distinct in terms of familial, religious and social life. Racial conflict and contestation is then recog­ nized only as a matter of mutual misunderstanding across the natural divisions of cultural limits, though these limits retain an indisputable and real Britishness. Ali Rattansi analyses multiculturalism, in what she calls ‘a white nation’, as: the sympathetic teaching of ‘other cultures’ in order to dispel ... ignorance [and create] a harmonious, democratic cultural pluralism, a healthy cultural diversity.2 The difference between people becomes, in this theory, a matter of discrete cultural rituals and styles which need only to be understood and tolerated, while they remain decoratively and quiedy at the peripheries of Britain. W hat is hidden in this formula is the changing, overlapping and blurred edges of cultures and what they denote. The existence of terms like Black culture, or Welsh culture, or Muslim culture, each make sense in different ways at different times, and rely on particular articu­ lations of racial, national and religious ideologies. Each operate in either radical or repressive politics, depending on the context in which the terms are mobilized and the meanings to which they are affiliated. ‘Black culture’, for example, may be used either as a suffocating, blanket term to describe dismissively a range of differing, conflicting and hetero­ geneous identities and politics; alternatively the term can be used as an enabling, strategic narrative of political solidarity and syncretic styles. Stuart Hall’s concentration on racial identities as political construc­ tions being continually in process leads him to move away from ‘race’ and ‘culture’ to a mediating term, ‘ethnicity’. Although ethnicity is often used by liberal multiculturalists as another way of signalling to discrete ‘racial cultures’, Hall seeks to rescue the term as a more fluid signifier of social context and political strategy: If the black subject and black experience are not stabilized by Nature or by some other essential guarantee, then it must be the case that

RELIGIOUS IDENTITIES AND THE NATION

71

they are constructed historically, culturally, politically - and the concept which refers to this is ‘ethnicity’.3 Although Hall’s analysis is a useful way of negotiating the often negative fixity of race and culture, ‘ethnicity’ does not, I would argue, escape the dangers of theoretical euphemism, and the concept has less value in moments where the term ‘Black’ is a necessary opposition. Ethnicity also becomes less helpful in the now common notion that ‘we are all ethnic’ - therefore, we are all equally decentred, appropriating, con­ suming and alienated. Race, culture and ethnicity are all terms which remain subject to sensitive political translation and whose operation within or against national identity is continually reformulated. Ethnicity is certainly useful at particular conjunctions in racial politics where, for example, the term ‘Black’ needs to be recognized in its heterogeneity as geographically, sexually, culturally, socially and even biologically split. However, the concept of ethnicity remains in tension with, and needs to be mobilized alongside, terms like race and realities such as racism.

2 The crisis over Salman Rushdie’s novel The Satanic Verses exposed contradictions and difficulties in the debate over multiculturalism and Britishness in such a way that the so-called Black community along with anti-racism, feminism, national identity, liberalism and resistance were all polarized, confused and fractured in lasting ways. The incommen­ surability of views and values which were previously assumed to be on the same side could no longer be ignored. As an example of the kind of polarizations and unholy alliances which occurred during the crisis we can note that the Muslim demonstration in London in June 1989 was supported by a fascist organization as well as the Anti-Fascist League; while other fascists opposed the demonstration, as did the newly formed Women Against Fundamentalism.4 Others who were against the Muslim outcry over Rushdie’s novel were the liberal left, along with The Guar­ dian and the literary elite, who argued for freedom of speech and selfexpression as good and uncontestable British values. And then there were those who, in a state of ethical panic, caught between being racist or non-British, did not know what to say. Out of this nervous shuffle, a series of realizations emerge. Firstly, a position on anti-racism or multiculturalism has to be dependent on a more incisive scrutiny of national identity and values. The prized con­ cepts of free speech and literary freedom, which were so defensively evoked in Rushdie’s favour, are only workable once there is a certain ‘common sense’ consensus that nothing is sacred except for the rights of liberal individuals with the correct values to say what they like.5 The

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powerful link between the Church of England and the state, not merely through the blasphemy laws but also in educational policies, emotively and actively marginalizes adherents of minority religions. (A recent Secretary of State for Education, John Patten, called for a national focus on Christian education in British schools.) And, crucially, the religious difference of the Muslims who are incensed by The Satanic Verses has led to a further stereotyping and racialization of Islam in the popular media, which views all Muslims as Asian or Arab, and vice versa. In this popular demonology, all Muslims are viewed as radically non-Western, regres­ sive, oppressive to women, and authoritarian in a mysteriously uniform way. From the racial threat of the Black enemy within, has emerged the Satanic threat of Muslim masculinity. In Nira Yuval-Davis’s summary, there has been created an ‘anti-Muslim racism’, with a concomitant ‘racialization [ofMuslims] as the collective “barbaric Other” ...’3*6 Not only, then, did we all find ourselves reading The Satanic Verses differently from each other; but expressions of resistance also led to conflictual and passionate mis-readings. The burning of Rushdie’s book led many to a horrified vision of Nazi Germany, a European reading which did not have the same connotations for the actors involved. Tariq Modood notes a wider political and historical framework in these issues: While some Muslims saw ‘the Rushdie affair’ in terms of the Crusades, liberal intellectuals, while deploring the growing racism, saw it as a call to arms on behalf of the Enlightenment.7 The crisis thus takes on the parameters of a quarrel between the West and the non-West, where Islam stands opposed to the dearest claims of Western modernity.

3 Rastafari and the Nation of Islam are religions which self-consciously re-tell racial histories and cultural identities as doctrine. Both faiths firmly associate, though in differing ways, religious devotion, redemp­ tion and revelation with pan-Africanism or African nationalism, which in turn insist that religious identity is also and at the same time a geographically and historically founded cultural and racial pheno­ menon. (The Nation of Islam has been embraced by many African Americans from the 1940s onwards. The most famous adherents were Malcolm X and Mohammed Ali, who were both acolytes of Elijah Muhammad.)8Islam, as practised and understood from the Quran, is, of course, a multi-racial religion, which teaches tolerance and is not confined to any chosen people or culture. W hen religion becomes explicitly conflated, at a doctrinal level, with a history, a racial narrative and a culture with geographical origins, the definition of the borders of

RELIGIOUS IDENTITIES AND THE NATION

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faith, race and nation becomes problematic; and there are serious conse­ quences for nations which, implicitly and explicitly, through sentiment and education, through policing and the law, make opposing or exclu­ sionary associations. Horace Campbell, in his study Rasta and Resistance, analyses Rastafari as a religion which grows directly out of slavery and diaspora, directly out of a ‘culture of resistance’, solidarity, and longing for Africa. Camp­ bell so closely links the development of a ‘Jamaican national consciousness’ and ‘the black man’s consciousness as an African’ with the Rastafarian religion, that he asserts: It is this identification with Africa which laid the foundations for the doctrine of Rastafari - an ideology which combined the resistance against oppression with an underlying love for the freedom and emancipation of Africa and African peoples.9 In order to trace the meaning and development of Rasta, Campbell has to provide a historical narrative of slavery and resistance, of African and creolized religious practices, as well as the politics of Marcus Garvey and Black nationalism. The redefinition of Christianity, which emerged in the close relationship between Ethiopianism and the Black Church movement in the United States from the late nineteenth century, becomes in Rastafari a re-vision of Messianic redemption from Solomon to the heritage of the Ethiopian royal family. Ethiopia itself, as an image of Africa as a whole, and Ethiopian nationalism as a defended African territory against Western (specifically Italian) invasion, together form a vision of repatriation and racial pride. The failure of Garvey’s Black Star Line shipping company and his project for voluntary partial repatriation of Blacks to Liberia did not lead to the failure of his message to many poor Jamaicans. Garvey’s political message (encapsulated in the cate­ chism of the United Negro Improvement Association) borrowed from the Bible the belief that ‘Princes come out of Egypt [and that] Ethiopia shall stretch forth her hands to God’; and these words in turn became re-interpreted as an overwhelmingly religious message. Thus Garvey was revealed as a prophet of Jah, and Ras Tafari, crowned in 1930 as the Emperor Haile Selassie of Ethiopia, the ‘King of Kings’.10 (The divinity of Haile Selassie, and the supremacy of the Bible is not, however, a consensus within Rastafarianism; for many Rastas insist on the political ideology of Rastafari, with Selassie as the human spiritual leader.) The religious devotion of Rastafarianism often refuses to be divorced from radical interpretations of contemporary politics; rather, such devotees emphasize the conflation of race with nation, history with the present, and culture with destiny.11 The difficulties of the Shashamane settle­ ment in Ethiopia (where Rastafarians and Africans in the West were each granted 500 acres of land by Haile Selassie as a reward for sup­ porting the fight against Mussolini’s fascism, and where Rastafarians

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became politically at odds with the Ethiopian popular revolution, which removed the monarchy) reveal the contradictions of historico-racialreligious narratives of nationalism within nation-states; or, rather, such difficulties reveal the possibilities of identifying with a nation within and against the state. Further contradictions exist within Rastafarianism. For example, there is the strain of capitalist enterprise, certain forms of Zionism and a con­ centration on old African empires in some versions of the movement (parallels here with certain aspects of Garveyism); but there are also other, anti-capitalist versions, which stress solidarity with current popular Black struggles in Africa and the West. In Britain, the criminalization and pathologization of Rastafarians by the penal system, the law courts and the medical profession have placed Rastafari outside the law and the civil boundaries of the nation, along with a vastly disproportionate number of Black people.12 W hat has also happened within Britain is the separation of Rastafarian styles, music and rituals from the religion or movement itself. Often the oppositional, radical associations of dreadlocks and Rasta colours have been appro­ priated by White people, who merely borrow the specifically Black or ‘African’ resonance and re-employ this resonance in a confusing fashion context. W hat becomes evident is the danger of easily associating poli­ tics, cultural styles and values, and race and religion in absolutist ways; yet it is equally evident that these associations are of overriding impor­ tance. The sects and political contradictions within Rastafarianism create a similar dilemma to those posed by Islam in Britain. On the one hand, the state and the media orchestrate a settled and uniform response to a heterogeneous phenomenon; and, on the other hand, this het­ erogeneity contains solid demands for religious, cultural and political resistance to be signalled by race. The reason why race is so easily confused with culture is precisely because ‘race’ is an acculturated phenomenon. References to skin colour and appearance are often strengthened, either by racist stereotyping or by self-conscious and positive collective styles. Malcolm X’s constant references to the significance of appearance for racial and Muslim identification, which he often associates with each other, are evidence of this. Malcolm’s biographer, Alex Haley, provides many examples. When Malcolm discussed the identity of African American Muslims, he repeatedly referred to the ‘white-garbed beautiful black sisters, and the dark-suited, white-shirted brothers’. Similarly, Malcolm insisted that the physical ritual of conversion, where Muslim brothers were shaved, had undeniable racial significance:I I know it’s bound to hurt the feelings of some of my good, conked, non-Muslim friends - but if you study closely any conked or ‘pro­ cessed’ Negro, you usually find he is an ignorant Negro. Whatever

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‘show’ or ‘front’ he affects, his hair lye-cooked to be ‘white-looking’ fairly shouts to everyone who looks at his head, ‘I’m ashamed to be a Negro.’ 13 Racial pride and Black identification become, for Malcolm X, part of a cultural politics of hair and style, encoded within a religious movement. Here, the ‘real’ or ‘true’ Negro calls attention to his Negro-ness through visible religious affiliation. (Malcolm X’s Negro is typically masculine.) The question which needs to be asked is: why religion? W hy does an identification with religion become so important for Black people, who see themselves being excluded, criminalized or unrepresented as national citizens? In Rastafarianism and the Nation of Islam, religious conversion has been overwhelmingly among the underclass, the con­ victs, the dispossessed. Does this represent a worrying fragmentation of national unity into antagonistic groups, or a legitimate expression of the cultural heterogeneity of the modern state? Do the solutions lie in promoting a celebration of multiple ethnicities and differences as equal yet distinct? Or, rather, should the implicit Church of England or sec­ ular conservative values of the British state, which provide the educational, legal and political yardstick by which Britishness is measured and nonBritishness excluded, be radically challenged?

4 Akbar Ahmed’s Postmodernism and Islam asks the leading question: can Islam co-exist with the Western world? Can religious devotion and certainty live in harmony with liberal cynicism or modern confusion? Ahmed agrees with the thesis that the West is profoundly postmodern; that is to say that the West is characterized by media-dissemination and the endless, confused choices arising from cultural eclecticism, which offer no finite conclusions. He characterizes ‘the postmodernist age’ as: a questioning of, a loss of faith in, the project of modernity; a spirit of pluralism; a heightened scepticism of traditional orthodoxies; and finally a rejection of a view of the world as a universal totality, of the expectation of final solutions and complete answers.14 From such a perspective, Ahmed goes on to explain the rise of funda­ mentalist Islam as a direct result and aspect of postmodernity - which he views as a global phenomenon, precisely due to the world saturation of the media. Therefore, he claims: Where nothing is sacred, every belief becomes revisable. Thus funda­ mentalism is the attempt to resolve how to live in a world of radical

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doubt. It is a dialogue with the times, a response to it ... In fact, an argument can be made that ethno-religious revivalism is both cause and effect of postmodernism.15 The term ‘fundamentalism’, of course, has itself been a media mis­ nomer used to denote ‘extremism’. (The term comes from a Protestant Christian context, which raises doubts about the proper application of the word to Islam.)16 Ahmed’s point of view, with its uneasy vacillation between the idea of a postmodern age or postmodernity, and postmod­ ernism as an intellectual concept as well as the reality we all experience, manages to devise the world as the West and its self-conscious response. In fact, on a historical trajectory, for the non-West, or ‘Muslim society’, modernity equals Western ‘education, technology and industrialisation’, which were passionately pursued in the immediate context of post­ colonial independence; and then, at a later date, postmodernity equals ‘a reversion to traditional Muslim values and a rejection of modernism’. This ‘reversion’ involves ‘a shift to ethnic or Islamic identity’, which Ahmed is careful to distinguish from each other. Ahmed, as a selfappointed mediator between the West (or British values) and Islam (or, rather, the Muslims protesting against The Satanic Perses), sympa­ thetically recognizes these anti-Rushdie demonstrations as ‘a cry of identity, a need to be heard and understood’; and, at the same time, Ahmed presents Western postmodernity as positive and progressive. His vision of the West is of a world with no invested premium in its own self-certainty, with no need or desire to make a vocal or political claim on a religious or cultural identity. In this way, multiculturalism and tolerance are means to celebrating radical Western postmodernity.17 The idea that British identity makes no absolutist claims on national, ethnic, or cultural identity can be readily refuted by even a cursory read­ ing of the speeches of Enoch Powell or Margaret Thatcher. Ahmed himself recognizes that there is: a class element in postmodernism ... Postmodernism may thus be seen as essentially, though not exclusively, a middle-class phe­ nomenon.18 Even so, this perception becomes lost in an analysis which privileges a liberal, middle-class interpretation of itself and presents such concerns as neutral and universal.

5 The Nation of Islam, for the African-Americans who have embraced it, is a religion of Black pride and power; whereas Christianity (in a Manichean vision of the world) is ‘the white man’s religion’.19 This recognition, often by anti-colonial visionaries, of the significance of

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Christianity for the West, and particularly for England, is something which is often disavowed in England behind a claim for liberal secu­ larism. In the case of Islam, it is not another religion which is feared, but religion itself. Ngugi Wa Thiong’o, however, has always been explicit about this link between ‘Englishness’ and Christianity, and in his novel Petals o f Blood he describes the force of colonialism in tripartite terms: The missionary ... carried the Bible; the soldier carried the gun; the administrator and the settler carried the coin. Christianity, Com­ merce, Civilisation: the Bible, the Coin, the Gun: Holy Trinity.20 The Nation of Islam can be viewed as part of a long historical response to this more-than-symbolic coupling of Christian identity with Western culture. In addition, the estrangement of African Americans from a nation that has not included them equally in the distribution of civil rights - a legacy that characterizes Britain, France and other European countries - opens the need for another nationalism - and nationalisms need a sense of divine and eternal origins. Elijah Muham­ mad’s message to his followers invites them to cease being a subordinate race of Negroes and become a separate and equal nation : ‘You are members of the Asiatic nation from the tribe of Shabazz.’ Malcolm X is also reported as saying: the only way black people caught up in this society can be saved is not to integrate into this corrupt society, but to separate from it, to a land of our own ... [Sep aration is that which is done voluntarily, by two equals - for the good of both!21 What cannot be ignored is the gendered nature of these debates, which undeniably position women as objects of oppressive attention. In the panic over Islam as the misunderstood and towering enemy of the West, the role of women has been constantly worried over, misrepre­ sented and exploited. Women have become pawns in the game on both sides of the battle. Control over women, which results from an unreflective conflation of cultural concerns with religion, has been evident in Catholic or Protestant control of women’s reproductive rights, in certain (though not all) forms of Rastafarianism, in parts of the Black Power movement, and in the targeting, by the Western media and some Western feminisms, of marginalized groups of women whose roles and meaning are misread. The change in the conceptualization and terminologies used to describe minority groups in Britain (as ‘cultures’, ‘ethnicities’, ‘races’, ‘religious minorities’) signals to the differences or anxieties in British concepts of national identity. As Britain becomes increasingly part of a ‘European Community’ which is steadily disrupting its national unities in favour of ethnic nationalisms, these issues of cultural or national self-identification become more critical. If ‘ethnic cleansing’ in former

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Yugoslavia and the use of the word ‘Muslim’ to denote an ethnic or racial identity can be taken as evidence, it seems likely that religion even in this supposedly uniting, modern, secular Europe - will continue to be a source of division, distinction and resistance.

NOTES

1.

2. 3. 4. 5.

6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Paul Gilroy, ‘The End o f AntiracisnT, in James Donald and Ali Rattansi (eds), ‘Race\ Culture and Difference (Sage Publications, London: 1992), pp. 4 9 -6 1, esp. p. 59. Ali Rattansi, ‘Changing the Subject? Racism, Culture and Education’, ibid., pp. 11-^18, esp. p. 25. Stuart Hall, ‘New Ethnicities’, ibid., pp. 252-9, esp. p. 257. Nira Yuval-Davis, ‘Fundamentalism, Multiculturalism and Women in Britain’, ibid., pp. 2 78 -9 1, esp. p. 281. Fay Weldon argued for assimilation in terms o f a general assimilation into British secular values: see Fay Weldon, Sacred Cows (Chatto & Windus, London: 1989). Yuval-Davis, ‘ Fundamentalism’, p. 278. Tariq Modood, ‘British Asian Muslims and the Rushdie Affair’, in Donald and Rattansi, ‘Race\ pp. 260-77, esp. p. 260. Alex Haley, The Autobiography o fMalcolm X (Penguin, London: 1968), esp. pp. 258-62 (Yacub’s history). The work was first published in 1965. Horace Campbell, Rasta and Resistance (Hansib Publishing, London: 1985), p. 19. Ibid., pp. 48-64. Dilip Hiro, Black British, White British: a History o fRace Relations in Britain (Grafton, London: 1991), esp. pp. 67-80: ‘Rise o f Rastafarianism’. Campbell, Rasta and Resistance, pp. 195-7. Haley, Autobiography o fMalcolm X, pp. 3 5 1-63. Akbar Ahmed, Postmodernism and Islam: Predicament and Promise (Roudedge, London: 1992), p. 10. Ib id .,p .U . Modood, ‘British Asian Muslims’, p. 265; Yuval-Davis, ‘Fundamentalism’, p. 278. Ahmed, Postmodernism and Islam, pp. 32, 113. Ibid.,p. 23. Haley, Autobiography o fMalcolm X, p. 343. Ngugi W a Thiong’o, Petals of Blood (Heinemann, Oxford: 1977), p. 88. Haley, ibid., pp. 348, 357.

The Political Sociology of a Multicultural Society John Rex

Although a few right-wing Conservative spokesmen have recently challenged the notion that Britain should be a multicultural society and have received some support from intellectuals of the New Right, the idea that we do now have a multicultural society, and that this is not only inevitable but desirable, is widely accepted.1 Unfortunately, it is not at all clear what exactly the term ‘multicultural’ means. Although it pur­ ports to being a sociological description, sociologists have done little to clarify the kinds of structure to which it refers. This chapter will there­ fore seek to set out the basis for a political sociology of the multicultural society both as an ideal and as a reality; and, while dealing primarily with Britain, it will also indicate what the principal variables are, so laying the basis for a more generally applicable theory.

Multicultural and Plural Societies In the first place the notion of a multicultural society has to be distin­ guished from that of the plural society, on which there is considerable literature. Furnivall, who first used the concept of a plural society, used it to refer to a society, such as that which was to be found in colonial Indonesia, in which a number of ethnic groups encountered each other only in the market place, and in which, while each of the separate groups was tightly bound together internally by its own morality and culture, this encounter in the market place was marked by an absence of a ‘common will’ such as underpinned market relations in Europe.2 M. G. Smith, using Malinowski’s notion of a society as a system of interrelated institutions, argued that in the British West Indies the various ethnic groups which constituted any of these societies each has its own separate and nearly complete institutional set, their incompleteness lying in the fact that they were bound together by a single political system based upon the domination of a ruling group.3 Later Smith was to refer to the de ju re and de facto differential incorporation of the ethnic groups.4 Other writers have sought to apply the theory to African societies in a modified form; and there has also been a Marxist critique of the theories of Smith and Furnivall which lays emphasis upon the mode and the

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social relations of production as the elements which bind the groups together.5 W hat all these theories of the plural society have in common is that they emphasize the inequalities of economic and political power between the society’s constituent groups. Thus the South African system popu­ larly referred to as apartheid was seen to be a clear instance of the plural society. Obviously, therefore, when the notion of a multicultural society is discussed as an ideal in the British context, what is being suggested is something sociologically quite different from this, although it may well be the case that the widespread acceptance of the idea of the multicul­ tural society has something to do with the fact that some of its supporters envisage a system in which minority cultures are treated as inferior, and in which members of minority groups have unequal rights. Another type of society from which the multicultural society in Britain has to be distinguished is that in which several ethnic groups or nations live together through a system of power-sharing. This does not imply inequality, but the major groups are thought of as maintaining their separate corporate existence while sharing in the exercise of political power. This is the case in Canada, where the British and French ‘found­ ing nations’ have shared control of the state, and in Belgium, where the Flemish and Walloon populations co-exist in terms of a balance of power. It can also be argued that there is power-sharing in some ex-colonial societies, such as Malaysia, where one group, the Malay, controls the political system, and another, the Chinese, controls the world of busi­ ness. Neither of these types of social and political system can be envisaged in Britain and the concept of a multicultural society clearly does not imply them.

Cultural Diversity and Equality of Opportunity The Jenkins Formula The first official British response to the presence of large numbers of immigrants distinguished by their skin-colour, their language, their religion and their culture was simply to declare that they must be assimi­ lated to a unitary British culture. Thus the Commonwealth Immigrants Advisory Council, referring to educational provision, argued in 1964 that ‘a national system cannot be expected to perpetuate the different values of immigrant groups’.6 This policy was very quickly abandoned, however, and in 1968 the Labour Home Secretary, Roy Jenkins, said that what he envisaged was ‘not a flattening process of uniformity, but cultural diversity, coupled with equal opportunity, in an atmosphere of mutual tolerance’.7 Since these policy aims have never been formally abandoned, it may be assumed that, in some degree at least, they still influence government policy. In trying to decide what is meant in socio­

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logical terms by the concept of a multicultural society in the British case, therefore, the ‘Jenkins formula’ provides us with a starting point.

a) Equality of Opportunity and the Shared Political Culture of the Public Domain The most important point to notice about Jenkins’s statement is that the notion of cultural diversity is clearly coupled to the distinct notion of equality of opportunity. If, then, it is taken as indicating the British ideal of the multicultural society, it is clear that this ideal is not satisfied in any system in which members of the society distinguished by their culture have unequal rights. Presumably, too, the notion of cultural diversity does not refer to a situation in which different cultures are thought of as having unequal worth, as is suggested by Honeyford when he attacks the notion o f‘cultural relativism’.8 It is also to be noted, however, that Jenkins spoke only of equality of opportunity and not of equality of outcome or of social rights. Given this minimal commitment, it is not surprising that the formula should have proved acceptable to his Conservative successors. More radical, though it is undoubtedly vague, is the ideal informing French policy, the long established one of ‘Liberty, Equality and Fraternity’; and even more radical is the conception of social rights which has enjoyed consid­ erable currency in Britain since the publication in 1950 ofT. H. Marshall’s Citizenship and Social Class.9 Marshall argued that the British working class, having previously won the legal right of equality before the courts and the political rights which were secured through universal adult suffrage, had, in the Wel­ fare State, now also won a bundle of social rights. For Marshall, the range of these new social rights was still quite limited; but when a Conservative government succeeded Labour in 1951 and did not reverse Labour’s social policies, it was widely thought that there was now a new consensus around certain policies, including planning for full employ­ ment; welfare benefits for the sick and unemployed; free collective bargaining over wages; and the provision of basic social benefits in the form of a free National Health Service, cheap housing for rent and pri­ mary and secondary education for all. The radical commitment which such a set of policies involved has, of course, been largely abandoned since the early 1980s; but it is clear that at times the notion of equal social rights for all citizens in Britain has gone well beyond the limited notion of equality of opportunity enshrined in the Jenkins formula. The other important point in Marshall’s thesis was that, with the achievement of social rights, the primary loyalty of the individual, and his or her primary form of belonging, would, in the future, be not to a class, but to the nation. Citizenship rather than class membership was to

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be the leading concept of Britain’s future political sociology. This suggested that, whatever the culture and forms of belonging experi­ enced by individuals as a result of their membership of communal, regional, class, religious and ethnic groups, there was now a shared political culture of the public domain embodied in the idea of citizen­ ship. Such a culture was necessarily unitary and could not be challenged by any concept of multiculturalism. This is a notion which is implicit in the Jenkins formula when it couples cultural diversity with equality of opportunity.

b) Cultural Diversity in the Private and Communal Domains The fact that the Jenkins formula coupled the notion of cultural diver­ sity with equality of opportunity should not, however, be taken to imply that it was not primarily about cultural diversity, but the coupling of these two ideals does involve an inherent difficulty. To insist upon a shared culture of the public domain which emphasizes equality does appear prima facie to be at odds with defending the rights of immigrants and ethnic minorities to be different; and it is interesting to notice that in France the emphasis, even in anti-racist organizations such as SOS Racisme and France Plus, has been placed on ensuring that members of the ethnic minorities attain the rights of citizenship. Very often this has meant a fear of, or even positive hostility to, immigrant cultures, as when a Black headmaster refused to admit a group of Muslim girls to his school because they were wearing their traditional Muslim headscarves (hijab). In Britain what has happened is that recognition has been given to the continuance of minority cultures in the private domain of the family and community. Minority groups are thought of as having the right to speak their own languages, to practise their own religions, to have their own domestic and communal cultures, and to have their own family arrangements. It has been thought that these forms of diversity can be tolerated and even encouraged, since they do not impinge upon the public sphere; they are also thought to have positive value in that they provide social and psychological support for the individual in what otherwise appears as a harsh, individualistic and competitive society. Some would also add that the flourishing of diverse cultures on this level actually enriches British culture outside the political and economic sphere. The doctrine of the two cultural domains was one which was widely shared in discussions of the multicultural society.10The notion of equality and citizenship appeared to be saved by declaring it part of the public political domain, while that of cultural diversity was preserved as part of the private communal domain. Those who took this view, therefore, seemed able to get the best of both worlds. Embarrassingly for them, it was also taken up by some of those who did not accept the claims of

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minority cultures to equal esteem.11 For the latter, however, what the ‘two domains’ thesis means is that, though the diverse cultures of the minorities may be inferior and even noxious, they may be tolerated so long as the public domain is insulated from such minorities. Moreover, for them, the culture of the public domain is usually represented not simply as the shared political culture which has been described above, but as an all-inclusive British national culture.

Difficulties in the Two Domains Thesis Having stated the two domains thesis as a starting point for this discus­ sion, it is now necessary to say that it is all too naive and simplistic. Such a thesis involves intellectual difficulties because, prima fa cie , it appears to be at odds with accepted assumptions in sociological theory; and it involves practical difficulties, especially when applied to education, but also in a number of substantive political ways. We should now deal with each of these difficulties in turn.

a) The Problem of the Two Domains Thesis in Sociological Theory The mainstream tradition in sociological theory has always been in some sense functionalist. That is to say, it has argued that the various institutions which constitute a socio-cultural system are all necessarily interrelated, so that each helps to sustain the others. Moreover, even the critics of functionalism, who have raised the possibility of interinstitutional - or systemic - contradictions, have envisaged these very contradictions as leading to systemic change; while those who have based their sociology on the notion of class conflict have still analysed the internal culture and social organization of the separate classes in functionalist terms.12 There seems to be no place within such socio­ logies for the idea of two separate socio-cultural domains which have no impact or effect upon one another. The moral values inculcated by the family, for example, are looked at in terms of their functionality or dysfunctionality for performances in the political and economic spheres. There is also, however, another tradition in sociological and histor­ ical thinking: the secularization thesis. According to this thesis, in the process of modernization, such forms of social organization and culture as the market, bureaucracy and modern technology and science have been gradually but systematically liberated from the controls previously exercised over them by religion, morality and the family. Now, if any­ thing, the liberated institutions come to dominate others, but at least they are able to insulate themselves from their effect. Herein lies the

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basis of tolerance. W hat the secularization thesis does not allow for, however, is the extent to which the modernizing values of the market place penetrate communal values, or how, on the other hand, the world of the market place depends upon individuals being socialized within the family and community, and upon their providing a retreat from its rigours (Parsons called this the ‘Pattern Maintenance and Tension Management System’).13

b) Practical Difficulties in the Education System Schools in modem societies cannot be simply located in the two domains. On the one hand, they are part of the selective system of an industrial or post-industrial society, submitting their students to competitive testing and having necessarily to inculcate the values of such a competitive system and of the wider society; on the other, they are concerned with moral education, transmitting the values which are necessary for the individual to become socialized at all, as well as for sustaining communal cultures. Two kinds of debate go on within the education system. One is about equality of opportunity, with almost all groups demanding that their children should be able to acquire the skills and the qualifications nec­ essary for them to obtain the best occupational positions in their adult lives. Such demands have been made in the past by the working class, despite their former solidary culture induced by the process of class struggle; and they are made equally by immigrant groups, the rationale of whose immigration has been to ensure their children’s advancement and increase their earning power. The other debate is about the preservation of communal values, which are threatened both by the individualism inherent in the selective process and the economic system and by the possibility of the host society’s communal values being imposed. Immigrant groups in Britain are almost always committed to the idea of equality of opportunity. Affo-Caribbean parents complain about racism and racist bias in the selective system which prevent their children from obtaining the best results; while Asian parents, even though their children - in most groups - are doing reasonably well, still usually have a highly instrumental attitude to education and to the possibility that it raises of their children entering the professions or succeeding in business. At the same time, racism expresses itself not simply in unfair selection processes, but also in the denigration of minority values. AfroCaribbean leaders sometimes attribute the apparendy poor performance of their children to this denigration of their culture; while Asians fear that the values which are essential for maintaining the solidarity of their communities will be corrupted by the school.

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Investigation of these matters in England was carried out by the Rampton and Swann Committees; but inevitably these committees were given a confused brief.14They were required to deal both with the special problem of disadvantage amongst West Indian children and with the prob­ lem of potential culture-conflict which affected Asian children in par­ ticular. Their surprising and somewhat convoluted conclusions were: i) that the poor performance of some ethnic minority children was due in the first place to disadvantage which they shared with poor White working-class children, but that they suffered a double disadvantage in that, in addition to sharing these working-class disadvantages, they also suffered from racism, both in the wider society and in the schools themselves; ii) that the educational system could amend this situation in part at least by its own practice; and iii) that the way to do this was a) on the one hand, to eliminate all elements of racism from the curriculum and from selective processes while using the disciplinary system to eliminate racist behaviour by teachers and students, and b) on the other hand, to increase respect for minority cultures by introducing all children, including indigenous English children, to such cultures. Interestingly, much of the criticism which has been directed against the Swann Report has suggested that it failed to move beyond a multicultural to an anti-racist approach.15 In fact, what this shows is that there was a powerful movement amongst educational theorists and sociologists in favour of greater equality of opportunity, and this movement was certainly right in claiming that the actual proposals for overcoming racism in the Report were overwhelmed by the main proposal to educate all children in minority cultures. But what is usually less commented upon is that the Report had little to say about the value of education in minority cultures to those who adhered to them. This concern was displaced by the radical proposal that all children should be educated in minority as well as majority cultures and thereby equipped to live in an ill-defined multicultural society. In fact, the story of the Rampton and Swann Committees is less important than it might have been for the future shape of British society, because their recommendations were not fully acceptable to govern­ ment and were at best very partially implemented. Actual policies in schools depended far more upon the statements of policy and attempts to implement these statements made by Local Education Authorities. These statements themselves, however, differ enormously in their pro­ posals and reflect many of the confusions of the Rampton and Swann Committees as well as more besides. The concern of this chapter, however, is not to assess the findings of Rampton and Swann. W hat concerns us here is the role of the schools in contributing to the creation of a multicultural society. On this, all that can be said is that the schools were the principal site of the conflicts inherent in the concept of the multicultural society itself; and experience

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shows that it is here above all that the contradictions and difficulties of the two domains thesis become obvious. W hile it could be argued that the schools could contribute both to sustaining minority cultures as places of socialization and retreat and at the same time offer all children, regardless of race, cultural background, religion or ethnicity, equality of opportunity, this is not what has happened; and parents and children themselves have been left to work out the best balance between the two goals for themselves. Perhaps some Asian families have produced the most viable solution in combining, through their own efforts, the maintenance of a strong family organization and culture with a very instrumental attitude towards school education and educational success. The Swann Committee, of course, has in effect proposed the most radical form of social engineering by suggesting that, as distinct from learning to participate in present majority and minority cultures, all children should acquire a new culture which is an enriched amalgam of them all. W hat seems to have happened where this has been tried is that is has simply produced a backlash on the part of majority parents. W hile it is true that British culture in its non-political aspects is subject to continuous change, it seems unlikely that a new multiculturally-based British culture will be produced by social engineering in the schools. A final word in this section should be added about Muslim children in schools. More than other groups, the more devout sections of the Muslim community have found difficulty in adapting to the school regime. The absence of provision for religious worship and instruction; the failure of the school meals service to provide halal food; the required exposure of their daughters’ bodies in physical education and swimming lessons; and the inaccessibility of single sex education - all have stood in the way of such adaptation. Where these demands have been met, Muslim parents have been prepared to regard education instrumentally as a means of material advancement; but some, in any case, have demanded more than this and have sought, through the development of separate schools, to prepare their children for living primarily as Muslims, albeit within a secular world.

c) Further Substantive Difficulties in the way of Creating a Multicultural Society (i) Host Culture, National Culture and Class and Status Cultures The ideal of a multicultural society spelled out in terms of the two domains thesis sees British society as involving simply a confrontation between private familial and communal cultures on the one hand, and the shared political culture of the public domain on the other; and, in our discussion so far, what we have had in mind in the private sphere

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have been principally ethnic minority cultures. In much public debate, however, the confrontation is seen as being between ‘British culture’ in the public domain and the culture of immigrants in the private, and this ‘British culture’ is not thought of in political terms at all. Rather it is thought of as a whole way of life in itself which distinguishes the British from other nations. National culture in this sense is often bound up with war and inter­ national relations as well as with international sport. It is supposed to be a focus of loyalty and patriotism. Those who feel this loyalty most strongly regard immigrant and ethnic minority culture as a threat. This sentiment was nicely expressed by the former Conservative MP (now member of the House of Lords) Norman Tebbitt, when, in the course of expressing his doubts about the possibility of a multicultural society, he proposed what he called a ‘cricket test’. Under this test, a person’s identity was shown by their support for a particular team during cricket matches. Although the national culture is thought of as involving a host of familiar cultural practices which distinguish the British from, say, the Germans and the French, such familiar practices, and such a way of life, are often thought of also in more restricted class terms. British culture tends to be dominated byways of life developed amongst its upper status groups and fostered in elite schools and universities. These status groups employ what (following Weber) have been called strategies of ‘closure’, which exclude lower status groups from participation in their way of life. Here the contrast is not with other nations but with other status groups. Status groups are concerned, as Weber saw, with the differential apportionment of honour; but they also come to exercise power.16In the British case, they exercise considerable control over the Civil Service and over Members of Parliament; and they also form alliances with the business classes, through which they exercise economic power. While the business classes seek legitimation of their own position through marital alliances and through sending their children to elite schools, the upper classes become members of boards of directors. As against these strategies of closure and class alliance, other status groups develop their own distinct cultures. T. S. Eliot, in his Notes Towards the Definition o f Culture, which was primarily a defence of upper-class culture, acknowledged that the working classes developed cultures of their own, often of a regional sort; Raymond Williams, in his Culture and Society , spoke of a ‘Common Culture’ distinct from the restricted cul­ ture of ruling groups; and Richard Hoggart, in his Uses o f Literacy, gave an evocative account of the cultural and moral values of working-class culture in Hunslet in Leeds.17 Just as the culture of upper status groups becomes intertwined with the class culture of the business classes, however, so this popular culture becomes intertwined with the culture of the working classes, understood

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in a more political sense. A working-class culture emerges in the course of defensive and offensive class struggles based upon strong themes of solidarity, and this is projected onto a national stage through the Labour Party. Such a culture disputes the claim of the upper status groups and classes to being a national culture. Finally, one should note the importance of the culture of the middle classes. Members of these classes often reject the solidarity of workingclass culture and emphasize individualism and self-help, without them­ selves becoming incorporated into the closed culture of upper status groups and classes. W hat one has in Britain, therefore, is not a unitary British culture, but rather a hierarchy of cultures, which to some extent constitute cul­ tural strata, but which are also based upon the political fact of class struggle. This is the culture which immigrant and ethnic minority cultures confront.

(ii) Religion in the Public Domain Another questionable assumption in the ideal model of a multicultural society which we have outlined is that Britain is a secular state, and that religion is a private matter. There is some truth in this, in that Britain is in no sense a theocracy, and a variety of forms of religious belief and practice are tolerated; but the notions of secular state and secular state education are not nearly as clearly defined as they are, for instance, in France. In fact, the Anglican Church in Britain has a privileged position and even some symbolic power. The Archbishop of Canterbury actually crowns the monarch; and the Church endorses state institutions on many public occasions, especially those connected with war. Not surprisingly, therefore, the Archbishop of Canterbury was criticized by the Prime Minister, Margaret Thatcher, for having failed to strike a sufficient note of triumph in his sermon at a memorial service after the successful completion of the Falklands War in 1982. The various Churches also provide supernatural recognition of indi­ vidual life events, such as birth, marriage and death, and their religious functionaries provide a counselling service for many people at times of individual and family crisis; the schools provide occasions for Christian religious worship and instruction; and Church spokesmen are expected to make statements on social and political matters such as the plight of the homeless or of inner-city people generally, even though such com­ ments are expected to avoid any kind of party political commitment.18 None of this, of course, adds up to more than the exercise of symbolic power by the Churches, and, in return for this symbolic power, they are kept firmly in their place. Although the monarch is crowned by the

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Archbishop, she is also known as the Supreme Governor of his Church; the Church is expected to support the interests of the nation in wartime; and, where it does make apparently political interventions, these are expected to be of a general moral kind rather than being precise political directives to legislators in Parliament. Nonetheless, the special role of the Christian Churches, the Anglican Church in particular, does have some significance for any attempt to create a multicultural society. They appear to endorse a national and nationalist culture rather than a society based upon a plurality of cul­ tures; they have a privileged position in the schools, and they even have the protection of a law against blasphemy, which is at odds with the general commitment of the political culture of the public domain to freedom of speech. From the point of view of immigrant and ethnic minorities, this privileged position of Christianity does make their integration into British society more difficult. Though they have formally established their right to opt out of religious worship in schools and to have worship of their own, they have in fact to struggle and argue to enforce this right; and, on the major question of protecting their religions against blas­ phemy, they have been sharply reminded, since the publication of Salman Rushdie’s The Satanic Verses in 1988, that their religions do not enjoy the protection accorded to Christianity.19 As some of their more devout members see it, they are cultural and religious aliens in a Christian society; while, from the point of view of cultural equality, they face a national culture with a religious endorsement which is not available to minority cultures. (iii) The Disputed Political Culture o f the Public Domain We spoke earlier of a shared culture of the public domain. W hat we can now see is that there is a considerable degree of dispute within this culture. The upper status groups use strategies of closure; the busi­ ness classes seek entry into the world of their status superiors; the work­ ing classes emphasize the virtues of solidarity and equality; and the middle classes emphasize equality of opportunity. The shared political culture of the public domain arises out of the compromises which are made between these various tendencies. It is based upon the notion of hard-won rights centring on the notions of equality of opportunity and equality of outcome. Political parties are bound to make some reference to these ideals. However much upperclass Conservatives may wish to defend their closed class culture and their class rule, the Conservative Party is bound to subscribe to the ideal of equality of opportunity, or even, recently, to the idea of a classless society. Labour, on the other hand, emphasizes equality of outcome.

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Sometimes one ideal gains the ascendancy, sometimes the other; but over the longer term what emerges is a new compromise based upon the idea of a minimum which is equally available to all, coupled with superior rewards for some, conceived of as a reward for effort. The relationship of immigrant and ethnic minority cultures to this system is necessarily complex. On the one hand, they find their own cultures placed within a hierarchy of cultures, and their individual members having to face not only the strategies of closure of the upper classes, but also those based upon (what have been called) the strategies of usurpatory culture of the working classes. On the other hand, the members of immigrant and ethnic minorities must make what claims they can within whatever is the going system of rights available in the public domain. They may seek to preserve their own solidary cultures while seeking an instrumental way to benefit from equal opportunity policies, or they may come to share some of the values of the working classes, the middle classes or the business classes. Race relations legislation in Britain complicates these problems. It is primarily designed to secure equality of opportunity for members of ethnic minority groups, but it also sometimes seems to be aiming at equality of outcome imposed by what has been pejoratively called a ‘regulatory’ bureaucracy. Inevitably, therefore, such legislation produces resentment both among the middle classes, whose ideal is simply equality of opportunity, and amongst the working classes, whose rights have been won not through the interventions of a benevolent govern­ ment but, much more, through hard political struggle. Thus, however much ethnic minority groups may seek participation in the shared political culture of the public domain, they find themselves faced with additional suspicions and hostility.

(iv) Human Rights and Minority Cultures In Britain, in common with other advanced industrial societies, dis­ course within the public domain does not usually stop at the discussion of equality of opportunity or of equal social rights in the Marshallian sense. It also extends to the question of individual human rights; and it is here that the public discourse brings the very foundations of ethnic minority social organization and culture into question. This is particu­ larly true of the discourse of feminism. To many feminists the position of women in the minority cultures appears unacceptable, and they see themselves as having a concern for the liberation of wives and daughters from the domination of their menfolk. Though ethnic minority spokes­ men may claim that they are concerned to protect their womenfolk from the corruption of a secular capitalist society, and that their forms of arranged marriage and extended kinship are essential strengths in their

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community organization, they are likely to find their cultures contin­ ually under attack from these quarters. There is a certain irony in this, in that feminists often see their campaigns on questions of gender equality as paralleling campaigns for the equality of ethnic minorities.

(v) Demands by Ethnic Minorities in the Public Domain The model of the multicultural society based upon the two domains does not, however, encounter only those difficulties which arise from the British side. For some minority groups and minority religions, particularly Islam, the division between public and private domains appears unacceptable. For most Muslims, Islam is not merely a private matter but a whole way of life. Some, though by no means all, Muslims believe in the idea of an Islamic state; there is a widespread expectation that the state should protect religion; Islam has its own economic ethics, which are in some ways at odds with capitalism; it has its own ideas about education; and, not least (as we have noted), its own views on the position of women and the family. Islam, of course, has a long history and Muslims have in the past found ways of living in non-Muslim and secular societies. They do not necessarily all share the belief (as in the teachings of Maududi, the founder of Jammat-i-Islami) in the ideal of an Islamic state; they have found ways of pursuing their banking and business in capitalist societies; they have found ways of adjusting to predominantly secular education; and, even on the question of the rights of women, their discourse is by no means as reactionary and patriarchal as many Western feminists assume. It is misleading to suggest, therefore, that anyone who practises Islam is a ‘fundamentalist’ whose irrationality makes it impossible for him to live in a multicultural society. To say this, however, is by no means to say that there are no diffi­ culties in the way of finding a place for Islam in British society. In the immediate future it may well be that some extreme Muslims may make demands which appear unacceptable to most British people. There has, for example, been the recent publication (by a relatively small and unrep­ resentative body called the Muslim Institute) of the Muslim Manifesto , which promotes the establishment of a Muslim Assembly; and there was a speech by the Institute’s leader, Kalim Siddiqui, in which he called for a special relationship between British Muslims and the state of Iran.20 On the other hand, the tendency to dismiss all Islam as ‘fundamentalist’ may make it impossible even for the more moderate Muslims to be accepted as legitimate citizens. In the immediate future, then, considerable reli­ gious and ethnic conflict seems likely, even though, in the longer run, dialogue and negotiation might lead to the discovery that Muslim and Christian/British notions of the public domain are not incompatible.

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Other ethnic and religious minorities have found it easier to come to terms with living in Britain than Muslims have. It still has to be noted, however, that even though they may adapt very readily to living in Britain and taking the economic opportunities which living there offers, many members of such minorities may remain oriented in their thinking to homeland politics. Sikhs may use their British base to campaign for a separate state of Khalistan; Mirpuris may campaign for what they see as the liberation of Kashmir; and many West Indians, finding themselves rejected in what appears to them to be a racist Britain, may hunger for an African Zion. A multicultural Britain may well have to recognize that the continuance of such commitments is part of the culture of the private domain which can be tolerated, even though it prevents some ethnic minority members from becoming completely and finally British.

Possible Outcomes The aim of this chapter has not been one of simple advocacy. W hat it does, having outlined an ideal model, is to consider some of the diffi­ culties which stand in the way of this model’s realization. It is an exercise in political sociology, and the task of sociologists is not simply to provide happy endings. All that they can do is to suggest possible outcomes, leaving it to activists to pursue this or that political ideal, including that of the multicultural society. It is to the task of considering realistically what these outcomes may be that we must now, finally, turn. One important possibility which should not be neglected is that, over several generations, present problems and difficulties may grow less acute. Many of the descendants of immigrants may become less con­ cerned with the perpetuation of their own cultures and more concerned with economic success in Britain. They may also find themselves affili­ ating to the class cultures and organizations of their indigenous peers. It would be optimistic to believe that this process will occur as easily and smoothly as it has over two or three generations amongst European immigrants in America; because, at least so far as British Asian immi­ grants are concerned, they have great cultural and organizational strengths, based on cultures and religions in their homelands, more unlike those indigenous to Britain than were the cultures of America’s European immigrants from those of the United States. Nonetheless, this does not mean that there will be no process of adaptation and acculturation. The second, more immediate and likely possibility is the continuance of conflict on all the levels we have discussed. Conflict will go on about the place of multiculturalism in education; British nationalism and racism are likely to continue in ways which deny ethnic minority cul­ tures recognition and individual members of these minorities equality of

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opportunity; efforts to ensure equality of opportunity and equality of outcome for ethnic minority members will continue to provoke a back­ lash in the indigenous community; many members of the indigenous working class will continue to pursue strategies of usurpatory closure against the minorities, particularly if economic circumstances are such that their own livelihood seems threatened; ethnic minority cultures may continue to be attacked by human-rights activists; and, finally, minority cultures may be slow to adapt to living in a secular multicul­ tural society, the more so if their adherents feel that they are not fully members of that society. If, however, societies attempting to be multicultural are likely to be societies in conflict for the foreseeable future, it should not be thought that this necessarily means everlasting riots and street demonstrations, even though there may be substantial and violent disturbances. Just as, in earlier times, conflicts which started in circumstances of riot and disorder gave way to processes of negotiation and compromise, so the relationship of ethnic minorities to British society will be re-negotiated. This will include not merely a re-definition of the extent to which dif­ ferences in the private and communal sphere are tolerated or encouraged, but also a re-negotiation of the political culture of the public domain. So far as this latter is concerned, what may occur is the realization that the political ideals of the minority, as well as their ideas about human rights, are not so different from those of the majority: Muslims, for example, are very supportive, for their own religious reasons, of the idea of the Welfare State. On the other hand, British class-based cultures may be seen as matters of private preference rather than as demanding some sort of overall hegemony; while the privileged role of the Christian religion may also come to be questioned in a secular state. To recognize this third possibility does not, however, involve point­ ing, after all, to an inevitable happy ending. W hat it should do is to record the fact that, in a society which has to deal with cultural diversity, while there may be continuing conflicts, there may also be dialogue and, arising out of such dialogue, negotiations and compromise. The actu­ ality as opposed to the ideal of the multicultural society will, in fact, be found in a continuing process of both conflict and compromise.

NOTES

1. 2. 3.

For the negative view, see R. Honeyford, Integration and Disintegration (Claridge, London: 1988). John S. Fumivall, Netherlands India: a Study o f Plural Economy (Cambridge University Press, Cambridge: 1939). Michael G. Smith, The Plural Society in the British West Indies (University o f California Press, Berkeley: 1965); idem, Corporations and Society (Duck­ worth, London: 1974).

94 4. 5. 6. 7. 8. 9. 10. 11. 12.

13. 14.

15.

16. 17.

18.

19. 20.

MULTICULTURAL BRITAIN Leo Kuper and Michael G. Smith (eds), Pluralism in Africa (University o f California Press, Berkeley and London: 1971). J. Rex, Race and Ethnicity (Open University Press, M ilton Keynes: 1986). Commonwealth Immigrants Advisory Council, Third Report, Cmnd. 2458 (HMSO, London: 1964). Sheila C. Patterson, Immigrants in Industry (Oxford University Press for the Institute o f Race Relations, London: 1968). Honeyford, Integration and Disintegration. T. H. Marshall, Citizenship and Social Class, and other Essays (Cambridge University Press, Cambridge: 1950). J. Rex, The Concept o fa M ulticultural Society (Centre for Research in Ethnic Relations, University o f Warwick, Coventry: 1986). Honeyford, Integration and Disintegration. D. Lockwood, ‘Social Integration and System Integration’, in G. K. Zollschan and W. Hirsch (eds), Explorations in Social Change (Houghton Mifflin, Boston: 1964); J. Rex, Key Problems o f Sociological Theory (Routledge & Kegan Paul, London: 1961). Talcott Parsons, The Social System (Free Press, Glencoe, IL: 1951). Department o f Education and Science, Report o f the Committee o f Enquiry into the Education o f Children from Ethnic M inority Groups. Interim Report: West Indian Children in our Schools, Chairman: Anthony Rampton, Cmnd. 8273 (HMSO, London: 1981) (the Rampton Report); Department o f Edu­ cation and Science, Education fo r A ll. Report o f the Committee o fEnquiry into the Education o f Children from Ethnic M inority Groups, II, Chairman: Lord Swann, Cmnd. 9453 (HMSO, London: 1985) (the Swann Report). T. S. Chivers (ed.), Race and Culture in Education: Issues Arising from the Swann Committee Report (NFER-Nelson, Windsor: 1987); Sohan Modgil et al. (eds), M ulticultural Education: the Interminable Debate (Falmer Press, London and Philadelphia: 1986); B.Troyna (ed.), Racial Inequality in Education (Tavistock, London: 1987); and Gajendra K. Verma (ed.), Educa­ tion fo r A ll: a Landmark in Pluralism (Falmer Press, London and New York: 1989). Max Weber, Economy and Society: an Outline of Interpretive Sociology, ed. Guenther Roth and Claus W ittich (Bedminter Press, New York: 1968). T. S. Eliot, Notes Towards the Definition o f Culture (Faber & Faber, London: 1948); Raymond Williams, Culture and Society, 1 7 8 0 -1 9 SO (Penguin, in association with Chatto & Windus, Harmondsworth: 1961); and Richard Hoggart, The Uses of Literacy: Aspects of Working-class Life, with special reference to Publications and Entertainments (Chatto & Windus, London: 1957). Archbishop’s Committee on Urban Priority Areas, Faith in the City, the Report o f the Archbishop’s Committee on Urban Priority Areas (Church House, London: 1985). Salman Rushdie, The Satanic Verses (Viking Books, London: 1988). Muslim Institute, The Muslim Manifesto (Muslim Institute, London: 1990); Kalim Siddiqui, ‘Generating Power without Politics’, unpublished address to a conference o f the Muslim Institute, London, 1990.

‘A Union without Cohesion’: Religion, National Identity and the British Constitution’ in the Nineteenth Century John Ballance

Introduction: The Nineteenth-Century United Kingdom as a Multicultural Society The United Kingdom is a multicultural society. Today, it is usually thought to be so in respect of the ethnic minorities, mainly the Black and Asian communities, that have settled in the country principally since the 1950s. But the cultural divisions of the United Kingdom are much older and more diverse. To begin with, it is a multinational state, comprising English, Scots, Welsh and Irish. And before the arrival of significant numbers of Muslim, Sikh and Hindu immigrants, it was already multi-faith, even if the faiths concerned were divisions within the one religion. In the nineteenth century the multi-faith character of the United Kingdom was denoted by such terms as Churchman (Anglican), Dissenter, Roman Catholic, Episcopalian, Presbyterian and Congregationalist. This chapter focuses on this earlier period of cultural diversity in British society, in particular its religious dimension; the relationship of this religious dimension to national identity; and the impact of this relationship on Britain’s famous ‘unwritten’ constitution. I also want to reflect on how these issues contributed to the eventual failure of the United Kingdom of Great Britain and Ireland to maintain its territorial integrity. Societies which are unable to resolve problems of cultural diversity frequently fragment, as minorities, failing to find accommo­ dation within the state, seek redress through nationalism and secession. This was the experience of the United Kingdom. But this development has not proven to be a lasting solution to the problem. Instead, it was merely a deferment, purchased at the price of confining the problem to a small geographical area from where there is always the danger of its breaking out. I refer to six counties in the north-east corner of Ireland, otherwise known as Northern Ireland. The political unit of modern society is the nation-state. In theory, the nation-state is simply a nation which has its own state. In practice, it is

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often a state which has created or is attempting to create a sense of national identity coterminous with the population contained within the borders of that state, because this is regarded as the sine qua non for political stability. The United Kingdom, acknowledged by all as one of the oldest of these political entities, has its own complexities. Instead of one nation there are three, possibly four: it is a matter of some contro­ versy. Look again, and Gestalt-like, there is only one: the British. Look again, and you will find that the British nation is composed of three subordinate nations, English, Scots and Welsh, living on the island of Britain; whilst on the neighbouring island of Ireland, in its north-east corner, there is another community of Britons, almost wholly Protestant by religion, who refer to ‘mainland Britain’ when they have the island of Britain in mind. The United Kingdom is thus both a nation-state and a multinational state. Citizens of the state possess two national identities: a super­ ordinate British national identity; and a subordinate national identity, as English, Welsh, Scots or ‘Northern Irish’. So, the individual is both English and British, or Welsh and British, or Scottish and British. The last subordinate national identity, the ‘Northern Irish’, is problematic; and that is why I have put the term in quotation marks. Most Catholics in Northern Ireland would claim to have an Irish national identity and would reject the ascription to them of a super-ordinate British identity. Most Protestants would identify themselves as British and their subor­ dinate identity as ‘Ulster’. They are, they say, ‘Ulster and British’.1 Now, it is reasonable to ask, is there a contradiction involved here? How can a person have two nationalities? Not in the sense known to international law as dual nationality, a sort of joint nationality; but in the sense of possessing one nationality, as it were, inside another - a con­ centric nationality. Of course, the United Kingdom is not unique in this regard: Spain is another example. And, indeed, the majority of so-called nation-states are multinational and/or multi-ethnic. Another possible way to resolve the apparent contradiction is to describe the subordinate set of national identities as ethnic and the super-ordinate British identity as civic. Yet whichever ideal-typical distinctions we make, the relation­ ship is essentially historically contingent.

British National Identity: Being and Consciousness A national identity is a large-scale collective identity or social group. It is an ascriptive identity, and one which can be mobilized politically by an activist minority of the group - given the right circumstances, such as a perceived threat to that group. As an ascriptive identity, it is objective to the individual. As Anthony Smith notes: ‘national identities can outlast the defection or apathy of quite large numbers of individual members’.2

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But, in turn, a national identity, which is a kind of diffuse ideology, sets parameters to the freedom of action of political elites in the business of state and nation-building - and, indeed, state preservation. The idea of Britishness long predates the eighteenth century when, through the Anglo-Scottish Union of 1707, the Scottish Parliament dissolved itself, and the English Parliament in London became a single British Parlia­ ment for the two united kingdoms of England and Scotland, which previously had been united, since 1603, in the common crown only. As early as 1521 the Scottish historian John Major described himself as a ‘Scottish Briton’; and in his A History o f Greater Britain as well England as Scotland, emphasized the commonalities of Britain’s inhabitants over and above the contingent political structures: At the present there are, and for a long time have been, to speak accu­ rately, two kingdoms in the island; the Scottish kingdom, namely, and the English. Yet all the inhabitants are Britons ... all men born in Britain are Britons.3 By the 1750s ‘British’ and ‘Great Britain’ had supplanted ‘English’ and ‘England’ both in official and everyday usage in England.4 In addi­ tion, Britishness was more than an elite identity; it was a mass identity. However, the consciousness of that common identity at a mass level was primarily religious, namely, Protestant. Despite Britain’s cultural diver­ sity in terms of national, regional and even language differences, that insular unity about which Major had enthused in the sixteenth century had, by the eighteenth century, become bonded to an overwhelming sense of Protestant unity against the Catholicism of continental Europe.5 Anti-Catholicism remained a pronounced feature of British culture throughout the nineteenth century. In Linda Colley’s words: ‘the abso­ lute centrality of Protestantism to the British experience in the 1700s and long after is so obvious that it has often been passed over’. While, for example, in 1830-1 over 3,000 petitions were presented to Parlia­ ment in the name of parliamentary reform, only two years earlier almost the same number, but this time in opposition to Catholic emancipation, had come forth, and from all over the country.6 The phenomenon of Victorian ‘No Popery’ is only puzzling if we neglect to relate it to the prevalent and historically-persistent British sense of national identity, which defined the British as a quintessentially Protestant nation, waging an unrelenting struggle against the Papacy and its Catholic continental allies; and which viewed the small English Catholic population as a fifth column and the many Catholic Irish as so many dupes for an auxiliary Catholic army. The English Reformation of the sixteenth century (like the contemporaneous Scottish Reformation), but more especially the Revolution of the seventeenth century, can best be understood as nascent religious-nationalist movements.7 A religious

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nationalism is a type of nationalism in which the community of faith and the community of the nation are seen as coterminous, even while the balance between religious identity and national identity may be disputed. If the people are not perceived as the people of a religion (the strong form), then religion is seen as the religion of a people (the weak form). In this ideological matrix, religious identity does service for national iden­ tity and, vice versa , national identity does service for religious identity. The potency of Protestant religious nationalism in Britain arose from the close filiation of the three ideological elements which composed it. One: Protestantism as a religious faith was forged in opposition to and in contradiction to Roman Catholicism. The archetypal Reformation conflict over the doctrine of salvation - sacraments versus grace - was vital. The emergence of an Anglo-Catholic movement within the Church of England in the nineteenth century did more to galvanize evangelical Protestantism than to signal a move towards reconciliation between Canterbury and Rome. Two: Protestantism was seen as the quintes­ sential characteristic of the British nation. Conversely, Catholicism was seen as alien to, and incompatible with, Britishness. As S. J. Connolly writes: to most British Protestants of the early nineteenth century, Catholi­ cism, with its authoritarian ethos, its incomprehensible Latin rites, its celibate clergy, and its mysterious and degrading ceremony of confes­ sion, was both alien and profoundly distasteful.8 Three: for the religious nationalist, Protestantism was the foundation of English/British liberties and the bastion against Catholic despotism. Catholicism was not only perceived as alien to a sense of Britishness; it was also perceived as disloyal. Because the Pope was both a spiritual and a temporal ruler, and because, in the Catholic system, the priesthood exercised a monopoly of grace through the sacraments and the confes­ sional, Catholics could not be trusted. Catholics (in this Protestant argument) could not give a genuine oath of allegiance to the sovereign the embodiment of the state - because the Pope could override the conscience of individual Catholics. According to such reasoning, tam­ pering with the ‘Protestant Constitution’ was irresponsible at best, an act of betrayal at worst. Protestantism had banished papal power, both spiritual and temporal, from the shores of Britain In the words of the Revd Hugh M ’Neile, Dean of Ripon: The Papal system is not merely a false theology to be resisted by a sound doctrine - this is true, but it is only part of the truth; alas! the Papal system is moreover a national usurpation, to be resisted by national exclusion.9 Likewise, Augustus Stapleton, who had served as private secretary to George Canning, defended the constitutional requirement that all

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Protestant Members of Parliament swear the Oath of Supremacy (which denounced all and any papal claims in Britain) by describing it as: the testimony of Great Britain to her own national independence; it was meant as her testimony to the right of all other nations and Churches to claim and to enjoy immunity from the extranational interference of an usurping priest.10 The Reactivation of Religious Nationalism Together these three interconnected elements (the doctrinal split between Protestantism and Catholicism; Protestantism seen as the main carrier of national identity; and Protestantism seen as the foundation of liberty) formed a resilient political culture which could be periodically reacti­ vated in a number of ways. One mode was through war with a Catholic power. In the eighteenth century Britain fought a succession of wars, primarily with Catholic France. After the defeat of Napoleon in 1815, this external threat was no longer of such significance. But other external developments had impor­ tant internal consequences for the cohesion of the United Kingdom. One such development in mid-century was the movement for Italian unification. In 1859-60 Protestant Britain supported the movement, while Catholic Ireland opposed it. Each side accused the other of hypocrisy. In Ireland, the British were seen as supporting the right to self-determination for the Italian people while opposing it for the Irish; in Britain, the Irish were seen as claiming the right to self-determination for themselves while at the same time denying it to the Italians. Religious motives, allegiances and antagonisms vitiated the perceptions of both sides. The consequences for popular feeling in Britain and Ireland were considerable. Press polemics in both Britain and Ireland were vitriolic. In Ireland mass meetings in support of the Pope were organized by both Catholic clergy and politicians; money was raised; a petition demanding a plebiscite on the constitutional status of Ireland claimed to have collected over 400,000 signatures; and, following a request from the Papacy, an ‘Irish Brigade’ of about 1,000 men was raised to go and fight in defence of the Papal States. The strength of political religion impressed itself upon contemporary observers. The veteran campaigner against the Union, W. J. O’Neill Daunt, recorded in his journal in 1859: ‘W hat­ ever public spirit exists in Ireland just now is rather religious than political.’11 Similarly, two decades later the Irish nationalist journalist A. M. Sullivan was impressed by such an ‘extraordinary upheaval of religious emotion’.12 A second factor which reactivated Protestant religious nationalism in Britain was the growth of ultramontanism within the Catholic Church.

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To the Protestant nationalist the Protestant Constitution had not been superseded by the onward march of history: to coin a phrase, the price of Protestant liberty was ‘eternal vigilance’. To Protestant nationalism: ‘what Popery was, in its days of rampant domination, THAT POPERY IS, AND EVER WILL BE.’13 The evidence for such fears lay in the actions of the Papacy itself; the emergence of an Anglo-Catholic movement within the Church of England; and the resurgence of Catholicism in Ireland, especially after 1830, with the prodigious church-building programme there. Again, the growth of the Catholic population in Britain through Irish immigration was seen as yet another dark threat to the well-being of Protestant society.14 Thirdly, religious revival within the Protestant community itself also acted as a stimulant to political Protestantism. Both ultramontanism within Catholicism and evangelicalism within Protestantism were events at the level of the religious community which had repercussions at the levels of politics and national identity. The growth of Methodism in the eighteenth century and then the revival of Non-Conformity in the nine­ teenth; the attempt by the state, urged on now by the emergence of a group of evangelical Members of Parliament, the Clapham Sect, to revitalize the Established Church; periodic waves of religious revivalism that were transatlantic in their provenance, in particular the revival of 1858-60 - all served to reactivate Protestant religious nationalism and to retard the emergence of a secular, civic conception of Britishness.

The Three Elements o f the Liberal Nation-Building Project in the United Kingdom In the eighteenth century we begin to see the emergence of an overtly secular conception of Englishness/Britdshness. This is in part a response, as Gerald Newman argues, to the perceived cultural dominance of French mannerisms in English aristocratic society; that is, it had an ethnic motivation.15 Such a conception was also the outcome of the morally-easy religiosity of natural theology, the dominant theology of the time, and of the emergence of rationalist, deistic and free-thinking doctrines. A secular historiography develops which no longer presents the nation in the garb of the religious community. Though pitted against Protestant political culture, the secular liberal culture associated with the idea of the ‘British Constitution’ emerged as a counter-culture from within the former; it did not emerge as a radical or revolutionary break with Protestantism, resulting in a sharp confrontation of clerical and anticlerical, religious and secularist camps. It was a long time, therefore, before the equation of Protestantism (which was also a proxy for national identity) and liberty could be unmade. It is no exaggeration to say that one of the greatest challenges confronting liberalism as it

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developed in Britain was how to bring the Catholic within the ambit and privileges of the ‘British Constitution’. The result in Parliament was a long - and often tedious - war of attrition. (The Irish Catholic MP, Daniel O’Donohugue, speaking in a debate on the Church in Ireland, stressed that his fellow MPs knew the issues like their ABC.) Not only were the ultra-Protestant opponents of liberalism in the Conservative Party dogged in defence of the Protestant exclusivism of the state in even the minutest detail. Liberal supporters in the country - primarily Protestant Dissenters - were known to be unreliable troops when it came to accommodating Catholic demands, such as the demand in Ireland for an exclusively Catholic university. W hile we can identify the bulwark against liberal reform on behalf of Catholics as usually concentrated in the House of Lords, even so the Lords felt they had popular opinion behind them; and they continued their opposition until well into the second half of the nineteenth century. Indeed as late as the 1890s we find the Tory Prime Minister, Lord Salisbury, opposing Irish Home Rule with the argument that, were it to permit Home Rule: ‘England, the great Protestant State o f the world , would be creating in Ireland an ultra-clerical State’, under the govern­ ment of Roman Catholic archbishops.16Indeed, not until the Government of Ireland Act, 1920, under which Ireland was partitioned, did it finally become possible for a Catholic to be appointed to the position of Lord Lieutenant of Ireland, and hence head of the Irish administration. What is more, five years after the creation of the Irish Free State (in 1922), it was still found necessary to pass yet another Catholic Relief Act in order to abolish minor penal statutes that had been or could be invoked against Catholics.17 There were essentially three elements to the liberal UK nation­ building programme: one, religious toleration; two, equality of civil rights; and, three, following the Union in 1801, the inclusion of the Catholic Irish within an enlarged British nation. Let me begin with this last element.

The Liberal Project: The Irish as West Britons Now, was there ever any likelihood that the Catholic Irish, roughly 75-80% of the population of Ireland throughout the nineteenth cen­ tury, could have been persuaded to think of themselves as British? A national identity begins with a name and such names have, arguably, critically important symbolic and affective dimensions. Leo Amery, a Conservative grandee, traced the failure of the Union to the very name that had been chosen for the newly-expanded state in 1800. ‘If only a single name could have been invented’, he lamented in his diary on the eve of the passing of the third Home Rule Bill in 1913.18

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For those who gave their endorsement to the liberal project for the inclusion of Ireland in the Union, and who thought in terms of the evolution of a single super-ordinate nation (the British), the Scots were ‘North Britons’, and by this logic, the Irish were now ‘West Britons’. (It was only in the last three decades of the nineteenth century that the separate identity of Wales begins to be acknowledged in elite circles.) In the 1840s the radical organ, The Westminster Review, interpreted the Act of Union of 1800 in this way: At the beginning of the century Ireland was a distant colony; Ireland is now the western division of Great Britain - its capital within twenty-four hours’ journey of the metropolis of the empire. Irish politics are now British politics.19 Opposing the campaign for the repeal of the Union led by Daniel O’Connell, the outstanding leader of Irish Catholic society during the first half of the century, the Westminster Review continued: ‘Not the union, but its long delay and its subsequent incompleteness, is the real grievance to be redressed.’ W ith the ‘completion’ of the Union, the editorial concluded, a single nation would evolve. An obvious problem with such an argument is that whereas the Scots could logically be termed North Britons, this did not follow for the inhabitants of the island of Hibernia. Another way in which contem­ poraries attempted to handle the thorny issue of Irish identity was to categorize Irishness as a ‘provincial nationality’ and to contrast it with the larger, metropolitan ‘imperial nationality’ after the name of the Union Parliament - the imperial Parliament. Yet another attempt to reinterpret the relationship between Britain and Ireland placed emphasis not on a British nation but on the British Constitution, as a unique form of polity. So we find that before his conversion to republicanism, Tom Paine had written of ‘the glorious privileges of an English constitution’. In this interpretation, ‘English’ or ‘British’ signified not a nation but a form of government, a constitu­ tional monarchy and liberal parliamentary government: so admired abroad, and so proudly boasted at home. From such a perspective the United Kingdom was a community of nations living in harmony under the protection of (what was historically) an English Constitution - but each nation preserved its own national identity and rights.20 How willing were the Catholic Irish to respond to this idea of Britishness? When, for example, the Irish Catholic Confederates of the 1640s rose in arms against the English Parliament, they defended the independence of the Irish Parliament under the crown of England, and they argued their case by virtue of the laws of England.21 Even at the height of the penal system of the early eighteenth century, it is still possible for an Irish Jacobite historian to work within the framework of

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Ireland as one of the three nations of the ‘British Empire’ along with England and Scotland.22 ‘West Britishness’ as the super-ordinate national identity of the Catholic Irish or the adoption by the Catholic Irish of a sense of ‘imperial nationality’ were not impossible dreams. The key issue was how quickly a genuine equality - legally, symbolically and substantively - could be created. Even O’Connell proclaimed that the Irish ‘are prepared to become a kind of West Britons, if made so in benefits and justice’; though he added the qualification: ‘but if not, we are Irishmen again’.23 As late as 1867, the Catholic Bishop of Kerry, David Moriarty, a supporter of the Union and of the ‘British Constitution’, was still confident that such a project could succeed: But if present disaffection [Fenianism] is only a continuation of the war between the Saxon and the mere [i.e. pure] Irish, most certainly it can be ended. In England you have welded together the conquerors and the conquered - Briton, Saxon & Norman - though it must be admitted that the British Celt was the hardest to weld - but at length it has been done by the operation of equal laws and rights. The exam­ ple of Scotland is more to the point and occurs to everyone.24 It was the failure of the British Constitution to deliver its much-vaunted privileges to the Catholic Irish which meant that ‘West Briton’ became a term of abuse and ridicule in Ireland.

The Liberal Project: Equal Rights through De-Protestantizing/ Secularizing the British Constitution Why, then, was the liberal programme to integrate Ireland into the expanded United Kingdom a failure? Ian Lustick has identified the main problem as the presence of a British ‘settler’ community in Ireland which was able to obstruct reform measures initiated from the metro­ politan core of the state, measures which were aimed at incorporating the elite element of the ‘native’ community into the ruling echelons of the state. Thus, Lustick argues, the liberal nation-building project was effectively undermined.25 Now, whilst I can agree that the ‘settler’ community played a critical role in the frustration of the liberal pro­ gramme, that role has to be seen in the wider context of both the clash of religio-national identities between Protestant mainland Britain and Catholic Ireland, and also of the multinational character of the British nation-state, in which a subordinate national identity is held to be com­ patible with a super-ordinate British identity. The problem confronting liberal, metropolitan nation-builders was not only a recalcitrant, obstruc­ tive settler community in Ireland, but a much more formidable obstacle

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in the shape of a British national identity which defined itself in oppo­ sition to Catholicism and all its works. In other words, the efforts of British liberal nation-builders were obstructed not only in Ireland but in Britain as well. From a liberal Unionist perspective, the Union of 1801, although enacted in the wake of the rebellion of the United Irishmen and as a response to the prevailing war situation, was an opportunity to destroy the Parliament of the reactionary Irish Protestant ascendancy and to secure an arena (the enlarged UK) within which Catholic demands could safely be met. William Pitt, the British Prime Minister and architect of the Union, offered to Catholics, but was unable to deliver, both political rights and state-funding for the Catholic clergy in return for a state veto in the appointment of Catholic bishops. (Such a veto was the practice in all contemporary European states, whether Catholic or Protestant.) In what became known as the veto controversy, the anti-vetoist and antiUnionist position won the day within the emerging Irish Catholic poli­ tical class; but to gain its victory, this class used the Church as a political weapon, condemning:

any innovation in the mode of perpetuating that Divine Hierarchy [the Irish Catholic bishops] which, covered with the glories won out of the rude and lingering struggle, we look up to as the last unde­ stroyed monument of our Faith and ancient national grandeur ...26 In the attempted creation of a United Kingdom, the religious national­ ism of Protestant Britain confronted an emergent religious nationalism of Catholic Ireland. This view of the Church, it should be noted, was shared and endorsed by Daniel O’Connell, ‘the Liberator’, for whom the Church was ‘the last relic of national independence - this last fragment of the ancient pride and greatness of imperial Ireland - the independence of her church and people’.27 But to the pro-vetoist, proUnionist side within the Irish Catholic political elite, this elevation of the Church as the embodiment of the nation was a calamity. In the view of O’Connell’s contemporary, the pro-vetoist Charles O’Connor: our National hatred of England [has] driven our writers into an odious system of Ultramontanism, unworthy of a generous, warlike and independent nation!28 Irish nationalism has paid a heavy price for the use to which it has put the Catholic Church. The victors in the veto controversy elevated the Church to a position of supreme importance in Irish national identity a position diametrically opposed to that of the Jacobin republicanism of

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Wolfe Tone and the United Irishmen of only a few years earlier - and equated Irishness with Catholicism. Not surprisingly, Irish nationalism has proven to be a very unattractive ideology to the Protestants of Ireland. The development of liberal democracy in the United Kingdom dur­ ing the nineteenth century involved not only the extension of the franchise downwards through the social strata of society, but also the progressive inclusion of previously excluded religious minorities. In rough chrono­ logical order, the process of incorporation ran: Dissenters, Quakers, Unitarians, Catholics, Jews, and finally atheists. Under the leadership of Daniel O’Connell, a peaceful, mass campaign in Ireland, successful because a danger of uncontrolled violence hovered over it, led in 1829 to the admission of Catholics to Parliament without any concession having been made on the method of appointment of Catholic bishops. But even the famous Act of Emancipation of 1829 did not give Catholics complete civil equality in either legal or symbolic senses. The very Act itself contained twelve penal clauses, limiting the civil rights of Catholics in various ways. For example, Catholics were banned from holding the offices of Guardian and Justice, as well as a number of high offices of state (repealed in respect of the Irish Lord Chancellor in 1867). Catholics were also forbidden to wear the trappings of judicial and civil offices in Catholic churches (prohibitions also repealed 1867); and Catholic bishops were debarred from assuming territorial titles (the legal background to the ‘papal aggression’ of 1851). Apart from the penal clauses of the Act of Emancipation, other provisions were to be a focus of Catholic discontent for more than three decades. The legislative means used to exclude Catholics from Parlia­ ment was the parliamentary oath, or rather oaths, taken by all Members on their election. The oaths were so worded that a Catholic could not, in conscience, take them. Full emancipation of Catholics, therefore, could only be effected by changing the oaths to make them acceptable to Catholics - but only just. The 1829 Emancipation Act was, therefore, at once both a victory and a grievance. As George Bowyer, the Liberal Catholic MP for Dundalk put it in the Commons in 1857: Catholics had ‘submitted to [the 1829 Oath] because it was all they could get, but which they had never accepted’.29 It was not until the late 1860s that the so-called ‘obnoxious oaths’ controversy was finally settled through the introduction of a non­ offensive parliamentary oath. But the oaths controversy was only the ‘high politics’ survival of what can accurately be called ‘petty penalisin’. It is no exaggeration to say that anti-Catholic legislation littered the statute book. Charitable bequests to the Catholic Church could be caught under the prohibition of ‘superstitious purposes’ - a provision not remedied until 1844. Catholic bishops, as noted above, were prohibited from assuming territorial titles. When the Pope unilaterally

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re-organized the English Catholic Church in 1851 on just such lines, a storm of controversy broke, resulting in the passing of a penal measure, the Ecclesiastical Titles Act, though the Act was never enforced and was repealed in 1871. In the 1860s we find Catholics petitioning Parliament in order that Catholic priests should have free access to Catholic chil­ dren in workhouses. Similar petitioning was needed before Catholic prisoners could receive the pastoral care of Catholic priests. Not until 1870 was the law amended to permit a Catholic clergyman to perform a ‘mixed marriage’, that is, one between a Protestant and a Catholic; but even then such a ceremony could be conducted only in a church ‘with open doors’. Important offices in the Irish administration remained legally closed to Catholics until the 1860s, because they required their holders to make declarations against ‘Transubstantiation, the Invocation of the Saints and the Sacrifice of the Mass, as practised by the Church of Rome’. As late as 1891 Gladstone’s Religious Disabilities Removal Bill, to open to Catholics the offices of Lord Lieutenant of Ireland and Lord Chan­ cellor, was voted down by the Conservative and Unionist government. W hile we must never lose sight of the land issue in determining nineteenth-century British-Irish relations, the religious issue was also vital, because religion shaped national consciousness every bit as much as the land question did. The religious question was uppermost in the concerns of the Irish Catholic Church; and it was the Church which primarily mediated relations both between the state and the faithful and also between the lay political leadership of Irish Catholic society and the faithful. As D. Keenan has noted: ‘Every lay leader had to conciliate a majority of the clergy’ or face opposition and isolation.30 The most radical version of this interpretation is the thesis of Emmet Larkin, that a de facto Irish state had emerged in Ireland a generation before indepen­ dence. In Larkin’s analysis, while the leader of the Irish Parliamentary Party, Charles Stewart Parnell, was the charismatic ‘president’ of this state-in-waiting, it was the Catholic hierarchy (‘the Church’ in Irish parlance) and the whole apparatus of the clerical orders of the Church in education, health and welfare services that constituted the body of the state.31 Whatever the merits of Larkin’s thesis, Irish Catholic society had, by the last quarter of the nineteenth century, developed into a distinct political subculture within the UK state. But this partial ‘pillarization’ of United Kingdom society was never finally legitimized by the state; rather, it was closely aligned with a sub-state national identity - and hence the likelihood of separatism. Perhaps the most critical issue in this regard was that of education. The trend of liberal education policy in Ireland was to attempt to build a secular educational system. Such a system was seen as the way both to strengthen the position of the weak middle-class Catholic laity against the powerful position of the Catholic priesthood and, at the

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same time, reduce religious sectarianism through educating Catholic and Protestant children together. But it was a policy which met oppo­ sition from all religious denominations. One of the earliest and most substantial educational reforms enacted by the nineteenth-century UK state was the creation in 1831 of the ‘Irish national system of education’, a state-funded system of primary education. The schools were, in a formal sense, secular, having a ‘secular day’. Religious instruction was to be carried out by the relevant religious teachers outside of this ‘secular day’. In fact, the school curriculum had a very religious provenance.32 To the W hig instigators of the system, such religious content as there was was non-denominational and ought to have been acceptable to all Christian denominations. Edward Stanley, Chief Secretary of Ireland in the early 1830s, was caught between making a clear and unambiguous distinction between religious and moral education (the possibility of which was disputed by all Christian denominations) and an attempted fudge of non-denominational Chris­ tian education, which invited disputes over the doctrinal rectitude of what was to be taught. The outcome was a d eju re non-denominational system but a de facto denominational system, with the majority of schools under clerical control (already 75% by 1850). Critically, this result also meant that in Ireland the denominational school system acted as a mechanism for ethnic socialization. The liberal performance in higher education fared no better. In 1867 the Irish Liberal peer, Lord Dufferin, noted that the tendency of educa­ tion policy in England was to ‘open the Universities and to render them rather national than denominational’; and he recommended the same policy for Ireland.33 Ireland’s only university, the Anglican Trinity Col­ lege in Dublin (TCD), had in fact accepted non-Anglican students ever since 1793; but the teaching faculty remained closed to non-Anglicans until 1854. Then, in the same month as Cardinal Cullen opened the (non-endowed) Catholic university, sixteen non-foundation scholarships, requiring no religious tests were established at TCD. Religious tests were abolished for some of its professorships in 1867, and for all posts in 1873. But Trinity never came close to being accepted as an inclusivist national institution, not least because the Catholic hierarchy banned Catholics from attending it - a ban formally lifted only as recently as 1970. An attempt was made in 1845 to circumvent the problems of Trinity by the creation of the secular Queen’s Colleges, but these institutions were met with hostility from both the Catholic hierarchy and a significant number of Anglicans, both of whom denounced what they saw as ‘godless education’. Apart from the disestablishment of the Anglican Church in Ireland, which was finally achieved in 1869, the one demand to which the Catho­ lic Church clung implacably throughout the second half of the century was for the state endowment of a Catholic university. Gladstone’s

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University Bill of 1873 (which Bishop David Moriarty welcomed) failed because it was as much as Gladstone could persuade his English Non­ conformist ranks to support; while, at the same time, what it offered was wholly inadequate in the view of the Irish Catholic bishops. Not until 1908 was the university question settled to the satisfaction of the Catholic Church, when the National University of Ireland (NUI) was created by the amalgamation of the secular Queen’s Colleges of Galway and Cork with the Jesuit-controlled Catholic institution, University College, Dublin. NUI was de ju re non-denominational; in fact the Catholic hierarchy had a dominant position on its governing body. When in 1874 Isaac Butt, as leader of the newly-created Irish Parlia­ mentary Party, first raised the issue of Home Rule for Ireland at Westminster, his concluding defence of the demand ran along familiar ideological lines in the history of relations between Britain and Ireland. ‘Ireland’, Butt argued, ‘does not enjoy the advantages of the British constitution, nor the free principles of the English law.’ 34 Only, as it were, outside the British Constitution was it now possible for Ireland to enjoy its advantages! Butt was by no means a separatist. Even so, after this date the creation and cohesion of the Irish Parliamentary Party, and its successful maintenance of a majority of the Irish representation at Westminster, meant that henceforth the demand for ‘justice for Ireland’ could not exclude some form of legislative devolution. Yet such a solu­ tion did not prevent some of the long-time ‘friends of Ireland’, such as the English Liberal MP John Bright, from insisting that it could and must. Having failed over the previous eighty years to deliver ‘justice for [Catholic] Ireland’, it now appeared that, to go as far as Home Rule in this quest, was to create the conditions for injustice to Protestant Ireland. As Bright wrote to Gladstone: I cannot consent to a measure that is so offensive to the whole protestant population of Ireland, and to the whole sentiment of Ulster so long as its loyal and protestant people are concerned. I cannot agree to exclude them from the protection of the imperial parliament.35 From the 1880s onwards - though it is not difficult to find it in earlier decades - the ‘Irish Problem’ in British politics has very clearly within it the ‘Ulster Problem’ in Irish politics.

The Liberal Project: Religious Toleration In 1844 the Liberal Anglican MP for Belfast, D. R. Ross, appealed to the House of Commons ‘to let Ireland be a Popish country’. As he explained: ‘I mean that the profession of the religion of the Irish people should be as unconnected with loss, disability, or inconvenience, as that of the

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Anglican Faith.’ 36 Ross did qualify his appeal: ‘I am not talking about toleration - a word which [my parliamentary opponent] declared to my great satisfaction, he hated.’ W hat Ross had in mind was not any legal restriction on Catholic worship or the civil rights of Catholics, but, to use a now-fashionable phrase, the idea of ‘a level playing field’ in the religious competition for the souls of the Irish. However, given that such a situation of equality was never achieved, and that religious and national identity did service for each other, religious conversion was inevitably seen also as national desertion. W hile many liberals cautioned against proselytism, Protestant evangelicals conceived of the eventual integration of Ireland coming about through a Protestant crusade, a Second Reformation, which would succeed in Ireland where the first one had failed.37 The Second Reformation was not a dream or delusion confined to the religious right of the Tory Party. On the contrary, Victorian Protestantism was strongly evangelical. Episcopalian, Presbyterian and Congregationalist alike were engaged in a frenetic missionary effort, spreading the ‘Good News’ to every corner of the expanding Empire. For our pur­ poses, we might think of the Protestant evangelical fighting the good fight on three fronts: the non-Christian native populations of the colonial Empire; the large section of the British industrial working class which was nominally Protestant but more and more religiously indif­ ferent; and the Irish Catholic peasantry. When Protestant evangelicals looked at Ireland and the plight of the Irish Catholic peasantry, they saw not the consequences of rackrenting, not the centuries of oppressive English rule, but the domination of the Roman Catholic priesthood. In turn, aggressive Protestant evangelicalism was met by the growing might of Catholic ecclesiasticism, which consistently predicted the eventual demise and absorption of the Irish Protestant minority. In 1842 O’Connell himself predicted: ‘Protestantism would not survive Repeal ten years’.38 Similarly, in the 1860s Cardinal Cullen predicted that, after disestablishment and disendowment the Irish Protestants would become ‘followers of Rome’. In post-partition Ireland Cardinal Joseph McRory was still predicting the demise of Protestantism, given fifty years of a united Ireland.39 The ferocity and impact of this religious war is not to be underesti­ mated. It was an event at the level of religious community, though impossible to detach from issues of power and national allegiance. Within the period of the Union, the ‘war’ can be thought of as begin­ ning with the action of the Protestant Archbishop of Dublin, William Magee, who in 1822 invoked old penal legislation to prevent Catholic burials in the cemeteries which at that time were under the control of the Anglican Church. The ‘war’ ends with the rigorous enforcement by the Irish Catholic hierarchy of the Ne Temere decree of 1907, which both proscribed all mixed marriages not performed according to the rites of

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the Catholic Church and also required non-Catholic partners in mixed marriages to agree to the raising of all children of the marriage as Catholics.

The Problem Recast The failure of the liberal nation-building project within the United Kingdom and the conflict of religious nationalisms both in Ireland and between Ireland and Britain led eventually to partition in 1921, out of which two confessional states were constructed either side of the border. The Gaelic revival in the last two decades of the nineteenth century served to emphasize the ethnic division in Irish society; but it was the religious divide that was critical. In what became the Irish Free State, Protestants were a small and rapidly declining minority (1911: 11%; 1961: 5%; 1981: 3.5%), offering no threat to the Catholic and Gaelic character of the state. In Northern Ireland - which, ironically, now had its own ‘Home Rule’ Parliament - Catholics constituted a large and stable minority (historically around 33%, today 42%). The same con­ flict of religious-national identities was recast but remains unresolved. At the time of writing (January 1995), Northern Ireland has enjoyed a period of peace following the Republican and Loyalist cease-fires of 31 August and 13 October 1994 respectively. Whether this uneasy peace will become a lasting one is unknown to all. Amidst the political vio­ lence of the last twenty-five years, the secularization of Irish society, north and south of the border, has developed at a steady pace. Religious orthodoxies, which stress non-negotdable ultimate values, tend to pre­ vent compromise when injected into the political arena. Hopefully, advancing secularization has enhanced the possibilities of a negotiated and widely accepted settlement.

NOTES

1.

2. 3.

Public opinion polls in Northern Ireland, beginning in the 1960s, have allowed respondents to choose only one national identity. Between 1968 and 1987 the percentage o f Protestants choosing Irish as their nationality has fallen from 20% to 3%; the proportion choosing British has risen from 39% to 65% . Meanwhile the percentage o f Catholics choosing British as their nationality has dropped from 15% to 9% . See John W hyte, InterpretingNonhem Ireland (Clarendon Press, Oxford: 1990), pp. 67-9. Anthony D. Smith, National Identity (Penguin, London: 1991), p. 59. Major, cited in K. Robbins, ‘Varieties o f Britishness’, in Maurna Crozier (ed.), Cultural Traditions in Northern Ireland (Institute o f Irish Studies, the Queen’s University, Belfast: 1989), pp. 4 -1 8 , at p. 7.

‘a 4. 5.

6. 7. 8.

9.

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Linda Colley, Britons: Forging the Nation, 17 0 7 -18 3 7 (Yale University Press, New Haven, C T and London: 1992), p. 13. So, for example, while three-quarters o f the Welsh population continued to speak Welsh in the 1880s, they nevertheless shared with the English and Scots a powerful, bitter feeling o f anti-Catholicism. Colley, Britons, pp. 18, 330, 343. Hans Kohn, ‘The Genesis and Character of English Nationalism’, Journal of the History ofIdeas 1 (January 1940), pp. 69-94. S.J. Connolly, ‘The Catholic Question, 1 8 0 1 -1 8 1 2 ’, in W. E. Vaughan (ed.), Ireland Under the Union, 18 0 1-7 0 , A New History of Ireland V (Clarendon Press, Oxford: 1989), pp. 24-47, at p. 30. Hugh M ’Neile, Nationalism in Religion: a Speech Delivered at the Annual Meeting of the Protestant Association ... May 8, 1839 ([n.p.], London: 1839), p. 4.

10. 11. 12. 13.

14.

15. 16.

17.

18. 19. 20. 21. 22.

Augustus G. Stapleton, The Oath of Supremacy and The ‘Oaths BilV o f 1854 (T. Hatchard, London: 1854), p. 10. O’Neill Daunt, cited in E. R. Norman, The Catholic Church and Ireland in the Age of Rebellion, 18 5 9 -18 7 3 (Longman, London: 1965), pp. 1-2. A. M. Sullivan, New Ireland. 2nd ed. (Sampson Low, Marston, Searle & Rivington, London: 1877), II, p. 31. Charlotte Elizabeth [Phelan, afterwards Tonna], Derry: a Tale of the Revolution o f1688 (James Nisbet & Co, London: 1839), p. xv. Emphasis in original. D. Bowen, The Protestant Crusade in Ireland, 18 0 0 -18 7 0 : a Study of Protestant-Catholic Relations between the Act o f Union and Disestablishment (Gill & Macmillan, Dublin: 1978). Bowen’s title echoes an important early study o f American nativism and anti-Catholicism: see Ray Allen Billington, The Protestant Crusade, 18 0 0 -18 6 0 : a Study o f the Origins o fAmerican Nativism (Macmillan, New York: 1938). See also John Wolfe, The Protes­ tant Crusade in Great Britain, 18 2 9 -18 6 0 (Clarendon Press, Oxford: 1991). See G. Newman, The Rise ofEnglish Nationalism: a Cultural History, 17 4 0 1830 (Weidenfeld & Nicolson, London: 1987). Salisbury, quoted in G. T. T. Machin, Politics and the Churches in Great Britain, II. 18 6 9 -19 2 1 (Clarendon Press, Oxford: 1987), p. 179. Emphasis added. The 1926 Roman Catholic Relief Act removed a number o f archaic Cath­ olic disabilities still on the statue book, in particular by allowing Catholic processions to take place without restriction: Machin, ibid., p. 330. Amery, quoted in J. H. Grainger, Patriotisms: Britain, 19 0 0 -19 3 9 (Routledge & Kegan Paul, London: 1986), p. 244. ‘The United Irishmen and the Repeal Agitation’, The Westminster Review 40 (August 1843) pp. 50-75, at p.69. Colley, Britons, p. 162. J. T. Gilbert, History o f the Irish Confederation and the War in Ireland, III. 16 4 3 -4 (M. H. Gill & Son, Dublin: 1885), pp. 301-2. See the anonymous early eighteenth-century manuscript, attributed to Nicholas Plunket o f Dunsoghly, Co. Dublin (1629-1718), a member o f the collateral branch o f the Fingall family: (Sir) John T. Gilbert (ed.), A Jacobite Narrative of the War in Ireland, 16 8 8 -16 9 1 (J. Dollard, Dublin:

112

23.

24.

25. 26. 27. 28. 29. 30. 31. 32. 33.

34.

3 5. 36. 3 7. 38. 39.

MULTICULTURAL BRITAIN 1892); reprinted, with an Introduction by J. G. Simms (Irish University Press, Shannon: 1971). O ’Connell, quoted in B. O ’Leary and J. McGarry, The Politics o f Anta­ gonism: Understanding Northern Ireland (Athlone Press, London: 1993), p. 84. Moriarty, quoted in J. H. W hyte, ‘Bishop M oriarty on Disestablishment and the Union, 1868’, Irish Historical Studies 10 (September 1956) pp. 193-9, at p. 196. Ian Lustick, State-Building Failure in British Ireland and French Algeria (Institute o f International Studies, University o f California, Berkeley: 1985). Cornelius Keogh, quoted in B. Clifford, The Veto Controversy (Athol Books, Belfast: 1985), p. 26. O ’Connell, quoted ibid. p. 129. O ’Connor, quoted ibid., p. 34. Hansard, Series 3, CXLVTQ, col. 1108. D. Keenan, The Catholic Church in Nineteenth Century Ireland: a Sociological Study (Gill & Macmillan, Dublin: 1983), p. 194. E. Larkin, The Roman Catholic Church in Ireland and the Fall o f Parnell, 18 8 8 -18 9 1 (Liverpool University Press, Liverpool: 1979). D. H. Akenson, ‘Pre-University education, 17 8 2-18 7 9 ’, in Vaughan, Ireland under the Union, pp. 523-37, esp. pp. 5 31-2. Frederick Temple Hamilton-Temple Blackwood, Marquis o f Dufferin and Ava, The Inaugural Address Delivered before the Social Science Congress at Belfast in 18 6 7 (Alexander Mayne, Belfast: 1867), p. 15. Butt, quoted in H .J. Hanham (ed.), The Nineteenth Century Constitution, 18 15 -19 14 : Documents and Commentary (Cambridge University Press, Cambridge: 1969), p. 449. Bright, quoted ibid., p. 45 3. Hansard, Series 3, LXXII, col. 935. Bowen, Protestant Crusade, passim. O ’Connell, quoted ibid., p. 263. R. Davis, ‘Irish Republicanism v. Roman Catholicism: the Perennial Debate in the Ulster Troubles’, in Yonah Alexander and Alan O ’Day (eds), Ireland's Terrorist Trauma: Interdisciplinary Perspectives (Harvester W heatsheaf: New York and London: 1989), pp. 34-74, at pp. 38-9.

Part III Citizenship and Rights in Multicultural Europe and Am erica

Multiculturalism and Constitutional Values in Germany Volkmar Gotz

Immigration to Germany The number of non-Germans living in Germany has grown steadily since the end of World War II. In 1950 the number was some 500,000; and by 1992 this number had grown to 6,250,000. And the numbers continue to grow, thanks to the unchecked flow of people seeking political asylum and the arrival of other refugees. Since the beginning of the 1980s, the term ‘multicultural society’ has been widely used to describe the phenomenon of a resident population of non-Germans resulting from such immigration. At a 1980 symposium of the Churches on the topic ‘Different Cultures - the Same Rights’, the observation was made that ‘we live in a multicultural society in the Federal Republic of Germany.’ This statement would certainly not have been possible if it were not for the fact that Islamic Turks by then comprised by far the largest group of immigrants. In the 1950s and 1960s, when immigrants came mostly from Italy, Spain, Greece and Yugoslavia, there was little awareness of a multicultural society in Germany. The lack of discussion of the matter also resulted from the fact that the German public did not have a clear idea of the nature of work-related immigration from southern European countries after 1955. There was a generally held view that most of the ‘guest workers’ (Gastarbeiter) would later return to their home countries, and that immigration could possibly be controlled with a kind of ‘rotation system’. In the event, all of this proved to be false. In the 1970s, the number of Turkish immigrant workers and their families outstripped all other immigrant groups. By the beginning of the 1980s, there were 1,500,000 Turks compared to only 624,000 Italians. Muslims comprised just short of 3% of the West German population. Such, then, is the background to the discussion of a multicultural society in Germany.1 Though the ideology of multiculturalism must be criticized as both treating the issue o f‘culture’ relatively superficially and limiting itself in the political sphere to demanding equal rights for non-Germans and Germans, there is a clear awareness of cultural differences and both the resulting possibilities for social integration as well as the dangers of disintegration, certainly in the context of coping with Islam. Without

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the Islamic influence, there would probably be no socio-political debate about multiculturalism in Germany, or at least it would not be discussed with the same intensity as at present. Islam certainly plays a key role in the discussion about a set of shared values necessary for a democratic society. The Islamic portion of the entire (united) German population of 80 million is given as 3%. The question that the Gottingen political scientist Bassam Tibi, a specialist in political Islam, asks himself is: Which Islam will gain the upper hand? ‘Euro-Islam’, as Tibi calls it, which is in favour of a lay state, liberalism, tolerance, democracy and a ‘modern culture’? Or fundamentalist ‘Ghetto-Islam’, which embraces a totalitarian politi­ cal ideology. Tibi sees the possibility that the Euro-Muslims living in Germany and other western European nations could become outposts of democracy and reform in their home countries; but he also recog­ nizes the danger posed by Muslim extremists who exploit the western European democracies to create Islamic centres as spearheads of fun­ damentalism.2 Let us keep the figures in mind. Since 1955, that is in just 40 years, immigration has led to a non-German population of 6,250,000. This is just under 8% of the total population of 80 million in the united Germany (the concentration in the former West Germany is consid­ erably higher). The total number of over 6 million is by far the largest number of aliens in any European country. This figure also includes the uncontrolled immigration of refugees, whose length of stay in Germany is uncertain. Nevertheless, by 1990 more than 3 million non-Germans had already lived ten years or more in western Germany. Such a proportion of the population, therefore, comprises permanendy resident immigrants, which in turn fuels the debate on multiculturalism in Germany. In general, the immigration can be broken down into three compo­ nents: 1) non-German workers (1,900,000 at the end of 1991); 2) their family members, especially children, of whom 840,000 have been born in Germany; and 3) refugees from all over the world. The official total for this third category was given as 1,200,000 at the end of 1991. Of these, 230,000 were people granted political asylum; 380,000 were appli­ cants for asylum; and 520,000 were de facto refugees who had neither applied for asylum nor had been denied it, but who, for political or humanitarian reasons, had not been deported. The numbers continue to increase dramatically. In the period from January to November 1992 alone, the number of refugees increased by over 406,000; and it was estimated that another 600,000 people would apply for asylum in 1993. Of these three groups, only the first has reached a standstill. These are the Gastarbeiter: those who were called ‘guest workers’ in previous years and, to a certain extent, remain ‘guest workers’ even today. Their numbers reached a peak in 1973, when there were 2,600,000 in West Germany. The figure dropped at one point to 1,600,000 and has now stabilized at somewhat less than 2 million in the re-united Germany.

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The number of non-working family members (children, grandparents, sometimes spouses as well) grew from the time in 1973 when the Federal Republic stopped its political and administrative efforts to recruit guest workers; and thus those guest workers who had already settled here developed a much greater interest in fetching their families and establishing themselves as permanent residents. And finally, the influx of refugees has been growing since the Iron Curtain between East and West Europe was torn down in 1989-1990, whereupon Germany was flooded with a wave of refugees from eastern and south-eastern Europe. There is not the space here to analyse at length and from various perspectives all the factors relevant to the discussion of multiculturalism in Germany. But it must be clearly emphasized that one component is missing from the German version of a multicultural society, a compo­ nent that plays a large role in all the neighbouring states of western Europe. I refer to autochthonous or indigenous minorities of considerable magnitude, who have their own ethnic and cultural backgrounds. There are such minorities in Germany, of course; but their numbers are so small that they have no political weight. For example, some 30,000 Danes live in northern Germany; and in eastern Germany there are approximately 100,000 Sorbs, some 60,000 of whom speak a Slavic language {die sorbische Sprache) in addition to German.

The Problem of Political Rights The numerous advocates of multiculturalism - who seem more abun­ dant than the sceptics and critics, if one compares the number of publications and the enthusiastic tone in which they present their opinions - do not just stop at sociological analysis, but quickly move on to make political demands. Their aim is to grant permanent non-German residents the same legal status as Germans and thus the same political rights: that is, the right to vote and the right to hold public office. Members of non-German population groups lack these rights, even if they have lived in Germany for years and their residence status is guaranteed. Their social rights, however, are not at present the subject of discussion. From the very beginning (that is since 1955), the trade unions have ensured that the workers who entered the country at the invitation of German industry were granted the same working condi­ tions, pay rates and social benefits as their German colleagues - a factor which has contributed to the attractiveness of working in Germany. It is not my intention to discuss here the problem of the right to accept employment. The Federal Constitution does not guarantee nonGermans this right. Citizens of European Union countries have such

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a right in accordance with the basic freedoms granted under successive Community treaties. In 1992 1,350,000 workers from other (i.e. extra-Community) states had work permits. For the following year the Federal Government’s intention was to implement a more restrictive policy for issuing work permits. But these restrictions will have no impact on longer-term residents or the younger generation that has grown up in Germany. The sharp criticism coming from advocates of multiculturalism is directed at the fact that even long-time non-German residents (who, according to current German immigration law, are granted unlimited residency after five years) are nevertheless denied the right to elect representatives to municipal councils and to governments at state ( Land) and federal level. In the civil service, non-Germans are barred from positions governed by civil service law, that is from serving as civil servants and judges. Thus they are barred not only from positions in the judiciary, but also from the police and from schools. At the municipal level, however, aliens are relatively well-represented as workers in the public services; and this is also true of the postal and railroad systems as well as the health professions. Non-Germans have a great deal of political freedom. This is guaran­ teed by the Constitution as the freedom of speech, press, and broadcasting (Grundgesetz fu r die Bundesrepublik DeutschlandfF ederal German Con­ stitution, Article 5: Meinungsfreiheii). The freedoms of assembly and association are conceived in the Constitution as fundamental rights of Germans; but resident non-Germans benefit from the laws of assembly and association, which grant non-Germans these rights as well (Articles 8 & 9: Versammlungsfreiheit & Vereinigungsfreiheit).3 Whether resident aliens should be given the right to vote in local elections at community and district levels as well as state and federal legislative levels has become a very sensitive political issue, since such a change could involve up to 3 million new voters. At first, solutions focused on introducing a right for non-Germans to vote in municipal elections, but the question has increasingly come to include the controversial demand to reform the rights of citizenship. In 1989, the state parliament of Schleswig-Holstein granted citizens of certain nations that allowed resident aliens to vote in municipal elections a reciprocal right in Schleswig-Holstein, with the stipulation that such non-German voters had lived in the Land for at least five years. The Christian Democrat members of the Federal Parliament and the Bavarian state government lodged an appeal before the Federal Constitutional Court {das Bundesverfassungsgericht). On 31 October 1991 the Court ruled in a unanimous decision that the introduction of a non-German’s right to vote in municipal elections was unconstitutional, because the Federal Constitution requires corresponding legitimation from the Staatsvolk, the native German peo­ ple.4 The fundamental principle was clear: the right to vote, even at the

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lower level of municipal elections, is a constitutional matter and thus cannot be granted to a certain population group (which, under the Federal Constitution, does not possess the right to vote) by the majority decision of a parliament using normal legislative procedures. Accord­ ingly, European citizenship, which is envisaged by the Maastricht treaty and includes the right of non-Germans to vote in municipal elections within the European Union, can be integrated into German law only by changing the Federal Constitution. Such a change was instituted by law on 21 December 1992; and it provides that, in the future, as soon as the legal bodies of the European Union have passed the necessary regula­ tions for EU citizenship, citizens of EU member nations will have the right to vote in (German) municipal elections. At the same time, how­ ever, the effect of this change still means that the largest non-German sub-populations by far, namely the Turks (currently just under 2 million) and citizens of former Yugoslavia (currently some 1 million), will con­ tinue to be denied the right to vote in municipal elections. The problem of political rights (the right to vote and the right to hold public office) thus narrows down to the question of acquiring German citizenship. There is extensive discussion on this issue and the details are far too intricate to be examined fully here. The same goes for the many suggestions on reforming citizenship laws, all of which would make it easier to obtain citizenship. In essence, though, the discussion focuses on two principles of German citizenship law, which large numbers of politicians see as needing revision, with the Left coming out more strongly in favour of reform than the conservative Centre. One of the points of controversy is that German citizenship law makes acquisition of citizenship dependent on heritage, ius sanguinis. Unlike the law in most other European countries, where a principle of heritage also prevails, German law does not recognize birth within Germany as a qualification for citizenship, ius soli. The second and main point of contention is dual citizenship, which in traditional German legal thinking is an evil that should be avoided wherever possible and consequently demands giving up one’s current citizenship as a requirement for naturalization.5 In this second area of dual citizenship, official German argument has been based on the European Council treaty of 6 May 1963 on reducing multiple citizenship and military conscription of those with multiple citizenship. (Other signatory states include Austria, Belgium, Denmark, France, Italy, Luxembourg, Norway and Sweden.) However, extensive investigations of naturalization practices have shown that the treaty members differ about whether or not the person seeking naturalization must give up his/her current citizenship. France and Italy, for example, do not require this step, while Luxembourg does. Germany demands the renunciation of current citizenship, but does make exceptions. The requirement may be waived if it can be fulfilled only ‘under especially difficult conditions’. Whether such conditions exist for the purposes of

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this ‘discretionary naturalization’ is determined in accordance with the Minister of the Interior’s administrative stipulations of 15 December 1977.6 The more lenient naturalization requirements for long-time resident non-Germans, effective as of 1991, are regulated by the Alien Act {Auslandergesetz) of 9 July 1990.7 The exceptions to the requirement of relinquishing current citizenship include cases in which the home coun­ try always or arbitrarily denies release from citizenship, or in the case of refugees (especially political refugees). Not included in these exceptions are the requirements relating to military conscription in a person’s home country, or possible disadvantages with respect to the ownership of real estate or in relation to the country of origin’s laws of succession. The 1990 Alien Act also grants young non-Germans between 16 and 18 years old, usually called second- or third-generation foreigners, a claim or ‘qualified right’ to naturalization if they have lived in Germany for at least eight years and gone to school in Germany for at least six years. The older generation is given a claim to naturalization if an individual has been legally resident in Germany for at least fifteen years; and their spouse and under-age children also enjoy this right without having to fulfil the 15-year requirement. All these rights exist, however, only on condition that prior citizenship is relinquished. And it is precisely here that problems arise and intensify. As numerous studies have shown, non-Germans living in Germany are only prepared to give up their current national identity to a limited extent. Most of them would, how­ ever, accept dual citizenship. The reasons for this attitude are self-evident and need no further explanation. In 1988, only 0.1% of the Turkish nationals living in Germany were naturalized. But in the same year, a poll in Berlin showed that 60% of the young Turks asked would become German citizens //they could retain their Turkish citizenship. It is still an open question whether Germany will continue to insist upon a renunciation of current citizenship or will allow citizenship of more than one country. Many voices in the political world are calling for the introduction of dual citizenship, the loudest of all (but by no means alone) coming from the Left. In November 1992, a ‘four-party compro­ mise’ between the governing parties and the Social Democrat opposition was agreed, upholding the obligatory renunciation of current foreign citizenship. However, this could all change in the future. The issue carries political weight especially for the Turkish population in Germany, since they represent the largest group of non-Germans (almost 2 million, as we have noted). Politically it is less important for eastern Europeans, who are more willing to give up their prior citizen­ ship. Conversely, citizens of other European Union nations (notably 557,000 Italians and 342,000 Greeks) demonstrate the least interest in a change of citizenship, in part because of the freedoms already granted them by various EU treaties.

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Integration, Multiculturalism and Constitutional Values What is multiculturalism and what is a multicultural society? The answers to this question will differ around the globe. The idea of multicul­ turalism is necessarily different from country to country because the situation and problems are nowhere the same. The word ‘multicultur­ alism’ represents completely disparate situations in the USA, Guatemala, India, Singapore, or South Africa - and, of course, for Germany’s unique situation as well, which has been marked by 40 years of continuous worker and refugee immigration. Germany’s multicultural ideology is actually a consequence of the opinion that immigrants do not integrate or assimilate. We see this in the writings of Heiner Geissler, one of the earliest and best-known champions of multiculturalism, who is also a prominent Christian Democratic politician. In Germany, indeed, some see Geissler as having almost invented the concept of multiculturalism. As Geissler has writtenr I believe that in the future, integration and assimilation will no longer be possible because the people who come to us from outside for the most part no longer want to become assimilated as far as giving up their own cultural identity is concerned, especially because more and more come from other cultural spheres. Thus to Geissler, multiculturalism in Germany means nothing more than Germans and human beings of other heritages co-existing in toler­ ance and recognition of the cultural identities of the immigrants.8 One can see from this example that the ideology of multiculturalism in Germany is not based on a cultural-sociological abstraction, but on the reaction to increasing immigration, which has never been chan­ nelled by the political system. Rather, in its first phase from 1955 to 1973, this immigration was governed by the interests of the German economy in recruiting guest workers; while at present the driving force is the German Constitution’s guarantee of political asylum (Asylrecht), which draws refugees from all over the world like a magnet (Federal Constitution, Article 16a). I cannot agree with Geissler’s premise that the integration of immigrants into German society will be impossible. Indeed, all the signs point to just the opposite in the case of the long­ time residents - if not to the refugees who have arrived recently. Integration does not happen overnight. Rather, it is a slow process involving two to three or more generations. Integration will be com­ plete only in the children, grandchildren and great-grandchildren of immigrants. In 1990, 504,000 non-German pupils attended school in the former West Germany. In my opinion, the most significant of the many facts pointing to the increasing integration of younger nonGermans into German society is the growing number of non-German

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young people. These young people get a professional education in the German ‘dual’ system, which means practical training in business com­ bined with attendance at vocational-technical school; and thus they have access to the trades. This is very important, since a vocational-technical education is the key to the classical German business and trade world. Today, 11% of all apprentices in the trades are non-Germans (some 100,000), half of whom are Turkish, and their proportion is increasing, in part due to the falling birth-rate among Germans. There are, undoubtedly, other sectors of the non-German resident population which are either unable or unwilling to integrate into German society; but it is my judgement that they are numerically not significant enough to be included in any discussion of a multicultural society in Germany. But it is not the chief concern of this chapter to raise doubts about the usefulness of the concept ‘multicultural society’ for Germany. Regard­ less of whether this concept is used or not, the same issue must be addressed: that is, the necessary basic consensus concerning the binding values - the values which keep society intact and protect it from possibly insoluble conflicts. It is noteworthy that apparently all theoreticians propounding a multicultural society consider this basic consensus essen­ tial. Such proponents include both the Christian Democrat politician Geissler and Daniel Cohn-Bendit. Cohn-Bendit, spokesman of the M ay 1968 movement in Paris, has been honorary city councillor for multi­ cultural matters since 1989 in Frankfurt am Main; and he is the author of the recent and widely-read book Heimat Babylon.9 To a constitutional rights activist, it is only natural to base the definition of a ‘binding con­ sensus’ on the values enshrined in the Federal Constitution. The German Constitution transforms the basic values of human dignity, freedom and equality, solidarity, and protection of life, marriage and property into positive law. Furthermore, the Constitution is based on premises it does not call its own, but on whose existence it depends. In particular, these include tolerance, respect for the opinions of others, plurality of societal attitudes and forces, and the separation of religion and state.10 It is impossible to discuss here such questions as the maintenance of these values by state compulsion (e.g. by administrative and criminal law) when a multicultural society is faced with individuals and groups who pose a threat to such basic values. Instead, all we can do in the space available is look at the institution of the public school, where the goals of education include instilling these basic values, especially tolerance and political responsibility in a democracy. That educational goals should be influenced by fundamental values was an explicit provision (Article 148) of the so-called Weimar Constitution of 1919 ( Verfassung des Deutschen Reiches vom 11 August 1919). Similarly, at the end of World War II, when the basic and most powerful political premise was that the values of democracy had to be formally taught, such ideals were

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integrated in various forms into the constitutions of the German federal states. From the ages of 6 to 16, schooling is compulsory in Germany; and this requirement also applies to non-German pupils, who attend normal German schools. Foreign private schools officially recognized as an alternative to public schools are allowed; but there are few of them. Non-German pupils who are not yet fluent in German first receive language lessons in preparatory classes. The non-German pupils are thus taught in German with their German peers. However, they do receive some hours of supplementary instruction in their native language. In this way, the German school system pursues the goal of socio-cultural integration by providing equal-opportunity education and simultaneously seeking to preserve the natdonal/cultural identity of non-German pupils.11 However, it is possible that this twofold goal poses too great a challenge to both the school system and the individual pupil. Conflicts may also arise from the contrast between the educational duty of public schools as stated in the Federal Constitution (Article 7, Sec. 1) and the right to freedom of religion, also guaranteed in the Constitution (Article 4).12 Thus we return to the problems arising from Islam. There have been administrative court decisions allowing parents of Islamic girls to exempt their children from co-educational sports and swimming classes, because Islam forbids girls to expose themselves in front of boys to the extent necessary to participate in sports and swimming.13 These and similar conflicts could, of course, escalate should fundamental Islam gain ground in Germany. In addition to fundamental constitutional values, the German language is an important instrument for integration. The theory of multiculturalism cannot ignore the fact that Germany is a monolingual land. The German language is the only official means of communication and the law and state’s exclusive mode of expression. Paul Kirchhof, a consti­ tutional law activist himself and presently a judge on the Federal Constitutional Court, stresses the constitutional and legal basis of this linguistic homogeneity, which will indubitably continue to exist in the future.14

NOTES

1.

For statistics on immigration and the country o f origin of immigrants to Germany, see Bundeszentrale fur politische Bildung (Bonn), Informationen zurpolitischen Bildung 237 (no. 4, 1992); Das Parlament (nos. 2 and 3, 8 -15 January 1993). For the recent discussion o f multiculturalism in Germany, see Klaus J. Bade (ed.), Deutsche im Ausland - Fremde in Deutschland: Migration in Geschichte und Gegenwart (Beck, Miinchen: 1992), Part 2: ‘Fremde in Deutschland’; C. von Krokow, ‘Multikulturelle Gesellschaft’, Brockhaus Enzyklopddie. 19th edn. (Brockhaus, Mannheim: 1986-1994), XV, pp. 173-6; Jurgen Micksch (ed.), Multikulturelles Zusammenleben,

124

2.

3.

4. 5.

6. 7. 8.

9. 10.

11.

MULTICULTURAL EUROPE AND AMERICA Beitrage zur Auslanderarbeit no. 3 (Lembeck, Frankfurt am Main: 1983); idem, Kulturelle Vielfalt statt nationaler Einfalt. Eine Strategic gegen Nationalismus und Rassismus (Lembeck, Frankfurt am Main: 1989); Axel Schulte, ‘Multikulturelle Gesellschaft: Chance, Ideologic oder Bedrohung?’, Aus Politik und Zeitgeschichte. Beilage zur Wochenzeitung Das Parlament (nos. 23-4, 1 June 1990), pp. 3 -15. Representative works by Bassam Tibi include Der Islam und das Problem der kulturellen Bewdltigung sozialen Wandels (Suhrkamp, Frankfurt am Main: 1985); Islamischer Eundamentalismus, modeme Wissenschaft und Technologie (Suhrkamp, Frankfurt am Main: 1992); Die fu n d am entalist Herausforderung. Der Islam und die Weltpolitik. 2nd edn. (Beck: Miinchen: 1993). The Grundgesetz fu r die Bundesrepublik Deutschland is officially (and lit­ erally) translated as the Basic Law o f the Federal Republic o f Germany. But it is often referred to in English as the German and/or Federal Constitution. The latter terms are used in this volume. For a useful col­ lection, see Horst Hildebrandt (ed.), Die deutschen Verfassungen des 19. und 20. Jahrhunderts (Schoningh, Paderborn: 1971). Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 83, 37, decision o f 31 October 1991. BVerfGE 37, 217, decision o f 21 M ay 1974; Bundesverwaltungsgericht (Federal Administrative Court), decision o f 15 April 1991: Zeitschrift fu r Standesamtswesen 1992, 43. For some recent studies o f citizenship and nationality in the German context, see Jurgen Basedow and Barbara Diehl-Leistner, ‘Das Staatsangehorigkeitsprinzip im Einwanderungsland’, in Basedow et al., Nation und Staat in Intemationalen Privatrecht. Zum kollisionsrechtlichen Staatsangehorigkeitsprinzip in veffassungsrechtlicher und international privatrechtlicher Sicht, ed. Erik Jayme and Heinz P. Mansel (Muller, Heidelberg: 1990), pp. 3-43; Kay Hailbronner, Einbiirgerung von Wanderarbeitnehmem und doppelte Staatsangehorigkeit (Nomos, Baden-Baden: 1992). The term comes from the Law concerning Citizenship o f the Empire and Nation, 1913, Article 8. Ausldndergesetz, Articles 85-7. Heiner Geissler, ‘Die bunte Republik: multikulturelles Zusammenleben im neuen Deutschland und das christliche Menschenbild’, Zeitschrift fu r Ausldnderrecht und Ausldnderpolitik 11 (January 1991), pp. 10 7 -13 ; idem (ed.), Ausldnder in Deutschland. Fur eine gemeinsame Zukunft, 2 vols. (Olzog, Miinchen and Wien: 1982-3). Daniel Cohn-Bendit and Thomas Schmid, Heimat Babylon: das Wagnis der multikulturellen Demokratie (Hoffmann & Campe, Hamburg: 1992). For some early discussion o f basic constitutional values in the ways used in this chapter, see Peter Haberle, Erziehungsziele und Orientierungswerte im Verfassungsstaat (Alber, Freiburg im Breisgau: 1981); Josef Isensee, ‘Verfassungsgarantie ethischer Grundwerte und gesellschaftlicher Konsens. Verfassungsrechtliche Uberlegungen zu einer sozialethischen Kontroverse,, Neue Juristische Wochenschrift 30 (no. 13, 30 March 1977), pp. 5 45 -51; Christian Starck, Von Grand des Grundgesetzes (Interfrom, Zurich: 1979). For German education and the school system in the context o f immi­ gration, see Peter Haberle, ‘Verfassungsprinzipien als Erziehungsziele’, in

MULTICULTURALISM IN GERMANY

12.

13.

125

Recht als Prozefi und Gefiige. Festschrift far Hans Huber zum 80 Geburtstag (Stampfli, Bern: 1981), pp. 2 11-3 9 ; K. H. Hage, ‘Verfassungsrechdiche Aspekte der Integration von Auslandern im Schulwesen’, Recht derjugend und des Bildungswesen 30 (1982), pp. 26-39; L.-R. Reuter, ‘Auslander im westdeutschen Bildungssystem’, ibid., 30 (1982), pp. 2 -15 . Federal Constitution Article 7 (Schulwesen), Sec. 1, states in full: ‘Das gesamte Schulwesen steht unter der Aufsicht des Staates.’ (The entire school-system shall be under the supervision o f the State). Article 4 covers ‘Glaubens-, Gewissens- und Bekenntnisffeiheit, (freedom o f belief, conscience and creed). Sammlung von Entscheidungen des Bayerischen Verwaltungsgerichtshofes, deci­ sion of 6 May 1987; Neue Zeitschnftfur Verwaltungsrecht 1987,706 (Bayerische Verwaltungsblatter 1987, 592); Entscheidungen der Oberverwaltungsgerichte fu r das Land Nordrhein-Westfalen in Munster sowie fu r die Lander Niedersachsen und Schleswig-Holstein in Liineburg, decision o f 15 November 1991:

19A, 2198-91. 14.

See esp. Josef Isensee and Paul Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland, 7 vols. (Muller, Heidelberg: 1987-92), I, Sec. 18.

Constitutional Equality and the Anti-Discrimination Principle in France:The French System in Comparative Perspective Guy Scoffoni

In the following analysis of the French approach to citizenship and rights in a multicultural society I shall focus mainly on the concept of equality and its implications in terms of individual and collective rights. The central question to be addressed will be: do fundamental rights benefit only the individual-citizen {individu-citoyen) or can they apply to minorities as well?1 As an old nation-state, France has its own minorities: regional, cultural and religious. But France also includes groups of foreign minorities, particularly those who have come from Africa.*2 Like most liberal states, France has chosen a gradual approach, a policy of assimilation.3 This policy is based on two fundamental princi­ ples of democracy: the majority principle and the equality principle, interpreted in the most direct way. The numerical majority decides and the law is the same for all, even if it reflects only the majority interests. It is in fact the concept of the nation that created the concept of a national minority lying outside this ‘community of destiny’ which characterizes the dominant national group. The interests of minorities cannot, therefore, be taken into consideration by the state institutions which impose the dominant cultural values. In other words, France has put forward the values of national unity, seeking to marginalize the cultural minority values in order to offer these groups a new identifi­ cation within the national community. This policy is legally expressed through the concept of constitutional equality and the anti-discrimination principle: a guarantee of equal rights to the individual citizen but a rejection of rights for minority groups - at least on a constitutional basis. The present analysis will focus on these two conflicting issues or principles: constitutional equality and the rights of the individualcitizen (‘equality before the law’) and constitutional equality and the rejection of minority rights (the refusal of ‘equality through the law’), though there is recognition of some specific rights in France.

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1. Constitutional Equality and the Rights o f the ‘Individual-Citizen’ The French Revolution contributed greatly to the development of the model of the nation-state which, by transferring sovereignty from the monarch to the people, created the myth of the unity of the people and the state.4 The theories of Jean-Jacques Rousseau and the anti-group ideologies explain, therefore, the consecration at the end of the eigh­ teenth century of the principles of equality, unity and indivisibility, which are the source of the French constitutional order.5 Unlike the United States of America, the risk of disunion was a great concern in France in the revolutionary era; and the exclusive recogni­ tion in law and in constitutional theory of the individual-citizen in the eighteenth and nineteenth centuries derives from the historical neces­ sity to preserve the country’s unity.6 What, then, are the bases of the protection of the individual-citizen and what meaning and implications does the concept have? a) The Bases of the Protection o f the Individual-Citizen The conception of equality which prevailed during the Revolution derived direcdy from the image of a united and homogeneous national com­ munity. At the time this was only a principle of political theory. Later, the equality principle became an effective rule of law through the jurisprudence of the Council of State and especially the Constitutional Council (Cornell constitutionnel).1 According to the jurisprudence that has been developed by these two judicial bodies, there are now three main bases to the protection of the individual-citizen: (i) The concept of equality first appears in the Declaration of the Rights of Man and of the Citizen in 1789: Declaration des droits de Vhomme et du citoyen. In Article 1 there is specific reference to the equal rights of man from birth. But the Declaration does not define equality; nor does it proscribe discrimination according to race, ethnic origin or any other grounds. But what we call the Philosophie des Lumieres (or the ideas of the Enlightenment in general) would not have allowed such discrimination. The equality of man and citi­ zen is not based on geographical or ethnic origin, but rather on that which creates unity, namely the common possession of natural rights: equality, freedom, property and security rights, and the right to resist oppression. On this basis, the Declaration states explicitly that all citizens have access to public employment or positions according to their talents (Article 6); and no one should be put in jeopardy for their opinions, even their religious beliefs (Article 10).8

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The 1789 Declaration of the Rights of Man and of the Citizen established, therefore, a double conception of constitutional equality: equality of the law, which is a principle imposed on all legislators; and equality under the law, which is a duty imposed on those who enforce the law.9 (ii) The second source for the principle of the protection of the individual-citizen can be found in the Preamble to the Constitution of 27 October 1946, which was adopted shortly after the liberation from, and victory over, totalitarianism. It was in this context that the first sentence of the Preamble was drafted to state that the French people re-asserted that ‘every human being, without distinction of race, religion, or belief, possesses inalienable and sacred rights.’10 In this way the Preamble to the 1946 Constitution added to the 1789 Declaration in enumerating social and economic rights dealing with work, health and education.11 The very terms used (‘every human being’, ‘every worker’) make clear that the enjoyment of these rights cannot be limited by any kind of discrimination based upon ethnic or national origin. (iii) The third source for the principle of the protection of the individualcitizen derives from the French Constitution of 4 October 1958. Article 2 of the Constitution states that France is an indivisible, secular, democratic and social republic. Article 2 also guarantees equality under the law to all citizens without distinction of origin, race or religion; and this article, together with Article 3, guarantees, moreover, respect for all beliefs and an equal right to vote.12 In these formulas, equality appears mainly as a democratic principle, intended to inspire the government’s policies. It is the judge and espe­ cially the Constitutional Council who together establish the constitu­ tional value of the equality principle in decisions based in particular on the Declaration of the Rights of Man and the Preamble to the Consti­ tution. It is therefore the judge who defines the scope of protection. b) The Scope of Protection for the Individual-Citizen As interpreted classically, equal protection opposes any discrimination between individuals. But in case of differences , the law must evolve. Equality is not an absolute principle of identity.13 From this point of view, French constitutional jurisprudence is not unique. It follows similar lines of reasoning to those of the German, Italian and Austrian Constitutional Courts. In considering the scope of the protection of the individual-citizen, I shall examine two points in particular: first, the beneficiaries of equality; and second, the meaning of the principle of equality.

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(i) The Beneficiaries o f Equality W hile the equality principle relates mainly to individual rights, the Constitutional Council has enlarged the scope of the principle. First, it has been established that the right to equality is independent of the sex of the individual. The Preamble to the 1946 Constitution laid down that ‘in all areas’ women were to enjoy equal rights with men; and this prin­ ciple has been explicitly enunciated by the Constitutional Council in its decision of December 1980 concerning the equality of the sexes in judicial sentencing.(i)*14 Moreover, the foreigner can also invoke the equality principle, not only to enjoy equality in the courts but also in gaining access to social rights. In a judgement delivered in January 1990, the Constitutional Council ruled that constitutional liberties and fundamental rights extend to all residents of the republic. It referred for the first time to equal rights between French citizens and foreigners by stating that all for­ eigners legally settled in France are entitled to the same specific benefits as French citizens. This was an important decision, considering that, at that very moment, certain political movements wanted to establish a socalled ‘national preference’ in France. It follows from the Council’s decision that the nationality of an individual cannot be used as a general criterion for discrimination. This decision can be compared to the juris­ prudence of the US Supreme Court when it invalidated, on the basis of the Fifth and Fourteenth Amendments and after a ‘strict scrutiny’ control, discrimination practised by a state towards permanent yet legal foreign residents. If foreigners were, in the eyes of the US Supreme Court, a minority to protect, the French Constitutional Council has guaranteed the same protection by virtue of the fundamental equality possessed by all people. Through such a decision equality becomes more than a citizen’s right. It becomes a human right - though with the exception that the right to vote is still defined by citizenship and nation­ ality.15 Lastly, the Constitutional Council has laid down in a number of deci­ sions that legal bodies or corporate entities as well as individuals are within the protection of the equality principle. Thus all manner of asso­ ciations, trade unions, private companies, local communities and political parties have become the beneficiary of this principle.16

(ii) The M eaning o f the Equality Principle Equality implies similar situations. It does not mean that the laws must be identical for all, but only that they cannot be different for people placed in the same situation. Equality not only prohibits, then, dis-

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crimination based on such grounds as race and religion; it also implies a right to benefit from identical rules.17 On the other hand, when there is a difference of situation, law-makers can choose between identical rules for all or specific rules applying to each category. Law-makers are not bound by the equality principle; nor do they have to set specific rules because the difference of situation does not create a right to benefit from particular standards. There is no constitutional ‘right of differ­ ence’ recognized in France. Contrary to the German Constitutional Court, the French Constitutional Council has never formulated the ‘different situations, different rules’ solution. It has only stated that the law-makers may set different rules for different situations. For the German court, on the contrary, material equality must replace formal equality. In France it is the case that the Constitutional Council makes it own appreciation in each case of the ‘similar situation’ requirement and of the possibility of legal discrimination, either based on a general interest (different regulations are set, e.g. for tax-payers located abroad or to fight fraud) or, alternatively, justified by a sufficient difference of situ­ ation. It is the Council’s obligation to appreciate the ‘sufficiency’ of the difference which gives it considerable power. There is a broad similarity here with the role of other European constitutional courts, which look for any possible sources of discrimi­ nation. (The courts in Germany, Austria, and Italy again show a similar pattern.) So we see that in most European democracies, equality under the law carries approximately the same meaning. The French system differs, though, on one main point. It rejects constitutional minority rights and is allergic to any kind of quotas or affirmative action programmes. 2. Constitutional Equality and the Rejection of Minority Rights The neglect of minorities appears in France as a legacy of the indivi­ dualistic conception of the law and of the ‘Rights of Man’ philosophy prevailing since the Revolution. But France no longer relies entirely upon such jurisprudential individualism.18 Its legal system reflects the political, economic and social evolutions characterizing French society. Apart from individual rights, some collective rights have thus been recognized for groups, but with a very important qualification. These rights are recognized only for objective categories. They do not depend on cultural differences. As such, they are not real minority rights. From this point of view, equality leading to uniformity constitutes in France a major obstacle to the recognition of a ‘right of difference’. In the next section I shall concentrate first on the scope of the denial of minority rights and then on its limits in the consideration of certain recognized differences.

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a) The Denial of a Constitutional Right of Difference The assumption of special homogeneity explains the traditional reluc­ tance in France to take into consideration any sort of difference. Three major recent episodes in French law will be used as illustrations of this legal-judicial denial.

(i) The Indivisibility o f the Trench People ’ and the Rejection o f Discrimination between Citizens In 1991 the Constitutional Council had to review a law defining a new form of organization for Corsica.19 The question asked of the Council was the following: can French legislation recognize the Corsican people as a part of the French people? Such a recognition would imply a distinction inside the concept of the French people, one based on ethnic origin. (This prompted a leading Corsican, Frangois Giacobbi, hostile to the new instrument, to reply to the metropolitan government: ‘When you recognize the Corsican people inside the French people, you make a racist distinction!’) In its response, the Constitutional Council referred to Article 2 of the 1958 Constitution, which prohibits any discrimination based on origin or race, and declared that the Constitution recognized only one (French) people composed of all citizens without distinction. The Constitutional Council’s decision of 9 M ay 1991 confirms that, since the Revolution, France has not recognized minorities as such but only the individual citizen.20 For the Council, the mention of a Corsican people distinct from the French people appeared dangerous because it suggested the possibility of discrimination, which France had tried to ban for two centuries. The opposition in the National Assembly had, in fact, asserted that recog­ nizing a Corsican people would undoubtedly lead to the acknowledge­ ment of a Martinique people or a Reunion Island people or a Kanaka people in New Caledonia - all of which were prohibited by the antidiscrimination principle in Article 2 of the Constitution. The French concept of equality and of the indivisibility of the Republic prevents any constitutional recognition of minorities or any distinction made on ethnic criteria. This explains the reservation made by France when it ratified the United Nations Covenant on Civil and Political Rights, Article 27 of which guarantees the identity of ethnic, religious and linguistic minorities.21 Considered constitutionally indivisible, France cannot recognize the legal existence of minorities like other occidental countries. The Canadian Constitution, for instance, authorizes specific statutes for the indigenous or autochthonous peoples; while Article 2 of the Spanish

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Constitution of 1978 recognizes the existence of nationalities (nationalidades) and regions, especially the Basque, Catalonian and Galician Communities.22

(ii) National Unity and the Linguistic Dimension Since the Revolution, constitutional equality in France has implied a homogeneous society. Unity was forged against local particularisms by the denial or repression of regional and cultural claims. This struggle for unity is well illustrated by the legal status of the French language. Imposed by Frangois I as the official and legal language with the 1539 Ordinance of Villers-Cotterets, then re-affirmed by the Revolution and the Third Republic as the exclusive language to be used in schools, the French language has recently been constitutionally proclaimed the ‘Language of the Republic’. For, following the constitutional revision consequent upon the ratification of the Maastricht treaty in June 1992, a new, second paragraph has been added to the Constitution: ‘the lan­ guage of the Republic is French’.23 This provision gives French the legal basis needed in the event of conflict with a regional language. At the same time, the government refused an amendment, similar to Article 3 of the 1978 Spanish Constitution, referring to the protection of the regional languages and cultures of France.24 In the name of the unity and indivisibility of the Republic, any recog­ nition of minority groups and their cultures will be denounced once again. Today, any action in favour of regional languages, which are part of our cultural heritage, will be limited by deference to the unity sym­ bolized above all in the ‘Language of the Republic’. (iii) Formal Equality and the Rejection o f Differences and Quotas Though it is one of the French government’s goals to wage a constant struggle against social inequality, the French state is in general opposed to preferential treatment or ‘reverse discrimination’ for particular groups. The visceral attachment in France to formal equality explains why it has rejected the sort of affirmative-action programmes found in the United States, where the notion of minorities is not taboo. In the Uni­ ted States, for example, from the time of its decision in Brown vs. Board o f Education in 1954, the US Supreme Court has accepted the consti­ tutionality of preferential treatment, using a dynamic interpretation of ‘equal protection’.25 Such affirmative-action programmes have expanded despite the controversies and restrictions following the jurisprudence of the Supreme Court in such cases as Bakke and Richmond in 1978 and 1989 respectively.26 Such controversies have never taken place in

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France, because the introduction of quotas has been declared contrary to strict legal equality and damaging to the homogeneity of the nation even though everyone admits that this homogeneity is pure fiction. Only on one occasion has the Constitutional Council had the oppor­ tunity to sanction the validity of quotas, when it decided a case concerning preferential treatment for women in the political process. Quotas had been set requiring a minimum of 25% women on the lists of candidates for municipal elections. But the Council ruled that such quotas were unconstitutional, on the grounds that there could be no discrimination introduced between citizens who were already equal.27 This 1982 ruling of the Constitutional Council is open to the charge that it avoided the substance of equality in the name of certain ideals of identity. The French concept can be summarized this way: citizens are not identical because they are equal; rather they are equal because their citizenship makes them by definition identical. There is no place for differences and preferential treatment in such reasoning. The citizen must be distinguished, therefore, from the man in society (Thomme situe’, in G. Burdeau’s phrase) according to his economic, social or family category. But this dogma of the unity and homogeneity of the citizens’ community has been partly eroded today by the admission of certain differences in French law. Even so, this recognition has not yet reached the constitutional level.

b) The Limits of the Anti-discrimination Principle and the Legal Recognition of Differences Some countries protect the rights of minorities at the constitutional level. Sweden, for example, stipulates that ethnic, linguistic and religious minorities must receive specific support. France, on the other hand, has adopted only legislative and administrative measures towards preferential treatment. The point can be illustrated by taking three cases which touch on the earlier discussion of minority rights.

(i) Specific Legislative Statutes Governing French Territories Here we may cite three examples: (a) First there is the statute of the Overseas French Territories for areas such as Polynesia and New Caledonia. The 1958 Constitution autho­ rized a specific organization for such territories, with an Assembly (rather like a mini-Parliament) and an Executive Council quite different from the administrative authorities found in France (Titre

CONSTITUTIONAL EQUALITY IN FRANCE

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XII: Des C ollectives Territoriales, Articles 72-6.) But such arrangements did not make France a federal state: far from it! The Constitutional Council has repeated in many of its decisions the principle that the national Parliament retains the exclusive power to enact or modify the territories’ organizations. Although the territories have their own legal order reflecting their particular situation, the Constitu­ tional Council has never admitted that any ethnic criteria might lie at the basis of the difference in statutory arrangements; and the territories have no rights to organize themselves and no full legis­ lative powers.28 (b) A similar situation obtains in the case of Corsica. W hile the Consti­ tutional Council has censured the recognition of a ‘Corsican People’, the island has been given its own specific organization. The law of 2 March 1982 provides a unique type of regional Assembly and Executive, as well as creating a special electoral district. But in its decision of May 1991, the Council reaffirmed that this specific organization for Corsica had only an administrative - not a constitutional - character.29 (c) The third example concerns Alsace-Lorraine. Here the regional law still bears a German influence which goes back to the period before the Armistice of November 1918 at the end of World War I. This German influence informs both civil and public law; and in this way both reflect the identity of the region. But they do not constitute an autonomous legal order, since the local authorities are not entitled to create new regulations or modify the existing ones.30 (ii) Linguistic Particularisms Beyond the linguistic unification and the official consecration of the French language in the Constitution during 1992, a relative linguistic diversity has been accepted in response to various minority claims. But the mere acceptance of diversity cannot create real linguistic pluralism; the regional languages are not fully protected by the law and, in fact, they are ignored in the Constitution itself. Different regulations recognize or protect the languages through optional educational courses or through cultural programmes on the public television channels. The law of 26 January 1984 on higher education went so far as to state that Univer­ sities should promote regional languages and regional cultures. But this is very different from the position in Canada, where the Supreme Court has declared that freedom of expression includes the freedom to use any chosen language. In so doing, the Canadian court has limited the possi­ bility of the state imposing the use of a particular language for private or commercial activities.

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(iii) Religious or Social Minority Statutes A series of legal instruments promote minority differences in many areas. They range from specific administrative regulations concerning ritual slaughtering or kosher food to the obligations of public television channels to offer on Sunday mornings religious programmes presented by the different denominations and sects in France. Preferential treat­ ment is also granted to those with disabilities and to mothers of young children working in the civil service. In all such cases, these types of discrimination are of an administrative nature and based on objective and rational criteria - but stopping short of the recognition of cultural minorities.31

Conclusion For a long time now the French government has been confronted with a dilemma: how to respond to the aspirations of minorities, to different forms of regionalism, and to claims of difference - without jeopardizing the founding myths of French democracy: equality, uniformity and unity. The distrust shown by French law to the corps intermediaires (mediating organizations), together with the concept of formal equality as well as the permanent rejection of constitutional minority rights - the com­ bination of all these factors could make France appear a somewhat ‘totalitarian’ system, especially in comparison to most contemporary liberal Western systems. It would, however, be a mistake to underestimate the positive aspects of the French system. The attachment to formal equality remains a primary source of protection against discrimination. The priority given to individual rights over group rights and the absolute right to be treated as a person without regard to any group attachment appear a condition of freedom. Whereas, on the contrary, claims of difference could present risks.32 Such difference could become oppressive if it were essentially concerned with the identity of the person; if it were to make the individual disappear behind the group. If the nation-state collapses, there is a strong risk of a new form of oppression, as we can see in different parts of the world today. In a multicultural society, though, citizenship can be built on common rights which unite people and groups, rather than on particular rights which divide them. At the same time we can see that even in France the rejection of minority claims in a modern democratic society is becoming less and less acceptable.33 Even so, what we find in the French system are occa­ sional concessions to minorities (as in New Caledonia or Corsica) but no constitutional rights or principles are accorded. Such a situation is even less understandable today, as the risks of separation are minor. The

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divisions in modern society depend, in fact, more and more on educa­ tion, on one’s profession or on residence; and these characteristics limit the effects of ethnic and cultural differences. But collective rights as well as individual rights constitute a guarantee of pluralism in society. The pluralist and affirmative dimension of equality is undoubtedly necessary today both to correct certain social inequalities in France and elsewhere and to recognize the diversity of groups within a national community. The protection of minorities should ultimately be part both of the Rechtsstaat (the state governed by the rule of law, recognized as a model in Western countries) and of our conception of fundamental rights. And if French law cannot bring itself to do this, because of its dogma of national unity, European law - either within the European Union or within a lar­ ger Europe - will probably have to respond to the challenge.34 The former French president Francois Mitterrand once said: ‘the ultimate achievement of human progress probably does not mean the reconstitution of a Europe of ethnic clans or tribes’.35 Even so, our societies should at least strive to reconcile the need for a formal principle of individual equality with the protection of group identity and minority rights.

NOTES

1.

2.

3. 4.

5. 6.

7.

P. Meyer-Bisch, ‘Le Piege du droit des minorites’, Le Monde, 18 February 1993, p. 2; Dominique Rousseau, ‘Droits collectifs et droits de l’individu’, L’Evenement Europeen 16 (October 1991), pp. 51-7. Guy Le Moigne, Ulmmigration en France, Que sais-je no. 2341. 2nd edn. (PUF, Paris: 1991); Patrick Weil, La France etses etrangers: Vaventure d’une politique de Vimmigration, 19 3 8 -19 9 1 (Calmann-Levy, Paris: 1991); Serge Boulot and Danielle Boyzon-Fradet, Les Immigres et Vecole: une course d’obstacles. Lectures de chiffres, 19 7 3 -19 8 7 (Harmattan, Paris: 1988); Joseph Krulic, ‘LImmigration et l’identite de la France: mythes et realites’, Pouvoirs 47 (1988), pp. 31-43. Krulic discusses Muslim immigration in particular; but this whole issue o f Pouvoirs is devoted to immigration. Bruno de W itte, ‘Minorites nationales: reconnaissance et protection’, Pouvoirs 57 (1991), pp. 113-27. Roland Debbasch, Le Principe revolutionnaire d’unite et d’indivisibility de la Republique. Essai d’histoire politique (Presses Universitaires d’Aix-Marseille, Aix-en-Provence; Economica, Paris: 1988). S. Caporal, ‘L’Affirmation du principe d’egalite dans le droit public de la Revolution ffangaise, 17 8 9 -17 9 9 ’, thesis, Aix-en-Provence, 1991. Cf. Liliane Kerjan, UEgalite aux Etats-Unis: mythes et realites (Presses Universitaires de Nancy, Nancy: 1991). See also Olivier Jouanjan, Le Principe d’egalite devant la loi en droit allemand (Economica, Paris: 1992). Louis Favoreu and Loi'c Philip, Les Grandes Decisions du Conseil constitutionnel 6th edn. (Sirey, Paris: 1991), pp. 268-79: Decision no. 73-51

138

8.

9.

10.

11. 12.

13.

14.

15. 16. 17.

18.

MULTICULTURAL EUROPE AND AMERICA DC du 27 decembre 1973: ‘taxation d’office’. The rulings o f the Conseil constitutionnel are reported annually in Recueil des decisions du Conseil con­ stitutional. Article 6 o f the Declaration reads in part: ‘[La loi] doit etre la meme pour tous, soit qu’elle protege, soit qu’elle punisse. Tous les citoyens, etant egaux a ses yeux, sont egalement admissibles a toutes dignites, places et emplois publics, selon leur capacite et sans autre distinction que celle de leurs vertus et de leurs talents.’ Article 10 reads in full: ‘Nul ne doit etre inquiete pour ses opinions, meme religieuses, pourvu que leur manifes­ tation ne trouble pas l’ordre public etabli par la loi.’ Text adapted from Alexis Bertrand, La Declaration des droits de rhomme et du citoyen de 1789, Introduction a Penseignement civique (Delagrave, Paris: [1900]). Jacques Robert et al., T e Bicentenaire de la Revolution Frangaise’, Revue du Droit Public et de la Science Politique en France et a Petranger (no. 3, May-June 1989), pp. 607-903. The Preambule to the Constitution o f 27 October 1946 states in part: ‘le peuple ff angais proclame a nouveau que tout etre humain, sans distinction de race, de religion ni de croyance, possede des droits inalienables et sacres.’ Jacques Robert and Henri Oberdorff, Libertes fondamentales et droits de Phoimne (Montchrestien, Paris: 1989). See J. C. Maestre, ‘Commentaire de Particle 2 de la Constitution’, in Frangois Luchaire and Gerard Conac (eds), La Constitution de la Republique frangaise: analyses et commentaires. 2nd edn. (Economica, Paris: 1987). Article 2 reads in part: ‘La France est une republique indivisible, la'ique, democratique et sociale. Elle assure l’egalite devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.’ Article 3 reads in part: ‘Le suffrage ... est toujours universel, egal et secret.’ Daniele Loschak, ‘Les Minorites et le droit public frangais: du refus des differences a la gestion des differences’, in Alain Fenet and Gerard Soulier (eds), Les Minorites et leurs droits depuis 1789 (Harmattan, Paris: 1989), pp. 113ff. Decision no. 8 0-12 5 DC du 19 decembre 1980: ‘egalite des sexes en matiere penale’. The relevant paragraph o f the 1946 Preambule reads in full: ‘La loi garantit a la femme, dans tous les domaines, des droits egaux a ceux de l’homme.’ Decision no. 89-269 DC du 22 janvier 1990. For the United States, see esp. Graham vs. Richardson, 403 US 365 (1971). See e.g. Decision no. 8 2 -13 7 DC du 25 fevrier 1982. Charles Leben, ‘Le Conseil constitutionnel et le principe d’egalite devant la loi’, Revue du Droit Public et de la Science Politique en France et a Vetranger (no. 2, M arch-April 1982), pp. 295-353; Frangois Luchaire, ‘Un Janus Constitutionnel: L’egalite’, ibid. (no. 5, September-October 1986), pp. 1229-74; F. Miclo, ‘Le Principe d’egalite et la constitutionnalite des lois’, UActualite Juridique: Droit Adm inistratif (no. 3, 20 March 1982), pp. 115 -3 1. Daniele Lochak [sic], ‘Reflexions sur la notion de discrimination’, Droit Social (November 1987), pp. 778-90, esp. pp. 783-4.

CONSTITUTIONAL EQUALITY IN FRANCE 19.

20.

21.

22.

2 3.

24.

25.

26.

139

Dominique Rousseau, ‘La Constitutionnalite d’un statut propre a la Corse’, Revue des Sciences Administrdrives de la Mediten~anee occidentale (nos. 29-30, 1990), pp. 63 ff. Decision no. 9 1-2 9 0 DC du 9 mai 1991. Louis Favoreu, ‘La Decision “Statut de la Corse” du 9 mai 19 9 1’, Revue Frangaise de Droit Consti­ tu tional 6 (1991), pp. 305-16; Francois Luchaire, ‘Le Statut de la Collectivite Territoriale de Corse (Decision du Conseil constitutionnel en date du 9 mai 1991)’, Revue du Droit Public et de la Science Politique en France et a Petranger (no. 4, July-August 1991), pp. 943-79. The relevant sections of Article 2 o f the Constitution are cited in note 12 above. Article 27 o f the International Covenant on Civil and Political Rights (1966) reads: ‘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.’ A text of the Covenant can be conveniently found in Ian Brownlie (ed.), Basic Documents on Human Rights. 3rd edn. (Clarendon Press, Oxford: 1992), pp. 125-43. Article 2 o f the Spanish Constitution reads, in part: ‘La Constitucion ... reconoce y garantiza el derecho a la autonomia de las nacionalidades y regiones que ... integran [la Nation espanola] y la solidaridad entre todas ellas.’ The Spanish case is dicussed at length in the chapter by Pablo Lucas Murillo de la Cueva in this volume. For Canada, see e.g. Gerard-A. Beau­ doin, La Constitution du Canada: Institutions; Partage des Pouvoirs; Droits et Liberte (Wilson & Lafleur, Montreal: 1990), esp. Chap. 15; Bradford W . Morse (ed.), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Carleton University Press, Ottawa: 1985); Neil Nevitte and Allan Kornberg (eds), Minorities and the Canadian State (Mosaic Press, Oakville, ONT: 1985). hoi constitutionnelle no. 92-554 du 2 5 juin 1992: ‘La langue de la Republique est le frangais.’ Roland Debbasch, ‘La Reconnaissance constitutionnelle de la langue frangaise’, Revue Frangaise de Droit Constitutionnel 11 (1992), pp. 457-68. Article 3 o f the Spanish Constitution reads in full: ‘1) El Castellano es la lengua espanola oficial del Estado. Todos los espanolos tienen el deber de conocerla y el derecho a usarla. 2) Las demas lenguas espanolas seran tambien oficiales en las respectivas Comunidades Autonomas de acuerdo con sus Estatutos. 3) La riqueza de las distintas modalidades lingmsticas de Espana es un patrimonio cultural que sera objeto de especial respeto y protection.’ Brown vs. Board Education of Topeka, 347 US 483 (1954). See generally Michael Rosenfeld, Affirm ative Action and Justice: a Philosophical and Con­ stitutional Inquiry (Yale University Press, New Haven and London: 1991); Guy Scoffoni, ‘Le Jeu de la clause d’egalite et la remise en cause des dis­ criminations positives dans la jurisprudence de la Cour Supreme’, in ‘La Cour Supreme des Etats-Unis a la croisee des chemins’, Annuaire Inter­ national de Justice Constitutionnelle 6 (1990), pp. 603ff. Regents of the University of California vs. Bakke, 438 US 265 (1978); Richmond vs. Croson Co., 488 US 469 (1989).

140 27.

28.

29. 30.

31. 32. 33. 34. 35.

MULTICULTURAL EUROPE AND AMERICA Decision no. 8 2 -14 6 DC du 18 novembre 1982. Jean Boulois, ‘Les Problemes de constitutionnalite’, UActualite Juridique: Droit Adm inistratif (no. 2, 20 February 1983), pp. 79-80; Daniele Loschak, ‘Les Hommes politiques, “les sages” (?) ... et les femmes (a propos de la decision du Conseil constitutionnel du 18 novembre 1982)’, Droit Social (February 1983), pp. 13 1-7 . Thierry Michalon, ‘La Republique Frangaise: une federation qui s’ignore?’, Revue du Droit Public et de la Science Politique en France et a Vetranger (no. 3, M ay-June 1982), pp. 623-88. Decision no. 9 1-2 9 0 D C du 9 mai 1991 (cited at note 20 above). J.-F. Flauss, ‘D roit local Alsacien-Mosellan et Constitution’, Revue du Droit Public et de la Science Politique en France et a Vetranger (no. 6, November-December 1992), pp. 1625-85, esp. pp. 1629-40. Loschak, ‘Les minorites et le droit public ff angais’. On the limits o f multiculturalism and the dangers o f ‘separate identities’, see Arthur M. Schlesinger, Jr., Le Monde, 27 April 1993, p. 2. William Saffan, ‘La Societe pluriethnique et la democratic: La France et les Etats-Unis’, UEvenement Europeen 16 (October 1991), pp. 85-10 0 . H. Labayle, ‘Vers une citoyennete europeenne? Le point de vue du droit communautaire’, Les Petites Affiches 76 (24 June 1992) pp. 23ff. Le Monde, 20 September 1991, p. 5.

Am erica and Multiculturalism Robert Schmuhl

‘[T]he test of a first-rate intelligence’, remarked F. Scott Fitzgerald in The Crack-Up, ‘is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.’ 1For the United States today, the country’s national mind faces a continuing test of opposing ideas - and there is talk of war both in the air and on the air. Books carry such tides as Culture Wars: The Struggle to Define America; Loose Canons: Notes on the Culture Wars; Beyond the Culture Wars: How Teaching the Conflicts Can Revitalize American Education; and Battle o f the Books: The Curriculum Debate in America. Patrick Buchanan, a punch-in-the-nose pundit turned presidential candidate, thundered at the 1992 Republican National Convention: There is a religious war going on in this country for the soul of America. It is a cultural war as critical to the kind of nation we shall be as the Cold War itself, for this war is for the soul of America. Hype and hysteria aside, the ‘war’ currendy taking place is being waged on several fronts. To a considerable extent, however, the principal batde involves a fight over national self-definition. Not long ago, a cover of Time magazine asked, ‘Who Are W e?’ Answering that three-word ques­ tion is becoming more difficult, because in recent years so many new and different voices have been contributing their perspectives to what America means. As the comedian Jimmy Durante used to say: ‘Everybody’s getting into the act.’ W e’re discovering that multiple viewpoints pro­ duce more scope but less focus; the trees seem relatively clear, yet the forest is somewhat blurry. Arriving at an acceptable national self-definition is elusive. So, too, is finding a workable meaning for the adjective ‘multicultural’, which is used with greater frequency to describe contemporary America. The Oxford English Dictionary definition of multicultural is: ‘Of or pertaining to a society consisting of varied cultural groups.’ An uncertainty of meaning comes in where you put the emphasis: on the singular (‘a society’) or on the plural (‘varied cultural groups’). Jousting over pre­ cisely what to accentuate is at the heart of the so-called cultural war now being fought. The degree of stress also plays a critical role. To put the

141

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debate in the starkest, most polarizing terms: on the one side, there are those who acknowledge America’s pluralist nature but put a premium on unity; on the other side, there are those who subordinate the singular or unifying dimension to highlight the variety of experience contributing to American life. W ith the end of the Cold War and the United States now being called ‘the only superpower’, an outside observer might find it strange to be reading about war within America. But to understand the present requires a retreat to the recent past. The 1960s and 1970s unleashed forces that have intensified in the intervening years. The civil rights revolution and the women’s movement set in motion an awareness of, and concern for, specific groups that subsequently encompassed efforts at recognition from people on grounds not only of race and gender but ethnicity, class, religion, sexual orientation, disability and age. In the academy, programmes in African American studies, gender studies, eth­ nic studies and gay studies came into being and altered the established humanities curricula. In addition, affirmative action laws and other legislation attempted to right wrongs that had put members of specific groups at a disadvantage. Emphasizing particular groups in one way or another, especially because of race, ethnicity and gender, contributed to the ‘multicultural’ thinking occurring in education and the wider world of government and commerce. At the same time that this has been happening, the demo­ graphic composition of America has been dramatically changing. In the words of Ronald Takaki: ‘The new face of America has a darker hue.’ 2 To intrude some statistics: Resident population distribution for the United States by race and Hispanic origin, 1980 and 19903 1990

1980

Total population W hite Black American Indian, Eskimo or Aleut Asian or Pacific Islander Other race Hispanic origin

No.

%

No.

%

Change %

226,545,805 188,371,622 26,495,020

100.0 83.1 11.7

248,709,873 199,686,070 29,986,060

100.0 80.3 12.1

9.8 6.0 13.2

1,420,400

0.6

1,959,234

0.8

37.9

3,500,439 6,758,319 14,608,673

1.5 3.0 6.4

7,273,662 9,804,847 22,354,059

2.9 3.9 9.0

107.8 45.1 53.0

AMERICA AND MULTICULTURALISM

143

According to the 1990 census, fifty-one cities with populations above 100,000 now have minorities in the majority, including New York, Los Angeles, Chicago, Houston, Dallas, Washington, DC, Detroit, Cleve­ land, Atlanta, Miami, Baltimore and San Francisco.4 If demographic trends continue in this way, in 2050 the population of the United States will be made up thus:

Total population White Black Native American Asian Hispanic

Number

%

382,700,000 201,800,000 57,300,000 4,100,000 38,800,000 80,700,000

100.0 52.7 15.0 1.1 10.1 21.1

Along with the particularism of the group and the demographic colourizing, another phenomenon is contributing to what might be called the unsettling of America. For a number of reasons, large and formerly dominant institutions are in decline, and they are struggling to re-define themselves in this new environment. For example, in politics the Democratic and Republican political parties no longer possess the clout they once did, with particular ‘special’ or ‘single’ interest ‘political action committees’ now troublingly influential. In business, a full-service and country-wide merchandizing operation, such as Sears Roebuck, is being threatened by competition from more specialized retail compa­ nies. Throughout the media today, the word ‘mass’ is rarely used, because ‘narrowcasting’ is replacing ‘broadcasting’ and ‘niche’ publishing is increasingly the path to publication success. Indeed, according to author­ itative audience surveys, in three US cities (Los Angeles, Miami and San Antonio) Spanish-language radio stations lead their markets. In short, institutions that formerly helped to hold citizens together across a broad range of human experience no longer operate as unifying forces to the degree they once did. One wonders what institutions might come into being in the future as the connective tissue or cement of American society. Taking these circumstances together, does it come as a surprise that the word ‘diversity’ instead of the word ‘unity’ crops up so frequently today in conversation and in print? In a recent column, ‘In Tribal Solitude’, Russell Baker of The New York Times writes:

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Diversity: I am a European-American. I am a male European-American. I am a Depression-generation, male European-American. I am a hearing-impaired, Depression-generation, male EuropeanAmerican. I am a college-educated, hearing-impaired, Depression-generation, male European-American. Because I have not lost significant amounts of hair, I am not a bald, college-educated, hearing-impaired, Depression-generation, male European-American. Instead, I am a comb-carrying, college-educated, hearing-impaired, Depression-generation, male European-American. I am a heterosexual, comb-carrying, college-educated, hearingimpaired, Depression-generation, male European-American. Because I am married I am not a single, heterosexual, comb-carrying, college-educated, hearing-impaired, Depressiongeneration, male European-American, and therefore I do not go to singles bars. Baker goes on to introduce his wife with her particularities, and con­ cludes by saying: The Celtic-American of female gender to which I am married is a high school dropout and, therefore, not unwelcome, but made to feel peculiar in doubles bars for genderly enlightened, Celt-sensitive, poli­ tically unpredictable, comparatively financially disadvantaged, square, married, heterosexual, comb-carrying, college-educated, hearingimpaired, Depression-generation, male European-Americans. In short, we stay home a lot.5 Baker’s satire, complete with its absurdity, suggests the extremes to which some people will go in recognizing diversity. That characteristic - of carrying an effort to an extreme - is a principal reason why the word ‘multiculturalism’ has taken on derogatory or pejorative connotations. In the minds of many, emphasizing the variety and diversity of multi­ cultural America can go too far, as the broader yet more unifying traits held in common fade into the background or receive outright rejection. A note of caution, however: Baker’s profession and the media in gen­ eral revel in the abnormal and magnify difference. Amid all the recent coverage of disputes and divisions, the Latino National Political Survey, involving nearly 3,000 interviews, revealed that more than 90% of the respondents did not belong to any ethnic organization and did believe that all citizens of the United States should learn English. Achieving access to the American mainstream animated the respondents. Of course, the

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lesson of this and many other surveys is that leaders of causes - who make news - might not in actuality be representative of the views of the people they claim to represent. In The Disuniting o f America: Reflections on a Multicultural Society, Arthur M. Schlesinger, Jr. argues that the country is in danger of losing its national identity as a result of the actions of the most extreme propo­ nents for specific groups as opposed to the whole society. Criticizing the ‘ethnicity rage in general and Affocentricity in particular’, Schlesinger says: The recent apotheosis of ethnicity, black, brown, red, yellow, white, has revived the dismal prospect that in happy melting-pot days Americans thought the republic was moving safely beyond - that is, a society fragmented into ethnic groups. The cult of ethnicity exag­ gerates differences, intensifies resentments and antagonisms, drives ever deeper the awful wedges between races and nationalities. The endgame is self-pity and self-ghettoization.6 First appearing in the Whittle Communications series of books with advertising for ‘managers and policymakers’, The Disuniting o f America struck such a chord that it subsequently came out as a much-advertised trade offering by a New York publisher and became quite popular. The slim volume is particularly penetrating in its treatment of the conse­ quences of ‘the cult of ethnicity’ throughout education. W hat is being learned and how it is being presented shape the thinking of future generations, with history becoming a ‘weapon’ of division. Schlesinger’s book joins a growing bibliography of works by ‘liberal’ intellectuals (C. Vann Woodward, Alfred Kazin and Irving Howe, among others) who see how damaging cultural fragmentation can be. These thinkers and writers receive cheers of agreement from such conserva­ tives as William Bennett, Russell Kirk, Diane Ravitch and George W ill - not to mention Rush Limbaugh - which suggests how far certain aspects of multiculturalism have been carried. We have strange bed­ fellows in the ‘culture wars’ - and also what you might call the Age of Sensitivity. Within the space of a week, early in 1992, a newspaper reader learned that on one coast (in Connecticut) a community college would not be named for Mark Twain, because some students considered him a racist; while on the other coast (in Washington) the State’s gov­ ernor dropped the title ‘chief of staff’ for his top aide because Native Americans objected to what they perceived to be the insensitive use of the word ‘chief’. Any student of United States history knows that going to extremes is an American affliction, the consequence of carrying some of our free­ doms too far. Whether it be the slaughter of the buffalo in the West (and, of course, the brutal treatment of the Indians), the Temperance

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movement leading to Prohibition, or exploiting every revenue possibility in contemporary ‘amateur’ athletics, the impulse to excess (wretched or otherwise) is strong. In the current controversy over multiculturalism, the proponents and opponents who take their viewpoints to one or the other extreme get the most attention. That, alas, is how the media oper­ ate in defining news. But now that we know what exists on either end of the spectrum, it is critical to consider the debate anew. Examining the different perspectives - everything from the Afrocentric movement to the Eurocentric desire not to make any change in the canon of Western thought - one realizes that some reasoned limits are needed for those who view multiculturalism either positively or negatively. In addition to recognizing appropriate limits, it is also important to recall Fitzgerald’s remark about ‘the test of a first-rate intelligence’ and ‘two opposed ideas’. Ideas in opposition need not be irreconcilable. Whitman’s lines in ‘Song of M yself address his own and, even more, his country’s condition: Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.)7 Since the founding of the Republic, American citizens have engaged in a number of balancing acts: between liberty and equality; between rights and responsibilities; between prosperity and justice; and between diver­ sity and solidarity. The diversity-solidarity dilemma is, of course, different today from yesterday because of the growing concern for specific groups and because of the greater heterogeneity of the population. These circumstances should make plain the need to look beyond the ways of thinking and acting that took shape in the past, when the word ‘immigrant’ usually meant ‘European’ of one nationality or another. In his essay on the ‘Politics of Recognition’, the philosopher and political theorist Charles Taylor shows the connection between identity and recognition, noting at one point: misrecognition shows not just a lack of due respect. It can inflict a grievous wound, saddling its victims with a crippling self-hatred. Due recognition is not just a courtesy we owe people. It is a vital human need.8 Taylor, however, creates boundaries for this ‘politics of recognition’. He argues that, for some people, focusing on identity leads to ‘the politics of difference’, where ‘what we are asked to recognize is the unique identity of this individual or group, their distinctness from everyone else’.9 In many cases, ‘the politics of difference’ is closer to what you might call a politics of resentment. Grievances, sometimes generations old, influence thought and behaviour to the point where what happened yesterday dominates today and tomorrow. Being stuck in the past, nurs­

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ing grudges, accomplishes little in dealing with either the present or the future. Distinctness pushed too far produces separation - and the impos­ sibility of full participation in a multicultural society. Moving beyond the recognition of diversity to actually creating national unity in the new America will require reliance on some traditional Western values, such as openness, tolerance and equality, and what Jefferson in the Declaration of Independence referred to as ‘a decent respect’. America is different from most other countries in the world because of its heri­ tage as primarily a nation of immigrants. That fact is critical as we look around and assess the continuing influx of people from other places to the United States. Becoming rigidly set in particular ways or thinking in terms of a dominant group (or groups) have no place in a country whose demographic history reveals so many shifts in patterns and such variety. Moreover, in crafting a national self-definition meaningful for our times, it is important to acknowledge that prior efforts foundered as a result of excessive idealism. For instance, the assimilationist myth celebrated in the metaphor of the melting-pot no longer holds water, despite the protestations to the contrary of such dissimilar figures as Arthur Schlesinger, Ronald Reagan and H. Ross Perot. America, even metaphorically, is neither an enclosed nor discrete object - a ‘melting-pot’, a ‘mosaic’, a ‘tapestry’, a ‘kaleidoscope’, a ‘quilt’ or a ‘weaving machine’. Nor is America a gastronomical delicacy -a ‘tossed salad’, a ‘mulligan stew’, or even a ‘stir fry’.10 It is a continuing and dynamic process, much closer in sym­ bolic terms to a journey. Viewed collectively from the perspective of a journey, Americans are a heterogeneous people who go in one direction or another for a while, stop a spell, and from time to time get lost. It is a choice of roads taken or not taken, of detours and dead ends, of going together or going alone. This idea of America as a journey is reflected repeatedly in our literature and popular arts. You see it in Mark Twain’s Adventures o f Huckleberry Finn, Walt Whitman’s ‘Song of the Open Road’, Jack Kerouac’s On the Road, William Least Heat Moon’s Blue Highways and Andrei Codrescu’s recent book Road Scholar. In movies, the theme is expressed in films as diverse as Easy Rider, Lost in America and Thelma and Louise. On tele­ vision, you have Route 66 and the always-engaging journalism of Charles Kuralt, whose autobiography even carries the title, A Life on the Road. However, to avoid getting side-tracked by discussing America as a journey, it is important to point out that assimilation connotes sacri­ ficing one identity for another. While this phenomenon is possible for some people and their progeny, others either try and fail or (for any number of reasons) do not wish to make the attempt. Since the great immigration movements of the nineteenth century, there have been countless discussions of ‘hyphenated’ Americans. Irish-Americans, German-Americans, Polish-Americans, Italian-Americans, to name a few, took their place in the United States, but retained a concern

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for their ethnic or religio-ethnic heritage. Today the designations have become broader: European-American, African-American, AsianAmerican, Hispanic-American - but the hyphen remains. As with the definition of multicultural, where - or whether - you put your emphasis becomes important. Accepting the first element before the hyphen recognizes diversity; but moving beyond the hyphen acknowledges a more encompassing identity, with obligations of citizenship and some sense of national unity. However, achieving the right balance of the hyphen has never been, and will never be, easy. Over a century ago, Herman Melville wrote: We are not a narrow tribe ... No: our blood is as the flood of the Amazon, made up of a thousand noble currents all pouring into one. We are not a nation, so much as a world ...n W ith ‘a world’ within one nation now more than before and assim­ ilation an anachronistic ideal in the eyes of many, what is the most appropriate and effective way of dealing with the dual concerns of diver­ sity and unity? Michael Walzer suggests that the anything-but-simple hyphen can function ‘more like a plus sign’ when ethnicity and nation­ ality come together, noting further that ‘in the case of hyphenated Americans, it doesn’t matter whether the first or the second name is dominant.’ 12 But diversity, by its nature, implies separateness of one kind or another. The degree to which diversity is dominant does sorely matter. Whatever exists to hold the disparate elements together should not be subordinate. There is cruel irony in the fact that, at a time when traditional American values of democracy, egalitarianism and ffee-market capital­ ism are finding greater acceptance around the world, the United States seems so unsettled in coming to an agreement about what common qualities or principles connect us as citizens of one country. The ‘meta­ physic of promise’ that Max Lerner celebrated over thirty years ago in America as a Civilization might retain its magnetic power for newlyarrived immigrants, but the reality of contemporary conditions - urban decay, random violence, chaotic schools, conspicuous homelessness, plant closings, to name a few - temper the myth of an American dream for many others. There are, to be sure, intractable problems and there is much debate over the nation’s decline. In the autumn of 1992 the business magazine Forbes published a special issue, ‘W hy we feel so bad’, and Gore Vidal brought out his book, The Decline and Fall o f the American Empire. Yet, despite all this, to avoid making the effort of finding and fostering the connections that unite all Americans is to make citizenship meaningless. Since the country’s first days, you find in many Americans a rewarding, indeed clarifying, case of double vision. Simultaneously, they

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look to the past for the guidance that comes from basic, foundational ideals - freedom, equality, democracy, justice, self-determination - and they scan the horizon to discern how the future might see the realization of those ideals in their own lives. There was a recognition of being in the process of becoming. In recent years there has been less of this double vision for two notable reasons. The greater absorption in ethnicity and race has resulted in more focus on the particularized past, including a concern for victimization; while the optimistic hope of a boundless future has collided with blindingly real circumstances and problems.13 How long this condition will exist - especially the decline of hope - is anyone’s guess. However, for many it creates a barrier preventing full participation in a common enterprise for the common good. Inspira­ tional as he might have been as a president, Ronald Reagan seemed uninterested in promoting programmes to address domestic - and dividing - problems. George Bush shared the same policy indifference while lacking the inspiring rhetoric. Indeed, according to the Rep­ ublican analyst Kevin Phillips, both Reagan and Bush engaged in ‘the politics of rich and poor’, widening the distance between the haves and the have-nots.14 It is probably not coincidental that the controversy over multiculturalism crystallized during the Reagan-Bush years. Ideals, such as egalitarianism and self-determination, were continually being tested as the many learned about the few who were particularly successful. One can legitimately ask: is it any wonder that some people seek the security which comes with separation? If certain national ideals seem so remote as to be unreal, freedom permits the taking of other roads. However, the next question, of course, becomes: how far does a new road veer from the main one? The American journey can accommodate a number of parallel paths, but it is difficult to imagine routes leading anywhere that lose complete sight of the most heavily travelled way. In Democracy in America, Tocqueville rhapsodizes about millions of people ‘all marching together toward the same point on the horizon; their languages, reli­ gions, and mores are different, but they have one common aim’.15 To be sure, there is always the fear that comes from a tyrannical majority, which values conformity at the expense of diversity. However, the ‘one common aim’ is the point to stress. W hat principles or beliefs today constitute the civil religion that Tocqueville identified? Just where is this journey that is America taking us as the horizon of a new century approaches? It is increasingly difficult to answer such knotty questions. Achieving the right balance for the diverse many in one multicultural society is a test facing all Americans. To fail is to risk polarization, fragmentation, even tribalization. The violent extremes of ethnic, reli­ gious and racial animosities now violate our sensibilities on a daily basis. One only has to look at what has happened within what was formerly known as Yugoslavia to behold the newest definition of Balkanization.

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The United States, of course, has endured its own bloody conflicts, including the rampage of killing, burning and looting that followed the acquittal in the spring of 1992 of White Los Angeles police officers in the beating of a Black man, Rodney King. The bedlam - variously called a riot, a disturbance or a disorder - involved Whites, African Americans, Asian Americans and Hispanic Americans. In the aftermath of the violence and in a trembling voice, King made an emotional statement that contained a question: ‘Can we all get along?’ At once both strik­ ingly simple and profoundly complicated, King’s question might serve to concentrate the national mind on the opposing ideas of diversity and unity. But this cannot be an argument over absolutes. The success or failure of functioning with the co-existence of diversity and unity will largely determine the future of America.

NOTES

*The author gratefully acknowledges the support o f the Institute for Schol­ arship in the Liberal Arts o f the University o f Notre Dame in the completion of this paper. 1. 2. 3. 4.

5. 6. 7. 8.

9. 10.

F. Scott Fitzgerald, The Crack-Up, ed. Edmund W ilson (New Directions Books, New York: 1945), p. 69. Ronald Takaki (ed.), From Different Shores: Perspectives on Race and Ethnicity in America (Oxford University Press, New York: 1987), p. 5. Figures derived from George Brown Tindall and Daniel E. Shi, America: a N arrative History. 3rd edn. (W. W. Norton, New York: 1993), p. 1000. US Bureau o f the Census, quoted in USA TODAY, 4 December 1992, Sec. A, p. 8. See US Bureau o f the Census, Population Projections o f the United States by Age, Sex, Race, and Hispanic Origin: 1992 to 2050 (Govern­ ment Printing Office, Washington, DC: 1992). Russell Baker, ‘In Tribal Solitude’, New York Times, 26 January 1993, Sec. A, P- 23. Arthur M. Schlesinger, Jr., The Disuniting o f America: Reflections on a M ulticultural Society (W. W. Norton, New York: 1992), p. 102. W alt Whitman, Complete Poetry and Selected Prose, ed. James E. Miller, Jr. (Houghton Mifflin, Boston: 1959), p. 68. See Charles Taylor, ‘The Politics o f Recognition’, in Amy Gutmann (ed.), Multiculturalism and ‘The Politics of Recognition ’: an Essay by Charles Taylor, with Commentary by Amy Gutmann, Steven C. Rockefeller, Michael W alzer and Susan W o lf (Princeton University Press, Princeton: 1992), pp. 25-73, esp. p. 26. Ibid., p. 38. For an illuminating analysis o f ‘the melting pot’ and other terms for America, see Philip Gleason, Speaking o f Diversity: Language and Ethnicity in Twentieth-Century America (Johns Hopkins University Press, Baltimore: 1992), esp. pp. 3-46.

. AMERICA AND MULTICULTURALISM 11.

12.

13.

14.

15.

151

Herman Melville, Redbum, ed. Harrison Hayford, Hershel Parker and G. Thomas Tanselle (Northwestern University Press and The Newberry Library, Evanston and Chicago: 1969), p. 169. Michael Walzer, ‘W hat Does It Mean to Be an “American”?’, in David A. Hollinger and Charles Capper (eds), The American Intellectual Tradition. 2nd edn. (Oxford University Press, New York: 1993), II, pp. 397-8. See David Rieff, ‘Victims, All?’, in Susan Sontag and Robert Atwan (eds), The Best American Essays 1992 (Ticknor & Fields, New York: 1992), pp. 253-67. See Kevin Phillips, The Politics o f Rich and Poor: Wealth and the American Electorate in the Reagan Aftermath (Random House, New York: 1990); idem, Boiling Point: Democrats, Republicans, and the Decline of Middle-Class Prosperity (Random House, New York: 1993). Alexis de Tocqueville, Democracy in America, 2 vols, trans. from the French by George Lawrence, ed. J. P. Mayer and Max Lerner (Harper & Row, New York: 1966), I, p. 347.

Rights in a Pluralist State: The Case of Spain Pablo Lucas Murillo de la Cueva

Spain: A Multicultural Society When we talk about citizenship and rights in multicultural societies, Spain should be brought into the discussion. Yet though Spain is in reality and quite obviously a multicultural society, once we examine Spain’s social pluralism and look for juridical and political examples of this pluralism, then what at first seemed obvious now becomes problem­ atical. A society that today is perceived as full of dynamism and vitality - and also full of tensions - has crystallized in a relatively brief period of time, and social and political changes of great importance have taken place within a few short years, albeit after an extended incubation period. Constitutional and legal solutions to existing problems have not been reached easily, and while in general the solutions have proved effective, they have not eliminated all the difficulties. A final point: the whole spectrum of relations between the Spanish state and Spanish society sur­ prises many Spaniards born before 1960. And the same is even more the case for many foreigners. Many foreigners have only a limited, stereo­ typical image of Spain: a mix of some knowledge of the language (i.e. Castilian), Catholicism, bull-fights, some elements of Andalusian folklore, plus decorative images of good weather, low prices, disorganization and nothing ever being on time. And as a backdrop to this collage, there is a people with proud and passionate tempers, liable to break out in fero­ cious violence at any moment. These stereotypes of Spain held by most foreign observers were largely the result of two centuries of isolation, culminating in the forty years of dictatorship under Generalisimo Francisco Franco, a period in which Europe and the world as a whole experienced rapid change.1Cen­ tralization, the emphasis on the common elements of Spanish culture (mainly the Castilian culture, which had prevailed since the beginning of the eighteenth century) and, above all, Francoism’s extreme hostility to any sort of opposition - all conspired to make it difficult, even impossible, for contemporary Spaniards to appreciate the reality of their own country, a reality which had been obvious to their ancestors. Once the juridical and political obstacles that limited or oppressed the various expressions of pluralism had been removed, a complete

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society could arise, one in which integrating factors can come to the fore in an atmosphere of tolerance. Even so, there are at the moment very powerful and diverse forces working to break up the present framework of co-existence. Obviously, in the space available it is impossible to deal with all the relevant issues, and even those issues which can be addressed can only be touched upon briefly. For these reasons, I shall use as a focus the impact of the Constitution of 1978 and, in particular, the laws that have been framed within it.

The Constitution of 1978 The preamble to the Constitution of 1978 states that one of its goals is ‘to protect all Spaniards and the peoples of Spain in the exercise of [their] human rights, their cultures and traditions, and their languages and institutions’.2 It is evident, therefore, that the Spanish Constitution of 1978 is one of those constitutions which do not confine themselves to the status and condition of isolated individuals, but are equally con­ cerned with the position of the individual within the social groupings in which an individual’s personality is developed. In this respect, the Spanish Constitution is very close to the Italian Constitution of 1947, parts of which have been almost transplanted into Spanish fundamental law.3 But the drafters of the 1978 Constitution were not content simply to record the differences in population, culture, traditions, languages and institutions that characterize Spain (as previous democratic experiments in constitution-making had done in 1873 and 1931); rather, they attempted to establish ways in which these differences could find expression.4 Con­ sequently, Article 1, Sec. 1 of the 1978 Constitution solemnly places political pluralism at the top of the juridical order, and from that funda­ mental principle the basic diversity of Spanish society is established as one of the pillars of the political and constitutional system, with recog­ nition and guarantees given so that this diversity can be expressed in the most important areas of life. In translation, Article 1, Sec. 1 reads: ‘Spain is hereby established as a social and democratic state, subject to the rule of law, and advocating as higher values of its legal order, liberty, justice, equality and political pluralism.’ 5 The pluralism involved is not just the pluralism typical of any demo­ cratic system of government. Under such a general heading would come political pluralism, which in its turn is the basis of freedom of ideas, of religion, of information, of expression, of association and of political par­ ticipation. There are also provisions governing pluralism in those areas which are particularly characteristic of Spanish society. The three areas that I refer to and the ones I shall discuss are religion, language and culture, and the role of the Autonomous Communities.6

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Pluralisms in Spain under the Constitution and its Laws 1. Religious Pluralism At first sight we are faced with a paradox; for the recognition and guar­ antee of religious pluralism should be inherent in any form of political democracy. But the reality is that Spain has traditionally been a confes­ sional state. Since the fifteenth century the monarch has borne the title of ‘Catholic Majesty’. The expulsion of the Jews in 1492 and the role of the Inquisition until its suppression in the nineteenth century together prompted a literature (mainly foreign) that magnified the excesses of Spanish history and helped to create an image of Spanish intolerance. Later on, even the liberal constitutions of the nineteenth century all assumed that the state should support the Catholic Church and clergy financially, although this was not always official policy. The dictatorship carried this association of state and Church to such an extreme extent that it has been referred to as a regime of ‘national-Catholicism’ led by General Franco.7 Under Articles 14 and 16 of the 1978 Constitution, the Church is separated formally from the state. The key clause is Article 16, Sec. 3 [a]: ‘There shall be no state religion’ (Ninguna confesion tendra caracter estatal). Moreover, freedom of worship according to one’s own beliefs and practices is guaranteed and discrimination on the basis of religion is prohibited. But the authorities are obliged to respect people’s religious beliefs and practices, while maintaining co-operative relations with the Catholic Church and other denominations and faiths. As a result, the gov­ ernment signed an early agreement with the Catholic Church in January 1979. More recently, the government has signed comparable agreements with Protestant evangelicals (some 50,000 in total); with the Federation of Jewish Communities in Spain; and with the Islamic Commission of Spain.8 In these last two examples the government has taken account of the veiy deep roots of these faiths in Spain. In the particular case of Judaism, its millennial aspects have been recognized; while the decisive contribution of Islam to the formation of the Spanish identity has been acknowledged. While one cannot say that today’s Spain has gone back to the world of the three cultures (Christian, Muslim, Jewish) that co-existed peace­ fully and in mutual tolerance for so long either side of the ChristianMuslim border in the medieval Spanish kingdoms, one can certainly say that contemporary Spain is not a country of dogmatic and intransigent Catholics. The basic evidence for this judgement comes from the elec­ tion of 1977 and the failure of the confessional parties. The Christian Democrats (organized as the Team of the Christian Democrats in the Spanish State: Equipo de la Democracia Cristiana en el Estado Espanol)

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failed to win any seats then; and the conclusion was drawn that Christian Democracy had no special place in contemporary Spanish society. Eighteen years later that earlier judgement still seems valid when we survey the history of the organized Christian Right. In fact, all the political parties which have tried to obtain the voters’ support by presenting themselves as representatives of Christian Demo­ cracy have disappeared. This was obviously true of the Equipo de la Democracia Cristiana. Another Catholic political group, the Popular Democratic Party {Partido Democrata Popular), made it to the second and third Cortes of 1982-6 and 1986-9; but that was possible only because the Popular Alliance (Alianza Popular), a conservative party and the main force of the parliamentary opposition since 1982, had decided to form an electoral coalition, the Coalition Popular. Thus the PDP survived under the conservative umbrella. Time showed, however, that its sup­ port was minimal; and once the ties with the conservatives, now named the Popular Party ( Partido Popular), were broken, the PDP faded from Spanish political life. The political parties belonging to the international Christian Democratic movement that maintain a significant political presence today are the Basque Nationalist Party (Partido Nacionalista Vasco) and the Democratic Union of Catalonia (Unio Democrdtica de Catalunya). But neither of these two groups bases its political strength on its Catholic ideology but rather on its nationalistic message. More­ over, in the PNV there are definite social-democratic tendencies; while the UDC occupies such a minor position that it has succeeded only in coalition with the Democratic Convergence of Catalonia (Convergencia Democrdtica de Catalunya), a moderate nationalistic Catalonian party, which has been the governing force since 1980 in the Autonomous Commu­ nity of Catalonia. (The nature of these communities is described below.) The fact that current Spanish society is basically secular and non­ clerical is not shown only by political attitudes. The secularization of social practices is very clear. The legalization of divorce was re-introduced in 1981, having first been legalized under the Second Republic in 1931 and then prohibited under Franco’s regime in 1939. Article 32, Sec. 2 of the Constitution required Parliament (Cortes Generates) to introduce legisla­ tion governing separation and divorce; and the first Cortes enacted the relevant law in 1981.9 In 1985 legislation was passed to de-criminalize abortion in certain circumstances, notably to protect the life of the mother, when the pregnancy is the result of rape, or when the foetus is congenitally damaged, physically or mentally. This liberalization of the Criminal Code was effected with the prior approval of the Constitu­ tional Court ( Tribunal Constitutional).10 Though the Union of the Democratic Centre ( Union de Centro Democrdtico), which directed Spanish politics from 1977-82 under the leadership of Adolfo Suarez, was fearful of the consequences of legitimizing divorce, no significant problems have arisen. Abortion, though, is something

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else. There was in 1985 - and there still is even now - powerful opposition to abortion from the Catholic Church and sympathetic organizations. But the fact is that in 1982 the Socialist Party (Panido Socialista Obrero Espanol: PSOE), under Felipe Gonzalez Marquez, won a huge majority on a programme that included de-criminalizing abortion, and the Socialists were returned in 1986 and 1989 after the relevant legislation had been passed.111 In 1993 the issue came up again during the elections, with the suggestion that the law might be relaxed to include considera­ tion of the mother’s social situation. While the Socialists did not do well in the 1993 elections, losing their absolute majority in the Congress of Deputies, the Popular Party, which won almost as many seats as the PSOE (141:159), has announced that it has no intention of changing the basic 1985 law.12 Another indication of the secularization of Spanish society comes from the changes introduced in 1988 relating to the financing of the Catholic Church. Since that date it has been possible for taxpayers to choose between assigning some 0.5% of their tax contribution to the Church or, alternatively, to authorize the government to distribute the money to charities and good causes (the second option operates by default). In the event, while there has been a steady increase in those choosing to finance the Church in this way, the maximum proportion has not exceeded 41% from an initial figure of 35%.13 These indications drawn from changes over divorce, abortion and Church financing are, I would argue, of great significance - more so than the decline in Church attendance, which is a trend in Spain and other (mainly) Catholic countries. The evidence is overwhelming and con­ cerns very important areas of life, and what we have here are long-term patterns. The implication, indeed, is that Catholicism has not been so widespread or deeply held as official policy would have had us believe.

2. Linguistic and Cultural Pluralism With only one common language and culture, the Spanish Constitution protects and promotes cultural and linguistic diversity. The key Article 3 of the Constitution reads (in translation): 1. Castilian is the official Spanish language of the State. All Spaniards have the duty to know it and the right to use it. 2. The other Spanish languages shall also be official in the respective Autonomous Communities in accordance with their Statutes. 3. The wealth of the different language variations of Spain is a cultural heritage which shall be the object of special respect and protection.14 Now, while it is true and, indeed, obvious from these words that Casti­ lian is the state’s official language and that all Spaniards have the duty to

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know it and the right to use it, it is equally true and obvious that the cultural traditions that have come from the heart of Castile are far more extensive than any other produced in Spain. But alongside Castilian there do exist other languages, true Spanish languages, not dialects, that have official recognition in the Autonomous Communities where they are spoken. There the citizens have the right to use them in their communications with the political institutions at a local and autono­ mous level as well as with the national state bodies located in their areas. Furthermore, the public authorities in the Autonomous Communities must issue official documents both in Castilian and in the local language. These languages are also recognized along with (Castilian) Spanish and are protected under Article 3 of the Constitution. Some of them are as old as Castilian; some, notably Basque, are even older. In these a rich literature has been written and a specific culture has been created.15 It may be useful to report briefly at this point on just some aspects of the linguistic variety and richness of Spain. Among the seventeen Auto­ nomous Communities, the following have their own official language. Catalonia (Catalunya), with over six million inhabitants, has the Catalan language. The Basque Country (Euskadi), with over two million inhabi­ tants, has the Basque language or Euskera. Galicia (Galiza), with two and three-quarter million inhabitants, has the Galician language. The com­ munity of Valencia, with almost four million inhabitants, has the Valencian language, regarded as a dialect of Catalan. On the Balearic Islands (Baleares), with three-quarters of a million inhabitants, the Majorcan language is spoken, another dialect of Catalan. Euskera is also spoken in parts of Navarra (with a population of half a million). In Asturias and in Aragon (with just over one million inhabitants in each) linguistic peculiarities possibly derived from Castilian have survived in the form of the Bable and Fabla dialects respectively, though neither is practically important.16 In Catalonia and Galicia, the use of the local and the national lan­ guage is widespread. It is therefore possible to speak of total bilingualism carried on in the family, at the work-place, at all levels of education, and in the dealings of the public authorities located in these communities. The same is also true of the community of Valencia and on the Balearic Islands. In the Basque Country things are different, however. Euskera is an ancient language without any relation to the Romance languages, and its use has fallen over the centuries, especially under the impact of increased urbanization.17 However, thanks to the efforts of the nation­ alist parties, who hold a majority of seats in the local Community Parliament and who have made the revitalization of the langu age one of their political goals through important programmes of linguistic nor­ malization and the use of remarkable economic resources, the Basque government is able to announce that 26.7% of the population in that Autonomous Community speak Basque regularly. (It may be noted, in passing, that the distribution of the Basque-speaking population is not

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uniform in the three territories that form Euskadi. In Alava (population: 272,447) the percentage of bilingual people in 1991 was only 9.6%; in Vizcaya (Biscay), with a population of 1,155,106, it was 18.8%; and in Guipuzcoa (population: 676,488) it was 47.1% .)18 The problem is not, then, the conservation of Spanish languages other than Castilian. The Constitution and the Constitutional Court protect them sufficiently. The Constitutional Court has interpreted broadly the right to use them, at times even outside the corresponding community. This is especially so for Basque-speakers. Though Article 3 of the Con­ stitution makes it a duty to know Castilian, those accused in criminal cases have been allowed to use interpreters, because those who normally use Basque do not know Castilian. The court has also upheld the poli­ cies of Autonomous Communities designed to rejuvenate their languages and make their use common.19 No: the complications arise when the policy of normalizing the use of Catalan, Basque and Galician (for exam­ ple) conflicts with the right of other Spaniards to use Castilian. The juridical criteria are clear and precise in this area, so that in principle practical solutions can be reached. But because defence of the local language has become one of the principal banners of the nationalist political forces in Catalonia and the Basque Country, the parties have sometimes served their own self-interests and handled this issue in a way that ignores the real areas of agreement.

3. A Plural Nation The linguistic and cultural diversity described above go together with a more complex phenomenon whose legal regulation has created many doubts and whose treatment in practice has been shown to be even more complicated. I refer to the so-called ‘national question’ in Spain, which was created at the end of the nineteenth century by Catalan and Basque nationalists.20 It is true that their resources and their programmes are very different in important respects. Moreover, while their actual position on independence is unclear, none of the parties (despite their worthy beginnings and democratic basis) puts into its programme ways of achieving this goal in the foreseeable future. Thus, these irredentist appeals are reminiscent of the aspirations to a classless society held by the Socialist and Communist parties. Now while the break-up of the state framework does not seem to be a practical possibility, the demands for self-government increasingly and more forcefully expressed not only by the nationalists but daily by the overwhelming majority of Catalans and Basques (and, to a lesser degree, by citizens in other parts of Spain) make it necessary to frame some sort of territorial decentralization of legislative and executive power. It was for such reasons as these that democracy and territorial autonomy have

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become equivalent terms, and the Constitution had to accommodate both.21 W hat remains to be shown is how this inseparable relationship contained the germ of a new idea of Spain and the Spanish nation. The Spanish Constitution (Article 2) conceives of Spain as an entity composed o f‘nationalities and regions’ (nacionalidades y regiones). The unity of Spain is indissoluble (la indisoluble unidad) and it is ‘the com­ mon and indivisible homeland of all Spaniards’ (patria comun e indivisible de todos los espanoles). However, the nationalities and regions that together form Spain have the constitutionally-guaranteed right to selfgovernment (‘La Constitution ... reconoce y garantiza el derecho a la autonomia de las nacionalidades y regiones ...’). More precisely, they are given the means to achieve this democratically through the so-called Autonomous Communities (Comunidades Autonomas), whose compe­ tence and institutions are also guaranteed under the Constitution. These Autonomous Communities are territorially based with their own separate charter of autonomy (estatuto de autonomia) approved by the national Parliament {Cortes Generates). The charter, which is justiciable under the Constitutional Court, cannot be amended without the com­ mon agreement of both the individual Comunidad Autonoma and the Cortes. The Autonomous Communities are democratically governed, with a Legislative Assembly (Asamblea Legislativa) elected through uni­ versal suffrage and a Council of Ministers {Consejo de Gobiemo), which directs the executive and administrative functions of the community. The Council has a President (Presidente), and both are accountable to the Assembly. The community government is not subordinate to the national government, but both are subject to the ultimate authority of the Constitutional Court.22 In 1983, the process of decentralization was completed by creating the last of the seventeen communities that cover Spanish territory - communities that exercise very real political power. According to the latest available figures, the communities account for almost a quarter of total public expenditure, with central and local government (at the provincial and municipal level) dividing the rest roughly 4:1.23 But what exactly are these nationalities and regions? The Constitu­ tion does not give a precise answer to this question; but there are some clues in Article 143, which refers to communities with shared historical, cultural and economic characteristics.24 For their part, most of the Cata­ lans and Basques claim to form separate Catalan and Basque nations; and a minority of the Galicians think likewise. Among all three, there are those who view their current relationship to Madrid (as representing the Spanish people as a whole) to be satisfactory and there are those who disagree. Generally speaking, the political and intellectual leaders who articulate theoretical positions insist that they belong to authentic nations; but they do so more in a negative way, in opposition to a common Spanish nationality, than positively because of their own

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distinctiveness. Curiously enough, such proponents look favourably upon European integration, seeing it as bringing about the disappearance of the state which is currently oppressing them rather than, on the contrary, fearing any impositions from Brussels. It is impossible to resolve this complex debate here; and my concern has been simply to put forward the two extreme positions. But three points can be emphasized. First, national unity has been sanctioned under the Constitution. Second, the vigour of the state institutions is obvious. Third, it has been the democratic will, expressed both through the Cortes and the various representative groups of citizens voting on the creation of the Autonomous Communities, which has manifested itself in the approval of the corresponding charters of autonomy which have iden­ tified the nationalities and regions of the individual peoples. As a result, the Basques, the Catalans, the Andalusians, the Valencians and (to a degree) the inhabitants of the Balearic Islands - all have identified themselves as members of a nationality . In such areas as Cantabria, Rioja, Murcia, Castilla-La Mancha, Extremadura and Islas Canarias, the inhabitants have gone on record as saying that they constitute distinc­ tive regions. Meanwhile, both other areas and some groups we have already mentioned - the Asturians, for example, people from Aragon and Madrid, from Castilla y Leon and Castilla-La Mancha, the people of Navarra - they have not opted for a specific separate identity as such.25 Allowing the people concerned to decide this question is not a bad solution. The feelings and emotions involved are subjective and not easily turned into rational, objective channels. The method used to settle the issue and determine people’s feelings has not only solved a problem in constitutional interpretation but also brought about a political balance. The result has been that theoreticians and proponents of nationalism on both sides have gained something, but in such a way that a grave political crisis has been averted by a solution that initially seemed to be remote from such questions as the distribution of powers and responsibilities between the central government and the Autono­ mous Communities. Certainly, there are still important questions remaining at the prac­ tical as well as the theoretical level, such as the final, exact relationship between the central and local authorities. Most of all, the centrifugal forces have not been entirely outweighed by the centripetal forces, though it does seem that politicians and police have together defeated separatist terrorism. As in any complex society, reaching an equilibrium is very difficult. But I do think that one can say that the conditions now exist in Spain for achieving this balance. There is a broad consensus in support of a) a social-democratic state, subject to the rule of law; b) a constitutional monarchy; and c) the territorial division of power under the terms of the 1978 Constitution.

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4. Citizenship and Rights Under the Constitution, all Spaniards are guaranteed the same rights and duties throughout the territory of the state. The terms are spelled out in Title I: ‘Concerning Fundamental Rights and Duties’. This is the longest section of the Constitution, with dozens of separate Articles. But the most significant is Article 14, which reads in full: ‘Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.’ W hile it is undeniable that citizens of the different Autonomous Communities enjoy different conditions in practice, as a result of the different policies and programmes undertaken by the separate Legislative Assemblies, so far as the legal position of citizens is concerned, no one may be treated in a more or less privileged manner than anyone else.26 Article 13 of the Constitution provides the framework within which citizens of non-European Union countries enjoy rights conferred by international treaties and domestic law. So far as fundamental rights are concerned, the Cortes in 1985 passed legislation to place Spanish citi­ zens and foreigners on an equal footing before the law.27 At the same time, exceptions were made in the areas of political participation and access to civil service employment. It must be pointed out, however, that some of the more restrictive aspects of this legislation have been declared unconstitutional.28 For example, on appeal from the Defender of the People (Defensor del Pueblo: the Spanish Ombudsman), the Con­ stitutional Court ruled unconstitutional the limitations on the right of foreigners to assemble and demonstrate. Similarly, governmental powers to suspend the activities of foreigners were also invalidated; and the right of foreigners to due process if subject to an expulsion order was also upheld. Thanks to the rulings of the Constitutional Court and to the actions of the judiciary and the Ombudsman, the judicial protection of foreigners in Spain has significantly increased, particularly for the most disadvantaged - even when they have entered Spain illegally. The law, even judicial remedies, are one thing; the reality can be different. In the latter case we see outbreaks of xenophobia and racism directed against the growing number of immigrants from Africa as well as Latin America and Eastern Europe. (Just over a year ago the official figure for foreign residents was given as 555,000, half of whom were from Africa. But the numbers of illegal immigrants and quasi-legal immigrants put the overall figure higher.) There are also the traditional attitudes of discrimination and margin­ alization against so-called gypsy groups ( Gitanos: the Roma or Romani people) in some of the big urban centres and in many small rural areas as well.29 Yet it must be said, however, that the Roma constitute only a

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small number of people and they live in scattered communities. Both these factors help to reduce the level of tension between them and the larger society. This does not mean that the conflicts are invisible, let alone non-existent, but it does make them less salient. The majority of Spaniards take the marginal presence of los Gitanos for granted, as people who move within a narrow and limited space. In recent years, however, great progress has taken place in providing for their accom­ modation in the big cities, thanks to municipal policies of building public housing and stopping unauthorized occupation of urban spaces. The Roma are also becoming more involved with the wider economy. Universal free schooling for people up to eighteen years old and pro­ grammes designed to aid marginal groups have also contributed to the solution of a problem which, precisely because of its antiquity, many Spaniards do not realize exists. To return to the question of immigration: Spain has traditionally been a country which has suffered from emigration. What is also unusual is the scale of immigration, and this perhaps explains the demonstra­ tions, aggressive acts and demagogic rhetoric directed - absolutely unjustifiably - at immigrants. But the effects of the economic crisis and the high rate of unemployment that we have been experiencing for some years now cannot be ignored. For these reasons, we can presume that, in more favourable economic and social conditions, the xenophobia levelled against the job-seeking immigrants would not have occurred. At all events, it does seem that the racism which is now, somewhat unusually, affecting Spain - though on a much less intense scale than in other European countries - is a sign of the social insecurity bred by economic difficulties more than anything else. At the same time, with Spain possessing one of the European Union’s external borders close to Africa, new problems have arisen, especially with Spain’s adhesion in June 1991 to the Schengen Accord of 1985 on the free movement of people within the EU. As a result, both the policy and implementation of asylum rights have necessarily changed in the efforts to stem the influx of refugees both from Eastern Europe and Africa - changes which will inevitably have repercussions for the rights of those foreigners trying to enter from Latin America. It is reasonable to hope that energetic action by official bodies on behalf of the victims of aggression and discrimination, together with the force of ordinary people displaying social solidarity, will combine to stop the outbreaks of xenophobia and victimization. At the same time, we must hope that the economic crisis will be brought under control, for this will remove many of the causes which have led to the targeting of foreigners who are themselves in straitened circumstances. Finally, the rights accorded under the democratic Spanish Constitution have to be implemented to counter the moves both to restrict the availability of asylum and to tighten the rules governing it.

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Conclusion It could be argued that the picture presented here has been an extremely optimistic description of the current situation in Spain. If so, then the reason has to be sought by reflecting on events since 1975. Then people did not know what would happen in Spain. Now they can see what has happened. And the difference between the two - the initial foreboding replaced by the sense of the distance that has been covered and the possibilities that have opened up - all this has given people an unquenchable optimism. This experience, perhaps, has given us a sense and an appreciation of the progress made - not to become complacent, of course; but rather to be aware that those who find fault with the lack of real substance still cannot hide the achievements even as we seek to move forward. The fact is that what we have here today in Spain, namely a socialdemocratic state under the rule of law (which may be regarded as the highest expression of judicial and political culture), based upon respect for human rights and brought into being in the hurly-burly of political life where all members of society can enjoy these rights - such a system is found in very few other countries. Indeed, it is like a sort of island of civilization in the middle of an unfair economic and political world. But the truth is that there are no acceptable alternatives to its principles and values, which seek to extend equal rights and opportunities to all groups throughout society. It is from such a perspective of the global context that critics should judge what has happened and what has been achieved. For it must be appreciated that certain common political, economic and social conditions have to obtain for countries to achieve democratic institutions and a system of freedom; and while it is very difficult to bring about deep transformations, bringing them about even in the short term is difficult enough. As we look at the recent political history of Spain, particularly with respect to the difficulties which the country’s constitutional system has undergone, it is entirely reasonable to conclude that the present consti­ tutional order is the best that has existed since 1812. Such a judgement takes into account not just the Constitution’s principles, the institutions it has brought forth, and their mutual relationship; it also takes into account the political inspiration of the Constitution of 1978. For there is a real popular will expressed in the Constitution, there is a real sense in Spain of constitutionalism .30 The incorporation of Spain into the pro­ cess of European integration and Spain’s participation generally in world affairs are all part of the overall picture, which shows the striking economic development achieved in the last decade despite its acknowl­ edged limitations. Such are the reflections, on the contemporary situation in Spain offered here to foreign observers, by one Spaniard. It is surely enough to encourage a moderate degree of optimism.

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NOTES

1.

2.

3.

4.

5.

6. 7.

8. 9. 10. 11.

Today it is generally accepted that Franco’s victory in the Civil W ar owed much to external help, not least to the role of the Western democracies in the defeat o f the Republican forces. Likewise and later, the survival o f Franco’s authoritarian regime was partly due to the support o f the United States in its Cold W ar struggle with the Soviet Union. The Preamble (.Preambulo), Sec. 4 of the 1978 Constitution declares as its objective: ‘Proteger a todos los espanoles y pueblos de Espana en el ejercicio de los derechos humanos, sus culturas y tradiciones, lenguas e instituciones.’ On the problems facing the drafters o f the Constitution, see Giuseppe De Vergottini (ed.), Una Costituzione democratica per la Spagna (Angeli, Milano: 1978). The story and all its difficulties are described from the inside by the Socialist rapporteur, Gregorio Peces-Barba Martinez, La elaboracion de la Constitucion de 1978 (Centro de Estudios Constitucionales, Madrid: 1988). For the transition from authoritarism to democracy (plus a comprehensive bibliography), see Raul Morodo, La transicion politica. 2nd edn. (Tecnos, Madrid: 1993). The drafters o f the Spanish Constitution were influenced by the constitu­ tions of the Fifth French Republic and the Federal German Republic - but most o f all by the 1947 Italian Constitution, to the point that sections were almost literally transplanted from the one to the other. The similarity o f the two cultures helped, plus the common goal o f basing liberty, equality and pluralism within a system o f territorially-divided powers under a par­ liamentary system. Finally, many o f the jurists involved in the drafting o f the Spanish Constitution had been trained within the Italian legal system. For the 1870s, see Gumersindo Trujillo, El federalismo espanol (Edicusa, Madrid: 1967). For the 1930s, see Joan Oliver Araujo, El sistema politico de la Constitucion de 1931 (Universitat de les Hies Balears, Palma de Mallorca: 1991) and Leonardo Morlino, Dalla democrazia alVautoritarismo (II Mulino, Bologna: 1981). Article 1, Sec. 1 reads in full: ‘Espana se constituye en un Estado social y democratico de Derecho, que propugna como valores superiores de su ordenamiento juridico la libertad, la justicia, la igualdad y el pluralismo politico.’ For political pluralism as one o f the ‘higher values’, see Gregorio Peces-Barba Martinez, Los valores superiores (Tecnos, Madrid: 1984). All three aspects are discussed in Jesus Prieto de Pedro, Cultura, culturasy Constitucion (Centro de Estudios Constitucionales, Madrid: 1992). Raul Morodo, Los origenes ideologicos delfranquismo: Accion Espanola (Alianza Editorial, Madrid: 1985); Javier Tussel, La dictadura de Franco (Alianza Editorial, Madrid: 1988). Ley (Law) no. 24, 25 and 26/1992 (10 November 1992). There are an estimated 15,000 Jews in Spain and some 300,000 Muslims. Ley no. 30/1981 (30 July 1981). Ley Organica (Constitutional Law) no. 9/1985 (5 July 1985). The failure o f the UCD (notably in the October 1982 elections: from 169 to 12 seats in the Congress o f Deputies) may be properly attributed to: a) its lack o f a coherent ideology, and b) the rise o f the PSOE, which in turn divided the UCD as that party sought to meet the Socialists’ challenge.

166 12.

13. 14.

15.

16.

17. 18.

MULTICULTURAL EUROPE AND AMERICA For the significant events o f the early 1980s, see Juan Jose Linz and Jose Ramon Montero (eds), Crisis y cambio: electores y partidos en la Espana de los anos ochenta (Centro de Estudios Constitucionales, Madrid: 1986). Data derived from information published by the Direction General de Tributos del Ministerio de Economfa y Hacienda. The original reads in full: ‘ 1. El castellano es la lengua espanola oficial del Estado. Todos los espanoles tienen el deber de conocerla y el derecho a usarla. 2. Las demas lenguas espanolas seran tambien oficiales en las respectivas Comunidades Autonomas de acuerdo con sus Estatutos. 3. La riqueza de las distintas modalidades linginsticas de Espana es un patrimonio cultural que sera objeto de especial respeto y protection.’ Aurelio Guaita M artorell, Lenguas de Espanay articulo 3 de la Constitution (Civitas, Madrid: 1989); Gregorio Salvador, Lenguas espanolasy lenguas de Espana (Ariel, Barcelona: 1987); Leopoldo Tolfvar Salas, Las libertades lingiiisticas (Institute Nacional de Administracion Publica, Madrid: 1987); Antoni Milian Massana, ‘La regulation constitucional del multilingiiismo’, Revista Espanola de Derecho Constitutional 10 (January-April, 1984), pp. 123-54. For information and analysis o f some of the language issues, see Dret linguistic (Escola d’Administracio Publica de Catalunya, Barcelona: 1989); Lengua i Dret (Institut d’Estudis Autonomies, Generalitat de Catalunya, Barcelona: 1987); Francesc Ferrer i Girones and Josep Cruanas, Els drets linguistics del catalanoparlants (Edicions 62, Barcelona: 1990); Antoni Milian Massana, ‘Ordenament linguistic (art. 3 del Estatut d’Autonoima de Catalunya)’, in Comentatis sobre PEstatut dAutonomia de Catalunya (Institut d’Estudis Autonomies, Barcelona: 1988), I, pp. 169ff; Jaume Vernet i Llobet, Normalitzacio lingiiistica i acces a la funcio publica (Fundacio Jaume Califs, Barcelona: 1992); Xose Luis Meilan Gil and Jaime Rod­ riguez Arana, 0 Dereito Estatutario Galego (Parlamento de Galicia, La Coruna: 1988); Xoan X. Santamaria Conde, ‘A Lei de Normalization Lingiiistica do idioma galego’, Revista de Llengua i Dret 5 (1985), pp. 2 05 -17 ; Jose Asensi Sabater, ‘Comentarios al art. 7’, in Comentarios al Estatuto de Autonomia de la Comunidad Autonoma Vdlenciana (Institute de Estudios de Administracion Local, Madrid: 1987), pp. 73ff; Manuel Martinez Sospedra, Derecho Autonomico Valenciano (Generalitat Valenciana, Valencia: 1985); Bertomeu Colom Pastor, Els Principis de la Llei de Normalitzacio Lingiiistica a les Illes Balears (Obra Cultural Balear, Palma de Mallorca: 1987). Eduardo Cobreros Mendazona, El regimen juridico de la oficialidad del euskara (Institute Vasco de Administracion Publica, Onate: 1989). Between 1983 and 1992 some 24,000 million pesetas (just under 1% o f the total Basque government budget) went on the promotion o f Euskera: Comparecencia, a petition propia, de la Secretaria General de Politica Linguistica del Gobiemo Vasco ante la Comision de Instituciones e Interior del ParlamentG Vasco (Gobierno Vasco, Servicio Central de Publicaciones, Vitoria: 1992), p. 19. The total sums given to the teaching of Euskera, however, were in fact much higher, once the contributions o f the provincial governments (Diputaciones Forales) and municipalities are allowed for, plus those o f other institutions reliant on the autonomous government, e.g. the Instituto Vasco

RIGHTS IN A PLURALIST STATE: SPAIN

19.

20. 21.

22.

23.

24.

25. 26.

27.

167

de Administration Publica (Basque Institute for the Public Administration), which trains civil servants and seeks to promote Euskera in dealings between private citizens and public bodies. The data on language-speakers may be found in Comparecentia, p. 9; cf. Real Decreto, 406/1992. Demographic data in these paragraphs comes from the latest census figures of 1 March 1991: Real Decreto, 406/1991 (24 April 1991): Boletin Oficial del Estado del 27 de abril 1991. Decisions o f the Constitutional Court, SSTC 82, 83 and 84/1986 (26 June 1986). For the jurisprudence o f the Constitutional Court and inferior courts, together with the relevant work o f the European Court o f Human Rights, see the useful collection by Rafael Manzana Laguarda (ed.), Recopilation de Jurisprudentia en materia linguistica (Secretaria General de la Consellerfa d’Administracio Publica, Valencia: 1992). Francesc Hernandez and Francesc Mercade (eds.), Estructuras sotiales y cuestion national en Espana (Ariel, Barcelona: 1986). For a study o f the demands of the nationalists and their incorporation into the Constitution, see Luciano Vandelli, Eordinamento regionale spagnolo (Giufffe, Milano: 1980); Spanish edition, El ordenamiento espanol de las Comunidades Autonomas (Instituto de Estudios de Administracion Local, Madrid: 1982). Santiago Munoz Machado, Derecho Publico de las Comunidades Autonomas, 2 vols. (Civitas, Madrid: 1984). The crucial provisions are in Tide VIII of the Constitution on the territorial organization o f the state (Titulo VIII: De la Organizacion Territorial del Estado). Political agreements between the PSOE and die PP (28 February 1992), followed by legislation (Ley Organica no. 9/1992 (23 December 1992)) and reforms to a number o f the charters o f the Autonomous Commu­ nities, have meant that important powers have been transferred to the communities, notably in the areas of education and social security: see Alejandro Ruiz-Huerta Carbonell, ‘Los acuerdos autonomicos de 28 de febrero de 1992: