Multiculturalism and Moral Conflict 9780203869444, 0203869443

Table of contents :
Book Cover
Title
Copyright
Contents
Contributors
Introduction
Part I: The moral foundations of multiculturalism
1 The place of religious belief in public reason liberalism
2 Cultures, group rights, and group-differentiated rights
3 Reasonable disagreement
4 Naivety, doubt and the politics of cultural identification
5 Value pluralism and the liberal–multicultural paradox
Part II: Secularism and the political claims of religious groups
6 Muslims, religious equality and secularism
7 Secularism and fair treatment for Muslims
Part III: Multiculturalism, state sovereignty and imperial past
8 Multiculturalism and the concept of the state
9 The enduring legacy of empire: Post-imperial citizenship and national identity(ies) in the United Kingdom
Index

Citation preview

Multiculturalism and Moral Conflict

Multiculturalism is higher on the daily political agenda than it has ever been. Leading politicians and public commentators speak with an unparalleled bluntness about the perceived limitations of multiculturalism, while representatives of cultural minorities express concern about marginalization. This debate is taking place against a background of fear about terrorism, the integrity of national identities and a loosely construed ‘clash of civilizations’. Secularism is pitted against religious fundamentalism, respect for difference against the right of freedom of speech, integration against self-­determination, and duties of citizenship against minority rights. This book confronts the reality of moral conflict in the debate on multiculturalism while resisting the simplification which too frequently accompanies daily commentary on both sides of an increasingly polarized debate. The volume as a whole marks an important step in the attempt to examine the underlying concepts of the nature and legitimate extent of disagreement, of secularism, the nature of power, the state and citizenship, which inevitably constitute key assumptions in the debate. Bringing together leading scholars on multiculturalism, this book discusses the latest developments in the field. It will be of strong interest to students and scholars of multiculturalism, political science, political theory, international relations, sociology, philosophy and anthropology. Maria Dimova-­Cookson is Lecturer in Politics, School of Government and International Affairs, University of Durham, UK. Peter M.R. Stirk is Senior Lecturer in Politics, School of Government and International Affairs, University of Durham, UK.

Routledge innovations in political theory

  1 A Radical Green Political Theory Alan Carter   2 Rational Woman A feminist critique of dualism Raia Prokhovnik   3 Rethinking State Theory Mark J. Smith   4 Gramsci and Contemporary Politics Beyond pessimism of the intellect Anne Showstack Sassoon   5 Post-­Ecologist Politics Social theory and the abdication of the ecologist paradigm Ingolfur Blühdorn   6 Ecological Relations Susan Board   7 The Political Theory of Global Citizenship April Carter   8 Democracy and National Pluralism Edited by Ferran Requejo   9 Civil Society and Democratic Theory Alternative voices Gideon Baker 10 Ethics and Politics in Contemporary Theory Between critical theory and post-­Marxism Mark Devenney

11 Citizenship and Identity Towards a new republic John Schwarzmantel 12 Multiculturalism, Identity and Rights Edited by Bruce Haddock and Peter Sutch 13 Political Theory of Global Justice A cosmopolitan case for the World State Luis Cabrera 14 Democracy, Nationalism and Multiculturalism Edited by Ramón Maiz and Ferrán Requejo 15 Political Reconciliation Andrew Schaap 16 National Cultural Autonomy and Its Contemporary Critics Edited by Ephraim Nimni 17 Power and Politics in Poststructuralist Thought New theories of the political Saul Newman 18 Capabilities Equality Basic issues and problems Edited by Alexander Kaufman 19 Morality and Nationalism Catherine Frost 20 Principles and Political Order The challenge of diversity Edited by Bruce Haddock, Peri Roberts and Peter Sutch 21 European Integration and the Nationalities Question Edited by John McGarry and Michael Keating 22 Deliberation, Social Choice and Absolutist Democracy David van Mill 23 Sexual Justice/Cultural Justice Critical perspectives in political theory and practice Edited by Barbara Arneil, Monique Deveaux, Rita Dhamoon and Avigail Eisenberg

24 The International Political Thought of Carl Schmitt Terror, liberal war and the crisis of global order Edited by Louiza Odysseos and Fabio Petito 25 In Defense of Human Rights A non-­religious grounding in a pluralistic world Ari Kohen 26 Logics of Critical Explanation in Social and Political Theory Jason Glynos and David Howarth 27 Political Constructivism Peri Roberts 28 The New Politics of Masculinity Men, power and resistance Fidelma Ashe 29 Citizens and the State Attitudes in Western Europe and East and Southeast Asia Takashi Inoguchi and Jean Blondel 30 Political Language and Metaphor Interpreting and changing the world Edited by Terrell Carver and Jernej Pikalo 31 Political Pluralism and the State Beyond sovereignty Marcel Wissenburg 32 Political Evil in a Global Age Hannah Arendt and international theory Patrick Hayden 33 Gramsci and Global Politics Hegemony and resistance Mark McNally and John Schwarzmantel 34 Democracy and Pluralism The political thought of William E. Connolly Edited by Alan Finlayson 35 Multiculturalism and Moral Conflict Edited by Maria Dimova-­Cookson and Peter M.R. Stirk

Multiculturalism and Moral Conflict

Edited by Maria Dimova-­Cookson and Peter M.R. Stirk

First published 2010 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business

This edition published in the Taylor & Francis e-Library, 2009. To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk. © 2010 Selection and editorial matter, Maria Dimova-­Cookson and Peter M.R. Stirk; individual chapters, the contributors All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Multiculturalism and moral conflict/edited by Maria Dimova-­Cookson and Peter M.R. Stirk. p. cm. – (Routledge innovations in political theory; 35) Includes bibliographical references and index. 1. Multiculturalism–Moral and ethical aspects. 2. Cultural pluralism– Moral and ethical aspects. I. Dimova-­Cookson, Maria, 1967– II. Stirk, Peter M. R., 1954– HM1271.M835 2009 305.8001–dc22 2009013230 ISBN 0-203-86944-3 Master e-book ISBN

ISBN10: 0-415-46615-6 (hbk) ISBN10: 0-203-86944-3 (ebk) ISBN13: 978-0-415-46615-8 (hbk) ISBN13: 978-0-203-86944-4 (ebk)

Contents



Notes on contributors

ix



Introduction

1

M aria D imo v a - ­C ookson

Part I

The moral foundations of multiculturalism

17

1

19

The place of religious belief in public reason liberalism G erald F . G aus

2

Cultures, group rights, and group-­differentiated rights

38

P eter J ones

3

Reasonable disagreement

58

J ohn H orton

4

Naivety, doubt and the politics of cultural identification

75

M atthew F estenstein

5

Value pluralism and the liberal–multicultural paradox

92

M onica M ookherjee

Part II

Secularism and the political claims of religious groups

111

6

113

Muslims, religious equality and secularism T ari q M odood

viii   Contents 7

Secularism and fair treatment for Muslims

131

C é cile L aborde

Part III

Multiculturalism, state sovereignty and imperial past

149

8

151

Multiculturalism and the concept of the state P eter M . R . S tirk

9

The enduring legacy of empire: post-­imperial citizenship and national identity(ies) in the United Kingdom

170

A ndrew M ycock



Index

192

Contributors

Maria Dimova-­Cookson is Lecturer in Politics at Durham University. She is one of the editors of the journal Contemporary Political Theory. She has published papers on liberty, human rights and the British idealists. Her last book was T.H. Green: Ethics, Metaphysics and Political Philosophy (co-­edited with W.J. Mander) (Oxford University Press, 2006). Matthew Festenstein is Professor of Political Philosophy at the University of York. He is one of the editors of the journal Political Studies. His books include Pragmatism and Political Theory (Polity and Chicago, 1997), Negotiating Diversity: Culture, Deliberation, Trust (Polity, 2005), and, as co-­editor, Richard Rorty: Critical Dialogues (Polity, 2001), Political Ideologies (Oxford, 2005), and Radicalism in English Political Thought, 1550–1850 (Cambridge, 2007). Gerald F. Gaus is James E. Rogers Professor of Philosophy at the University of Arizona. Among his books are On Philosophy, Politics and Economics (2007) and Contemporary Theories of Liberalism (2003). Along with Jonathan Riley, he was a founding editor of Politics, Philosophy and Economics. He is currently writing books on The Order of Public Reason (Cambridge) and, with Julian Lamont, Economic Justice (Blackwell). John Horton is Professor of Political Philosophy at Keele University. He has written widely on contemporary political philosophy, especially on the theory of toleration. He is books include Toleration and Integrity in a Multi-­Faith Society (edited, University of York, 1992), Liberalism, Multiculturalism and Toleration (co-­edited with Susan Mendus) (Macmillan, 1993) and Political Obligation (revised edition, Palgrave, 2010). Peter Jones is Professor of Political Philosophy at Newcastle University. He has authored and edited books on rights, and his other published work includes articles on human rights, group rights, cultural diversity, value pluralism, toleration and recognition, freedom of belief and expression, distributive justice, global justice, democracy and liberalism. Cécile Laborde is Professor in Political Theory at University College London. Her research is in the field of contemporary theories of nationalism, toleration, republicanism, multiculturalism, secularism and global justice. Her most

x   Contributors recent books are Critical Republicanism, The Hijab Controversy and Political Philosophy (Oxford University Press, 2008), and Republicanism and Political Theory, co-­edited with John Maynor (Oxford Blackwell 2007). Tariq Modood is Professor of Sociology, Politics and Public Policy and the founding Director of the Centre for the Study of Ethnicity and Citizenship at the University of Bristol. His recent publications include Multiculturalism: A Civic Idea, (Polity, 2007) and, as co-­editor with Geoff Levey, Secularism, Religion and Multicultural Citizenship (Cambridge University Press, 2009). Monica Mookherjee is Lecturer in Political Philosophy at Keele University. She is the editor of ‘Identity, Difference and Recognition: Recent Developments in Multicultural Political Theory’ (special issue of the journal Ethnicities, 2003), and the author of Women’s Rights as Multicultural Claims. Reconfiguring Gender and Diversity in Political Philosophy (Edinburgh University Press, 2009). Andrew Mycock is Senior Lecturer in Politics at the University of Huddersfield. His key research interests focus on post-­empire citizenship and national identity, particularly in the UK and the Russian Federation. He has published widely on the ‘Politics of Britishness’, and is Chair of the Political Studies Association Britishness Specialist Group. Peter M.R. Stirk is Senior Lecturer in the School of Government and International Affairs at Durham University. His recent publications include Carl Schmitt, Crown Jurist of the Third Reich. On Preemptive War, Military Occupation and World Empire (2005), Twentieth-­Century German Political Thought (2006) and The Politics of Military Occupation (2009).

Introduction Maria Dimova-­Cookson

A lot is happening in the field of multiculturalism these days, and the task of the introduction is to explain how this volume fits among the wealth of publications on this topic. It starts by showing how the arguments put forward here straddle the multiculturalist debate by adding support to both its more cautious and its more committed sides. It also demonstrates the ways in which the collection reflects the changes in mainstream political theory resulting from the significant presence of multiculturalism in it. The introduction then outlines the three themes into which the chapters are organized, and comments on the way in which the collection has reflected the impact of 9/11 on multiculturalism. The section on context sketches some of the latest developments in the field, and the final section summarizes the nine chapters of the volume.

The collection Multiculturalism is a political and philosophical disposition that accords serious consideration to minority1 groups based on culture, ethnicity or religion. Multicultural policies aim to promote the status of these groups by finding legitimate ways of doing so – for example, by giving them special group rights. Such rights include exemptions from laws that adversely affect particular cultures, rights that promote the self-­determination of groups, exclusive rights to regulate the possession of property in particular areas, and rights for the recognition or enforcement of a traditional legal code, among others (Levy 2000: 127; Festenstein 2005: 3–5). Multiculturalist theory offers justifications for these rights and explores their political implications. What the chapters in this collection demonstrate is that the demands for minority cultures’ rights cannot be met easily, and yet these demands are here to stay. These are the two most general messages of this volume. The ethical dilemmas caused by multicultural demands are serious and continue to receive their due attention. Yet the demands for political recognition on behalf of certain minority groups have not subsided – these demands are made with ever more compelling political and philosophical justification. Let me say a bit more about both of these messages in turn. Multiculturalism is far from a fait accompli. It has to establish the legitimacy of its aspirations against liberal and secularist values. Thus, in this volume, Peter

2   M. Dimova-Cookson Jones argues that not all claims for minority rights comply with the core liberal values that are usually part and parcel of the concept of ‘human rights’. The fact that the rights of minority cultures are group rights has been acknowledged but somewhat marginalized. Yet Jones makes the case that specifying a form of group rights that does not conflict with individual rights remains a pertinent task of multiculturalist theory. Rights claimed by minority cultures need to demonstrate, not assume, their liberal credentials. Similarly, Gerald Gaus explores the tensions between religious faith and public reason liberalism. He demonstrates why and how religious reasons have to be compatible with public reasons, the latter being reasons that can be used as a basis of justification that is acceptable to all reasonable citizens. Cécile Laborde examines the political space that could be allocated to different religions, including Christianity, and concludes that although religions should be entitled to public support, such support should be limited in specified ways. The public sphere should be regulated by secularist principles, as they promote the values of democracy and equal citizenship. John Horton’s chapter, in line with those already mentioned, reveals the complexity of the liberal–multicultural tensions, in the context of disputes about what constitutes reasonable disagreement. His revision of the doctrine of reasonable dis­ agreement puts less pressure than mainstream liberals would on minority cultures to prove that they are reasonable. Parallel to that, though, he argues that the liberal establishment should be under less pressure to justify to everyone its political imposition of liberal principles. Matthew Festenstein challenges the causal link between accepting the moral significance of cultures and justifying political recognition of rights for minority cultures. He argues that accepting the normative status of cultures does not entail accepting the political demands of the multiculturalists. The difficulties encountered by multiculturalists are not exclusively related to liberal and secularist concerns. The tensions between multiculturalism and state sovereignty make us cautious with respect to minority groups’ demands for self-­determination. Peter M.R. Stirk addresses this tension not by emphasizing the potential threats to state sovereignty, but by showing the pitfalls of employing the idea of self-­determination in service to multicultural causes. Having developed a number of arguments to the effect that multiculturalists have a long way to go, as they have many things to prove and further adjustments to make, the collection also demonstrates that the multicultural project still has considerable energy, both philosophically and politically. Monica Mookherjee’s chapter demonstrates that the very battleground on which most of the debates are conducted remains insufficiently examined. She argues that we do not have to justify multiculturalism on liberal terrain – that is, on the unconditional acceptance of the liberal value of autonomy. Mookherjee seeks to reverse the burden of proof – it is not the minority cultures, at least not only them, which have to change and embrace liberal values; it is liberal ideology that has to rethink its own values and priorities. In a similar vein, Tariq Modood’s chapter advances the idea that even though multiculturalism has enjoyed certain gains, these gains are far from enough. In spite of the climate of toleration and recognition of cultural rights, Muslims in Britain are exposed to active political

Introduction   3 marginalization. Matthew Festenstein’s chapter lends support to the multicul­ turalist cause, demonstrating that scepticism about the normative status of cultures lacks justification. Andrew Mycock’s chapter also offers support to the multicultural project by criticizing the ways in which the dominant British culture has been misunderstood and misconstrued as a monistic culture. If the legacy of the British Empire were to be re-­examined in ways suggested by him, it would become clear that the potential threat to it by multicultural demands has been exaggerated. The chapters of this volume lead to a further substantive observation. The collection reflects not only the developing multiculturalist landscape, but also the way in which mainstream political theory, especially liberal political theory, has changed as a result of its encounter with multiculturalist demands. These developments are particularly obvious in the chapters of Gaus and Horton. Gaus’s re-­ examination of public reason justification – the type of justification that liberals would endorse – leads to extending its capacity to incorporate religious reasons in the process of justifying basic political and legal principles. Horton’s analysis of reasonable disagreement – another fundamental liberal concept that outlines the remit of acceptable diversity in a liberal society – leads to doubts about its usefulness, and to a general reconsideration of the status of other liberal assumptions as well. Finally, Laborde’s theory of critical republicanism is an example of how republicanism can be revised in order to remain one of the mainstream ideologies in a world where multiculturalist claims have acquired high significance. The chapters of the collection are not clustered according to the extent to which they support or criticize multiculturalist claims, but according to their thematic focus. The first theme is ‘the moral foundations of multiculturalism’. It focuses on developments in the liberal–multicultural debate, and in this context on the concepts of public reason, group rights and reasonable disagreement. This section looks at the links between liberal multiculturalism and value pluralist multiculturalism, and offers the new alternative of liberal pluralism. It also provides a philosophical examination of the normative status of the concepts of culture and cultural identity. This theme encompasses the largest group of chapters – those of Gaus, Jones, Horton, Festenstein and Mookherjee. Judging by everything said so far, it is probably obvious that this section of the collection is not for the philosophically fainthearted. However, the latter can always start reading from Chapter 6 onwards – not because the remaining four chapters lack in philosophical content, but because of the greater extent to which they engage with public policy, political institutions and historical analysis. The second theme, ‘secularism and the political claims of religious groups’, is a debate that runs parallel, but is not identical, to the liberal–multicultural debate: that between those who defend secularism and those who campaign for political recognition of minority religions. Here, Laborde not only explains the values of secularism but also develops her distinctive version of critical republicanism that goes a considerable way towards accommodating some of the political demands of religious minority groups. Modood makes the case that the

4   M. Dimova-Cookson political situation of British Muslims deserves special attention. He argues that their social and historical experience allows them to claim group rights not on cultural but religious grounds, thereby challenging many multiculturalists who draw a line between culture and religion. The third theme, ‘multiculturalism, state sovereignty and imperial past’ examines multiculturalism in a relatively new context – the context of political institutions. Stirk’s chapter explores the analogy between the demands for state sovereignty and the demands of minority cultures for self-­determination. He suggests that although this seems a theoretically attractive analogy, the historical lessons have to be more carefully considered. In a similar vein, Mycock argues that the evolution of political institutions and, more specifically, the experience and the legacy of the British Empire can shed a new light on Britain’s post-­9/11 multicultural concerns. This inevitably raises the wider question of the impact of 9/11 on multiculturalism. One of the political outcomes of the terrorist attacks has been an increased apprehensiveness towards minority religious communities, most specifically towards Muslims. As a result, the focus of multiculturalist enquiries has shifted from cultural towards religious issues, more specifically, issues of Islam. This is reflected in this volume in Tariq Modood’s demand for political recognition of religious minority groups – a recognition which matches that already received by minority groups on the grounds of culture. On the liberal establishment side, the values of secularism have started to receive renewed attention. Laborde’s chapter is representative of this trend. Important among current multicultural debates are those between secularists and campaigners for political recognition of religious groups (Levey and Modood 2009): a development that reflects the socio-­political changes that resulted, or were intensified, by 9/11. The second section of the collection, on ‘secularism and the political claims of religious groups’, is dedicated to this debate. In this context, one could question the theses about the backlash against multiculturalism allegedly brought about by the terrorist attacks. It is true that on both sides of the Atlantic the attacks exposed worrying limits to the commitment of established liberal cultures to toleration of different cultures and religions. But in the aftermath of the terrorist attacks, some of the mistakes of the pre-­9/11 multiculturalist policies were brought to light (Alagiah 2006), and debates on this topic did not subside, but resurged. One could argue that there was a political backlash against multiculturalism accompanied by philosophical strengthening of the multiculturalist discourse. In view of the latter, the ultimate political implications are still to be seen. It is possible that the increased attention to multiculturalist issues, however critical, could have beneficial results for minority cultural or religious groups. The impact of 9/11 on multiculturalism, however, both politically and philosophically, should not be exaggerated. If anything, the terrorist events reinforced the significance of the existing liberal engagement with value pluralism. There is a continuity between the liberal, liberal multicultural and value pluralist debates of the 1980s and 1990s, on the one hand, and of the first decade of this century,

Introduction   5 on the other. This testifies to the perceptiveness and political relevance of these debates as they were conducted before 9/11. This collection shows how these lasting debates are currently developing.

The context I would like to draw attention to four recent developments in multiculturalist theory: the increased significance of religious groups, the reshaping of republicanism in view of the high political profile of multiculturalist demands, the tension between women’s rights and the rights of illiberal cultures, and, finally, an emphasis on the role of political deliberation in the process of establishing specific rights for different cultures. These four themes do not exhaust all recent developments in the field of multiculturalism, but are among some of the most important. They offer a useful background to this volume, not least because the authors behind these developments are also contributors to it. I will look at these four developments in turn. As mentioned, one of the ‘new’ themes in multiculturalist theory is the increased significance of religious groups, and the work of Tariq Modood has played a significant role in this development. Arguably, Modood has managed to transfer multiculturalism from North America to Britain, and from the last century to this one. The first was achieved through his observation of the different status of immigration in the context of the USA, Canada and Australia, on the one hand, and that of Britain and other European countries, on the other. While in the case of the former the mainstream population is of immigrant descent, in the case of the latter there remains an ‘ethnically visible’ divide between immigrants and natives. Hence the most acute cultural tensions, in his judgement, were not those between different cultures, but those between the ethnically visible immigrants’ groups and mainstream British culture. This explains Modood’s definition of multiculturalism as ‘the political accommodation of minorities formed by immigration to western countries from outside the prosperous West’ (Modood 2007: 5). The transfer of multiculturalism from the last century to this was achieved by his defence of British Muslims in the aftermath of 9/11. The result of this was a revised multiculturalist theory which raised the status of religious minorities to that of cultural minorities. The second development is the reshaping of republican theory due to the impact multiculturalism has had on it. Cécile Laborde has argued for a critical republicanism – a normative political theory that upholds the republican ideals of state neutrality, equality and liberty by adjusting these values to a political reality portrayed by multiculturalists as pervaded by a lack of state neutrality, equality and liberty due to the often severe power imbalance between different cultural or religious groups. So critical republicanism is what an ideal normative Anglo-­American political theory may look like once it has taken into consideration reality as perceived by multiculturalist critics. Is this, then, a form of multiculturalism? It is, to the extent that it is critical of the status quo neutrality as well as of nation-­building processes which unfairly advantage historical

6   M. Dimova-Cookson majorities; to the extent that it builds on the multiculturalist social analysis which unmasks existing practices of suppressing minority cultures or religions. Yet it is not, because although critical republicanism accepts the multiculturalist diagnosis of the social ills, the former almost fully rejects the latter’s policies of how these should be cured. Laborde advances the idea that not special minority rights, but secularist policies of state neutrality towards all religions, properly conducted, would cure the ailments against which multiculturalists protest. The tension between women’s rights and the commitment to preserve the authenticity and vitality of existing cultures has been amongst the hottest topics in contemporary multiculturalist discourse (Young 1995; Okin 1999; Shachar 2001; Philips 2007). How will women’s rights fare in illiberal cultures? If commitment to equal treatment of women clashes with rights of minority cultures, which of the two should be given a normative priority? While Okin openly argues that cultures are bad for women, Monica Mookherjee – the voice behind the third development in multiculturalism – makes the case that gender and cultural identities can reinforce each other. She draws on Iris Young’s idea of ‘gender seriality’, which acknowledges the particularities of women’s interests while keeping in view a common gender identity. This is a concept that helps Mookherjee bridge the gap between feminism and multiculturalism. She demonstrates how a woman’s cultural practices can help her in finding the political means to express her womanhood. From this perspective, the school ban on the veil would be counterproductive ‘as it would fail to secure the bases on which young Muslim women might integrate the private and public sources of their autonomy’ (Mookherjee 2009: XV). Thus impeding cultural autonomy undermines the opportunities of women who are members of this culture to articulate their gender identity. Mookherjee manages to integrate the claims of feminism and multiculturalism through a discourse of rights – she reconstructs women’s rights as multicultural claims. Matthew Festenstein’s 2005 book Negotiating Diversity has brought the themes of multiculturalism and democracy together. Festenstein argues that multicultural identity has deliberative weight which is underappreciated by the liberal multiculturalists as well as by the ‘negative universalists’ – authors like Kukathas and Barry who work with a unitary conception of citizenship. The liberal multiculturalists believe that cultures have rights, and these rights need protection against the threats of the market or democratic majorities. The negative universalists deny rights to cultures and argue that cultures should be relegated to the private sphere. Both of these approaches are pre-­emptive, as they do not do justice to the deliberative weight of cultural identity. Festenstein believes that the acceptable way to handle the issue of rights to cultures is a political dialogue that has a public and democratic character. This shifts the multiculturalist debate from a discussion of how to justify minority rights to a discussion of the type of public dialogue that can deal fairly with all the existing perspectives. What is fundamental for such a public deliberation is a level of mutual trust. As indicated above, the significance of this volume is not only that it reflects recent developments in the debate about multiculturalism, but also that it reflects

Introduction   7 the development of mainstream political theory through its encounter with the moral challenge of multiculturalism. By the same token, Gaus’s work on public reason, Peter Jones’s on recognition and Horton’s on toleration are a demonstration that political theory has been open to multiculturalism not only in the last few years, but for the last few decades. Stirk and Mycock, on the other hand, show how a wider disciplinary perspective can be brought to bear on the discourse of multiculturalism.

The chapters In the remaining part of the introduction I offer a summary of each chapter in the order of the collection’s contents. The summaries here have an element of interpretation – maybe a stronger emphasis than intended by the authors – in order to make a point more forcefully. Needless to say, the correct statement is in the chapters themselves. Gerald Gaus’s chapter reveals the potential of public reason liberalism to mitigate the concerns of those who profess a religious faith and who believe that because of this they suffer political marginalization. The chapter methodically uncovers a number of assumptions about public reason justification – assumptions that unnecessarily exaggerate its tension with religious reason justification. The mistakes made by the two conflicting sides – the defenders of public reason justifications and those who object public reason on religious grounds – are that the first party fails to appreciate the complexity of democratic politics, and therefore the correct remit of public reason justification, while the second party wrongly argues that it has the moral liberty to impose coercive restraints on their fellow citizens with no other justification than appeal to faith. The core of the chapter is an examination of the relation between our duty of civility, on the one hand, and our commitment to public reason justification, on the other. The better we understand the logic behind our duty of civility, the clearer idea we form about the nature of public reason justifications. The chapter reveals why the political space for acting on religious reasons is much wider than generally perceived. The arguments of the chapter hinge largely on the realization that ‘if we do not coerce, then we have no commitment to publicly justify’ (p. 33). Public reason justification and the duties of civility do not cast their net widely over all political activities, like voting, for example. Some aspects of legislating are also exempt from public reason scrutiny. This scrutiny is ultimately narrowed down to instances of coercion. A number of distinctive messages come through the chapter. First, the observation that public justification may be based either on consensus or on convergence of justificatory reasons demonstrates that, so long as everybody has their own reason to accept a certain coercive law, those who support this law with religious reasons only would not be failing their duties of civility. This in turn gives more room to manoeuvre to legislators whose duties to employ public reason are heavier than those of the voters. As long as they develop procedures that allow possibilities for convergence of, and not exclusively consensus on, justificatory reasons, they would be much less in the

8   M. Dimova-Cookson business of enforcing moral restraints on non-­public (i.e. religious) reasons. Another important insight is about coming to terms with the implication of the claim held by many public reason liberals – that ‘justificatory liberalism unavoidably has a symmetric view of the reasons that justify coercive impositions and those that block them’ (p. 30). We cannot impose a coercive law on purely religious grounds, but we can oppose one on such grounds. This demonstrates how seriously public reason liberals take religious reasons, and how carefully defined and ultimately narrow are the limits on religious justification implied by the commitment to public reason, properly understood. If multicultural policies necessitate a balance between our commitment to liberal values, on the one side, and to protecting minority cultures, on the other, Peter Jones’s chapter makes the case that the liberal values side should receive its fair hearing. He looks at the group-­differentiated rights argued for most famously by the Canadian multiculturalist, Will Kymlicka, and asks whether many of these rights are also group rights – that is, rights held by a group as a group rather than by its members severally. He argues that many of them are indeed group rights, which, in turn, raises the question of whether they are consistent with the liberal principles to which Kymlicka is committed. Jones rejects suggestions by Kymlicka and Miller that it is a matter of little or no importance whether group-­differentiated rights are held by groups or by individuals, but he also challenges the ‘widespread perception that liberalism and group rights do not mix’ (p. 41). He distinguishes between two conceptions of group rights – the corporate and the collective – and argues that it is critical which of these two conceptions we adopt. The corporate conception invests moral standing in the right-­holding group as such – a standing that is not reducible to that of the individuals who belong to the group. The collective conception conceives a group right as a right that is shared in, and held jointly by those who make up the group; it invests no moral standing in the group that is not reducible to the standing of those who jointly hold its right. The fact that some goods have a necessarily social character, such that a right to them can only be a group right, is, Jones argues, quite consistent with conceiving rights to those goods collectively rather than corporately. Jones agrees with Kymlicka that there has been an unproductive squabble between collectivists and individualists over group-­ differentiated rights, but suggests that this is because both sides have possessed inadequate understanding of group rights. In addition to dispelling some liberal anxieties about the oppressive potential of group rights, the ‘collective-­corporate’ typology helps us clarify the nature of group rights that seem to have a trans-­ generational character, such as the right of a minority or a people over a particular territory. Group rights need not undermine individual rights. However, distinguishing between those that do and those that do not has to be an important part of a liberal multicultural project. John Horton’s chapter looks at ‘reasonable disagreement’ and explores the potential of this Rawlsian concept for the justification of philosophical, religious or moral diversity. The concept of reasonable disagreement justifies diversity on

Introduction   9 the grounds that commitment to different faiths or ideologies does not always rest on failure to see the truth. Quite the opposite; due to what Rawls calls ‘the burdens of judgement’, we could reasonably hold different, often conflicting, sets of ideas. So the possibility of reasonable disagreement seems to be good news for multiculturalism – because of it, no particular faith or ideology can be shown to be demonstrably superior to others. However, Horton is sceptical about the potential of reasonable disagreement to fulfil this function. He shows that Barry’s critique of this concept is more powerful than is sometimes recognized. In particular, good reasons for others to disagree with one’s views are often good reasons for one to have less confidence in one’s own views, although there can also be reasons for disagreement that are agent-­relative. This means that the idea of reasonable disagreement is likely to be of limited value in trying to justify the boundaries of legitimate multiculturalism. Behind this pessimism about the robustness of the Rawlsian conception of reasonable disagreement there also lurks a potentially more optimistic view of the feasibility of multicultural policies. Horton observes that disagreement does not have to be reasonable in order to be legitimized. We, as liberally minded citizens, often tolerate beliefs and practices that we find unreasonable. In other words, the diversity in a liberal state does not have to be justified by the reasonable character of each alternative. Multiculturalism can thrive even without there being an acceptable conception of reasonable disagreement. There is a cost, however. Horton suggests that we should question one of the pivotal liberal assumptions: that political principles are legitimate only if they are justifiable to everyone whom they are to bind. Horton suggests that this is an excessively demanding requirement and that we should consider dispensing with it, even if this is seen as an ‘apostasy’ within contemporary liberalism. We may have to accept that political principles need to be enforced even if some cannot be convinced of their cogency. One way forward for multiculturalism, therefore, is not to require each cultural minority to demonstrate the reasonableness of its beliefs – a task which, on consideration of the many specific claims made by most religions, seems next to impossible – but through enforcing basic liberal principles, such as toleration, even if they cannot be shown to be justifiable to all those subject to them and even in the face of (some) unreasonable beliefs. The justification of the limits of multiculturalism will have to be found elsewhere than the notion of reasonableness. Matthew Festenstein’s chapter considers the moral status of cultures. It defends the claim that cultures carry normative significance – i.e. that they are important for one’s practical identity. Yet he also suggests that even if we give full-­hearted support to the claim that cultures have normative significance, we still lack the grounds for justifying multiculturalist policies. He challenges the causal link between seeing cultures as important for one’s practical identity, on the one hand, and endorsing political action that promotes minority cultures, on the other. This causal link seems to be accepted by both critics and supporters of multiculturalism. The critics believe that by attacking the moral foundations of cultures they would invalidate the demands for their political protection. An

10   M. Dimova-Cookson example here is Brian Barry’s claim that cultures function as ideologies in the Marxist sense – as philosophical narratives that aim to mask and promote a disagreeable reality (Barry 1998: 313). However, as the defenders of multiculturalism also accept the causal links between affirming the normative status of cultures, and political action aiming to affirm cultural rights, they also fall under the remit of Festenstein’s criticism. He argues that even if the first is true, the multiculturalists do not have carte blanche for their political ambitions: ‘we need to be more cautious about the relationship posited between the ontology of culture and politics’ (p. 78). But then, why does he spend so much effort on clarifying the ontological status of cultures? Arguably, by placing the debate on the ‘right’ grounds, we will be able to see the most appropriate solutions to it. These solutions are not to be found here but in Negotiating Diversity, where Festenstein points towards the role of public deliberation and trust. In this chapter, however, Festenstein defends the significance of culture against what he calls a ‘global scepticism’, expressed by those who argue that cultures cannot provide a sufficient justification of the normative demands of the multiculturalists. He looks more carefully at two sceptical arguments. The first challenges the claim to cultural identification on the grounds that there is an empirical disagreement about the character of a culture. The second objection is based on the claim that cultures are constructed. There are two underlining concerns discernible here. On the one hand, we have a reduced likelihood of a single unitary culture for a given group. More worryingly, the constructivist aspects of cultures points towards the possibilities of deliberate attempts to disguise the true origins of cultures. Festenstein explains why both of these lines of sceptical argumentation against the capacities of cultures to be significant elements of practical identity fail. This chapter discards some of the attacks waged on multiculturalism, but it also articulates challenges to the multiculturalist perspective itself. Of all the chapters discussed so far, Monica Mookherjee’s chapter offers the most radical critique of liberal multiculturalism. This is a chapter that outlines its own distinctive theory of ‘liberal pluralism’ against the background of a carefully crafted and therefore very informative philosophical map of some key multicultural discourses. It starts by explaining why liberals and value pluralists differ. Mookherjee reminds us that in spite of their commitment to value pluralism, Rawlsian liberals demarcate the space of the political as a purely liberal territory. Although the liberal principles of justice enjoy this privileged position because thus they secure the social space for value pluralism, the fact that liberal values stand out clashes with the philosophical implications of value pluralism. The ‘real’ value pluralists like Berlin and Gray, on the other hand, honour these philosophical implications and treat liberal values as one set of values among many others. Even Berlin, who is well known for his defence of negative liberty and who uses it as a framework within which to accommodate value pluralism, still preserves, unlike Rawls, certain scope for opening up the political arena to dramatic clashes between different conceptions of the good. So where does multiculturalism situate itself with respect to liberalism and value pluralism? Inter-

Introduction   11 estingly, multiculturalism splits along the lines of these two philosophical alternatives – we have liberal multiculturalism, on the one side, and value pluralist multiculturalism, on the other. Characteristically, liberal multiculturalism aims to reconcile liberal with multicultural values. What Mookherjee finds problematic here is the overly confident commitment to the liberal values of auto­ nomy and equal rights for women. It is not the case that liberal multiculturalists like Kymlicka and Shachar do not take minority cultures seriously; the problem is their assumption that, in an ideal scenario, minority non-­liberal cultures would gradually embrace liberal values. The value pluralist multiculturalists, on the other hand, do not engage in the ‘liberalmulticultural’ reconciliatory project, but their lack of ethical commitment to any set of values becomes a problem in itself. Mookherjee observes an interesting phenomenon: as the liberal multiculturalists fail to find the middle ground between liberal values and preserving minority cultures, they tend to abandon, in some cases at least, their liberal meta­ethics. Their honest dedication to cultural authenticity gets the better of them, and ultimately their liberal multiculturalism collapses into value pluralist multiculturalism. But does the latter get us where we want to be? In spite of the frequent claim of value pluralists that there are certain objectively worthwhile goods in human life, the only solutions to political conflicts they seem to offer, when different objective values conflict, are those based on pragmatic concerns. Such consensus many may not find binding. What Mookherjee offers is a form of ‘liberal pluralism’ which does entail meta-­ethical principles. These principles are ‘liberal’ in a radically new or, shall we say, radically ‘old’ way. In order to explain the type of liberal ethics that would drive a successful multicultural project, she turns to Burke’s criticism of imperial rule in India. There we find an understanding of liberty that does not boil down to commitment to autonomy. Mookherjee emphasizes two points: that one’s freedom is compromised when one fails to respect the freedom of others, and that freedom goes together with other values such as equality and generosity, and its meaning is therefore constituted through this plurality. Tariq Modood’s chapter gives a very good overview of his multicultural stance, now well known from his previous work. Modood wants to push the boundaries of multiculturalism and turn it into a philosophical discourse that promotes not only minority cultures, but also minority religions. More specifically, he engages with articulating the political demands of the Muslim population in Britain. His chapter in this collection reveals how complex this task is, as the Muslims are disputing simultaneously with the opponents and with the supporters of multiculturalism. On the first front, the Muslims have to confront their cultural stereotype of a group characterized by ‘extremist politics, religious obscurantism and an unwillingness to integrate’ (p. 114). It is the battle on the second front that receives more attention here – the battle to persuade the supporters of multiculturalism that the Muslims in Britain have acquired the characteristics of these minority groups that are deemed worthy of minority group rights. The chapter has two major tasks: to align the claims of the British Muslims with the claims of other groups, based on gender, sexual orientation or

12   M. Dimova-Cookson race, that have already succeeded in gaining political recognition. The second task is to challenge secularism by exploring the legitimacy of its political influence as well as its philosophical consistency. Modood considers the history of the British equality movements and uncovers the way in which race equality policies have influenced adversely the political recognition of Muslims as a religious community. The law protected Muslims against discrimination, yet not on grounds of their religion, but on grounds of race or ethnicity. This emphasis on racial equality and the active neglect of Muslim religion worked as a barrier to – in Modood’s words, as a ‘conspiracy to prevent’ – the emergence of specifically Muslim socio-­political formation. Yet, on analysis, their claims for political recognition do not differ in substance from similar, and already successful, demands made on behalf of other groups like those of women, homosexuals, Scottish and Quebecois nationalists. In a similar manner to Mookherjee, but in more practical terms, Modood outlines the two levels of accommodation secured for diverse identity groups. First, within the framework of Rawlsian liberalism, the members of a minority group have access to equal political participation, but only on liberal terms, while they are allowed to practise their difference privately. The second level, already acquired by some groups, but still an aspiration for the Muslims, is about the right to have one’s difference recognized and supported, both politically and privately. In this context, Modood recommends a number of policies among which ‘even-­handedness in relation to native religions’ – an issue that is discussed in its own right in Laborde’s chapter. While Modood recommends ‘equalizing upwards’, Laborde gives us her reasons for ‘equalizing downwards’. As already stated, the idea of politicized religious identity stirs up worries even among multiculturalists and breathes new life into the defence of secularism. The public–private distinction that feminists already managed to discredit is now erected again by the secularists in order to keep Islam at bay. It is of interest that the opponents of British Islam are often not rival religions, not even the dominant Christianity, but the secularist intelligentsia: hence Modood’s determination to challenge arguments of the kind that unlike sex and race, religion is a  matter of choice and is therefore uniquely related to private identity. He also  brings a wealth of evidence about European policies which accommodate the political demands of Muslims. In a changed political landscape, secularism will have to re-­conceptualize itself in order to address the political demands of  religious groups. The chapter that follows engages with this type of re-­ conceptualization. Cécile Laborde’s chapter balances republican ideas against multicultural demands and develops her own brand of critical republicanism which, arguably, achieves the sought balance. One interesting question this chapter raises is whether republican theory gives us something more than the political theory of liberalism. Even if at many places Laborde points out the significant similarities between the liberal and the republican stance, one may think that it is worthwhile considering the differences between these, as they may explain why republican-

Introduction   13 ism gets us that little bit further on the road of reaching acceptable compromises. Generally speaking, Laborde’s chapter does two things. It explains the arguments behind her critical republicanism and it discusses the decisions it will lead to with respect to four Muslim demands: multi-­faith establishment, religious schools, public funding for mosques, and the wearing of religious dress. Laborde’s critical republicanism carves a path between ‘official republicanism’ and ‘tolerant republicanism’. The first advocates secularism in the public sphere, yet without taking into account the extent to which the public sphere already privileges the Christian faith. The second, tolerant republicanism, which Laborde also calls accommodationist, aspires to increase public support for minority faiths until it matches the support already given to the dominant Christian religion. Critical republicanism, like its official counterpart, stands for secularism in the public sphere, but it includes two provisos: one that compensates for the burdens imposed by the secular state on the religious practice of believers, and a second one that aims to address the existing inequalities in the public support of different religions. Also of interest here are the differences between critical and tolerant republicanism, as both of these allow some level of public support for religions. Laborde explains why such public support has to be carefully monitored, and in the case of dominant religions, downsized. When it comes to specific policies, distinctions should be made between different institutions. Schools, hospitals and prisons, are among those that call for stricter implementation of secularist principles. Multi-­faith schools, however, could be allowed, but they should be funded publicly, not privately, and they should promote republican, parallel to their specific faith, values. Peter M.R. Stirk’s chapter explores a familiar tension from an unfamiliar angle. The tension between minority rights and national homogeneity is very much at the heart of multicultural debates. Although many have looked in depth at this internal conflict, few have taken an external perspective. The multicultural literature pays little attention to the concept of the state. Exploring some of the state justification theories leads to reconsideration of the nature of the existing claims for minority rights. Some obvious parallels can be drawn and have been drawn throughout the conflict between European states and those peoples who became today’s minorities. Defenders of minority rights such as Kymlicka continue to draw these parallels – that is, to employ arguments from state justificatory theories in the service of the case for minority group rights. Stirk argues that while the attractions of these parallels are undeniably strong, they are not always supportive of minorities. Characteristic features of the state, like territorial concentration and rights over territory, treaty-­making capacity and the possession of viable institutions, have all been ascribed to at least some minorities in the hope of defending them against the challenge posed by the state. It seems that by identifying the common features of minority groups and the existing states, one is making a very strong case in favour of minority groups’ self-­determination. Each parallel proves, however, to be less reliable than it seems. The consequences of these parallels include excessively ambitious claims that have to be qualified, hurdles that minorities cannot plausibly surmount, additional risks to minorities,

14   M. Dimova-Cookson or an arbitrary protection of some minorities while others fall by the wayside. This path is open to another pitfall – the pursuit of a strong case for the rights of minority groups ends up ascribing a more central role to territory and historical institutions than to culture. The high profile of multiculturalism has rekindled the debate about the nature of British culture itself. Because, in the context of multicultural debates, it is seen as the ‘dominant’ culture, issues of its internal complexities are often bypassed. Yet a more careful examination of the evolution of the post-­imperial citizenship demonstrates that we cannot possibly speak of a single national identity. Andrew Mycock argues that the ambition to find such an identity could be misguiding. He points out that the legacy of the Empire persists, and that its impact on national identity is much more ambiguous than generally admitted. His chapter offers a very informative exploration of the protracted and incomplete nature of imperial withdrawal, and analyses its influence on British national self-­awareness. He argues that contemporary politicians have, in some way, drawn the wrong lessons. Their focus on ‘new’ Britishness, through its articulation of distinct British values, suggests that ascription to UK citizenship should require citizens to sign up to nationalized Britishness founded on essentialized cultural practice. However, Mycock suggests that the legacy of the British Empire and the experiences of the Commonwealth could be read differently – in a way that contributes to a more plural and inclusive interpretation of Britishness. Mycock focuses on the ‘persisting ambiguity of Imperial Britishness’ (p. 181). On the one hand, it can be argued, as by Gordon Brown, that the period between the independence of India in 1947 and the Hong Kong handover in 1997 was a period of post-­war imperial closure. On the other hand, the facts that the monarchy extends over sixteen Commonwealth states, and that the United Kingdom has more than a dozen overseas territories, point towards the opposite conclusion. This raises the issues about the clarifying the boundaries of British citizenship. During recent years we have observed repeated attempts to nationalize UK citizenship. Mycock argues that the Commonwealth as a whole, overseas territories, Crown dependencies and states with strong ties with the UK have legitimate input into debates about UK citizenship.

Note 1 Bhikhu Parekh argues that multiculturalism is not about minority cultures, as this would imply that the majority culture is uncritically accepted (Parekh 2000: 13). I believe that the strength of multiculturalist demands comes from the fact of asymmetry between the protection of the majority culture within the state and the protection of minority ones. Multiculturalist concerns are not provoked by a general indifference to or neglect of culture, but by the lack of parity between the treatments of different cultures.

Introduction   15

Bibliography Alagiah, George (2006) A Home from Home. From Immigration Boy to English Man, London: Abacus. Barry, Brian (1998) ‘The Limits of Cultural Politics’, Review of International Studies, 24: 307–19. Festenstein, Matthew (2005) Negotiating Diversity, Cambridge: Polity Press. Gaus, Gerald (2003) Contemporary Theories of Liberalism. Public Reason as Post-­ Enlightenment Project, London: Sage. Horton, John (ed.) (1993) Liberalism, Multiculturalism and Toleration, Basingstoke: Macmillan. Horton, John and Crabtree, Harriet (eds) (1992) Toleration and Integrity in a Multi-­Faith Society, York: University of York. Horton, John and Mendus, Susan (eds) (1999) Toleration, Identity and Difference, Basingstoke: Macmillan. Jones, Peter (2006a) ‘Equality, recognition and difference’, Critical Review of International Social and Political Philosophy, 9: 23–46. Jones, Peter (2006b) ‘Toleration, recognition and identity’, Journal of Political Philosophy, 14: 123–43. Jones, Peter (2006c) ‘Toleration, value pluralism and the fact of pluralism’, Critical Review of International Social and Political Philosophy 9: 189–210. Laborde, Cécile (2008) Critical Republicanism. The Hijab Controversy and Political Philosophy, Oxford: Oxford University Press. Levey, Geoffrey Brahm and Modood, Tariq (2009) Secularism, Religion and Multicultural Citizenship, Cambridge: Cambridge University Press. Levy, Jacob (2000) The Multiculturalism of Fear, Oxford: Oxford University Press. Modood, Tariq (2007) Multiculturalism. A Civic Idea, Cambridge: Polity Press. Mookherjee, Monica (2009) Women’s Rights as Multicultural Claims. Reconfiguring Gender and Diversity in Political Philosophy, Edinburgh: Edinburgh University Press. Okin, Susan Moller (1999) Is Multiculturalism Bad for Women?, Princeton: Princeton University Press. Parekh, Bhikhu (2000) Rethinking Multiculturalism. Cultural Diversity and Political Theory, Basingstoke: Macmillan. Philips, Anne (2007) Multiculturalism without Culture, Princeton: Princeton University Press. Shachar, Ayelet (2001) Multicultural Jurisdictions, Cambridge: Cambridge University Press. Young, Iris Marion (1995) Justice and the Politics of Difference, Princeton: Princeton University Press.

Part I

The moral foundations of multiculturalism

1 The place of religious belief in public reason liberalism Gerald F. Gaus

1  The problem: the status of religious belief in public reason liberalism In the past few decades a new conception of liberalism has arisen – the ‘public reason view’ – which developed out of contractualist approaches to justifying liberalism. The social contract theories of Hobbes, Locke and Rousseau all stressed that the justification of the state depended on showing that everyone would, in some way, consent to it. By relying on consent, social contract theory seemed to suppose a voluntarist conception of political justice and obligation: what is just depends on what people choose to agree to – what they will. As Hume famously pointed out, such accounts seem to imply that ultimately political justice derives from promissory obligations, which the social contract theory leaves unexplained (Hume 1963: 452–73). Only in Kant, I think, does it become clear that consent is not fundamental to a social contract view: we have a duty to agree to act according to the idea of the ‘original contract’ (Kant 1999: 114–17, 146). Rawls’s revival of social contract theory in A Theory of Justice did not base obligations on consent, though the apparatus of an ‘original agreement’ of sorts persisted. The aim of the original position, Rawls announced, is to settle ‘the question of justification . . . by working out a problem of deliberation’ (Rawls 1999: 16). As the question of public justification takes centre stage (we might say as contractualist liberalism becomes justificatory liberalism), it becomes clear that posing the problem of justification in terms of a deliberative or a bargaining problem is a heuristic: the real issue is ‘the problem of justification’ (Rawls 1999: 16) – what principles can be justified to all reasonable persons. In his Political Liberalism, Rawls is clear that the argument from the original position is just one stage of the justificatory enterprise (Rawls 1996). In Rawls’ later work the idea of public reason becomes increasingly important: the aim is to work out a theory of public reasons – reasons that can be used as a basis of justification that is acceptable to all reasonable citizens. Now although the idea of public reason was implicit in contractual theory all along (see Solum 1993: 754–62), sustained focus on it has had a surprising result. Whereas many citizens with deep religious convictions enthusiastically affirmed traditional liberal

20   G.F. Gaus freedoms of religious belief and expression, explicit public reason views have been widely criticized by those friendly to religion. Once the explicit problem becomes one of public justification and what constitutes acceptable public reasons, it has seemed clear to many that religious-­based considerations fail to qualify as such reasons. But if so, public reason liberalism is objectionably exclusionary: reasons that deeply religious citizens see as fundamental to political justice are ruled out of bounds as acceptable public reasons (see Perry 1993). In particular, in the eyes of many of its proponents public reason liberalism is committed to ‘a duty of civility according to which citizens owe each other reasons that they can share . . .’ (Macedo 2000: 35; Rawls 1996: 217). This seems to lead to what Christopher J. Eberle calls ‘the principle of restraint’ – ‘a citizen should not support any coercive law for which he lacks a public justification’ (Eberle 2002: 68). To some religiously-­inclined philosophers, requiring such restraint shows a basic inequity (Greenawalt 1995: 120) at the heart of public reason liberalism: those with strong religious-­based views about how society is to be ordered are excluded or marginalized in liberal politics. Steve Macedo, an advocate of public reason liberalism, responds: ‘If some people . . . feel “silenced” or “marginalized” by the fact that some of us believe that it is wrong to seek to shape basic liberties on the basis of religious or metaphysical claims, I can only say “grow up!” ’ (Macedo 2000: 35). This is more than a philosophical impasse: for the liberal it must be truly worrying that those with strong religious commitments have become strident critics of public reason liberalism. A foundational liberal principle has been religious freedom; liberalism has taken religious commitment seriously, and has insisted on the importance of people being able to live according to their avowed religious doctrines. But today those with religious commitments are apt to see themselves as critics of liberalism. I think both public reason liberals and friends of religion are responsible for their current mutual hostility. Liberals have tended to be much too quick to link public reason to secularism, and so have needlessly alienated those who take their religious views seriously. I shall try to show in this chapter that the status of religious-­based reasoning in public reason liberalism is much more complex than most participants in this debate have assumed.1 Liberals have also, in my view wrongly, insisted that the principle that coercive laws be publicly justified grounds a strong duty of civility or principle of restraint on citizens: if justified laws require reasons of a particular sort, then it is thought that citizens engaging in politics somehow have only to offer only these reasons. I shall argue that it is very difficult to show that any ‘duty of civility’ follows from a commitment to the public justification of coercion. However, liberals are not the only parties at fault. Some religiously-inclined philosophers have advanced extreme claims that they cannot be true to their convictions unless they have a moral liberty to impose (via majority rule) coercive restraints on their fellow citizens that have no justification except through appeal to their faith. Such laws, I argue, would constitute wrongful coercion, failing the test of public justification.

Religious belief in public reason liberalism   21

2  The fundamental elements of public reason liberalism 2.1  The (generic) public justification principle I take as my starting point Eberle’s observation that ‘Respect for others requires public justification of coercion: that is the clarion call of justificatory liberalism’ (Eberle 2002: 54). Public reason liberalism ties respecting persons to justifying coercion to those being coerced: in some way, to respect others requires that one refrains from coercing them unless one can provide reasons that, in some way, are accessible to them. Of course, public reason liberals differ among themselves as to how we should understand this general requirement. They disagree, for example, about whether the set of persons to whom justification is owed is restricted (say, to the ‘reasonable’ or to those who possess moral personality), and whether the requirement that reasons be ‘accessible’ means that justification must restrict itself to those reasons which actual people can appreciate, or whether the reasons must be accessible only to idealized persons of some sort (say, those who are fully rational). Public reason liberals also have to specify the conditions under which a reason is accessible – when one thinks about it very hard? After a conversion experience? These debates are fundamental to the details of a public reason liberal theory, but at present our concern is to identify a widely shared generic version, so let us abstract as far as possible from these disagreements. I propose the following general principle as a point of departure for our discussion. The Public Justification Principle: A coercive law L is wrongful unless each and every member of the public P has conclusive reason(s) R to accept L. I leave open just how to specify P (whether the members must all be reasonable, fully rational, etc.). The Public Justification Principle supposes that there is some specification (and almost certainly some idealization) of the public such that each member so described has conclusive reason to accept L. The Public Justification Principle does not suppose that each person must actually accept L; if members of P are idealized, and so the actual citizenry may not perfectly correspond to them, then we should not expect actual endorsement by the citizenry. The question is not what people do accept, but what they would with reason accept. Although the Public Justification Principle casts its net pretty widely, some public reason accounts might not accept it. Rawlsian accounts seem to restrict the requirement of public justification to just some acts of coercion (say, concerning matters of basic justice or constitutional essentials): if that is the correct interpretation, Rawslians restrict the range of L to a subset of laws. Since my aim here is to show that even our fairly strong Public Justification Principle has extremely modest implications for the status of religious reasons in politics, we need not worry if some public reason views adopt a more restricted principle.

22   G.F. Gaus 2.2  Pluralism of reasons of members of an idealized public As stated, almost any political theory would endorse the Public Justification Principle: if the members of P are so specified that they all accept, say, a certain substantive moral theory, then coercive acts justified by that moral theory would also be justified by the Public Justification Principle. If each member of the public accepted the same moral theory M, then of course each member of the public has reason to endorse those acts of coercion mandated by M. The Public Justification Principle would do little or no work. Again, the principle could justify a specific theological view if, say, the members of the public were assumed to have grace, or have had the proper conversion experience. The principle becomes interesting, and not reducible to any specific moral theory or religious view, when the public and its deliberative conditions are so specified that what is a reason to one member of P may not be a reason to others. Under conditions of reasonable pluralism, we cannot suppose that the reasoning of one member of the public is a proxy for everyone else’s reasoning. Consequently, the requirement that every member of P has reason to endorse L is not implied by one member doing so. If the ‘clarion call’ of public reason liberalism is that coercion must be publicly justified, the problem that motivates the public reason project is the conviction that rational disagreement is the ‘normal result of the exercise of human reason’.2 Some philosophers are apt to reject this because they see it as denying the objectivity of reasons: rational persons, they claim, are necessarily tracking the same objective reasons. My aim here is not to answer these objections, but we should remember that the disagreement about reasons takes place among a suitably described public: whether or not this implies a metaphysics of reasons depends on how the public is described. If they are all perfectly rational, with perfect information, and having no time constraints on deliberations, then perhaps rational pluralism plausibly entails a metaphysical doctrine about the plurality of reasons, but that is by no means implied in the generic formulation of the view. I assume here that included in this reasonable pluralism are religious beliefs: some of the public (P) have religious beliefs while others do not. Some secular liberals argue that fully rational individuals would not have any religious beliefs, while some religiously-inclined philosophers insist that all fully rational individuals would accept at least some religious beliefs. We can set aside this debate: at best it only concerns extreme characterizations of the relevant public (the perfectly rational with full information). Some, of course, go further, and argue that all religious beliefs commit one to clear mistakes, and so on almost any plausible specification of P (the public), members would not reason on the basis of religious considerations. Now to be sure, if one holds a religious belief in a way that that is incompatible with one’s rationally fundamental beliefs about the way to understand the world, and if this is pointed out, and one still maintains the religious belief, then any view (such as public reason liberalism) that appeals to good reasons will question the rationality of such religious beliefs. But even one

Religious belief in public reason liberalism   23 as sceptical about religious faith as Hobbes, who insisted that sensible faith may not go against reason (it may not, say, require belief in contradictions), also allowed that faith may go beyond reason – i.e. license convictions not warranted by reason (Hobbes 1994: 72; Greenawalt 1995: 40; Swaine 2006: xvii). In any event, I suppose that many, but not all, members of P entertain religious or faith-­ based considerations. For present purposes, we need not characterize precisely the nature of religious or faith-­based reasons (as will be seen, the analysis does not depend on any particular characterization, except that they are rational and not universally shared by P.) 2.3  Laws and coercion It is assumed here that all laws are coercive and so all fall under the requirements of the Public Justification Principle (Gaus 2003a, 2009). This assumption is consistent with Robert Audi’s distinction between ‘primary’ and ‘secondary’ coercion (Audi 2000: 87–9): some coercive interventions are more serious than others. However, it is not consistent with the claim that some laws are not coercive at all (Mill 1976: Book 5, Chapter 11; Greenawalt 1995: 8; Audi 2000: 87–9). However, again this need not detain us: if the strong assumption that all laws are coercive does not lead to significant restraints on religious reasons in politics, views that exempt some laws from the need for public justification will have even less significant implications.

3  Public justification, wrongful legislation, and citizen responsibility Let us first consider whether there is any direct inference from the Public Justification Principle – the heart of public reason liberalism – to a principle of restraint. If we accepted only the Public Justification Principle, should we conclude that citizens are to vote and debate about politics only on the basis of ‘public reasons?’ Accepting that it is wrong for the state to legislate on non-­public grounds, does this imply that it is wrong for citizens to vote on non-­public grounds? The Public Justification Principle tells us when coercive laws are justified, and so when they dispel the presumptive wrongness of coercion. Prima facie, if (coercive) law L is unjustified, a state official who acts on L thereby does wrong. We can only say ‘prima facie’ here, for there may be justifications for certain role responsibilities such that at least sometimes, say, a lower official may justifiably enforce an unjustified law.3 On the other hand, role permissions have limits, and even those low down the chain of command who enforce unjust laws may be responsible for wrongdoing. Putting aside these complex matters, the core range of application of the Public Justification Principle is state officials, especially those in the judicial and executive branches: it is they who are most directly implicated in state coercion. As complex as is the problem of moral responsibility of those in the executive and judicial branches for wrongdoing, matters are far more complex and difficult

24   G.F. Gaus concerning the actions of voters (and even legislators; see below, section 4.4). Suppose citizen Alf votes for L though he believes L fails the test of Public Justification. To make matters simpler, suppose that there really is no good public justification for L. Does Alf violate the Principle of Public Justification in voting for L? Suppose first that L is defeated in the vote. If so, L never was the grounds for a wrongful imposition, and so no wrong was ever done on the basis of L. It is hard to see how Alf actually committed a wrong derived from the Public Justification Principle. Certainly, as Kant would say, his ineffective advocacy of a wrongful imposition showed his act to be without moral worth, but, as Kant also stressed, political morality is not concerned with the moral worth of citizens, but only the justice of their actions: ‘[I]t applies only to the external and – what is more – practical relationship of one person to another in which their actions can in fact exert an influence on each other . . .’ (Kant 1999) (italics added for emphasis). Alf may not be an admirable person, but he was in no way responsible for any wrongful legislation (the sole concern of the Public Justification Principle) because no wrongful legislation occurred. But surely, it will be said, if Alf votes for L and it passes (and so L actually is employed to coerce), and if he advocated the law when he knew it was unjustified, then Alf is indeed guilty of political wrongdoing. In our first case Alf may be saved by a sort of moral luck, akin to a drunk driver who gets home without hurting anyone, but now his luck has run out. Clearly, we may say, Alf is partly responsible for the resulting wrongdoing. Certainly not ‘clearly’. It is difficult to determine Alf’s moral responsibility for the wrong occasioned by L. Most political theorists writing on democracy and public justification ignore that no voter is decisive in producing an outcome (see Brennan and Lomasky 1993). Apportioning individual responsibility for collective outcomes given the overdetermination involved in just about all elections is an extremely difficult task that I shall not undertake here (see Parfit 1984; Miller 2001). We tend to think that voters must be in some way be morally responsible for unjust laws they voted for, but the fact that L would have been passed whether or not Alf voted for it hugely complicates any judgement that he is responsible for its wrongful impositions, or even has a share of the responsibility. If we try to apportion how much of the wrongdoing Alf is responsible for, we find ourselves in a morass of conflicting intuitions. Consider Alf’s Hawaiian Vote: Alf advocates L, which is unjustified and which he thinks is unjustified. In a national plebiscite, he votes for L, and L passes. But when Alf went to the polls in Hawaii the election was already decided and the result announced by every network. Indeed, the total number of Hawaiian voters was less than the margin of L’s lead up to this point. Is he in any way responsible for the outcome? And of course I have assumed that somehow there is a direct link between Alf’s vote and L. Given that in representative democracies one votes for a candidate or a party, and it is very difficult to know what laws that candidate will help pass, Alf’s responsibility for wrongful laws becomes murkier and murkier.

Religious belief in public reason liberalism   25

4  The duty of civility 4.1  The shared reasons view It seems doubtful that the Public Justification Principle itself clearly implies that citizens do wrong when they vote for unjustified laws. Perhaps we need to expand the reach of the ideal of public justification. In addition to a principle that renders legislation based on non-­public reasons wrongful, perhaps public reason liberalism, and its commitment to respect for persons, is inevitably led to a broader moral duty that renders political actions of citizens (e.g. casting a vote) wrongful when based on non-­public reasons. Rather than thinking of this citizen duty as a direct implication of the Public Justification Principle, we might see it as a companion duty that is part of an ideal of citizenship – a duty for citizens to conform to public justification in their individual actions in the political forum (this seems to be the view of Rawls 1996). In this vein Macedo claims that a commitment to public justification entails a ‘duty of civility according to which citizens owe each other reasons that they can share . . .’ (Macedo 2000: 35). On Macedo’s view a citizen violates this duty if he offers reasons in favour of a policy that, if accepted, would fail to justify that policy. One way to formulate this duty is The Shared Reasons View of the Duty of Civility: Alf violates the duty of civility if he publicly (in a political forum) advocates L on the basis of R, and Betty, a fellow member of the public, does not hold R as one of her reasons (she would not share it).4 On the face of it, this grounds a pretty robust constraint on appeal to religious beliefs in politics. Given our assumption of reasonable pluralism (see section 2.2), there is no religious belief that every member of P shares; consequently, appeal to any religious belief when advocating a policy or law in the political forum (I leave aside for now how to characterize this forum) would violate the duty of civility. We thus seem led to Robert Audi’s ‘principle of secular rationale’ according to which ‘one has a prima facie obligation not to advocate or support any law or public policy that restricts human conduct, unless one has, and is willing to offer, adequate secular reason for this advocacy or support (say, one’s vote)’ (Audi 2000: 86). Recall that the Duty of Civility (in the form of The Shared Reasons View) is acknowledged to go beyond the requirements of the Public Justification Principle: it is supposed to be a broader application of it. The problem, though, is that the Shared Reasons View of the Duty of Civility rules out advocating laws that meet the Principle of Public Justification. It can render wrongful a citizen’s advocacy of publicly justified laws, and for that reason must be rejected by those committed to the primacy of the Public Justification Principle. And that is because the Principle of Public Justification does not require that all laws be justified by shared reasons among the citizens. If each person’s (different) reasons converge on L, then coercing on the basis of L meets the test of public

26   G.F. Gaus justification. If, as Eberle claims, justificatory liberalism is based on some notion of respect for others, one who coerces on the basis of an L so justified would never treat others without respect: everyone has reasons to accept L, even though we have different reasons. One demands that they conform to L, and, at least insofar as they are members of P, they see that they have reason to. That they have different reasons to follow L does not somehow show that one is treating them disrespectfully. Each accepts L and each has reason to follow it: L is publicly justified. So, public justifications may be based either on a consensus or on a convergence of justifying reasons (on the latter, see D’Agostino 1996: 30–1). A consensus justification maintains (as in the Shared Reasons View) that a law is justified because everyone has the same grounds to accept it; a convergence justification maintains that it is justified because we all have our own, different, reasons to accept it. The Shared Reasons View of the Duty of Civility is plaus­ ible only if consensus justifications are uniquely legitimate. But a convergence justification of L is perfectly public and impartial: L is not partial to anyone’s reasons, but, instead, rests on everyone’s reasons. Many political philosophers resist this: they insist that bona fide moral justifications must be grounded on common reasons. Often this is because they endorse a doctrine of reasons such that, if R is a reason for Alf, it must be a reason for Betty. But we have already seen that this doctrine about reasons may be true, yet reasonable pluralism obtains for P. Given this, there is no bar to a religious-­based reason entering into a public justification: it could well be a reason that religious citizen Alf can give to fellow religionist Charlie to validate L. Public justification can (and should) take account of the division of epistemic labour. Alf can justify L to co-­religionist Charlie on the basis of religious considerations; Betty justifies L to Doris by appeal to the works of John Stuart Mill, and Eugene justifies it to Frances and Charlie (justification is often overdetermined) on the basis of neo-­Aristotelian ethics. At the end of the day, many different reasons from many different perspectives may converge on L. This is the insight that makes so attractive Rawls’s idea of an overlapping consensus. Given this, I believe that that we should reject Eberle’s claim that ‘The justificatory liberal is unavoidably committed to the claim that a citizen in a liberal democracy ought not to support (or reject) any coercive law for which she enjoys only a religious justification’ (Eberle 2002: 14). A religious citizen may have only a religious reason for the law, yet the law may still be publicly justified because others have their own reasons to accept it. If we accept Eberle’s ‘unavoidable’ constraint, a religious citizen may be prohibited from supporting publicly justified laws. 4.2  The wrongful advocacy view Can we formulate a duty of civility that does require consensus justification? Suppose that we reformulate Eberle’s claim as: the justificatory liberal is unavoidably committed to the claim that a citizen in a liberal democracy ought not to support (or reject) any coercive law which she believes enjoys only a religious justification. The focus now is not on whether the citizen’s support rests only on

Religious belief in public reason liberalism   27 a religious ground, but her belief that there is only a religious ground that could support it for any member of P. Again, given our assumption of reasonable pluralism (see section 2.2), no law could be accepted by all members of the public solely on the basis of religious reasons. Religious reasons are by no means unique in this regard. Although I think Rawls’s idea of a ‘comprehensive doctrine’ is so ill-­formed that we would do best to abandon it (see Gaus 2004), whatever value it has is in stressing that some reasonable and rational free and equal moral persons (one conception of P) build their lives on normative standards that other members of P do not. Given this, a law justified only on these controversial normative standards will not conform to the Principle of Public Justification. Thus if we suppose that there are some laws that clearly have only a religious rationale, a religious citizen who advocates such laws, knowing that they fail the test of public justification, might seem to violate a clear duty of civility. It appears, then, that the following duty of civility might be a plausible expansion of the Principle of Public Justification – The Wrongful Advocacy View of the Duty of Civility: If Alf has a well-­ grounded belief that L violates the Principle of Public Justification, Alf violates the duty of civility if he publicly advocates L (in a political forum), votes for it, etc. Alas, even this modest duty of civility can lead to objectionable results: it can prohibit citizens from doing their best to bring about publicly justified laws. It overlooks the important fact that political activity, including speech and voting, can legitimately be strategic: perhaps sometimes it must be. Consider a case: Alf’s Immoderate Proposal. Alf believes that, ideally, a centre-­left free market oriented government would be publicly justified. However he is convinced that free trade is the most important issue today – though he would certainly endorse government programmes to give significant aid to displaced workers. But Alf reasonably thinks that, in the current shrill political climate, nuanced proposals get lost in the noise; if he advocates government programs to aid displaced workers, his speech will be coded as ‘anti-­trade’. So Alf publicly advocates a radical free market approach, always talking about the benefits of free trade and never its shortcomings, though he sincerely hopes that such an approach is not instituted, nor, given the need for political compromise, does he expect it to be. Alf thinks that the most probable result of this advocacy will be a final policy a wee bit closer to what is publicly justified. Does Alf act in an objectionable way? With a few more details, we can easily see how the Wrongful Advocacy View says he does wrong, but I think, clearly, he does not act uncivilly, and certainly not wrongfully. After all, he is aiming at a policy that satisfies the Principle of Public Justification; politics is complicated, and often the best way to get the best result is to endorse something else.

28   G.F. Gaus Still, someone might object that Alf’s Immodest Proposal, though it may be justifiable, is uncivil: he is not treating his fellow citizens as equal partners but as people to be led. Consider another case. In his Economic Theory of Democracy Anthony Downs pointed to out that in multi-­party systems the resulting government depends on which coalition is formed after the election. Under these conditions, Downs held, the voter needs to know the following if he is to vote in a way that, given his ideology, will bring the best result, that is: 1. What coalitions each party is willing to enter under various sets of circumstances. 2. Estimated probabilities which show how likely each party is to enter each coalition open to it . . . 3. What policy compromises each party is apt to make in each possible coalition. i.e., what policies each coalition would adopt after it was formed. (Downs 1957: 146) Suppose we have five parties ranged along a left–right continuum, A, B, C, D, E. It normally takes three parties to form a government, but of course this depends on how well each party does in the election. Now in these circumstances, Alf may think that Party C’s policies are publicly justified – so the best government would be, say, a B, C, D coalition, tending to reflect C policies. But suppose he believes that Party B is weak; if it does not get more support, the likely coalition will be C, D, E (with a government reflecting views to the right of his). In this case, the best thing for Alf to do may be to campaign for B, even though he agrees that if B’s policies were implemented, the policies would fail to be publicly justified. But this would seem to run afoul of the Wrongful Advocacy View of the Duty of Civility. And it is hard to see that Alf is in any way acting uncivilly: he is simply aware of the complex ways that aggregation systems can generate outcomes. Inspired by deliberative democrats such as Habermas, some friends of democracy insist that such ‘strategic’ behaviour is inappropriate in a respectful politics: people should express only their sincere views and only vote for the options that express their sincere understanding of the best justified proposals. This is to ignore the ways electoral systems work, and in general to ignore the possible impact of your sincere statements and actions in helping to produce wrongful laws. Politics is complicated: it is, I think, implausible to insist that civility requires us to ignore the complex relations between inputs and outputs, and treat contemporary politics as if was a small group decision in which all put far greater weight on sincere speech than justified outcomes. 4.3  The minimal duty of civility We might reformulate the Wrongful Advocacy View as a more complex principle that takes account of strategic and other considerations. We would then have something along the lines of:

Religious belief in public reason liberalism   29 The Minimal Duty of Civility: If Alf thinks that L is not publicly justified, Alf violates the duty of civility if he publicly advocates L (in a political forum), votes for L, etc., unless Alf thinks that advocating L (voting for it, etc.) will help bring about a publicly justified outcome. But even this is too strong. Not all political action is instrumental. Geoffrey Brennan and Loren Lomasky argue that political activity and speech is often expressive (Brennan and Lomasky 1993: 33). Because the expected instrumental value of one’s vote is typically so low (because one is so unlikely to cast the decisive vote), Brennan and Lomasky argue that voters rationally take up a non-­ instrumental stance: they may vote, say, to express discontent with the current administration. If we accept that such expressive voting occurs and is rational, then one may vote for a candidate not because one endorses the laws the candidate proposes, but because, in that context, the vote has a certain expressive meaning. The Minimal Duty of Civility seems to imply that one should not take up a purely expressive stance: one must vote for L only if one believes that L would be publicly justified, or that voting for L is instrumentally useful in producing a publicly justified outcome. What is not clear is why an account of public reason as the grounds of justification must instruct voters not to vote expressively. Voters have expressive political concerns, and precluding them from politics needs strong justification: given the indirect links between voting and legislative outcomes, it is not obvious that such a justification is forthcoming. This argument depends on accepting Brennan and Lomasky’s analysis that voting can be purely expressive, and that such expressive actions are rational – a controversial view. However, the crucial point need not draw on the expressive theory of rationality. When voting, or making a political argument, a person is apt to have a set of diverse considerations that impact on her reasons to act. Some of the these will concern her reasons to produce certain legislative outcomes, but others will concern, say, her aim to communicate to her fellows  that she is unhappy with the status quo or that she is worried or troubled by certain events. The political arena, especially as it concerns voters, has far  more tasks than simply turning voter’s judgements into laws: voters employ  their political liberties to convey their concerns and aspirations. In this sense it is an information-­ collecting system as well as a decision-­making system. Given this, insisting that voters act as if their only concern is producing legislation is to truncate the political, conferring sole legitimacy on one of its functions. 4.4  Legislators I have focused on whether citizens do wrong by advocating laws on religious grounds. Legislators are not in the same situation: they are involved directly and crucially in enacting laws, so it is appropriate to understand their activity as fundamentally a law-­making one rather than an information-­conveying one. Legislators are tremendously more decisive in determining political outcomes; they have a stronger duty to consider not only why they and their constituents support

30   G.F. Gaus a proposal, but also whether the proposal is, overall, publicly endorsed. A traditional theme in the theory of representative government is that legislators owe duties both to their constituents and to the wider public. What John Stuart Mill said of members of a jury is more applicable to good legislators: they possess some ‘unselfish . . . identification with the public’ (Mill 1977: 412). Because of this, something like the Duty of Minimal Civility seems to apply. This hardly seems an onerous restraint, nor does it seem unfair to religious legislators. It only applies when a legislator believes that, given all the considerations, L is not publicly justified. It is difficult to be confident about such judgements. Remember, since public justification may be by convergence as well as by consensus, that they are voting on the basis of a reason not shared by all does not show that the proposal is not publicly justified (see section 4.1). Even this may overstate the role of the Minimal Duty of Civility in a well-­ designed liberal polity. As James Madison stressed, a republic ought not to rely overmuch on the virtue of its citizen. And in any case, even virtuous legislators cannot appreciate all the reasons for and against proposals. If our concern is public justification, there is good reason to endorse procedures (e.g. super-­majority rules) that are more apt to filter out ‘sectarian’ proposals.5 Insofar as political procedures can help laws track public justification without supposing that we are all aiming at overall public justification, public reason liberals should focus on the design of law-­making institutions and the way they aggregate inputs into outputs rather than focusing on moral restraints on citizen and legislative inputs. Indeed, democratic procedures may work better when legislators do not always seek a synoptic perspective, but focus on presenting a good case based on an admittedly partial perspective. Well-­designed voting procedures can act as a reasonably good imperfect procedure for determining laws endorsed by public reason; if so, even legislators would often do well to press the view of their constituents rather than directly consulting their own convictions about what is publicly justified.

5  Religious beliefs as defeaters 5.1  The asymmetrical status of religious belief The more we reflect on the Minimal Duty of Civility, the more modest its implications. Recall Eberle’s core claim: ‘The justificatory liberal is unavoidably committed to the claim that a citizen in a liberal democracy ought not to support (or reject) any coercive law for which she enjoys only a religious justification’ (Eberle 2002: 14; emphasis added). Note that Eberle holds that justificatory liberalism unavoidably has a symmetric view of the reasons that justify coercive impositions and those that block them. Suppose Alf is a legislator, elected by a constituency with strong religious convictions. I have argued that, in a rationally pluralist society, a religious reason could not be the only justification for a legitimate law. If legislator Alf thinks that the only reasons for L are religious, and if he does not think advocating the religious reason will help produce a publicly justified outcome, then he has good reason to refrain from voting for L on the

Religious belief in public reason liberalism   31 basis of the religious reason. But suppose now that secular legislator Betty proposes a law that would impose restraints that Alf’s constituents have strong religious reason to oppose. Does public reason liberalism allow him to vote against Betty’s proposal simply on religious grounds? The answer must be affirmative. He rightly can claim that qua members of P his constituents would not endorse the imposition, and so it is not publicly justified. Whether others share their defeater is beside the point: the imposition cannot be validated by the religious citizens, so coercing on the basis of L would violate the Principle of Public Justification. There is nothing in the Principle of Public Justification that would lead us to conclude that members of P may not employ all their reasons when deliberating on L. We did not commence with individuals split into public and private selves, and then say that only their public selves could enter into public justification. Rather, we started off by supposing members of the public who seek to coerce each other and employ all their reasons in either endorsing or refusing to endorse these laws. Although some of your reasons will not help in showing another (who does not share the reason) that your favoured L should be endorsed by her (qua member of P), all of your reasons may be called upon when examining her opposed coercive laws pressed on you. 5.2  Nested political disagreement and religious reasons A natural worry arises at this point: if there is even one member of the public who would not validate L, L fails the test of public justification. And so a state official who coerces on the basis of L does wrong. Given that we confront reasonable disagreement on just about every political issue, this is may strike one as a recipe for anarchy, not the just state. This is a serious problem for a public reason view, and undermines most versions of deliberative democracy. According to deliberative democrats, politics aims at agreement: ‘Agreement among members of the community is set as the open-­ended task . . . [of the] exercise of practical reason and judgment’ (Postema 1995: 356). Thus ‘the aim of the regulative idea is agreement of conviction on the basis of public reasons uttered as assessed in public discourse . . .’ (Postema 1995: 356). But, of course, such agreement is not to be had: actual politics is characterized far more by disagreement than consensus. Thus deliberative democrats are forced to admit that we may have to cut off the discussion by taking a vote, but it is uncertain whether the outcome of such a vote meets the requirements of public justification.6 Politics and the law are indeed about disagreement – but we do not disagree about everything. Liberal political philosophy has long maintained that abstract principles such as freedom of expression, freedom of religion, freedom of the person, security of bodily integrity, some system of property rights, and a principle of public good provision are validated by all free and equal rational moral persons. Critics of public reason are not apt to deny that such abstract principles can be publicly justified; rather, they point to intractable debates about the preferred interpretations. As Greenawalt says, ‘Agreement on such abstract ideas

32   G.F. Gaus may exist now in the United States, but this agreement has limited significance when many people have definite ideas on how to fill in the details, and these ideas powerfully conflict with one another’ (Greenawalt 1995: 114). It is here, says Greenawalt, that religious reasons often must be drawn upon. Assume that we have a public justification of such an abstract political principle Φ, but are confronted with a set of interpretations qua laws {L1. . .Ln}, each preferred by some citizen. Now in public reason liberalism, the job of democratic procedures is to select from this set. Assume that every member of the  public endorses every member of this set as an eligible interpretation of the principle, but they disagree about which is best: the democratic procedure then gives everyone another reason to endorse a specific member of the set, Li. In relying on this democratically selected interpretation, each and every person member of the public would endorse Li. No member of the public, when confronted by a demand based on any member of the publicly eligible set, would refrain from endorsing it since it was selected from the eligible set by the democratic procedure. Of course we may have intense disagreements about the best interpretation, but any selection satisfies the requirements of public justification: no one is asked to abide by an interpretation that is not endorsed by her own reason (qua a member of P). Can religious-­based arguments be employed at this point? Suppose that we are confronted by a set of publicly eligible interpretations {L1. . .Ln}, and there just is no public justification for any choice (before application of the democratic procedure). Even members of P would not converge on a common interpretation. Then, essentially, all we, as actual citizens, can do is advance a procedural solution: make a choice according to some justified procedure. If that is the case, there seems no objection to people appealing to religious or any other reasons to try to get others to agree with their interpretation. To be sure, there really are no good substantive public reasons to select any particular option: because we are employing a purely procedural solution there is no assumption that we are trying to uncover a specific publicly justified choice. So here Greenawalt seems right; if we confront this sort of public indeterminacy, people can decide on just about any grounds they wish so long as their option set is restricted to the set of publicly eligible interpretations. Suppose, though, that the matter is not really indeterminate, but inconclusive (Schwartzman 2004: 191–200). A question is merely inconclusive when it is difficult to see which interpretation can be publicly justified, though we have reason to think that there is one. Although we think that members of P would arrive at a common interpretation, we, as actual citizens who fall short of the capacities of P, cannot now see what that might be. In this case we have a belief that there is some Li that is better than all other eligible interpretations. All members of P would endorse Li over rival interpretations.7 Now suppose we adopt some other eligible interpretation, Lj. Although Lj is still eligible (it is better than having no legal interpretation of the Φ principle at all), living according to it would constitute a sort of collective irrationality: qua P, we all would see we all see Li as a better law. In adopting Lj we are adopting a

Religious belief in public reason liberalism   33 suboptimal interpretation – one that is strongly dominated by Li. Insofar as we think there is good reason to suppose that we might, if we thought harder and discussed it more, uncover the better law, then we all have some reason to continue on with the process of public justification. So then we would have grounds to restrict our reasons for voting to those that would help bring about the better justified law. However, because we have seen that genuine public reasoning does not exclude appeal to religious beliefs, this recommendation does not, I think, make a great deal of difference as to what beliefs may be appealed to in liberal politics. 5.3  Radical disagreement and religious accommodation A religious reason only makes impossible the public justification of some law-­ interpretation of Φ if appeal to that religious reason leaves empty the set of publicly eligible law-­interpretations of Φ. I have argued that this is unlikely indeed when our concern is basic principles of social cooperation (and, of course, a theory may so characterize P that only those concerned with living together are included). Certainly, though, such blocking could occur in some areas of public policy. However, a coercive law implementing a policy still may be pursued in the face of such blocking insofar as those who cannot endorse the policy may be exempted from its coercion. It is important to keep in mind why we are committed to public justification: respect for others leads us to justify coercive impositions to the persons imposed upon. If we do not coerce, then we have no commitment to publicly justify. Allowing religious-­based exemptions from military or education requirements is, of course, part of the history of American public policy. The United Kingdom also has instituted such exemptions (e.g. Sikhs are exempted by 1998 Motor Cycles [Protective Headgear] Regulations from the legal requirement to wear motorcycle helmets). Of course, complex and difficult issues arise when seeking to craft legislation that allows such exemptions. There are always worries that the possibility of obtaining an exemption may encourage deceit from those who endorse the aims of the legislation but who nevertheless seek the  exemption. We confront the endemic worry about free-­riding on socially usefully policies. Legislators also must consider whether the exemptions are so  instituted as to put heavy legal burdens on those who cannot rationally endorse the policy (e.g. requiring complex opt-­out procedures), such that there  are strong practical incentives for them to submit to unjustified impositions. In some cases it might be fairer to allow blanket opt-­outs of entire ranges  of policy to some groups (see the very thoughtful treatment of these issues by Swaine 2006). My point here is not to even point to solutions to these important problems, but to stress that even when a religious citizen employs her reason to block a public policy on religious grounds, it does not follow that others must do without the policy. As with the European Union, the remaining citizens might reconstitute themselves into a different public (a ‘core group’) on this issue.

34   G.F. Gaus 5.4  ‘Blocking’ and third parties Consider a more worrying case. Religionist Alf has been exempted from coercive law L; suppose that in this case the exemption is not onerous and Alf has no complaint regarding L’s effects on him. The reconstituted public includes Betty and Charlie, and within this narrower public L (we assume) is publicly justified. However, Alf complains that Betty should not be able to coerce Charlie in that way. Two possibilities need to be distinguished: 1

Alf might be claiming that Betty and Charlie are simply wrong: the law is not justified even in their narrow public. I take it that this is not a real difficulty: although Alf is not complaining on his own behalf, he can complain on the part of others who are subjected to unjustified coercion.

2

Alternatively, and far more troubling, Alf may be asserting that L really is, all things considered, justified between Betty and Charlie, but that is not enough: it must be justified to him as well. His rational approval must be obtained before Betty can coerce Charlie on the basis of L: it is a law that he cannot endorse, and so should apply to no one.

Public reason liberalism, as I understand it, must reject Alf’s claim, in the latter case, on the grounds that it is no disrespect to Alf if Betty and Charlie act according to laws (justified in their narrower public) that Alf’s reason does not endorse (when those laws do not coerce Alf, nor do they coerce any others outside the narrow public). I do not claim that this is entirely uncontroversial: many claim that their conscience requires them to authorize all the actions of others, even when those actions are rationally endorsed by those others. We are now getting to the bedrock liberal claim, according to which no one has such moral authority over the lives of others. Mill rightly objected that such claims preclude a tolerant society because everyone’s life becomes everyone’s business (Mill 1991). My aim now, however, is not to justify this basic claim, but to stress that the option of conscientious exemptions depends on it. If everything everyone does requires the approval of all, then there is no possibility of reconstituting the public to avoid radical disagreement.

6  Conclusion Starting off with a fairly robust Principle of Public Justification, we have seen that very little follows in the way of excluding religious-­based reasons from politics. To be sure, public reason liberals must argue that a law that is based solely on religious reasons would be unjustified in a polity in which some members of the public do not endorse those reasons. But so would be a law based solely on a secular consideration that is not shared by all members of P. I have discussed a number of reasons why the debate between public reason liberals and religiously-­inclined philosophers has been so intractable and

Religious belief in public reason liberalism   35 unhelpful. The debate has been informed by overly simple views of public reason, failures to appreciate the complexities of democratic politics, and ignoring the difficulties in assigning moral responsibility to individual citizens for democratic outcomes. Another reason, I would conjecture, is that, oddly enough, the disputants share a common presupposition: namely, it must be fairly easy to justify coercing people. Thus, many public reason liberals argue that, so long as one has a good secular reason, the state can go about coercing everyone; public policy should not be blocked just because someone has a religious objection to it. Many philosophers friendly to religion also accept the ‘coercion is pretty easy principle’, but insist that it is only fair that, if secular citizens can coerce on their secular vision, religious citizens should be able to coerce on their view of the truth. Public reason liberals have strayed too far from the spirit of Millian liberalism. Liberals have generally forgotten Mill’s insight that coercing others is a remedy of the last resort, a dangerous tool to be used sparingly: it leads to the ‘degradation of slavery’ if the individual’s conscience cannot freely accept the legal restraint (Mill 1976: 943). Thus, I have argued, there is a fundamental asymmetry between the ways that controversial beliefs function when employed as justifiers of coercion and when advanced as defeaters of coercive proposals: ‘the onus of making a case always lies on the defenders of legal prohibitions’.

Acknowledgement I have greatly benefited from a series of exchanges with Christopher Eberle on these matters. My thanks also to Leif Wenar for his insightful queries. I also greatly benefited from the comments of the participants in a Workshop on Public Reason at the University of Arizona, November 2007.

Notes 1 Care must be exercised here. Some disposed to criticize public reasons views, such as Kent Greenawalt, display great sensitivity to the complexity of the problem (especially in Greenawalt 1995); and Rawls’s own views on this issue are subtle. For an excellent explication of Rawls’s complex doctrine of public reason, see Freeman (2004). For a critical reconstruction of Rawls’s case for observing public reason, with special attention to religious beliefs, see Weithman (2000). 2 Rawls adds: ‘within the framework of free institutions of a constitutional regime.’ (Rawls 1996: xviii; see further Gaus 2003b). 3 I owe this point to Chris Eberle. 4 As stated, this is too simple: Alf may have excellent reasons to think Betty (qua member of P) has R, but he may still be mistaken. As stated, he would still violate the Duty of Civility: this may be too harsh. 5 See Gaus (1996). I develop the case for such rules in Gaus (2008). 6 See further Gaus (2008). Habermas’ view is more complex. His ‘two-­track’ conception of deliberative politics conceives of an interplay between democratic procedures and deliberative collective will formation: the procedures do not simply follow deliberation

36   G.F. Gaus (‘cut it off’), but also affect the formation of a deliberative rational agreement. Still, Habermas is quite clear that ‘[p]olitical deliberations . . . must be concluded by majority decision in view of the pressures to decide’ (Habermas 1996: 306). 7 For simplicity’s sake, I have stated this in overly strong terms. The analysis only requires that pairwise determinations could be made such that all P agree that Li is better than Lj, though they do not all agree on the best in the set.

Bibliography Audi, Robert (2000) Religious Commitment and Secular Reason, Cambridge: Cambridge University Press. Brennan, Geoffrey and Lomasky, Loren (1993) Democracy and Decision, Cambridge: Cambridge University Press. D’Agostino, Fred (1996) Free Public Reason, New York: Oxford University Press. Downs, Anthony (1957) An Economic Theory of Democracy, New York: Harper and Row. Eberle, Christopher J. (2002) Religious Conviction in Liberal Politics, Cambridge: Cambridge University Press. Freeman, Samuel (2004) ‘Public reasons and political justifications’, Fordham Law Review, 72: 2021–72. Gaus, G.F. (1996) Justificatory Liberalism, New York: Oxford University Press, 1996. —— (2003a) Contemporary Theories of Liberalism: Public Reason as a Post-­ Enlightenment Project, London: Sage. —— (2003b) ‘Liberal neutrality: a radical and compelling principle’ in George Klosko and Steven Wall (eds) Perfectionism and Neutrality, Lanham, MD: Rowman & Littlefield. —— (2004) ‘The diversity of comprehensive liberalisms’, in Gerald F. Gaus and Chandran Kukathas (eds) The Handbook of Political Theory, London: Sage, 2004. —— (2008) ‘The (severe) limits of deliberative democracy as the basis for political choice’, Theoria, forthcoming. —— (2009) ‘Coercion, ownership, and the redistributive state: justificatory liberalism’s classical tilt’, Social Philosophy & Policy, forthcoming. Greenawalt, Kent (1995) Private Consciences and Public Reasons, New York: Oxford University Press. Habermas, Jürgen (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Cambridge, MA: MIT Press. Hobbes, Thomas (1994) Leviathan, Indianapolis: Hackett. Hume, David (1963) ‘Of the original contract’, in Essays Moral, Political, and Literary, Oxford: Oxford University Press. Kant, Immanuel (1999) The Metaphysical Elements of Justice of Morals, trans. John Ladd, Indianapolis, NY: Hackett. Macedo, Stephen (2000) ‘In defence of liberal public reason: are slavery and abortion hard cases?’, in Robert P. George and Christopher Wolfe (eds), Natural Law and Public Reasons, Washington, DC: Georgetown University Press. Mill, John Stuart (1976) Principles of Political Economy, Fairfield, NJ: Augustus M. Kelly. —— (1977) Considerations on Representative Government in J.M. Robson (ed.) The Collected Works of John Stuart Mill, Vol. 19, Toronto: University of Toronto Press.

Religious belief in public reason liberalism   37 —— (1991) On Liberty, in John Gray (ed.) On Liberty and Other Essays, Oxford: Oxford University Press. Miller, Seumas (2001) Social Action, Cambridge: Cambridge University Press. Parfit, Derek (1984) Reasons and Persons, Oxford: Oxford University Press. Perry, Michael J. (1993) ‘Religious morality and political choice: further thoughts – and second thoughts – on Love and Power’, San Diego Law Review, 30: 703–27. Postema, Gerald J. (1995) ‘Public practical reason: political practice’, in Ian Shapiro and Judith Wagner DeCrew (eds) NOMOS XXXVII: Theory and Practice, New York: New York University Press. Rawls, John (1996) Political Liberalism, New York: Columbia University Press. —— (1999) A Theory of Justice, Cambridge, MA: Belknap Press. Schwartzman, Micah (2004) ‘The completeness of public reason’, Politics, Philosophy, & Economics, 3: 191–220. Solum, Lawrence B. (1993) ‘Constructing an ideal of public reason’, San Diego Law Review, 30: 729–62. Swaine, Lucas (2006) The Liberal Conscience, New York, NY: Columbia University Press. Weithman, Paul J. (2000) ‘Citizenship and public reason’ in Robert P. George and Christopher Wolfe (eds) Natural Law and Public Reason, Washington, DC: Columbia University Press.

2 Cultures, group rights, and group-­differentiated rights Peter Jones

A society’s political and legal arrangements can claim to respect cultural differences only if they enable the society’s members to live according to their different cultural allegiances. That need not be an especially demanding requirement. A liberal democratic society will accord its citizens the right to live according to their different beliefs and preferences, provided their beliefs and preferences do not require them to infringe the rights of others. Some of these beliefs and preferences may be identifiable as ‘cultural’, while others may not. But even if we can make that distinction, we may regard it as properly of no consequence for a liberal democratic society. As long as the society’s citizens enjoy equal freedoms and fair opportunities to live whatever way of life they wish, cultural differences will receive their due. There is no reason to single them out for special or privileged treatment. Nor should we withhold the description ‘multicultural’ from a society just because its political and legal arrangements fail to privilege or to make special provision for cultural differences. After all, the society seeks neither to advantage nor to disadvantage any particular culture and is content that its citizens should conform to any culture or none, provided only that they do so within the limits set by its liberal-­democratic rules. The view that I have just described might claim to respect cultural diversity, and yet, in the political philosophy literature, it would not generally be deemed ‘multicultural’. It has become normal to confine the description ‘multicultural’ to positions that would have us take specific account of cultural difference, rather than subsume it under more general sorts of difference, such as differences of belief, conviction, interest or preference. It has also become normal to describe political and legal arrangements as ‘multicultural’ only if they make some form of special provision for cultural difference. The proponents of that special provision do not usually understand themselves to be arguing for ‘privilege’ or any other sort of inequality. Rather, their claim is that providing adequately and fairly for cultural differences requires us to recognize the significance of their being cultural differences, and also to be responsive to, rather than heedless of, differences amongst cultures; it requires us to be difference-­sensitive rather than difference-­blind. One well-­known concept that has been developed to express that conviction is the notion of group-­differentiated rights, an idea whose most celebrated

Group rights and group-differentiated rights   39 analyst and proponent is Will Kymlicka (1989, 1995, 2001). For Kymlicka, the holders of group-­differentiated rights are cultural groups or their members, and the differentiated content of those rights is justified by the need to secure genuinely just arrangements in societies that are culturally diverse. Different cultural groups are differently circumstanced and differently vulnerable, and the rights they enjoy need to be differentiated to cope with that fact. Kymlicka has used other phrases to describe these rights, including ‘special rights’ and ‘group-­ specific rights’, but throughout this chapter I shall use his term ‘group-­ differentiated rights’. Taken at face value, the proposition that rights should be ‘group-­ differentiated’ is entirely unexceptional. That people’s rights should differ according to their different group memberships is the norm rather than the exception. People have different rights according to their membership of different sports clubs, or trade unions, or businesses, or universities, or churches, or states, or regional bodies. Perhaps the only rights that are not group-­differentiated are human rights, and even they become group-­differentiated if we extend rights to non-­human animals. However, in Kymlicka’s usage ‘group-­differentiated’ signifies more than this commonplace phenomenon. He uses the notion of group-­differentiated rights only in relation to citizenship. Indeed, he often uses the phrase ‘group-­ differentiated citizenship’ to express the same idea (see, for example, Kymlicka 1995: 9, 26, 124, 174, 182; Kymlicka and Norman 2000).1 The basic idea is that people who share a common status as the citizens of a society may nevertheless have different rights as citizens according to the different cultural groups to which they belong.2 One feature of citizenship that is significant for group-­differentiated rights is that the status of citizen, and the rights that go with it, are not for most people matters of mere volition. People commonly have a degree of choice over whether they belong to a university or a church or a business firm, and, if they choose to be members of any of these, over which particular university, church or business they join. People do not similarly have a choice over whether they are citizens of states, and they have only a highly constrained choice over the particular state of which they are a citizen. The same applies to their membership of cultural groups. Cultural differences are generally conceived as ‘ascriptive’ rather than self-­chosen. However, the involuntary nature of the memberships associated with group-­differentiated rights is perhaps less a defining feature of those rights than a factor that helps to justify their being group-­differentiated.

Group rights and group-­differentiated rights Commentators on ‘group-­differentiated rights’ have taken to abbreviating that term to ‘group rights’ (e.g. Pogge 1997; Miller 2002). That shift in terminology is unfortunate, since it invites a conflation of two distinct ideas. A right is ‘group-­differentiated’ if it is held by some group or groups and not others. A right is a ‘group right’ if the holder of the right is a group rather than its members

40   P. Jones severally. A group-­differentiated right might also be a group right. For example, it is difficult to conceive how the group-­differentiated right of a group to be self-­ governing could be other than a group right. But a right can also be group-­ differentiated and held by the individual members of the group as individuals. In Britain, Sikhs enjoy the group-­differentiated right not to wear a crash-­helmet when they ride a motorcycle (provided they wear a turban), and they have the right to carry a knife (the kirpan) in public while most other people in Britain do not. Those group-­differentiated rights are entirely intelligible as rights possessed and exercised by individual Sikhs. A right’s being limited to a group does not imply that it must be a group right. As observed above, rights held and exercised by individuals are, in most instances, rights that are tied to some form of group-­ membership. This distinction between group-­differentiated rights and group rights is one to which Kymlicka himself has been keen to draw attention. His preferred term for group rights proper is ‘collective rights’. In his first book, Liberalism, Community and Culture (1989), he used the term ‘collective right’, along with ‘minority right’, to describe the rights that should be special to particular cultural groups, such as Aboriginal groups in Canada. In fact, his use of ‘collective right’ was quite proper, in that the ‘special’ rights to which he gave greatest prominence were rights that were, or would be, held by cultural groups qua groups, rather than by their members severally.3 However, in later work he has stressed rather more that what is significant about these cultural rights is their differentiated character rather than the nature of their holder. Accordingly, he has adopted the terms ‘group-­differentiated’ and ‘group-­specific’ to avoid the implication that these rights have to be group (or ‘collective’) rights. In fact, Kymlicka has now swung to an opposite extreme. In a frequently noticed comment, he has dismissed the debate over whether group-­differentiated rights are collective rights as ‘sterile’, ‘because the question of whether the right is (or is not) collective is morally unimportant’ (1995: 45). The real issue is whether and why a right should be specific to a group, rather than by whom the right would or should be held. Confusion over these two issues has, he argues, led several commentators to engage in the wrong debate about cultural rights. In a similar spirit, David Miller has remarked that whether group-­differentiated rights are rights held by the individual members of a group or only by the group as a whole is not a matter ‘of fundamental significance, either conceptually or normatively’ (Miller 2002: 180). In one respect, Kymlicka’s and Miller’s side-­lining of the debate over cultural group (or collective) rights is both understandable and justified. If what is at issue is whether differences in culture should be matched by differences in right, it is those differences that are the proper focus of the debate, and not whether group-­differentiated rights can be or should be held by groups qua groups rather than by their members severally. As Kymlicka observes, those who object to different rights for different cultures will be no more reconciled to group-­ differentiated rights if those turn out to be rights held and exercised by individuals rather than by groups (Kymlicka 1995: 46). Moreover, although

Group rights and group-differentiated rights   41 group rights can be group-­differentiated, they need not be, so that debates about group rights can be conducted separately from those about group-­differentiated rights. On the other hand, many of the rights that Kymlicka presents as group-­ differentiated remain group rights. Indeed, those that bulk largest in his writings (Kymlicka 1989, 1995, 2001, 2007), such as the rights of indigenous peoples or national minorities to collective self-­government or some measure of group autonomy, to territory or specific tracts of land, to group representation, to receipt of official status and publicly funded support for their language, and to recognition of their customary law, are rights that are most intelligibly held by groups qua groups.4 To that extent, the issue of group-­differentiated rights remains entangled with that of group rights. That entanglement has added significance for Kymlicka, since he aims to give a specifically liberal defence of the rights of cultural minorities. There is a widespread perception that liberalism and group rights do not mix: the moral assumptions underlying one are at odds with those underlying the other. There is also a widely shared belief that group rights will function in a way that threatens values that liberals hold dear. Indeed, Kymlicka himself is well aware of, and seeks to provide for, those threats. The purpose of this chapter is to explore the relationship between group rights and group-­differentiated rights, and to examine how far the sort of liberal defence Kymlicka gives of group-­differentiated rights is consistent with the collective character of many of the rights that he and others claim for cultural groups.

Interpreting cultural group rights Cultures are necessarily group phenomena: I cannot have a culture that is uniquely mine; I can have a culture only that I share with others. It is easy to suppose therefore that rights relating to cultures must be group rights. It is no less easy to expose the error of that supposition. The language I speak, the clothes I wear and the god I worship may all manifest the culture to which I belong. Nevertheless, if someone prohibits my speaking that language, wearing those clothes or worshipping that god, the rights that they violate are entirely intelligible as rights that I possess as an individual. I am the wronged party, rather than the group of which I am a mere constituent. Of course, every other individual who shares my culture and is subject to the same prohibitions is equally wronged, but that does not entail that we are wronged as a group rather than severally. We might think of the three rights instanced here as rights that are uniform across cultures, but that does not matter because, as we have seen, rights that are group-­differentiated can still be rights held by individuals. Nevertheless, there are some rights relating to cultures that seem to make sense only as group rights. Consider, for example, the right of a cultural group to be self-­governing in some if not all aspects of its common life, or its special rights in relation to a particular territory, or the right that public measures and public resources should be devoted to ensuring the continued viability of its language, or the right that the sacred sites of its religion should be maintained and

42   P. Jones safeguarded. We might, of course, question whether these putative rights are really rights. But, if we accept that they are, it is hard to see how we can avoid accepting that they are rights held by the cultural group as a group rather than by its members severally. Certainly Kymlicka shows no reluctance to embrace these sorts of right merely because they make sense only as group rights. It is often supposed that ascribing rights to a group as such entails ascribing moral status to the group as such. If groups can be right-­holders in a way that parallels individual persons, that may seem to imply that a right-­holding group must have a moral standing that is equivalent to the moral standing of a right-­holding person. We ascribe rights only to beings to which we ascribe standing, so ascribing rights to groups as such can seem to entail ascribing standing to groups as such. Yet giving moral standing to groups is something to which liberals are generally resistant. It is an ascription that Kymlicka is not willing to concede. Groups have no moral claim to well-­being independently of their members – groups just aren’t the right sort of beings to have moral status. They don’t feel pain or pleasure. It is individual, sentient beings whose lives go better or worse, who suffer or flourish, and so it is their welfare that is the subject-­ matter of morality. (Kymlicka 1989: 241–2; see also 244) The reservation expressed by Kymlicka is shared by more than the amorphous and heterogeneous bunch of theorists generally described as ‘liberal’. One does not have to be a liberal to hold that ultimately it is individual persons whose well-­being matters. That view is entirely consistent with a highly communitarian conception of human well-­being: holding that human beings lives go well or badly together does not entail making groups the ultimate objects of our moral concern rather than the individual persons who make up their members. Accordingly, the equally amorphous and heterogeneous bunch of theorists generally labelled ‘communitarian’ show no special enthusiasm for group rights. But if we do not ascribe moral standing to groups as such, how can we ascribe rights to groups as such? The simplest answer is by ascribing rights to groups that are not moral in foundation. We can limit ultimate moral standing to individuals while also creating institutions and enacting laws that give both status and rights to groups. That seems to be, in significant measure, how Kymlicka conceives group rights. The group-­differentiated rights that he argues national and ethnic minorities should enjoy he seems frequently to think of as rights that the larger society should create and secure for those minorities, whether they do so in the form of group rights or individual rights. The moral impetus for those rights comes from what is necessary to provide, on genuinely equal terms, for the well-­being of the members of different cultural groups. But group rights themselves are the legal or institutional instruments of that moral imperative; they are not themselves part of the moral imperative. That does not, however, provide a wholly satisfactory answer. Most of us are happy to ascribe moral as well as legal rights to individuals, and to contemplate

Group rights and group-differentiated rights   43 situations in which we would want to say that the laws or political arrangements of a society violate, or fail to recognize, the moral rights of individuals. If we think that people can have group claims and that they will be wronged if those claims are ignored or overridden, there seems no good reason why we should not hold similarly that some group rights may be moral rights. If we say, for example, with Kymlicka, that a majority society may fail to recognize the right of a national minority to determine its own affairs, we imply that the national minority has that right even if it passes unacknowledged by the majority. If and when the majority society does embody the right in its institutional arrangements, we will conceive that as an act of recognition by the majority rather than an act of creation in which the majority, ab initio, ‘gifts’ a right to the minority. If, however, we do want to think of at least some group rights as moral entitlements, we are forced back to the question of whether we can do so without ascribing a moral status to a group that is not wholly reducible to the status of its members. The answer to that question is that we can if we distinguish between two fundamentally different conceptions of group rights. I describe these as the ‘corporate’ and ‘collective’ conceptions (Jones 1999, 2009). The corporate conception embodies the traditional conception of group rights in which the group has a moral status analogous to that of an individual person. The group, as right-­holder, is conceived as a unitary entity rather than a collection of persons, which is why I describe this conception as ‘corporate’ rather than collective.5 Those who subscribe to this conception often vindicate it by pointing out that we think of groups as having continuing identities even though their memberships change (see, for example, French 1984; Graham 2002; Newman 2004).We think, for example, of a football club or trade union remaining the same club or union over time, even though some individuals leave the group and others join it. If a group’s identity is unaffected by changes in its membership, its identity as a group cannot be reducible to that of its members at any particular moment. Similarly, if the group has rights, those rights cannot be fully understood as merely the rights of the set of individuals who constitute its members at any particular moment. However, not all proponents of the corporate conception are willing to separate a group from its members in that way. Some find the integrity necessary for a group to be a right-­holder in neither its institutional form nor its objective characteristics, but in the common bond and sense of identity that its members share (for example, May 1987; McDonald 1991; Galenkamp 1993). If a group is a group in virtue of its members’ intersubjective experience, the group cannot consist of anything other than the body of persons that undergo that intersubjective experience. Nevertheless, the conception of group rights spawned by this conception of a right-­holding group remains ‘corporate’ in character insofar as it conceives the group as having a moral standing that is not reducible to the standing of its members severally. The collective conception, by contrast, ascribes no such independent moral standing to a group. It conceives group rights as rights that are shared in, and held jointly by, those who make up the right-­holding group. Group rights are

44   P. Jones rights held by the individuals who make up a group, but they are distinct from individual rights in that they are rights that the members of the group hold together but not separately. Thus these rights are properly described as ‘collective’, even though the moral standing that underwrites them is the standing of the several individuals who make up the right-­holding group rather than that any standing a group is supposed to enjoy as an independent moral entity. Why might we need to make moral space for rights that individuals hold collectively but not separately? Here are two possible answers. Joseph Raz suggests that a group of individuals has a collective right when their interests in a good, that is public to themselves as members of a group, suffices to ground a duty for others, while the interest of any single member of the group would not suffice to ground that duty (Raz 1986: 207–9). In other words, there can be cases in which the interests of one individual is insufficient to ground a right to a good, while the interest of several such individuals does suffice to ground the right. Those individuals then share in a right together that none of them possesses separately. Consider, for example, the right of a linguistic minority that its language should be usable in the public institutions, such as the judicial system and the public bureaucracy, of the society to which it belongs. Given the costs and inconvenience entailed by that linguistic provision, it is most unlikely that the interest of a single member of the minority could justify the right. But the combined interests of a large number of such individuals might well provide that justification. If it does, the linguistic minority will hold a right collectively that none of its members holds separately. A second kind of case does not rely on this idea of interest aggregation. Some goods are indivisible or undivided as between the members of a group. Consider a group of religious adherents for whom a particular site is sacred. If there is a right that the site, because of its sacred character, shall not be damaged or desecrated, who possesses that right? Here again (assuming that there are insufficiently radical differences of status amongst the members of the religious group), the right answer seems to be the religious adherents collectively rather than each of them separately. This time the reason is not that it requires the combined interests of a certain number of individuals before we reach the threshold required for the creation of a duty; even if the adherents of the religion dwindled to a single person, there might still be a case for the duty. Rather, the reason is that, where a set of individuals has a right to one and the same thing, it makes no sense to think of each individual holding a separate right to the good rather than sharing in a right he or she holds jointly with others.6 It is possible therefore to acknowledge group rights – rights that people can possess only as groups – while holding that groups have no moral standing separate from the individuals who make them up. But can this collective conception of group rights really make sense of goods that take a necessarily rather than a contingent social form? Consider a cultural group’s shared mode of life. If we suppose that that mode of life is a good for those who live it, it is not a good that individuals can experience separately or independently; it is a necessarily social good. Or consider the good for a group of its common language, where the good

Group rights and group-differentiated rights   45 of the language is conceived not as an individual tool of communication but as a shared practice; again, conceived in that way the language is a necessarily social phenomenon. Faced with these necessarily social or collective goods, some theorists suppose that a group’s interest in those goods must be a collective interest that is not reducible to the several interests of the several individuals who make up the group, and, accordingly, that a right generated by those interests must be a group right corporately conceived. The group has interests that are not intelligible as the interests of its member separately, so that the group as the possessor of those interests, and of the rights they ground, must have a moral status that is not reducible, without remainder, to the status of the several individuals who constitute its members. That reasoning is mistaken. A good can be necessarily social such that an individual can have an interest in the good only along with others rather than on his own, but what makes that interest matter is that it is an interest of the several individuals for whom it is a good. Equally, what makes the case for a right to the good is the interests in the good of the several individuals who constitute the group, rather than some mysterious interest that is possessed by something beyond or apart from those individuals. It does not follow, from a good’s being necessarily social, either that the interest in that good must be something other than the interests of the several individuals who share in the good, or that a right to the good must be something other than a right held jointly by the individuals who share an interest in the good. Kymlicka believes that the conflation of group-­differentiated citizenship with collective rights ‘has had a disastrous effect on the philosophical and popular debate’ (1995: 46). It has led to a debate between individualists and collectivists over the relative priority of the individual and the community. That debate, he reckons, is ‘irrelevant to most group-­differentiated rights issues in liberal democracies’ (1995: 47). I agree there has been a disaster here, but I would characterize it rather differently. Insofar as group-­differentiated rights are group rights, debate over them cannot avoid the issues surrounding group rights. The disaster has been a failure to recognize that individuals can hold rights jointly as well as separately, and that rights to necessarily shared goods are intelligible as collective, rather than corporate, rights. That failure has confronted people with a choice between two equally unappealing alternatives: either individuals can only ever hold rights individually and never in combination with others, or, if we are to acknowledge collective claims, we must ascribe a being and moral status to a group that is separate from those of its members. But, as I have endeavoured to show, those are not our only options. If we understand group rights according to the collective conception, they will be entirely consistent with the moral assumptions of a liberal theorist like Kymlicka. There are, however, some group-­right claims, including some of those made by or for cultural groups, that are less clearly consistent with the collective conception. The most obvious cases are group rights that take a transgenerational form. Consider the right of a nation or an indigenous minority over its territory. Typically, that would be thought of not as a right possessed and bequeathed by

46   P. Jones successive sets of individuals who are concatenated across time, but as the right of a single continuous entity. If we think of a group right in that way, we may seem obliged to conceive it on the corporate model, since the right-­holding group has a being and an identity that transcends that of its members at any particular time. Can, then, the collective conception take us only so far in making sense of cultural group rights? Are some of the rights commonly ascribed to cultural groups intelligible only as corporate rights? There are two ways in which we might resist that conclusion. We might accept that group rights over territory are corporate rights, but that they are corporate legal rights, or quasi-­legal rights based upon historical agreements or long-­established practice (cf. Kymlicka 1995: 116–20). Scepticism about corporate moral rights need not entail scepticism about corporate legal rights, so this avenue is open to those who are reluctant to accept that fundamentally moral group rights can be other than collective rights. Moreover, if we do conceive the rights at stake here as legal rights, we need not conceive them as matters of mere legality. There can be strong moral reasons why an established legal arrangement should be honoured and respected. We typically think that moral considerations should inform the content of law, but law can also inform the content of morality: when a legitimate legislature creates legal rules and arrangements, it can alter what, morally, we have reason to do. Thus, if some group rights, such as rights to territory, are legal in origin and foundation, it does not follow that we can have only legal reasons for taking them seriously. A second possibility is that the historical identity of a group of individuals might provide reason for that group’s having a collective moral right to the territory with which their identity has been historically associated. That historical entitlement might well be caught up with national or international law or past treaties or long-­established practice, but, insofar as we think that depriving the group of its traditional territory would wrong it morally, instead of or as well as legally, we should conceive the morally wronged group collectively rather than corporately. Even if the legal group right is corporate in character, we may still conceive the equivalent moral group right collectively, so that the moral wrong wrought by a violation of the right is suffered by the flesh-­and-blood people who make up the group rather than by a corporate legal entity that is other than those people.7

Cultural group rights and threats to individuals One of the persistent worries evoked by group rights, and especially by cultural group rights, is the threat they pose to individuals and their rights. How does the distinction between corporate and collective rights relate to that worry? Before answering that question, we need to consider what it is that we have reason to worry about. The individuals who are potentially threatened by group rights can be of two sorts: either those outside, or those inside, the right-­holding group. We might suppose that it is individuals outside the right-­holding group who are under the

Group rights and group-differentiated rights   47 greater threat. Ascribing rights to groups creates the possibility that the right of a large group will come up against the right of a solitary individual. In that uneven contest, the right of the mighty group may assume the character of a moral juggernaut that can effortlessly roll over and crush the right of the puny individual. Yet that is not a worry that bulks large in the literature on group rights. The reason is perhaps that externally directed group rights, including those claimed for cultural groups, tend to be conceived as rights directed at other groups, or at a society or humanity at large, rather than at discrete individuals. Thus, while there are well-­rehearsed concerns about the injustices that group-­differentiated rights might create between cultures, those are not commonly worries about a group’s using its rights to oppress individual outsiders. Overwhelmingly, anxieties expressed about group rights concern the fate of individuals inside the right-­holding group. The principal thought is that the right we concede to a group might be a right to regulate the lives of its members, and that right can become a licence for internal oppression. Given the current nature of many traditional cultures, women in particular may find their freedom and equality seriously compromised if they are subordinated to the dictates of a particular cultural group (cf. Cohen et al. 1999; Tamir 1999; Deveaux 2000; Barry 2001; Shachar 2001; Okin 2002; Eisenberg and Spinner-­Halev 2005; Song 2007; Chambers 2008). Why should the right of a cultural group to be self-­governing cause such concern, given that it is entirely commonplace for others sorts of group, such as churches, universities, and golf clubs, to regulate the conduct of their members? There are at least three reasons. First, cultural groups are normally ascriptive groups. Individuals do not choose to become members of them, and they may find it difficult or impossible to divest themselves of membership. The options of entry and exit that individuals normally enjoy in respect of churches, universities and golf clubs are not always similarly available in the case of cultural groups. Second, given the inclusive and enveloping nature of cultures, the power exercised by a cultural group over its members may reach into their lives far more deeply and comprehensively than the authority possessed by any voluntary association. Third, insofar as our concern is with cultural groups that exist within larger liberal-­democratic societies, the group-­differentiated rights claimed by those groups may be ‘differentiated’ precisely in departing from liberal-­ democratic norms of freedom and equality. In spite of his dismissing as ‘morally unimportant’ the question of whether group-­differentiated rights are also group rights, Kymlicka is acutely aware of the issue of how a group’s right might bear upon the group’s own members. He recognizes the possibility that a group right can be a right that the group uses to restrict or remove the basic freedoms of some of it members. He also recognizes that, for some cultural groups, this possibility is a reality. He seeks to provide against it by distinguishing between (a) rights that impose internal restrictions upon the group’s own members, and (b) rights that protect the group from the external world (Kymlicka 1992a; 1995: 34–44, 152–5; 1996). He advocates the latter sort of right, but not the former. If a group’s right does no more than

48   P. Jones protect the group from external threats to its way of life and its members’ well-­ being, it will pose no threat to the group’s own members. At first sight, Kymlicka’s rejection of the right of a group to impose restrictions upon its own members is puzzling. A right he is keen to advocate for national minorities and indigenous peoples is the right to collective self-­ government. That will normally be a right to partial rather than full self-­ government, since, for some matters, the minority group will remain properly subject to the overarching jurisdiction of the state. But even if a group’s right is a right to only partial self-­government, it must be a right to organize the lives and restrict the conduct of its members, since that is what ‘government’ entails. However, Kymlicka uses the phrase ‘internal restriction’ to describe not the ordinary unexceptionable restrictions on people’s liberty of a sort that we are likely to find in any society, but only restrictions that deprive individuals of basic civil and political liberties (Kymlicka 1995: 36, 152). So the rights of individuals, particularly their rights to basic civil and political liberties, should limit the authority that national minorities and indigenous peoples are able to wield over their members. The limits Kymlicka places on a group’s right to govern its internal affairs looks like a liberally inspired compromise between two sorts of competing right: the rights of the group over its members, and the rights that those members enjoy individually and independently of the group. A group will have the right to limit the freedom of its members up to a point at which its right are overtaken and trumped by the rights of its members as individuals. The relationship between group rights and individual rights is frequently conceived according to that antagonistic model; but it is a model that leaves us with some awkward questions. If we concede that a group has a right to be self-­governing, can we also hold that outsiders have the right to intervene and override that right when they disapprove of the way the group uses its right? Does not a right to group autonomy entail immunity from precisely that sort of external interference, no matter how well intentioned it may be? Moreover, the way in which Kymlicka curtails group-­differentiated rights of self-­government has led to suggestions that he must be committed to a policy of liberalizing the internal arrangements of groups – a policy that may be at odds with the very cultures he is ostensibly concerned to respect and protect. Kymlicka is indeed willing to accept, subject to very considerable qualification, that there is a case for liberalization, although he rejects coercive impositions as suitable means for executing that policy (except in extreme cases) and proposes instead the use of persuasion, education and incentives (1992a: 51–3; 1992b; 1995: 94–5, 152–72; 1996: 26–30; 2001: 82–90). Here again, the distinction between corporate and collective rights makes a crucial difference to how we see the issue of how the claims of a group relate to those of its members. A group conceived corporately can possess moral rights over its members because, on that conception, the group has a moral standing separate from the standing of its members taken severally. That makes it possible for the group conceived as one moral entity to possess rights that impose duties or liabilities upon its individual members conceived as other moral entities. Thus, if we conceive group rights on the corporate model, those rights can

Group rights and group-differentiated rights   49 be directed at the group’s own members and the possibility of competition or conflict between the claims of the group and those of its individual members becomes very real. On the collective conception, however, there is no group that possesses moral standing separately from its members. There are only individuals who hold their rights jointly and, by common consent, individuals cannot hold rights against themselves. If individual A cannot hold a right against himself, it would be odd to suggest that individuals A and B, as the joint holders of a right, could hold that right against themselves either jointly or singly. The same logic applies if we add C, D, E, et al. to the individuals who jointly hold the right. If a collective right imposes a duty or liability, that duty or liability must fall upon a party external to the individuals who make up the right-­holding collectivity. The inability of a group’s right to burden its own members with duties and liabilities is not, therefore, something dictated by a principle external to the group’s collective right; it is part of the very logic of a collective right. If collective rights can be directed only at parties external to the right-­holding group, can we square that with the idea that a group can have a collective right to be self-­governing? The government of a group is necessarily government of those who make up the group, so that a group’s right to be (wholly or partially) self-­governing may seem to be a right that is necessarily directed inwardly to the group’s own members. Given what I have just argued, that might suggest that a group’s right of self-­government can be only a corporate right, that it is simply unintelligible as a collective right. To see why that is not so, we need to attend more carefully to what a ‘right to self-­government’ means. In the present context, the right of a group to be self-­governing is, in the first instance, a right that it possesses against outsiders to be allowed to order its own affairs rather than be subject to external rule or external interference. In the case of cultural groups, the thought is presumably that a group of individuals who share in a culture also share an interest in forming a unit that can order its affairs in accordance with its culture, and that interest is sufficiently significant to ground a right to (complete or partial) self-­rule.8 When Kymlicka speaks of the right of a national minority or an indigenous people to be self-­governing, it is that externally directed right that he seems principally to mean. Because the right is externally directed, it is fully intelligible as a collective right. The claim-­right of a cultural group to be self-­governing, which it holds against outsiders, is consistent with, but not the same as, the right to rule (the authority, the Hohfeldian ‘power’9) that belongs to whatever body the group establishes or recognizes as its internal government. A governing body clearly does wield its right over those it governs. The distinction between these two rights – the right of the group against the outside world to be self-­governing and the right of an internal office-­holder to govern the group – is readily apparent if, for the management of its affairs, the group subordinates itself to the rule of a single person or a small elite. The two rights are more easily confused if the group establishes a democratic form of government, especially a direct democracy. We might then use the

50   P. Jones phrase ‘self-­government’ to describe the democratic nature of the group’s governance, and that can induce us to conflate the two rights. But they remain distinct. One right is the group’s collective right against the outside world entitling it to order its own affairs. The other right, supposing that the group establishes a direct democracy, is the institutional right (the authority) that the demos wields as the occupant of the group’s governing office. The distinction between government and governed is as present in a direct democracy as it is in any other form of government, even though all of those who are subject to the government’s decisions can participate in their making. The right that the group wields over its members is the institutional right it possesses as the holder of the group’s governing office, and it is the distinction between the group as governing office-­ holder and the group’s members severally as subordinates of that office that enables us to make sense of a people exercising authority over itself. The personnel of ruler and subject may be the same, but those personnel as ruler exist in a different institutional incarnation from the same personnel as subjects. The right (authority) of a population incorporated as office-­holder is therefore different in kind from a ‘collective right’ as I have used that term. Could we say that the members of the group possess a collective right to be governed democratically and only democratically? We could.10 But, assuming that we understand that collective right to be a claim-­right, against whom would the group hold it? As I have already explained, it would contradict our normal thinking on rights to answer ‘itself’. But the right could make sense as one held against parties external to the group who might try to impose upon it some other form of government or to interfere in some other way with its democratic governance. The right might also be held against a potential internal usurper, but in that case the usurper would fall outside the group that holds the collective right, since the usurper cannot share in holding the right against himself. If we hold that a group of individuals shares a collective right against outsiders to be self-­governing as a group, we can, by extension, hold that they share in a right to be governed by whatever authority the group establishes for its own government (rather than by some other authority). But notice again the implication of that right’s being collective rather corporate in form. Assuming we employ an interest theory of rights,11 I shall be a member of the group that has a collective right to be self-­governing, and that right will place me under the authority the group establishes, only if and so long as I share in the interest that grounds the collective right. If the authority of the group is used to persecute me, or to exploit me, or significantly to harm me in some other way, I shall cease morally to be a member of the right-­holding group since I shall cease to share in the interest that grounds its collective right. And, if I cease morally to be a member of the group that shares in a right to self-­government, I shall also cease morally to come under the group’s authority, if and because I come under that authority in virtue of sharing in the group’s right to be self-­governing. So, if a group’s right to self-­government is a collective right, it cannot be a right that functions in a way that is fundamentally contrary to the interests of any of those who jointly hold the right. I say ‘fundamentally’, because we need not

Group rights and group-differentiated rights   51 hold that every decision of the group must be in the immediate interest of each of its members. Trading off competing interests is part of the ordinary stuff of collective decision-­making and, for any individual, occasional losses can be set against overall gains. But an individual cannot be said to share in a collective right to group self-­government if the group’s government acts contrary to the individual’s fundamental interests or to his or her interests all things considered. For that reason, a collective right of self-­government cannot be a right that redounds to the fundamental disadvantage of any of those who make up the right-­holding group. It is otherwise if we conceive the right as a corporate right. If we employ the interest theory of rights again, the relevant interest will be that of the group conceived as a unitary corporate entity. That interest can be at odds with the interests of individuals who are encompassed by the group. For example, the long-­term survival of the group as a corporate entity could justify severe restrictions on the freedoms of its current members. Thus, on the corporate conception, there is no conceptual barrier to a group’s right of self-­government functioning in a way that seriously disadvantages some of the group’s members, or even all of them at a particular time. That is not to say that, if we adopt a collective conception, everything will be straightforward. For one thing, it may not be easy to institutionalize group rights in a way that observes all of the niceties of the collective conception. As a practical matter, allowing a group to establish and operate its own governmental structures may require tolerating a degree of variance from what the idea of a collective right would actually sanction. Another problem lies in the issue of who should have the authority to decide upon an individual’s interest. Given that we can impute interests to individuals that differ from their own understanding of their interests, the collective conception is logically compatible with rights that ride roughshod over the wishes of their holders. For example, those who wield authority within a group may compel dissenting individuals to comply with the group’s traditional form of life and claim that, in doing so, they are simply promoting the real interests of the dissenters. Thus, even though the dissenters are coerced and are perhaps compelled to remain members of the group against their will, the coercers might justify their coercion by appealing to an interest that grounds a collective right and that is shared by all members of the group, including the benighted dissenters. However, a collective right’s having to keep faith with the interests of each of its joint holders points more obviously in a different direction. I shall not rehearse here the reasons why ordinarily it is right or best or most prudent to allow individuals to be the guardians of their own interests.12 If we take that view, the collective conception clearly argues for certain limits upon institutionalized group rights. It can easily justify an individual right of exit from the group of the sort argued for by Chandran Kukathas (1992, 2003; see also Barry 2001: 146–54; Levy 2005; Spinner-­Halev 2005). If a group’s right of self-­government is grounded in the shared interests of its members, allowing individuals a right of exit is an obvious safeguard against the possibility that some individuals will

52   P. Jones cease to share in the interest that grounds the right or that those who exercise authority in the name of the group will use it to oppress some of the group’s members. The right of exit, as a safeguard against internal oppression by a group, has come under serious criticism (see, for example, Kymlicka 1992b; Okin 2002; Reitman 2005; Weinstock 2005; Phillips 2007: 133–57). That is not because critics see it as a right that individuals should not have, but because, realistically, it will often be a right that individuals feel unable to exercise. The high personal and material costs of leaving a cultural group, the social pressures upon individuals to stay, and the absence of satisfactory havens to which they might escape, will frequently make exit an ineligible option. Moreover, the dissenting members of a cultural group may find their status in, or treatment by, the group objectionable in some respects and yet remain strongly attached to the group and its culture in others, so that the ‘all or nothing’ option offered by a right of exit does not match the nature of their predicament. We may therefore have to think of other possibilities. Ayelet Shachar (2001) has proposed a system of joint governance, in which the leaders of states and cultural groups would have to vie with one another for the allegiance of individuals across a range of discrete ‘sub-­matters’ within broad social arenas such as education, family law and criminal justice. She describes this system of joint governance as ‘transformative accommodation’ since it is designed to remedy the mistreatment and burdening of individuals and sub-­groups, not by obliging them to abandon their cultural group but by putting pressure on the group’s leaders to remove mistreatments and to relieve disproportionate burdens, since those leaders have to compete with the state for each individual’s willingness to come under their jurisdictional authority on each of several sub-­matters. If a group does not accommodate its disgruntled members, those members will still need to exercise a right of exit if they are to move from the group’s to the state’s jurisdiction, but they can exercise it selectively – that is, only on the sub-­matter on which they are disgruntled. Whatever difficulties and objections Shachar’s proposal might face (cf. Levy 2005; Reitman 2005; Chambers 2008: 146–56), it is clearly consonant in spirit with a conception of cultural group rights as collective rights. Alternatively, and more simply, the state or the international community may lay down a set of basic rules and rights designed to secure fundamental liberties and fair treatment for all, including those who belong to autonomous or semi-­ autonomous cultural groups. Whatever group-­differentiated rights cultural groups might possess, they could not be rights that conflict with the rules and rights that the encompassing state or the international community identifies as basic.13 I cannot here assess the merits and practicability of these and other possibilities. My principal concern has been to indicate how they can be justified by the idea of group rights collectively conceived. Collective rights are rights grounded in the interests of the individuals who share in them. Thus, measures that aim to safeguard the interests of individuals need not compete with, or frustrate, or

Group rights and group-differentiated rights   53 override the rights of groups; they can be entirely consistent with the demands of group rights provided we understand those to be the demands of collective rights. Group rights collectively conceived will not be rights that threaten the individuals who jointly hold them. My principal point of reference in this chapter has been Kymlicka’s work on multiculturalism, and in particular his conception of group-­differentiated rights. Most of the group-­differentiated rights that Kymlicka has devoted his greatest efforts to promoting or defending also happen to be group rights. Unlike many other commentators, my concern has not been to take him to task for incorporating group rights in an otherwise liberal approach to multiculturalism. On the contrary, my aim has been to show that we can conceive group rights in a way that is entirely consonant with Kymlicka’s liberal premises and that removes many worries that liberals have about group rights. Whether, in any particular case, a group-­differentiated right is also a group right, rather than a right held by the group’s members severally, is rather more significant than Kymlicka concedes; but, if it is a group right, no less significant is the question of whether it is a collective or a corporate right.

Notes   1 Kymlicka also uses ‘group-­differentiated’ to describe a quite different sort of difference amongst citizenship rights: the difference between the rights enjoyed by the citizens of one state and those enjoyed by the citizens of another (1995: 124–6). That usage of ‘group-­differentiated’ is altogether more prosaic: the fact that the rights of the citizens of one state differ from those of another is no more remarkable than the fact that the rights of the members of one university or trade union or golf club differ from those of another.   2 It is possible to apply the notion of differentiated right-­holding within a group to more than just citizens in multicultural societies – for example, there might be group-­ differentiated rights within a church or within a social club – but, to my knowledge, Kymlicka does not extend the notion in that way. Recently, he has used the term ‘targeted minority rights’, which differ from ‘generic minority rights’ in being ‘group-­ differentiated’ (2007). However, ‘targeted minority rights’ is a more specific notion than Kymlicka’s general concept of group-­differentiated rights. For one thing, a right that is generic to minorities might still be group-­differentiated with respect to the larger society within which any particular minority exists. For another, Kymlicka uses the idea of targeted rights to describe rights that are targeted at, and so unique to, particular types of minority, ‘such as indigenous peoples, national minorities, immigrants, the Roma/gypsies, and so on’ (2007: 199). He cites Article 27 of the International Covenant on Civil and Political Rights as exemplifying the generic approach to minority rights: in ascribing rights to minorities, the Article does not differentiate between different types of cultural minority, such as those listed in the previous sentence (2007: 199–200). However, targeted minority rights are similar in inspiration to the more general idea of group-­differentiated rights: they aim to protect different types of minority from the threats they face at the hands of modern nation-­ states and they need to be ‘targeted’ because different types of minority face different types of threat.   3 The minority rights that figured most prominently in Kymlicka’s Liberalism, Community and Culture were the rights of aboriginal groups to self-­government, their rights over their territories, and their right to restrict the mobility, property and voting

54   P. Jones rights of non-­aboriginal people with respect to aboriginal communities and lands. However, even in that book, Kymlicka expressed reservations about the appropriateness of the terms ‘minority right’ and ‘collective right’ (1989: 138–40), and noted that ‘some of the measures which define the special status of aboriginal peoples in Canada do not involve . . . collectively-­exercised rights. Instead, they simply modify and differentially distribute the rights of individuals’ (1989: 139).   4 Kymlicka also focuses on language rights, but these can be either group or individual rights depending on the particular language right at stake. See Kymlicka 1995, 45–6; 2001, 78–9; Kymlicka and Patten 2003. The group-­differentiated rights claimed for migrant minorities in polyethnic societies (as contrasted with those claimed for indigenous peoples and national minorities) are less frequently, but still can be, group rights. If, for example, we say that a migrant group has a right to be consulted by the government on a certain matter, that will be a group right.   5 Several theorists whose conceptions of group rights are, according to the distinction I make here, ‘corporate’ rather than ‘collective’, themselves use the adjective ‘collective’ to describe group rights (e.g. MacDonald 1991; Galenkamp 1993; Newman 2004). As I explain here, I use the adjective ‘corporate’ to describe their conceptions of group rights because, morally, they conceive groups as unitary entities that possess moral standing as unitary entities. I use ‘collective’ to describe conceptions that see groups, morally, as ‘collections’ of individuals and that, accordingly, do not invest any moral standing in a group that is not reducible to that of its individual members. However, usage of terms such us these in the literature on group rights does not conform to my usage here and does not exhibit any other consistent pattern.   6 Note that the right for which I make these claims is the right that the site shall not be destroyed or desecrated. There may be other rights relating to site that are entirely intelligible as individual rights – for example, the right to visit the site, or the right to worship at it, or the right not to be offended by its desecration. Note too that it is crucial to my argument that, where X is the object of a collective right, X really is one and the same thing for all who share in the right to it. That is different from a case where we all have a right to X, but each person has a right to a different X. For example, we might all have a right to freedom of expression, but my right will be to my freedom of expression, your right will be to your freedom of expression, and so on.   7 Could those who are wronged in this way include future generations of the group? They could, if we allow that the unborn are capable of possessing rights. But, even so, this remains a tricky issue. Extending the collective right to future generations means imputing to them a particular cultural identity and group membership, along with the interests that go with both, but identities, circumstances and interests can change. Indeed, one generation may wilfully change these for subsequent generations. So extending a collective cultural right beyond the current generation is problematic, and becomes more problematic the further into the future we go.   8 For a defence of rights of national self-­determination along these lines, see Margalit and Raz 1990.   9 I refer here to Wesley Hohfeld’s celebrated distinction between four types of right; claim-­rights, privileges (now more commonly described as ‘liberty-­rights’), powers, and immunities (Hohfeld 1919). A person has a claim-­right when he has a claim upon another who has a corresponding duty, as in the right not to be assaulted or the right to a fair trial. A person has a power when he is empowered to do something; when we say, for example, that a Member of Parliament has a right to vote on legislative proposals and a qualified doctor has a right to prescribe drugs, while an ordinary person has neither right, the rights we refer to are powers. While Hohfeld accepts that the correlative of a claim-­right is a duty, he describes the correlative of a power as a ‘liability’. See further Jones 1994: 12–25. 10 Postulating the collective right of a group to be governed democratically is, of course, quite different from holding that each individual in the group has, as an individual, a

Group rights and group-differentiated rights   55 right to be subject only to democratic authority or a right to participate in government on terms equal with other members of the group. 11 The interest theory of rights is usually contrasted with the choice theory. According to the interest theory, A has a right corresponding to B’s duty, if B’s duty is grounded in A’s interest and so that A is the direct and intended beneficiary of B’s duty. According to the choice theory, A has a right corresponding to B’s duty if A has choice over – is able to control – whether B performs the duty. The interest theory seems to have won more adherents than the choice theory, and its most widely adopted version comes from Joseph Raz. He defines a right as follows: ‘“X has a right” if and only if X can have rights, and, other things being equal, an aspect of X’s well-­being (his interest) is a sufficient reason for holding some other person(s) to be under a duty’ (Raz 1986: 166). 12 I say ‘guardian’ not ‘judge’ since, even if A is able to judge B’s interest better than can B himself, B may still make a better job of actually looking after his interest. However, the fact that people are socialized into cultures does mean that both ‘best judge’ and the ‘best guardian’ principles are often problematic when applied to cultural issues. 13 Kymlicka notes approvingly that, while international organizations have increasingly recognized the claims of multiculturalism, they have done so within the framework of human rights and have avoided illiberal and oppressive versions of multiculturalism. The political discourses and legal norms of multiculturalism being advanced by international organizations and international law are a natural and logical evolution of the norms of universal human rights, and operate within the constraints of those norms. In that sense, they serve to deepen and consolidate the larger human rights revolution. (Kymlicka 2007: 6; see also 45–54, 88–108)

Bibliography Barry, Brian (2001) Culture and Equality, Cambridge: Polity. Chambers, Clare (2008) Sex, Culture, and Justice: The Limits of Choice, University Park, PA: Pennsylvania State University Press. Cohen, Joshua, Martha Nussbaum and Matthew Howards (eds) (1999) Is Multiculturalism Bad for Women? Princeton: Princeton University Press. Deveaux, Monique (2000) ‘Conflicting equalities? Cultural group rights and sex equality’, Political Studies, 48: 522–39. Eisenberg, Avigail and Jeff Spinner-­Halev (eds) (2005) Minorities within Minorities: Equality, Rights and Diversity, Cambridge: Cambridge University Press. French, Peter A. (1984) Collective and Corporate Responsibility, New York: Columbia University Press. Galenkamp, Marlies (1993) Individualism and Collectivism: the Concept of Collective Rights, Rotterdam: Rotterdamse Filosofische Studies. Graham, Keith (2002) Practical Reasoning in a Social World, Cambridge: Cambridge University Press. Hohfeld, Wesley N. (1919) Fundamental Legal Conceptions as Applied in Judicial Reasoning, New Haven, CT: Yale University Press. Jones, Peter (1994) Rights, Basingstoke: Macmillan. Jones, Peter (1999) ‘Group rights and group oppression’, Journal of Political Philosophy, 7: 353–77. Jones, Peter (ed.) (2009) Group Rights, Aldershot: Ashgate. Kukathas, Chandran (1992) ‘Are there any cultural rights?’, Political Theory, 20: 105–39.

56   P. Jones Kukathas, Chandran (2003) The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford: Oxford University Press. Kymlicka, Will (1989) Liberalism, Community and Culture, Oxford: Clarendon Press. Kymlicka, Will (1992a) ‘Two models of pluralism and tolerance’, Analyse & Kritik, 13: 33–56. Kymlicka, Will (1992b) ‘The rights of minority cultures: reply to Kukathas’, Political Theory, 20: 140–6. Kymlicka, Will (1995) Multicultural Citizenship, Oxford: Clarendon Press. Kymlicka, Will (1996) ‘The good, the bad, and the intolerable: minority group rights’, Dissent, 22–30. Kymlicka, Will (2001) Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, Oxford: Oxford University Press. Kymlicka, Will (2007) Multicultural Odysseys: Navigating the New International Politics of Diversity, Oxford: Oxford University Press. Kymlicka, Will and Wayne Norman (2000) ‘Citizenship in culturally diverse societies: issues, contexts, concepts’, in Will Kymlicka and Wayne Norman (eds), Citizenship in Diverse Societies, Oxford: Oxford University Press. Kymlicka, Will and Alan Patten (eds) (2003) Language Rights and Political Theory, Oxford: Oxford University Press. Levy, Jacob (2005) ‘Sexual orientation, exit and refuge’, in Avigail Eisenberg and Jeff Spinner-­Halev (eds) (2005), Minorities within Minorities: Equality, Rights and Diversity, Cambridge: Cambridge University Press. McDonald, Michael (1991) ‘Should communities have rights? Reflections on liberal individualism’, Canadian Journal of Law and Jurisprudence, 4: 217–37. Margalit, Avishai and Joseph Raz (1990) ‘National self-­determination’, Journal of Philosophy, 87: 439–61. May, Larry (1987) The Morality of Groups: Collective Responsibility, Group-­Based Harm, and Corporate Rights, Notre Dame: University of Notre Dame Press. Miller, David (2002) ‘Group rights, human rights and citizenship’, European Journal of Philosophy, 10: 178–95. Newman, Dwight G. (2004) ‘Collective interests and collective rights’, American Journal of Jurisprudence, 49: 127–64. Okin, Susan Moller (2002) ‘Mistresses of their own destiny: group rights, gender and realistic rights of exit’, Ethics, 112: 205–30. Phillips, Anne (2007) Multiculturalism without Culture, Princeton, NJ: Princeton University Press. Pogge, Thomas W. (1997) ‘Group rights and ethnicity’, in Ian Shapiro and Will Kymlicka (eds), Group Rights and Ethnicity, New York: New York University Press. Raz, Joseph (1986) The Morality of Freedom, Oxford: Clarendon Press. Reitman, Oonagh (2005) ‘On exit’, in Avigail Eisenberg and Jeff Spinner-­Halev (eds) (2005), Minorities within Minorities: Equality, Rights and Diversity, Cambridge: Cambridge University Press. Shachar, Ayelet (2001) Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge: Cambridge University Press. Song, Sarah (2007) Justice, Gender and the Politics of Multiculturalism, Cambridge: Cambridge University Press. Spinner-­Halev, Jeff (2005) ‘Autonomy, association and pluralism’, in Avigail Eisenberg and Jeff Spinner-­Halev (eds) (2005), Minorities within Minorities: Equality, Rights and Diversity, Cambridge: Cambridge University Press.

Group rights and group-differentiated rights   57 Tamir, Yael (1999) ‘Against collective rights’, in Steven Lukes and Christian Joppke (eds), Multicultural Questions, Oxford: Oxford University Press. Weinstock, Daniel M. (2005) ‘Beyond exit rights’, in Avigail Eisenberg and Jeff Spinner-­ Halev (eds) (2005), Minorities within Minorities: Equality, Rights and Diversity, Cambridge: Cambridge University Press.

3 Reasonable disagreement John Horton

It is surely impossible to imagine how we could get by, at least in anything remotely resembling the world in which we live, without there being a place in human discussion and argument for some notion of reasonable disagreement. Although, of course, we may often think, and sometimes rightly, that those who disagree with us hold unreasonable views – we are obviously less likely to think of ourselves in this way – to a greater or lesser extent it is generally accepted that sometimes there is room for more than one view to be reasonable. The idea of reasonable disagreement may seem especially important in the context of the kind of differences and disagreements that arise in a multicultural society. Surely, the idea that we can all reasonably disagree with each other is one important, potential lubricant of such a society. As a rough starting point, by ‘reasonable disagreement’ I mean here only the very general idea that there is scope for more than one plausible or defensible belief or opinion about some matter, more than one position that can be defended with good, but less than rationally compelling, arguments or evidence. That is, we acknowledge that there is no way of showing that one view is demonstrably superior to all other views on everything about which there is disagreement. And, by implication, it is to be expected that people will sometimes disagree about some matters, without it being thought that the views of all but one of the parties must be capable of being shown to be defective in way that any reasona­ ble person must accept. I can still think that my view is the best, but I also accept that someone else may quite reasonably weigh the balance of arguments or evid­ ence differently, and thus reasonably arrive at a view other than mine. The alternatives to this scenario seem to be threefold: first, a world in which there is only one reasonable (i.e. clearly best) view about everything, all others being unreasonable; second, a world in which it is impossible to distinguish between any views in terms of their reasonableness, all views being similarly reasonable (or unreasonable); or, third, a combination of the first two altern­ atives, a world in which there is a sharp distinction between matters on which there is only one reasonable view and other matters on which views cannot be distinguished in terms of their reasonableness. None of these positions has much intuitive plausibility, I suggest. Although the second alternative could be pre­ sented as the limiting case of reasonable disagreement, it is more like a reductio

Reasonable disagreement   59 of the idea, as it would effectively undermine any point in talking about reasonable disagreement at all. For, on this view, each and every disagreement would seem to be reasonable, and any contrast between reasonable disagreement and unreasonable disagreement would be lost. So, for the notion of reasonable dis­ agreement to do any work, we must assume, even in this very general and vague formulation, that we sometimes have occasion to distinguish between disagree­ ments that we accept as reasonable and others that we do not. This very general, orienting notion, however, implies nothing about what explains how differences of view can be reasonable, about the nature of truth or the validity of scepticism, or about the extent of such reasonable disagreement, both in terms of the range of matters about which reasonable disagreement is possible and the scope for reasonable disagreement on any particular matter. I shall, though, make the, I hope, uncontroversial assumption that the range and scope of reasonable disagreement is not limited to trivial or unimportant matters, whatever these are taken to be, or to minor or insignificant differences of view. Nor does this general notion imply that the boundaries of reasonable disagree­ ment must be fixed or permanent, or, crucially, that there cannot be disagreement about where exactly the boundaries lie. For to say that some distinction between reasonable and unreasonable disagreements is indispensable is not to say that everyone must agree about precisely where or how that distinction is to be made (and I merely note here that this naturally gives rise to the troubling question of whether those disagreements can in turn be reasonable, a point to which I shall return later). So, in saying that some notion of reasonable disagreement is indis­ pensable to us in many contexts, this still leaves open a large number of ques­ tions about the nature, scope and explanation of such disagreements. These preliminary remarks should also make it evident that it is a vast topic that poten­ tially connects with questions that lie at the heart of epistemology, metaphysics and other areas of philosophy. It should come as little surprise, therefore, that my focus is much more limited. How far one can altogether avoid some of the larger and apparently intractable philosophical questions is a moot point, but I shall at least try to do so, as far as I can. Not because these philosophical questions are uninteresting; far from it. However, my concern is with the idea of reasonable disagreement as it bears on politics, focusing particularly on the role it plays in some recent liberal political theory, and generally the less that we have to invoke complex, contested and abstruse philosophical arguments the better. Even with respect to this limited area, however, I shall be highly selective; and for this reason alone, aside of several others, it should be clear from the outset that what follows cannot make any claim to comprehensiveness (whatever exactly that might mean in this context). My aim is only to shed a little light in a few dark corners and to nudge further discussion away from less illuminating areas. However, even this modest aspiration it turns out takes me into some controversial terrain.

60   J. Horton

I I began by stressing the indispensability of some idea of reasonable disagree­ ment in part because I want to cast doubt on how useful that idea is to liberal political theory, but certainly do not want to be seen to be seen as rejecting it in toto. In the first part of what follows, therefore, I seek to engage in some modest clarification of the implications of the idea of reasonable disagreement. In particular, I explore the question of whether that idea is incoherent unless it is  combined with a significant measure of scepticism. While an interesting enough question in itself, this also matters in relation to the role of the idea within a prominent strand of recent liberal political theory. In the subsequent, altogether less closely argued, section, I seek to raise some general questions about whether reasonable disagreement can really play much of a role in justify­ ing or explaining liberal political principles. The connection between the two principal concerns of the chapter is not especially tight, although towards the end of the chapter I try to show how the argument might have implications for one of modern liberalism’s most cherished ideas. For, a fundamental claim that informs much liberal theorizing is that political principles, if they are to be legit­ imate, ‘must be justifiable to everyone whom they are to bind’ (Larmore 1996: 41). This is put with striking forcefulness in a famous passage by Jeremy Waldron: the thesis that I want to say is fundamentally liberal is this: a social and political order is illegitimate unless it is rooted in the consent of all those who have to live under it; the consent or agreement of these people is a con­ dition of its being morally permissible to enforce that order against them. (Waldron 1993: 50) The essential thought behind this liberal principle of legitimacy is that political power or coercion should be justifiable to each and every individual over whom it is exercised, if its use is to respect the moral equality and autonomy of those individuals. It follows from this requirement that it is illegitimate to seek to use political power to impose fundamental principles or basic institutions on people that they could justifiably dissent from. It is essential here to note that ‘justifiably’ imposes a normative test on dissent, which is not be understood purely empirically. People can in fact reject political principles for all sorts of reasons or for no reason at all, but that fact would not necessarily make the exercise of coercion against them unjustifiable. Rather, what liberal theory (and I shall henceforth leave off qualifying adjectives) typically seeks is a normative basis for identify­ ing justifiable or reasonable grounds for rejecting the exercise of political power. This is where the idea of reasonable disagreement comes in. In crude terms, what liberal theory on this account has to show is that there is a set of basic political principles that cannot be reasonably rejected – liberal ones – but that any more extensive set of principles are subject to reasonable disagreement. Hence, the

Reasonable disagreement   61 imposition of liberal political principles is justified, while the enforcement of any reasonably contestable conception of the good or comprehensive doctrines is not. One final clarification, though, is needed, relating to the idea of funda­ mental principles and basic institutions. For, liberals are not committed to the position that every single law or policy has, individually or in isolation from acceptable procedures, to pass the test of reasonable rejection. Because we need to have decisions on matters on which reasonable disagreement is only to be expected, it will be reasonable to agree to set up decision-­making structures that bind everyone, even if they can reasonably disagree with the particular decisions made or policies adopted within those structures. Without decision-­making structures of this sort, the government of complex, pluralist societies would be effectively impossible. While this does create some difficulties, for example, in establishing what are and are not basic principles, I shall mostly ignore them here. Before proceeding further, however, let me make one general point about the subject of political theory that is slightly tangential to the argument at the heart of this chapter, but which is nonetheless worth making. This is that politics, and therefore political theory, cannot simply ignore unreasonable disagreement about fundamental political principles, whatever exactly that is taken to be. Even if we grant, for the sake of argument, a clear, rationally persuasive account of reasona­ ble disagreement that mostly does the work liberals want it to, there are no good grounds for thinking that actual political disagreement will necessarily, or even generally, map neatly onto the contours of that account. Nor would it be plaus­ ible to think that because disagreement is unreasonable it should be set aside for the purposes of political theory. I am, therefore, inclined to disagree with Fred D’Agostino, some of whose arguments are not unsympathetic to what I go on to argue, when he writes of unreasonable people that Even a moral theory that is concerned with the realism of its assumptions cannot be held responsible for the salience of its outcome for these kinds of individuals. These individuals, and alas they are all too numerous, cannot properly be the concern of moral theory, even of a political approach to moral theorizing. (D’Agostino 1996: 156) Admittedly, he is concerned with unreasonable people, and not just unreasonable disagreement, and much depends upon what is meant by a ‘moral theory’ and what it is for it to have ‘salience’, but it seems to me quite misguided to think that such people should be entirely factored out of any political theory. If pol­ itics had only to address people who are deemed to be reasonable and to take account only of reasonable opinions, however exactly these are understood, it would be a very different activity from what we know it to be. It is not that most liberal theorists would exactly deny much of this, or at least not the point about the reality and persistence of unreasonable disagreement, but it is an unduly neglected aspect of liberal theory, usually consigned to some

62   J. Horton nether world of non-­ideal or partial compliance theory, in which it is seen as a special case, and as secondary to or derivative from ideal theory. It may well be that a political theory will want to respond differently to the two sorts of dis­ agreement – that, after all, is the principal point of making the distinction – but that does not mean that unreasonable disagreement is any less part of the normal conditions of political life, rather than an exception or aberration. Nor does it mean that there are no theoretically interesting or difficult questions about how unreasonable disagreement should be dealt with. It would, for example, be far too quick, and arguably also illiberal, to think that people with unreasonable views can simply be denied a voice, or their views ignored, or that they can be treated in any way that even a liberal government thinks fit. How unreasonable disagreement is be addressed, and, for example, questions about what rights and benefits people who persist advancing unreasonable views should be entitled to, are highly complex and difficult issues within liberal theory that deserve more attention than they typically receive (Quong 2004).

II Let me now return to the notion of reasonable disagreement. I begin, conven­ tionally enough, with Rawls. In Political Liberalism, reasonable disagreement is part of a wider discussion of reasonableness and the basis for fair terms of social cooperation. Simplifying greatly, Rawls’s central point is that because citizens can reasonably disagree in their comprehensive doctrines – that is, in their philo­ sophical, religious and ethical beliefs – it is unacceptable that fundamental prin­ ciples of justice that are to regulate the basic structure of society should by design systematically favour, still less be based on, any one such conception over other reasonable beliefs. Instead, it is necessary to arrive at a set of prin­ ciples that can be endorsed from the point of view of any reasonable doctrine. I shall say more about this later, but for now I shall focus on Rawls’s account of the nature of reasonable disagreement and how it is to be explained. And the crux of understanding reasonable disagreement lies in what he calls ‘the burdens of judgement’. Rawls explains the point of an account of the burdens of judgement in the following terms: The account of these burdens must be such that it is fully compatible with, and so does not impugn, the reasonableness of those who disagree . . . An explanation of the right kind is that the sources of reasonable disagreement – the burdens of judgement – among reasonable persons are the many hazards involved in the correct (and conscientious) exercise of ours powers of reason and judgement in the ordinary course of political life. (Rawls 1993: 55–6) He proceeds to list six such sources, though, for reasons of brevity, I present Charles Larmore’s more economical enumeration of them. They are:

Reasonable disagreement   63 1 2 3 4 5 6

The empirical evidence may be conflicting and complex. Agreement about the kinds of consideration involved does not guarantee agreement about their weight. Key concepts may be vague and subject to hard cases. Our total experience, which shapes how we assess the evidence and weigh values, is likely in complex modern societies to be rather disparate from person to person. Different kinds of normative consideration may be involved on both sides of a question. Being forced to select among cherished values, we face great difficulties in setting priorities (Larmore 1996: 170).

This list is not claimed to be complete, but is indicative of the most common and important sources of reasonable disagreement. It is considerations like these that explain why reasonable people, however thorough and conscientious in their rea­ soning, cannot be expected always to concur in their judgements. (Of course, the sources of actual disagreement can be much wider.) What follows from this, according to Rawls, is that people may reasonably come to different conclusions about a whole range of matters, including their fundamental ontological, metaphysical and ethical beliefs, and ‘it is not in general unreasonable to affirm any one of a number of reasonable comprehen­ sive doctrines’ (Rawls 1993: 60). However, perhaps surprisingly, he claims that this has no implications for the strength or certainty with which people can quite properly cleave to their own reasonable beliefs. In particular, Rawls insists that the burdens of judgement do not give people reason to hold their own views with any less certitude, and that his view ‘does not argue that we should be hesitant and uncertain, much less sceptical, about our own beliefs’ (Rawls 1993: 63). For, scepticism is itself a controversial philosophical position, and one about which there can in turn be reasonable disagreement. Thus, although the burdens of judgement provide us with good reasons for expecting there to be reasonable disagreement on a wide range of important matters, they do not give us good reason to doubt our own convictions and beliefs about them. This last claim, which seeks to combine the reasonableness of our confidence in our own beliefs with the recognition that others may reasonably not share our view at all, has been found unconvincing by some of Rawls’s critics. How is it possible, they ask, that the burdens of judgement can provide me with good reasons for accepting that those who disagree with me have good grounds for doing so, and yet at the same time provide me with no reasons at all for ques­ tioning my confidence in the superiority of my own beliefs? Surely, if I acknow­ ledge that other people have good reason to think differently from me, this gives me good reasons too to have less than full confidence in my own belief? For example, if we take the first of the burdens of judgement listed above – that empirical evidence may be conflicting and complex – is this not something that applies equally to my own reasoning as to that of other people? If this is a good reason to expect that others will come to a different conclusion from me, then

64   J. Horton why is it not also a good reason for me to accept that I, too, could have come to hold a different view from the one that I do? Why is it not a good reason for me to accept that I, too, could be wrong; and not just in purely fallibilist sense that we might all accept that of course there is a bare, in principle, abstract possibility of us being mistaken? That is, although we must of course continue to think that we are right – that is, after all, why we continue to hold the view that we do – we should accept that, as there are no compelling arguments or evidence to show that those who disagree with us are mistaken, we are not in a position to be entirely confident that we are right. In the words of Brian Barry, one of the most forceful critics of the claim we are examining: ‘If I concede that I have no way of convincing others, should that not also lead to a dent in my own certainty?’ (Barry 1995: 179). Barry thinks that it should, and that therefore some signific­ ant element of scepticism is an unavoidable concomitant of Rawls’s conception of the burdens of judgement. This challenge is taken up by Susan Mendus in her defence of Rawls on this point. She presents the problem in the following terms: ‘(t)he central question seems to be: ‘Are we entitled to believe with certainty even if we cannot con­ vince others?’ (Mendus 2002: 20). She contends that Barry’s response misses the point of Rawls’s argument, ‘which is not to pronounce on the legitimacy of persistent conviction, but rather to pronounce on the legitimacy of demands for political coercion based on the fact of persistent conviction’ (Mendus 2002: 21–2). Moreover, she goes on, Barry’s resort to scepticism undermines the reasonableness of persistent conviction despite an inability to persuade others, for on Barry’s account it is not reasonable, in such circumstances, to continue to hold a conception of the good with conviction. It is only pos­ sible to hold it provisionally and with some hesitation or doubt. (Mendus 2002: 22) In short, she argues that to accept Barry’s claims would be to undermine the very idea of reasonable disagreement as Rawls (and many others) have wanted to present it; and while in this I believe that she is correct, that in itself is not of course a decisive objection to Barry’s argument. Moreover, Mendus goes slightly astray in her initial formulation of Barry’s challenge. As we have seen, she presents this as: Are we entitled to believe with certainty even if we cannot convince others? This way of formulating matters, though, subtly but importantly misstates the point at issue between Barry and Rawls. Barry is not concerned in this context with the bare fact of whether we can persuade others, for he is only too aware that this may often be impossible. What he claims is problematic about Rawls’s position is not that one might rea­ sonably cling to a belief while being unable to persuade others, but that the very person who continues to cling with certainty to his view also accepts that others may have perfectly good reasons for disagreeing with him. Good reasons, more­ over, and this the nub, which apply equally to his own reasoning and judgement. If he accepts, say, that the empirical evidence is conflicting and complex, making

Reasonable disagreement   65 reliable judgement difficult, then this difficulty is as relevant to his own reason­ ing as to anyone else’s. And in the face of such conflict and complexity, it seems both unreasonable to insist that he must be right and contradictory to hold that exactly the same consideration that makes it reasonable for others to disagree with him should not also undermine his confidence in his own view. The point is that, in the kind of case under consideration, empirical complexity is something that applies to the reasoning of everyone, including my own. I do not, therefore, think that the problem Barry identifies with Rawls’s account of reasonable disagreement can be quite so easily disposed of as Mendus suggests. However, nor do I believe that we are necessarily led to a general acceptance of Barry’s scepticism, although this may be an essential element in any plausible explanation of how reasonable disagreement in some cases is pos­ sible. But, because these are not the only cases, we need also to look at the dif­ ferent kinds of explanation of reasonable disagreement that are contained within the burdens of judgement. So, let us return to Rawls’s original list in Larmore’s formulation. Interestingly, Larmore himself comments that, he believes that (4), ‘the great variety of life experiences created by modern society, with all its complex divisions of labour and its rich heritage of many different cultural tradi­ tions, provides the key to explaining [reasonable disagreement]’ (Larmore 1996: 170). He does not enlarge at any length upon why he thinks this particularly important, remarking only that it is the kind of reasonable agreement that we find in the sciences that is ‘the real departure from the ordinary course of things’ (Larmore 1996: 171). However, in my view, Larmore is definitely onto some­ thing in selecting the particular consideration he does. For, of the six factors listed, it is the one that most clearly invokes reasons that could be characterized as agent-­relative. That is, reasons that are in substance different for different people, and without necessarily being flawed in any way. This, I suggest, is one promising route in circumventing Barry’s objection, for the strength of that objection lies in the fact, where it is a fact, that the very same reason that makes it reasonable for others to disagree applies with equal force to my own reason­ ing. However, in the case of agent-­relative reasons, reasons may quite properly have differential relevance or force. Barry, himself, gives what might be thought a rather good example, although he does not think that it is, when he cites the case of a private religious revela­ tion. He writes: Suppose that God were (as it seemed to me) to grant me a vision in which certain truths were revealed. A partisan of epistemological restraint [Rawls’s view] would suggest that I might be absolutely convinced of the veridical nature of this revelation while nevertheless admitting that others could reject my evidence. (Barry 1995: 179) Unfortunately, he then rather spoils matters by immediately adding the suppos­ edly rhetorical question: ‘But is this really plausible?’. In fact, it seems to me

66   J. Horton quite plausible, at least so long as one can give credence at all to the idea of a religious revelation. (If one simply denies this then of course Barry can get to his desired conclusion without any difficulty, but it seems that he is willing to accept, at least for the sake of argument, that there could in principle be such a thing as a religious revelation). The crux of Barry’s case for thinking that this will not fit the bill is that if I am prepared to concede that others could at the same time believe that I am not simply making it up and also still reasonably reject my alleged reve­ lation, then I must in consistency allow that I may be mistaken about its validity myself. (Barry 1995: 179) This, though, seems to me to be too quick, as in this case the argument does not follow in the way that Barry supposes. This is because Barry ignores the differ­ ential status of the revelation to the person who had it and to those who did not. The reason for the person who had the revelation (or ‘revelation’) believing what he does is the revelation itself, but for those who did not experience the revela­ tion personally, it is only testimony about a revelation by the person who sup­ posedly had it, and revelation and testimony are quite different kinds of evidence. However, I do not want to get bogged down in the specific example of a revelation, not least because many people will reject the status of revelation as a legitimate form of evidence altogether. The point, though, is a much more general one, which does not only apply to unusual evidential claims such as those grounded in a personal revelation. If I see something improbable happen, and if there are no other conditions, except the improbability of the event itself, that lead me not to believe my eyes, then I have what for me may be as compelling a reason as I can have for believing what I saw, however improbable it may have been. Furthermore, you also have a reason for believing what I say happened, assuming you accept my good faith, but crucially it is not the same reason that I have. Put bluntly; you have my testi­ mony, and I have my eyes. To this, Barry might plausibly respond that we all know that our eyes can on occasion deceive us. And this is true; but, absent of a specific reason in this case for believing that my eyes have deceived me, this objection at best points towards a kind of all-­purpose, thorough-­going scepticism that would undermine reasonable or practical certainty about almost everything. This is, moreover, but an instance of a kind of reasoning that we use all the time, when, for example, we call on our personal experience. If my reason resides in my experience, and you have not had that experience, then my experience is a reason for me in a way that it is not for you. And nor does this necessarily mean that my judgement must be better than yours because you lack that experience. You may have some other, but equally relevant, experience. That is not to say that it may not be appropriate for you to defer to me about something on the grounds that you think that my experience makes me a better judge, but that is a different matter.

Reasonable disagreement   67 Moreover, the account of reasonable disagreement that I have given so far has tended uncritically to assume the strongly rationalistic framework within which this debate is typically conducted; as if all that is involved is what might be thought of as straightforwardly propositional reasons for belief. However, these kinds of reason, important as they are, do not exhaust the kinds of considerations that are offered in support of beliefs, conceptions of the good or comprehensive doctrines. They may also often have, for instance, an affective dimension. This can be seen clearly enough again in the case of experiential considerations. If my personal experience leads me to think that serious poverty is a particularly terri­ ble condition, the full force of this is not something that can necessarily be exhaustively explicated through a series of propositions about poverty. This is because my understanding is in part shaped and coloured by the affective dimen­ sion of that experience – a sense of what poverty is actually like that cannot be fully captured in, say, facts and figures. And, importantly in this context, this is quite consistent with someone else’s experience of poverty being different, and perhaps leading them to the view that it is less terrible than I think. Moreover, as this example can also be used to illustrate, affectivity can influence not only what we believe, but also how passionately we believe it, which may underpin our conviction, and our subjective sense of certainty in relation to it – something that can clearly be of seminal importance in political contexts. And, while these affective dimensions can be purely experiential, they may also be influenced by other beliefs. Poverty, for instance, may be made to seem less bad by a belief in a benign and merciful deity or the thought that it is easier for a camel to pass through the eye of a needle than it is for a rich man to enter the kingdom of heaven. As a result, affective and propositional strands can interweave with ‘beliefs’ in ways that effectively makes it impossible entirely to disentangle them. The upshot of the discussion so far is that neither of the accounts of reason­ able disagreement offered by Rawls and Barry has general validity. There is a defensible conception of reasonable disagreement that does not carry with it the implication of scepticism that Barry claims is an unavoidable concomitant of the idea. However, many of the burdens of judgement that Rawls cites do not really support this conception, and lay people who acknowledge those burdens open to charges of inconsistency or irrationality if they do not accept that they apply equally to their own reasoning. Barry’s criticism of Rawls is, therefore, partly sound: many, although not all, of these burdens do seem to provide good reasons for everyone to be less confident about the correctness of their beliefs. But insist­ ing that people must hold their beliefs in a sceptical spirit, as Barry does, makes his account of reasonable disagreement problematic for those unwilling to recon­ struct their attachment to their beliefs to meet this stipulation. And, crucially, because there can be other reasonable grounds for not doing so, such an unwill­ ingness cannot simply be dismissed as unreasonable. Where, then, does this leave liberalism in relation to reasonable disagree­ ment? Focusing for now only on the Rawls/Barry dispute, on either account we seem to be left with a conception of reasonable disagreement that is less than

68   J. Horton satisfactory. Barry’s account requires us all to swallow a fairly large dose of scepticism. But, if the preceding argument is sound, in many instances of reason­ able disagreement there is no convincing case as to why this must be so. And something that was always rather puzzling about this claim is that if we should all generally be pretty sceptical, then a significant part of the political problem that we were initially confronted with would seem to be rather too easily dis­ solved. As Rawls and Mendus both appreciate, much of the difficulty of the political problem arises from the fact that people, sometimes at least for good reasons, do not accept that a significant measure of scepticism about their funda­ mental beliefs is a reasonable requirement. On the other hand, Rawls’s own account of reasonable disagreement is seriously flawed, courting incoherence. Many of the burdens of judgement that Rawls himself cites readily supply Barry with ammunition for his attack. So, in cases where they are the explanation of reasonable disagreement, it would be unreasonable not to hold one’s beliefs with only limited confidence or some measure of tentativeness. The rather unexciting conclusion of all this is that reasonable disagreement can take different forms, with importantly different explanations. This conclu­ sion can, moreover, be supported on other grounds, drawing, for instance, on more elaborate accounts of value pluralism (Gray 2000) or a stronger form of relativism (Long 2004), although neither line of argument is uncontroversial. And, while none of this implies that there can be no role in political theory for an idea of reasonable disagreement, it does undermine any single, univocal con­ ception of how it is to be understood, and at the very least suggests that we need to be sensitive to the particular conception of reasonable disagreement that is in play in any particular context.

III There is, though, another significant raft of problems in pinning down reasonable disagreement. These concern the difficulties of applying the notion of reasonable disagreement when confronted by actual disagreement about beliefs and opin­ ions. This problem can also be related to a point noted in passing earlier con­ cerning the possibility of disagreement about the bounds of reasonable disagreement itself. It need not involve succumbing to the position that I there rejected, which denies any validity to the distinction between reasonable and unreasonable disagreement, but is rather to admit of a large grey area where there may be extensive disagreement about the reasonableness of disagreement. Moreover, even where there is apparently widespread agreement about some fundamental value or principle, this agreement may be quite superficial, and at a level of abstraction that merely disguises real and substantial differences. So, even when everyone is able to sign up to a suitably formulated general principle or value, this often fails to translate into a common view of what this implies or how it is to be weighed against other values and principles. Once we start to grasp the significance of these forms of indeterminateness then we can see how difficult it is to articulate a workable and theoretically viable conception of

Reasonable disagreement   69 reason­able disagreement for the purpose of justifying liberal principles. Many beliefs and values are tolerated for a variety of reasons, and sometimes the idea of reasonable disagreement may play a modest, secondary part in explaining why this is desirable or appropriate, but such beliefs and values are not generally agreed to be matters of reasonable disagreement, and most people would certainly cavil at being expected so to regard them, even if only for public or political purposes. Much of this may be regarded as so obvious and uncontentious that liberals will be impatient with any suggestion that it is in any way problematic for them. Yet I believe it is, at least for those liberals who want the notion of reasonable disagreement to do any significant theoretical work. To try to bring this out I want to look very superficially at a few examples. I begin with what may seem a relatively uncontroversial case: astrology. There are people who take astrology very seriously indeed. So seriously, in fact, do they take it that astrology plays an important role in shaping and organizing their lives. They consult their star charts about important decisions relating to their careers, finances and personal lives, will literally only make a journey when the auguries are taken to be favourable, are genuinely fearful when the alignment of the stars is taken to threaten misfortune, and so on. There are not many people these days who take astrology this seriously, but those who do can adhere to it tenaciously, and are as resistant to persuasion as the most committed religious believer or secular ration­ alist. However, most of us do not merely disagree with astrological doctrines and beliefs; we regard them as patently absurd, the province of cranks, and when taken this seriously are inclined to view their influence on the lives of the people who believe such ‘superstitious rubbish’ as pernicious and harmful. That is, to put it more politely, we do not regard the truth or value of astrology as a matter of reasonable disagreement. But what follows from this in terms of how those who are ‘astrologically afflicted’ should be treated? Politically, it seems, not a lot. For example, we do not think that believers in astrology should be prevented from living their own lives according to their, as we see it, bizarre and irrational beliefs, even if (perhaps within limits) it harms them to do so. Moreover, although we would no doubt give very short shrift to any idea of an astrological faith school, whether or not supported by public funds, we allow astrology to be publicly propagated, parents to inculcate such ideas in their children, money to be made out of people’s ‘gullibility’ about it, and so on. In short, we generally think that astro­ logical beliefs should largely be tolerated, although we are utterly convinced that they are unreasonable, and we do not tend to think that the unreasonableness of their beliefs means that we should treat believers differently from how we would treat them if their beliefs were reasonable. This may appear a rather trivial example, but human credulousness is not to be underestimated. There are a large number of beliefs held by some people that other people think are of pretty much the same kind as astrology. In so far as we think it right to permit the airing of and acting on of such beliefs, though, it seems to have nothing to do with us thinking that the beliefs are reasonable, or that it is reasonable for people to hold them; for the simple reason that we do not.

70   J. Horton Much the same can be said of what may be regarded as a very different kind of example, an example of enormous political import: religion. If the liberal con­ ception of reasonable disagreement seeks to capture any disagreements within its purview, then disagreements over religion must surely come near the top of such a list. Yet many people of a secular cast of mind – Richard Dawkins can stand as a particularly prominent spokesperson for the view (Dawkins 2006) – regard religion as absurd and pernicious. Furthermore, the unreasonableness of at least some specific religious beliefs will likely seem as clear to most non-­believers as anything to be found in astrology – for instance, if taken literally, the doctrine of transubstantiation, or the claim that God made the world in six days only a few thousand years ago. To pretty much any non-­believer (and even to many believers, it should be said), these beliefs are quite as absurd as anything to be found in astrology: they are simply not matters of reasonable disagreement. However, is this in turn an unreasonable belief? On Barry’s account, perhaps, we should all be agnostic – if religion is a matter of reasonable disagreement, so must militant secularism be – as we should all be to a degree sceptical about such matters. But this would seem to be a very odd conclusion. On Rawls’s account, on the other hand, while it is reasonable for Dawkins to be as strongly committed an atheist as he wishes, he is obliged to concede that theists can rea­ sonably disagree with him. But, while even Dawkins does not want legally to prohibit the practice and propagation of religion, this is not because he accepts that this is a matter about which there can be reasonable disagreement. More­ over, it is not clear how he could, given his reasons for believing what he does. Let us look finally at another kind of example, one that typically has no reli­ gious dimension: attitudes to the environment. Differing beliefs about how we should treat the environment might seem a good example of reasonable disagree­ ment. But is it? If the more pessimistic projections about the impact of global warning and the explanation of it as being mostly humanly created are largely true – and notwithstanding the sceptics (or ‘deniers’, as they are now tenden­ tiously called in some quarters), the preponderance of scientific opinion seems clearly to support this view – then is the existence of humanly created global warming a matter of reasonable disagreement? On one, plausible scenario, the threat to future generations is potentially catastrophic, and to treat the matter as one of reasonable disagreement is the height of irresponsibility. Of course, there is disagreement here, but is it ‘reasonable’, and is it reasonable to require still more compelling evidence before acting? Or are those who deny any major role to human activities in creating global warming the flat-­earthers de nos jours, as I heard one of my more environmentally committed colleagues remark? My point here is not to take sides, but simply to note that that when it comes to issues like this, the notion of reasonable disagreement is itself fiercely contested, and can therefore hardly function as terra firma in any debate about what policies are compatible with liberal principles. In response to these brief illustrations, liberals may contend that liberal polit­ ical principles do not operate at this level of specificity. Even granting this, though, it seems worth showing how problematic the application of the notion of

Reasonable disagreement   71 the idea of reasonable disagreement often is to actual beliefs and disagreements. And, furthermore, even where a value, stated at a sufficiently high level of gen­ erality, is agreed to be a reasonable principle of justice – one to be protected, say, through a special constitutional provision – how it is to be interpreted and applied is itself liable to significant disagreement, the reasonableness of which can in turn be (reasonably?) contested. The principle of freedom of speech can serve as an example. It is widely accepted, across many different views of life, that freedom of speech is an important principle. To reject it entirely would be regarded as unreasonable. Yet, when it comes to controversial questions about freedom of speech, common adherence to the principle often does not appear to take us very far. Interpretation and application are problematic not just at the margins, but in pretty much all controversial cases. For adherents of a principle of freedom of speech can quite ‘reasonably’ urge that it should be restricted on numerous grounds, grounds that are reasonable at least in the sense that even those who do not think these reasons are sufficient to justify restricting freedom of speech nonetheless accept that they are indeed relevant, and could be weighed differently. Thus, the reasonableness of restrictions on the vilification, or even lampooning, of people’s deepest convictions cannot be settled simply by appeal to the principle of freedom of speech. It is not incontestable that it is less import­ ant to protect people against the hurt and anger to which its exercise can give rise than allowing the dissemination of some rather puerile cartoons. What, then, is the general point of these examples? It is to show that, for a variety of reasons and in diverse ways, in none of them does the idea of reason­ able disagreement do much effective justificatory work. And, of course, these examples could be multiplied many times over. Whatever our view of how these disagreements should be dealt with politically, and even if we accept a liberal view of what the outcome should be (not that it is always clear what the liberal view is), the notion of reasonable disagreement can make at best only a very modest contribution to helping us think about how to deal with them. So, too, the initial hope that a robust idea of reasonable disagreement could be an import­ ant social lubricant in a multicultural society is also called into question.

IV My purpose has not been to argue that the idea of reasonable disagreement can have no place in political theory, although there are reasons for thinking that role can at best be rather limited, localized, contingent and variegated. And, of course, it has certainly not been to deny the significance of disagreement tout court for political life; quite the contrary. The brute fact of disagreement is one of the presuppositions of politics, as we know it, and there is no reason to think that this is something that is likely to change, at least not in any foreseeable future. There are, though, many sources and kinds of disagreement, and although on any account some will be perceived as reasonable and some unreasonable, crucially, when it comes to cases, the reasonableness of disagreements is often fiercely contested, and, perhaps strangely, seems not to matter much politically.

72   J. Horton Liberal attempts to deploy the idea of reasonable disagreement, therefore, with a view to sorting conflicts into two distinct categories with correspondingly radic­ ally different claims for political attention, as a basis for articulating substantive principles of justice that have a real normative cutting edge, and which nobody can reasonably reject, are, for the reasons I have given, unlikely to succeed. Of course, I cannot claim to have conclusively demonstrated that, and I am not at all sure what it would be to do so, but I have sought to show why I believe that the prospects for liberal political theory are in this respect rather poor. It is, though, worth noting that more than one response is possible to an argu­ ment along the lines that I have tried to sketch. One, for instance, is that because the scope of reasonable disagreement is very large and the remit of successful justification rather narrow, this will significantly limit the number and range of substantive political principles that can be justified, and correspondingly will severely limit the state’s justified resort to coercion, even to promote ends that may be widely (but not universally) considered to be valuable. In the words of Gerry Gaus: The liberal tradition denies that the justification of organised coercion is a settled conviction that can overturn fundamental moral principles. If com­ pelling moral claims . . . imply that most state coercion is unjust, then the loser is state coercion, not these fundamental moral convictions. (Gaus 2003: 162) Typically, such a line of response attaches (near?) absolute priority to the need to justify political principles to all who are to be subject to them: this is the requirement of liberal legitimacy discussed earlier. If we cannot do that, then the exercise of coercive political power will in turn be unjustified. Gaus expresses the problem that we are left with very neatly when he says: ‘Justification is of fundamental importance, yet it really is hard to conclusively justify much’ (Gaus 1996: 294). If this is right, then liberals (other perhaps than those of a strong lib­ ertarian stripe), and egalitarian liberals in particular, are likely to find it rather hard to justify the kind of liberal principles that they want to defend. However, this is not the only possible response. While endorsing claims about the radical limitations of liberal justification, another possibility is that we should instead dispense with the excessively demanding requirement that political prin­ ciples must be justifiable to each and every person who is subject to them. This is not to deny that, where possible, finding reasons that can have wide appeal is highly desirable, and in particular that reasons of a broadly Hobbesian kind – peace, security, etc. – which are likely to have just such wide appeal can be invoked in justifying the need for political power at all. In that respect I would want to challenge Gaus’s claim just cited, in that the case for political coercion can be regarded as more firmly based than the supposedly fundamental moral principles. Whatever these principles are, in practice we need a fairly secure and stable social order to be able to realize them. But this will not satisfy most liber­ als; for dispensing with the requirement that for state coercion to be legitimate

Reasonable disagreement   73 the basic principles of a political order must be reasonably justifiable to every­ one is something like apostasy within much of contemporary liberalism. Such a view, it is argued, would leave open the unjustified violation of individual auton­ omy and human rights that puts us on a slippery slope to all variety of illiberal and tyrannical regimes. To which my response is as follows: if the arguments about the limits of liberal justification are sound, then it may be that this is a slope that we cannot avoid – we are already on it, and there is no way of getting off. This does not mean that such dangers as liberals fear are unreal or to be treated without due seriousness, but the appropriate question to ask is not how to find a way of avoiding this slippery slope, for example by the vain pursuit of a set of substan­ tive political principles that nobody can reasonably reject. Instead, it is to ask where on this slope, at this time and in this place, we want to be, given the par­ ticular configuration of diverse beliefs and goods with which we have to contend, the depth and extent of such differences, the salience of specific values in the form of the various political aims and aspirations of members of the political community, the immense complexity of our circumstances, the lumpiness and discontinuities in practical reasoning, the natural condition of human fallibility and imperfection, and realistic judgements about what is politically possible. That is: how can we negotiate diversity and conflict in the absence of a single set of political principles that nobody can reasonably reject? Of course, there will be widespread disagreement about how this question is to be answered, too, but then I am not in the business of offering an answer to this question myself, and am to a degree sceptical about how far political theory should be expected to do so: it is something that has to be addressed through the political process.

Acknowledgements Earlier versions of this chapter were presented to the political theory groups at Keele University, Queen’s University, Belfast and the LSE, and to the Confer­ ence on ‘Multiculturalism and Moral Conflict’ at the University of Durham and the Conference on ‘Pluralism and Political Justification’ at University College, London. I am very grateful to Cillian McBride, Anne Phillips, Maria Dimova-­ Cookson and Andrew Shorten for the invitations, and to the audiences for the helpful discussion it received on all these occasions. I am especially grateful to Jerry Gaus, Andrej Keba and Glen Newey for their written comments on drafts of the chapter, and in addition to Glen for a number of enlightening conversations.

Bibliography Barry, B. (1995) Justice as Impartiality, Oxford: Oxford University Press. D’Agostino, F. (1996) Free Public Reason: Making It Up As We Go Along, Oxford: Oxford University Press. Dawkins, R. (2006) The God Delusion, London: Bantam Press.

74   J. Horton Gaus, G. (1996) Justificatory Liberalism: An Essay on Epistemology and Political Theory, Oxford: Oxford University Press. Gaus, G. (2003) ‘Liberal neutrality: A compelling and radical principle’, in S. Wall and G. Klosko (eds) Perfectionism and Neutrality, Lanham, MD: Rowman and Littlefield. Gray, J. (2000) Two Faces of Liberalism, Cambridge: Polity. Larmore, C. (1996) The Morals of Modernity, Cambridge: Cambridge University Press. Long, G. (2004) Relativism and the Foundations of Liberalism, Exeter: Imprint Aca­ demic. Mendus, S. (2002) Impartiality in Moral and Political Philosophy, Oxford: Oxford Uni­ versity Press. Newey, G. (2001) After Politics: The Rejection of Politics in Contemporary Liberal Philosophy, Basingstoke: Palgrave. Quong, J. (2004) ‘The rights of unreasonable citizens’, The Journal of Political Philosophy, 12: 314–15. Rawls, J. (1993) Political Liberalism, New York: Columbia University Press. Waldron, J. (1993) ‘Theoretical foundations of liberalism’, in J. Waldron (ed.) Liberal Rights: Collected Papers 1981–1991, Cambridge: Cambridge University Press. Waldron, J. (1999) Law and Disagreement, Oxford: Oxford University Press.

4 Naivety, doubt and the politics of cultural identification Matthew Festenstein

One of the most persistent spectres haunting work in the political theory of cultural diversity, nationalism and ethnic pluralism has been a worry about naivety. This body of work has been devoted to putting such topics as language policy, the self-­determination of nations, exemptions for religious and other minorities, group representation, and other claims for accommodation and recognition on the agenda of Anglo-­American political theory, and exploring their implications. A claim running through much (although not all) of this work is that culture or the cultural identity of citizens should be accorded some normative weight in political deliberation and institutional design. This claim, that cultural identity, or my cultural identity, should carry normative weight is now familiar both in academic theory and the wider political discourse. To assert that some practice is ‘part of one’s culture’ is a well-­worn step in arguments in the public defence of a practice. Behind this move is the thought that there is a reason for valuing or permitting this practice which lies in its status as an expression of the cultural identity of practitioners; that this cultural identity should carry normative weight in political judgement. For instance, according to Charles Taylor: I may come to realize that belonging to a given culture is part of my identity, because outside of the reference points of this culture I could not begin to put to myself, let alone answer, those questions of ultimate significance that are peculiarly in the repertory of the human subject. Outside this culture, I would not know who I was as a human subject. So this culture helps to identify me. (Taylor 1992: 45) Since culture is so important to one’s identity, there is at least a pro tanto reason to respect culture, as part of respecting the person. In this vein, Bhikhu Parekh argues for a provisional and fallible judgement that each culture is owed respect: ‘[s]ince every culture gives stability and meaning to human life, holds its members together as a community, displays creative energy, and so on, it deserves respect’ (Parekh 2000: 176–7). Similarly, Will Kymlicka argues that  the exercise of the liberal value of autonomy is intimately tied up with the

76   M. Festenstein individual’s secure possession of a cultural identity, which provides a reason, within a liberal political morality, to respect that identity (Kymlicka 1995, 2001, 2007). We can bundle together these various claims into the thought that culture is important for practical identity, that is, for those features of a person that ground some of their reasons to act: ‘[m]y practical identity is my conception of myself, my view of what about me makes my life valuable: it captures those aspects of my self that have the authority to determine my actions’ (Laden 2001: 87).1 Cultural embeddedness is meant to make a difference to the reasons and obligations that we have. How does the cultural claim, for the significance of culture as an ingredient in practical identity, relate to the diverse issues of political recognition that have formed the substance of multicultural political theory? Not straightforwardly, since these problems and debates concern not only the kind of claim that my cultural identity makes on me but also the claim that it can make on others and on the state. All I want to suggest is, first, that for an important range of arguments for political recognition, this claim for the importance of culture for practical identity is a premise. Take, for example, arguments for exemptions from generally applicable laws for members of a particular religion on the grounds that their religion places requirements on them that bring them into conflict with the law. A successful case for an exemption (as opposed to the abolition of the law altogether) should in part rest on its being the case that the religious requirements actually apply to the person for whom the claim is made. More elaborate normative claims, such as Kymlicka’s argument that secure access to a societal culture is part of an individual’s ‘context of choice’ (which I discuss in some more detail below), also rely on the claim that a cultural identity grounds obligations and reasons to act. A major obstacle in the path of this kind of claim for the normative significance of culture is that this rests on a naive or disingenuous conception of social identity, one which masks what Amélie Rorty called ‘the hidden politics of identification’. For this kind of sceptic about the cultural claim, the latter’s proponents presume a simple-­minded conception of cultural identity as somehow inhering in the individual or group and requiring only ‘recognition’ (understood as something like an act of perception) on the part of others. Yet, the sceptic argues, the specification of the character, ‘needs’ or ‘requirements’ of some cultural identity is in fact a tactical move on a political and ideological battleground. The cultural claim seems to ‘appeal to the poetics of idealized cultural identity without fully acknowledging the ways that characterizing the “identity” of a culture is itself a politically and ideologically charged issue’, which ‘disguises the powerful intracultural politics of determining the right of authoritative description’. This discourse built on the cultural claim ducks the ‘ever present question[s] “From whose perspective?” and “In whose interests?” ’ which ‘permeate the politics of historically based characterisations’ (Rorty 1994: 154, 158). As Chandran Kukathas puts it: the most seductive and dangerous move [in the politics of identity] asserts that identity is not political but, somehow, natural or original. But identity is

The politics of cultural identification   77 not natural, or original, or permanent, or even necessarily particularly enduring. It is fluid, ever-­changing (to varying degrees) and inescapably political. (Kukathas 1997: 150) For Paul Gilbert, Anglo-­American political philosophers ‘commonly accept as the culture of a group what is presented as such for political purposes, without subjecting it to the sort of scrutiny that might call the claims based upon it into question’ (Gilbert 2000: 40–1). In an similar vein, for Seyla Benhabib ‘much contemporary debate in political and legal philosophy’ has been dominated by a ‘faulty epistemology’ or ‘reductionist sociology’, which has carried with it ‘grave normative consequences for how we think injustices among groups should be redressed and how we think human diversity and pluralism should be furthered’. Gripped by these false epistemological premises and social theory, proponents of multiculturalism are ‘afflicted by the paradox of wanting to preserve the purity of the impure, the immutability of the historical and fundamentalness of the contingent’ (Benhabib 2002: 4–5, 11).2 Finally, it is a short step from this to Brian Barry’s charge that proponents of the cultural claim have failed to penetrate what is, in essence, an ideology in the strict Marxist sense: an otherworldly rationalization of a distasteful reality. Whereas in recent decades, historians and social scientists have concentrated on unmasking the pretensions of these movements, political philosophers have been willing to act as intellectual accomplices. (Barry 1998: 313)3 Now these sceptical complaints about the normative weight attached to culture by proponents of the cultural thesis are not – or not only – formulated as, so to speak, local doubts about particular identifications, but as a global scepticism about the way that culture is invoked in political theory. Local doubts are doubts about particular identity claims. First, we can call into doubt particular ascriptions of identity: it is false to think of me as a devout Catholic, and no amount of assertion (as opposed to redefinition) will make it the case that I am. Second, we may have a concern that an identity claim is not merely false but in a deeper way incoherent or unintelligible, in the way that, for instance, ‘being a Samurai warrior’ is unavailable as a true predicate for contemporary denizens of London. Third, we may have a doubt about assertions of what some particular identity requires or what follows from some cultural identity claim. For instance, in the face of the claim that any authentic member of group G must marry within the group, eschew foreign modes of speech, take up arms against outsiders, etc., we may retort that this requirement is false or arbitrary. In each case, the form of these particular or local doubts requires us to distinguish between well-­grounded identifications and claims about what follows from them from poorly grounded identifications and claims – ones that are true, coherent, or not merely arbitrary. This global scepticism should also be distinguished from the claim that people may lack an interest in membership of whatever groups they may be members

78   M. Festenstein of, since that membership may fail to contribute to their well-­being (for instance). For example, if a particular cultural identity is seen as entailing a set of reasons and obligations that violently subordinate women to men, then there is a reason for women not to have that identity (Okin 1999). Now it seems to me that there is nothing in the cultural claim to block the idea that sometimes cultures and cultural practices may be obnoxious in this way. But this is not the form of scepticism about the cultural claim at issue here, and (I will argue in the following section) it is incompatible with at least one important form of it. In contrast, the global scepticism on which I want to focus here is based on the thought that a more realistic account of cultural identity reveals that the latter cannot carry the normative weight assigned to it by proponents of multiculturalism. The arbitrary and contingent character of cultural identification means that it does not possess the kind of force in political deliberation that proponents of the cultural claim hope (Johnson 2000). What makes scepticism here so interesting and challenging, then, is that it attacks the claim on behalf of the value of cultural identity, and so a wide range of arguments, at this root. In what follows I will examine two versions of this doubt, and in each case argue that it is ill-­ founded: first, a general attack on cultural identification as an ingredient in practical identity, and second, the view that multicultural political arguments require an untenable account of identity. The guiding thought is that we need to be more cautious about the relationship posited between the ontology of culture and politics. This chapter takes as its motto a warning Charles Taylor issued some time ago: Taking an ontological position does not amount to advocating something; but at the same time, the ontological does help to define the options which it is meaningful to support by advocacy [. . .] Your ontological proposition, if true, can show that your neighbour’s favourite social order is an impossibility or carries a price that he or she did not count with. But this should not induce us to think that the proposition amounts to the advocacy of some alternative. (Taylor 1989: 160, emphasis in original)

Essence and identification For a term which has been so central to so much of the discourse of recent political theory, ‘culture’ itself has been subject to less intense conceptual scrutiny than might have been expected, at least among political theorists. Perhaps this is unsurprising, however, since the elusiveness of the quarry in this case is well attested. There are dozens of ways of defining the concept, some of which conflict with others, which refer to a wide range of different phenomena, and which are often responsive to different kinds of theoretical, analytical and explanatory interests.4 The predominant conception in social and political theory has focused on culture as a pattern of significance. Culture is understood as ‘the pattern of

The politics of cultural identification   79 meaning embodied in symbolic forms, including actions, utterances, and meaningful objects of various kinds, by virtue of which individuals communicate with one another and share their experiences, conceptions and beliefs’, or a set of ‘intersubjectively shared symbols that actors invest with meaning’ (Thompson 1990: 132; Johnson 2000: 409). The anthropologist Clifford Geertz, who has probably been the most influential proponent of this semiotic conception, variously describes culture as ‘a set of symbolic devices for controlling behaviour’, ‘an historically transmitted pattern of meaning embodied in symbols, a system of inherited conceptions and expressed in symbolic forms by means of which men communicate, perpetuate and develop their knowledge about and attitudes towards life’, and ‘a system of symbols by which man confers significance on his own experience’ (Geertz 1973: 52, 89, 250). Among political theorists, Parekh, for instance, explicitly evokes this Geertzian conception when he describes culture as a ‘historically created system of meaning and significance . . . a system of beliefs and practices in terms of which a group of human beings understand, regulate and structure their individual and collective lives’ (Parekh 2000: 143).5 Having developed an initial understanding of what is at issue in cultural identification, I want to put more flesh on the global scepticism at issue here. We can see the sceptical position as consisting in the claim that cultural identification rests on a false cultural essentialism.6 An essentialist view of culture is one that takes a culture to consist in a set of fixed characteristics that unchangeably inhere in particular individuals, and which parcel them out into particular groups. This undoubtedly has formed an influential, and now widely criticized, way of thinking about culture and human identity. First, it takes cultures to be integral ‘articulated wholes’. As Ruth Benedict famously puts it in Patterns of Culture: ‘[a] culture, like an individual, is a more or less consistent pattern of thought and action’; ‘the manners and morals of the group’ conform to ‘one well-­defined general pattern’ (Benedict 1935). Second, these patterns are clearly delineable and knowable. Third, they are clearly assigned to particular groups, and so to the individuals who belong to these groups. As Sherry Ortner puts it, for the essentialist culture is ‘a deeply sedimented essence attaching to, or inhering in particular groups’ (Ortner 1997: 8–9, cited in Wedeen 2002: 713). Fourth, these patterns are taken to be given, fixed and ‘apolitical’. Fifth, members of culturally defined groups are embedded in these groups and identities, which profoundly shape the outlook and behaviour of members. So the first sceptical claim is that, in order to make good the claim that culture plays a significant role in practical identity, we must subscribe to an essentialist conception of culture. However, this conception rests on a mythical view of the homogeneity and determinacy of cultural identities, for ‘both culture and identity are made up, invented, unstable discursive fabrications’ and ‘every culture is fragmented, internally contested, its boundaries porous’ (Kuper 1999: 239). The view of culture as necessarily coherent, bounded, uncontested and apolitical has been decisively rejected. Indeed, in spite of the charges of tacit essentialism outlined above, it is hard to find overt supporters of this form of essentialism, and

80   M. Festenstein unsurprisingly proponents of the importance of culture for practical identity have been keen to distance themselves from it. Proponents of the cultural claim respond that they have no such commitment, and embrace a conception of cultural identity as mutable, contested, negotiated, and interactive.7 For instance, James Tully, inveighing against the essentialist ‘billiard ball’ picture of cultural identification, writes that cultures are not internally homogeneous. They are continuously contested, imagined and re-­imagined, transformed and negotiated, both by their members and through their interaction with others. The identity, and so the meaning, of any culture is thus aspectival rather than essential: like many complex human phenomena, such as language and games, cultural identity changes as it is approached from different paths and a variety of aspects come into view. (Tully 1995: 10) The issue, however, is not what proponents of the normative significance of cultural identity claim, but whether in fact their view of this normative significance commits them to essentialism in spite of declarations to the contrary. At the same time, what the sceptic needs to establish is that advocates of the claim for culture require essentialism. On the face of it, the cultural claim is compat­ ible with cultural essentialism, in the sense that there is no inconsistency in subscribing to the claim about identification, and thinking of the culture referred to in that claim in essentialist terms, as a set of fixed characteristics unchangeably inhering in a person or group. In the remainder of this section, I will consider two challenges to this essentialist account, and consider in each case the precise limits of the argument presented. In each case, I want to show how the challenge does not undermine the claim to cultural identification. The first rests on the empirical fact of disagreement about the character of a culture. This objection is often expressed through the enormously influential conception of culture as a peculiar kind of text: [c]ultures, and all people, events, and artefacts within their social worlds, are meaningful: that is, they are full of meaning. One comes to the myriad meanings contained within them as one does in reading a text: by recognizing symbols, locating those symbols in a grammar, and interpreting the resulting texts. (Norton 2004: 22) These texts and the symbols that constitute them are ‘multivocal’, as Geertz puts it. This is so not only in the sense that they are ambiguous, embodying multiple meanings and open to various interpretations. They are also contestable in that different agents can invest the same symbols with divergent and possibly conflicting meanings. Further, they are vague, in the sense that the meaning of symbolic forms may lack clear boundaries. The objection draws the conclusion from

The politics of cultural identification   81 this that specific interpretations of an identity – what that identity involves or requires, its interests and demands – tends in a significant range of cases to be so contested as to be indeterminate, in the sense that there may be no shared criteria with which to settle the conflicts of interpretation that result from the other features. If cultural identity is so indeterminate, then it cannot be a significant part of an account of practical identity or selfhood. This worry about indeterminacy returns us to the suggestion of a hidden or not-­so-hidden politics of identification. In the absence of determinacy, specification of the content of cultural identities is open to the mere impress of power. In other words, proponents of multiculturalism blithely invoke, for example, Jewish or Muslim identity, and discuss its distinctive features and requirements with little sense of the extent to which there exists disagreement over what that identity in fact is, and how that disagreement is the subject of political struggle within a group. Who is to say what it means to be a Serbian, Inuit, Muslim or Tamil? Do Pueblo or Hasidic women have the same interests derived from their cultural identity as their husbands, brothers or fathers? How central are certain practices (speaking Welsh, wearing the headscarf, arranged marriages) to a given identity? This first objection cautions us against a common pitfall of multicultural political theory, the simple-­minded acceptance at face value of some particular account of what a cultural identity is or requires. Does this objection to essentialism undermine the claim for culture as an ingredient in practical identity? We may think so, on the grounds that we cannot make a claim that X grounds certain reasons for action – the claim that X forms part of practical identity – unless we possess clear and agreed upon criteria for what counts as an X. Yet the empirical fact of disagreement about the content of a cultural identity, even in its most persistent and political forms, does not demonstrate that a cultural identity has no determinate character. First, disagreement does not imply that there is nothing for competing views of an identity to be views of, or that no view is better than any other. Nor does the fact that different views of a cultural identity express different social interests, or the fact that debates (and non-­debates) are shaped by relationships of power and domination, mean that the content of a cultural identity is wholly indeterminate. Second, the worry about determinacy is susceptible to the objection that there are ‘companions in the guilt’ here. If we think that social roles can ground reasons for action, then the kind of social roles invoked will tend to be vulnerable to the contestability, vagueness and ambiguity that this worry identifies, irrespective of containing any particular ‘cultural’ referent.8 For example, citizenship and parenthood, to consider examples of two social roles that we may invoke in an account of practical identity, are also subject to serious arguments about their identity, boundaries, meaning, and so on. However, in these cases, I would suggest, we do not draw a sceptical conclusion. So, even if we know that our conceptions both of citizenship and parenthood are contestable, we can understand the thought that these roles may generate conflicting reasons for action, when, for instance, a parent discovers that her child has been committing serious crimes. If we accept this, then we are familiar with cases which both

82   M. Festenstein have the semantic features picked out by the sceptic, but from which we do not draw the sceptical conclusions. Third, to view these semantic features of cultural interpretation as undermining the possibility of meaningful characterization undermines not only the affirmation of the claims of identity but also a more radical critical rejection of an identity on the grounds that this identity has some determinate but repugnant characteristics that merit rejection. Let us consider one of Okin’s vivid examples: The words of a seventeen-­and-a-­half-year-­old Indian student from Fiji capture the dilemma that such young women face. Suddenly faced with a coerced marriage that would not allow her to graduate from high school, she said ‘I don’t know what to do now. My dreams and plans are all messed up . . . I am tormented’. But when a teacher suggested that she need not, perhaps, go through with the marriage, she responded indignantly, ‘In our religion, we have to think of our parents first. It would kill them if I ran away or disobeyed them . . . For me, I couldn’t marry someone who wasn’t a Muslim. I will do it the Muslim way. And I would never go against my parents!’ (Okin 2002: 222, citing Olsen 1997: 136, 138) While this young woman possesses a ‘formal right’ of exit, Okin goes on, exercising this is ‘unthinkable to her’ since in doing so ‘she would lose much of what she most values in life’. There is a lot to consider here, not least the use of the concept of coercion (cf. Spinner-­Halev 2001; Phillips 2007). Here I want only to suggest that an account of this as a conflict in, or deriving from features of, this woman’s practical identity rests on the possibility of ascribing determinate characteristics to it, and indeed from her being able to ascribe them. A possible response to this is that a radical line of criticism does not have to rely on specifying determinate features of an identity. Rather, the critic needs only to highlight the oppressive consequences of the identity, or the power some have of imposing a conception of the cultural identity that has those consequences, in order to make her point. The difficulty with this response is that the critic still needs to show that those consequences are consequences of that identity, and not of something else. For example, an argument that the beliefs and practices of a particular religion imply the subordination of women, or have the effect of subordinating women, requires a determinate account of what those beliefs and practices are. A second form of this objection starts from the claim that cultural identities are constructed. This claim has been pressed from rather different directions in social and political theory, including rational choice theory, Marxism, network theory, post-­colonial theorists, followers of Foucault, et al. We can tentatively suggest that what these critical standpoints share is a view of cultural identity as the upshot of the interaction of conflicting social forces. James Johnson, for example, argues that symbols and cultural practices possess ‘an inescapable stra-

The politics of cultural identification   83 tegic dimension’, in which actors struggle to control symbols in order to promote their political ends among those who share these symbols. Cultural identities emerge and are maintained as part of the ‘struggle for power over others, a strategic contest to control the symbols and cultural practices in terms of which social and political actors envision possibilities and fashion them into viable alternatives’ (Carrithers 1992: 8–9; Johnson 2000: 412). Symbols and cultural practices, then, are contested since they are vital in establishing who is and is not ‘one of us’, for example (Gilbert 2000: 39–40). But this is not simply a matter of applying clear-­cut criteria; rather, the criteria and their application at any given point are a product of the play of social forces which attempt to impose a particular vision of society, community or group (Johnson 2002: 215). The crucial point is not the indeterminacy of the identity, as in the first version of the objection, but the origins or the function/interest served by the shaping and imposition of the identity. Constructionism emphasizes the invention of tradition, and the formation of cultural identities through contingent political processes (Hobsbawm and Ranger 1992). One significant context is that of nation-­building, as languages, festivities and religious traditions are invented or adapted in order to define a national culture – for example, with the Victorian invention of the immemorial traditions of the royal Coronation in Great Britain (Cannadine 1992). Another is the interaction of colonial powers and the colonized. Fijian norms governing land and chiefly authority are the product of a deal brokered between indigenous chiefs and the British colonial government (Carens 2000: 200–59; Johnson 2002). The pre-­colonial kingdom of Burundi consisted of clans of various ethnic groups bound together in clientelist relationships. The systematic support of the Tutsi elites by the Belgian colonial administration replaced trans-­ethnic clientelism with an intra-­ethnic clientelism, as the Tutsis began to discriminate in their own favour and against the Hutu majority (Wimmer 2002: 94). The meaning and status of sati or the immolation of widows as purportedly central to Hindu tradition ‘emerges out of negotiations between British colonial and local Indian elites’ (Benhabib 2002: 6). The policy of disenfranchising Canadian native women who marry non-­status Indian or non-­Indian men is a product of the entrenchment of patriarchal norms in Canada’s 1869 Indian Act, rather than a primordial tradition (Deveaux 2000: 527). Just as it is possible to accept the account of the semantic features of cultural identification without drawing a sceptical conclusion, we can accept constructionism’s explanatory agenda without concluding that this undermines the claim that culture can be a significant ingredient in practical identity. One basis for thinking that constructionism provides a reason for holding that cultural identity cannot count as a significant element in practical identity rests on the thought that the latter claim requires cultural identity to be fixed, while constructionism shows up this idea as false. If the identity is the product of a political process, then it cannot unchangeably inhere in the group. But to see this as an objection simply presumes that the claim for culture rests on an essentialist conception, and this is what is at issue.

84   M. Festenstein Perhaps we should understand the constructionist objection in another way, however. The lesson of constructionism may be, as Gilbert puts it, that it ‘is unlikely that there will be some single unitary culture for a given group. Rather there will be a variety of cultural constructions resulting from contestation between conflicting interests in the formation or development of the group’ (Gilbert 2000: 40–1). If we view cultural forms as the product of political processes, then we should see that they are likely to lack the kind of unity that would allow us to make meaningful ascriptions. In this vein, Benhabib says of a society (Britain, France, Algeria) ‘there is never a single culture, one coherent system of beliefs, significations, symbolizations, and practices’ (Benhabib 2002: 60). As we have seen, it is part of the anti-­Herderian conception of culture that it is seen as discontinuous, patched together, lacking coherence, and so on. But why should not practical identity be made of this stuff? Nothing rules out the internally conflictual character of practical identities, as in the parenthood/citizenship example again. Finally, I want to consider another way of casting constructionism as an objection to the basic claim about cultural identification. Perhaps the key claim is that an identity does not have the origins that it purports to have, and which are necessary for someone to identify with it. What makes it legitimate for those who identify with it is its immemorial past, and this sense of the legitimacy of the identity cannot withstand the revelation of its constructed origins. A common thread in constructionism is the project of unmasking the historical character of cultural identities that present themselves as ahistorical, or at least as the products of a far more glorious and generally older history than in fact they have. It is the hiddenness of the politics of identification from the perspective of those who are meant to have that identity which is objectionable. Possessed of a sound history of my cultural identity, I could not continue to find in it ‘a view of what about me makes my life valuable’, as capturing ‘those aspects of my self that have the authority to determine my actions’.9 This is, I think, a powerful and suggestive point. But it is an argument that needs to be made in each case, and in each case the outcomes are not given in advance. In itself, to hold that identities have histories does not undermine a claim for their importance to individuals. Regardless of the origins of a practice, a group may make it its own, integrate it with its other practices, and so on.

Essentialism and political argument I have argued that these two sources of scepticism about cultural essentialism do not undermine the very idea of cultural identification. I want to turn now to the thought that a normative political argument built on this claim about the importance of culture for practical identity must rest on essentialism. Sceptics such as Benhabib, Johnson, Gilbert, and others have in their sights not the general claim about cultural identification in this sense, but specifically the way it is deployed in political philosophy. The thought here is that although cultural identification does not in itself require essentialism, the forms that this claim takes in political theory does.

The politics of cultural identification   85 A first point is that there is no particular politics of essentialism. It is not the case that, if one subscribes to the essentialist conception of cultural belonging, then one is committed to multiculturalism. Indeed, some arguments against multicultural rights and policies can rest on essentialist premises. Okin argues that policies to reduce inequalities among cultural groups can have the effect of increasing inequalities between men and women. In doing so (as we saw above) she often contrasts the demands or requirements of an inherited cultural tradition with the interests of women in equality and autonomy. Some critics have seen this as reproducing the essentialist view of cultures as bounded, static, undifferentiated and with minimal internal dissent or disagreement. Accordingly, they accuse her of treating cultures as ‘unified, harmonious seamless wholes that speak with one narrative voice’ (Benhabib 2002: 102; cf. Shachar 2001; Phillips 2007). Now, as noted above, it is not obvious that this line of criticism must rest on this assumption (and that Okin is in fact committed to this). But the point to note here is only that essentialism can be functional, so to speak, in supporting the rejection of multicultural rights and policies. All this kind of radical argument in fact needs is a successful case-­by-case interpretation of cultural identification in these terms, but essentialism provides a short-­cut. On the other hand, a commitment to essentialism may play the same role in arguing for multicultural rights and policies. Let us consider two influential examples. The first is Will Kymlicka’s well-­known argument for multicultural rights, particularly for self-­government rights for national minorities. According to Kymlicka, people have an interest, grounded in considerations of autonomy and individual well-­being, in having available an adequate range of options and  opportunities. By offering a person options and endowing them with meaning and familiarity, a culture forms a context in which a person is genuinely able to exercise a capacity to make choices. In this sense, ‘freedom in the  first instance is the ability to explore and revise the ways of life which are made available by our societal culture’ (Kymlicka 2001: 53). If we accept that a person’s autonomy is valuable then we should value the cultural context that is a condition of it, since erosion of this cultural context weakens her ability to exercise this capacity. A culture provides options that would not otherwise exist, and provides evaluative categories that allow individual deliberation about options. The sense of identity and belonging provided by a familiar cultural environment makes individual deliberation and choice easier. Accordingly, those who lack this set of conditions are at a disadvantage relative to those who enjoy it. Now Kymlicka makes this claim specifically on behalf of what he calls a secure societal culture: that is, a culture which provides its members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational, and economic life, encompassing both public and private spheres. These cultures tend to be territorially concentrated, and based on a shared language . . . [I]n the modern world, for a culture to be embodied in

86   M. Festenstein social life means that it must be institutionally embodied – in schools, media, economy, government, etc. (Kymlicka 1995: 76; cf. Kymlicka 2001: 53) To possess a distinct culture, then, is to have (that is, to be a member of a group which has) a distinct set of social, economic and political institutions. The political significance of this stipulation becomes clearer when we note that Kymlicka’s core examples of such societal cultures include the Catalans, the Flemish, and the Quebecois, and the Indian bands and original peoples of Canada and the United States – national minorities which possess or can demand a ‘range of rights intended to protect and reflect their status as distinct cultural communities’ (Kymlicka 1995: 12). For this societal conception of culture, culture forms a distinctive way of life, marked out particularly by a language, together with a more or less discrete set of institutional structures which forms a significant condition for the identities of members. It is a striking feature of the societal conception that it suggests that different cultures cannot share a political or economic system, since it seems to unify culture with political and economic systems through identifying them as part of a larger whole, a set of distinct, territorially bound and relatively self-­ contained institutions. Kymlicka’s concern about alternative (‘disembodied’, ‘abstract’, ‘ethereal’) conceptions of culture as symbols, practices or beliefs lacking such a powerful institutional anchor, is that they neglect the important relationship between symbols, beliefs and practices and sociopolitical structures (Kymlicka 1995: 76–7, 80). Only societal cultures provide the social context for the formation and revision of conceptions of the good, and hence of individual freedom. Minority societal cultures are accordingly entitled to the protection provided by rights of self-­government in controlling the nature and pace of cultural change, in order that their members are not disadvantaged relative to members of the majority societal culture within a state. Now the problem for individual autonomy posed by cultural unfamiliarity and fragmentation that Kymlicka identifies in the context of choice argument is only addressed by extending self-­government rights to societal cultures if societal culture constitutes the relevant context of choice for each individual, and is the only relevant context of choice. The claim about the significance of societal culture for the individual is more persuasive the more that this is viewed in essentialist terms: that is, as a given relationship of membership in a clearly bounded group, which is decisive for the individual’s sense of identity. This depoliticizes the crucial question of identifying what is relevant for the individual’s sense of identity. Otherwise, claims about the value of societal culture as the ground of individual deliberation become a matter of contestable interpretation. We can see a similar logic at work in a different and also widely discussed multicultural argument. Bhikhu Parekh makes the case for exemptions from laws and policies in the name of equal treatment. Where groups with conflicting cultural commitments have to live under the same legal and policy regime, equal

The politics of cultural identification   87 opportunity has to be interpreted in a culturally sensitive way because an opportunity is ‘mute and passive’ if an individual lacks the necessary cultural capacities to take advantage of it. For example, he considers the case of Mandla v. Dowell Lee, in which a turban-­wearing Sikh schoolboy was refused admission to a private school in Birmingham on the ground that he failed to comply with the school’s rules, which prescribed a short haircut and a uniform that included a cap. The formal equality of opportunity that consists in applying the same rule to all is in fact discriminatory in its effects, Parekh argues: A Sikh is in principle free to send his son to a school that bans turbans, but for all practical purposes, it is closed to him. The same is true when an orthodox Jew is required to give up his yarmulke, or the Muslim woman to wear a skirt, or a vegetarian Hindu to eat beef as a precondition for certain kinds of jobs. Parekh 2000: 241 In such situations, equality requires providing exemptions from rules which are justifiable when applied to citizens without these particular cultural commitments. Here too we may view the argument as resting upon a conception of culture as fixed and constraining individuals; as Anne Phillips puts it, ‘as something that swallows up individuals to such a degree that they are now powerless to do anything else’ (Phillips 2007: 110). Without viewing cultural and religious commitments as fixed, in this way, the argument for exemptions will not go through, it may be thought. For if a person can alter these beliefs and preferences, then no particular burden falls on the Sikh rather than (say) the merely fashion conscious when the school demands adherence to the dress code. In either case, it is up to the individual to make a choice – either the school or the preferred way of dressing. However, the argument for an exemption in this case does not require that we view the individual as somehow engulfed by particular cultural commitments, or that these are a fixed ‘circumstance’ in a person’s life (cf. Heath 1998; Mendus 2002). Rather, the underlying point is something more like this: that we have an interest in religious and cultural commitments, or these are important to us – Kymlicka’s context of choice argument offers one way of developing this thought, but of course there are others (Festenstein 2005: 37–65). Furthermore, this interest or importance is sufficient to ground differential treatment, where uniform treatment would fail to respect it. Now this consideration does not involve the claim that cultural commitments are given, fixed, unchanging, engulfing, and so on.

Conclusion It should be clear, I hope, that none of this amounts to a blanket endorsement of multicultural or cultural nationalist claims, either about the content of particular identities or about the political implications of recognizing culture as an ingredient in practical identity. The aim of this chapter has been to put the charge of

88   M. Festenstein cultural essentialism, and the corresponding accusations of naivety and ideological softheadedness, in their place. The approach here has been immanent, in the sense that I have tried to explore the implications of anti-­essentialism, rather than to challenge its ontological and epistemological premises. The first version of this argument, resting, respectively, on accounts of the contestability and constructed character of cultural identification, fails to establish the case for a global scepticism about cultural identification. Indeed, the objection adopts what pragmatists call a spectator’s point of view with respect to conflicts of interpretations over the content of an identity. If a cultural identity is merely indeterminate, then disputes over how to characterize an identity are literally pointless (at least apart from pragmatic goals), and what appears to protagonists as a dispute about content is not. This undermines the possibility of more local doubts about the veracity and authenticity of particular identifications, from both a critical and an affirmative standpoint. I then argued that essentialism does not imply any particular politics of multiculturalism. Essentialist assumptions may play a role both in radical anti-­multicultural arguments and in arguments for group-­differentiated laws and policies, and are probably a continuing temptation both for supporters and opponents of multiculturalism. But neither of these types of argument needs to rest on these assumptions.

Acknowledgements I am grateful, for comments on earlier versions, to Michael Freeden, Paul Gilbert, James Hampshire, Cecile Laborde, Tariq Modood, Anne Phillips, Andrew Shorten, Marc Stears, Robert Stern, and to participants in the Philosophy Department Seminar, University of Sheffield, the Conference on Political Theory and the Significance of Culture at University College London, and the Conference on Multiculturalism and Moral Conflict at the University of Durham.

Notes 1 For this concept, and its Kantian roots, see Korsgaard 1996; esp. 100–7. For some critical reflection, see Graham 2002. 2 For criticism of Benhabib’s use of constructivism, see Peritz 2004; Kompridis 2005; Benhabib 2006. For a slightly earlier statement of this position, see Turner 1994. 3 For different versions of this criticism, see also Lukes 2003; Phillips 2007. This global scepticism overlaps with recent criticisms of the concept of recognition in social and political theory: see Markell 2003; McNay 2008. 4 In Raymond Williams’s well-­known phrase, ‘culture’ is ‘one of the two or three most complicated words in the English language’ (Williams 1983: 90). Just as famously, Kroeber and Kluckhohn (1952) pick out 171 uses. See too Geertz 1973; Kuper 1999; Wedeen 2002; Bayart 2005; Lane and Ersson 2005; Chabal and Daloz 2006. 5 For a discussion of different conceptions of culture in contemporary political theory, see Festenstein 2005: Ch. 1. 6 This is a view with a complex intellectual lineage, usually traced to J. G. Herder: see Lukes 2003.

The politics of cultural identification   89 7 For example, Tully 1995: 10–14; Tully 2002: 104–5; Parekh 2000: Ch. 5; Carens 2000; Ivison 2001: 33–9. Dhamoon 2006; Modood 2007. 8 This is distinct from the objection that a social role, even if it is determinate, cannot ground a reason for action: Graham 2002. 9 Or perhaps a sound genealogy: Nietzsche 1994; Geuss 1999; Sherratt 2006.

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90   M. Festenstein Kukathas, C. (1997) ‘Liberalism, multiculturalism, and oppression’, in A. Vincent (ed.) Political Theory: Tradition and Diversity, Cambridge: Cambridge University Press. Kuper, A. (1999) Culture: The Anthropologists’ Account, Cambridge, MA: Harvard University Press. Kymlicka, W. (1995) Multicultural Citizenship, Oxford: Oxford University Press. —— (2001) Politics in the Vernacular, Oxford: Oxford University Press. —— (2007) Multicultural Odysseys, Oxford: Oxford University Press. Laden, A. S. (2001) Reasonably Radical: Deliberative Liberalism and the Politics of Identity, Ithaca, NY: Cornell University Press. Lane, J.-E. and Ersson, S. (2005) Culture and Politics, Aldershot: Ashgate. Lukes, S. (2003) Liberals and Cannibals, London: Verso. McNay, L. (2008) Against Recognition, Cambridge: Polity Press. Markell, P. (2003) Bound By Recognition, Princeton: Princeton University Press. Mendus, S. (2002), ‘Choice, chance and multiculturalism’, in P. Kelly (ed.) Multiculturalism Reconsidered, Cambridge: Polity Press. Modood, T. (1998) ‘Anti-­essentialism, multiculturalism, and the “recognition” of religious groups’, Journal of Political Philosophy, 6: 378–99. —— (2007) Multiculturalism, Cambridge: Polity Press. Nietzsche, F. (1994) On the Genealogy of Morality and Other Writings, ed. by K. Ansell-­ Pearson and trans. by C. Diethe, Cambridge: Cambridge University Press. Norton, A. (2004) 95 Theses on Culture and Politics, Princeton, NJ: Princeton University Press. Olsen, L. (1997) Made in America: Immigrant Students in Our Public Schools, New York: New Press. Okin, S. M. (1999) Is Multiculturalism Bad For Women?, Princeton, NJ: Princeton University Press. —— (2002) ‘Mistresses of their own destiny: Group rights, gender, and realistic rights of exit’, Ethics, 112: 205–30. Ortner, S. (1997) Introduction. Representations, 59: 1–13 Parekh, B. (2000) Rethinking Multiculturalism, Basingstoke: MacMillan. —— (2002) ‘Barry and the dangers of liberalism’, in P. Kelly (ed.) Multiculturalism Reconsidered, Cambridge: Polity Press. Peritz, D. (2004) ‘Toward a deliberative and democratic response to multicultural politics: Post-­Rawlsian reflections on Benhabib’s The Claims of Culture’, Constellations, 11: 266–90. Phillips, A. (2007) Multiculturalism Without Culture, Princeton, NJ: Princeton University Press. Rorty, A. O. (1994) ‘The hidden politics of group identification’, Political Theory, 22: 152–66. Schachar, A. (2001) Multicultural Jurisdictions, Cambridge: Cambridge University Press. Sherratt, Y. (2006) Continental Philosophy of Social Science, Oxford: Oxford University Press. Spinner-­Halev, J. (2001) ‘Feminism, multiculturalism, oppression, and the state’, Ethics, 112: 84–113. Taylor, C. (1989) ‘Cross-­purposes: The liberal-­communitarian debate’, in N. Rosenblum (ed.) Liberalism and the Moral Life, Cambridge, MA: Harvard University Press. —— (1992) ‘The politics of recognition’, in A. Gutmann (ed.) Multiculturalism and ‘The Politics of Recognition’: An Essay by Charles Taylor, Princeton, NJ: Princeton University Press.

The politics of cultural identification   91 Thompson, J. B. (1990) Ideology and Modern Culture: Critical Social Theory in an Era of Mass Communication, Cambridge: Polity Press. Tully, J. (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. —— (2002) ‘The illiberal liberal: Brian Barry’s attack on multiculturalism’, in P. Kelly (ed.) Multiculturalism Reconsidered, Cambridge: Polity Press. Turner, T. (1994) ‘Anthropology and multiculturalism: What is anthropology that multiculturalists should be mindful of it?’, in D. T. Goldberg (ed.) Multiculturalism: A Critical Reader, Oxford: Basil Blackwell. Wedeen, L. (2002) ‘Conceptualizing culture: Possibilities for political science’, American Political Science Review, 96: 713–28. Williams, R. (1983) Keywords: A Vocabulary of Culture and Society, London: Fontana. Wimmer, A. (2002) Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity, Cambridge: Cambridge University Press.

5 Value pluralism and the liberal–multicultural paradox Monica Mookherjee

1  Introduction Liberalism provides an impassioned defence of the individual’s capacity to determine the good life as they conceive it. For instance, Rawls’ (1971) awareness of the enduring fact of pluralism lies at the core of his defence of liberal democracy. This tradition might therefore seem to favour a robust engagement with those who espouse a plurality of world-­views. Yet liberals do not support diversity limitlessly. They are uneasy about supporting those who assert the value of communal authority or religious orthodoxy over tolerance and free conscience. In light of the concern that liberals typically harbour for individual well­being, Ayelet Shachar (2001) has labelled this problem the ‘paradox of multicultural vulnerability’. This paradox holds that, on the one hand, liberalism’s respect for diversity entails a commitment to ensuring the survival of cultural groups. However, on the other hand, protecting groups can at times lead to discrimination against individuals. Thus, the conflict between the group and the individual seems to present a deep dilemma for liberalism. My claim in this chapter is that the paradox confronting liberal multiculturalism is even more profound than this. Liberals who assume that a single principle of justice, such as autonomy, justifies the commitment to diversity must retreat from this assumption when ascertaining justice for diverse groups in the real world. The paradox is thus that on the one hand, the liberal defence of diversity depends on asserting the priority of a common principle of justice (namely, individual autonomy, which justifies the concern to protect diverse groups to which individuals belong), but on the other hand, defending diversity often leads liberals to question this principle as the overriding consideration that determines just outcomes. This chapter elaborates on this paradox by considering two approaches to multiculturalism. These are liberal multiculturalism (which involves protecting citizens’ diverse conceptions of the good, whilst adhering to a common conception of the right); and value pluralist multiculturalism (an approach that holds that common principles of justice are not self-­evident in light of the diverse goods valued by different groups). The paradox that I highlight is revealed on considering that the two forms of multiculturalism cannot be distinguished. While the problem admits no easy resolution, resources for a more

Pluralism and liberal–multicultural paradox   93 coherent response to diversity can be found by examining the history of liberal thought. Specifically, I turn to Edmund Burke’s political philosophy, arguing that the insights gained from his critique of the conduct of British colonials in India remind liberals of the conflicted nature of their conception of justice, which is grounded in individual liberty, other-­regarding duties of care and mutual sympathy between people as members of the human species. A liberal pluralism derived from Burke’s thought does not, in an obvious sense, represent a radical theoretical innovation. However, it does respond honestly and open-­mindedly to questions of justice in contemporary situations of deep diversity. My discussion proceeds as follows. Section 2 explains liberals’ recognition of the fact of pluralism, and why such recognition does not amount to a value pluralist political theory. Section 3 considers two liberal multiculturalists in detail. In Section 4, I contend that liberal multiculturalists are, in spite of their philosophical basis, aware of the need to recognize value pluralism in the political sphere. This situation implies that liberal and value pluralist multiculturalism cannot be fully distinguished, and emphasizes the central paradox confronting liberal multiculturalism. I conclude in Section 5 by turning to Burke’s thought in order to outline a liberal pluralism that confronts honestly the problem of justice in late-­modern conditions. This approach accepts that human differences cannot all be assimilated to a liberal understanding of good, and that addressing political conflicts in a diverse social world requires a more internally complex account of liberal justice.

2  The fact of pluralism: liberalism contra value-­pluralism Let us begin with a brief account of how pluralism is understood in liberal theory. Rawls (1971) defends a set of basic rights designed to respond to a permanent truth of the world, namely that human rationality gives rise to a variety of ways of conceiving the good life. Rational individuals who seek mutually advantageous solutions to questions of justice will not inevitably share ultimate beliefs from which principles of right can be derived (Rawls 1971: 22; McKinnon 2006: 71). Instead, a plurality of moral and philosophical views remains a constant feature of human life under conditions of freedom. Such pluralism is reasonable, to the extent that the persons involved are capable of possessing a sense of justice – or a ‘capacity to understand, to apply and to act from the public conception of justice which characterizes the fair terms of social cooperation’ (Rawls 1993: 19). For sure, every society is also likely to contain unreasonable doctrines, and the extent to which they can be accommodated is not an abstract matter, but depends on the ‘principles of justice and the kinds of actions that they permit’ (Rawls 2002: 16, fn 8). Liberalism so understood may well accept the truth of value pluralism as a meta-­ethical account. For such a liberalism holds that citizens are mutually aware of the ‘burdens of judgement’, which are features of rationality that explain why disagreements over the deepest questions are to be expected (Rawls 2000: 33; McKinnon 2006: 72). The burdens of judgements entail that: (a) the

94   M. Mookherjee evidence relating to a case may conflict; (b) even when parties agree on the relevance of particular issues, they may disagree about their weight; (c) they may dispute one another’s interpretations of principle and what constitutes a ‘hard case’; (d) their values will be shaped by their total life experiences; and (e) there may be different considerations, and it will not always be evident how they should be weighed (Rawls 2000: 35–6). As Galston (2002) observes, at least some of these ‘burdens’ confirm the value-­pluralist claim that the uncombinability of human values is a permanent fact of the moral world. However, Rawls still assumes the reasonableness of a single account of the right, and, to this extent, does not put forward a value pluralist political theory. To be sure, citizens are supposed to accept procedures for negotiating dilemmas that rest on a recognition of pluralism as an empirical fact about the human condition. Yet there is a difference between accepting pluralism as a feature of our moral world and endorsing value pluralism politically. All reasonable persons, in Rawls’ view, will abide by principles of tolerance and equal civil liberties. The beliefs that they personally hold about deep existential issues will be retained in the ‘non-­public’ spheres of society (Rawls 1993: 23–33). As is well known, liberals enable diversity to flourish by securing goods such as basic income, opportunities to achieve positions of power and the ‘social bases of self-­respect’ that support all citizens’ liberty. If non-­liberal ways of life are gradually eroded as a consequence, this process should not be halted, even though it may be regrettable in a certain sense. Rawls therefore respects diversity by limiting its political implications. While liberal theorists such as Galston (2002) and Crowder (2007) assume that liberalism is a value pluralist theory, that view is contestable. Rawls is not committed to supporting politically the thicker form of value-­pluralism of which Berlin, for instance, was acutely conscious. Berlin doubted that the perfect human society, in which all values are realized harmoniously, is achievable (McKinnon 2006: 58). He characterized the human condition in terms of incommensurable valuable ends, and believed life to be permeated with unavoidable tragic choices between competing goods.1 As later pluralists such as Gray explain, this view assumes that there is no single master value to regulate human affairs; and goods not only compete with one another, but bads with bads. Moreover, some goods may be secured only by perpetrating a certain amount of evil and some right actions might involve a measure of wrong (Gray 1995: 162; Jones 2006: 193–4). Whether or not liberals accept these meta-­ethical claims, they differ from the belief that rational persons disagree over conceptions of the good. Yet Berlin also argued that liberalism would probably constitute the best political response to pluralism. He viewed this tradition’s commitment to negative liberty as the best response to diversity because it secures the optimal context in which human beings can choose amongst incommensurable goods (Berlin 1969: 123).2 A society that takes freedom to be a meta-­good responds more honestly to the human condition than an authoritarian society that insists on one vision of human life. We should be realistic about the losses involved in prioritizing a single value. However, a society committed to liberty as a meta-­good at least recog-

Pluralism and liberal–multicultural paradox   95 nizes that people are ‘doomed to choose’ between diverse ends (Berlin 1991: 13). Following Berlin at least on this point, Rawlsian liberals recognize the fact of pluralism, but erase from political view the tragic dilemmas that would figure centrally in a value pluralist political theory. They cope with diversity by appealing to a ‘reasonable’ account of justice. This is so even though, as Jones (1996: 195) argues, their distinction between the reasonable and the not reasonable ‘leaves everything still to be argued’ from the perspective of those who contest it.

3  Liberal multiculturalism: two approaches to pluralism, and two paradoxes In view of this account, how do liberal multiculturalists respond to the ‘strange multiplicity’ (Tully 1995) of groups seeking recognition in liberal states today? Will Kymlicka argues that liberals must lay aside their understandable worries about departing from a strict commitment to equal civil liberties, and should boldly protect minority communities through group-­differentiated rights (Kymlicka 1989, 1995). The reason for this is that liberal commitments to autonomy anticipate the need to foster the conditions that enable citizens to pursue a life of their choice. Regardless of the precise content of citizens’ choices, the state must support their capacities to choose. Owing to the disenfranchisement of certain groups in history, liberals should recognize that some individuals may not find straightforward the ability to pursue a valued life-­plan. Kymlicka, then, asserts a connection between dignity and choice, claiming that whether a course of action has significance to a person depends on the extent to which their inherited ‘language’ makes vivid to them the point of that activity. Therefore, understanding our cultural narratives is important to making an intelligent decision about how to lead our lives (1995: 83); and liberals should, on this account, grant rights to disadvantaged groups to ensure their survival (Kymlicka 1989: 74). While we shall deepen our analysis of Kymlicka’s account shortly, this overview enables us to see that he follows Rawls in championing autonomy both as a justification for, and limit to, the accommodation of diversity.3 The state, on this account, cannot justify rights that take the form of ‘internal restrictions’. It cannot endorse the self-­determination of groups if it enables powerful members to violate the rights of weaker individuals. The scheme does not permit minorities to use their freedoms to enact sex-­discriminatory laws, or to deny religious dissenters freedom of conscience (Kymlicka 1995: Chapter 3). Like Rawls’, Kymlicka’s approach is ‘monistic’ rather than value pluralist (Parekh 2000). It upholds autonomy in the face of the fact that many in the world today do not believe in the sanctity of this value (Kukathas 1995). Kymlicka is acutely aware of what Ayelet Shachar (2001) labels the ‘paradox of multicultural vulnerability’. This paradox holds that liberal multiculturalism risks supporting groups that do not place utmost value on individual liberty; and therefore that multicultural polices risk undermining liberal justice itself.4 Shachar aims to confront this paradox by pointing first to the self-­defeating nature of Kymlicka’s distinction between internal restrictions and ‘external

96   M. Mookherjee protections’ – i.e. rights that limit the wider society’s influence on the coherence and integrity of minority communities (Shachar 2001: 24; cf. Kymlicka 1995: 176). She explains that minorities could simply use external protections in order to impose internal restrictions on their vulnerable members. While Kymlicka concedes the difficulties involved in defining what counts as a ‘restriction’ in this context, and suggests that ‘the identification of oppression requires sensitivity to the specific situation, particularly when dealing with other cultures’ (1995: 40), Shachar’s concern is that to acknowledge the problem is not to solve it. Yet, her own proposal is not entirely persuasive. She advocates a form of ‘jurisdiction-­splitting’, on account of which the state would grant extensive self-­ determination to minorities, whilst making certain ‘reversal points’ or ‘exit-­ options’ available to all citizens (Shachar 2001: 46). Such measures are intended to enable individuals to reject traditional authority on issues that affect their basic liberties and access to resources, whilst groups would retain significant rights to self-­determination. On this account, a person whose community laws prohibit her from receiving adequate alimony payments after divorce, for instance, could appeal to the state. Yet this person could still retain the benefits associated with belonging to her identity-­conferring group, which would control ‘demarcatory’ issues – or matters that pertain to the maintenance of group membership and boundaries. The state would only impose exit-­options in respect of issues of distributive justice, such as civil liberties and basic material resources. A significant concern about this approach is that its implications could appear threatening to minority groups, who may question the scheme on grounds that it is not neutral in its impact on their way of life, and in fact imposes a heavy tax on it (see also Mookherjee 2009). Shachar does not recognize that the meaning of human needs is open to different interpretations by cultures (Donnelly 1989), and that traditions typically form ‘webs of meaning’ (Taylor 1985) from which it is not easy to isolate particular aspects for state intervention. One might have expected Shachar to be aware of this problem, given her consciousness of the unequal relations of power between groups and her avowal that governments should exercise ‘generosity’ towards minority communities, listen to their points of view and not deny them ‘voice’ (Shachar 2001: 129, fn 22). Thus, it seems contestable on her own account to empower the state to decide unilaterally in which areas of a community’s affairs rights of exit are appropriate. There may be tension between the state’s defence of welfare rights, on the one hand, and, on the other, a community’s distinctive ranking of them. Thus, the deepest problem confronting Shachar’s account may not be the ‘paradox of multicultural vulnerability’. Rather, the issue might be whether her proposal obscures conflicts between different conceptions of justice, each of which may be reasonable from a certain point of view.5 Shachar could reply simply that no reasonable conception of justice could reject the basic issues of justice to which her exit-­options relate. She might also insist that she does not advocate the imposition of controversial norms on a vulnerable community, as her proposal merely offers individuals within those groups the opportunity to reject community laws in certain spheres of life.

Pluralism and liberal–multicultural paradox   97 Yet such responses would underestimate inequalities of power and conflicts over values in contemporary societies. Shachar insists that her aim is not to increase the chances of radical conflict between different groups, because many citizens experience affiliations to different identity-­conferring groups (2001: 3). Rather, the exit-­options that she proposes are intended to serve as catalysts for communities to modify informally the most problematic aspects of their traditions over time, in relation to, say, justice for women and children (Shachar 2001: 33). However, her account seems not to acknowledge the ambiguities that lie at the heart of such a proposal. The most serious conflicts are often not those between clearly superior liberal norms and non-­liberal practices that are obviously in need of reform. The practices and norms of different cultures are often more complex than this, embodying what Narayan (2002) calls ‘mixed bundles of goods’, which is to say conflicts between different goods and between different ways of combining goods and bads (see Galston 2002: 123). Moreover, if it is correct to suppose that the right is always informed by the good (Gray 1995), then the controversies over gender justice and cultural diversity on which Shachar focuses may amount to conflicts between different assertions of what is right, each of which may entail different elements of wrong. As Mitnick (2003: 1658) observes, Shachar assumes that a single conception of justice would be accepted by all. Yet, as pluralists contend, value conflicts afflict considerations of justice as much as other values. Of course, the fact that the good informs the right (as where human rights are supported by a certain understanding of human well-­being) does not logically conflict with the idea that the good and the right are different kinds of value (Jones 1996: 200). Yet the point remains that the aspiration to ground a plural society purely on a consensus concerning principles of right seems problematic. Furthermore, it appears unclear why, given their premises, Kymlicka and Shachar do not straightforwardly support direct intervention to compel minorities to become more liberal. Their reticence may be explained by the fact that they confront diversity with what Berlin calls ‘a sense of reality’, or a feeling for the real costs involved in political decisions (Berlin 1978: 111).6 Kymlicka, for his part, vacillates on the issue of what the state might do to encourage a culture to ‘liberalize’ without destroying it (Kymlicka 1995: 160; see also Chaplin 1993; McDonald 1993; Williams 1994), and in this context he distinguishes the justification of liberal principles from their enforcement (Kymlicka 1995: 166–7). However, this distinction does not entail his endorsement of value pluralism. He appears to believe strongly in the value of ‘liberalizing’ minority cultures, a process that he conceives in terms of promoting autonomy, and claims that this capacity must be secured to a minimal degree in all communities (Kymlicka 1989: 69). While Shachar’s account seems initially more attuned to the necessity of making hard political choices – e.g. feminism or multiculturalism; state or community – her point is to show that such conflicts can be resolved without irreparable loss. Yet it is difficult to avoid the conclusion that adhering to such theories would involve high costs for certain communities. Horton (1985), for instance, observes that allegedly universal bads are sometimes deemed good by

98   M. Mookherjee some. While such a view may lead to relativism which value pluralists would contest,7 Kymlicka and Shachar may at least be challenged for failing to recognize that goods often combine with bads in complex ways. Depending on the history of relations between groups in a given society, it will simply not always be clear that liberal values such as autonomy should be prioritized. The upshot of this analysis is that the most serious problem confronting liberal multiculturalists is not Shachar’s ‘paradox of multicultural vulnerability’. Rather, it is that their response to diversity in terms of autonomy renders them prone to criticisms by multiculturalists who argue for the unsettling of norms that claim universality, but which are in fact Western or liberal ones (Tully 1995; Parekh 2000). Let us call their position ‘value pluralist multiculturalism’, as it overlaps with Gray’s claim that a liberal order is not the uniquely legitimate form of life for all humanity (2000: 1). Gray criticizes Berlin’s refusal to ‘radicalize value pluralism so as to put negative liberty on all fours with other human goods’, and argues that there may be ‘worthwhile forms of life expressive of genuine human needs and embodying authentic varieties of human flourishing’ whose survival depends on suppressing liberty (Gray 1996: 152). He cites China as an example, on the grounds that this society ‘owes little or nothing to Occidental ideologies and promotes the well-­being of its subjects’ (1995: 127). Of course, to sustain this claim Gray must address the fact that ‘substantial numbers of Chinese believe that their institutions should permit a significantly greater degree of individual freedom and democratic self-­determination’ (Galston 2002: 93). Moreover, while value pluralism is not typically thought to amount to relativism, as noted above, one may worry that it leads governments to glamorize cultural diversity to a point of jeopardizing a commonsense commitment to basic justice (Sandall 2001, cited in Crowder 2007). In the next section I shall argue that, in spite of the risks, liberal multiculturalists do recognize the insights of value pluralists, and therefore find themselves in a paradoxical situation that is different from that articulated by Shachar. The paradox is that, on the one hand, they require a stable commitment to a principle of justice such as autonomy, a meta-­good that stands prior to other values, to justify their commitment to protecting diversity. However, on the other hand, they recognize that dealing justly with cultural diversity often involves overriding this principle of justice in favour of other considerations. The principle of autonomy, they seem to claim, will not always suffice to determine just outcomes. Different issues – including a culture’s historical relations with the dominant society and the pains and pleasures that the culture offers its members – are relevant to ascertaining what justice requires. One could, of course, challenge my account at this early point by contending that there is no real paradox here. One may suggest that an affirmative action policy, say, is generally justified in the name of equality, even though other considerations, such as freedom, efficiency, or considerations of individual responsibility, might override the case for implementing the policy in particular cases. Yet, the following section seeks to show that there is a genuine paradox involved in assuming a stable account of justice through which to justify a general respect for diversity, but of having, at

Pluralism and liberal–multicultural paradox   99 the same time, generally to unsettle the stability of that commitment in order to understand what justice or the good entails.

4  The fusion of value pluralism and liberal multiculturalism: highlighting the paradox Whilst premising his commitment to diversity on a commitment to individual autonomy, Kymlicka concedes that justice sometimes entails that the liberal state should exempt certain groups from promoting their members’ autonomy. As noted earlier, Kymlicka distinguishes between the justification of liberal prin­ ciples and their enforcement. But, presumably, the reasons that apply in exceptional cases for departing from a generally justified principle should not undermine the principle in the general case. One way of supporting Kymlicka’s point of view might be to say that some groups should be exempted from complying with liberal standards of justice if they did not consent autonomously to the liberal order. The line of reasoning would take the following form: (a) the political accommodation of indigenous peoples in America, for instance, masks a history of deception during colonial times; (b) that history implies that they did not freely consent to belong to the liberal state; and (c) therefore, it would be just to deny such groups cultural protection only if they are guilty of extreme crimes against humanity such as genocide (Kymlicka 1995: 168–9). The ‘past autonomous consent’ argument appears central to Kymlicka’s reason for granting indigenous cultures a wide sphere of self-­determination. While one cannot infer the free consent of indigenous peoples, he seems to say, immigrants can be assumed to have joined their new polity willingly. Kymlicka also justifies a greater degree of self-­determination for indigenous communities on the grounds that they are more likely than immigrants to reside in a defined territory, and to have a coherent set of institutions and a shared language, history and conventions that amount to a ‘societal culture’ (1995: 150). However, these additional issues do not seem decisive: one may dispute the moral significance of territorial concentration in light of the pressing claims of members of faith communities that are dispersed throughout the globe. Moreover, one might ask why some particularly insular immigrant groups should not be taken to have a ‘societal culture’ in Kymlicka’s sense. So, in summary, it appears that the real reason for exempting indigenous minorities from promoting the autonomy of their members has to do with their lack of past autonomous consent to the liberal order. On this account, immigrants may be subject to liberal principles because they voluntarily gave up the norms and institutions of their cultures of birth. They should receive more limited entitlements than indigenous peoples, or ‘polyethnic rights’, to negotiate the terms of their new political integration (Kymlicka 1995: 140). However, Kymlicka’s argument then seems both to depend on, and to undermine, a commitment to autonomy. This is paradoxical, because the reason for retreating from liberal principles of justice would not only apply to indigenous minorities, but potentially to any cultural group. Consider an immigrant who may have arrived in a liberal state as a consequence of unequal global economic

100   M. Mookherjee relations that were initially caused by colonialism. This may appear a controversial claim, but, given the centrality of this argument to influential theories of global justice (see Pogge 2007), let us presume that the point is at least credible. While the immigrant may not have been physically coerced into leaving their culture of birth, their consent to the norms and institutions of their new state may be free only in a superficial sense. Even if indirectly, they may be assumed to have suffered from as much fraud and economic injustice as descendents of an indigenous community. While one might validly argue that there are significant moral differences between, say, the impact of colonialism on India on the one hand, and, on the other, the thoroughgoing decimation of indigenous peoples in America, Kymlicka is aware of the impact of historical injustices on current global relations to the point that he claims: if the international distribution of resources were just, then immigrants would have no plausible claim of justice [. . .]. But the international distribution of resources is not just, and until that injustice is rectified, perhaps immigrants from poorer countries have stronger claims [than polyethnic rights]. (Kymlicka 1995: 99) But if this is true, Kymlicka’s defence of cultural diversity faces the following problem. On the one hand, a principle of autonomy establishes and defines the case for cultural protection (in that diverse cultures should be protected because, and in so far as, they enable meaningful choices). But because no minority group may genuinely have consented autonomously to the liberal order, the liberal principle of autonomy should not determine what justice requires in any actual case of cultural diversity. Other considerations of justice could apparently override liberal autonomy. This is a paradox because, while the reason for not enforcing a justified principle in this context seems to (though it should not) deny that principle generally, Kymlicka can presumably not afford to jettison the general commitment to autonomy, given the importance that he places on human beings’ choice-­making capacities and, thus, on the rightness of ‘liberalizing’ minority cultures. One might, of course, still claim that this situation only appears to be a paradox. For it could be thought that cultural membership is generally valuable because it facilitates meaningful choice; but it could be conceded that such a claim is so general that, in terms of concrete policy, different principles have to be invoked to respond fairly to cultures with different practices and histories. This is a problematic argument, however, as it seems commonsensical to hold that the philosophical principle used for valuing diversity should not be undermined or denied in practice. If this point is persuasive, the paradox suggests that liberals must narrow the distinction between their approach to multiculturalism based on autonomy and a value pluralist multiculturalism. The difference between the two approaches has seemed clear in this chapter so far. Yet it now appears that liberal multiculturalists concede, with the value pluralist, that liberal principles should sometimes be

Pluralism and liberal–multicultural paradox   101 rebutted. Kekes (1993: 99) points out that ‘what is incompatible with pluralism is overridingness per se’; and it is significant in this context that Gray (1995) argues that the best standpoint to adopt in the face of the heterogeneity of values is one that accepts that the more diversity is accommodated, the less the richness of human life will be diminished. Shachar, for her part, appears to agree with this point, and comments on the need for the state and communities to be involved in the negotiation of standards of justice (2001: 111). Yet the question confronting liberals who accept the political importance of value pluralism is, which principles should therefore be prioritized in order to regulate affairs between heterogeneous groups? The question is pressing, given that many adherents to ways of life in which the value pluralist sees value, such as Judaism or Islam, do not seem to defend the truth of value pluralism (Jones 2006: 203). Gray, for his part, advocates a ‘modus vivendi’ based on a minimal commitment to peace, to which all human beings can be assumed to commit for pragmatic reasons. However, this solution risks failing to base political solutions in considerations that would be accepted as just by the parties involved. Human beings are not always moved by pragmatic considerations but by what is, or what they take to be, just. It is therefore not clear how the value pluralist’s pragmatic modus vivendi would be stable.8 Before outlining a means of dealing with this problem, let us consider a final reason for facing the paradox honestly and admitting that there is less distance than previously thought between value pluralist and liberal multiculturalism. Even if liberals accept the truth of value pluralism, it could be argued that pluralists themselves require some explanation of the move from value conflict to political accommodation. Now, Gray claims that the features of a modus vivendi cannot be generalized because polities have different histories and contain different cultures that espouse different values (1995: 112). However, assuming that he does not believe that peace can be achieved by silencing all controversial views, a stable and justifiable modus vivendi would presumably involve procedures for accommodating, and even giving expression to, different conceptions of justice in a plural society. Yet the move from accepting the fact of value pluralism to the moral recommendation for a dialogue about justice is hard for value pluralists to justify without prioritizing commitments to the equality of peoples, toleration, mutual sympathy or humanity. These ideas may be thought more closely associated with liberalism rather than other political forms. For, as Jones explains, value pluralism is in itself a formal theory that tells us about the nature of values, such as their frequent uncombinability, but that does not say definitely what should be done about the uncombinability of valuable things (2006: 201; cf. Crowder 2002: 177–8). An ‘agonistic’ dialogue about the right, a system in which diverse conceptions of justice are considered relevant to the political negotiation of conflicts, would clearly be difficult to achieve in authoritarian regimes that impose on all persons one vision of justice and the good. In light of this problem, the final stage of my inquiry asks what sort of liberal pluralism would best express the political implications of value pluralism. Liberal prin­ ciples do not need, in my view, to be rejected in favour of a pragmatic political

102   M. Mookherjee settlement. Liberal pluralism can retain a principled commitment to individual freedom in the context of the insights of value pluralism. Thus, it can remain conscious of the conflict and ambiguity at the heart of justice.

5  Coping with the paradox: liberal pluralism, empire and the unfamiliar A defence of the idea that groups can in principle embody divergent goods, which can in turn generate conflicting accounts of justice, should not be interpreted as a crude assertion of a ‘clash of civilisations’ in Huntingdon’s (1996) sense. Neither does it amount to the idea that cultural claims are always matters of value-­conflict rather than raising issues of economic justice (see Barry 2001).9 Rather, the issue is whether liberalism can respond to multifaceted diversity of the current world, without, on the one hand, remoulding it in its own image or, on the other, characterizing it as absolutely alien or unreasonable. In order to locate resources through which liberalism can provide a more honest and productive account of justice for diverse groups, I recommend looking back to the history of this tradition. In his study of nineteenth-­century justifications for imperial rule, Mehta (1999) finds within early liberalisms a tendency to presume certain familiar human characteristics – such as being propertied, rational or modern – as characteristics of humanity itself. Such a tendency is instantiated in Locke’s commitment to natural reason and Mill’s to individuality. These presumptions also lay at the core of colonial denials of the self-­government of non-­ Western peoples. What is erased from view are valuable but seemingly anti-­modern ways of experiencing the world, such as the archaic, the conventional, the religious and the quotidian. Early liberalisms thus failed to address what post-­colonial writer Franz Fanon called ‘the zone of occult sensibility in which people dwell’ (1967: 183), or a person’s ‘mode of experience’, to use Oakeshott’s (1933) phrase – her sense of the conditions through which the world holds meaning. Ironically, it is in the conservative thought of Burke that Mehta locates a different liberalism, and a voice that contested the idea that liberal values justified the exorbitant practices of colonial officials in appropriating resources of different lands for economic gain. Philosophically, Burke parts company with Mill and Locke by recognizing the value of unfamiliar forms of life in their own terms, whilst also defining justice according to principles that are ‘natural’ and, hence, universal (Stanlis 1955). While it is impossible to explain Burke’s thought fully in the space that remains, I comment on key aspects of it in order to explain its implications for liberal pluralism.10 For obvious reasons, such a pluralism does not represent a radical theoretical innovation. Rather, it recovers productive tools within a tradition which developed in reaction to a rapidly changing world and in the context of encounters with the unfamiliarity of cultural difference. To begin, Burke’s conservatism is revealed most starkly in his criticisms of the Jacobin revolution in France (Burke 1971), and reflects a commitment to understanding the coherence of a people based on sentiments of local attach-

Pluralism and liberal–multicultural paradox   103 ments. Such a commitment cannot be expressed in contemporary terms as ‘communitarian’ rather than ‘liberal’ (see Mulhall and Swift 1997). Rather, Burke exhorts liberals to recognize piety, parochial insularity, and perhaps the fatalistic acceptance of one’s position in a traditional hierarchy as ways of being that demand cultural recognition. Such modes of experience are more significant than a rational capacity to endorse one’s political order autonomously. On this account, as Mehta (1999: 28) suggests, the interesting issue is not whether Burke was in fact in favour of the empire in India (for, to be sure, he did not argue against it directly).11 To dwell on this factual question minimizes the broader challenge that his thought presents to contemporary liberal philosophy to engage more honestly and humanely with human diversity. A productive point for our purposes is the balance that Burke strikes between the particularity and universality of justice (Bromwich 1989: 48). His commitment to particularity is well known. The social contract affirmed in any nation or people is not achieved by a collective will to secure mutual advantage. Burke’s rejection of this idea anticipates late-­modern defenders of nationality such as Miller (2007) and Tamir (1993), as he, like these later thinkers, understands the non-­rational forces that hold people together, and expresses humility in the face of a world that he did not presume to understand perfectly simply on account of being liberal or ‘rational’. As such, Burke, as distinct from the liberal rationalists that preceded him, is able to acknowledge ‘an intransigent strangeness, an unfamiliarity that remains so, an experience that cannot be shared [and] prejudices that do not readily fuse with a cosmopolitan horizon’ (Mehta 1999: 22). At the same time, his political philosophy is pervaded by a passionate, even indignant, defence of natural or universal justice. The idea of ‘moral right’ is distinct, he insists, from the contingent rights claimed as a result of wielding arbitrary political power, the much vaunted ‘Rights of Man’ of his time. In view of the British government’s failure to recognize the property rights of the Irish, for instance, Burke sternly rebukes the English as follows: ‘You . . . you have the power; but you have not the right’ (Burke 1981: 151). While rational autonomy may constitute one legitimate principle of liberal justice, that principle cannot be divorced from other-­regarding duties of care and sympathy that, according to Burke, arise from an obligation to treat others as full members of the human species. Such mutual sympathy is expressed in his writings on India as ‘a subordinate derivative trust’ that colonial officials owed to other peoples (Burke 1981: 459). In brief, Burke’s apparent commitment to recognizing the cultural particularity of justice is regulated by a plurality of principles (liberty, duties of care and mutual sympathy), on account of which British liberalism may be taken to be genuinely, or naturally, just. Whilst it may be assumed to be of more relevance to international relations, Burke’s account contains key insights, then, for a principled liberal engagement with cultural difference. In his indictment of the excesses of colonial officials in India, Burke agrees with value pluralists such as Gray on the notion that each form of life represents one out of a range of historical and cultural possibilities (see Gray 1995: 234). Of course, a number of objections may be raised at this

104   M. Mookherjee point. We might, for instance, argue that Burke’s apparent reliance on the normative force of history ‘provides no critical leverage from which to adjudicate between different historical possibilities’ (Mehta 1999: 178). Yet, in reply, Burke accepts the challenge of dealing fairly with cultural diversity. While there are immutable, universal or natural principles of justice, including the mutual sympathy that we owe to others on account of our common humanity (Burke 1981: 150), the terms on which recognition is to be achieved in the real world should not be presumed, but found. Of course, the concern may be that Burke is not explicit as to how to ascertain which cultures fall outside the realm of the objectively valuable decent minimum demanded by value pluralism. For, as we saw earlier, value pluralism is not a relativist theory; and, as certain goods are deemed objectively valuable on this account (even if these goods are probably not all instantiated in a given culture), this theory cannot logically accept the legitimacy of all conceivable human societies. Value pluralism probably could not accept as minimally just a society that practises widespread enslavement, arbitrary arrest or torture. Thus, the challenge is for Burke to determine, as the value pluralist wishes to do, ‘the moral threshold below which no form of life can be considered minimally human, decent and morally acceptable’ (Galston 2002: 50).12 Burke’s commitment to a minimal natural human right to life (Burke 1981: 55; 66), which cannot be forsaken without compromising the law of nature, provides a clue here – though, admittedly, not a full response. Finally, it could be objected that none of Burke’s insights entail that mutual recognition between forms of life is guaranteed. But, in fact, Burke recognizes this risk and confronts it. In Reflections on the Revolution in France, he affirms that a person’s civil liberties and social obligations, while ‘divinely ordained’ (1971: 368–9), are not necessarily open to rational comprehension from an external perspective, as they are not a ‘matter of choice, but of necessity’ (1971: 307). Burke’s conception of liberty provides one further conceptual resource for an account of liberal pluralism. As Mehta explains: ‘[l]ike Locke, for Burke the desire for liberty is a constituent of our nature’ (1999: 179). For Locke the exercise of freedom turns on the capacity for reason, and Burke accepts this point but construes it in distinctly social terms (Stanlis 1955). As he says to his correspondent after the revolution in France, by liberty he means ‘not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his will. The liberty that I mean is social liberty . . . This kind of liberty is, indeed, nothing other than justice’ (Burke 1992: 7–8). The key point for Burke is that the true exercise of freedom always entails limiting one’s raw will to assert brute, arbitrary power over others. It involves the recognition of all human beings in terms of a scheme of ‘real’ rights and duties of compassion according to the natural law. Once we grasp the definition of freedom as action according to the natural laws of justice, we understand Burke’s indictment of political domination and arbitrary power, which, in the Indian case, prompts him to advocate state regulation to control the avarice of the officials of the East India Company (Burke 1992). His conception of liberty is one that recognizes value pluralism explicitly, and is useful today in countering attempts by liberal

Pluralism and liberal–multicultural paradox   105 multiculturalists to construct the case for cultural protection on the basis of autonomy alone. Doing justice towards different groups depends on a conception of justice that is both universalistic (in that it relates to immutable laws of right and wrong), but particularistic (in that it locates us in webs of historical memory that assume a particular moral gravity for us and which therefore cannot be denied). Importantly, Burke’s commitment to the dialectic between the universal and the particular and to locating individual liberty within a set of equally valuable other-­regarding goods enables him to respond to Warren Hastings’ infamous attempts to justify the excesses of British colonials of the time in terms of a ‘geographical morality’. Briefly, Hastings claimed that arbitrary and authoritarian law is ‘normal’ in Asia, that men were ‘governed by climates’, and that ‘across the Equinox’ all virtue ceases. Thus, he concluded that the British were justified in exercising arbitrary power in India because Asian rulers did not abide by any recognizable rule of law. Burke heatedly contested such claims, invoking what Pitts (2005) calls his ‘peculiar universalism’. ‘The actions that are stamped with the character of peculation, extortion, oppression and barbarity in England,’ he thundered, ‘are so in Asia, and the world over’ (Burke 1981: 354; Stanlis 1955: 181; cf. Strauss 1953). Let us, then, draw out the implications of this admittedly schematic account of Burke’s political thought for a liberalism that honestly confronts value pluralism in the world today. First, in evaluating the practices of an unfamiliar form of life, liberals must attempt to grasp their point in terms of modes of human experience that are common to all cultures, as well as in the specific cultural terms of those experiences that may elude complete understanding from an external perspective. For a key objective of Burke’s political philosophy is to show that, while human experience is distinctly local, each life-­form represents an instantiation of natural and universal laws of justice. Thus, some cultures may suppress autonomy in favour of humility or obedience to authority, without thereby being obviously unjust or irrational. Second, Burke encourages liberal pluralists to see that freedom is always a social ideal. It is not, as Hobbes and Locke thought, a simple datum of our biological nature. One can, thus, deny one’s liberty by denying it to others; and, if this is so, the liberal attempt to promote freedom and autonomy in different cultures must involve engaging with their accounts of justice in their own terms. Significantly, Burke’s complaint about imperial rule was based on the thought that the ‘delinquent’ colonial officials corrupted the British order as well as the peoples of India (1971: 376). By failing to recognize the self-­determination of another, one denatures and sullies one’s own capacity to be free. The final and most important implication is the requirement that liberals confess to the internal pluralism of their own understanding of justice. They must recognize the risk that in pursuing one dimension of the right they deny an equally important component of it. While the liberal justification for political order appears historically to rest on the priority of liberty, Burke’s thought reminds liberals that freedom cannot be divorced from the other values that accompany it, such as, as we have seen, tolerance, duties of care and generosity

106   M. Mookherjee towards others as natural members of the human race. To Burke’s mind, the colonial officials in India failed to recognize the internal plurality of their political tradition and thus perilously disregarded key dimensions of natural justice, of which self-­regarding liberty is but one aspect. To be sure, recognizing the internal pluralism of liberal justice does not guarantee the discovery of right answers in all cases. Moreover, the worry might persist that liberal pluralism still attempts implausibly to separate the right from the good. Yet liberal pluralism can endorse a broad distinction between justice and the goodness of the lives that we live, whilst recognizing that the latter often informs the former. There may be no absolute distinction in the end between the right and the good, but it may still be true that there are certain ways of treating others that are right – for instance, respecting their capacities, as equal members of the human species, to have and act according to a sense of justice. Such respect would have normative force irrespective of a person’s judgement of the goodness or worthiness of another’s goals in life (see Jones 2006). Finally, a liberal pluralism that recognizes that right answers are derivable from a plurality of considerations that might conflict is more relevant and humane today than one that attempts to deny this predicament.

6  Conclusion This chapter has investigated liberal responses to cultural diversity, questioning the possibility of distinguishing between liberal multiculturalism and a value pluralist approach. Liberal multiculturalists are drawn to value pluralist conclusions, and, hence, to accept conceptions of justice that appear contrary to their standard emphasis on autonomy. In light of the paradox that entails that liberal muticulturalism both depends on and eschews the principle of autonomy, I looked back at the history of liberalism’s engagement with cultural diversity and examined key aspects of Burke’s political philosophy. I located therein resources for a liberal pluralism that responds to the diversity in today’s world with honesty and generosity. Whilst Burke’s insights clearly do not resolve all questions of justice that arise in culturally diverse conditions, they suggest an approach to justice that is conscious of its own internal plurality, and which does not seek to discipline, control and remould those who appear to challenge their conception of what it is ultimately worthwhile in life to do or be.

Acknowledgements I would like to thank Maria Dimova-­Cookson and Peter Stirk for inviting me to contribute to this volume, and for their clear and penetrating written observations on an early draft of this chapter.

Pluralism and liberal–multicultural paradox   107

Notes   1 Berlin warns of the dangers implicit in hoping for a perfect society or Utopia in which all values are reconciled. The notion of the perfect whole, the ultimate solution, in which all good things coexist, seems to me to be not merely unattainable – that is a truism – but conceptually incoherent; I do not know what is meant by a harmony of this kind (. . .) We are doomed to choose, and every choice may entail an irreparable loss. (see Berlin 1990: 13) Similarly, Gray (2000) refers to all ways of life, including liberalism, that express pretensions to universality as mere ‘illusions’.   2 As Berlin argues: We must preserve a minimum area of personal freedom if we are not to degrade or deny our nature. We cannot remain absolutely free, and must give up some of our liberty to preserve the rest. But total self-­surrender is self-­defeating. What, then, must this minimum be? That which a man cannot give up without offending against the essence of human nature. (1969: 126)   3 The difficulty with this claim is that Kymlicka would appear to be committed to a more ‘comprehensive’ conception of autonomy than Rawls, who affirms autonomy only as a political value. Rawls explains the two different forms of autonomy as follows: One is political autonomy, the legal independence and assured integrity of citizens and their sharing with others citizens equally in the exercise of political power. The other form is moral autonomy expressed in a certain mode of life and reflection that critically examines our deepest ends and ideals, as in Mill’s ideal of individuality. (Rawls 1993: xliv)   4 This problem has been expressed by others too. ‘There are fears that multiculturalism taken to its logical extreme could justify allowing each ethnic group to impose its own legal traditions on its members, even when these traditions conflict with basic human rights and constitutional principles’ (Kymlicka 1995: 41, referring to Abu-­Laban and Staisulus 1992: 379).   5 Goodhart (2008) makes this point in reaction to Donnelly’s claim that one might defend the universality of human rights while conceding that their form and interpretation may be culturally variable.   6 Kymlicka may be considered more realistic than Rawls with respect to the costs that prioritizing autonomy will impose on communitarian groups. As he explains, Rawls has not explained why people who are communitarians in private life should be liberals in public life [. . .] He has not shown that these points of view do cohere. On the contrary; they clearly do conflict on issues such as proselytization, apostasy and mandatory education. (1995: 162)   7 See, however, Strauss’s (1961) argument that the value pluralism described by Berlin leads to a relativism at least of the sort that denies there is one rationally best form of society.   8 For instance, Gray (1995) concedes, with Galston (2002), that there are many ways to achieve peace, not all of which depend on instituting a pragmatic modus vivendi. For instance, it could be that a strong authoritarian state that silences all voices of dissent to would achieve social peace – even though the objections to such would presumably

108   M. Mookherjee be that such an order achieves the right ends by the wrong means; or that the ends that it apparently achieves would not genuinely be stable.   9 I discuss this issue in more detail in Mookherjee (2009). 10 For Burke’s major writings, see Burke (1971) and (1958–78). Burke began his political involvement in India in 1767, and was the author of eleven parliamentary reports on India as well as the author of the famous ‘Fox’s India Parliamentary Bill’. While he was passionately involved in causes relating to France, America and his native Ireland, his writings on India are arguably his most voluminous. 11 Here Mehta voices the following objection: ‘In the eighteenth century that question had not surfaced to self-­consciousness and had scarcely any of the associations that it is acquired following the nationalist struggles and the decolonization of European empires in this century’ (1999: 158). 12 Gray interprets Berlin to mean that regimes are illegitimate ‘unless their members achieve the minimal conditions of decency amongst themselves’ (1996: 168). Galston (2002: 53) comments that, for Berlin, this minimal level of decency would not necessarily involve the endorsement of democracy, as the absence of a threat backed by force (that which defines negative liberty) could characterize certain autocratic societies. The question is whether a value pluralist account would accept as justifiable deeply inegalitarian societies that justify forms of bonded labour. It is not obvious that Burke’s defence of natural rights could accept such a society. I explore this theme further in my paper (currently in progress), ‘Might, right and diversity: The implications of Burke’s political philosophy’.

Bibliography Abu-­Laban, Yasmeen and Daiva Staisulus (1992) ‘Ethnic pluralism under siege: Popular and partisan opposition to multiculturalism’, Canadian Public Policy, 18: 365–86. Barry, Brian (2001) Culture and Equality: An Egalitarian Critique of Multiculturalism, Oxford: Polity Press. Berlin, Isaiah (1969) Four Essays on Liberty, Oxford: Oxford University Press. —— (1990) ‘The pursuit of the ideal’, in H. Hardy (ed.) The Crooked Timber of Humanity, London: John Murray Press. —— (1991) The Crooked Timber of Humanity, London: Fontana. Bromwich, David (1989) A Choice of Inheritance, Cambridge, MA: Harvard University Press. Burke, Edmund (1958–71) The Correspondence of Edmund Burke, Thomas Copeland (ed.), Chicago: University of Chicago Press. —— (1971) Reflections on the Revolution in France, Cambridge: Cambridge University Press. —— (1981) Writings and Speeches of Edmund Burke, 5 vols, P.J. Marshall (ed.), Oxford Clarendon Press, 1981. —— (1992) Further Reflections on the Revolution in France, Cambridge: Cambridge University Press. Chaplin, Jonathan (1993) ‘How much cultural and religious pluralism can liberalism tolerate?’, in J. Horton (ed.) Liberalism, Multiculturalism and Toleration, New York: St Martin’s Press. Crowder, George (2002) Liberalism and Value Pluralism, London: Continuum. —— (2006) ‘Pluralism and liberalism’, Political Studies, 42: 293–305. —— (2007) ‘Value pluralist multiculturalism: Between economic rationalism and cultural relativism’, Proceedings of the Australian Political Studies Association Conference.

Pluralism and liberal–multicultural paradox   109 Donnelly, Jack (1989) Universal Human Rights in Theory and Practice, Ithaca, NY: Cornell University Press. Fanon, Franz (1967) The Wretched of the Earth, Harmondsworth: Penguin. Galston, William. A. (2002) Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice, Cambridge: Cambridge University Press. Goodhart, Michael (2008) ‘Neither relative nor universal: A reply to Donnelly’, Human Rights Quarterly, 30: 198. Gray, John (1995) Enlightenment’s Wake, London: Routledge. —— (1996) Isaiah Berlin, Princeton, NJ: Princeton University Press. —— (2000) Two Faces of Liberalism, Cambridge: Polity Press. Horton, John (1985) ‘Toleration, morality and harm’, in John Horton and Susan Mendus (eds) Aspects of Toleration, London and New York: Methuen. Huntington, Samuel P. (1996) The Clash of Civilisations and the Remaking of World Order, New York: Simon and Schuster. Jones, Peter (1996) ‘International human rights: political or philosophical?’, in S. Caney, D. George and P. Jones (eds) National Rights, International Obligations, Boulder, CO: Westview Press. —— (2006) ‘Toleration, value pluralism and the fact of pluralism’, Critical Review of International Social and Political Philosophy, 9: 189–210. Kekes, John (1993) The Morality of Pluralism, Princeton, NJ: Princeton University Press. Kukathas, C. (1995) ‘Are there any cultural rights?’ in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford: Oxford University Press. Kymlicka, Will (1989) Liberalism, Community and Culture, Oxford: Clarendon Press. —— (1995) Multicultural Citizenship, Oxford: Oxford University Press. McDonald, Michael (1991) ‘Liberalism, community and culture’, University of Toronto Law Journal, 42: 131. McKinnon, Catriona (2006) Toleration: A Critical Introduction, London: Routledge. Mehta, Uday Singh (1999) Liberalism and Empire, Chicago, IL: Chicago University Press. Miller, David (2007) National Responsibility and Global Justice, Oxford: Oxford University Press. Mitnick, Eric (2003) ‘Individual vulnerability and cultural transformation’, Michigan Law Review, 101: 1635–60. Mookherjee, Monica (2008) ‘Autonomy, force and cultural plurality’, Res Publica, 14, 3: 147–68. —— (2009) Women’s Rights as Multicultural Claims, Edinburgh: Edinburgh University Press. Mulhall, Stephen and Adam Swift (1997) Liberals and Communitarians, Oxford: Blackwell. Narayan, Uma (2002) ‘Minds of their own: Choices, autonomy, cultural practices and other women’, in Louise Antony and Charlotte Witt (eds) A Mind of One’s Own: Feminist Essays on Reason and Objectivity, Boulder, CO: Westview. Oakeshott, Michael (1933) Experience and its Mode, London: Cambridge University Press. Parekh, Bhikhu (2000) Rethinking Multiculturalism, Basingstoke: MacMillan. Pitts, Jennifer (2005) A Turn to Empire: The Rise of Imperial Liberalism in Britain and France, Princeton, NJ: Princeton University Press. Pogge, Thomas (2007) World Poverty and Human Rights, Cambridge: Cambridge University Press.

110   M. Mookherjee Rawls, John (1993) Political Liberalism, Cambridge, MA: Harvard University Press. —— (2000) Justice as Fairness: A Restatement, Cambridge, MA: Harvard University Press. —— (2002) The Law of Peoples and the Idea of Public Reason Revisited, Cambridge, MA: Harvard University Press. Sandall, Roger (2001) The Culture Cult: Designer Tribalism and Other Essays, Boulder, CO: Westview Press. Shachar, Ayelet (2001) Multicultural Jurisdictions, Cambridge: Cambridge University Press. Stanlis, Peter J. (1955) ‘Edmund Burke and the natural law’, University of Detroit Michigan Law Review, 33: 150–90. Strauss, Leo (1953) Natural Right and History, Chicago, IL: University of Chicago Press. —— (1961) ‘Relativism’, in H. Schoek and J. Wiggins (eds) Relativism and the Study of Man, Princeton, NJ: Van Norstrand. Tamir, Yael (1993) Liberal Nationalism, Princeton, NJ: Princeton University Press. Taylor, Charles (1985) ‘Interpretation and the sciences of man’, in Charles Taylor (ed.) Philosophy and the Human Sciences: Philosophical Papers II, Cambridge: Cambridge University Press. Tully, James (1995) Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. Williams, Melissa (1984) ‘Group inequality and the public culture of justice’, in J. Baker (ed.) Group Rights, Toronto: University of Toronto Press, pp. 34–65.

Part II

Secularism and the political claims of religious groups

6 Muslims, religious equality and secularism Tariq Modood

There is an anti-­Muslim wind blowing across the European continent.1 One factor is a perception that Muslims are making politically exceptional, culturally unreasonable or theologically alien demands upon European states. My contention is that the claims Muslims are making in fact parallel comparable arguments about gender or ethnic equality. Seeing the issue in that context shows how European and contemporary is the logic of mainstream Muslim identity politics. I argue, additionally, that multicultural politics must embrace a moderate secularism and resist radical secularism.

Citizenship and national contexts The same wind might be blowing across the continent, yet the landscape is not uniform. Of the three largest European countries, Germany, France and the United Kingdom, the former two have, in both absolute and relative terms, a larger foreign-­born population and population of non-­European origin than the UK. Yet issues of racial discrimination, ethnic identity and multiculturalism have less prominence in those two countries than in the UK. One aspect of this is that national debates on these topics have a lesser prominence, and that such debates are less frequently led by non-­whites or non-­Europeans, who are more the objects of, rather than participants in, the debates. Another aspect is the relative lack of data about ethnicity and religious communities, and consequently of research and literature. Yet this is not a simple matter of scale. Each of the countries in the EU has a very different conception of what the issues are, depending upon its history, political culture and legal system. The German experience is dominated by the idea that Germany is not a country of immigration, and so those newcomers who can show German descent are automatically granted nationality while the others are temporary guest workers or refugees; none are immigrants. Hence, out of its population of 80 million, Germany has five million without German citizenship. This includes about two million Turks and Kurds, some of whom are now third-­generation Germans but who until recently were excluded from citizenship by German self-­ conceptions of nationality as descent. In contrast, France has a history of immigration which it has proudly dealt with by a readiness to grant citizenship. But it

114   T. Modood has a republican conception of citizenship which does not allow, at least in theory, any body of citizens to be differentially identified, for example as Arab. In Germany, if you are of Turkish descent you cannot be German. In France you can be of any descent, but if you are a French citizen you cannot be an Arab. In each case, US-­style – and now UK-­style – composite identities like Turkish German, Arab French or British Indian are ideologically impossible. The giving up of pre-­French identities and assimilation into French culture is thought to go hand in hand with the acceptance of French citizenship. If for some reason assimilation is not fully embraced – perhaps because some people want to retain pride in their Algerian ancestry, or want to maintain ethnic solidarity in the face of current stigmatization and discrimination – then their claim to be French and equal citizens is jeopardized. The French conception of the republic, moreover, also has integral to it a certain radical secularism, laïcité, marking the political triumph over clericalism. The latter was defeated by pushing matters of faith and religion out of politics and policy into the private sphere. Islam, with its claim to regulate public as well as private life, is therefore seen as an ideological foe, and the Muslim presence as alien and potentially both culturally and politically inassimilable – as evidenced, for example, in the ban on the hijab in state schools, passed overwhelmingly by Parliament with very little discussion in January 2004. The British experience of ‘coloured immigration’, in contrast, has been seen as an Atlantocentric legacy of the slave trade, and policy and legislation were formed in the 1960s in the shadow of the US Civil Rights Movement, black power discourse and the inner-­city riots in Detroit, Watts and elsewhere. It was, therefore, dominated by the idea of ‘race’, more specifically by the idea of a black–white dualism. It was also shaped by the imperial legacy, one aspect of which was that all colonials and citizens of the Commonwealth were ‘subjects of the Crown’. As such they had rights of entry into the UK and entitlement to all the benefits enjoyed by Britons, from NHS treatment to social security and the vote. (The right of entry, of course, was successively curtailed from 1962, so that while in 1961 Britain was open to the Commonwealth but closed to Europe, twenty years later the position was fully reversed.) Against the background of these distinctive national contexts and histories, it is quite mistaken to single out Muslims as a particularly intractable and uncooperative group characterized by extremist politics, religious obscurantism and an unwillingness to integrate. Rather, the relation between Muslims and the wider British society and British state has to be seen in terms of the developing agendas of racial equality and multiculturalism. Muslims have become central to these agendas even while they have contested important aspects, especially the primacy of racial identities, narrow definitions of racism and equality, and the secular bias of the discourse and policies of multiculturalism. While there are now emergent Muslim discourses of equality, of difference and of, to use the title of the newsletter of the Muslim Council of Britain, ‘the common good’, they have to be understood as appropriations and modulations of contemporary discourses and initiatives whose provenance lies in anti-­racism and in feminism.

Muslims, religious equality and secularism   115 While one result of this is to throw advocates of multiculturalism into theoretical and practical disarray, another is to stimulate accusations of cultural separatism and revive a discourse of ‘integration’. While we should not ignore the critics of Muslim activism, we need to recognize that at least some of the latter is a politics of ‘catching up’ with racial equality and feminism. In this way, religion in Britain is assuming a renewed political importance. After a long period of hegemony, political secularism can no longer be taken for granted but is having to answer its critics; there is a growing understanding that the incorporation of Muslims has become the most important challenge of egalitarian multiculturalism.

British equality movements The presence of new population groups in Britain made manifest certain kinds of racism, and anti-­discrimination laws and policies began to be put into place from the 1960s. These provisions, initially influenced by contemporary thinking and practice in relation to anti-­black racism in the United States, assume that the grounds of discrimination are ‘colour’ and ethnicity. Muslim assertiveness became a feature of majority–minority relations only from around the early 1990s; and indeed, prior to this, racial equality discourse and politics were dominated by the idea that the dominant post-­immigration issue was ‘colour racism’. One consequence of this is that the legal and policy framework still reflects the conceptualization and priorities of racial dualism. Till recently, it was lawful to discriminate against Muslims qua Muslims because the courts did not accept that Muslims were an ethnic group (though, oddly, Jews and Sikhs were recognized as ethnic groups within the meaning of the law). While initially unremarked upon, this exclusive focus on race and ethnicity, and the exclusion of Muslims but not Jews and Sikhs, came to be a source of resentment. Muslims do enjoy some limited indirect legal protection qua members of ethnic groups such as Pakistanis or Arabs. Over time, groups like Pakistanis have become an active constituency within British ‘race relations’, whereas Middle Easterners tend to classify themselves as ‘white’, as in the Census, and on the whole were not prominent in political activism of this sort, nor in domestic politics generally. One of the effects of this politics was to highlight race. A key indicator of racial discrimination and inequality has been numerical under-­representation – for instance, in prestigious jobs and public office. Hence, people have had to be (self-)classified and counted; thus group labels, and arguments about which labels are authentic, have become a common feature of certain political discourses. Over the years, it has also become apparent through these inequality measures that it is Asian Muslims and not, as expected, African-­ Caribbeans, who have emerged as the most disadvantaged and poorest groups in the country (Modood 1992; Modood et al. 1997). To many Muslim activists, the misplacing of Muslims into ‘race’ categories and the belatedness with which the severe disadvantages of the Pakistanis and Bangladeshis have come to be

116   T. Modood recognized mean that race relations are perceived at best as an inappropriate policy niche for Muslims, and at worst as a conspiracy to prevent the emergence of a specifically Muslim sociopolitical formation. To see how such thinking has emerged, we need briefly to consider the career of the concept of ‘racial equality’. The initial development of anti-­racism in Britain followed the American pattern, and indeed was directly influenced by American personalities and events. Just as in the United States the colour-­blind humanism of Martin Luther King Jr came to be mixed with an emphasis on black pride, black autonomy and black nationalism as typified by Malcolm X, so too the same process occurred in the UK (both these inspirational leaders visited Britain). Indeed, it is best to see this development of racial explicitness and positive blackness as part of a wider sociopolitical climate which is not confined to race and culture or non-­white minorities. Feminism, gay pride, Québecois nationalism and the revival of a Scottish identity are some prominent examples of these new identity movements which have become an important feature in many countries, especially those in which class politics has declined in salience; the emphasis on non-­territorial identities such as black, gay and women is particularly marked among anglophones. In fact, it would be fair to say that what is often claimed today in the name of racial equality, again especially in the English-­speaking world, goes beyond the claims that were made in the 1960s. Iris Young (1992: 157) expresses well the new political climate when she describes the emergence of an ideal of equality based not just on allowing excluded groups to assimilate and live by the norms of dominant groups, but on the view that ‘a positive self-­definition of group difference is in fact more liberatory’.

Equality and the erosion of the public–private distinction This significant shift takes us from an understanding of ‘equality’ in terms of individualism and cultural assimilation to a politics of recognition; to ‘equality’ as encompassing public ethnicity. This perception of equality means not having to hide or apologize for one’s origins, family or community, and requires others to show respect for them. Public attitudes and arrangements must adapt so that this heritage is encouraged, not contemptuously expected to wither away. These two conceptions of equality may be stated as follows: 1 2

the right to assimilate to the majority/dominant culture in the public sphere, with toleration of ‘difference’ in the private sphere; the right to have one’s ‘difference’ (minority ethnicity, etc.) recognized and supported in both the public and the private spheres.

While the former represents a classical liberal response to ‘difference’, the latter is the ‘take’ of the new identity politics. The two are not, however, alternative conceptions of equality in the sense that to hold one, the other must be

Muslims, religious equality and secularism   117 rejected. Multiculturalism, properly construed, requires support for both conceptions. For the assumption behind the first is that participation in the public or national culture is necessary for the effective exercise of citizenship, the only obstacle to which are the exclusionary processes preventing gradual assimilation. The second conception, too, assumes that groups excluded from the national culture have their citizenship diminished as a result, and sees the remedy not in rejecting the right to assimilate, but in adding the right to widen and adapt the national culture, and the public and media symbols of national membership, to include the relevant minority ethnicities. It can be seen, then, that the public–private distinction is crucial to the contemporary discussion of equal citizenship, and particularly to the challenge to an earlier liberal position. It is in this political and intellectual climate – namely, a climate in which what would earlier have been called ‘private’ matters had become sources of equality struggles – that Muslim assertiveness emerged as a domestic political phenomenon. In this respect, the advances achieved by anti-­ racism and feminism (with its slogan ‘the personal is the political’) acted as benchmarks for later political group entrants, such as Muslims. As I will show, while Muslims raise distinctive concerns, the logic of their demands often mirrors those of other equality-­seeking groups.

Religious equality So, one of the current conceptions of equality is a difference-­affirming equality, with related notions of respect, recognition and identity – in short, what I understand by political multiculturalism. What kinds of specific policy demands, then, are being made by or on behalf of religious groups and Muslim identity politics in particular, when these terms are deployed? I suggest that these demands have three dimensions, which get progressively ‘thicker’ – and are progressively less acceptable to radical secularists. No religious discrimination The very basic demand is that religious people, no less than people defined by ‘race’ or gender, should not suffer discrimination in job and other opportunities. So, for example, a person who is trying to dress in accordance with their religion or who projects a religious identity (such as a Muslim woman wearing a headscarf, a hijab), should not be discriminated against in employment. Till the end of 2003 there was no legal ban on such discrimination in Britain. There was then a partial ‘catching up’ with the existing anti-discrimination provisions in relation to race and gender but it did not extend to discrimination in provision of goods and services till 2007 and now there may be a full catching-up if the duty upon employers to take steps to promote equality of opportunity proposed in the Equalities Bill (2009) covers religion.

118   T. Modood Even-­handedness in relation to religions Many minority faith advocates interpret equality to mean that minority religions should get at least some of the support from the state that longer-­established religions do. Muslims have led the way on this argument, and have made two particular issues politically contentious: the state funding of schools, and the law of blasphemy. The government has agreed in recent years to fund a few (so far, eight) Muslim schools, as well as a Sikh and a Seventh Day Adventist school, on the same basis enjoyed by thousands of Anglican and Catholic schools and some Methodist and Jewish schools. (In England and Wales, over a third of state-­ maintained primary and a sixth of secondary schools are in fact run by a religious group, but all have to deliver a centrally determined national curriculum.) Some secularists are unhappy about this. They accept the argument for parity, but believe this should be achieved by the state withdrawing its funding from all religious schools. Most Muslims reject this form of equality in which the privileged lose something but the underprivileged gain nothing. More specifically, the issue between ‘equalizing upwards’ and ‘equalizing downwards’ here is about the legitimacy of religion as a public institutional presence. Muslims have failed to get the courts to interpret the existing statute on blasphemy to cover offences beyond what Christians hold sacred, but some political support has been built for an offence of incitement to religious hatred, as has existed in Northern Ireland for many years, mirroring the existing one of incitement to racial hatred. (The latter extends protection to cover certain forms of anti-­Jewish literature, but not anti-­Muslim literature.) Indeed, such a proposal was in the Queen’s Speech in October 2004, but was part of the raft of legislation that was abandoned to make way for the General Election of May, 2005; however, it was reintroduced in the Queen’s Speech in May 2005 and placed before Parliament in June. Despite the controversy that this created, few people seem to have noticed how the law on race was already being stretched to cover religion so that anti-­Muslim literature was becoming covered in the way that anti-­Jewish literature has been covered from decades.2 Nevertheless, the government continued to have difficulties getting support for such legislation, not least from its own supporters, both inside and outside Parliament, where it especially provoked resistance from comedians, intellectuals and secularists, who feared that satire and criticism of religion was at risk. Finally, Parliament passed a bill in early 2006 to protect against incitement to religious hatred. Yet it was only passed after members of both Houses of Parliament – supported by much of the liberal intelligentsia – forced the government to accept amendments that weakened its initial proposals. Unlike the incitement to religious hatred offence in Northern Ireland, and the incitement to racial hatred offence in the UK, mere offensiveness was not an offence, and moreover the incitement must require the intention to stir up hatred. Nevertheless, a controversy shortly after this bill was passed showed that the media were coming to restrain themselves voluntarily. This was the case with the Danish Muhammad cartoons affair, the cartoons being reprinted in several leading European news-

Muslims, religious equality and secularism   119 papers but not by any major organ in Britain, suggesting there is a greater understanding in Britain about anti-­Muslim racism and about not giving gratuitous offence to Muslims than in some other European countries. Positive inclusion of religious groups The demand here is that religion in general, or at least the category of ‘Muslim’ in particular, should be a category by which the inclusiveness of social institutions may be judged, as they increasingly are in relation to race and gender. For example, employers should have to demonstrate that they do not discriminate against Muslims by explicit monitoring of Muslims’ position within the workforce, backed up by appropriate policies, targets, managerial responsibilities, work environments, staff training, advertisements, outreach and so on (FAIR 2002; CBMI 2002). Similarly, public bodies should provide appropriately sensitive policies and staff in relation to the services they provide, especially in relation to (non-­Muslim) schools, social and health services; Muslim community centres or Muslim youth workers should be funded in addition to existing Asian and Caribbean community centres and Asian and black youth workers. To take another case: the BBC currently believes it is of political importance to review and improve its personnel practices and its output of programmes, including its on-­screen ‘representation’ of the British population, by making provision for and winning the confidence of women, ethnic groups and young people. Why should it not also use religious groups as a criterion of inclusivity, and have to demonstrate that it is doing the same for viewers and staff defined by religious community membership? In short, Muslims should be treated as a legitimate group in their own right (not because they are, say, Asians), whose presence in British society has to be explicitly reflected in all walks of life and in all institutions; and whether they are so included should become one of the criteria for judging Britain as an egalitarian, inclusive, multicultural society. There is no prospect at present of religious equality catching up with the importance that employers and other organizations give to sex or race. A potentially significant victory, however, was made when the government agreed to include a religion question in the 2001 Census. The question was voluntary, but only 7 per cent did not answer it and so it has the potential to pave the way for widespread ‘religious monitoring’ in the way that the inclusion of an ethnic question in 1991 had led to the more routine use of ‘ethnic monitoring’. These policy demands no doubt seem odd within the terms of, say, the French or US ‘wall of separation’ between the state and religion, and may make secularists uncomfortable in Britain too. But it is clear that they virtually mirror existing anti-­discrimination policy provisions in the UK. Moreover, Muslim assertiveness, though triggered and intensified by what are seen as attacks on Muslims, is primarily derived not from Islam or Islamism but from contemporary Western ideas about equality and multiculturalism. While simultaneously reacting to the latter in its failure to distinguish Muslims from the rest of the ‘black’ population

120   T. Modood and its uncritical secular bias, Muslims positively use, adapt and extend these contemporary Western ideas in order to join other equality-­seeking movements. Political Muslims do, therefore, have an ambivalence in relation to multicultural discourses. On the one hand, as a result of previous misrecognition of their identity, and existing biases, there is distrust of ‘the race relations industry’ and of ‘liberals’; on the other hand, the assertiveness is clearly a product of the positive climate created by liberals and egalitarians (Modood 2005). This ambivalence can tend towards antagonism as the assertiveness is increasingly being joined by Islamic discourses and Islamists. Especially, as has been said, there is a sense that Muslim populations across the world are repeatedly suffering at the hands of their neighbours, aided and abetted by the United States and its allies, and that Muslims must come together to defend themselves. There is a useful analogy with the black power movement here, not just in its internationalism; one can say that as black nationalism and Afrocentrism developed as one ideological expression of black power, so, similarly, we can see political Islamism as a search for Muslim dignity and power.

A panicky retreat to a liberal public–private distinction If the emergence of a politics of difference out of and alongside a liberal assimilationist equality created a dissonance, as indeed it did, the emergence of a British Muslim identity out of and alongside ethno-­racial identities has created an even greater dissonance. Philosophically speaking, it should create a lesser dissonance, for a move from the idea of equality as sameness to equality as difference is a more profound conceptual movement than the creation of a new identity in a field already crowded with minority identities. But to infer this is naively to ignore the hegemonic power of secularism in British political culture, especially on the centre-­left. While black and related ethno-­racial identities were welcomed by, indeed were intrinsic to, the rainbow coalition of identity politics, this coalition is deeply unhappy with Muslim consciousness. While for some this rejection is specific to Islam, for many the ostensible reason is that it is a politicized religious identity. What is most interesting is that in this latter objection, if it is taken at its face value, the difference theorists, activists and paid professionals revert to a public–private distinction that they have spent two or three decades demolishing. We thus have a mixed-­up situation where secular multiculturalists may argue that the sex lives of individuals – traditionally a core area of liberal privacy – are a legitimate feature of political identities and public discourse, and seem to generally welcome the sexualization of culture, while on the other hand religion – a key source of communal identity in traditional, non-­liberal societies – is to be regarded as a private matter, perhaps as a uniquely private matter. Most specifically, Muslim identity is seen as the illegitimate child of British multiculturalism. Indeed, the Rushdie Affair made evident that the group in British society most politically opposed to (politicized) Muslims wasn’t Christians, or even right-­wing nationalists, but the secular, liberal intelligentsia.3

Muslims, religious equality and secularism   121 Just as the hostility against Jews, in various times and places, has been a varying blend of anti-­Judaism (hostility to a religion) and anti-­Semitism (hostility to a racialized group), so it is difficult to gauge to what extent contemporary British Islamophobia is ‘religious’ and to what extent ‘racial’. Even before September 11 and its aftermath, it was generally becoming acknowledged that of all groups Asians face the greatest hostility today, and Asians themselves feel this is because of hostility directed to Muslims (Modood 2005). These matters are not at all easy to disentangle, have hardly been researched at all, and anti-­Muslim racism is only just beginning to be acknowledged by anti-­racists. One has also to acknowledge that there must be analytical space for forthright criticism of aspects of Muslim doctrines, ideologies and practice without it being dismissed as Islamophobia – this being a parallel problem to, say, distinguishing anti-­ Zionism and anti-­Semitism.

Is religious equality a lesser equality? The multiculturalism or politics of difference that I have been advocating has four major implications for liberal citizenship. First, it is clearly a collective project and concerns collectivities and not just individuals. Second, it is not colour/gender/sexual orientation ‘blind’, and so breaches the liberal public– private identity distinction which prohibits the recognition of particular group identities so that no citizens are treated in a more or less privileged way or divided from each other. Third, it takes race, sex and sexuality beyond being merely ascriptive sources of identity, merely categories. Race is of interest to liberal citizenship only because no one can choose their race and so should not be discriminated against on something over which they have no control. But if equality is about celebrating previously demeaned identities (e.g. in taking pride in one’s blackness rather than in accepting it merely as a ‘private’ matter), then what is being addressed in anti-­discrimination, or promoted as a public identity, is a chosen response to one’s ascription. Exactly the same applies to sex and sexuality. We may not choose our sex or sexual orientation, but we choose how to live with it politically. Do we keep it private, or do we make it the basis of a social movement and seek public resources and representation for it? Now Muslims and other religious groups are utilizing this kind of argument, and making a claim that religious identity, just like gay identity, and just like certain forms of racial identity, should not just be privatized or tolerated, but should be part of the public space. In their case, however, they come into conflict with an additional fourth dimension of liberal citizenship that we can refer to as secularism: the view that religion is a feature, perhaps uniquely, of private and not public identity. The response that woman, black and gay are ascribed, unchosen identities while being a Muslim is about chosen beliefs, and that Muslims therefore need or ought to have less legal protection than the other kinds of identities, is sociologically naive and a political con. The position of Muslims in Britain today is

122   T. Modood similar to the other identities of ‘difference’ as Muslims catch up with and engage with the contemporary concept of equality. No one chooses to be or not to be born into a Muslim family. Similarly, no one chooses to be born into a society where to look like a Muslim or to be a Muslim creates suspicion, hostility, or failure to get the job you applied for. However, how Muslims respond to these circumstances will vary. Some will organize resistance, while others will try to stop looking like Muslims (the equivalent of ‘passing’ for white); some will build an ideology out of their subordination and others will not, just as a woman can choose to be a feminist or not. Again, some Muslims may define their Islam in terms of piety rather than politics, just as some women may see no politics in their gender while for others their gender will be at the centre of their politics. Those who see the current Muslim assertiveness as an unwanted and illegitimate child of multiculturalism have only two choices if they wish to be consistent. They can repudiate the idea of equality as identity recognition, and return to the 1960s liberal idea of equality as colour/sex/religion, etc., blindness. Or they can argue that equality as recognition does not apply to oppressed religious communities, perhaps uniquely not to religious communities. To deny Muslims positive equality without one of these two arguments is to be open to the charge of double standards. Hence a programme of racial and multicultural equality is not possible today without a discussion of the merits and limits of secularism. Secularism can no longer be treated as ‘off-­limits’, or, as President Jacques Chirac said in a major speech in 2004, ‘non-­negotiable’ (Cesari 2004: 166). Not that its really a matter of being for or against secularism, but rather a careful institution-­by-institution analysis of how to draw the public–private boundary and further the cause of multicultural equality and inclusivity. Secularism: different public–private boundaries in different countries At the heart of secularism is a distinction between the public realm of citizens and policies, and the private realm of belief and worship. While all western countries are clearly secular in many ways, interpretations and the institutional arrangements diverge according to the dominant national religious culture and the differing projects of nation-­state building, and thus make secularism a ‘particular’ experience. For example, the United States has as its First Amendment to the Constitution that there shall be no established church, and there is wide support for this; in the past few decades there has been a tendency amongst academics and jurists to interpret the church–state separation in continually more radical ways (Sandel 1994; Hamburger 2002). Yet, as is well known, not only is the US a deeply religious society, with much higher levels of church attendance than in Western Europe (Greely 1995), but there is a strong Protestant, evangelical fundamentalism that is rare in Europe. This fundamentalism disputes some of the new radical interpretations of the ‘no establishment clause’, though not necessarily

Muslims, religious equality and secularism   123 the clause itself, and is one of the primary mobilizing forces in American politics; it is widely claimed that it decided the presidential election of 2004. The churches in question – mainly white, mainly in the South and mid-­West – campaign openly for candidates and parties, and indeed raise large sums of money for politicians and introduce religion-­based issues into politics, such as positions on abortion, HIV/Aids, homosexuality, stem-­cell research, prayer at school and so on. It has been said that no openly avowed atheist has ever been a candidate for the White House, and that it would be impossible for such a candidate to be elected. It is not at all unusual for politicians – in fact, for ex-­President George W. Bush it is most usual – to talk publicly about their faith, to appeal to religion and to hold prayer meetings in government buildings. On the other hand, in establishment Britain, bishops sit in the upper chamber of the legislature by right and only the senior Archbishop can crown a new head of state, the monarch; however, politicians rarely talk about their religion. It was noticeable, for example, that when Prime Minister Blair went to a summit meeting with President Bush to discuss aspects of the Iraq War in 2003, the US media widely reported that the two leaders had prayed together. Yet Prime Minister Blair, one of the most openly professed and active Christians ever to hold that office, refused to answer questions on this issue from the British media on his return, saying it was a private matter. The British State may have an established church, but the beliefs of the Queen’s first Minister are his own concern. France draws the distinction between State and religion differently again. Like the US, there is no state church, but unlike the US, the state actively promotes the privatization of religion. While in the US organized religion in civil society is powerful and seeks to exert influence on the political process, French civil society does not carry signs or expressions of religion. Yet the French State, contrary to the US, confers institutional legal status on the Catholic and Protestant Churches and on the Jewish Consistory, albeit carefully designating organized religions as ‘cultes’ and not communities. We might want to express these three different national manifestations of secularism as in Table 6.1. So, what are the appropriate limits of the State? Everyone will agree that there should be religious freedom, and that this should include freedom of belief and worship in private associations. Family, too, falls on the private side of the line, but the state regulates the limits of what is a lawful family – for example, Table 6.1  Religion vis-à-vis state and civil society in three countriesa State

Religion in civil society

England/Britain

Weak establishment but churches Weak but churches can be a source have a political voice of political criticism and action

United States

No establishment

Strong and politically mobilized

France

Actively secular but offers topdown recognition

Weak; rare for churches to be political

Source: Adapted from T. Modood and R Kastoryano, 2006.

124   T. Modood polygamy is not permitted in many countries – not to mention the deployment of official definitions of family in the distribution of welfare entitlements. Religions typically put a premium on mutuality and on care of the sick, the homeless, the elderly and so on. They set up organizations to pursue these aims, but so do states. Should there be a competitive or a cooperative relationship between these religious and state organizations, or do they have to ignore each other? Can public money – raised out of taxes on religious as well as non-­religious citizens – not be used to support the organizations favoured by some religious taxpayers? What of schools? Do parents not have the right to expect that schools will make an effort – while pursuing broader educational and civic aims – not to create a conflict between the work of the school and the upbringing of the children at home, but, rather, show respect for their religious background? Can parents, as associations of religious citizens, not set up their own schools, and should those schools not be supported out of the taxes of the same parents? Is the school where the private (the family) meets the public (the State), or is it, in some Platonic manner, where the State takes over the children from the family and pursues its own purposes? Even if there is to be no established church, the State may still wish to work with organized religion as a social partner, as is the case in Germany, or to have some forum in which it consults with organized religion, some kind of national council of religions, as in Belgium. Or, even if it does not do that because it is regarded as compromising the principle of secularism, political parties, being agents in civil society rather than organs of the State, may wish to do this and institute special representation for religious groups as many do for groups defined by age, gender, region, language, ethnicity and so on. It is clear then that the ‘public’ is a multi-­faceted concept, and in relation to secularism may be defined differently in relation to different dimensions of religion and in different countries. We can all be secularists, then, all approve of secularism in some respect, and yet have quite different ideas, influenced by historical legacies and varied pragmatic compromises, of where to draw the line between public and private. It would be quite mistaken to suppose that all religious spokespersons, or at least all political Muslims, are on one side of the line and all others are on the other side. There are many different ways of drawing the various lines at issue. In the past, the drawing of them has reflected particular contexts shaped by differential customs, urgency of need and sensitivity to the sensibilities of the relevant religious groups (Modood 1994, 1997). Exactly the same considerations are relevant in relation to the accommodation of Muslims in Europe today – not a battle of slogans and ideological over-­simplifications. Moderate secularism as an implication of multicultural equality Multicultural equality, then, when applied to religious groups, means that secularism simpliciter appears to be an obstacle to pluralistic integration and equality. But secularism pure and simple is not what exists in the world. The country by country situation is more complex, and indeed far less inhospitable to the

Muslims, religious equality and secularism   125 accommodation of Muslims than the ideology of secularsim – or, for that matter, the ideology of anti-­secularism – might suggest (Modood and Kastoryano 2006). All actual practices of secularism consist of institutional compromises, and these can, should be and are being extended to accommodate Muslims. The institutional reconfiguration varies according to the historic place of religion in each country. Today the appropriate response to the new Muslim challenges is pluralistic institutional integration, rather than an appeal to a radical public–private separation in the name of secularism. The approach that is being argued for here, then, consists of: 1 2 3

A reconceptualization of secularism from the concepts of neutrality and the strict public/private divide to a moderate and evolutionary secularism based on institutional adjustments. A reconceptualization of equality from sameness to an incorporation of a respect for difference. A pragmatic, case by case, negotiated approach to dealing with controversy and conflict, not an ideological, drawing a ‘line in the sand’ mentality.

This institutional integration approach is based on including Islam into the institutional framework of the state, using the historical accommodation between State and Church as a basis for negotiations in order to achieve consensual resolutions consistent with equality and justice. As these accommodations have varied from country to country, it means there is no exemplary solution, for contemporary solutions too will depend on the national context and will not have a once-­and-for-­all-time basis. It is clearly a dialogical perspective, and assumes the possibility of mutual education and learning. Like all negotiation and reform, there are normative as well as practical limits. Aspects of the former have been usefully characterized by Bhikhu Parekh as ‘society’s operative public values’ (Parekh 2000: 267). These values, such as equality between the sexes, are embedded in the political constitution, in specific laws and in the norms governing the civic relations in a society. Norms, laws and constitutional principles concerning the appropriate place of religion in public life generally and in specific policy areas (such as schools or rehabilitation of criminals) consist of such public values and are reasoned about, justified or criticized by reference to specific values about religion/politics as well as more general norms and values in a society, such as fairness, or balance, or consensus and so on. I therefore recognize that the approach recommended here involves solutions that are highly contextual and practical, but they are far from arbitrary or without reference to values. While the latter are not static because they are constantly being reinterpreted, realigned, extended and reformed, nevertheless they provide a basis for dialogue and agreement. An example is the development of a religious equality agenda in Britain, including the incorporation of some Muslim schools on the same basis as for schools of religions with a much longer presence. It also includes the recommendations of The Royal Commission on the Reform of the House of Lords (2000)

126   T. Modood that in addition to the Anglican bishops who sit in that House by right as part of the Anglican ‘establishment’, this right should be extended to cover those of other Christian and non-­Christian faiths. The same point can be made in relation to the fact that as early as 1974 the Belgian State decided to include Islam within its Council of Religions as a full member, or to the way that Muslims in the Netherlands have long had state-­funded religious schools and television channels as a progressive step in that country’s traditional way of institutionally dealing with organized religion, namely, ‘pillarization’.4 Similarly, a ‘Muslim community’ is becoming recognized by public authorities in Germany by appealing to the historic German idea of a ‘religious society’ (Religionsgesellschaft). Again, a series of French Interior Ministers have taken a number of steps to ‘normalize’ Islam in France by creating an official French Islam under the authority of the state in ways that make it identical to other faiths (for more on these cases, see Modood and Kastoryano 2006; also Cesari 2004). The recognition of Islam in Europe can, as some of these examples suggest, take a corporatist form, can be led or even imposed by the state in a ‘top-­down’ way, and can take a church or ecclesiastical model as its form. This may be appropriate for certain countries or at certain moments, and could be – usually is – consistent with the conception of multiculturalism I have outlined. However, it would not be my own preference, for it would not represent the British multicultural experience and its potentialities at its best. A corporatist inclusion would require Muslims and their representatives to speak in one voice and to create a unified, hierarchical structure when this is out of character in Sunni Islam, especially the South Asian Sunni Islam espoused by the majority of Muslims in Britain, and of the contemporary British Muslim scene. Corporatism would very likely consist of state control of the French kind, with the state imposing its own template, plans, modes of partnership, and chosen imams and leaders upon Muslims. One mode of recognition is for the new minority faiths such as Islam to be represented in relation to the state by their spiritual leaders, like the Anglican Church is by its bishops, or even, indeed, as the Catholic Church is in Britain. For while the Catholic Church is not an established church, it has a clear relationship with the British, especially English, state (e.g. it is the single biggest beneficiary of state funding of faith schools) and it is its ecclesiastical hierarchy that is taken to be speaking for Catholics. My own preference would be for an approach that would be less corporatist, less statist and less churchy – in brief, less French. An approach in which civil society played a greater role would be more comfortable with there being a variety of Muslim voices, groups and representatives. Different institutions, organizations and associations would seek to accommodate Muslims in ways that worked for them best at a particular time, knowing that these ways may or ought to be modified over time, and Muslim and other pressure groups and civic actors may be continually evolving their claims and agendas. Within a general understanding that there had to be an explicit effort to include Muslims (and other marginal and underrepresented groups), different organizations – like my earlier example of the BBC – may not just seek this inclusion in different ways

Muslims, religious equality and secularism   127 but would seek as representatives Muslims that seemed to them most appropriate associates and partners, persons who would add something to the organization and were not merely delegated from a central, hierarchical Muslim body. The idea of numerical or ‘mirror’ representation of the population might be a guideline, but it would not necessarily follow that some kind of quota allocation (a mild version of the corporatist tendency) would have to operate. Improvisation, flexibility, consultation, learning by ‘suck it and see’ and by the example of others, incrementalism and all the other virtues of a pragmatic politics in close touch with a dynamic civil society can as much, and perhaps better, bring about multicultural equality than a top-­down corporatist inclusion. ‘Representation’ here would mean the inclusion of a diversity of backgrounds and sensibilities, not delegates or corporate structures. Recognition, then, must be pragmatically and experimentally handled, and civil society must share the burden of representation. While the state may seek to ensure that spiritual leaders are not absent from public fora and consultative processes in relation to policies affecting their flocks, it may well be that a Board of Jewish Deputies model of community representation offers a better illustration of a community–state relationship. The Board of Deputies, a body independent of but a communal partner to the British state, is a federation of Jewish organizations which includes synagogues but also other Jewish community organizations, and its leadership typically consists of lay persons whose standing and skill in representing their community is not diminished by any absence of spiritual authority. It is most interesting that while at some local levels Muslim organizations have chosen to create political bodies primarily around mosques (e.g. the Bradford Council of Mosques), at a national level it is the Board of Deputies model that seems to be more apparent. This is certainly the case with the single most representative and successful national Muslim organization, the Muslim Council of Britain (MCB), whose office-­ holders and spokespersons are more likely to be chartered accountants and solicitors than imams. Most mosques in Britain are run by local lay committees, and the mullah or imam is a usually a minor functionary. Very few of those who aspire to be Muslim spokespersons and representatives have religious authority, and they are not expected to have it by fellow Muslims. So the accommodation of religious groups is as much, if not more, about the recognition and support of communities rather than necessarily about ecclesiastical or spiritual representation in political institutions. The state has a role here which includes ensuring that Muslim civil society is drawn into the mainstream as much as it is to seek forms of representation within state structures. In my preferred approach, it would be quite likely that different kinds of groups – Muslims, Hindus and Catholics for instance, let alone women, gays and different ethnic minority groups – might choose to organize in different ways and to relate to key civic and political institutions in different ways. While each might look over its shoulder at what other groups are doing or getting and use any such precedents to formulate its own claims, we should on this approach not require symmetry, but be able to live with some degree of ‘variable geometry’.

128   T. Modood I am unable to specify what this degree of flexibility might be, but it should be clear that sensitivity to the specific religious, cultural and socio-­economic needs in a specific time and place and political context is critical to multiculturalism. This indeterminacy leaves something to be desired, but I hope it is evident that it can be a strength, too. It also underlines that multiculturalism is not a comprehensive political theory, but can and must sit alongside other political values and be made to work with varied institutional, national and historical contexts.

Conclusion The emergence of Muslim political agency has thrown British multiculturalism into theoretical and practical disarray. It has led to policy reversals in the Netherlands and elsewhere, and across Europe has strengthened intolerant, exclusive nationalism. We should in fact be moving the other way and enacting the kinds of legal and policy measures that are necessary to accommodate Muslims as equal citizens in European polities. These would include anti-­discrimination measures in areas such as employment, positive action to achieve a full and just political representation of Muslims in various areas of public life, the inclusion of Muslim history as European history and so on. Critically, I have been arguing that the inclusion of Islam as an organized religion and of Muslim identity as a public identity is necessary to integrate Muslims and to pursue religious equality. While this inclusion runs against certain interpretations of secularism, it is not inconsistent with what secularism means in practice in Europe. We should let this evolving, moderate secularism and the spirit of compromise it represents be our guide. Unfortunately, an ideological secularism is currently being reasserted and generating European domestic versions of ‘the clash of civilizations’ thesis and the conflicts that entails for European societies. That some people are today developing secularism as an ideology to oppose Islam and its public recognition is a challenge both to pluralism and equality, and thus to some of the bases of contemporary democracy. It has to be resisted no less than the radical anti-­secularism of some Islamists.

Acknowledgements This work was originally published in Geoffrey Levey and Tariq Modood (eds) Secularism, Religion and Multicultural Citizenship, Cambridge University Press, 2009; see also Chapter 4 of Tariq Modood, Multiculturalism: A Civic Idea, Polity, 2007.

Notes 1 The first half of this chapter borrows from and builds on Modood 2003a (simultaneous publication in Modood 2003b); and the second half borrows from and builds on parts of Modood and Kastoryano 2006. For a fuller elaboration of the perspective on which this chapter is based, see Modood 2007. 2 The Crime and Disorder Act 1998 introduced the concept of a ‘racially aggravated’

Muslims, religious equality and secularism   129 offence which covers not just the intention of an act but also its consequences. It relates primarily to acts of violence but also in relation to amendments to the section of the Public Order Act 1986 that deals with threatening, abusive or insulting behaviour. So, the latter behaviour is not determined by intentions alone. Following ‘9/11’, an Anti-­ Terrorism, Crime and Security Act was quickly passed and extended the phrase ‘racially aggravated’ to ‘racially or religiously aggravated’. In 2003, the High Court upheld the conviction in the Norwood case, arguing that displaying a British National Party poster bearing the words ‘Islam out of Britain’ and Protect the British People’ accompanied by a picture of the 9/11 attack on the Twin Towers amounted to an offence of causing alarm or distress. The High Court argued that evidence of actual alarm or distress was not necessary if it was determined that ‘any right thinking member of society’ is likely to be caused harassment, alarm or distress. It concluded, therefore, that the poster was racially insulting and, additionally, religiously aggravated. It seems then – though this is only on the basis of one case – that Muslims in Britain may have some legal protection against a version of incitement to religious hatred (for further details see Norwood v DPP 2003, and CMBI 2004). 3 The large PSI Fourth Survey found that nominal Christians and those without a religion were more likely to say they were prejudiced against Muslims than those Christians who said their religion was of importance to them (Modood 1997: 134). 4 This principle that recognized that Protestants and Catholics had a right to state resources and some publicly funded autonomous institutions officially ended in 1960. It is, however, still considered as a ‘relevant framework for the development of a model that grants certain collective rights to religious groups’ (Sunier and von Luijeren 2002) in such matters as state funding of Islamic schools. So the accommodation of Muslims is being achieved through a combination of mild pillarization and Dutch minority policies.

Bibliography Cesari, J. (2004) When Islam and Democracy Meet, New York and Basingstoke: Palgrave. Commission on British Muslims and Islam (CBMI) (2004) Islamophobia – Issues, Challenges and Action, London: Runnymede Trust. Commission on British Muslims and Islamophobia (CBMI) (2002) Response to the Commission on Racial Equality’s Code of Practice, London: CBMI. Forum Against Islamophobia and Racism (FAIR) (2002) A Response to the Government Consultation Paper, ‘Towards Equality and Diversity: Implementing the Employment and Race Directives’, London: FAIR. Greely, A. (1995) ‘The persistence of religion’, Cross Currents, 45: 24–41. Hamburger, P. (2002) Separation of Church and State, Cambridge, MA: Harvard University Press. Modood, T. (1992) Not Easy Being British: Colour, Culture and Citizenship, London: Runnymede Trust/Trentham Books. Modood, T. (1994) ‘Establishment, multiculturalism and British citizenship’, Political Quarterly, 65: 53–73. Modood, T (ed.) (1997) Church, State and Religious Minorities, London: Policy Studies Institute. Modood, T. (2003a) ‘Muslims and the politics of difference’ in S. Spencer (ed.) The Politics of Migration, Oxford: Blackwell. Modood, T. (2003b) Muslims and the politics of difference’, Political Quarterly 74(1), 2003: 100–15.

130   T. Modood Modood, T. (2005) Multicultural Politics: Racism, Ethnicity and Muslims in Britain, Edinburgh: University of Edinburgh Press. Modood, T. (2007) Multiculturalism: A Civic Idea, Cambridge: Polity Press. Modood, T. and R. Kastoryano (2006) ‘Secularism and the Accommodation of Muslims in Europe’, in T. Modood, A. Triandafyllidou and R. Zapata-­Barrero (eds) Multiculturalism, Muslims and Citizenship: A European Approach, London: Routledge. Modood, T., R. Berthoud, J. Lakey, J. Nazroo, P. Smith, S. Virdee and S. Beishon (1997) Ethnic Minorities in Britain: Diversity and Disadvantage, London, Policy Studies Institute. Parekh, B. (2000) Rethinking Multiculturalism: Cultural Diversity and Political Theory, Basingstoke: Macmillan. Sandel, M. (1994) ‘Review of Rawls’ political liberalism’, Harvard Law Review, 107: 1765–94. Sunier, Thjil and Mira von Luijeren (2002) ‘Islam in the Netherlands’, in Y. Haddad (ed.) Muslims in the West. From Sojourners to Citizens, New York: Oxford University Press. Young, I. M. (1992) Justice and the Politics of Difference, Princeton, NJ: Princeton University Press.

7 Secularism and fair treatment for Muslims1 Cécile Laborde

Is the Western secular state fair to members of religious minorities, such as Muslims? In this chapter I argue that it can be, provided the demands of secularism are correctly understood. Secularism is the theory that only the non-­religious (rather than anti-­religious) state can treat citizens – religious and non-­religious – with equal respect. One problem with contemporary Western states, however, is that they are still marked by the legacy of Christian establishment and, as a result, the question of how to treat citizens fairly is more complicated than both advocates and critics of secularism recognize. Advocates of strict (or ‘official’) secularism urge Muslims to respect the religious neutrality of the public sphere by ‘privatizing’ their religion. The conception of equality they endorse is one of ideal separation between state and religions. Critics of strict secularism take a more accommodationist position: they recognize that, in practice, Western states do not meet the ideal of secularism, and therefore demand that Islam be recognized on a par with Christianity and other religions. Their conception of equality is one of pragmatic even-­ handedness between religious groups. In this chapter I argue that both positions are problematic, because they both suffer from a version of what Cass Sunstein has called ‘status quo neutrality’ (Sunstein 1993), which fails to assess the legitimacy of existing church–state arrangements. I then set out critical republican principles of secular impartiality, which identify a baseline from which practical claims of fairness between members of particular religions (or none) can be evaluated. Lastly, I show how these principles help us respond to a range of Muslim demands for public recognition. The critical republicanism that I defend is an alternative to the positions of the strict secularists (‘official republicans’) and the accommodationists (‘tolerant republicans’), both of which were starkly articulated during the French controversy over the wearing of Muslim religious symbols in state schools and the meaning of laïcité (secularism). My critical republican theory has been elucidated in relation to the French case (I notably argue that opposition to the French ban on religious signs does not imply opposition to the ideals of laïcité themselves). But it has broader applications: it aims to apply the republican ideal of non-­domination to the practical treatment of cultural and religious differences in societies with well-­established cultural and religious majorities and recently

132   C. Laborde established immigrant minorities. What matters to critical republicans is that minority members enjoy a status of non-­domination in the secular state. Minority religions should be positively recognized by the state only in so far this helps reduce the dominating effects of the religious bias of historically Christian states; and religious believers should be supported by the secular state only in so far as this lessens the unreasonable burdens attached to the exercise of basic religious rights in the non-­religious state. But the civic ideals of republicanism are, generally, best pursued through the maintenance of a secular public sphere, as it best embodies the ideal of the non-­domination of citizens of all faiths – or none.

Religious neutrality and the status quo Official and tolerant republicans propound almost opposite interpretations of the proper relationship between state and religion (for detail of their arguments, see Laborde 2008).2 Yet I want to argue that, despite their profound differences, they share one central flaw: they both endorse a version of ‘status quo neutrality’. Status quo neutrality refers to a theoretical position which takes the existing distribution of burdens and benefits in society for granted or, more precisely, which fails to provide an impartial baseline from which current claims about inequalities or unjust treatment can be normatively assessed. Neither official nor tolerant republicans are sufficiently critical of existing church–state arrangements, and their potentially dominating effect. Their respective attitude towards the status quo is problematic, although for opposite reasons – or so I shall argue in this section. The next sections will explicate the demands of critical republican secularism as impartiality and non-­domination more fully. Official republicans conduct their defence of laïcité through abstraction from the status quo. Focusing exclusively on explicating how things should be, they pay no attention to justifying or criticizing how things are. Thus they respond to Muslim demands for recognition with a principled and abstract defence of the separation between state and religion, wilfully ignoring the fact that the French state is neither indifferent towards religious groups nor neutral between them. They therefore expose themselves to two connected charges of inconsistency. The first is that of double standards: the state should not make demands on Muslims that it does not make on other religious believers. The second is a version of the tu quoque (‘you too’) objection: the state should not impose on Muslims the application of principles (of laïcisation) that it itself does not fully honour. Now, in logic seminars and in law courts, ad hominem arguments of this kind tend to be dismissed as argumentative fallacies, because they undermine the authority of the speaker rather than address the substance of her argument. When it comes to assessing the fairness of political decisions, however, consistency over time and even-­handed treatment of different groups are far from irrelevant considerations. So even if, for example, it is thought that no public money should (ideally) be used to build religious facilities, it might be difficult, in practice, to justify denying Muslims any kind of financial support, given the fact that (in France) many Catholic churches are, by historical agreement, subsidized by the

Secularism and fair treatment for Muslims   133 state. At the very least, official republicans would have to admit that the current regime of state–church relations in France exhibits anomalies which are troubling from the perspective of the French state’s proclaimed commitment to neutralist separation. Failing that, the demand that Muslims abide by principles of laïcité as neutrality when, under status quo arrangements, laïcité is only imperfectly realized, cannot plausibly be construed as a fair demand. Note that my critique of neutrality here differs from standard perfectionist, communitarian, multiculturalist and feminist critiques. I am not claiming that the ideal of neutrality itself should be abandoned because states in the real world are, necessarily and pervasively, non-­neutral. Nor am I proposing that we substitute consequentialist neutrality (whereby actual end-­state results are taken into account as a measure of fairness) for justificatory neutrality (whereby the fairness of the rule is justified independently of its practical impact on different individuals and groups). It is my belief that justificatory neutrality captures an important value of fairness, one which focuses on providing people equal opportunity sets for the pursuit of their various ideals, instead of ensuring that people are equally successful in their pursuits.4 The chief problem with justificatory neutrality, and the separationist conception of laïcité that it inspires, is that it is wrongly expected by official republican to generate directly applicable principles of treatment of minorities. Yet, as Marxists and critical theorists have long pointed out, directly and uncritically applying rules of neutrality under non-­neutral institutional conditions only perpetuates the status quo and legitimizes existing inequalities between dominant and minority groups. In the words of Dutch sociologist Jan Rath, ‘the shift to state neutrality [is] like drawing up the bridge in front of the newcomers’ (cited in Klausen 2005: 146). To put the point differently, the problem with official republican neutrality is not that it is an impractical ‘ideal theory’, to use John Rawls’s term. It is, rather, that while (by contrast to Rawlsian ideal theory) it claims to be a set of directly applicable, or at least action-­ guiding, principles, it nonetheless (by contrast to Rawlsian non-­ideal theory) completely abstracts from the concrete conditions to which they are supposed to apply. It is the combination of high-­minded abstraction, action-­guiding ambition and fact-­insensitivity that makes official republicanism vulnerable to the charge of status quo neutrality. Tolerant republicans, for their part, suffer from an opposite problem. They justify their critique of neutralist laïcité through idealization of (not abstraction from) the status quo. Their claim, at its simplest, is that the existing rights and privileges enjoyed by the historically dominant church should be extended, in the name of fairness, to more recently established minority religions such as Islam. In the words of Tariq Modood, in the context of English debates about whether the established status of the Anglican Church can benefit religious minorities, we should aim to ‘equalize upwards’ (i.e. multi-­faith recognition) rather than ‘equaliz[ing] downwards’ (i.e. disestablishment) (Modood 2003: 164). French tolerant republicans, likewise, argue that Islam will benefit from an extension and generalization of the implicit ‘system of recognized cults’ prevalent in France. They take an openly practical approach to the even-­handed 3

134   C. Laborde treatment of minorities under non-­neutral conditions, and are much more aware than official republicans of the complexity of demands for contextual fairness. Yet, I would suggest, they tend to idealize the status quo and to make virtue out of necessity. In their eagerness to ensure some kind of equity between majority and minority religions, they gloss over the need for the proper justification of the existing entitlements and privileges of the historically dominant church. Thus they argue that the right to set up their own schools cannot consistently be denied to Muslims, given that it has been granted to Christians and Jews. Yet they have not established whether faith schools are legitimate in the first place (I briefly discuss this below). Therefore, they are vulnerable to the charge of status quo neutrality: they, no more than official republicans, make a systematic effort to justify or criticize existing state–religion relationships. While official republicans’ theory of separation is too abstract and too disconnected from reality to provide fair and practical guidelines for reform, tolerant republicans’ theory of even-­handed fairness is too ad hoc, and lacks principled criteria with which to distinguish between legitimate and illegitimate forms of political recognition of religion. Furthermore, their theory of equality as even-­handedness between groups runs into familiar problems attendant to consequentialist neutrality and the conception of outcome equality it generates (problems of measurement, problematic concept of ‘representativeness’, fairness for non-­religious citizens, notably). This is not to deny that these are complex issues. Treating different religious groups fairly in existing societies, where historical contingencies, rather than principles of justice, have left their mark on state–church relationships, is far from straightforward. But I have suggested that the terms of the current debate between strict secularists and their critics are themselves fraught. Both sides, for different reasons, fail to identify and defend a benchmark of religious equality against which the status quo can be criticized and reforms justified. In what follows, I sketch a revised theory of republican secularism which is both critical and normative, thus avoiding the defaults of status quo neutrality.

In defence of critical secularism as impartiality Most liberals take it for granted that liberal democracies have a secular core. Even multiculturalist critics such as Will Kymlicka argue that while politics and culture cannot, and should not, be kept apart, a separation should be maintained between the state and religion (Kymlicka 1995: 3, 111). Yet this intuitive liberal separationism is in need of proper justification and defence – a need made more acute by the recent, multifaceted assault on secular ideals and practices (Audi 1989; Taylor 1998). In what follows, I attempt to identify and defend the kernel of truth contained in the ideology of laïcité. At the simplest level, a democratic state is secular in the sense that it does not affirm any religious creed, and does not seek to confer special benefits or burdens to citizens affirming any religious creed (or none). In this way it is fair to all: it shows equal respect to adherents to the majority religion, to minority religions, and to no religion at all. For critics of

Secularism and fair treatment for Muslims   135 secularism, the claim that secularism treats religious believers fairly is based on a rhetorical sleight of hand (Phillips 1997). The secular state is supposed to provide neutral common ground, yet it is also the favoured substantive position of those who do not embrace any religion. As a result – the argument continues – the secular state cannot avoid being biased towards non-­religious people, and the ideal of secularism violates the liberal injunction that the state should not favour any conception of the good in particular (McConnell 2000; Walker 2000). I think that there is something to the charge, but the case is overstated. A secular public order cannot claim to be equally suited to religious and non-­religious people, but it is nonetheless the closest we can get to being an order that most, if not all, citizens can endorse. Secularism seeks common ground; ex hypothesi, this cannot lie in controversial conceptions of the good. Among such conceptions are the belief that God exists and the belief that God does not exist. A secular state, by eschewing all references to God, avoids taking sides between these two conceptions. Unquestionably, making no reference to God is more problematic for those who believe in God’s existence than it is for those who do not. But this is an unavoidable – if regrettable – asymmetry, not a hypocritical sleight of hand on the part of secularists intent on foisting their substantive (agnostic or atheistic) way of life on others. Historically, secularism did not succeed primarily because it suited atheists. Rather it suited believers, because it allowed the state to be neutral towards the merits of competing religious views. So the onus of proof, in my view, lies with critics of secularism: they must show that there is an alternative, non-­secular, basis on which the common ground of citizenship can be based.5 To put the question thus is to imply that, in pluralist societies, genuinely common ground cannot have a religious basis, for such basis would fail to be publicly intelligible, and therefore would fail to offer adequate justifying reasons for the exercise of state power (Audi 2000). That the content and form of common ground principles must be secular does not mean, however, that they cannot be endorsed from the perspective of religious conceptions of the good, as in Rawls’s overlapping consensus. Republicanism, no more than political liberalism, needs to endorse a comprehensive ‘independent ethic’ conception of secularism (Taylor 1998). More complicated is the question of the appropriate reach of what I have called ‘common ground’ secular principles. Challenges to secularism raise anew the question of where to draw the line between the public sphere, where secular principles of exclusion of religion apply, and the private sphere, where they do not (Modood 2005). While critics of secularism implicitly accept that constitutional essentials and state policy must be secular, and that citizenship rights must be independent of religious membership, they have questioned the laïque implication that religious belief can have no place in political argument and civic life more broadly. Laïcité, on their view, is too demanding if it requires the complete privatization of belief. Thus, an important debate within recent (notably American) liberal theory has centred on secularism as a doctrine of conscience prescribing norms of conduct both for religious organizations and for individual citizens. In particular, liberal neutralists such as John Rawls and Robert Audi

136   C. Laborde have been challenged by critics such as Kent Greenawalt and Paul Weithman for seeking to exclude religious convictions from public reason (Greenawalt 1988; Rawls 1997; Audi 2000; Weithman 2002). Critical republicans occupy an intermediary position in this debate. They suggest that while it is natural and accept­ able for citizens to enter politics out of religious conviction, and to introduce religious arguments in broad public debate, it is not acceptable for the constitution to be theologically inspired, or for public officials to justify public decisions by reference to religious views; in both cases, ‘common grounds’ principles should be appealed to (Habermas 2006). Generally, critical republicans tend to be fairly tolerant of the religious expression of ordinary citizens, but they adopt a less tolerant stance towards display of religious allegiance or support by state institutions. A more difficult issue, from a critical republican perspective, is that of the religious freedom of individual state officials (as distinct from the religious neutrality of institutions or policies).6 Does the institutional doctrine of separation prevent civil servants from exercising their basic rights of religious practice when on duty? For example, the principle of the religious neutrality of the state prevents French and German schoolteachers (along with other public officials) from displaying signs of religious allegiance. On a critical republican view, such prohibitions can never be general in form, and should be a function of the importance of the public function and of the vulnerability of the users of the service. Thus, government ministers but not tax inspectors, primary school teachers but not university lecturers, may be subjected to an obligation of religious restraint while on duty. But leaving this important complication aside, the basic insight of critical republicanism is clear enough: secularism is primarily an institutional doctrine of separation, prescribing the extent to which state institutions, and the public sphere more generally, must remain secular so that citizens can freely follow their conscience. A tough institutional doctrine is therefore the condition for a tolerant doctrine of conscience. Republican secularism aims to show equal respect to all religious and non-­religious citizens by guarding against majoritarian infringements on freedom of conscience (of adherents to minority religions and non-­adherents). It is primarily concerned about the potentially conformist, divisive or discriminatory effects of the material and symbolic recognition of religion in the public sphere. Thus, it constructs the public sphere fairly expansively, as a space where citizens can meet as citizens. A non-­sectarian, non-­ confessional public space best embodies the ideal of democratic impartiality by showing respect to, and thus motivating the allegiance of, all citizens regardless of their particular beliefs. One central space where civic and secular principles take most of their force is the school. Schools, on the republican view, are central loci of civic socialization and transmission of knowledge. Their function, in particular, is to promote tolerance and respect for difference, which are conditions for the respect of religious freedoms. Classrooms, therefore, must be (as far as possible) diverse and inclusive – they must notably accept the wearing by pupils of signs of religious allegiance –, and they must be free of religious orthodoxy or divisive sectarianianism on the part of teachers. That public schools

Secularism and fair treatment for Muslims   137 must (preferably) be secular, therefore, follows from the republican ideal of citizenship. This, I think, is the kernel of truth contained in the separationist ideal of laïcité. In many areas of common life, the best way to institutionalize the ideal of republican equality is to erect a ‘wall of separation’ between public institutions and religion – let us call this the ‘main clause’ of critical secularism. However – and here is a crucial qualification – in some cases, official republican separationism is not the best way to institutionalize equal respect. An analysis of the French hijab controversy shows that official laïcité fails to treat religious believers fairly when it imposes unreasonable burdens on the exercise of basic religious rights, and it fails to treat minority believers fairly when it endorses a form of status quo neutrality which in practice advantages majority religions.7 Thus, critical republicanism, in an effort to provide a benchmark of religious equality against which religious claims can be assessed, adds two crucial provisos to the laïque separationist main clause. It posits that the state should not support religion, unless such abstention (i) unreasonably burdens the exercise of basic religious freedoms or (ii) legitimizes status quo entitlements which unduly disadvantage minority religious groups. Only then will the secular state be a non-­dominating state. Let me briefly spell out the two provisos. The first – let us call it the ‘basic free exercise’ proviso – is rooted in the thought that a secular state is fair to, and inclusive of, all citizens in so far as it does not unreasonably burden or advantage them in virtue of their religious or non-­religious beliefs. Religious citizens can be considered to be unreasonably burdened if existing arrangements make it impossible or very difficult for them to practise the basic tenets of their religion (provided these do not impose unreasonable burdens on the rest of society).8 Thus, contra the strictly ‘libertarian’ interpretation of the demands of free religious exercise, religious exercise may need to be assisted by the state: for example, the French state has a duty to provide religious chaplaincy services in enclosed public institutions such as prisons, boarding schools, hospitals and the Armed Forces. Thus the institutional doctrine of separation does not automatically mandate a stringent interpretation of separation as a doctrine of conscience. Secular institutions must be inclusive and should not dominate religious citizens: they should not unreasonably deprive them of basic rights of free exercise. The second proviso – let us call it the ‘contextual parity’ proviso – addresses the fairness of secularist demands on minorities. Official laïcité, in so far as it urges religious minorities to respect the principle of separation, imposes unfair burdens on them, in cases when historically established religious groups have benefited from favourable treatment by the state. The problem here is how to achieve equality between religions under status quo, non-­ideal conditions. The basic critical republican intuition is that status quo entitlements which do not meet the demands of justificatory neutrality and significantly burden minority religious groups must be corrected or compensated for. Only then can we guarantee the (roughly) equal opportunity to practise Islam under institutional conditions which, while requesting that minorities abide by the ‘hard rules’ of

138   C. Laborde secular restraint, entrench customary ‘soft rules’ which in practice favour historically established religions. Critical republicans – by contrast to both official and tolerant republicans – explicitly confront this complex question, and believe that answering it would go a long way towards addressing the legitimate grievances of Muslims in relation to the existing practices of European states. The shift from abstentionist neutrality to non-­dominating impartiality requires a broader justification of existing benefits and burdens than either official or tolerant republicans are able to provide. Critical republican impartiality does not require endorsement of a substantive, consequentialist conception of religious equality, but it imposes a fairly stringent test on what counts as fair background for the exercise of religious liberties. In this way, secular impartiality can be said to apply to religious affairs the ‘wide’ conception of equality of opportunity that has become current in the egalitarian literature on social justice (Phillips 2006). To borrow Peter Jones’s useful distinction, (justificatory) neutralists are right to say that people should bear the internal burdens attached to the pursuit of their conceptions of the good and beliefs, but this does not mean that they should bear all the consequences that follow from the intersection between internal burdens and the effect of non-­neutral historical institutions (Jones 1994).

Critical secularism in practice: addressing Muslim demands Critical secularism, then, upholds the secular character of the public sphere unless doing so infringes a basic religious free-­exercise right (on a weakly consequentialist view) or entrenches exorbitant majoritarian historical privileges (on a wide justificatory view). The ‘basic free exercise’ and ‘contextual parity’ provisos are deliberately qualified: the free-­exercise right must be ‘basic’,9 the privileges have to be ‘exorbitant’. In other words, there is a prima facie assumption that public institutions must promote secular policies, unless such policies have a demonstrably dominating effect on religious believers. My claim is that critical secular principles offer broad but clear guidelines about how to weigh conflicting values and adjudicate the complex claims brought in the name of religion in contemporary societies. They do so without either abstracting from or idealizing status quo arrangements, and to that extent considerably improve on both official and tolerant republicanism. In this section, I seek to make good this claim by focusing on four particular Muslim demands: multi-­faith establishment, religious schools, public funding for mosques, and the wearing of religious dress (an example of religious exemption from general rules). I shall argue that while critical republicans accept the legitimacy of the latter two demands (under certain conditions), they are more sceptical about the former two. They object to extending a number of existing privileges to Muslims not because Muslims are not deserving of them, but because the privileges are not legitimate in the first place. Muslim demands, then, should not be acceded to or rejected simpliciter, as under a conception of status quo neutrality. They pose deep questions of systemic impartiality and prompt the re-­evaluation and reform of existing regimes of religious recognition.

Secularism and fair treatment for Muslims   139 Multi-­faith establishment refers to the demand that the organic links between the state and historically dominant churches be extended to Islam (and other minority religious groups). By organic links, I refer to persisting traces of the historical establishment of religion within the state, dating back to the times when the state, in accordance with the principle of cujus regio, ejus religio (whose realm, their religion), upheld the public function, moral truth and social value of Christianity. Thus, for example, the Church of England is still formally linked to the British Crown, and Anglican bishops sit in the House of Lords; the Catholic, Protestant and Jewish public corporations in Germany are entitled to federally collected church taxes; in the French region of Alsace-­Moselle (where the 1905 Law of Separation does not apply) churches receive public funding, and priests, rabbis and pastors are paid by the state. In many European countries, religious (mostly Christian) education is compulsory in state schools; and religious beliefs enjoy special respect and protection from the law (in the form of blasphemy laws or special conscientious objection rights) (Klausen 2005: 142–8). Advocates of multi-­faith establishment argue for the extension of these privileges to Muslims (Modood 1994, 2003; Parekh 2000: 258–60). Thus in England, proposals have been made for the appointment of Muslim representatives to the House of Lords and for the extension of blasphemy laws to Islam;10 in Germany, there have been attempts to recognize Islam as a public corporation entitled to church tax; and in France, some have argued for the extension of the Alsatian regime to the rest of the country. Such proposals, in my view, fail to meet both the main clause and the free-­exercise proviso of the critical republican standard of impartiality. Establishment regimes infringe the religious neutrality of the public sphere in ways that dominate non-­religious citizens. While it is true that establishment is mostly symbolic and cannot be said to put anyone at a serious disadvantage (Barry 1995: 165), symbols do matter when the basic identification of citizens with their institutions is concerned. Just as Muslims are likely to be alienated by the distinctively Christian religiosity permeating public institutions, so non-­religious citizens are likely to be alienated by any official display of religiosity by institutions. Now, citizens’ interest in maintaining the secular character of the public sphere could be overridden, according to my first proviso, if a basic free-­exercise interest was at stake. No such interest, I submit, is protected by religious establishment. In a republic, religious citizens should be given ample opportunities to practise and express their faith, including in public, but they do not require privileged – material or symbolic – access to state institutions in order to do so. In these particular cases, then, critical republicanism would favour disestablishment (‘equalizing downwards’) rather than multi-­faith establishment (‘equalizing upwards’). It is important to note that none of this is meant to imply that the secular state should offer no recognition to religious groups. It should, but exclusively for the purpose of protecting citizens’ right to free exercise, not in order to entrench the public function of religion in its institutions. Let me illustrate this important distinction, which is often overlooked, with two examples. Public institutions such as hospitals and prisons should be secular in character, so as to respect the

140   C. Laborde freedom of conscience of their (religious and non-­religious) users, but they must offer facilities for religious worship for the patients and inmates who require them. Similarly, the state should not entrench the social, institutional or political role of religious groups by formally integrating them into its institutions. However, it should grant recognition and status to representatives of religious groups, so that religious needs whose fulfilment requires state authorization, organization and funding (such as the provision of adequate religious facilities in enclosed institutions, to use the previous example) can be identified and responded to. Thus, it is perfectly legitimate for state officials to consult and negotiate with Christian, Muslim, Jewish and other religious authorities about how best to organize worship. There is, therefore, a fundamental distinction to be made between establishment and the institutional guarantee of free exercise rights – a distinction overlooked both by laïcité advocates and their critics. The right to set up Muslim schools is the second demand I examine. Undeni­ ably, it would be unfair to refuse to extend to Muslims rights already granted to other religions. But are such rights legitimate in the first place? Can status quo arrangements be justified? Critical republicans are deeply sceptical about the permissibility, or at least the value, of separate religious education. It is one area, they believe, where the secularist case should be made most forcefully. French republicans, like American political liberals, are right to see educational policy as a privileged way of ‘creating citizens’ (Callan 1997; Macedo 2000), of inculcating those civic virtues of toleration, mutual respect and civility which guarantee the survival and stability of democratic arrangements. On this view, schools are not purely extensions of the family home (as they would be on a libertarian or communitarian account); they are appropriately public spaces which should be importantly ‘detached’ (Levinson 1999: 144) from parental and local control in virtue of their special role in ‘cultivating common democratic values among all children, regardless of their academic ability, class, race, religion or sex’ (Guttmann 1987: 116). Republicans and political liberals make the plausible assumption that these values can only be cultivated through sustained exposure to, and engagement with, ethical and social diversity. As a result, they tend, rightly, to be partial towards common, comprehensive, secular schools. The extent to which particular religious schools are willing and able to pursue appropriate civic educational goals greatly varies in practice, and it would be rash to generalize. Yet if, by religious school, we mean a school whose interactions with those outside the community of faith remain limited, and whose pedagogy, rules, structures of authority and large parts of the curriculum are designed to encourage children’s belief in a particular religion, it is undeniable that such a school ipso facto denies children exposure to ethical diversity and sufficient training in secular reasoning, and thus provides inferior preparation to citizenship than a common secular school.11 What should follow from this, in terms of public policy, is more contested. School reform in the real world is a particularly fraught endeavour. In itself, the abolition or regulation of religious (private or state-­funded) schools might do nothing to improve the quality of state schools or their appeal to religious

Secularism and fair treatment for Muslims   141 parents. On consequentialist grounds, therefore, many republicans and liberals have legitimately been cautious in their criticism of religious schools. Debate has, instead, centred on the question of school regulation (Wolf and Macedo 2004). A critical republican approach to those debates would stress three main points. First, as Harry Brighouse has recently argued, religious schools should be incorporated into state systems so that they can be made to adhere to democratic standards (including a ban on selection) and pursue civic goals (Brighouse 2005). The philosophical and principled case has recently been made by Ian MacMullen, who argues that while there is no justification for a blanket prohibition on religious schools, there are grounds for suspicion of arrangements that tend to reproduce the home environment of the child in the school, shielding students from ethical, cultural and social diversity. ‘Moderate religious schools’, whose curriculum, pedagogy and admissions policies foster respect of diversity and the cultivation of autonomy, may be allowed, provided they are tightly regulated. Second, and again following MacMullen, critical republicans will probably have to concede that the very grounds that make a religious school acceptable on civic grounds also make it qualify for public funding. While the French practice of public funding of private schools and the British granting of charity status to independent schools may appear gravely to undermine secular ideals, in fact it would be arbitrary and indefensible for religious schools to be available only and always to those who can afford private education. Thus MacMullen’s conclusion seems to me incontrovertible: on pain of inconsistency and unfairness, governments cannot justify the general policy of permitting the operation of a wide range of private religious schools while refusing to fund a similar education in the faith for those who cannot afford it. (MacMullen 2007: 5) In sum, the civic ideals of republicanism demand that, if religious schools are to be tolerated, they be tightly controlled and funded by the state. Whether the other ideals underpinning critical republicanism – autonomy and solidarity – warrant the prima facie toleration of even moderate religious schools is not a question I can pursue here.12 Third, and as importantly on the critical republican view, state schools must be reformed. Secular education should not be too burdensome for religious children. Secular education involves not the inculcation of a substantive humanist doctrine but, rather, reasoned agnosticism and exposure to the value of different worldviews, religious and non-­religious. Secular schools need not aim to eliminate or even to discourage religious belief: they are called secular because of the absence of a religious purpose, not because of any opposition to religion. Drawing on the distinction drawn earlier between secularism as an institutional doctrine and secularism as a doctrine of conscience, we can say, in line with the former, that state schools should neither impose school prayers nor dispense religious education, but that they should, in line with the latter, accept the wearing

142   C. Laborde of religious signs by pupils, accommodate their religious needs as far as possible (dietary requirements, religious holidays), and include knowledge about religions, including minority religions, in the curriculum.13 Within state schools, Muslim pupils must be respected not despite their being Muslim (as official laïcité suggest), but as Muslims. Such reforms would go a long way towards accommodating Muslim unease about state education. This would certainly be the case in France, where there is little demand for separate Muslim schools. Even in Britain, surveys have shown that while a majority of Muslims support Muslim schools, only a minority would actually want to send their children to them (Modood 2005: 160–1). This suggests that separate schooling is not as important to Muslims as, on the one hand, symbolic parity with other religions and, on the other, good (state) schools. This is in line with critical republican proposals, which suggest that in some cases symbolic parity can be best achieved by reducing existing privileges and providing good quality ‘common ground’ provision. In my third example – the demand for public subsidy for the building of mosques – parity would, by contrast, be best achieved by ‘equalizing upward’. From a French laïque perspective, this is an unexpected and almost unorthodox proposal. Article 2 of the 1905 Separation Law is often interpreted as strictly prohibiting the use of public funds for the building or maintenance of places of worship. Yet, as far as Muslim places of worship in France are concerned, a convincing case for allowing an exception to this general principle can be made. Recall that critical secularism advocates policies of separation between state and religion unless they infringe a basic religious free-­exercise right or entrench exorbitant majoritarian historical privileges. I shall argue that the demand that the state help Muslims build mosques meets both provisos – the ‘basic free exercise’ and the ‘contextual parity’ provisos. Arguably, the availability of suitable places of worship is central to the actual exercise of religious rights. Scholars agree that the establishment and maintenance of a worship place is part of the fundamental rights of religious freedom enjoyed by everyone living in Europe (Ferrari 2002: 13). While the first generation of Muslim migrants practised their religion within the confines of family homes or communal prayer rooms, the permanent settlement of Muslims on European soil has rendered the need for adequate, public religious facilities particularly acute (Ternisien 2002). Note that the qualification ‘adequate’ points to a sufficientarian, rather than strictly egalitarian, criterion of fairness (there is no point building a large mosque everywhere there is a cathedral), thus avoiding complicated issues of what substantive equality requires, and focusing on guaranteeing minimum standards of non-­domination. In the case of financially poor yet demographically significant religious groups such as Muslims in France, the legitimate interest they have in getting access to minimal religious facilities overrides the ‘libertarian’ principle of state abstention, and justifies that the state step in to guarantee actual conditions for free exercise. This is all the more legitimate, I would argue, because Catholics still benefit from pre-­1905 advantages: houses of worship built before 1905 continue to be state property and are maintained by local municipalities. Thus it is incor-

Secularism and fair treatment for Muslims   143 rect to speak of compensating Muslims for the fact that they did not benefit from state help before 1905: strictly speaking, Muslims should be compensated for present disadvantage, as public money is being channelled towards the maintenance of (mostly Catholic) churches. Helping Muslim build mosques, then, would rectify this exorbitant historical privilege while facilitating their exercise of religious rights. These are two necessary, and in this case sufficient, conditions for allowing an exception to the separationist clause of critical republicanism. They are sufficient because they are not overridden by a compelling state interest in keeping the public sphere free of religion: while hospitals and schools can be said to be relevantly public (in the sense that they concern the fair distribution of primary goods in non-­voluntary associations), town streets (where mosques are built) are not. A similar balance of considerations (public interest, importance of the particular religious freedom, contextual fairness) should be applied to most Muslim demands for religiously based exemptions from general rules – my fourth example. The issue has received extensive coverage in the so-­called multiculturalist literature in Anglophone political theory. One position can be identified with Brian Barry (and, as we saw, French official republicans). It posits that individuals are treated fairly when they are subjected to the same (legitimate) rules: liberals should not preoccupy themselves with uneven burdens or unequal outcomes. At the other end of the spectrum stand multiculturalist advocates of pragmatic even-­handedness and substantive equality, as epitomized by Bhikhu Parekh (and French tolerant republicans) (2000). They argue that a prima facie neutral rule can be indirectly discriminatory if it is unreasonably burdensome for members of some group. Critical republicans, for their part, occupy an intermediate position between those two theories, one which critically interrogates the nature of the general rules to which exemptions are sought. On the one hand, the problem with Barry’s approach is that it does not pay adequate attention to what counts as a legitimate rule. Barry discusses the legitimacy of general health-­and-safety regulations, to show that if the law is legitimate and furthers an important public interest, no religious exemption should be granted; and if exemptions are legitimate, this shows that the general law had no rationale in the first place. But he barely discusses the impact of what may be called customary ‘soft’ rules: rules which have neither been democratically discussed nor subjected to stringent public interest tests. For example, he argues that most customary ‘local norms’ (for example, norms of ‘public order’ and ‘decency’) do not raise any issue of (liberal, universal) justice (Barry 2001: 288). Thus it is not illegitimate for majoritarian conventions to be enforced, according to the adage ‘this is the way we do things here’. What Barry underestimates is how customary rules have implications for fairness when they unreasonably favour the preferences and values of the historical majority and infringe the basic religious rights of minorities.14 Thus it may be difficult to practise Islam in a public space created and occupied by non-­Muslim citizens. Consider cemeteries, which are perceived to be secular (in so far as Christian crosses, for example, are removed from common areas) and hence public and inclusive. Yet many

144   C. Laborde cemeteries are run following customary, unreflected pre-­Christian or Christian norms – for example, burial plots traditionally face East. The problem is that this relatively trivial customary rule makes Western cemeteries unsuited for Muslim burials, where the dead must imperatively be lying on their side and have their face turned towards Mecca (the South-­East). In such cases, it is not illegitimate that public funding be set aside to set up Muslim cemeteries, or at least burial spaces within existing cemeteries, allowing for the correct alignment of graves (Ternisien 2002: 116–25; Chaïb 2004; Bowen 2007: 43–8). Critical republicanism, therefore, is open to the questioning of customary rules when they have dominating effects, when, for example, they entrench the unreflected cultural norms of the majority while infringing the basic religious rights of minorities. On the other hand, multiculturalists such as Parekh tend to construe the concept of indirect discrimination far too broadly. A democratic law which serves a legitimate public purpose should not routinely be discarded as an arbitrary customary rule, and exemptions to it should not be allowed, even if it generates disproportionate burdens on members of minorities. I see no rationale, for example, for granting religious groups exemptions from the civil law of marriage and filiations, in so far as these typically enforce a restrictive interpretation of women’s rights (Klausen 2000: 64–78; Schachar 2000). (Of course, people may feel symbolic allegiance to religious or customary law, but this should complement and never override their civil rights). The application of gender equality provisions may be burdensome for a number of religiously-­minded people, but it would be absurd to argue that this ipso facto amounts to illegitimate indirect discrimination against them. In addition, some multiculturalists fail to recognize that the cultural permeation of the public sphere is only a problem if it has worrisome dominating effects – for example, if it unreasonably burdens the exercise of basic religious rights. Much will revolve, of course, around how to identify which basic religious requirements give rise to rights claims, who is entitled to make this judgement, and how to assess what an unreasonable burden is. On one interpretation, members of religious minorities should be allowed (or enabled) to do what members of the majority can already do unaided (for example, thanks to a Christian-­influenced calendar, celebrate major annual holidays and attend religious services once a week).15 One problem with this is that it artificially homogenizes the demands of religious ritual and overlooks the fact that some religions, such as Islam and Orthodox Judaism, are more ritual-­based than Christianity, and their adherents would see the performance of visible and regular rituals as basic to the practice of their faith. Fortunately, the great majority of Muslims do not intend to impose an unreasonable (maximalist or integralist) conception of the demands of their religion. Rather, as I have suggested above, they legitimately seek to remove the most blatant inequalities in basic opportunities for the practice of Islam in Western countries. They should thus welcome a critical republican approach to secularism, for three reasons. First, critical republicans endorse secularism as the best guarantee of equal citizenship. Many Muslim demands are demands of access to the equal status of citizenship: they are not demands for exorbitant, special rights. Yet, second, critical republican equality

Secularism and fair treatment for Muslims   145 is not the formal equality of official republicans or of liberal egalitarians like Barry; nor does it necessarily mandate state abstention from intervention in religious affairs. Critical republicans recognize that a secular state respects equal citizenship only if it does not dominate its religious citizens. Thus a critical republican state would ensure that Muslims (like other believers) are able to follow the basic tenets of their religion: it is committed to what I called basic free exercise. Third, and in contrast to both official and tolerant republicanism, critical republicanism rejects status quo neutrality and normatively scrutinizes existing church–state arrangements. Its commitment to what I called contextual parity follows from the thought that the status quo can dominate members of minority religions, and it prescribes how to treat religious minorities fairly in formally secular, but historically Christian-­dominated, societies. Interestingly, a version of critical republicanism appears to be endorsed by a substantial number (about a quarter) of the European Muslims interviewed by Jytte Klausen. She describes their position, which she calls ‘secular integrationism’, in the following way: the sentiment is that what applies to other faiths should also apply to Islam. Many secularists prefer the strict separation of church and state and, if this was already the established rule, their first preference is that the state provides no assistance to religion. But given that state neutrality is generally not an option, the secularists want equity. (Klausen 2000: 89) Where my critical republicanism differs from this ‘secular integrationism’ is in its belief that neutrality at times can and should be an option. In some cases, what Modood sceptically calls ‘equalizing downward’ is the right course of action, even if historically dominant religions lose out in the process. In fact, if republicans were actively to militate – as I have argued they should – against status quo arrangement regarding faith schools or Christian establishment, they would undermine the suspicion, held by members of minority religions, that Western secularism is no more than an ideology entrenching majority domination. In this chapter, I have shown how a critical republicanism can rescue secularism from the charge of status quo neutrality.

Notes   1 This is a slightly shortened version of Chapter 4 of Laborde (2008).   2 For details of their arguments, see Chapter 2 and 3 of Laborde (2008).   3 More precisely, houses of worship built before the Separation Law of 1905 continue to be state property and are maintained by local municipalities.   4 I will suggest below, however, that justificatory neutrality cannot be made to justify unreasonable burdens on the exercise of basic religious rights, and that in such cases we should adopt a weakly consequentialist conception of neutrality.   5 Michael McConnell suggests that instead of a ‘secular’ state we should aim for a ‘pluralist’ state which ‘makes everyone at home’: ‘to the Protestant it is a Protestant country, to the Catholic a Catholic country, to the Jew a Jewish country’. However,

146   C. Laborde he recognizes that pluralism ‘dilutes the concept of “citizen”, making it difficult to identify what being an “American” is all about’. See McConnell (2000: 103, 105).   6 Thanks to Saladin Meckled-­Garcia for pressing me on this point.   7 For the full argument to this effect, see ‘Tolerant Secularism and the Critique of Republican Neutrality’, Chapter 3 of Laborde (2008).   8 For a fuller discussion, which, however, does not in my view sufficiently spell out this reasonableness requirement, see Quong (2006: 60–2).   9 By basic free exercise rights, I mean rights which guarantee freedom of religious belief, worship (minimally, a right of peaceable religious assembly as well as prayer) and freedom to engage in the rites and rituals of one’s religion, provided these practices do not violate certain basic moral rights and their respect only impose reasonable burdens on other members of society. This is compatible with a mainstream understanding of what the practice of Islam in Europe requires. See Klausen (2005) and Ramadan (2003). However, it is not compatible with ‘integralist’ conceptions of the demands of religion. On integralism, see Nancy Rosenblum (2000). 10 The issue was partly settled by the Racial and Religious Hatred Act 2006, which extends legislation on ‘dangerous speech’ and does not entrench any form of multi-­ faith establishment. 11 See Ian MacMullen (2007). I have used MacMullen’s proposed definition of a religious school (2007: 31). Religious schools are also looked on sceptically by American liberal political theorists Gutmann, Callan and Levinson. For a (rare) argument made in the British context, see Humanist Philosophers’ Group (2001). 12 See Chapters 7 and 10 of Laborde (2008). 13 See, in France, the recommendations of Régis Debray (2002) and, in the United Kingdom, the Government’s Swann report, officially called ‘Education for All’, of 1985. 14 For parallel criticisms of Barry’s position, see John Horton (2003) and Quong (2006). 15 For an equal-­opportunity-based defense of religious exemptions, see Quong (2006).

Bibliography Ahdar, Rex and Leigh, Ian (2005) Religious Freedom in the Liberal State, Oxford: Oxford University Press. Audi, Robert (1989) ‘The separation of church and state and the obligations of citizenship’, Philosophy and Public Affairs, 18: 259–96. —— (2000) Religious Commitment and Secular Reason, Cambridge: Cambridge University Press. Barry, Brian (1995) Justice as Impartiality, Oxford: Clarendon Press. —— (2001) Culture and Equality, Cambridge: Polity. Bowen, John R. (2007) Why the French don’t like Headscarves. Islam, the State and Public Space, Princeton, NJ: Princeton University Press. Brighouse, Harry (2005) ‘Faith-­based schools in the United Kingdom: an unenthusiastic defence of a slightly reformed status quo’, in Roy Gardner, Jo Cairns and Denis Lawton (eds) Faith Schools. Consensus or Conflict? London: Routledge. Callan, Eamonn (1997) Creating Citizens. Political Education and Liberal Democracy, Oxford: Oxford University Press. Chaïb, Yassine (2004) ‘Le rite funéraire de l’intégration’, in Yves-­Charles Zarka (ed.) L’Islam en France. Hors série de la revue Cités, Paris: Presses Universitaires de France. Debray, Régis (2002) L’enseignement du fait religieux dans l’école laïque, Paris: Odile Jacob.

Secularism and fair treatment for Muslims   147 Ferrari, Silvio (2002), ‘Islam and the western European model of church and state relations’, in Wasif Shadid and Sjoerd van Konigsveld (eds) Religious Freedoms and the Neutrality of the State: the Position of Islam in the European Union, Leuven: Peeters. Greenawalt, Kent (1988) Religious Convictions and Political Choice, Oxford: Oxford University Press; Gutmann, Amy (1987) Democratic Education, Princeton, NJ: Princeton University Press. Habermas, Jürgen (2006) ‘Religion in the public sphere’, European Journal of Philosophy, 14: 1–25. Horton, John (2003) ‘Liberalism and multiculturalism. Once more unto the breach’, in Bruce Haddock and Peter Stuch (eds) Multiculturalism, Identity and Rights, London: Routledge. Humanist Philosophers’ Group (2001) Religious Schools: the Case Against, London: British Humanist Association. Jones, Peter (1994) ‘Bearing the consequences of belief’, Journal of Political Philosophy, 2: 24–43. Klausen, Jytte (2005) The Islamic Challenge. Politics and Religion in Western Europe, Oxford: Oxford University Press. Kymlicka, Will (1995) Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford: Oxford University Press. Laborde, Cécile (2008) Critical Republicanism. The Hijab Controversy in Political Philosophy, Oxford: Oxford University Press. Levinson, Meira (1999) The Demands of Liberal Education, Oxford Oxford University Press. MacMullen, Ian (2007) Faith in Schools? Autonomy, Citizenship, and Religious Education in the Liberal State, Princeton, NJ: Princeton University Press. McConnell, Michael (2000) ‘Believers as equal citizens’ in Nancy L. Rosemblum (ed.) Obligations of Citizenship and Demands of Faith. Religious Accommodation in Pluralist Democracies, Princeton, NJ: Princeton University Press. Macedo, Stephen (2000) Diversity and Distrust. Civic Education in a Multicultural Democracy, Cambridge: Harvard University Press. Modood, Tariq (1994) ‘Establishment, multiculturalism and British citizenship’, The Political Quarterly, 65: 53–73. —— (ed.) (1997) Church, State and Religious Minorities, London: Policy Studies Institute. —— (2003) Multiculturalism, Muslims and the British State, London: British Association for the Study of Religion. —— (2005) Multicultural Politics. Racism, Ethnicity and Muslims in Britain, Edinburgh: Edinburgh University Press. Parekh, Bhikhu (2000) Rethinking Multiculturalism. Cultural Diversity and Political Theory, Basingstoke: Macmillan. Phillips, Anne (1997) ‘In defense of secularism’, in Tariq Modood (ed.) Church, State and Religious Minorities, London: Policy Studies Institute. —— (2006) ‘ “Really” equal: Opportunities and autonomy’, Journal of Political Philosophy, 14: 18–32. Quong, Jonathan (2006) ‘Cultural exemptions, expensive tastes and equal opportunities’, Journal of Applied Philosophy, 23: 53–71. Ramadan, Tariq (2003) Western Muslims and the Future of Islam, Oxford: Oxford University Press. Rawls, John (1997) ‘The idea of public reason re-­visited’, The University of Chicago Law Review, 64: 765–807.

148   C. Laborde Rosenblum, Nancy (2000) ‘Introduction. Pluralism, integralism, and political theories of religious accommodation’, in Nancy Rosemblum (ed.) Obligations of Citizenship and Demands of Faith, Princeton, NJ: Princeton University Press. Shachar, Ayelet (2000) ‘On citizenship and multicultural vulnerability’, Political Theory, 28: 64–78. Sunstein, Cass R. (1993) The Partial Constitution, Cambridge, MA: Harvard University Press. Taylor, Charles (1998) ‘Modes of secularism’, in Rajeev Bhargava (ed.) Secularism and its Critics, Delhi: Oxford University Press. Ternisien, Xavier (2002) La France des mosquées, Paris: Albin Michel. Walker, Graham (2000) ‘Illusory Pluralism, Inexorable Establishment’ in Nancy L. Rosemblum (ed.) Obligations of Citizenship and Demands of Faith. Religious Accommodation in Pluralist Democracies, Princeton, NJ: Princeton University Press. Weithman, Paul J. (2002) Religion and the Obligations of Citizenship, Cambridge: Cambridge University Press. Wolf, Patrick J. and Macedo, Stephen (eds) (2004) Educating Citizens. International Perspectives on Civic Values and School Choice, Washington, DC: Brookings Institution Press.

Part III

Multiculturalism, state sovereignty and imperial past

8 Multiculturalism and the concept of the state Peter M.R. Stirk

Multiculturalism, understood as the assertion of collective rights of minority cultures, has been seen as a response to the tendency of the nation-­state to impose a homogenous culture (Kymlicka 2001: 23–7). Kymlicka identifies this as the core assumption of a third stage of the debate on multiculturalism. According to Kymlicka, the first stage, which took place before 1989, subsumed the debate on minority rights within a wider debate between liberals and communitarians. Liberals by and large were presumed to welcome the liberation of individuals from the constraints associated with ascribed membership of minority cultures. Communitarians were presumed to be more sympathetic to minority cultures on the grounds of their general distrust of the liberal conception of the individual. In this debate it was also assumed that minority cultures themselves shared this antipathy to liberalism. The second stage, which Kymlicka discusses under the heading ‘Minority Rights Within a Liberal Framework’, abandoned the assumption that minority cultures are necessarily hostile to liberalism and many of the wider social forces associated with it. It also abandoned the presumed antipathy of liberalism and the liberal state to minority cultures. The debate, according to Kymlicka, focused on why, given these assumptions, minorities might still want minority rights, and what rights should be acknowledged. While welcoming the second stage as a marked improvement on the first stage, Kymlicka claims that it took place under the erroneous supposition of the neutrality of the modern liberal state towards ethno-­cultural diversity. The third stage is defined primarily in terms of its challenge to this supposed neutrality and especially to the assumption that liberal states treat culture in the same way as religion – i.e. as something which people should be free to pursue in their private life, but which is not the concern of the state (so long as they respect the rights of others). (2001: 23) Kymlicka’s argument is essentially an argument about the historical record of the state. He does not dispute that liberal states, primarily the European and North American states, came to acknowledge and tolerate religious diversity, but claims that this toleration cannot be taken as evidence of the general character of

152   P.M.R. Stirk these states – a point on which Bhikhu Parekh agrees (Parekh 2006: 189). According to Kymlicka, other forms of diversity, especially the use of minority languages, were suppressed in the name of the nation-­state and in association with the ethnic hegemony of the bearers of the majority culture throughout the territory of the state (Kymlicka 2001: 24 and 1995: 3–4,111). Whether, as Jürgen Habermas has argued, the link between the modern liberal state and the process of nation-­building has been a contingent one, there is much to be said for Kymlicka’s argument about the historical record of the nation-­state (Habermas 1996: 491–515). The basic story is a familiar one. Beginning with the French Revolution, the state enforced a national language and a common identity through the instruments of the army and the schoolroom, turning peasants into Frenchmen (Weber 1976). In the French case the resistance of minority cultures was suppressed, brutally during the Revolution itself. As other states imitated French practices, sometimes in response to the challenge of Revolutionary and Napoleonic armies and ideology, sometimes for other reasons and at later stages, they encountered mixed success, provoking aspirations for independence. Newly independent states which, as in the case of the successor states to the multinational states of nineteenth century central and eastern Europe, were themselves more like mini-­empires, repeated the pattern of suppressing internal diversity (Pearson 1983). There is even an argument, though it is one that Kymlicka rejects, that the emergence of democratic forms of government made these states even more prone to the pursuit of homogeneity than their authoritarian predecessors (2001: 26–7). In its extreme form this has been put forward by Carl Schmitt (1988: 9–15), but the basic model is more widespread and has been espoused recently by figures as diverse as the German constitutional theorist Josef Isensee and the former Chancellor Helmut Schmidt. In Isensee’s words, ‘Autocratic systems can satisfy themselves with the legal [staatsrechtlichen] definition of the nation by citizenship, because the unity is guaranteed by authoritarian compulsion [obrigkeitlichen Zwang]’ (2004: 65). Democracies required (and continue to require) something more. They required social and cultural homogeneity in a way that authoritarian states did not. This story is, of course, not the whole story. Recognition of minority rights was enshrined in the Treaties of Osnabrück and Münster that established the Peace of Westphalia in 1648, and is widely taken as symbolizing the emergence of the state, albeit obviously not the modern nation-­state. The Great Powers of the nineteenth century imposed clauses protecting minorities on the emergent states of the Balkans and the declining Ottoman Empire, though largely for protection of Christian minorities (Krasner 1999: 73–96). In imposing such protections on the fledgling Balkan states and the decaying Ottoman Empire, however, it could be argued that they thereby recognized the problem which they refused to admit within their own territories. It could also be argued that this protection of minorities largely reflects Kymlicka’s model of liberal states that tolerated religious diversity, and merely wished to see such toleration extended elsewhere, while refusing to recognize other forms of cultural diversity. It is true that some

Multiculturism and the concept of the state   153 recognition of the difficulties created by the imposition of homogenous cultures was expressed in the system of minority treaties that was established at the end of the First World War. Here too, however, the limits of this recognition are also striking. Indeed, the refusal of the victors of the First World War to institute a universal system of minority rights was one of the arguments against the system of minority treaties (Fink 2000: 390). It has even been argued that fear of the universalization of the protection of minorities was behind the ‘strange triumph of human rights’ in the wake of the Second World War (Mazower 2004). Even within the system of minority treaties itself, moreover, there was evidence of the reluctance to accord recognition to minorities. Strictly speaking, rights accorded recognition were those of ‘nationals belonging to racial, religious or linguistic minorities’, not rights of minorities per se (Fink 2000: 389). Similarly, when Clemenceau insisted upon religious guarantees for Jews in Poland in the light of the hostility they had historically suffered, he reassured Polish leaders that such guarantees did not ‘create any obstacle to the unity of Poland. They do not constitute any recognition of the Jews as a separate political community within the Polish State’ (Gilbert 1999: 392). Subsequent concessions to the status of minorities, most notably in the wake of the end of the Cold War within the framework of the Conference on Security and Cooperation in Europe, seemed to mark a departure from this pattern of erratic and partial exceptions practised by powerful states. Yet the limits to the concessions were revealed in the reservations of the first High Commissioner on National Minorities when he proclaimed that ‘The High Commissioner is not an instrument for the protection of minorities or a kind of ombudsman who acts in their name’ (van der Stoel 1994: 632). It appears then that the historical record exhibits more than enough of the tension between the state and ethno-­cultural diversity which Kymlicka presents as the problem. Even if we take into account those exceptions in which minorities were granted some recognition, the nature of that recognition, often restricted to religious minorities and imposed by powerful states upon weak ones, and the hesitation and qualifications accompanying the recognition, can easily be read as confirmation of Kymlicka’s thesis. If we add in, though Kymlicka does not, the link between the emergence of the democratic state and the pressure for homogeneity the impression of relentless antipathy to cultural minorities becomes more marked.

The analogy with the state In this account, then, the state enters the story of Europe’s troubled relationship with its minorities determined, as it were, to play the villain. Yet the concept of the state (or more typically analogies with the concept of the state) has been cited in the defence of minorities against the Leviathan, not least by Kymlicka himself. These defences are, of course, typically made only with respect to some minorities, such as the indigenous First Nations of North America, though there is some tendency to extend such arguments to cover other minorities. I make this point about analogies with the state not in order to challenge Kymlicka’s account

154   P.M.R. Stirk of the historical record of the modern state but to suggest that analogies between states and minorities, including the territorial concentration of minorities, their treaty-­making capacity, their possession of political institutions, and their right to self-­determination, have a long and complex pedigree. It will also be suggested below that in some respects the antipathy between the state and cultural minorities is more deep-­rooted than Kymlicka suggests. In some respects this antipathy exists not because the state takes the form of the nation-­state or the democratic state, but because it is what some German constitutional theorists referred to as the state as such (Krüger 1964). They intended by that characterization to indicate those qualities which the state must possess, irrespective of its constitutional form or specific purpose, if it is to qualify as a state at all. It nevertheless remains the case that there is a long record of defences of indigenous peoples and cultural minorities which rely on analogies between states and those minorities or peoples. Such defences continue to be made today, by Kymlicka and many others. It will be suggested below that there are attractive reasons for these analogies. It will even be suggested that in some respects defences of indigenous peoples against aggressive European states and their intellectual advocates fed into the development of stronger forms of the concept of the state, involving new claims about the state’s control over people and territory, only for the stronger form of the concept of the state to be invoked, by analogy, on behalf of minorities. It will also be suggested that, attractive though these analogies may seem and will continue to seem, they present problems for defenders of minorities. Trying to defend minorities against the Leviathan with the weapons of the Leviathan may not constitute the best defence. In these defences, the concept of the state has appeared in the guise of the standard account of the so-­called Westphalian state. Each of the traditional elements of the state identified by Georg Jellinek (1929: 394–434), its territory (Staatsgebiet), the power of the state (Staatsgewalt) and the state-­people (Staatsvolk), has been turned against the state itself. The claim has been that at least some minorities possess analogous characteristics to those said to be definitive of states, and therefore should have powers to protect and dispose of their territory, should have powers of self-­government and should have rights over the people in much the same way that states are presumed to have such powers and rights. The logical end point of such claims is, of course, the classic assertion of the supposed right of each nation to its own state. Yet claims of this kind are also invoked by those who do not subscribe to Mazzini’s implausible dream of a world in which all the ‘distinct groups or nuclei upon the face of the earth’ had separated out, and between which ‘harmony and fraternity’ prevailed (Mazzini 1867: 275–7). They are invoked precisely by those who accept that Mazzini’s dream was a delusion and who seek to deal with the reality of a world of states that can never be modelled on all the ‘distinct groups or nuclei upon the face of the earth’. It is notable here that there is some agreement between otherwise opposed theorists of multiculturalism that analogies with the sate can be mobilized in defence of minorities. Thus Bhikhu Parekh has argued that having learned pain-

Multiculturism and the concept of the state   155 fully of the need to respect religious differences the state must now concede the same respect to other groups, though he has acknowledged that this will prove more difficult ‘because, unlike religious groups, territorially concentrated national minorities compete with the state on its own terrain and demand a more or less equal share in the exercise of its jurisdictional authority over their territories’ (Parekh 2006: 189). Territory also plays a central role in the argument of Kymlicka, first of all in the way that he privileges ‘homeland minorities’ or ‘national minorities’ as opposed to immigrant minorities, for it is in part territorial concentration that justifies this privilege. Arguing again, in part, from the historical record, Kymlicka notes and supports the pressure to integrate in the case of immigrant minorities, albeit with suitable concessions and support to ease their integration. These minorities, he wrote, ‘lack the sort of territorial concentration or historical institutions needed to support a vibrant societal culture’, while the national minorities ‘already possessed a societal culture – i.e. a full range of institutions operating in their own language – when they were incorporated into the larger state’ (2001: 54).

Minorities and the ‘historical institutions’ of states Before considering the ramifications of this invocation of territoriality it is worth noting the significance of the reference to ‘historical institutions’, for this has been used to discriminate between the putative claims of minorities before. It was indeed a standard argument in assessing the claims to statehood of European minorities within the empires of Central and Eastern Europe. Karl Marx merely expressed the prejudice of the age when he favoured the ‘historic nations’, that is, those who had at some point possessed a full range of institutions within a given territory and were seen as potentially worthy of independence, while those who had not were dismissed, often in fairly contemptuous terms. Few would now put it in the terms of Mill’s dismissal of the ‘Breton, or a Basque of French Navarre’ as a ‘half-­savage relic of past times, revolving in his own little mental orbit’ and destined to be absorbed into the French nation; indeed, Mill’s dismissal is more likely to be quoted, as it is by Parekh, as an example of the ‘moral monism’ which sees diversity ‘as expression of moral pathology’ (Parekh 2006: 46–9). Kymlicka also cites Mill’s dismissal of the Breton and Basque only in order to condemn it as an illustration of a failed cosmopolitanism (2001: 205–6). Yet Kymlicka’s own invocation of vibrancy and appeal to historic institutions follows the same logic, albeit stripped of the harshness that now strikes us in the words of Mill and Marx. It appears in fact that a ‘vibrant societal culture’ can evolve and persist even under adverse conditions but still be deemed to fail to qualify the group as a ‘national minority’ in Kymlicka’s terms. In his argument, territory and historic institutions turn out to be more central than culture. Thus, Kymlicka notes what he describes as the problematic case of African-­Americans. He ascribes to them a full range of institutions, albeit a range which is clearly less extensive than that entailed in statehood. Yet he pushes them away from the ‘national minority’ end

156   P.M.R. Stirk of the spectrum, partly on the grounds of the lack of a separate language but also because ‘[t]heir subsequent institutional separateness, therefore, was not a way of maintaining an existing culture on a historic homeland, but was simply one component in a larger system of racial oppression’ (2001: 182). Kymlicka is not alone in emphasizing the importance of the absence of territory even in cases of vibrant societal cultures. Thus, Hannah Arendt was forced to confront the problems presented by the persistence of a vibrant Jewish culture amidst the diaspora. Arendt was highly critical of the ‘tribal nationalism’ whose ‘concept of nationhood as something independent of state and territory’ she regarded as extremely dangerous (1967: 45). Yet she also noted that ‘the Jews were the perfect model of a nation without a state and without visible institutions’. They appeared to be ‘proof that no territory was needed to constitute a nationality’ (1967: 239–40). Arendt, of course, was acutely aware of the vulnerability to which their lack of territory and institutions exposed them. It was a vulnerability to which she never found an adequate answer, though it is notable that she supported the formation of a Jewish army in the Second World War in order to provide Jews with a visible institution they could recognize as their own (2000: 165–8). Territory has also been important in cases where something much less than independent statehood was envisaged. This was apparent on the eve of the age of nationalism. Thus, according to Ludwig Gumplowicz, on 7 September 1790 a Serb congress demanded from Emperor Leopold II ‘the delimitation of a specific territory on which they could constitute themselves as a moral person’ (1879: 31).

The territorial concentration of minorities and rights over territory What is also important are the supposed consequences that flow from territorial concentration of the sort that makes a ‘vibrant societal culture’ conceivable. In Kymlicka’s account, the consequences include rights to restrict immigration and settlement. In arguing that certain minorities should be accorded such rights he invokes the misuse of a right to freedom of movement as a deliberate device to overwhelm minorities. Freedom of movement has been used to justify an influx of settlers from the majority culture into areas inhabited by minorities, effectively swamping the minority. In defence of minorities against such outcomes Kymlicka draws an analogy between the rights asserted by modern states, to exclude potential immigrants and restrict settlement, and those which he says ought to be acknowledged as the rights of minorities. Ironically, the rights asserted by modern states, and claimed by Kymlicka on behalf of certain minorities, were consolidated in part as a reaction against the doctrines and practices of early modern European states. The intellectual advocates of these states asserted what Kymlicka notes that no Western democracy ‘has accepted’, namely, ‘that transnational mobility is a basic human right’ (2001: 74). Indeed, the assertion of such a right was commonplace at the time of the emergence of the early modern state. From Francisco di Vitoria through Hugo Grotius and John Locke to Emer de Vattel, such a right was asserted as a

Multiculturism and the concept of the state   157 law of nature and applied against those peoples who now constitute some of the indigenous minorities on whose behalf Kymlicka asserts a right to exclude immigration and settlement. It has been argued that these natural rights were used as battering rams to justify the seizure of the lands of these peoples, and indeed their conquest (Tuck 1999). The assertion of natural rights to ‘visit’ other parts of the world, to trade, to preach though not to convert at the point of a sword, to appropriate uncultivated land, were all asserted on behalf of European adventurers and colonizers. When those rights were resisted, especially if by force, Europeans claimed the further right to defend themselves and their rights. Self-­defence, of course, turned out to be little different from conquest. It was partly in revulsion against the reality of European encounters with the peoples of the Americas, and to a lesser extent the Far East, that other political theorists invoked the right to prohibit immigration and restrict settlement and trade. Thus Pufendorf claimed that: lt is not necessary that all things which are unoccupied . . . should be divided among individuals and pass into private hands. Therefore, if anything be discovered . . . that is still without an owner, it should not at once be regarded as unoccupied, and free to be taken by any man as his own, but it will be understood to belong to the whole people. (Pufendorf 1934: 571). What laws should be applied to occupancy was a matter for the people as a whole. Occupancy by individuals was, moreover, subject to the sovereign’s right of eminent domain, according to which the necessity of the state overrode individual possession (Pufendorf 1934: 1285–6). Similarly, whilst humanity might recommend admitting immigrants, ‘every state may decide after its own custom what privileges should be granted in such a situation’ (Pufendorf 1934: 366). With explicit reference to the abuse of a supposed right to ‘visit’ other peoples, Kant noted that: China and Japan (Nippon), who have had experience with such guests, have wisely refused them entry, the former permitting their approach to their shores but not their entry, while the latter permit this approach to only one European people, the Dutch, but treat them like prisoners, not allowing them any communication with the inhabitants. (Kant 1963: 104–5) Thus, on the eve of the era of nationalism and homogenization but after European states had learned the lesson of the imperative of religious toleration, we see the emergence of a conception of the state with the rights which Kymlicka wishes to ascribe to territorially concentrated minorities. It is, in part at least, the  nature of the state as such, and not purely the modern nation-­state which was  seen to entail such rights over territory and persons. Those state rights were  asserted, in some cases on behalf of those peoples who were to become

158   P.M.R. Stirk minorities, as a reaction to the liberal principle of mobility which had been deployed on a transnational basis as part of the law of nature. Statehood, as understood by European political theorists, was ascribed to peoples with different traditions and understandings in order to defend them from the claims and depredations of traders, settlers and conquerors from early modern European states.

Arguments for minorities as political communities It was this ascription that forms the basis of a second set of arguments about territorially concentrated minorities. The first set of arguments, including the right over immigration and land, rests primarily on the empirical fact of the existence of a territorially concentrated people. The second set of arguments, with equally deep historical roots, is still reflected in Kymlicka’s reference to the existence of a ‘full range of institutions’. It includes the arguments that peoples encountered by the Europeans had a full range of institutions – that is, that these communities possessed something akin to state power (Staatsgewalt) and that this fact was sometimes recognized in practice by European states which effectively acknowledged that these communities were sovereign bodies. Arguments of this nature were used in order to assess the political status of the peoples the Europeans encountered in the Americas. Thus Vitoria concluded, contrary to some of his contemporaries, that ‘these barbarians’, as he called them, had ‘true dominion, public and private’ on the grounds that ‘they have some order (ordo) in their affairs: they have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce . . . They likewise have a form (species) of religion . . .’ (di Vitoria 1991: 250). This is clearly not the modern state, with its emphasis on territorial delimitation and sovereignty, but it is an assertion of the equality of political status between Spaniards and Indians, and it is an equality based on recognizably equivalent institutions. It is also the same argument that continues to be deployed in modern jurisprudence and by indigenous peoples themselves. Thus James Youngblood Henderson was able to quote a Canadian Supreme Court judgement that [I]t is fair to say that prior to the first contact with the Europeans, the Native people of North America were independent nations, occupying and controlling their own territories, with a distinctive culture and their own practices, traditions and customs. (2002: 424) A similar strategy, one referring to the status of peoples as political communities, lies behind James Tully’s attack on the standard contractualist account of the origins and justification of states. Tully argues that the standard account neglects the ‘increasingly common situation of a constitutional dialogue of people who are already constituted in various ways’, adding that ‘Indeed . . . modern constitutionalism was designed to efface such “ancient” constitutional

Multiculturism and the concept of the state   159 situations’ (1995: 55). The point of Tully’s strategy is to undermine constitutional arguments that set out from some minimalist understanding of individuals equipped with will and reason but stripped of any cultural identity and, crucially, to define those who enter a constitutional dialogue as already constituted, in some way. Similarly, Parekh distinguishes between ‘derivative collective rights’, i.e. those originally held by individuals and handed over to the collective entity, and ‘primary collective rights’, which cannot be so understood. He adds, ‘The rights of medieval towns to self-­government . . . the right of Christians and Jews to self-­government under the Ottoman empire, and a tribe’s right to its sacred sites . . . fall under this category’ (2006: 213). Quite whether Parekh’s three examples are examples of the same phenomenon is questionable. At least according to Gierke, medieval self-­government was based on the idea of a fellowship defined as ‘every body subject to German law and based on the free association of its members’ (1990: 6). That points away from the distinction between essentially voluntaristic communities and the idea that individuals meet as members of ‘already constituted’ communities possessing ‘primary collective rights’. More important, however, is the fact that the self­government of medieval towns or of Christians and Jews under the Ottoman Empire entailed far less extensive and exclusive powers than those exercised by the modern state. The difficulty is that on the one hand the more Kymlicka’s national minorities can be assimilated to ‘already constituted’ communities and the more those communities can be assimilated to the kind of state that developed in Europe, the easier it will seem to agree that they ought to be accorded the same extensive rights as those claimed by the modern state. On the other hand, however, there is a higher risk that the asserted assimilation will cease to look plausible. The gap between the minority, imperilled by the state and its majority culture, and the state, equipped with its extensive rights, will simply seem too large for the former to appear as a recognizably similar entity to the latter. If disposal over territory is seen as definitive of the state, the fact that minorities do not exercise that power draws attention to the difference between their status and that of the state. Indeed, even where it is accepted that the national minority, including its laws and customs, deserves some form of recognition, its deviation from the powers of disposal over territory claimed by the European state can be turned against it. This does not require any hostile intent, but can follow precisely in the honest attempt to recognize the laws and customs of the minority. Thus, courts can and have insisted that land held by customary law claims is held for purposes specified by custom, and under the obligations that custom imposes (Levy 2000a: 189–90). No such restraints exists upon the claims over land exercised by the modern state or the powers over land entailed in the property law that modern states developed. In some of these cases, where we may well be able to recognize ethnic or cultural minorities, whether they can even be said to be ‘already constituted’ is another matter. In part, the potential weakness of their position arises from the historical development of the world of states and modern understandings of ethnic and cultural identity. As van Dyke has suggested, ethnic communities

160   P.M.R. Stirk are unlike corporations in that they are not the creatures of law or the state. They come into existence – as nations sometimes do – independently of the state, raising the question of whether they may have moral rights and a capacity to advance moral claims regardless of their legal status. (van Dyke 1977: 346) Tully also recognizes this problem for he wants to extend the kinds of rights he associates with politically constituted communities to those that lack their own political institutions, arguing that here the ‘conventions of mutual recognition, consent and continuity can be adapted to these complex cases’ (1995: 166). Tully effectively concedes for some cases what van Dyke presents as a general problem, namely that some minority communities have never had or do not now have the political institutions that would allow them to count as ‘already constituted’. This is inevitably the case in a world of states for the state is the modern mechanism that ‘constitutes’ people (Yeatman 2004). Kymlicka, it might be argued, has solved the problem by accepting that some minorities do not qualify as ‘already constituted’ and will never qualify, prescribing integration for them, while reserving the status and possibility of qualifying for his ‘homeland minorities’. Yet it has been argued that the problem resurfaces in his defence of ‘homeland minorities’. This issue has been forcefully pursued by Patrick Macklem and, following him, by Richard Spaulding. As the latter puts, it the question is, ‘are Kymlicka’s national minorities really political communities?’ (1997: 49). Spaulding’s conclusion is that as they are defined in Kymlicka’s early work, they do not qualify as political communities. A similar objection was raised by Darnley when he wrote that ‘[b]y assuming that the aboriginals are members of the same political community as other, nonaboriginal, citizens, differing only in terms of cultural membership, Kymlicka has framed the issue improperly from the outset’ (1991: 182). In other words, Kymlicka failed to defend the independent political status of these communities. Even when Kymlicka had provided for a ‘form of political citizenship’, after Multicultural Citizenship, Spaulding still found Kymlicka’s equality argument unpersuasive as a case for viewing his  national minorities as political communities. His point is that ‘Kymlicka’s modified equality argument justifies autonomy for national minorities in the manner and form by which power is exercised, but the power exercised by minority institutions is assumed to be vested in the state’ (1997: 64). In other words, the autonomy of these minorities is a delegated right granted by the sovereign state.

Sovereignty and jurisdiction Yet it is, as Macklem and Spaulding emphasize, exactly this that leaders of North American peoples dispute. As Macklem puts it, ‘The “special political rights and responsibilities” sought by Aboriginal people are jurisdictional in nature and involve elements of sovereignty and governance over individuals,

Multiculturism and the concept of the state   161 groups, and territory’ (1993: 1354–5). That jurisdiction is at the heart of the modern sovereign state, and is closely tied to the principle of territoriality, has been argued by John Herz who traced the point back to Leibniz. In Herz’s words ‘Sovereign units must know, and know in some detail, where their jurisdictions end and those of other units begin’ (Herz 1959: 59). In one respect at least Kymlicka has in fact acknowledged the significance of this challenge to the state’s monopoly of jurisdiction. At first he provides a strong assertion of the challenge in the form of a rhetorical question: ‘Why should Indians agree to have their internal decisions reviewed by a body which is, in effect, the court of their conquerors?’ Yet the boldness and bluntness of the challenge is quickly watered down by turning the issue into one of ‘trust’ and invoking the opposition of human rights movements to ‘unlimited sovereignty’ (2001: 85–8). The claim to exercise sovereign jurisdiction, however limited it might be, is a potential basis for the assertion of equal standing of the ‘minority’, especially when it does not want to be deemed a minority, vis-­à-vis the state. By the same token, the state has proved reluctant to relinquish its territorially defined jurisdiction. Hence in the United States, as Jacob T. Levy has pointed out, the ‘jurisdiction of Indian law is held to include only Indians, as if that law were personal customary law’ (2000b: 309). Territorial jurisdiction was not acknowledged. This has created significant practical problems, which Levy illustrates by quoting the US Attorney General on the consequences of having to refer crimes committed against Indians by non-­Indians to distant federal courts: ‘misdemeanour crime by non-­ Indians against Indians is perceived as being committed with immunity’ (2000: 309).

Sovereignty and treaty-­making powers Sovereignty had been recognized, moreover, as a key issue by those who turned the peoples concerned into minorities in the first place. The title to sovereignty asserted by European states and colonists was most simply justified by the manifest fiction that what they asserted sovereignty over was terra nullius, or that the peoples they subjugated were not sovereign peoples in the first place. The practice of European states did not always coincide with these juridical doctrines. To the great displeasure of some jurists, European powers and colonists were prone to signing treaties with peoples from the Americas through to the Far East, and the capacity to sign treaties, to act as a subject in international law, has often been taken as evidence of (sovereign) statehood. Nineteenth century jurists were well aware of the potential consequences of this fact and doctrine. One leading nineteenth century authority sought to mitigate the problem by the following argument: To whatever point natives may have advanced, the principle must hold that a cession by them, made in accordance with their ruling customs, may confer a moral title to such property or power as they understand while they cede it, but that no form of cession by them can confer any title to what they

162   P.M.R. Stirk do not understand. Hence, while the sovereignty of a European state over an uncivilised region must find its justification, as it easily will, not in treaties with natives, but in the nature of the case and compliance with conditions recognised by the civilised world, it is possible that a right of property may be derived from treaties with natives, and this before any European sovereignty has begun to exist over the spot. (Westlake 1894: 145) The self-­serving nature of Westlake’s argument is transparent; the peoples concerned were to be accorded sufficient status to grant title to land to Europeans, but not sufficient to warrant recognition of their sovereignty. It is notable, though, that Antony Anghie, who is highly critical of Westlake, quotes a variation of this argument from Oppenheim which goes a little further: cession of territory made to a member of the family of nations by a State as yet outside that family is real cession and a concern of the Law of Nations, since such State becomes through the treaty of cession in some respects a member of that family. (2005: 104) Equally important is Anghie’s gloss on this quotation: The sovereignty acquired by the non-­European state, then, was only tenuously connected with its own identity; rather, it was artificially created in accordance with the interests and world view of Europe; it emerged and was inextricably linked with a complex of practices which were explicitly directed toward the exploitation and domination of non-­European peoples. (Anghie 2005: 104) That is true, but so too is the fact that acceptance of treaty-­making power by non-­European peoples was not easy to separate from recognition of their sovereignty, hence Westlake’s tortured argument. It may be that such ‘sovereignty’ was ‘tenuously connected’ with their identity, but in a world of states where treaty-­making capacity was associated with statehood and sovereignty, the signing of treaties by such peoples enhances their status to the point where it is difficult to distinguish between them and other peoples. Sovereignty, at least in its modern European form, may, the same as European forms of property law, have been alien, to a greater or lesser extent, but as soon as these peoples were recognized as being capable of acting as sovereigns and property owners who could enter into contracts with Europeans, it took, and still takes, increasingly convoluted arguments to deny that they could act in these capacities with the same entitlements as Europeans. It is precisely because of such implications that these treaties appeal to James Tully and many other advocates of the rights of such peoples (1995: 118–24). The logical deduction from this treaty-­making capacity is the one that alarmed nineteenth century European jurists: namely,

Multiculturism and the concept of the state   163 that these communities had the same moral status as sovereign European states. The logical deduction is that they were themselves sovereign states. Reference to treaties in defence of minorities has other attractions. Treaties provide a clear specification of the rights of the signatories which all of them are bound to respect. Yet just as the general analogy with the concept of the state can prove to be a false friend, so too can treaties. The problems, as Macklem has argued, with basing rights on treaties go back to the inconsistencies in the practices of the Europeans. First there is the problem that ‘a treaty based defence is only as powerful as the treaty upon which it rests’ (1995–6: 195). Hence the rights will resemble a patchwork of different hues determined by the particulars of individual treaties. Second, not all non-­European peoples were parties to treaties of any description, even if far more were than Westlake would have liked. Faced with this problem, Kymlicka responds by arguing that if ‘incorporation was involuntary (e.g. colonization), then the national minority might have a claim of self-­determination under international law which can be exercised by renegotiating the terms of federation so as to make it a more voluntary federation’ (1995: 117). Here, the fact of recognition and rights embodied in treaties is replaced by a counterfactual world in which the number, extent and nature of those who supposedly ought to be recognized is indeterminate, threatening to create the destabilization that Kymlicka recognizes as a risk. It is, of course, possible to follow Macklem’s retreat to the argument that such treaties were widespread enough to serve as evidence of recognition of a prior sovereignty, and that it is as evidence of such a general capacity that treaties matter rather than as evidence of the specific and varied rights contained in the letter of the treaties. That argument is not without some force, but it also detracts from one of the main attractions of invoking treaties; namely, that their specific content provides precise criteria to which the parties can be held. It also amounts to an assertion of a very strong concept of sovereignty as an inalienable right, which flies in the face of those treaties such as that of New Zealand’s Treaty of Waitangi, which expressly provided for the surrender of sovereignty (Levy 2000a: 164). Faced with the limitations of the guarantees provided by treaties, it is, as indicated above, possible to resort to the claim that it is not the specific detail of treaties that matters but the fact that they demonstrate the existence of a wider competence. This, however, raises the question of what exactly is that competence, what kind of statehood is demonstrated in the capacity to sign treaties. If the model of the state is what many still describe as the Westphalian state, with the emphasis upon territoriality, including eminent domain, jurisdiction, equality and sovereignty, then the capacity is indeed wide-­ranging. It is true that deploying such a model means being selective about what to take up from essentially eighteenth and nineteenth century international law. It means, for example, glossing over rights of conquest which accompanied those other characteristics of the Westphalian state. More importantly, these analogies threaten to prove too much, as most who use them recognize. This is the concern behind the protestation by Macklem that ‘[s]overeignty and independent statehood need not go hand in hand’ (1993: 1355). His attempt to mobilize the standard distinction

164   P.M.R. Stirk between external and internal sovereignty, analogous to Kymlicka’s distinction between internal and external collective rights (1995: 7), serves much the same purpose. The purpose is simultaneously to enhance and limit the rights being demanded for minorities. Taken together, internal and external sovereignty or internal and external collective rights, that is sovereignty and rights over inhabitants of a territory and sovereignty and rights vis-­à-vis external political bodies, amounts to too much. It amounts to sovereign, independent statehood. Therefore they must be separated, and only one claimed. As noted above, Kymlicka responds to the inadequacy of a defence based on treaties by an appeal to the modern principle of self-­determination. Yet even the principle of self-­determination too has been constrained and shaped by the world of states. It is, of course, easy to see the attractions of the principle. First, it is arguable that self-­determination is evidently a collective right. Thus, van Dyke claims that while the Covenant on Civil and Political Rights in its article on minorities states that ‘persons belonging to . . . minorities’ have certain rights, explicitly avoiding reference to collective rights, there is no such restriction in the case of the right of self-­determination (1982: 25). Second, self-­determination is readily linked to the principle of non-­intervention in international relations. Kymlicka makes precisely this link in order to block the imposition of liberal values on illiberal minorities (1995: 164–6). One response to this is simply that the analogy will not hold because Kymlicka’s national minorities are manifestly not sovereign states, and it is the sovereignty of states that establishes their freedom from intervention (Levey 1997: 227). It could also be objected that the principle of non-­intervention is a double-­edged sword. On the one hand, it could be argued that national minorities ought to be recognized as enjoying this immunity, which amounts to claiming sovereign statehood for them. On the other hand, it could also be argued that the principle of non-­intervention applied to states as they happened to exist, irrespective of the justice of their establishment, and gave such states the right to treat their subjects as they deemed fit. It was, of course, precisely this principle that was invoked against the creation of minority rights regimes. That establishing minority rights meant breaching the long established principle of non-­intervention was clear in the statement of the 1991 Conference on Security and Cooperation in Europe (CSCE) meeting in Moscow, in which the states declared ‘that the commitments undertaken in the field of the human dimension of the CSCE are matters of direct and legitimate concern to all participating states and do not belong exclusively to the internal affairs of the State concerned’ (Conference on Security and Cooperation in Europe 1991: 29). Invoking a key principle associated with the Westphalian state proves too much, pointing to sovereign statehood, or too little, delivering the minorities into the hands of the Leviathan. Indeed, as the Moscow Conference and subsequent diverse declarations indicate, limiting the principle of non-­intervention is often seen as one of the ways of protecting minorities by allowing external actors and courts to intervene on their behalf, most notably through doctrines such as the responsibility to protect (International Commission on Intervention and State Responsibility 2001).

Multiculturism and the concept of the state   165

Minorities and self-­determination The same problem is also evident in Kymlicka’s invocation of the self-­ determination argument in the context of the process of de-­colonization of European empire. Why, he asks, should self-­determination be accorded to these people, but not to ‘internal colonized people’, for the only difference between the two groups is that the former were separated from the homeland of their overlords by the oceans and the latter were not (2001: 149)? The rejoinder is that if the criterion is the self-­determination of peoples they should not be, but the self-­determination of peoples was not what was really conceded in the dissolution of the European empires. What was conceded was the right of states, created in the form of colonies by European empires, not to be ruled by Europeans (Jackson 1990: 41). Moreover, a Belgian suggestion that embodied precisely the extension that Kymlicka demands was expressly rejected in the Declaration on the Granting of Independence to Colonial Territories (Macklem 1995–6: 199). The same declaration also expressly defended the principle of the territorial integrity of the states, whose boundaries were imperial constructions devoid of any consideration of the principle of the self-­determination of peoples. Self-­ determination, like using concepts developed by the (predominantly modern) state as analogies for the rights of ‘national minorities’, has to be qualified to contain the disruptive implications of such arguments in a world of states, all of whose borders are in one way or another the product of coercion, inheritance and even purchase. The stronger the formulation of the initial argument, the more probable it is that there will be a sudden switch from the language of rights to overtly pragmatic and imprecise criteria. Precisely, this appears after Kymlicka’s invocation of the principle of self-­determination: ‘I don’t mean that indigenous peoples should all demand or be granted an independent state. This is not a viable or desirable option for all such groups’ (2001: 149). Ironically, once the analogy with states has been invoked, the logic of the world of states can be halted only by calling into play the brute facts of that world: those ‘states’ that did not prove to be viable went under. It has been suggested above that the state, understood as a sovereign entity claiming jurisdiction over a given territory, undoubtedly poses a major challenge to imperilled minorities. It has been suggested that defenders of minorities have drawn on analogies between states and minorities, including the territorial concentration of minorities, their treaty-­making capacity, their possession of political institutions, and their right to self-­determination, in order to defend themselves against the Leviathan. In all of these strategies, however, the analogies prove to be at best equivocal friends, sometimes providing no support, sometimes suggesting too much. It might then finally be worth considering whether the threat posed by the Leviathan can be tackled at its root, namely ‘the sovereign territorial ideal . . . [that lies] . . . at the heart of the modern state’ (Nootens 2006: 35).

166   P.M.R. Stirk

Minorities and the personality principle Arguably the most imaginative attempt to tackle this problem emerged in response to the experience of the dual monarchy of the Habsburg Empire at the end of the nineteenth century. The Empire could aptly be described as an empire of cultural minorities, as the most multicultural state in Europe on the eve of the First World War. The two dominant groups, Germans in the Austrian lands and Magyars in the Kingdom of Hungary, were minorities within their respective fiefdoms. All minorities, including Germans and Magyars, felt imperilled in some respect. It was indeed German theorists who sought a solution to the fears within the Empire by challenging the territorial ideal. The difficulty, as Karl Renner noted, was that of recognizing nationality in a political and legal culture dominated solely by the concepts of the territorial state and the citizen. As Otto Bauer, influenced here by Renner, put it, in this ‘centralist-­atomistic’ model, ‘the legal order knows only, on the one hand, the state, and on the other, the individual, the individual citizen’ (Bauer 2000: 22). A way forward was suggested to Renner by an anomaly in which some protection was provided against the overriding territorial principle. In international law, the foreign citizen – an Englishman, for example – could find protection even in Prague, in the form of the diplomatic service of his own state. That, he said, was more than could be hoped for by the Austrian German in Prague. Encouraged by this analogy Renner distinguished between the territorial principle, defining people by residence and the personality principle, defining people by self-­chosen national identity. According to the latter principle, those of the same nationality would constitute a legal entity regardless of place of residence. He went on to suggest that the functions of government should be divided according to whether they were central to cultural identity. If they were, they should be regulated through structures responsible to the legal entities defined by the personality principle. If they were not, they should be regulated through structures responsible to legal entities defined by the territorial principle. Instead of seeing territoriality as part of the solution, Renner and Bauer saw it as the problem. But once membership of legal entities is separated from territorial concentration, there is, of course, no limit in principle to the number of such entities, beyond that imposed by pragmatic considerations about the minimum size necessary for the viability of such entities. This could be seen as an advantage, in that it avoids privileging territorially concentrated minorities in contrast to dispersed minorities, unless of course one has recourse to arguments about the necessity of cultural homogeneity. Renner’s imaginative solution does, however, rely upon certain assumptions about the nature of cultural identity. According to Renner, in the case of cultural identity the common feature does not concern the realm of willing, but rather of thinking and feeling . . . It touches a completely different human dimension. There, where the will in general is not in consideration, there can be no kind of dominating, sovereign will, but only dominating intellectual and emotional tendencies. (Renner 1994: 24)

Multiculturism and the concept of the state   167 It is doubtful if many of those who have recourse to analogies with the state to advance the cause of minority rights would find such a sharp distinction plaus­ ible. More important, it is doubtful if they would find it desirable. The jurisdiction, eminent domain, restriction of immigration, and an autonomous source of (sovereign) authority which they seek are bound up with ‘willing’. Worse still, Renner’s strategy could well be seen not as an imaginative solution to minority status within a world of states but as a device which would further weaken the position of those who might define themselves in terms of Kymlicka’s homeland minorities. This would seem to be the implication of an assessment of schemes in both Mexico and Canada that are purportedly intended to reduce the marginalization of minorities by giving them a stake in the development of the natural resources of the territories they inhabit. According to Isabel Altamirano-­Jiménez, these schemes are presented as part of a package including greater self-­government and redefinition of citizenship and even the negotiation of new treaties with the minorities. Yet crucially, she argues, these packages separate mechanisms for self-­government from the settlement of territorial claims and undermine communal ownership in favour of concepts of property derived from the majority culture. The outcome, she concludes, is that ‘governments separate Indigenous self-­government from territory, thus transforming the identity of Indigenous peoples from peoples to other minority groups that do not have a territorial/homeland attachment’ (Altamirano-­Jiménez 2004: 354). From this perspective, Renner’s personality principle amounts to the triumph of the principle of the territorial state over the identity of those who seek protection from it.

Conclusion The conclusion that should be drawn from this consideration of multiculturalism and the concept of the state is not a comfortable one. The state does pose a threat to imperilled minorities. It does so not only because it may embark upon strategies of homogenization, but also because it is a state. As the inhabitants of the emerging early modern European states reached out across the oceans from the late fifteenth century, they increasingly imposed the structures and principles of political organization inherent in those states upon the rest of the world until there was nothing left outside the world of states. To be excluded from the world of states, to be stateless, meant, in the eyes of the world of states, to possess nothing but one’s bare humanity. One of the best means of defence when threatened by the inhabitants of this world – that is, by states – was to take on the form of a state with all its supposed rights and privileges. The attractions of that defence are still apparent in the deployment of analogies with states in defence of territorially concentrated minorities. Yet so too are the risks inherent in that defence. By definition, homeland minorities were groups that failed to make the transition and succumbed to the territorial jurisdiction of one of the conquering states. Conquest is no longer accepted as a means of acquiring legitimate title, but the risks and harshness of the world of states is at least faintly reflected in the

168   P.M.R. Stirk acknowledgement that not all territorially concentrated minorities would be viable in this world. From this, one should arguably conclude that the allure of statehood, including analogies with the state, should be resisted. One should conclude that less vaunting and more pragmatic accommodations offer a better way forward. Yet one must also accept that as long as political entities recognizably similar to the states that emerged in Europe from the sixteenth century onwards dominate the world they will continue to pose a threat to those who failed to find a defence against this form of political organization. For exactly the same reason, the allure of analogies with the state will persist. Some of those who fear the state will continue to hope for salvation in the clothing of the Leviathan from whom they seek to escape.

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Multiculturism and the concept of the state   169 Jellinek, Georg (1929) Allgemeine Staatslehre, Berlin: Springer. Kant, Immanual (1963) ‘Perpetual peace’, in Lewis White Beck (ed.) Kant on History, Indianapolis, IN: Bobbs-­Merrill. Krasner, Stephen D. (1999) Sovereignty. Organized Hypocrisy, Princeton, NJ: Princeton University Press. Krüger, Herbert (1964) Allgemeine Staatslehre, Stuttgart: Kohlhammer. Kymlicka, Will (1995) Multicultural Citizenship, Oxford: Oxford University Press. —— (2001) Politics in the Vernacular, Oxford: Oxford University Press. Levey, Geoffrey Brahm (1997) ‘Equality, autonomy and cultural rights’, Political Theory, 25: 215–48. Levy, Jacob T. (2000a) The Multiculturalism of Fear, Cambridge: Cambridge University Press. —— (2000b) ‘Three modes of incorporating indigenous law’, in Will Kymlicka and Wayne Morgan (eds) Citizenship in Diverse Societies, Oxford: Oxford University Press. Macklem, Patrick (1993) ‘Distributing sovereignty: Indian nations and equality of peoples’, Stanford Law Review, 45: 1311–67. —— (1995–6) ‘Normative dimensions of an aboriginal right of self-­government’, Queen’s Law Journal, 21: 173–219. Mazower, Mark (2004) ‘The strange triumph of human rights, 1933–1950’, The Historical Journal, 47: 379–98. Mazzini, Joseph (1867), Life and Writings, Vol. 4, London: Smith, Elder and Co. Nootens, Genevieve (2006) ‘Liberal nationalism and the sovereign territorial ideal’, Nations and Nationalism, 12: 35–50. Parekh, Bhikhu (2006) Rethinking Multiculturalism, Houndmills: Palgrave. Pearson, Raymond (1983) National Minorities in Eastern Europe 1848–1945, Houndmills: Macmillan. Pufendorf, Samuel (1934) De Jure Naturae et Gentium, Vol. 2, Oxford: Clarendon Press. Renner, Karl (1994) ‘Staat und Nation’, in Karl Renner (ed.) Schriften, Salzburg: Residenz. Schmitt, Carl (1988) The Crisis of Parliamentary Democracy, Cambridge: MIT. Spaulding, Richard (1997) ‘Peoples as national minorities: A review of Will Kymlicka’s argument for aboriginal rights from a self-­determination perspective’, The University of Toronto Law Journal, 47: 35–113. Tuck, Richard (1999) The Rights of War and Peace, Oxford: Oxford University Press. Tully, James (1995) Strange Multiplicity. Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press. van der Stoel, Max (1994) ‘Die KSZE und die Minderheitenfrage’, Europa Archiv, 22 (1994): 629–34. van Dyke, Vernon (1977) ‘The individual, the state and ethnic communities in political theory’, World Politics, 29: 343–69. —— (1982) ‘Collective entities and moral rights: Problems in liberal-­democratic thought’, The Journal of Politics, 44: 21–40. Weber, E. (1976) Peasants into Frenchmen, London: Chatto & Windus. Westlake, John (1894) Chapters on the Principles of International Law, Cambridge: Cambridge University Press. Yeatman, Anna (2004) ‘Right, the state and the conception of the person’, Citizenship Studies, 8: 403–17

9 The enduring legacy of empire Post-­imperial citizenship and national identity(ies) in the United Kingdom Andrew Mycock

The days of Britain having to apologise for its colonial history are over. We should talk, and rightly so, about British values that are enduring, because they stand for some of the greatest ideas in history: tolerance, liberty, civic duty, that grew in Britain and influenced the rest of the world. Gordon Brown (BBC 2005a)

It has become increasingly popular for political leaders of post-­empire states, including the United Kingdom, to pronounce the period of critical reflection of their respective states’ imperial legacies at a close. This emphasizes concern in many states, particularly post-­colonizing states, about inculcation and saliency of national citizenship and ascription to an inclusive civic identity of increasingly diverse and multicultural communities of citizens. Gordon Brown’s call for the promotion of a positive British imperial legacy belies a growing sense of unease that post-­imperial states have been over-­exposed to critical reflection of their imperial periods, both from within the former imperial core and its post-­ colonial periphery, and from third-­party states who have deliberately undermined any positive imperial legacy for political purposes. Therefore, whilst political leaders and other commentators continue to acknowledge the need for post-­imperial contrition, it has become politically expedient to (re-)state the positive contribution and legacy of empire within both the post-­empire state and its former colonies, and even to mourn the passing of empire itself. Undoubtedly, post-­colonizing states such as the UK are presented with a complex range of transitional challenges in reforming political and cultural institutions and practices established during the period of empire. Post-­empire change has encouraged a more plural but fragmented and uncertain understanding of British national identity which has led policy-­makers to re-­examine governance and citizenship to ‘ensure that Britain remains a cohesive society, confident in its shared identity’ (HMSO 2007: 40). Central to such deliberations are questions about what ways newer citizens who have migrated from the former imperial periphery and elsewhere have reshaped understanding of citizenship and Britishness, and how they can be integrated into British political and cultural life.

The enduring legacy of empire   171 Such efforts to construct post-­empire Britishness appear to be strongly shaped by a pervading English civilizing ‘missionary nationalism’ which has historically encouraged the subsuming and conflation of the civic and ethno-­cultural dimensions of the English nation within concurrent nation-, state- and empire-­ building projects (see Kumar 2000). The intensity of the emergent Anglo-­British national-­imperial identity was therefore defined by ethnic, social and religious norms, shaped by war, Protestantism and monarchy (Colley 1992), whereby proximity and acquiescence to its English core was pivotal, though this necessitated that English national identity remained perennially underdeveloped. Empire gave rise to a British national-­imperial consciousness, drawing together a disparate range of national groups, or their elites at least, which shaped the emergence of national-­imperial cultural institutions, rituals, and symbols that influenced accordant state and empire identities (Hobsbawm 1992). The engagement of ‘otherness’ in the expansion of the Empire and extensive plantation in some imperial territories further emphasized the core attributes of an ethnicized national-­imperial Anglo-­Britishness. As such, the political, economic and cultural borders of the British nation and state were extended within imperial contexts – persistently overlapping whilst necessarily ill-­defined. British national-­imperial identity was therefore complicated by the multi-­ethnic and multi-national nature of both the imperial core and periphery. Imperial citizenship reflected such ambiguities, involving a complicated set of inter-­relationships which highlighted the deliberate and often overt differentiation of rights and responsibilities. This emphasized the arbitrary and unaccountable nature of imperial power and social, ethnic, religious and geographic cleavages within, between and across the core and periphery (McClelland and Rose 2006; Poddar 2007). The historical legacy of such approaches has ensured that civic and ethnic conceptions of British nationality have remained largely conflated within the reduced post-­imperial UK multinational state. However, its central tenets have come under increasing scrutiny as newer migrant citizens have grown in numbers and diversity, proving ever more prepared to assert competing constructions of identity which challenge the established British national-­imperial orthodoxy. This has raised a number of critical questions as to whether ascription to a UK citizenship can or should entail the nurturing of a British national identity. What are the implications of current government emphasis on Britishness amongst an increasingly diverse multicultural British citizenry? Will a historically justified framework of ‘British values’ provide the basis for UK citizenship which resolves moral conflict in British society? Can transnational constructions of Britishness help address concerns about immigration, community cohesion and the future of the union? Indeed, to what extent can the UK state be considered post-­imperial? This chapter seeks to explore the ongoing nationalizing of British identity and citizenship and the seemingly perpetual search for a homogenous sense of post-­ imperial ‘Britishness’. It will explore the implications of the assumed synonymity of government articulations of UK citizenship and Britishness, and will argue

172   A. Mycock that such approaches reject more generous transnational multicultural constructions founded in empire. It will suggest that the enduring legacy of empire should inform contemporary constructions of Britishness which are plural, diverse and critical; progressive Britishness which draws on the imperial past but is not constricted by the norms which shaped it. Moreover, it will assert that British citizens should not be compelled to sign up to an essentialized Britishness founded on political institutions and cultural practice strongly influenced by empire which restricts the inclusivity of post-­imperial UK citizenship.

Nationalizing ‘imperial Britishness’ One of the first acts of the Labour Government was to oversee the return of Hong Kong to the Chinese on 1 July 1997. The handover ceremony proved a stark reminder for many Britons, particularly younger generations, of their imperial past (J.M. Brown 1999: 707). Thompson (2005: 228) notes that for many the repatriation of Hong Kong elicited a subdued reaction which added weight to the contention that the UK no longer valued the remnants of its Empire. However, a newspaper poll conducted a month after the handover saw 70 per cent of respondents express personal pride in the fact Britain once had a great empire (Economist poll, cited in Wellings 2008: 405). The legacy of missionary nationalism remains persuasive for many, with 80 per cent believing Britain has been a force for good in the world, though only 53 per cent suggested the legacy of empire was important in defining Britishness (YouGov 2005). Such diversity in the expression of imperial nostalgia would suggest the legacy of empire continues to resonate in the public consciousness but in an inconsistent manner which presents a number of dilemmas concerning the positive re-­articulation of Britishness. This is not a new phenomenon. British imperial elites also lacked the ability to retain sole control of the construction or projection of British national-­imperial identity that was populist but was not founded on popular interaction (Hobsbawm 1987: 149–50). The resonance and salience of the Empire within the mindset of British subjects was therefore variable, as was their ascription to national-­imperial Britishness (see MacKenzie 1984; Porter 2005). Although common cultural practices and rituals emerged which drew most imperial subjects together in the UK, there were numerous ways to express national-­imperial Britishness. However, the tribulations of the first half of the twentieth century and their impact on the British Isles diluted attachment to and recognition of the British Empire. The failure of the imperial economy in the 1930s, post-­war national welfarism and growing middle-­class revulsion at imperialism is seen by some to perpetuate imperial malaise (Weight 2002: 286–91). The poorly planned but comparatively peaceful post-­war imperial retreat appeared not to have significant domestic political repercussions. For many, such loss was compensated by the widely held belief that the British Empire differed from other imperial powers through its desire to bequeath positive post-­colonial legacies, which meant Britain was not ‘losing’ its empire but merely encourag-

The enduring legacy of empire   173 ing transition to modernity, democracy and self-­sufficiency. As such, some note a British ‘collective indifference’ to the end of empire (Cannadine 1997: 261–2), reflecting the ‘relatively untraumatic’ nature of a decolonization process which left few visible scars (see Ward 2001: 3–5). Such views raise some interesting questions, as many of those who suggest the loss of empire had little influence on the British people also note that imperial disjuncture had radical political and social ramifications in the UK (Ward 2001: 6). The post-­war British state was faced with a number of challenges which shaped its transition from empire to cauterized multinational state. The loss of the majority of imperial territories also meant accepting that the UK no longer lived in a world entirely of its own making. Redefinition of political, military and economic relationships, particularly with the United States and former imperial competitors in Europe, ensured that the (de-­nationalized former ‘British’) Commonwealth remained relatively peripheral, failing to establish itself politically or in the public consciousness. The Commonwealth provided stark evidence that imperial withdrawal in some states was not controlled or bloodless, and it also emerged as a forum to criticize the post-­colonial legacy of the British Empire and the actions of the post-­imperial UK state. It was increasingly viewed by the British public as too troublesome, too needy, too costly and intrusive and detrimental to the national interest (Cain and Hopkins 2002: 635–40; Srinivasan 2005: 111–21). Therefore many cultural rituals and ceremonies associated with the celebration of empire, such as Empire Day, were quietly dropped, with their Commonwealth counterparts failing to establish themselves in their place (Cannadine 1992: 150–6). This heralded a concerted nationalizing of UK citizenship and identity, best symbolized by political reclamation of the term ‘British’ by the UK government in the early 1960s to establish clear boundaries which rejected transnational dimensions of civic Britishness (Ward 2004: 251–2). Further evidence of a shift in emphasis can be seen in post-­war efforts to codify an increasingly national conception of UK citizenship. The 1948 British Nationality Act established an approach to citizenship which was imperialist but also inclusive, liberal and cosmopolitan in its view of the emerging Commonwealth (Hansen 2000: 43). However, ‘new’ Commonwealth immigration proved a traumatic experience for all concerned, and many new citizens quickly realized that their ascription to forms of imperial Britishness were not seen as legitimate by some ‘indigenous’ Britons. Subsequent legislation introduced during 1960s and 1970s increasingly centred on patriality to limit (non-­white) Commonwealth immigration in response to public concerns and racial tensions, and to emphasize a sense of ‘belonging’ (Hampshire 2005). The introduction of the 1981 British Nationality Act saw imperial citizenship finally abolished in favour of an exclusory British national community-­based citizenship which differentiated and/or severed formal links with most Commonwealth citizens. Nevertheless, to suggest that pride and recognition of the Empire dissipated completely, thus allowing new forms of Britishness devoid of imperial content, is myopic and fails to acknowledge the influence of established and new formal

174   A. Mycock and informal political and cultural ties. The persistence of national-­imperial Britishness was significant, and the failure to significantly reform the Anglo-­British national-­imperial state ensured it continued to shape post-­empire constructions of citizenship and national identity. Efforts to present the appearance of a pragmatic and managed imperial withdrawal meant most British political institutions and many of the national-­imperial symbols remained untouched by the end of the Empire. Moreover, the British Monarch continued as Head of State for those Dominions and Colonies who did not seek republican status, and the persistence of some rituals such as Royal Tours and the annual Christmas Address encouraged many in the UK to maintain an ascription to a more generous transnational Britishness. Indeed, the very presence of the ‘Union Jack’ on such flags as those of Australia, New Zealand and various other UK territories and crown dependencies proved an enduring reminder of the legacy of the British Empire and the continued influence of ‘banal imperialism’. Other links through sport, film and television, and organizations such as the scouting movement, highlighted cultural ties and commonalities which extended beyond the formal period of empire (see Cronin and Holt 2001; MacKenzie 2001). The Church of England and other religious institutions continued to thrive, particularly in former African and Caribbean colonies, and the charity and development aid provided by religious and non-­religious groups were also important in sustaining links with parts of the Commonwealth (Maxwell 2005). For many Britons, extensive emigration to and from Australia, Canada and New Zealand contributed to the maintenance of strong family and cultural ties tinged with an enduring sense of empire (see Constantine 2003; Hammerton and Thomson 2005). Moreover, ‘New Commonwealth’ immigration to the UK forged new links across the former core and parts of the colonial periphery (Lahiri 2001). Although many Britons might not consciously have acknowledged transnational connotations of the British identity and citizenship, they could not deny they existed. The protracted and incomplete nature of imperial withdrawal meant most Britons had a confused view of the British imperial past and its post-­empire ramifications. This is best exemplified by Margaret Thatcher, who drew on enduring missionary imperialist themes to emphasize the civilizing influence of the British Empire and its lasting positive legacy whilst seeking to deny its racist legacy in shaping approaches to post-­empire citizenship and identity (Gilroy 1987: 313; Alibhai-­Brown 2000: 27). Thatcher promoted a populist but contradictory ‘last hurrah’ of an imperial Anglo-­Britishness shaped by enduring British values founded in empire but which lacked certainty both in their historical foundations and their contemporary morality (Dodd 1995: 27–30). Furthermore, her suspicion of the ideological motivations of some members of the Commonwealth, and refusal to countenance sanctions against South Africa, created significant divisions whilst cementing British disillusionment with much of its former empire (McIntyre 1999: 699). Though not universally popular, the Falklands War of 1982 provided evidence that, for many, national and imperial constructions of Britishness remained

The enduring legacy of empire   175 conflated and emotive (Thompson 2005: 226). The conflict both stimulated a lingering nostalgia for the British World and its (white) kinfolk whilst also highlighting the anachronistic nature of the remaining imperial outposts and their cost (S. Howe 2003). The extent to which empire continued to influence and shape contemporary constructions of Britishness as the twentiethh century came to a close is a matter of some conjecture. Whilst the resonance of empire in post-­ imperial constructions of Britishness was often implicit, it is clear that some dimensions of Anglo-­British national-­imperial identity continued to resonate for many both in the UK and elsewhere. However, a paucity of debate endured concerning the morality of empire or its post-­imperial legacy, suggesting to some an unparalleled ‘stunning lack of curiosity’ (Schwartz 1996: 65).

The search for ‘new’ Britishness Although some commentators identify periods of intense Britishness, particularly during the post-­war period (Weight 2002; Harvie 2006), there is little statistical data to support notions of enduring homogeneity in conceptions and expressions of British national identity. However, advocates of the ‘break-­up of the UK’ thesis have consistently highlighted the dissolution of the British Empire, and the weakening in influence of established national-­imperial institutions, as central to decline of a shared Britishness (see, for example, Nairn 1977; Marr 2000). Recent survey data would seemingly confirm that the primacy of British national identity is steadily declining (Stone and Muir 2007). Overall though, nearly 50 per cent of citizens still see themselves as substantially British (ONS 2002) and when measured independently, the vast majority of British citizens express some attachment to Britishness – particularly those from the ‘new’ Commonwealth and other migrants who have gained UK citizenship (Condor et al. 2005; ETHNOS 2005). Such studies indicate that there is no clear case for the wholesale abandonment of or an overwhelming indication of support for a British national identity, thus suggesting that ambiguity or ‘fuzziness’ between nation, state and former empire endures. Debates concerning the decline of British identity reflect anxieties stimulated by a range of phenomena, such as globalization, European supranationalism and the end of the Cold War, which have further been exacerbated by post-­war immigration, (Islamic) terrorism and the rise of extremist far-­right nationalism. Moreover, the pursuit of a new constitutional settlement since 1997, primarily through devolution to Scotland, Wales, Northern Ireland and some regions of England, has cast doubt on the future of the UK state. Concern over the utility of British citizenship as the basis for a coherent and inclusive national identity has stimulated an increasingly fraught search for the ‘elixir of Britishness’ as a salve to soothe post-­imperial transition. In the aftermath of the riots of 2001 in the north of England and the 7/7 attacks in London, the search for a ‘new’ Britishness has emerged as a key theme in British politics. The Labour party came to power in 1997 claiming that they were the ‘true patriotic party’, whose own Party modernization was explicitly

176   A. Mycock linked with that of a ‘new Britain’ (Labour Party 1997). However, Labour’s efforts to articulate and inculcate ‘new’ Britishness have proven both contentious and often contradictory. For example, Tony Blair has projected the British state as both ‘outdated and decrepit’ whilst also providing the constitutional continuity for modernization; a ‘traditional’ and ‘young’ country founded on a ‘shared heritage’ which ‘gives us the right to call ourselves British’ (Blair 1995, 1998 2006a). Moreover, a plethora of suggestions have emerged as to how a sense of cohesive Britishness could be promoted, including a British Day, teaching Britishness in schools, citizenship ceremonies for young people, flying the Union flag more often on government buildings, and a museum and/or a Institute of Britishness (DfES 2007; Brown 2007a; Kelly and Byrne 2007; Goldsmith 2008). Key to such deliberations have been a number of pervasive themes linked to the modernization of the British state and constitution, and the ‘rediscovery’ of a discrete framework of values which have been defined by and have also shaped a range of national institutions. Gordon Brown has emerged as the most influential exponent, or ‘Bard’, of ‘new’ Britishness’ (Nairn 2006), seeking the ‘rediscovery’ of ‘long-­standing British values’, such as tolerance, liberty, decency, fair-­play, responsibility, openness, internationalism and civic duty which are reflective of the ‘British genius’. These have been historically substantiated through the establishment of a repetitive discourse which stresses a ‘golden thread’ of British constitutional progression (see G. Brown 1999, 2004, 2006, 2007a). Brown summarized his view of Britishness during a speech to the Fabian Society in January 2006, noting: We the British people should be able to gain great strength from celebrating a British identity which is bigger than the sum of its parts and a union that is strong because of the values we share and because of the way these values are expressed through our history and our institutions. (Brown 2006) Brown has suggested that a unique combination of values gave rise to a range of ‘great public institutions admired around the world’, such as the National Health Service, the Armed Forces, museums, universities and the BBC (Brown 2004). Constitutional reform, particularly devolution and the removal of most hereditary peers from the House of Lords, is therefore ‘designed to ensure modern British institutions that reflect enduring British values’. By rejecting Thatcherite Anglo-­Britishness, which ‘mistook an unwritten constitution for an unchanging constitution’, Brown has sought to highlight a post-­empire transition whereby ‘the old empire of interests must now be succeeded by the new Britain of shared values and British institutions must be reformed and re-­founded explicitly on British values’ (G. Brown 1999). Brown’s (2006) value-­laden approach has sought to provide an ‘explicit definition of citizenship’ and a common ‘patriotic purpose as a nation and a sense of direction and destiny’ to found an inclusive British identity. However, critics have interpreted Brown’s (2007b) ‘patriotic purpose’ as a ‘promiscuous need to

The enduring legacy of empire   177 define us and our values’ (Porter 2006) through ‘enforced patriotism’ (Alibhai-­ Brown 2007), whereby the British people will be ‘bullied’ into celebrating a national day, forced to hoist a flag on their lawn and so on (Kettle 2007). Some have questioned the ability to codify discrete ‘British’ values (Nairn 2006: 13), highlighting the ‘insuperable problems’ of claiming national rights to ‘soft-­ focused’ universal values such as liberty or tolerance (Eagleton 2007). This has been reluctantly acknowledged by Labour through a shift in emphasis from the desired need to articulate a ‘statement of British values’ (Straw 2007a) to that of a ‘British statement of values’ (HMSO 2007). Critics also highlight the Anglo-­centric focus of ‘British’ values, shaped by a historical narrative which draws on exclusively English events such as the Magna Carta and the Glorious Revolution; a ‘Whiggish rehash’ (Harvie 2006) seen by some as an attempt to placate the English middle classes and to stunt the emergence of English (civic) nationalism which could compromise the political careers of non-­English Labour politicians (Lee 2006). The conflation of Britishness with the national culture of England in the minds of many Westminster politicians has drawn greater attention to the ‘English question’ (Bryant 2006), underlining the difficulties politicians now experience in claiming to speak for the United Kingdom as a whole. Some have questioned why the UK can offer citizenship, whilst the ‘nations’ of England, Scotland and Wales cannot (Jack 2007). Northern Irish, Scottish and Welsh secessionist nationalist parties have therefore sought to identify and promote a framework of discrete national values which are distinct from those of the Anglo-­British state, highlighting a greater sense of social justice and cultural homogeneity (Williams 2006). Indeed, Brown himself has acknowledged that Thatcherite Anglo-­Saxon individualism was an attack on collective ‘Scottish values’ (Brown and Alexander 1999: 6). Scottish secessionist nationalists suggest Britishness is in throes of a post-­ imperial death due to the perceived redundancy of the British state as an imperial vehicle; the final acts of ‘terminal Britishry’ (Nairn 2006). Conversely, others have accused Labour of a lacking a clear ‘national idea’ (Hague 1999), being both ‘anti-­English’ and ‘anti-­British’ (Heffer 2002), thus allowing the institutions that define Britishness to be ‘trashed’ and their values subverted (Cameron 2006). This noted, Conservative Party conceptions of Britishness differ little from those of Labour. They are founded on a similar framework of ‘common-­ sense values’ though more explicitly shaped by an ascription to largely unreformed Anglo-­British orthodoxy which places a greater role for ‘forgotten’ institutions, such as the monarchy and the Armed Forces (Cameron 2008). It would appear that both main British political parties seem intent on unearthing the elusive or revelatory ‘value’ or ‘ideal’ that redefines and solves the conundrum of post-­imperial British identity.

The empire limps back? The perceived synonymity of UK citizenship and ‘new’ Britishness highlights the post-­empire dilemma concerning the British imperial legacy. Brown (1997)

178   A. Mycock has continued the pragmatic post-­war nationalizing of Britishness, conflating the perceived end of empire with Labour’s election in 1997 as key to its re-­ articulation: the post-­war period in Britain can be seen, in retrospect, as a period of soul-­ searching and – from the independence of India in 1947, to the Hong Kong handover half a century later – a fifty year quest to define a new identity. This noted, the former empire and the modern Commonwealth have remained largely absent in the re-­imagining of ‘new’ Britishness. The role of the Commonwealth has been presented as anachronistic and temporally disjointed, alluding to a regressive sense of Britishness long since jettisoned. Therefore, whilst Blair (1997) acknowledged that there are ‘enormous bonds of commonality’ shared across the Commonwealth, he strove also to assert that the UK should admired for ‘what we are, not what we have been’. Brown has been more prepared to acknowledge the enduring legacy of the British Empire. He has asserted Britons that have a confused and apologetic sense of identity shaped by their imperial past, both acknowledging its ‘dark past’ whilst implicitly alluding to a misinterpretation of its positive legacy. Therefore, a less critical understanding of the imperial past has been adopted, whereby the British Empire is seen as an appropriate vehicle for dissemination of British values such as tolerance, liberty and civic duty, (BBC 2005a). These are linked to ‘strong traditions’ of fair play, of openness, of internationalism and of economic enterprise, meaning empire gave the British an unparalleled global reach to influence the rest of the world (BBC 2005b). The enduring influence of such missionary themes has encouraged Brown to suggest that ‘traders, adventurers and missionaries’ had spread British values through a sense of duty, which he favourably compared to current British government efforts to cut debt and encourage development in Africa. Therefore, empire is seen to contribute to the transmission of modern British values. Although the British Empire may well have been exploitative and oppressive, its progressive missionary intentions are central to an understanding of contemporary Britishness; ‘the very creed of freedom which we preached abroad, if sometimes did not practice, ensured that our colonial episode collapsed under its own very British contradiction’ (Straw 2007b). By promoting a more positivist view, proponents of ‘new’ Britishness have found some unlikely allies, particularly a number of conservative historians who suggest the British Empire ‘was a force for good’ (James 2006) that ‘delivered astonishing [economic] growth rates’ (Roberts 2005). British imperial withdrawal involved ‘less bloodshed than many other decolonisation struggles’ (Straw 2007b) but only ‘after having tried to educate their successor governments’ (Roberts 2004), so that ‘it is hard to believe that the institutions of parliamentary democracy would have been adopted by the majority of states in the world’ (Ferguson 2003: 358). Such platitudes draw on established missionary themes to suggest a distinct British imperial economic and political morality, defined by good intent.

The enduring legacy of empire   179 This chimes with a general move to rehabilitate empire in some quarters, and to reject the overwhelming post-­imperial culture of apology which has undermined national pride and confidence. Some, such as Linda Colley (1999), suggest the need for a subtle but distinct re-­emphasizing of the British imperial legacy. She argues that the idea that we should spend our time now wallowing in post-­imperial guilt is profoundly misplaced. Doing so does no good. Moreover, doing so obscures the fact that empire was only part of the British past, and that even empire was not invariably a bad thing. Colley seeks to normalize the imperial past by rejecting the established orthodoxy of British moral exceptionalism, asserting ‘there is no sizeable state in the world which has not committed its fair share of genocide and oppression in the past.’ Some take this further, arguing that the British imperial experience lacks of relativity to the modern UK state and society, and warning that we should be careful not to judge the past through the lens of contemporary norms of citizenship (Goodhart 2006: 3). Empire should therefore be seen as a common experience of which Britons should not need to feel uniquely ashamed, that does not significantly reflect the values shaping the development of a post-­imperial ‘citizen nation’ or ‘progressive nationalism’. Whilst Brown (1997) claims not to assert ‘moral superiority for Britain or romanticize its [imperial] past’, rehabilitation of empire is seen within the context of its post-­war imperial decline, which is interpreted as a period of both post-­imperial introspection and contrition. Underpinning this is the perceived need to draw on such reflections in asserting a more balanced view of the Empire which contributes to a British national narrative (Straw 2007a; Goldsmith 2008). Therefore comprehensive understanding of post-­empire Britishness would appear to be historically located, merely requiring re-­articulation through vehicles such as school history and citizenship education. Recent reports have therefore acknowledged the need to teach Commonwealth and the legacy of the Empire in schools to develop an appreciation of imperial history to promote the shared values which contribute to British national identity and citizenship (DfES 2007: 97–9). This emphasis on the utility of the imperial past to promote contemporary citizenship and identity is instructive. Paul Gilroy (2004: 107–8) argues persuasively that such approaches reflect an enduring post-­imperial ‘melancholia’ whereby critical analysis of empire has been efficiently excluded from current re-­conceptions of the Britishness in schools and elsewhere. For example, the notion of the ‘highly benevolent and moralistic’ empire (Keegan 2004) strongly influenced government-­led celebrations of the bicentennial anniversary of William Wilberforce’s 1807 Slave Trade Act. Brown (2007a) argued that slavery was an affront to British national values, ensuring Britain led the world in abolishing the slave trade in the name of liberty. This has led some to question an apparent reluctance of Brown and others to address the motivations for British participation and development of the slave trade, its continued involvement in

180   A. Mycock slavery after 1807, or the failure formally to apologize for its role (Gott 2007; Hanlon 2007). Indeed, there is a striking similarity in the themes of those who oppose a British formal apology regarding its role in the slave trade and broader considerations of the morality of empire. In particular, proponents of ‘new’ Britishness and others question the culpability of some or all ‘indigenous’ Britons in the slave trade and empire as a whole, the appropriateness and feasibility of paying reparations, and to whom and for what an apology should be given (see Cunningham 2008). Doubts have also emerged regarding the potentially detrimental implications of overly critical reassessments of the British imperial past. Brown’s determination to promote a predominantly positive British national narrative has led him to encourage his fellow Britons to ‘celebrate much of our [imperial] past rather than apologize for it’ (BBC 2005a). Such assertions have incited considerable criticism both within the UK and across the former empire. Bikhu Parekh accused Brown of promoting a narrow, insulting and overly optimistic view of empire, whilst Richard Drayton suggested ‘Britain has never even faced up to the dark side of its imperial history, let alone begun to apologise’ (BBC 2005a; Drayton 2005). Former South African president, Thabo Mbeki reacted furiously to Brown’s suggestion, suggesting the British, who treated Africans like ‘savages’, were motivated by an alternative framework of imperial values such as racial hierarchy, slavery, exploitation, ethnic cleansing and genocide (BBC 2005b). Such views were echoed by others who questioned the historical legitimacy and appropriateness of imperial British values (Gilroy 2005, Hari 2006) and their relevance to modern democratic and multicultural post-­empire states (Milne 2005). The genesis of Brown’s constitutional ‘golden thread’ which defines British values is in the Magna Carta – prior to the building of empire. This would suggest that such values both facilitated the expansion of the British Empire and its slave trade, as well as providing the motivations for its demise. The implications of this have not, however, been explored by proponents of ‘new’ Britishness. British values are projected as nationally located and resilient to change, being both fixed and durable. The possibility that the experience of empire might have contributed to their progressive development, or that membership of the Commonwealth continues to reflect or further refine them, is not acknowledged. It would appear that British values could be projected outwards, but were not open to renegotiation or being positively reshaped by the imperial experience or interaction with imperial subjects outside of the UK. This provides an interesting dilemma when considering the legacy of empire and its influence outside the UK. Although the British Empire is projected as a largely affirmative for imperial subjects in the core and periphery, current nationalizing of UK citizenship undermines claims of a positive imperial missionary legacy founded on enduring British values. This is exemplified in the recent introduction of the ‘Life in the UK’ citizenship testing, thus suggesting that many immigrants from the Commonwealth and beyond hold different values and need to be instructed in ‘the British way’ (Woolton 2006). The implicit assumption behind this and other policy developments is that diversity, multiculturalism

The enduring legacy of empire   181 and decline in ascription to a British national identity are linked. It would appear that the government believes that post-­war immigration from the Commonwealth and elsewhere is tied to a dilution in citizens’ ascription to British values. This raises the notion that ‘indigenous’ Britons understand and adhere to such values more clearly than newcomers. Moreover, there is selectivity regarding which values continue to inform British citizenship and identity. Current desensitizing of the questionable morality of empire by Brown and others suggests British society has rejected some imperial values. Trevor Phillips (2007) has suggested that modern British values transcend race, colour and ethnicity. For some, however, empire continues to shape an enduring ‘attitudinal legacy’ which draws on a racialized imperial mentality and remains ‘a highly effective vehicle for reproducing social and economic privilege across generations’ (Beetham 2007: 5). Gary Younge (2005) further challenged Brown’s selective view of the legacy of British imperial values, noting ‘if fair-­play is a core British value, racism is no less so’. Such complexities linked to the moral and psychological legacy of empire and its implications for understanding the values of contemporary Britishness remain largely overlooked by politicians and policy-­makers.

The persisting ambiguity of imperial Britishness Uncertainty over the contribution of the British imperial legacy to constructions of Britishness has been further complicated by the actions of the government. Recent military interventions have heightened awareness of the implications of a less than favourable imperial legacy, particularly in the Middle East, as have some notable non-­interventions in Zimbabwe and Sudan. Not only has the UK proven willing to be involved in conflicts in a number of former colonial territories; the positive legacy of British colonial rule is also compromised by ongoing violence and instability in Kashmir, Kenya and Palestine, and territorial disputes with states such as Argentina and Spain. Some see this as a new form of ‘liberal imperialism’, reflecting continued belief in Britain’s global missionary role (Cooper 2002). Analysis of Foreign-­policy stimulate important questions concerning the extent to which the UK can actually be considered a ‘post-­empire’ state. Moreover, key elements of the Anglo-­British national-­imperial state and its accordant identity continue to provide historical legitimacy for the post-­empire UK state. Although most imperial dimensions of Britishness have formally become politically redundant, many of the British national institutions and symbols remain largely unreformed. Indeed, the role of Monarchy extends imperial ties, as the (largely ceremonial) head of sixteen Commonwealth states (of which the United Kingdom is only one) and a number of Crown Dependencies. The United Kingdom also retains more than a dozen British ‘overseas’ territories and military bases across the globe, such as in the Falklands, Cyprus, Gibraltar, and the British Indian Ocean Territory, and military facilities in many more independent states. As British people are formally citizens of the UK and the EU but also are

182   A. Mycock legally subjects of the Crown, this presents significant problems for those seeking to establish a framework of UK citizenship which is synonymous with a nationalized Britishness. Recent proposals by Lord Goldsmith (2008) appear to address this issue by attempting to further refine post-­empire UK citizenship. His report sought to enhance the meaning and significance of ‘our common bond of citizenship’ by re-­categorizing British nationality for the remaining overseas territories, and Irish and Commonwealth citizens. Reforms proposed attempted to clarify the boundaries of British citizenship by removing the right of Commonwealth and Irish citizens to vote in UK general elections and to restrict access to other social and political rights previously available. Goldsmith’s recommendations for the revision of UK citizenship were deeply significant, as they, for the first time, explicitly prioritized the rights (and responsibilities) of European Union citizens above those of the Commonwealth and some dependent territories. Goldsmith’s report was extensively criticized by republicans and separatist nationalists of all hues for suggesting that school-­leavers should take an oath of allegiance to the Queen to affirm their citizenship (see, for example, D. Howe 2008). Such proposals drew attention to the contentious and divisive issue of the Monarchy and the difficulties it raises for those attempting to instigate constitutional reforms to nationalize UK citizenship and identity. The supranational constitutional role of the Monarch across the Commonwealth continues compromise the notion of a discrete citizenship or a post-­imperial Britishness. However, there has been little concern that such an oath is a statutory requirement for those acquiring British citizenship through naturalization at their citizenship ceremony. Although the Monarchy is seen to form key dimension of UK citizenship for aspirant migrants who wish to become citizens, it is not viewed as a key or even an essential for many element of citizenship or Britishness for a substantial number of citizens born in the UK. For some, Goldsmith’s report suggested the UK Government was pulling away ‘the drawbridge’ in a way which was dismissive of ‘hundreds of years of history and rich cultural links with fellow members of the Commonwealth’ (Facey 2008). While current debates acknowledge the multicultural hybridity or duality within a range of British identities, Commonwealth status remains peripheral and is not considered a legitimate category of classification in most opinion surveys. More tellingly still, though the ‘shared values’ of Britain, the United States and Australia have been acknowledged (Blair 2003, 2006b), the Commonwealth is rarely invoked when comparisons are made, and is most often overlooked completely. Indeed, there is lack of acknowledgement that the Commonwealth as a whole, individual overseas territories, Crown dependencies or states with strong ties to the UK might have a legitimate input into debates about citizenship and values of Britishness, or interest in their outcomes. There has been little recognition that debates about the Union flag, the national anthem or other symbols, rituals or expressions of Britishness have implications outside of England or the UK. This would suggest that the parameters of debates about citizenship and Britishness are increasingly seen to be national. However, government preference in

The enduring legacy of empire   183 many speeches and publications for the term ‘Britain’ rather than ‘the UK’ is not accidental, and highlights that the borders of national citizenship and identity remain uncertain and contested. This mirrors broader assumptions for many people that debates are located in Britain rather than the UK, reflecting ambiguity as to whether the government is promoting Britishness or UK-­ness (Mycock and Tonge 2008). This is not merely constitutional pedantry; the 1998 Good Friday Agreement affords the right of all people in Northern Ireland to identify themselves as ‘Irish’ or ‘British’, and that any person born on the island of Ireland is entitled to Irish citizenship. The solution has been consistently to omit reference to Ireland when outlining the ‘multiple identities’ UK citizens possess (see, for example, Brown 2008). This has drawn criticism from Ulster unionists and loyalists of all hues who see the Monarchy and Protestantism as central to their understanding of Britishness, and who draw on a range of institutions and cultural practices which have been largely omitted from government articulations of British citizenship and identity (Dawar 2008). This, some suggest, raises the unusual prospect that, if the union falls, Northern Irish unionists might become ‘last-­gasp Britons’ – defined by their ascription to an imperial Britishness which others have rejected (Nairn 2002). This is both contentious and open to question, particularly as the Monarchy and Christianity (if not Protestantism alone) remain popular among many in England, being tightly identified with Englishness (Bunting 2008). Furthermore, others who also associate with a more orthodox Anglo-­British national-­imperial identity, such Falkland Islanders and Gibraltarians, similarly locate their Britishness through allegiance to the Crown (Constantine 2006: 40). Such deliberations also highlight that a significant number of UK citizens continue to challenge the legitimacy of British political and cultural institutions, symbols and emblems in public life. For some, regressive ‘new’ Britishness is seen as representative of an enduring ‘internal colonialism’ from which ‘progressive nationalism’ is the only solution (see Perryman 2008: 29). However, the legacy of empire is also problematic for those who seek the break-­up of the UK or Britain. For secessionist nationalists across the UK the imperial past highlights a common British experience whose emphasis can detract from the primacy of non-­British articulations of national identity. The morality of the British Empire is difficult to criticize, as it highlights the involvement of large numbers of Scots, Welsh, Irish and English, thus undermining post-­colonial themes of national suppression and self-­emancipation. Empire complicates post-­colonial dimensions of secessionist nationalist discourses as post-­imperial themes are historically intertwined, thus tying dimensions of Britishness and Scottish, English, Welsh and Irish identity. For nationalists of all hues, national narratives must remain largely positive and not dwell on the imperial sins of the past. As claims for national self-­ determination centre on nation-­building, empire is therefore largely omitted from secessionist political and cultural constructions of Irishness, Welshness, Scottishness or Englishness (see, for example, Lee 2007; Leith 2008). Secessionist nationalists would appear to renounce post-­imperial culpability for the contemporary responsibilities of the British colonial past, with little

184   A. Mycock consideration of the constitutional implications of break-­up of the UK with regards to the remaining overseas territories and other constitutional ties (see, for example, Nairn 2006; Hassan 2008; Kingsnorth 2008). This presents some interesting post-­imperial conundrums, which have encouraged some subtle but significant shifts in emphasis. The notion that civic and cultural Englishness has been politically and culturally retarded through the promotion of the overarching Anglo-­British imperial mission is one supported by English and opportunist Scottish secessionist nationalists alike (see Heffer 2007; Salmond 2007; Wheatcroft 2007). However, most English secessionist nationalists fail to acknowledge that it would be highly likely that an independent England (or a ‘rump’ Britain) would adopt most post-­imperial overseas responsibilities if the UK began to break up – much the same way as the Russian Federation assumed those of the Soviet Union. As such, British post-­imperial responsibilities would continue to directly influence constructions of citizenship and identity in a post-­British English state. Questions also persist as to the reductive and potentially more exclusory parameters of sub-­state national identities when compared to an overarching British identity, though there is evidence that in Scotland, particularly, ethnic minorities are comfortable in expressing themselves as primarily Scottish rather than British (McCrone 2002: 311). Such concerns have encouraged some to argue that ‘unlike Englishness, Welshness or Scottishness, Britishness is a synthetic and capacious concept with no necessary ethnic or cultural overtones’ (Colley 1999). Whilst this view may well have some legitimacy, particularly for some ethnic minority citizens in England, the enduring influence of banal imperialism would suggest that many remain uncertain of the inclusivity of Britishness – old or ‘new’ (Kiely et al. 2005). Colley’s view also highlights the insular nature of much debate about UK citizenship and British identity. As Bridge and Fedorowich (2003: 8) note, ‘Britishness outside Britain persists well beyond the demise of the British Empire’. For a significant though dwindling number of people, particularly those who fought in the Second World War or who were educated under an imperial school system, the notion of an ‘ethnic Britishness’ persists which is founded on common shared ethno-­cultural rituals, symbols and other ties (McGregor 2006). Even if, as Stuart Ward (2001) suggests, a common Britishness has been strongly diluted by the ‘mother country’s’ actions in nationalizing citizenship and pursuing a European integrationalist agenda, the political and cultural legacy of former colonial ties continues to flag enduring notions of a shared (predominantly white) British past. Moreover, Britishness remains central to post-­colonial debates about citizenship and identity across the Commonwealth and beyond. Britishness is also core to debates in the former ‘White Dominions’ – particularly in Australia and New Zealand (see Pearson 2000; Meaney 2003) – highlighting the interrelation between post-­imperial and post-­colonial discourses in a similar fashion to those in the UK. Moreover, as Australian author David Malouf (2003:61) notes in a thoughtful essay on Australia’s British inheritance, ‘the accident of empire’ has delivered a

The enduring legacy of empire   185 network of relationships which are no longer defined by the British or even involve them. As such, deliberations about the legacy of empire in contemporary interpretations of Britishness no longer necessarily involve the British, and are often framed within sub-­state national contexts (i.e. the Scottish impact on New Zealand). The implications of such patterns of cultural exchange continue to compromise current attempts to nationalize British identity and, by association, British culture. Established and new patterns of migration between Commonwealth states, and the emergence of new British diasporas in southern Europe and beyond, will continue to encourage transnational variants of Britishness which overlap and further complicate UK citizenship and identity. Recent events in Australia and the United States highlight the complicated nature of debates about British Empire and Britishness. The recent apology by Australian Prime Minister, Kevin Rudd, to ‘stolen generations’ of Aborigines provides a strong example of the implications of the imperial past in debates about British values, with some arguing that the UK should also offer an apology for its role in such events (Robertson 2008). British treatment of indigenous peoples remains sensitive for many former colonies and is tied to a perceived lack of remorse, which was brought into focus during the visit by the Queen to the United States in 2007 (Leonard 2007). Whilst policy-­makers and others in the UK may continue to underplay the transnational dimensions of Britishness in an attempt to promote positive national values, such approaches merely highlight the myopic limitations which inform the current post-­imperial nationalization of UK citizenship and identity.

Conclusions Recent articulations of ‘new’ Britishness project a common UK citizenship and identity founded on a range of nationally located institutions, and sustained by a common language, history and set of distinct British values. The assumed synonymity of UK citizenship and Britishness is clearly influenced by largely uncritical interpretation of the Anglo-­British national-­imperial narrative, thus encouraging politicians to seek to ‘rediscover’ or ‘recapture’ the values of Britishness to solve post-­empire dilemmas (Blair 2000; Brown 2005). Such approaches have, however, highlighted historical tensions between citizenship, conceived as loyalty to the state, and patriotism, emphasizing the primacy of the Anglo-­British nation that shaped orthodox constructions of Britishness (Stapleton 2005). Those promoting ‘new’ Britishness continue to draw on missionary themes, suggesting that British values are founded within national contexts but disseminated outwards across the empire and beyond. However, although empire and Commonwealth are acknowledged in contributing to the diversity of post-­empire British society, there is scant acknowledgement that imperial subjects from outside the UK may have shaped the development of such values. Those who have migrated from the Commonwealth or elsewhere are not perceived to hold the same values as indigenous citizens, thus suggesting that British society was,

186   A. Mycock at some unspecified time, successfully bound together by British values. These would appear to be inward-­looking, fixed and non-­negotiable, therefore limiting the potential for such values to shape a UK citizenship which is progressive, fluid or aspirational. Although some might argue that the UK has invested too much in post-­imperial guilt, the reality is that consideration of the British imperial legacy is in its infancy. Doubts persist as to whether the British Empire should be mourned or celebrated, drawn on for inspiration for the future or examined to understand the failures of the past. This can be attributed somewhat to a fear that the process of imperial withdrawal remains incomplete, and that post-­empire revisionism regarding the coercive and, sometimes, brutal nature of imperial expansion and (mis)rule could further undermine positive articulations of a British national identity. Whilst the enduring legacy of empire continues to shape post-­imperial and post­colonial responses to defining UK citizenship, there is little acknowledgement of how empire and Commonwealth can also contribute to more generous and plural interpretations of Britishness. Empire is potentially instructive in articulating an inclusive post-­imperial citizenship which reflects British multicultural realities in the UK and beyond. Acknowledgement of the transnational dimensions of Britishness could contribute to the desensitizing of debates about identity, highlighting the reductive nature of current politicized articulations of British and sub-­state national identities. The adoption of a more balanced, open and critical analysis of empire could also provide a key element in the understanding of the morality and enduring imperial legacy which informs Britishness within national and transnational contexts. This would require a sustained re-­evaluation of the political and cultural legacies of empire which continue to influence UK citizenship and British identity. Only then will politicians and others be able to define a more positive and inclusive post-­empire articulation of an outward-­looking British national consciousness that is shaped by the progressive on-going development of British values and which acknowledges multicultural, multilingual, multi-­ethnic and multinational dynamics of UK citizenship.

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Index

Tables are indicated by italic page numbers. 9/11; impact on multiculturalism 4–5

Burke, Edmund 102–6, 108n10

aboriginal groups: rights of 53n3; sovereignty and jurisdiction 160–1 affectivity 67 Altamirano-Jiménez, Isabel 167 American Indians 160–1 Anghie, Anthony 162 Arendt, Hannah 156 astrology and reasonable disagreement 69 Audi, Robert 25

China 98 choice theory of rights 55n11 citizens, responsibility of 24 citizenship and national contexts 113–15 civility, duty of: legislators 29–30; minimal 26–9; shared reasons view 25–6; wrongful advocacy view 26–8 coercion and laws 23 collective conception of group rights 43–4, 49–52, 54n5 collective rights 40 Colley, Linda 179, 184 constructionism 82–4 corporate conception of group rights 43, 46, 48–9, 51, 54n5 critical republicanism 5–6, 132–3, 136–7, 139, 141, 143, 144, 145 critical secularism in practice 138–45 Crowder, G. 94 cultural differences and groupdifferentiated rights 39 cultural group rights: interpretation of 41–6; and threats to individuals 46–54 cultural identification: acceptance of at face value 81; arbitrary and contingent nature of 78; as carrying normative weight 75–8; challenges to essentialist account of 80–4; as constructed 82–4; definitions of culture 78–9; as fixed and constraining individuals 87; indeterminacy of 81–2; normative argument as built on essentialism 84–7; as resting on false essentialism 79–80; scepticism 77–84

Barry, Brian 64–8, 77, 143 Bauer, Otto 166 Benedict, Ruth 79 Benhabib, Seyla 77 Berlin, Isaiah 94, 107n1, 107n2, 108n12 Blair, Tony 176 blocking of public policies 33–4 Brennan, Geoffrey 28–9 Bridge, C. 184 Britain: decline of British identity 175; empire’s contribution to future identity of 177–81; equality movements 115–16; formation of national-imperial identity 171; immigration in 114; loss of empire 172–3; modern attitudes towards empire 172; nationalizing of citizenship and identity 173; persistence of national-imperial identity in 173–5; persisting ambiguity of imperial Britishness 181–5; recognition of legacy of empire 170; search for new Britishness 175–7; state and religion 123, 123 Brown, Gordon 176–8, 179–80 burdens of judgement 62, 63, 68, 93–4

Index   193 D’Agostino, Fred 61 Darnley, J.R. 160 defeators, religious beliefs as 30–4 democracy: and multiculturalism 6; strategic behaviour 28 di Vitoria, Francisco 158 disagreement: nested political 31–3; radical 33 Downs, Anthony 27–8 Drayton, Richard 180 duty of civility: legislators 29–30; minimal 26–9; shared reasons view 25–6; wrongful advocacy view 26–8 Eberle, Christopher J. 20, 30 Economic Theory of Democracy (Downs) 27–8 education: Muslims schools 140–2; and religion 124 empire: formation of national-imperial identity 171; loss of the British 172–3; modern attitudes to 172; persisting ambiguity of imperial Britishness 181–5; recognition of legacy of 170 environment, attitudes to, and reasonable disagreement 70 equality: British movements 115–16; multicultural, moderate secularism as implication of 124–8; public-private distinction 116–17; religious 117–20; two conceptions of 116–17 essentialism: and identification 78–84; and political argument 84–7 exemptions from law 86–7, 143–5 expressive voting 29 Fedorowich, K. 184 feminism and multiculturalism 6 Festenstein, Matthew 6 France: immigration and citizenship 114; Islam in 114; state and religion 123 freedom of speech and reasonable disagreement 71 Galston, W. 94, 107n8, 108n12 Gaus, Gerry 72 Geertz, Clifford 79 gender and multiculturalism 6 Germany, immigration and citizenship in 113–14 Gierke, Otto von 159 Gilbert, Paul 77 Gilroy, Paul 179 Goodhart, M. 107n5

Gray, John 94, 98, 101, 107n1, 107n8, 108n12 Greenawalt, K. 31 group rights: collective conception of 43–4, 49–52, 54n5; corporate conception of 43, 46, 48–9, 51, 54n5; and group-differentiated rights 39–41, 45; interpretation of cultural 41–6; moral standing of groups 42–3, 44–5; and threats to individuals 46–54; transgenerational form of 45–6 group-differentiated rights: alternative meaning of 53n1; development of concept 38–9; and group rights 39–41, 45; and targeted minority rights 53n2 Henderson, James Youngblood 158 Herz, John 161 historical institutions of state and minorities 155–6 Hohfeld, Wesley 54n9 Horton, J. 97 Hume, David 19 immigration and citizenship 113–15 imperialism: and multiculturalism 4; see also Britain; Empire individuals, threats to and group rights 46–54 interest theory of rights 55n11 Isensee, Josef 152 Islam in France 114 Johnson, James 82–3 joint governance 52 jurisdiction and sovereignty 160–1 Kant, Immanuel 19, 24, 157 Keke, J. 101 Klausen, Jytte 145 Kukathas, Chandran 76–7 Kymlicka, Will 39, 40–1, 42, 43, 45, 47–8, 53n1, 53n3, 55n13, 75–6, 85–6, 95–6, 97–8, 99–100, 107n3, 107n6, 134, 151–2, 153, 155–61 laïcité see secularism Larmore, Charles 62, 65 law: based on religion 26–7; and coercion 23; exemptions from 33–4, 86–7, 143–5; wrongful 23–4 legislators’ duty of civility 29–30 Levy, Jacob T. 161

194   Index liberal multiculturalism: and Edmund Burke 102–6; paradox of 92, 95–6; recognition of value pluralism 99–102; two approaches to pluralism 95–9 liberalism: conflict between the group and individuals 92; and multiculturalism 1–2; and reasonable disagreement 60–2, 71–3; rethinking of values and priorities 2–3; and value-pluralism 93–5; see also public reason liberalism Liberalism, Community and Culture (Kymlicka) 40–1, 53n3 Lomasky, Loren 28–9 Macedo, Steve 20, 25 Macklem, Patrick 160–1 MacMullen, Ian 141 Madison, James 30 Malouf, David 184–5 Marx, Karl 155 Mazzini, Joseph 154 Mbeki, Thabo 180 Mehta, U. 102, 103, 104 Mendus, Susan 64 Mill, John Stuart 29, 34, 35, 155 Miller, David 40 minimal duty of civility 26–9 minorities: analogy with the state 153–5; and historical institutions of state 155–6; and the personality principle 166–7; as political communities 158–60; protection of and the state 152–3; rights of 156–8; and self-determination 164–5; sovereignty and jurisdiction 160–1; sovereignty and treaty-making powers 161–4 Mitnick, E. 97 Modood, Tariq 5 Mookherjee, M. 6 mosques, public subsidies for building 142–3 multiculturalism: changes in liberal political theory due to 3, 7; and critical republicanism 5–6; and democracy 6; and homogeneity imposed by states 151–3; impact of 9/11 on 4–5; and liberal and secularist values 1–2; moral foundations of as theme 3; stages of the debate on 151; and state sovereignty and imperialism 4; and women’s rights 6 multi-faith establishments 139–40 Muslims: in Britain 114–15; critical secularism in practice 138–45; and equality movements in Britain 115–16;

in France 114; and religious equality 117–20; schools for 140–2; secularism’s reaction to consciousness of 120–1 Narayan, U. 97 national-imperial identity: formation of 171; persistence of in Britain 173–5 Negotiating Diversity (Festenstein) 6 nested political disagreement 31–3 neutrality of religion and the status quo 132–4 North American peoples 160–1 Norton, A. 80 Okin, S.M. 6, 82 Oryner, Sherry 79 paradox of liberal multiculturalism 92, 95–6 Parekh, Bhikhu 75, 79, 86–7, 125, 143, 154, 159, 180 Patterns of Culture (Benedict) 79 personality principle and minorities 166–7 Philips, Anne 87 Phillips, Trevor 181 pluralism: and liberalism 93–5; two approaches to 95–9 pluralism of reasons 22–3 political claims of religious groups 3–4 political disagreement, nested 31–3 Political Liberalism (Rawls) 19, 62 political theory, liberal, changes due to multiculturalism 3, 7 politics, strategic behaviour in 28 Postema, G.J. 31 public justification principle 21, 23–4 public reason liberalism: development of 19; laws and coercion 23; pluralism of reasons 22–3; public justification principle 21, 23–4; and religion 20; religious beliefs as defeators 30–4; see also duty of civility Pufendorf, Samuel 157 radical disagreement 33 Rawls, John 19, 62–4, 67–8, 92, 93, 94, 107n3 Raz, Joseph 44 reasonable disagreement 3; affectivity 67; alternatives to 58–9; and astrology 69; and attitudes towards the environment 70; burdens of judgement 62, 63, 68; definition 58; as difficult to apply to actual beliefs 68–71; and freedom of speech 71; importance of 58; and liberal

Index   195 political theory 60–2, 71–3; as of questionable value 71; range and scope of 59; and religion 70; scepticism 63, 64, 67; sources of 62–3, 65; as taking different forms 68 reasons, pluralism of 22–3 religion: equality in 117–20; equality of seen as lesser 121–2; laws based on 26–7; neutrality and the status quo 132–4; and public reason liberalism 20; and reasonable disagreement 70; and the state 122–4, 123 religious beliefs: accommodation of 33; asymmetrical status of 30–1; as defeators 30–4 religious groups: increased significance of 5; political claims of 3–4 religious reasons 31–3 Renner, Karl 166–7 republicanism, critical 5–6, 132–3, 136–7, 139, 141, 143, 144, 145 responsibilities of citizens 24 rights: choice theory of 55n11; interest theory of 55n11; of minorities 156–8; types of 54n9

state sovereignty: and multiculturalism 4 states: analogy with minorities 153–5; historical institutions of, and minorities 155–6; homogeneity of and multiculturalism 151–2; minorities and self-determination 164–5; minorities and the personality principle 166–7; minorities as political communities 158–60; and religion 122–4, 123; sovereignty and treaty-making powers 161–4 status quo neutrality 132–4 strategic behaviour in democracy 28

scepticism 63, 64, 67, 77–84 schools: Muslim 140–2; and religion 124 secularism: critical, as impartiality 134–8; critical, in practice 138–45; moderate, as implication of multicultural equality 124–8; and multiculturalism 1–2; and political claims of religious groups 3–4; and public-private boundaries 122–4, 123; reaction to Muslim consciousness 120–1; religious neutrality and the status quo 132–4 self-determination and minorities 164–5 self-government for national minorities 85–6 Shachar, Ayelet 52, 92, 95–8, 101 shared reasons view of duty of civility 25–6 social contract theory 19 sovereignty: and jurisdiction 160–1; and treaty-making powers 161–4 Spaulding, Richard 160

United States, state and religion in 122–3, 123

targeted minority rights 53n2 Taylor, Charles 75, 78 territory: analogy between minorities and the state 155; importance of absence of 156; minority concentration, consequences of 156–8; rights over 156–8 Theory of Justice, A (Rawls) 19 treaty-making powers and sovereignty 161–4 Tully, James 80, 158–9, 160

value pluralist multiculturalism 92, 98 value-pluralism: and liberal political theory 93–5; recognition of by liberal multiculturalists 99–102 van Dyke, Vernon 159–60, 164 voters, responsibility of 24 voting, expressive 29 Waldron, Jeremy 60 Ward, Stuart 184 Westlake, John 161–2 women’s rights and multiculturalism 6 wrongful advocacy view of duty of civility 26–8 Young, Iris 116 Younge, Gary 181