On Exit: Interdisciplinary Perspectives on the Right of Exit in Liberal Multicultural Societies 9783110270860, 9783110270822

Table of contents :
About the Authors
On Exit: Idea, Context, Topics and Open Questions
Interrogating Exit in Multiculturalist Theorizing: Conditions and Limitations
Exit, Freedom, and Gender
Calculating on Identity? The Costs and Benefits of the Costs-of-Exit Debate
Exit, Identity, and Membership
Exit: The Temporal Dimension
Individual and/or Associational Autonomy? Associative Democracy and the Freedoms of Entry and Exit
Minors and the Exit Option Under German Law
Costs of Religious Pluralism in Liberal Societies
City and Migration: Selective Migration and Its Consequences
Index

Citation preview

On Exit

On Exit Interdisciplinary Perspectives on the Right of Exit in Liberal Multicultural Societies Edited by Dagmar Borchers and Annamari Vitikainen

isbn 978-3-11-027082-2 e-isbn 978-3-11-027086-0 Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress. Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.dnb.de. © 2012 Walter de Gruyter GmbH, Berlin/Boston Typesetting: jürgen ullrich typosatz, Nördlingen Printing: Hubert & Co. GmbH & Co. KG, Göttingen ♾ Printed on acid-free paper Printed in Germany www.degruyter.com

Contents About the Authors

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Dagmar Borchers and Annamari Vitikainen On Exit: Idea, Context, Topics and Open Questions

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Elisabeth Holzleithner Interrogating Exit in Multiculturalist Theorizing: Conditions and Limitations 13 Chandran Kukathas Exit, Freedom, and Gender

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Dagmar Borchers Calculating on Identity? The Costs and Benefits of the Costs-of-Exit Debate 57 Annamari Vitikainen Exit, Identity, and Membership

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Nahshon Perez Exit: The Temporal Dimension

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Veit Bader Individual and/or Associational Autonomy? Associative Democracy and the Freedoms of Entry and Exit 116 Meik Fischer Minors and the Exit Option Under German Law Gritt Klinkhammer Costs of Religious Pluralism in Liberal Societies

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Stefan Luft City and Migration: Selective Migration and Its Consequences Index

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About the Authors Veit Bader is Professor Emeritus of Sociology and Professor Emeritus of Social and Political Philosophy at University of Amsterdam. He has written extensively on democratic theory, racism, ethnicity and citizenship, incorporation of ethno-national minorities, and governance of religious diversity, including his latest book Secularism or Democracy? Associational Governance of Religious Diversity, Amsterdam University Press, 2007. Dagmar Borchers is Professor of Philosophy at University of Bremen. Her research interests include issues on multiculturalism and minority rights, virtue ethics, and the history of analytic philosophy. She has also published on bioethics, medical ethics and animal ethics. Her main publications are “Die neue Tugendethik – Schritt zurück im Zorn?” and Borchers/Luy (eds.): “Der ethisch vertretbare Tierversuch. Kriterien und Grenzen”; Paderborn: Mentis 2009. Meik Fischer holds BA in Political Science and BSc in Business Administration from Notre Dame de Namur University. He is currently an exam candidate at the Faculty of Law, University of Bremen. Elisabeth Holzleithner is Associate Professor at Department of Legal Philosophy, University of Vienna. Her interests include issues of cultural diversity and gender and sexual equality especially in the European legal contexts. Her recent publications include “Mainstreaming Equality: Dis/Entangling Grounds of Discrimination”, Transnational Law and Contemporary Problems 14:3, 927–957 (2005), Gerechtigkeit, Stuttgart: utb 2009 and Strasser/Holzleithner (eds.): Multikulturalismus queer gelesen: Zwangsheirat und gleichgeschlechtliche Ehe in pluralen Gesellschaften, Frankfurt am Main: Campus 2010. Gritt Klinkhammer is Professor of History and Theory of Religion at Department of the Study of Religion, University of Bremen. Her research interests include Religion in modern societies, Islam and Islamization in the West, methods of empirical research of religion and theory of religion. Her main publications are “Moderne Formen islamischer Lebensführung” 2000, “Religionen und Recht” 2008, “Sufis in Western Society” 2009, ”Interreligiöse und interkulturelle Dialoge mit Muslimen in Deutschland” 2011. Chandran Kukathas is Professor of Political Science at London School of Economics. He has written extensively on issues of cultural diversity, freedom and toleration, liberalism and libertarianism, distributive justice and political authority. Kukathas’s major works include The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford University Press, 2003. Stefan Luft is Docent of Political Science at University of Bremen. His research interests include multiculturalism-, integration-, and immigration policies as well as town planning policies, of which he has published several books and articles, including Abschied von Multikulti. Wege aus der Integrationskrise (Resch-Verlag Gräfelfing, 2007) and Staat und Migration – Zur Steuerbarkeit von Zuwanderung und Integration (Campus Verlag, Frankfurt am Main, 2009). Nahshon Perez is Schusterman Visiting Assistant Professor at Elie Wiesel center for Judaic studies at Boston University. He received his PhD in political science from Hebrew University of Jerusalem (2007), and has held fellowships at University of Montreal, Catholic University of

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About the Authors

Louvain la Neuve (Hoover fellowship), and UCLA. His book, Freedom from Past Injustices: A Critical Evaluation of Claims for Inter-Generational Reparations is forthcoming (fall 2012) with Edinburgh University Press. He has published in several peer reviewed journals on issues of historical wrongs and compensation, and toleration and pluralism. Most recently he won the European Union Marie Curie Re-Integration Grant for a research project on past wrongs and the problems of inter-generational reparations. Annamari Vitikainen is a doctoral student at Department of Political and Economic Studies/ Social and Moral Philosophy, University of Helsinki. She is currently finalizing her doctoral thesis on the Limits of Liberal Multiculturalism. She has also worked as a visiting researcher at Centre for Applied Philosophy and Public Ethics (CAPPE) at Australian National University (2008), and Institute of Philosophy, University of Bremen (2011).

Dagmar Borchers and Annamari Vitikainen

On Exit: Idea, Context, Topics and Open Questions 1 What is ‘Exit’? The Basic Idea As commonly understood, exit refers to a person’s withdrawal from a group or group activities (such as traditions and customs, but also from group authority and influence). Freedom of exit is often conceived as a necessary if not sufficient prerequisite for one’s ability to modify one’s life plans and convictions, and to live in harmony with one’s conscience and one’s moral (and non-moral) values. Should a person no longer wish to be a member of a particular group, she can leave, and look for new surroundings and challenges. When individuals (as well as groups) change and develop, they may also come into conflict with one another, providing individuals incentives to leave their group behind. In cases of discontent or conflict, exit is, by no means, the only option a person may choose. As economist Albert Hirschman1 showed, there are at least two other possible options: voice and loyalty. Voice means that the person utters her criticism and confronts others with her objections. Loyalty, on the contrary, means that the person stays silent – be it out of consideration for the group or for certain people in the group, or because one feels not capable of exercising one’s voice, or for leaving the group behind. These three options – exit, voice and loyalty – are in complex relations to one another, and one’s choice to utilize one option over others depends on a variety of factors both within as well as around the individual.2 In a certain sense, exit is the most radical step to take since, in most cases, it results in a break, a discontinuity in the life of the individual, implying also the necessity for the individual to start anew, at times in very different and unfamiliar surroundings.

1 Hirschman 1969. 2 These options, in the multicultural context, are discussed in Borchers, this volume.

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2 Exit in Liberal Multiculturalism The use of the exit option, within liberal democracies, can be grounded on several citizenship rights, including freedom of religion, freedom of conscience and freedom of (dis)association. Making use of these citizenship rights may lead one to use the option of exit (be it from different kinds of clubs or parties, but also from friendships or other personal relations), and this option is protected by the law. Whereas exit can thus be seen as an integral element of liberal citizenship and of the liberal state, the debates surrounding exit are relatively new. Within liberal theory, these debates came to the forefront together with the debates on cultural diversity and the liberal state’s responses to this diversity – that is, when liberals turned their focus to multiculturalism and minority rights. In this volume, the debates on exit are situated within the broader context of liberal multiculturalism, and the debates on the liberal state’s responses to cultural diversity. From the liberal perspective, the call for the right of exit is based on three basic premises. Firstly, that individuals should be free to live their lives in accordance with their own conceptions of the good (as long as this freedom does not infringe upon the freedom of others to do the same). Secondly, that this freedom can also be used collectively, giving coalitions of individuals (groups) freedom to organise their internal affairs – that is, giving groups a certain level of group autonomy. And thirdly, that the role of the liberal state is to guarantee these freedoms. With respect to individuals, this entails the upholding of certain basic rights (such as freedom of religion, freedom of conscience etc.). With respect to groups, this entails non-intervention. The upholding of the basic rights of individuals and the non-interventionist stance with respect to groups may, however, create certain conflicts, especially in cases where the group refuses to respect the basic rights of (some of) its members. This is where exit and, moreover, the right of exit, comes in. In order for the groups to be allowed to govern their internal affairs without the interference of the liberal state, the group members must be allowed to exit their group. That is, they must have a right to leave their group should they no longer find it worthy of their allegiance. The following figure illustrates the relations between the individual, group and state within the liberal framework.

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Figure 1: Relations between the individual, group and state within the liberal framework.

The right of exit concerning the relation between the individual and her group, attempts to solve the potential conflict arising from the right of the group to govern its own affairs, and the liberal state’s commitment to protect the basic rights and freedoms of its citizens. It is the minimum requirement for any group autonomy, since it operates as an access point of individuals to those basic rights and freedoms that they are entitled to as citizens of the state. Exit, in this context, thus has to be more than an option, it must also be a right that guarantees the access of individuals to their (other) basic rights. What it means for exit to be a right, whether this right is sufficient, and what the preconditions for making this right meaningful are, these are all questions that the theorists of liberal multiculturalism disagree upon. They are also questions that form the very core of debates on exit and, also, some of the core questions addressed and reassessed in this book.

3 Topics and Questions Groups Quitting so-called associative groups (such as sports clubs or leisure societies, different kinds of initiatives or even political parties), need not be difficult nor particularly problematic. Often, one can terminate one’s membership relatively easy and without mentionable harm to oneself or the group in question. Although leaving such groups can, at times, be difficult (not least due to the emotional bonds one has formed with other group members), the question about the possibility of exit does not normally arise. Even in groups based on common

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ideologies, such as political parties in multi-party democracies, exit is normally conceived as a viable option, although it is clear that the likelihood and the easiness of one’s exit may differ, depending on the nature of the group and the intensity of one’s involvement in the group in question. Most debates on the right of exit do not, however, relate to questions concerning exit from these kinds of associative groups, but from so-called constitutive groups. Constitutive groups, such as cultural or religious communities, are different from the associative groups (such as sports clubs or political parties) mentioned above in so far as they are, to some substantive extent, constitutive of their members’ identities, shaping their members’ senses of themselves as well as their life options. Often (although not always) people have not chosen to belong to such groups, nor do they necessarily see leaving such groups as a viable option. One of the main problems with respect to constitutive groups and the right of exit relates to the viability of exit from these groups. What does it mean to exit from ethnic, cultural or religious groups? Is it even possible to exit such groups? And if exit is not an option from such groups, how can it be a right?3 Some theorists go as far as to claim that the liberal emphasis on the right of exit is a category mistake, as exit from associative groups is unproblematic and trivial whereas exit from cultural, ethnic or religious groups (so-called constitutive groups) may be impossible.4

Costs Whereas it may at times be extremely difficult, or (for all practical purposes) even impossible to leave one’s cultural or religious community, it is, nevertheless, a fact of the world that people do sometimes manage to quit these communities and leave behind even the strictest and most isolated groups and ways of life. Whereas the fact that ‘exit happens’ does not necessarily mean that exit would be a realistic option for everyone, it does mean that, under certain conditions, people can leave, and that it makes sense to talk of those conditions within which exit is possible. After all, liberal theorists agree that people should be able to exit their groups, regardless of how intensive, closely knit or isolated these groups may be.

3 Some of the difficulties relating to the nature of exit from constitutive groups are discussed in Vitikainen, this volume. An interesting tension between the right of exit and collective responsibility with respect to past injustices is discussed in Perez, this volume. 4 Cf. Weinstock 2005.

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The debates on those conditions under which exit is possible are often discussed under the so-called costs-debate, incorporating both empirical as well as normative questions relating to the kinds of costs people are faced with when leaving, or contemplating of leaving, their communities. One part of the debate – the cost question – focuses on those conditions and obstacles that people are faced with when trying to exit. As pointed out especially by the feminist critique, these conditions and obstacles may not be the same for everyone, but depend on the group in question, the society within which this group is situated, as well as the place of the individual within her group as well as the larger society.5 The different kinds of costs may also be analyzed in terms of their nature (e.g. financial, social, psychological costs), or in terms of their source (e.g. intrinsic, associative, external costs).6 The cost question and the analysis of the actual obstacles of exit, do, of course, also raise certain normative questions relating to the legitimacy of these costs, and the responsibilities of different actors (individuals, groups, state) in bearing these costs. This part of the debate – the cost problem – includes questions relating to the responsibilities of the liberal state to provide for those conditions within which the right of exit becomes meaningful. Provided that, at times, exit may (for all practical purposes) be impossible, the question remains, what the liberal state should do in order for this right to prevail.7 Among liberal theorists, no consensus about the legitimacy of different kinds of costs, the responsibility of the liberal state to ease these costs, or the means through which the reduction of costs should be done, can, however, be found.8

Function A third important debate with respect to the right of exit revolves around the function of exit – that is, around what, exactly, is the right of exit supposed to

5 For classical feminist critiques on exit, see e.g. Okin 2002, Phillips 2004, Shachar 2001. These critiques are returned to and reassessed in Holzleithner and Kukathas, this volume. 6 Cf. Barry 2001. 7 As seen in the contributions to this volume, the role of the state, and the normative questions with respect to what the state should do in order to alleviate the costs of exit, play a central role in debates on exit. A variety of perspectives to this question are suggested in Bader, Borchers, Fischer, Holzleithner, Klinkhammer, Kukathas and Vitikainen, this volume. 8 For some classical alternatives, see e.g. Kukathas 2003; Galston 2002; Spinner-Halev 2000.

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do. Oonagh Reitman identifies three roles that are often associated with the right of exit: those of the basic role, the protective role, and the transformative role.9 The basic role of exit is an implication of basic liberal rights (freedom of conscience, freedom of association, freedom of religion), guaranteeing individual freedom and direct access to the regulatory system of the state. The basic role of exit is a component of a larger theory of justice. It is a by-product of a particular type of multicultural nation state […] the contemporary, cosmopolitan liberal democratic state which engages in extensive regulation. Here, a right of exit is essentially the opportunity for a member of a particular cultural community to be or become a member of society in an unmediated manner, without going through the group and without becoming subject to its regulatory power. The basic right of exit exists when there is a direct regulatory link between the individual and the state.10

Many theorists of exit do, however, also view exit as performing two further roles. In its protective role, exit is supposed to mitigate the harm of group injustices or oppression by providing group members the right to escape such oppression. In its transformative role, exit changes the nature of the group, often by accommodating the views of those who have, or are about to, leave the group. In its transformative function, exit comes close to the option of voice as it is more the threat of losing members (than the actual exits) that may motivate the group to change its ways and to accommodate also the views of those who might otherwise leave. These two further roles of exit – those of protection and transformation – have been criticized from a variety of perspectives. As highlighted by the cost debate, the stakes of leaving one’s group may be too high, rendering the protective role of exit under doubt. On the other hand, it may be naïve to think of exit as an avenue for transformation, as it is often by enforcing the traditional norms and practices and by excommunicating dissenters that religious and cultural groups aim to strengthen their identities as distinct, viable communities within the liberal state.11 Whereas exit may, at times, protect individuals against oppression as well as give the group incentives to change, it is unlikely that this is always the case. Further, it is highly debatable whether exit can do all the work it is supposed to do, giving sufficient protection to vulner-

9 Reitman 2005. 10 Ibid., 190. 11 Some of the issues relating to the balkanisation of spaces are discussed in Luft, this volume. Questions relating to the social and political integration of cultural and religious groups are the topics of Bader and Klinkhammer, this volume.

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able members, or strong enough incentives for the group to liberalize from within.12

Alternative Avenues Given the scepticism towards the applicability and sufficiency of the right of exit within liberal democracies, many theorists have turned to look for alternatives. The potential conflict between the basic rights of individuals and the freedom of religious or cultural groups to govern their internal affairs seems not be solvable solely by concentrating on the right of exit, but may require alternative measures and approaches. As Daniel Weinstock suggests: [T]he general strategy of the liberal state in the face of illiberal groups should in my view go beyond the simplistic dichotomy of abstention/intervention. The general strategy it should enact should be to attempt to alter the “force field” within which the majority/ minority relations constitute themselves.13

What this “altering of the force field” comes down to and how it should be implemented may, of course, warrant several interpretations, including a variety of measures aimed at changing the current power structures and cultural biases of the society. The cultural sensitizing of public institutions, laws, symbols, practices and (language) policies may help the minority groups to be part of the larger society rather than to isolate themselves from the mainstream society. Similar effects of integration may be brought forth by the recognition of the minorities’ contributions and the possible past injustices that have led to the current status quo.14 The developing of more inclusive avenues of participation15, and even policies relating to concrete, spatial planning of cities, school districts etc.16 may help the minority members, not only to effectively use their right of exit, but also reduce the instances in which such a right needs to be utilized.

12 What this “sufficient protection” means, or whether the groups should be given incentives to liberalize from within in the first place are, of course, difficult questions, some of which are returned to in Kukathas, this volume. 13 Weinstock 2005, 245. 14 From the perspective of exit with respect to the majority, this is not entirely unproblematic, as discussed in Perez, this volume. 15 One such avenue, that of Associative Democracy, is discussed in Bader, this volume. 16 These are discussed in Luft, this volume.

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Whereas the right of exit, as an implication of (other) basic rights, cannot be disregarded, its role as the decisive political tool for responding to minority groups may (and also has been) questioned. At the same time, it is important that the measures aiming to reduce the need for people to exit their communities are combined with measures that make this right effective, also for the most vulnerable members of cultural or religious communities.17

4 About this Volume This volume brings together scholars from different backgrounds to discuss various theoretical as well as more practical questions relating to the right of exit. The entries to this volume differ, both in their theoretical frameworks as well as in the normative suggestions they put forth, bearing only the commonality of understanding exit as one of the key features of liberal democratic societies. The authors of this volume come from a variety of academic disciplines and their backgrounds, with respect to the debates on exit, are also different. Some contributors have participated in the debates on exit and on cultural accommodation for decades, others have only recently started to make advancements in this field, bringing forth new perspectives and insights from their previous interests and topics of research. The majority of debates on the right of exit – both academic as well as political – have been conducted in the Anglo-American world. Whereas these debates are, by no means, new to the German speaking world, the German political situation (including its persistent denial of multiculturalism that has, only recently, come to be questioned) has kept these debates in the marginal. At the same time, the German academic contributions to the topic have, for the most part, operated well within the frameworks of the Anglo-American discussions. Keeping this background in mind, one of the purposes of this volume is to initiate a discussion between the broader, mainly Anglo-American debates on exit and cultural accommodation, and the German speaking world. This was also one of the aims of the Exit-conference that was held at the University of Bremen in late 2009. The Exit-conference, hosted by the Institute of Philosophy, University of Bremen, provided an open, interdisciplinary platform of debate, and we are

17 Exit from the perspective of vulnerable members, including women and children, is discussed especially in Holzleithner and Fischer, this volume.

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very pleased to see some of the novel ideas and discussions of this conference having also been transferred into the entries of this volume. The discussions on exit, as any discussions on multiculturalism, cannot be conducted solely within one academic discipline, but call for an interdisciplinary approach, taking also concrete social and political situations into account. The interdisciplinarity and the variety of different approaches portrayed in this volume do, no doubt, also create a certain amount of fragmentation into the composition of this volume. Our aim, it should be emphasized, has not been to get rid of this fragmentation, as the issues on exit (both in theory and in practice) are very complex, incorporating several difficult questions that may, in the end, need to be discussed in slightly different contexts and from slightly different perspectives. Although the articles of this volume bear the commonality of being situated within the liberal theoretical framework (broadly construed), and assessing the questions of exit from the perspective of the liberal state, this volume promotes no particular standpoint or approach through which the issues on exit should be discussed. On the contrary, the questions of exit are looked at from several different perspectives, including political science and philosophy, religious studies and jurisprudence, democratic theory, global justice and feminist theory. The utilization of different perspectives, we believe, not only helps to highlight the complexities inherent in the debates on exit, but also helps to address some of those issues that, in concrete policy making, should be taken into account.

Brief Description of the Entries to this Volume In her article Interrogating Exit in Multiculturalist Theorizing, Elisabeth Holtzleithner discusses some of the conditions as well as limitations of the right of exit in liberal multicultural societies. According to Holzleithner, the reasons for insisting on the right of exit must be grounded on the same rationale as the protection of cultural groups in the first place. Holzleithner develops an autonomy-based rationale to such effect and argues that the conditions of autonomy also operate as conditions of exit. Being thus, the right of exit always transcends its plain idea, providing realistic rights of exit also to the most vulnerable members of cultural groups. An altogether different view is given by Chandran Kukathas, who defends the so-called plain exit principle against the feminist, interventionist critiques of guaranteeing realistic rights of exit to everyone. In Exit, Freedom, and Gender, Kukathas discusses some of the strengths as well as limits of the plain exit principle and shows that, in the light of alternatives, the plain exit principle is

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most consistent with the repudiation of force as a means of determining how people should live. Whereas the plain exit principle may not give a fully satisfactory answer to concerns posed by the feminists and multiculturalists alike, these limitations do not weaken the role of the principle, but rather show something important about the nature of the problems we are concerned with. Dagmar Borchers’s entry Calculating on Identity? takes a peek into the initial framing of the debates on exit by looking at the ways in which terminology, initially developed for economics, has been transferred to political science and philosophy. Borchers questions the transferring of the costs -terminology from economics to political science by analyzing many of the ways in which the reasoning, behaviour as well as the situation of the exit candidate in cultural groups is different from that of the rational consumer of economics. In order to do the work it is supposed to do, a far more sophisticated analysis on different types and forms of exit, as well as the reasons for people to take the option of exit, is needed. In Exit, Identity, and Membership, Annamari Vitikainen focuses on the ways in which one’s understandings of ‘group membership’ and ‘belonging’ affect one’s understandings of exit and the liberal state’s responses to exit. Vitikainen utilizes a recognition-based account of group membership, and argues for a continued state recognition of those who have exited the contours of their group without renouncing their belonging to such groups. This recognition, Vitikainen argues, not only provides certain external affirmation to those identities that people themselves wish to subscribe to, but also comes closer to fulfilling the idea that the liberal state should not take a stand on the substantive requirements of group membership, but rather leave it to the group members themselves to decide what these requirements may be. In his entry, Exit: The temporal dimension, Nahshon Perez focuses on the temporal dimension of exit and the possible implications that the acknowledgement of this dimension brings to both, more traditional cases of exit from cultural or religious groups, and the questions of exiting one’s political community. Perez argues that the fundamentality of the right of exit and the proper acknowledgement of its temporal dimension should lead us to rethink some of the issues of intergenerational collective responsibility as these views are in an uneasy tension with the liberal conception of a “person” as an individual with certain fundamental rights and liberties. In his article Individual and/or Associational Autonomy?, Veit Bader focuses on the model of Associative Democracy (AD) and the benefits of this model for enhancing freedoms of entry to and exit from cultural groups. In the face of the inevitable tensions between individual and associational autonomy, Bader argues for a model of maximum accommodation (full range of associational

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autonomies) that is, nevertheless, constrained by minimalist but strong morality that guarantees the basic needs and rights of individuals. Instead of imposing liberal values on illiberal groups, the power sharing and the institutional pluralism of Associative Democracy nurtures the conditions in which the freedoms of entry, exit and voice can be exercised without nullifying the associational autonomy of the groups in question. Meik Fischer’s entry, Minors And The Exit Option Under German Law, focuses on the possible obstacles and further avenues for an efficient right of exit for minors under German law. As it stands, the German legal system enables minors to exit their communities/parents, but these avenues are constrained by several factors. Fischer discusses the conflict between the rights of the parents and the rights of the minor, and the grounds upon which the courts can strike a balance between the two. Further, Fischer analyzes the role that a minor herself can play in gaining legal exit from her community/parents by showing some of the insufficiencies of the current system as well as possibilities for the minor to play a more active role in the process of gaining exit. Gritt Klinkhammer’s article Costs of Religious Pluralism in Liberal Societies is also contextualized within the German framework addressing the role of religion and, especially, Islam in contemporary German society. Klinkhammer discusses both religious as well as legal understandings of religious affiliation, exit and voice, and argues for more integrative measures for including both current and next generation Muslims into the German society. The integration of minority groups, be they religious, cultural or other, do, of course, require concrete policy actions that may be variously formulated. Stefan Luft’s entry, City and Migration, discusses some of these policy avenues, as well as their problems, by analyzing the effects of selective migration and segregation of social classes in German cities. Luft argues that even if selective migration cannot be fully constrained, some of its consequences may be reduced for example by effective education policies that cater for equality of opportunities also in the senses of equal opportunities to integration. Our sincere thanks go to all the authors for their continued support for and enthusiasm with this project, as well as to Amelie Stuart and Sebastian Kock for providing invaluable linguistic as well as editorial assistance in completing this volume.

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Bibliography Barry B. (2001): Culture & Equality. An Egalitarian Critique of Multiculturalism; Cambridge: Polity. Galston W. (2002): Liberal Pluralism. The Implications of Value Pluralism for Political Theory and Practice; Cambridge: Cambridge University Press. Hirschman A. (1969): Exit, Voice and Loyalty. Response to Decline in Firms, Organizations and States; Cambridge/Mass.: Harvard University Press. Kukathas C. (2003): The Liberal Archipelago; Oxford: Oxford University Press. Okin S. (2002): „’Mistresses of Their Destiny?’ Group Rights and Realistic Rights of Exit”; Ethics 112, 205–230. Phillips A./Dustin M. (2004): “UK Initiatives on Forced Marriage: Regulation, Dialogue and Exit”; Political Studies 52, 531–551. Reitman O. (2005): “On Exit”; In: Eisenberg, A./Spinner-Halev, J. (eds.): Minorities within Minorities, Cambridge: Cambridge University Press, 189–208. Shachar A. (2001): Multicultural Jurisdictions. Cultural Differences and Women’s Rights; New York: Cambridge University Press. Spinner-Halev J. (2000): Surviving Diversity. Religion And Democratic Citizenship; Baltimore: The John Hopkins University Press. Weinstock D.M. (2005): “Beyond Exit Rights: Reframing the Debate”; In: Eisenberg, A./SpinnerHalev, J. (eds.) Minorities Within Minorities; Cambridge: Cambridge University Press, 227–246.

Elisabeth Holzleithner

Interrogating Exit in Multiculturalist Theorizing: Conditions and Limitations1 Exit – the door with the glowing red sign – marks the road not taken that proves we chose our path.2

In recent theories dealing with the challenges of culturally and religiously diverse societies, the “right of exit” has assumed a prominent position. “Strong”, communitarian multiculturalist positions3 hold that cultural and religious groups should be free to flourish according to their own values, even at the price of neglecting the rights and freedoms of some of their members, as long as they do not keep anybody from leaving the group. A cultural or religious minority, that is, may be granted control over its members’ ways of life, (ideally) protected by “group rights”, but it “cannot be granted control over its members’ exit”4. For libertarian approaches to multiculturalism, such as Chandran Kukathas’s, the right of exit is also pivotal.5 According to Kukathas, the right of exit is “the individual’s only fundamental right, all other things being either derivative of this right, or rights granted by the community”6. Accordingly, as long as individuals have the right to leave their communities, these communities should be left alone by the liberal state.7 The right of exit is one answer to the question of how far religious and cultural groups may go in interfering with their members’ liberal rights and claims to equality. The basic idea is that not every group within “liberal societies” – roughly speaking: societies that are governed by a Constitution contain-

1 I want to thank Dagmar Borchers and Annamari Vitikainen for their patience, input and support. 2 Mahoney 1992, 1283. 3 As opposed to a liberal, moderate, or, in Fish’s (1998) rather polemic diction, “boutique” multiculturalism. 4 Margalit/Halbertal 1994, 508. 5 Kukathas 2003, 4. 6 Kukathas 2003, 96. 7 Contrary to other multiculturalist theorizing, Kukathas’s libertarian approach with its “plain exit principle” (Kukathas 2005, 5; see also Kukathas, this volume) is no basis for group rights but only for a group’s right to be left alone. The whole idea of multiculturalism is that it “advocates dealing with diversity not by assimilating, or expelling, cultural minorities but by accommodating them” (Kukathas 2001, 85).

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ing fundamental human rights – must be obliged to respect the individual rights of its members or to observe the principle of equality in the generally egalitarian ways it has come to be understood, which includes, among others, the equal rights of women, sexual and religious minorities. And yet, such groups may still be entitled to state support in the name of multiculturalism, including “group rights”8. This paper interrogates the centrality of the right of exit as stated by such approaches, and its function in political theories. It does so from the position of vulnerable persons, such as women9, children, sexual minorities10 or religious apostates. The main point is to question whether exit should be the main right a person is supposed to have in regard to his or her cultural and/or religious group, and if and to what extent the state is called upon to provide enabling conditions in order to render exit a realistic option. These deliberations are based on the elaboration of a principle of autonomy as its central normative reference point. They lead to the conclusion that in order to provide enabling conditions of exit, certain state measures will be necessary that typically amount to (transformative) interventions. Accordingly, the right of exit, if taken seriously, always transcends its plain idea.

What Exiting is About On closer examination, exiting is not a single act, and the right of exit is not a single right. It is rather a principle that should correlate with specific rights, a complex array of rights and options, which relate to the conditions under which somebody is a member of a group and stays within this group. There is not “one” right of exit but a cluster of rights that have to be observed if exit is to be rendered possible, depending on which situation someone exits from. Talk about exit invokes a spatial metaphor, yet there may be much more to exit than going away. Whether exit is possible and under which circumstances it may take place depends on what it means to be a member.11 Membership in a group may be gained by birth or confession, (a legal act of) accession or a specific way of living. To consider the complexities of exit, just think of marriage:

8 Jones 2009. 9 See also Okin 2002; Follesdal 2005; Reitman 2005; Phillips 2007, 133–157. 10 One of the few papers dealing with this issue in the context of multiculturalism is Levy 2005. 11 On different types of exit and membership, see Vitikainen, this volume.

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a legal institution – a contract – combined typically with a range of practices that characterize a way of life together, such as sharing a home and finances, taking care of eventual offspring and of relatives who are in need, organizing one’s lives around the responsibilities this brings, usually and still in a conventionally gendered way.12 Exiting a marriage is a complex process that works on several levels: legally, spatially, emotionally, etc. It is a process that may be costly in many regards – for oneself and for the person or people one leaves behind – and a process that can at times turn out to be dangerous, even lifethreatening, just as staying may be.13 Exit from marriage, never easy, has been alleviated in the past decades, but still legislators indicate that a marriage’s preservation is preferable. Take, for example, § 1565 German Civil Code (BGB), which provides that a marriage may be divorced in case of its failure (“Scheitern”). Failure of marriage is defined as the non-existence of the marital community, provided that its restoration is not to be expected. If the married couple has not yet lived separated for one year, the marriage can only be divorced if its continuance would amount to undue hardship for the petitioner for reasons that emanate from the other spouse. This cooling-off period is intended as a chance for reconciliation14, and German courts are rigid in their constructions of what constitutes “undue hardship”15, so most married couples looking for divorce simply let the year pass. The general rigidity of German Courts’ constructions of undue hardship bore a remarkable result in a case at the intersection of colliding national-legal, cultural and religious understandings. In an infamous case the Frankfurt District Court initially did not grant earlier separation due to undue hardship when a German citizen originally from Morocco wanted to get a divorce from her husband, a Moroccan citizen, to whom she was married according to Moroccan law (the Sharia at the time of the marriage, replaced in Marocco by a new secular marriage law in December 2005).16 The wife claimed that her husband had beaten her and had issued death threats. The judge argued that it is “not unusual” for a Muslim man from Morocco to “exert a right of corporeal punishment” against his wife. Referring to Koran’s surah 4,34, which she interpreted as legitimizing physical violence exerted by a husband, the judge could not see how the hardship

12 That is why Susan Okin talks about “vulnerability by marriage” (Okin 1989, 134–169). 13 Accordingly, Martha Mahoney redefines the issue of separation that very often focuses on the question of why a woman did not leave an abusive relationship by invoking the notion of “separation assault” (Mahoney 1991, 6). 14 See Neumann 2011, Rn 18–19, with reference to BGH NJW 1981, 449 = FamRZ 1981, 127. 15 Neumann 2011, Rn 25–26, with reference to respective precedents. 16 Zoglin 2009.

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the wife suffered was “undue”. (The judge did, however, extend an existing restraining order in order to keep the violent husband from getting near the woman.) The judge’s decision was soon overruled for blatant error of law – and a heated debate on the role of the Sharia in German law ensued.17 Another example for the diverse hurdles standing in the way of exit is the story of Bryon Widner, an ex-Skinhead who had his ideology of hate tattooed all over his body, including his face. When he renounced this ideology, not only did he get into trouble with his former gang, he also faced enormous obstacles integrating into the larger society because his change of mind could literally not be “seen”. His face still spoke of brutality and white supremacy. He realized that “his marked face would forever frustrate his efforts to rejoin the respectable world”18. Getting rid of the tattoos turned out to be the only way of effectively leaving his past behind – of truly exiting his former way of life. That this process took a lot of time, was intensely painful and also consuming financial resources Widner himself did not have – the removal was financed by the Southern Poverty Law Center19 – further serves to highlight the challenges of leaving a situation one finds oneself stuck in, be it due to one’s own actions or other people’s activities – and usually a complex combination of both.

Grounding the Right of Exit Obviously, exiting is often difficult. Leaving a familiar situation for the unknown is apt to be daunting, especially if one is not the adventurous type, low on resources and high on responsibilities. Furthermore, exit may be aggravated because some group members are not willing to let one go. This is hardly uncommon – and it may be the pronounced wish of the more or less tight-knit communities one has become a member of, be it by birth or accession. So, how does it come that multiculturalist theorists as a matter of principle hold of cultural and religious groups that their first and foremost duty is to let unwilling

17 For further discussion and analysis, see Posch 2007. 18 Steinback 2011. “Widner is one of thousands of young kids who get pulled in, looking for family, looking for acceptance,” Roy said. “When you get all those tattoos, pardon the pun, you’re branded. There’s no way out. Nobody in society is going to hire you or give you a chance. It’s worse than having a criminal record, and most of these kids have both, tattoos and a criminal record. So they’re not going to get the job as a lifeguard down at the Y.”. 19 http://www.splcenter.org (seen 02.11.2011).

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members go? Why not go all the way and allow cultural and religious groups to treat their members as they please? In other words, why do different multicultural theories set limits to what a cultural or religious group may do to its members, including forcing them to stay? It is my contention that the reasons for the right of exit have to correspond with the reasons for why cultures and religions should be protected in their flourishing in the first place. Several ways of establishing the importance of culture or religion can be found in the literature. I am going to focus on three of them: One is the right of every person to secure his or her own culture-based identity. Another is the right to associate, which carries with it the corresponding right to dissociate. The third is reference to individual autonomy. The following deliberations are going to explore each of these approaches and investigate their potential for grounding a (realistic) right of exit.

The Overriding Interest in One’s Personality Identity In the fashion of the first argument, Margalit and Halbertal claim that “every person has an overriding interest in his personality identity – that is, in preserving his way of life and the traits that are central identity components for him and the other members of his cultural group”.20 In the blatantly gender-insensitive language that was still quite common in political philosophy in the 1990s, the authors express a rather static view of personality identity-interests in tying them rigidly to the sustenance of one’s cultural group of origin. The quest for change, for another life that one hopes will be better, could be regarded just as elementary. But let us set this issue aside here and continue by asking: If a person by definition has a fundamental interest in preserving his or her personality identity, which seems to be inseparably connected to the way of life of his or her cultural or religious group – if, then, cultural and religious groups because of that have to be accepted and supported in their ways of life by the liberal state – why should these groups not also be respected in withholding somebody from leaving? Because if a person wants to leave, he or she obviously disregards what Margalit and Halbertal claim is her real, her higher interest, which should have been to live according to the established way of life, which is something a group might refer to when forcing a person to live in accordance with it – and to remain in order to live in accordance with it.

20 Margalit/Halbertal 1994, 505.

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I believe that the logic of Margalit and Halbertal’s argument demands such an interpretation since the authors do not invoke agency or autonomy in their rationale for the right to culture or a right of exit. What they do claim is that “the right to maintain a comprehensive way of life within the larger society without interference” is limited by the harm principle.21 Unfortunately, the authors neither elaborate on the foundations of their harm principle, nor do they explore its scope. But stitching together the right to culture and the harm principle, one may gather that a member of a religious or cultural group does not necessarily have a fundamental interest in his or her way of life if it is characterized by (serious instances of) harm. Accordingly, because it is understandable if the interest in one’s personality identity does not comprise living in a state of being harmed, Margalit and Halbertal postulate a right of exit – or rather a limit to group power: A group must not withhold somebody from leaving, if he or she does not want to remain because he or she does not identify with the group’s way of life – because of being mistreated. The function of the right of exit in such a theory is to provide protection from maltreatment by eluding it. As my reconstruction for its rationale has shown, its philosophical basis is rather feeble, and its scope is unclear.

The Right to Associate and Dissociate Chandran Kukathas proposes another, similarly narrow yet completely different approach to the right of exit. According to Kukathas, “the right to be free to leave … has to be the individual’s fundamental right; it is also his only fundamental right, all other rights being either derivative of this right, or rights granted by the community”.22 The point is that an individual must be free to reject any kind of authority that he or she has not chosen to abide: “The right of exit is, in fact, nothing more or less than the right to repudiate authority”.23 Kukathas emphasizes the centrality of this right because “[p]eople should be free to live as conscience dictates; and not be required to violate conscience”.24 So they must not be forced to remain a member of a community with a belief they do not share.

21 22 23 24

Margalit/Halbertal 1994, 498. Kukathas 1995, 238. Kukathas 2003, 97. Kukathas 2003, 95.

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Needless to say, not every community tries to force a belief on its members. And it is remarkable that Kukathas does not primarily conceptualize the freedom of association in the positive: as a right to form or to join an association. Accordingly, the most, even the only fundamental right Kukathas ascribes to the individual is one that the individual has against communities she finds herself a member of – “the right to leave the community.” Why this primary focus on leaving? This may be because of the experience that most of one’s constitutive communities are such that we are “thrown” into by birth and/or socialized into from early on in our lives. The image of a passive position of a person in regard to the groups she finds herself in is mirrored in the way Kukathas conceives of a group’s authority. He puts strong emphasis on the group’s not having any independent right to even exist: it is rather the “acquiescence of its members” that constitutes the group’s authority. Accordingly, the group and its authority are something a person submits to – if and as long as she can – in order to “be free to live as conscience dictates”25 (to repeat the phrase of Kukathas). Freedom of conscience has a pivotal function in Kukathas’ theory. One might ask why it does not go any further than a right to exit the community where this freedom is not respected. Kukathas seems to suggest that one’s belief can make one accept many restrictions, even the infliction of physical or emotional harm, but not the trampling of one’s personal beliefs. And as to harm, Kukathas does see that communities may condone or perform injuring practices – but he also thinks that it is never the duty of outsiders, or even of the state, to interfere. This view, he readily admits, “leaves illiberal groups free to deal with their own members, tolerating their practices even when the wider society finds them abhorrent. For as long as members acquiesce in the ways of their communities or traditions, the view of multiculturalism I advance suggests that they be tolerated”26. Part of Kukathas’s strictness here comes from his belief that state or outsider interference does not have the potential to ameliorate the situation. Quite the contrary, he sees state power as a devastating force that has the tendency of making things worse.27 Keeping in line with this sceptical attitude towards the state, Kukathas speaks about rights in a rather restrained way. He seems to have rights in mind that are granted by the community, since it is the community where a person lives. This is quite obviously in contradiction to the fact that most laws emanate from the

25 Kukathas 2003, 95. 26 Kukathas 2001, 93. 27 Kukathas 2001, 94.

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state.28 In a footnote, however, Kukathas adds the aspect of “rights which an individual living within a cultural community might have as a member of the wider society.” He elaborates: “Some of these might be exercised by an individual while living in the cultural community within that society; other rights it might not be open for the individual to take up without leaving his cultural community. For example, an individual might not be free to exercise the right to marry whomsoever she wishes if such a right is recognized by the wider society but not by her religious community – unless she chooses to leave her religion”29. The way I understand Kukathas, he does not intend to say that leaving one’s religious community if one wants to marry a religious outsider is all there is. (It should be added that the problem arises predominantly for women rather than for men, and that this “choosing to leave her religion” can hardly be distinguished from expulsion30). But he does say – echoing feminist critiques of multiculturalism – that conflicts can and indeed do time and again come down to a harsh “choice” between one’s culture and one’s rights. Like Margalit and Halbertal, the theory of Kukathas evokes the image of rather tight cultural communities that seal themselves off from the broader community. Kukathas is careful to clarify that this is not an ontological premise. He accepts that cultures are complex processes that shift and change and that have permeable boundaries with other cultures as well as with the societal mainstream. His point is, however, that difficult situations can and will occur when a culture comes into conflict with, for example, feminist aspirations to liberty and equality for women, and that this has to be taken seriously: “[W]hen the interests of women (as feminists construe them) come into conflict with the claims of culture, only one can prevail”31. His suggestion is, as stated above, that he gives culture its due – under the condition of what he calls the “plain exit principle”32. The nature of the plain exit principle is such that the costs of exit are not an issue. Generally, Kukathas separates the costs of exit from the freedom to dissociate: “The magnitude of the cost does not affect the freedom”33. All costs of exit, he claims, are in reality opportunity costs arising because one does not seize an occasion. Kukathas illustrates this assertion with an example: “I am

28 On Kukathas’ theory being modeled along the image of international society see Walzer 1997. 29 Kukathas 2003, 93, footnote 45. 30 See MacKinnon 1983. 31 Kukathas 2001, 91. 32 Kukathas 2005, 6, see also Kukathas, this volume. 33 Kukathas 2003, 107.

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offered a billion dollars not to leave my position as CEO to become a professor. Exit is thus rendered extremely costly. Yet it would be odd to say that I am no longer free to leave. The cost of leaving has risen; but I am as free as I ever was”34. This almost frivolous example does not seem to take the issue seriously. It is reminiscent of Anatole France’s sarcastic praise of the law’s eternal majesty that “punishes with equal severity the theft of the poor and of the rich and permits them impartially to sleep under a bridge”.35 A general point can be made here concerning the way Kukathas fashions exit: it reflects an impoverished notion of human beings, who are conceptualized as if all they did was to choose between more or less attractive options on the market of life chances. Green, who has put such a critique forward, complains that people are perceived as “well-informed customers who enter and leave the market with low transaction costs. But the forms of group rights that matter most to us are not at all like that: Group membership has noninstrumental value, entry is automatic or even ascriptive, the groups structure whole lives, and the transaction costs of change are huge. The notion that the dissatisfied might simply leave is, in such circumstances, fatuous”36. This notion turns out to be especially dubious with examples of harmful situations in mind where exit becomes a dangerous undertaking. Is somebody “free” to leave an abusive relationship if he or she is confronted with a serious death threat? Is it really adequate to speak of “opportunity costs” in such a context? The analysis highlights that speaking of “costs” as such is problematic; a difficulty that intensifies with Kukathas’ respective deliberations in focus. In conclusion, the right of exit as construed by Kukathas is not really a right – it is the postulate that people, if only they want to strongly enough, will leave – whatever the cost. A “plain exit principle”, to paraphrase Kukathas himself, is not very helpful when it comes to considering the conditions under which people live and want or need to leave.37 That is why I deem it necessary to turn to another mode of legitimizing rights people have, including the right of exit. My suggestion is to take into consideration the principle of autonomy and interrogate the conditions that render it possible to live an autonomous life.

34 Kukathas 2003, 107. 35 In the original: “la majestueuse égalité des lois, qui interdit au riche comme au pauvre de coucher sous les ponts, de mendier dans les rues et de voler du pain” (France 1894). 36 Green 1998, 175. 37 “The principle of exit is not an easy one to live by: it is not a helpful norm for social organization.” (Kukathas 2005, 7)

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The Right of Exit as an Emanation of the Principle of Autonomy Autonomy is a rather uncontroversial core liberal value38 − but it is just as contested by certain feminist and multiculturalist theorizing. What are the troubling aspects of “autonomy”? A short answer to this question is that scepticism results from reference to autonomy having been used (and still being used) as a rhetoric bludgeon. There exists a tradition – a culture, so to speak – of excluding groups of people, women in particular, but also members of minoritized ethnic or racialized groups, from the realm of autonomy. Infamously, even Immanuel Kant, the champion of autonomy, succumbed to the prejudices of his time.39 Furthermore, the concept of autonomy has often been interpreted rather narrowly – as the white heterosexual male’s individualistic and objectifying access to the world and to relationships: atomistic, selfcentred, unaware of the commitments that really enable this self-aggrandizing stance.40 There is no denying that autonomy has been conceptualized in this way by some authors. However, I agree with Catriona Mackenzie and Natalie Stoljar when they claim that “the notion of autonomy is vital to feminist attempts to understand oppression, subjection, and agency”41. Without referring to autonomy it is impossible to explain why oppression and subjection are morally wrong. This is so because of the very nature of autonomy: To be autonomous means not to be the object of other people’s decisions and choices, to have a say on what goes on in one’s life, to have one’s voice counting. Accordingly, it is just as wrong to force somebody to do something and to live a certain life by referring to cultural stereotypes as it is to claim that only living a certain kind of life means to live an “autonomous” life.42 Infamously – and falsely – some feminists claim

38 The devil is in the details: Autonomy is seen as a value of “ethical” liberalism, whereas it is considered as rather problematic in “political” liberalism which wants to remain agnostic in terms of philosophical anthropology and accordingly only wants to rely on “political autonomy” – and a political concept of the person. This is – paradigmatically – John Rawls’ position (Rawls 2001, Chapter 47). 39 See e.g. Kant 1793/1991, 75. 40 A short overview of feminist critiques of autonomy can be found in Mackenzie/Stoljar 2000, 5–12. 41 Mackenzie/Stoljar 2000, 3. 42 Alas, the feminist critique of what have as fittingly as paradoxically been called “forced freedoms”; see Sauer/Strasser 2009.

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that for example wearing a headscarf categorically amounts to being unfree, because this can only be forced behaviour.43 In order to explain my position and then apply it to the issue of exit, I am referring to autonomy by way of its conditions.44 These are, first, the existence of an adequate range of meaningful options; second, the emotional and intellectual capacity to imagine and reflect on diverse options and embrace them as one’s own; third, the relative absence of coercion and manipulation in the very situation when an option is to be taken. None of these conditions exist isolated from each other; they are connected and intertwined. Permanent coercion as in “black pedagogy” does not bode well with the flourishing of intellectual and emotional capacities and is usually exerted in order to restrict a person’s range of options, e.g. by keeping them from “getting into mischief”. And none of those conditions are “just there” – they stem from and are a function of culture, institutions and individual actions; they are fundamentally “social”. Accordingly, these conditions should not primarily be understood as criteria for attributing somebody with autonomy or denying that somebody is able to act autonomously. Especially the latter strategy – claiming that the way people “are” makes them categorically unable to live up to the demands of autonomous decision-making – seems to me to be one of the main reasons why feminists and also multiculturalists are so reluctant to rely on autonomy in their theories. In contrast, I want to bear upon the conditions of autonomy for analytical purposes in order to explore structures and contexts with regard to their conducive or detrimental effects. These analyses in turn have normative implications because they bring to light what it takes to vitalize autonomy. In what follows, I am going to explore more deeply each condition of autonomy and connect it with the issue of exit. It should also become clear, how far the ensuring of the conditions of autonomy can be regarded as a pivotal task of law.

Adequate Range of Options What does it mean that every person should have an adequate range of options, enabling her to realize her own needs, interests and wishes? Considering that the issue at stake is primarily the option of exit from one’s cultural or religious community located in liberal states, I will confine my deliberations on the

43 On the relation of autonomy and wearing certain attire see e.g. Hirschmann 1998; Holzleithner 2009. 44 See e.g. Friedman 2003, 3–29; Raz 1986, 372–373.

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context of Western societies, which are self-consciously pluralistic and aspire to offer as broad a spectrum of options to people as possible. (The capitalist bias of this aspiration is not being denied here.) The pluralism of Western societies derives from several sources. The political and social mainstream leaves room for diverse ways of living and expressing oneself, even if we concede to SpinnerHalev45 that the mainstream has a considerable unifying pull. The mainstream is surrounded and traversed by diverse cultural, religious and ethnic communities. Affiliation to such communities is accompanied by identification, the constitution of and care for a “self” that connects with others: those that are identified as part of a “we” and those who are marked as “others” – a process, which, of course, is also part and parcel of constituting the “I” and the “we” of the respective community. This holds true for punks just as for religious communities. Life options can be found in the mainstream and in religious and cultural groups46, some of which have a tendency to distance themselves from that very mainstream. These options are socially constituted; depending on the context they may be prescribed, enabled, facilitated or impeded, relative to the meanings attached to them. And the very reasons that render an option meaningful to one person may lead another to vigorous rejection. Looking at the option-aspect of autonomy, it is quite obvious that culture and autonomy are not in principle antithetic. Autonomous actions do not spring from nowhere – rather, they are complex processes drawing from many sources, among them cultural as well as religious practices and traditions. A particular way of life in a cultural or religious group can be interpreted as a specific context of autonomy by providing a specific range of options to its members as well as to outsiders who may be willing to join (if the group is open for new members) – who have also been shaped by their cultural, religious and socio-economic context(s) of origin. By providing options, cultures are always (also) autonomyenabling. Some qualifications should be made here, however, and they stake out the path to the right of exit. First, one culture cannot provide an all-encompassing range of options. Especially in tight-knit communities, being a member and living in accordance with the norms and values of the group also always means to submit to a number of limitations. The respective set of limitations may be a fitting life-option for some, even many, but it may feel stifling and restrictive to others. Hence, one may feel the need to leave the community. Second, the range

45 Spinner-Halev 2005, 162. 46 See Kymlicka 1995, 83.

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of options offered by different cultures or religions will often vary depending on one’s gender, sexual orientation, ethnicity, age and other ascribed characteristics, as well as on one’s socio-economic circumstances. Inequalities have an important bearing on autonomy – they taint the “value” of liberty for those worse off.47 And third, these inequalities affect not only a person’s current range of options but also her attitude towards herself: the options she has as well as her abilities to reflect on them and to make decisions. While some members of a community will be privileged, others suffer oppression that severely impairs their autonomy in the respects sketched here: the range of options and the abilities to decide, which not only include a person’s emotional and intellectual capacities but also whether the circumstances she finds herself in are characterized by (a relative absence of) manipulation and coercion.

Emotional and Intellectual Capacities The second condition of autonomy refers to the personal intellectual and emotional capacities to perceive existing options or to create new ones, to reflect on them and, following reflection, to embrace or discard them.48 This precept does not mean that only intellectuals can be autonomous agents. Already because of our very consciousness we are downright “thrown” into the capacity of perception and cannot even help finding ourselves consciously in situations, reflectingly reaching decisions. But yet again, this capacity is not simply “there” in an ideal quality, but will only flourish if cultivated. Christine Korsgaard outlines this point in a fine way: “[W]e may believe that a human being is free, if ever, when she not only has a range of options but an education that enables her to recognize those options as such and the self-respect that makes her choice among them a real one. Ignorance, lack of imagination, and lack of self-respect are not just external constraints on the range of your options: they can cripple the power of choice itself”49. Education in the sense of knowledge transfer is just as important as the formation of self-confidence, which is dependent on feeling lovingly appreciated by one’s caretakers, from the moment of one’s birth.50 Of course, loving care cannot be prescribed, and public institutions generally only interfere with the

47 48 49 50

The “value of liberty” is a phrase I borrow from Rawls 1999, 197. Showden (2011, 19) aptly speaks of the “projective dimension”, in her case of “agency”. Korsgaard 1993, 60–61. See Honneth 1995, Chapter 5.

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upbringing of children if serious harm has been done or is to be imminently feared for a child’s physical and emotional integrity. The right to an education is not just a philosophical postulate; rather, it is firmly established in international law, e.g. in Article 29 para. 1 lit. a UN Convention on the Rights of the Child. It postulates as the aim of education “the development of the child’s personality, talents and mental and physical abilities to their fullest potential”51. Education should further be directed toward the “development of respect for the child’s parents, his or her own cultural identity, language and values”. Particular emphasis is put on the rights of children belonging to “ethnic, religious or linguistic minorities” or indigenous peoples: “a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language”52. But the Convention also contains the duty of State Parties to “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children”53. Accordingly, the Convention is based on the insight that there may be some tension between the right to education, physical and psychological integrity on the one hand and the demands put on a child in the name of culture or tradition, but also for social or economic reasons. When children have to go to work for the sustenance of their family or when girl children are married at a young age, this typically means the end of school education. Especially when a girl is married to a much older man, she is in danger of being sexually abused.54 Thus a pivotal prerequisite for the development of intellectual and emotional capabilities is undercut – and the chances of exiting such a situation are rather slim. Adverse conditions for the development of one’s emotional and intellectual capacities are not favourable to their flourishing, and oppression has a tendency of “stultifying the imagination”55. On the one hand, one should beware of drawing the simple conclusion that, alas, these capacities are automatically restricted. Human beings are complex and resistive beings, and sometimes they develop their capacities against all odds, as the life story of Charles Dickens demonstrates.56 This insight into the resilience of persons, however, should not be taken as a normative reference point, such as in claiming that “what doesn’t

51 52 53 54 55 56

Convention on the Rights of the Child, Article 29 para. 1. Convention on the Rights of the Child, Article 30. Convention on the Rights of the Child, Article 24 para. 3. See Digest 2001. Phillips 2007, 148. See Tomalin 2011.

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kill you only makes you stronger”. When it comes to the responsibilities societies and communities have for their offspring, a normative position cannot but strive for optimal conditions for their flourishing. According to this position and with regard to the examples above, a state has a duty to prevent child marriage and forced marriage and to provide for at least minimum education.57

Relative Absence of Coercion and Manipulation The third condition of autonomy is the relative absence of coercion and manipulation. The reservation (“relative”) is important, for absolute freedom in the sense of complete unrestraint is simply unthinkable. Living together with other people is always characterized by normative expectations that exert pressure, more or less subtly. Absence of coercion and manipulation in this sense is always a matter of degree – and sometimes forcing somebody to do or to omit something may well be justified. So when is coercion illegitimate? Physical violence and the threat of it is a clear-cut case: If a gun is pointed at somebody’s head, this person is not free to decide whether she hands over her wallet or not. If a husband threatens his wife that he “will always find you, no matter where you go”, her freedom to leave is massively constrained – and by extension, her freedom to do anything, because it is always tainted by her being forced to stay. But coercion has to be seen as a much broader notion. From a feminist perspective it seems particularly important to consider diverse phenomena in their might to exert force and to point out their innate dimension of violence. Structural circumstances, economic dependences as well as restrictions concerning the right of residence for illegalized aliens that establish exclusion based on citizenship and ethnicity also have to be taken into account. Furthermore, violence may be expressed symbolically by producing and clinging to images of gender specific responsibilities or of weak and vulnerable women.58 The more immediate the threat of violence, especially if embedded in a history of violence and discouragement, the more difficult it becomes to give one’s life another direction by exiting one’s situation.

57 See also Spinner-Halev 2005, 160. 58 See Sauer 2008, 56.

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Realizing Exit: the Case of Forced Marriage If the right of exit is not just postulated but shall be rendered realistic59, then the conditions of autonomy need to be taken into account. Only then will exit indeed be a right, which limits the reach of communities. In the formulation of Raz, “exit from the oppressive community” has to be made “convenient”, which in his eyes is one way of neutralizing a community’s “oppressive aspects, or compensat[ing] for them”60. While exit from one’s immediate surroundings may not always be “convenient”, especially if significant harm impends, it should at least be facilitated by the state. This is exactly what differentiates Raz’ and my own position from that of Kukathas. In conclusion, this paper addresses the example of forced marriage61 – in order to enlarge upon the issues discussed so far and to introduce a few more complexities standing in connection to the right of exit. It is impossible to do the issue justice in the remainder of this paper; therefore the focus will rest entirely on the question of what is necessary for the right of exit to be realistic. For the person affected by the threat of being forcibly married, the first priority will be that she does not have to marry “this” person – that she has other options. This will often mean that she has to get away from her immediate environment. It takes a lot of courage to do that, and emotional support from sympathetic people will play an important role. If there is nobody to confide in, nobody to empathise with what the person concerned is going through, it will be much harder to conceive of escaping. Empathisers may be friends, fellow pupils, teachers or members of counselling centres dealing, among others, with issues of forced marriage. The second condition of autonomy is at stake here: that of the intellectual and emotional capacity to envision a life outside of one’s imminent predicament. By funding counselling centres and supporting its cooperation with schools and, e.g., practitioners, the state can and should contribute to providing this condition. If exit is supposed to be an option, there is need of places to go. Theorists of exit typically postulate a mainstream society: a “neutral public space that exists alongside the Ultra-Orthodox public space”62 or a “liberal polity”63. This space outside of tight-knit communities has to ensure that “for those in each genera-

59 See Okin 2002. 60 Raz 1994, 184. 61 See, for example, Deveaux 2006, 155–185; Phillips/Dustin 2006 and several papers in Strasser/Holzleithner 2010. 62 Margalit/Halbertal 1994, 507. 63 Levy 2005, 183.

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tion who find themselves needing to leave such communities, there is another place to go”64. Though this is an important point, this is a problematically abstract idea that limits refuge to places outside of one’s own community. Looking at our test case, refuge may be taken in the homes of friends, acquaintances or relatives, since not every member of an extended family may approve of forcing their sister, niece or grand-daughter into marriage. Also, the state can and should play a role by establishing and funding respective shelters, where refuge can be temporarily taken. All too often, specific shelters have not been established and the shelters that do exist for women fleeing violence are chronically underfunded, understaffed and can hardly deal with the specific situation of forced marriage-refugees in an adequate way. Quite obviously, the mainstream, which is postulated in theories of exit as a safe haven, in reality is a rather unreliable ally. In the normative frame of this paper, such shortcomings are regarded as state failure. As to those who support forcing a marriage or take part in the process, the aim is to keep them from doing it. In many European countries, the law has been amended from 2000 on, with increased criminalization of forced marriages and implementation of other measures to prevent them from happening. The problem with these measures is that they are mostly symbolical, since the criminal law usually is not people’s first choice in order to solve their conflicts. As Anne Phillips aptly remarks, “children mostly don’t want to see their parents in prison”65. Accordingly, in a country like Austria, which introduced a new and more severe criminal provision against “forced marriage” in 2006, this provision has hardly lived up to the promise articulated by the politicians campaigning for it.66 All this is meant to emphasize that “cultures” and “religions” are not homogenous, not even in their allegedly intrinsic “core”. The perception that there is a door with a shield signalling “exit” in the cultural wall which just has to be walked through in order to leave the sphere of a culture is all too simplistic and bears the danger of constructing “the” cultural or religious minority that is characterized by force, whereas the mainstream, the so-called liberal polity is the palladium of autonomy. Such an essential understanding of culture and tradition is quite common, and it may be reinforced by discourses on exit as a feature of multicultural theories. Interrogating the trouble vulnerable subjects have in exiting harmful situations, one must never forget to interrogate the

64 Ibid. 65 Phillips 2007, 120. 66 See Beclin 2010; Rössl 2010.

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mainstream itself, which is hardly a place without violence against women, sexual and gender minorities – only such violence is not dealt with under the label of “harmful traditional practices”67. The challenge seems to be to conceive a theory of exit that focuses less on culture, religion and the respective groups but on specific – unbearable – situations that call for a change, adding a spice of cultural and religious sensitivity so as not to be ignorant but also not to act as if culture and religion were containers out of which one can crawl in order to see the mainstream’s light. Applying this problematic dimension to the issue of forced marriage, it is not simply an envisioned straitjacket of cultural conceptions regarding a woman’s duties that may keep her from effectively standing up against others’ demands, but also social, political, economic and especially legal factors, such as when immigration law connects the right to stay with the status of being married. Asking for the exit option can never stop short at asking how “the others” treat their vulnerable members but must always return to the question about what “we” as a political society should do in order to tend the needs of people in situations that render them vulnerable – how the state can provide for the conditions of autonomy. How much responsibility the state has will, of course, always be a matter of debate.

Conclusion Taking care of the conditions of exit from harmful situations means strengthening people’s autonomy by enlarging their options, providing for the development of their intellectual and emotional capacities, and trying to prevent structural and imminent coercion. State measures advancing these goals will typically also amount to (transformative) interventions. Accordingly, as it was stated at the outset of this paper, the right of exit, if taken seriously, always transcends its plain idea. It is not just about what makes the right of exit realistic – it is also about improving the life conditions of those who are vulnerable. Susan Okin has put it so aptly, when she criticized that appealing to the right of exit as a “palliative for oppression” is inadequate not just because “oppressed persons, in particular women, are not only less able to exit but have many reasons not to want to exit their culture of origin; the very idea of doing so may be unthinkable. Rather, they want, and should have the right, to be treated fairly within it”68.

67 Narayan 1997, 81–118. 68 Okin 2002, 207.

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Indeed, and returning to the example of forced marriage once more, exit is not a panacea; it may, on the contrary, be seen as a threat when resisting to an arranged marriage is interpreted as a fundamental disloyalty to one’s community and hence accompanied by the threat of expulsion. Exit in many cases is but a last resort, a remote option that should not be romanticized, taken for granted or implicitly reserved to the strong, who will always survive. In light of the principle of autonomy, the right of exit is not enough; rather, it “has to be complemented by the right to stay”69. That is, it has to be complemented by access to voice in order to advance transformation from within.

Bibliography Barry Brian (2001), Culture and Equality, Cambridge. Beclin Katharina (2010), “Rechtliche und politische Strategien gegen Zwangsehen in Österreich”, In: Strasser Sabine/Holzleithner Elisabeth (eds.), Multikulturalismus queer gelesen. Zwangsheirat und gleichgeschlechtliche Ehe in pluralen Gesellschaften, Frankfurt am Main, 144–164. Deveaux Monique (2006), Gender and Justice in Multicultural Liberal States, Oxford. Eisenberg Avigail/Spinner-Halev Jeff (eds.) (2005), Minorities within Minorities. Equality, Rights and Diversity, Cambridge. Fish Stanley (1998), “Boutique Multiculturalism”, In: Melzer Arthur M./Weinberger Jerry/Richard Zinman M. (eds.), Multiculturalism and American Democracy, 69–88. Follesdal Andreas (2005), “Exit, Choice, and Loyalty: Religious Liberty versus Gender Equality”, In: Journal of Social Philosophy 36, 407–420. Friedman Marilyn (2003), Autonomy, Gender, Politics, Oxford. Green Leslie (1998), “Rights of Exit”, In: Legal Theory 4, 165–185. Hirschmann Nancy J. (1998), “Western Feminism, Eastern Veiling, and the Question of Free Agency”, In: Constellations 5, 345–368. Holzleithner Elisabeth (2009), “Der Kopftuchstreit als Schauplatz der Debatten zwischen Feminismus und Multikulturalismus: eine Analyse entlang der Bedingungen für Autonomie”, In: Sabine Berghahn/Petra Rostock (eds.), Der Stoff, aus dem Konflikte sind. Debatten um das Kopftuch in Deutschland, Österreich und der Schweiz, Bielefeld, 341–359. Honneth Axel (1995), The Struggle for Recognition. The Moral Grammar of Social Conflicts, Cambridge and Massachusetts. Innocenti Digest (2001), Early Marriage. Child Spouses, Florence/Italy: United Nations Children’s Fund. http://www.unicef-irc.org/publications/pdf/digest7e.pdf (seen 10. 4. 2011) Jones Peter (ed.) (2009), Group Rights, Farnham and Burlington. Kant Immanuel (1793), “On the Common Saying: ‘This May be True in Theory, but it does not Apply in Practice’”, In: Reiss Hans (ed.) (1991), Kant. Political Writings, Second, Enlarged Edition, Cambridge, 61–92.

69 Phillips 2007, 157.

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Korsgaard Christine M. (1993), “Commentary on G. A. Cohen and Amartya Sen,” In: Nussbaum Martha/Sen Amartya (eds.), The Quality of Life, Oxford, 54–61. Kukathas Chandran (1995), “Are There Any Cultural Rights?” In: Kymlicka Will (ed.), The Rights of Minority Cultures, New York, 228–255. Kukathas Chandran (2001), “Is Feminism Bad For Multiculturalism?”, In: Public Affairs Quarterly 2, 83–98. Kukathas Chandran (2003), The Liberal Archipelago. A Theory of Diversity and Freedom, Oxford. Kukathas Chandran (2005), “Exit, Freedom, and Gender”. http://princeton.edu/values/whatsnew/Kukathas.pdf (seen 7. 11. 2007; link now defunct; manuscript on file with author.) Kymlicka Will (1995), Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford. Levy Jacob (2005), “Sexual orientation, exit and refuge”, In: Eisenberg Avigail/Spinner-Halev Jeff (eds.), Minorities within Minorities. Equality, Rights and Diversity, Cambridge, 172–188. Mackenzie Catriona/Stoljar Natalie (2000), “Introduction: Autonomy Refigured”, In: Mackenzie, Catriona/Stoljar, Natalie (eds.), Relational Autonomy. Feminist Perspectives on Autonomy, Agency, and the Social Self, Oxford, 3–31. MacKinnon Catharine A. (1983), “Whose Culture? A Case Note on Martinez v Santa Clara Pueblo”, In:Catharine A. MacKinnon (ed.) (1987), Feminism Unmodified. Discourses on Life and Law, Harvard, 63–69. Margalit Avishai/Halbertal Moshe (1994), “Liberalism and the Right to Culture”, In: Social Research 61, 491–510. Mahoney Martha R. (1991), “Legal Images of Battered Women. Redefining the Issue of Separation”, In: Michigan Law Review 90, 1–94. Mahoney Martha R. (1992), “Exit: Power and the Idea of Leaving in Love, Work, and the Confirmation Hearings”, In: Southern California Law Review 65, 1283–1319. Narayan Una (1997), Dislocating Cultures. Identities, Traditions, and Third World Feminism, New York and London. Neumann Dirk, § 1565, In: Bamberg/Roth, Beckscher, Online Kommentar BGB, Edition 21. (seen 01. 03. 2011) Okin Susan Moller (1989), Justice, Gender, and the Family, New York. Okin Susan (2002), “‘Mistresses of Their Own Destiny’: Group Rights, Gender, and Realistic Rights of Exit”, In: Ethics 112, 205–230. Phillips Anne (2007), Multiculturalism Without Culture, Princeton. Phillips Anne/Dustin Moira (2004), “UK Initiatives on Forced Marriage: Regulation, Exit, and Dialogue”, In: Political Studies 52, 531–551. Posch Willibald (2007), „Islamisierung“ des Rechts? In: Zeitschrift für Rechtsvergleichung 21, 124–133. Rawls John (2001), Justice as Fairness: A Restatement, Cambridge and Massachusetts. Raz Joseph (1986), The Morality of Freedom, Oxford. Raz Joseph (1994), Ethics in the Public Domain, Oxford. Reitman Oonagh (2005), “On Exit”, In: Avigail Eisenberg/Jeff Spinner-Halev (eds.), Minorities within Minorities. Equality, Rights and Diversity, Cambridge, 189–208. Rössl Ines (2010), “Zwangsverheiratungssituationen als Anknüpfungspunkt von institutionellem Handeln”, In: Strasser Sabine/Holzleithner Elisabeth (eds.), Multikulturalismus queer gelesen. Zwangsheirat und gleichgeschlechtliche Ehe in pluralen Gesellschaften, Frankfurt am Main, 165–181. Sauer Birgit/Strasser Sabine (2008), Zwangsfreiheiten. Multikulturalität und Feminismus, Wien.

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Sauer Birgit (2008), “Gewalt, Geschlecht, Kultur. Fallstricke aktueller Debatten um ‘traditionsbedingte’ Gewalt”, In: Sauer Birgit/Strasser Sabine (eds.), Zwangsfreiheiten. Multikulturalität und Feminismus, Wien, 49–62. Showden Carisa R. (2011), Choices Women Make. Agency in Domestic Violence, Assisted Reproduction, and Sex Work, Minneapolis and London. Spinner-Halev Jeff (2005), “Autonomy, association and pluralism”, In: Eisenberg Avigail/Spinner-Halev Jeff (eds.), Minorities within Minorities. Equality, Rights and Diversity, Cambridge, 157–171. Steinback Robert (2011), A Skinhead’s Story: Bryon Widner and ‘Erasing Hate’. http://www. splcenter.org/blog/2011/06/23/a-skinheads-story-bryon-widner-and-erasing-hate/ (seen 02. 11. 2011) Strasser Sabine/Holzleithner Elisabeth (eds) (2010), Multikulturalismus queer gelesen. Zwangsheirat und gleichgeschlechtliche Ehe in pluralen Gesellschaften, Frankfurt am Main. Tomalin Claire (2011), Charles Dickens. A Life, Viking. United Nations (1989/1990), Convention on the Rights of the Child. http://www2.ohchr.org/ english/law/crc.htm (seen 22. 03. 2012) Walzer Michael (1997), “Response to Kukathas”, In: Shapiro Ian/Kymlicka Will (eds.), Ethnicity and Group Rights, NOMOS XXXIX, New York and London, 105–111. Zoglin Katie (2009), “Morocco’s Family Code: Improving Equality for Women”, In: Human Rights Quarterly 31, 964–984.

Chandran Kukathas

Exit, Freedom and Gender Day and night I ponder on the means by which it might be possible to escape the strict moral code and customs of my country yet … The old Eastern traditions are firm and strong but I could shake them from me, break them, if it were not for that other bond, even more securely and strongly fixed than any centuries old tradition, which binds me to my world: the love I have for those who gave me life, to whom I owe everything, everything – Raden Adjeng Kartini, 25 May 1899, Japara1

An important part of being free is not having to associate with, or reside among, others whose ways, beliefs, or very persons, one cannot abide. Freedom is, to a great extent, freedom of exit. An appreciation of this dimension of freedom runs through the liberal political tradition which has generally, if imperfectly, recognized the importance of being able to separate ourselves from our fellows, even if there are many goods we can only produce – and sometimes enjoy – with the cooperation of others. To be denied in an attempt to exit – to divorce a husband, to quit a job, to emigrate, or to leave a religion or group in which one has been brought up – is to be rendered unfree. As Susan Okin has written, ‘Not to be able to leave the group in which one has been raised for an alternative mode of life is a serious violation of the kind of freedom that is basic to liberalism.’2 Yet while the importance of freedom of exit is uncontroversial, at least among those sympathetic to the liberal ideal, the ultimate worth of this freedom is a more complex matter. What, precisely, does freedom of exit amount to? And is a right of exit necessarily of value – or equally valuable to everyone? In the literature on multiculturalism and group rights, many have argued that assertions of the significance of freedom of exit have greatly exaggerated its worth. This is because such assertions have failed to recognize that freedom of exit cannot readily be exercised by many who might possess that freedom in principle, and that it is not something that can be enjoyed by all equally in the absence of other social conditions. Women in particular are not well-served by the exit principle. This argument is put with especial force by Susan Okin, in an essay discussing the worth of exit rights in any theory of the rights of illiberal minorities in the liberal state. She suggests that ‘the right of exit, while no doubt important, does

1 Coté/Clayton 1995, p.1. 2 Okin 2002, 206.

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not have the clout it is often thought to have in arguments defending the rights of illiberal groups within liberal contexts. Instead, it is inherently problematic. Those most likely to need it are those least likely to be able to employ it. Neither may they see it as a desirable or even an imaginable option.’3 She therefore concludes her analysis by arguing that the liberal state ‘should not only not give special rights or exemptions to cultural and religious groups that discriminate against or oppress women. It should also enforce individual rights against such groups when the opportunity arises and encourage all groups within its borders to cease such practices.’4 In putting this argument, Okin is elaborating a position she has taken in a number of earlier papers discussing the tension between feminism and multiculturalism.5 In her view, to the extent that women’s interests and cultural rights come into conflict, the former should take priority. Indeed, she makes it quite clear that cultural communities or traditions that are inconsistent with liberal feminism should not be subsidised, or even encouraged. The liberal state should, in her assessment, take steps to re-educate such groups, and, if necessary, punish them if their practices are harmful to women – making it plain that such things will not be tolerated. Implicit in the earlier papers, and explicit in the more recent one, is the contention that invoking women’s freedom of exit is not sufficient to exonerate groups from responsibility for women’s oppression, or to justify the continued toleration (let alone subsidising) of their practices. If the interests of women are to be served, steps must be taken to ensure that they enjoy ‘realistic rights of exit’. And this means more deliberate intervention on the part of the state to foster and protect the freedom of individual women. Okin is not alone in all of this. A number of other writers have questioned the wisdom of placing any considerable weight on the exit principle unless the freedom to exit is bolstered by further supports. Theorists such as Brian Barry, Ayelet Shachar, and Jeff Spinner-Halev, among others, have suggested that being free to leave is not enough.6 And, like Okin, they have also been critical of my own defence of the exit principle in some previous papers.7 Is it time for the unencumbered or Plain Exit Principle to be shown the door? The purpose of this paper is to argue that the Plain Exit Principle is more important than has so far been conceded, and that its limitations reflect not so

3 Ibid., 207. 4 Ibid., 229–30. 5 Okin 1998; Okin 1999. 6 See Barry 2001 and Barry 2002, Shachar 2001; Spinner-Halev 2000. 7 I have presented this defence in Kukathas 1992a, 105–39; and: Kukathas 1992b, 674–80; and Kukathas 1997, 69–104.

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much the inadequacy of the principle as the nature of dilemma it addresses. The difficulty of that dilemma is most evident when the claims of feminism confront the demands of multiculturalism. The argument is presented in four stages. The first outlines the Plain Exit Principle, offering an account of the more general theory of which it is a part. The second stage elaborates the major objections to the Plain Exit Principle, focussing primarily on the arguments developed by Susan Okin, but also drawing on the writings of others to extend the scope and force of this critique. The third stage offers a reply to the critique of the Plain Exit Principle, and the fourth concludes with some more general reflections on the tension between feminism and multiculturalism.

The Plain Exit Principle Human beings invariably find themselves living in association with others and yet in disagreement about what should be the proper terms of association. In such circumstances, what right does any individual have against his or her fellows? Some theorists have tried to construct substantial accounts of individual rights suggesting that there are a variety of freedoms or entitlements that any society must provide its members: freedoms of speech and assembly, for example, or entitlements to hold property. But while such freedoms are valuable and important, to assert their significance, or declare them to be fundamental rights, does not get around the problem of disagreement among people about what should be the proper terms of association. How should such disagreement be resolved? Two alternatives present themselves to us. The first is for the stronger to exercise their power over the weaker to compel them to accept their terms. The second is for each to try to persuade the other about what those terms should be. If we reject the first alternative as philosophically uncompelling, the question becomes: what right does each have against the others if he or she is unable to persuade the others to abide by particular terms of association – particularly once they have exhausted all avenues through which to secure agreement, including searching for an umpire by whose determinations they could abide? The only right each can have remaining is the right to leave. Call this the ‘plain exit principle’. In the end, there are only three options available: to live together with others on particular terms we may or may not like, but do accept; to be forced to live together with others on terms we do not accept; or to separate. In the liberal political tradition it is the freedom to separate that is of critical importance. Individuals may not be forced into membership of a collective simply because it

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is held that this would be good for the collective; nor may the individual be forced into membership because it is alleged to be good for him or her. It is an implication of all of this that freedom of exit – indeed, a right of exit – is of preeminent importance. It is also important, however, to recognize a further implication of this analysis. If each has a right to decline to accept an offer of membership on terms of association she cannot abide, a collective of individuals equally has a right to decline to offer membership to any individual whose terms they are unwilling to accept. No party has any right to force another to live by terms unacceptable to the other. The principle of exit is not an easy one to live by: it is not a helpful norm for social organization. The most obvious reason why is that, at its core, lies an insistence on individual freedom to abandon social engagement – to unorganize. It is an anarchistic principle. But there are other reasons. First, because humans not only need to associate but also long to do so, they will usually compromise in order to remain together: the opportunity cost of dissociation is almost always too high. In the associations they form they will invariably institute procedures to settle disagreements so that disagreement doesn’t need to threaten dissolution of the collective. Disagreement in itself is unlikely to provoke the exercise of the freedom to exit; other solutions will be sought first for as long as humans remain social animals – which is to say, for as long as they remain human. Second, because humans often cannot abide disagreement they will, if they can acquire sufficient power, exercise that power to compel others to associate with them on their terms – denying those thus compelled any right of exit. The love of the exercise of power is, alas, no less strikingly human a characteristic than is the desire to associate with others. But while the facts of social psychology suggest that the exit principle will never explain why human beings continue to associate, the logic of association suggests that the right of exit is the only demand upon which all parties can insist. All cannot demand a right to associate each on his or her own terms. No one can demand a right to compel others to join with him or with one another if such a right is to be one that all can claim. Liberal societies are ones which try to respect this principle as far as is possible, for they consider the good society to be one which comes as close as possible to being what John Rawls calls a “voluntary scheme”.8 To serve this

8 Rawls, 1999, 12: ‘a society satisfying the principles of justice as fairness comes as close as a society can to being a voluntary scheme, for it meets the principles which free and equal persons would assent to under circumstances that are fair.’

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end, they must therefore be societies that leave room for dissent, so that those who disagree with the views of others or reject the attitudes of the majority may find room to live by their own lights – exiting from arrangements they cannot abide. When the world was divided in the days of the Cold War, the most obvious difference between the Communist states and the “free world” was that the citizens of the former were not permitted to exit. In a liberal society, no one can be compelled to stay. And a liberal society does not recognize the authority of anyone to compel people to remain in associations or under arrangements of which they want no further part. The implication of all this for the place of groups of any sort in a liberal society should therefore be plain. No group can claim for itself the right to compel anyone to abide by its demands or to remain within the boundaries of its association. It cannot claim authority over its members unless its members recognize its authority over them; and if it claims authority over people who decline to accept it, that authority would not be recognized or re-enforced by any liberal society. Nor indeed can it claim support simply to help bolster its declining membership or staunch the flow of the disaffected, for no one is under an obligation to ensure that any particular group or association prevail, or even endure. No group has the right to survive. At the heart of the principle, exit as it is understood here, then, is what might be called a principle of non-recognition. No one has the right to compel others to associate with anyone, and to compel others to submit to his (or his group’s) authority. Any such claim to authority must go unrecognized, and any right claimed by such groups or persons to deny those in their control the freedom to exit must also go unrecognized. This holds whatever the nature of the group, whether it is an organization or a club or a church or a cultural group or a province or a nation. None of these associations has any claim upon others to recognize its authority over its members, particularly if those members wish to leave. No one is under any obligation to enable the association to survive, whether by forcibly returning its fleeing members, or by offering it assistance to sustain its activities. Association, if it is free association, is a two-way relationship, in which both parties must at all times retain the right to discontinue the relationship. No cost that one party might suffer as a result of the ending of that relationship can justify its forcing the other to remain in association – though the terms of separation may have to reflect the costs borne by one party if the end of the affair violates previous agreements made. (Performance of a contract cannot be compelled, but this does not imply a right to non-performance without compensation.) In the case of cultural groups, it means that the cultural defence is no defence at all if it seeks to justify the denying the freedom of individual members

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to break away from the group’s traditions. The group has no right to stop people leaving. Nor has it any claim upon others to be given the resources to discourage their members from deserting its ranks. While it may use its own resources to try to sustain its traditions or customs, it cannot demand that others should value this. And to the extent that its practices are harmful to some members, it must run the risk that those members will desert the group to make their lives elsewhere. What is or is not harmful, is, of course, a highly debated matter – even though there is also much agreement across all times and cultures about good and bad, right and wrong. One of the reasons for disagreement about harm is that it is very seldom harm simpliciter that is at issue. Any understanding of harm involves some view of the tradeoffs that must invariably be made when assessing the worth of an option. Some harms are deemed acceptable to those who suffer them because of the benefits that accompany them: the harm of smoking, drinking and eating tasty food may be offset by the pleasure these vices bring. Other harms are deemed acceptable because they are deemed preferable to other, greater, harms that are averted by bearing lesser ones. People endure surgery, medicines, diets and exercise to feel – or at least look – better in the future. And, of course, people frequently opt to suffer harms so that others might benefit. Most obviously, parents commonly sacrifice their own good for the good of their children. It is precisely because there are such tradeoffs, and because costs and benefits are weighed differently by different people, that many liberals have been reluctant to deny the individual the right to determine for himself how the tradeoff it to be made. Each person is entitled to walk away from an option, even if it looks favourable, if he is unwilling to accept the cost – or to embrace an option, even if it looks unfavourable, if he thinks the costs are acceptable in light of the benefits on offer. It is only when the costs or harms are unwillingly borne by others that the individual’s freedom may be impeded. At this point the difficulty, as well as the necessity, of people being able to separate their lives becomes most clearly apparent. The principle of exit suggests that people should be left free to determine for themselves whether or not a form of association is to their advantage. The problem with this is that there can be no assurance that people will decide well. They may court danger and embrace harm; or forgo benefits; or make tradeoffs with which many of us would not agree. None of this, however, is sufficient to overturn the exit principle. The obvious question, then, is: why should the exit principle be accorded such importance? The answer returns us to the point with which discussion began in this section. The principle of exit is the principle most consistent with the repudiation of force as a means of determining how people should live. It

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rejects the idea that the voice of the majority should prevail over that of the minority, or that the strong should prevail over the weak. It is consistent with the conviction that we should seek to persuade rather than compel those with whom we disagree to come around to our way of thinking – and living. It is important to note here that it will not do to say that compulsion is justified only when it is exercised by those who are right over those who are wrong. By definition, compulsion can only be exercised by the strong over the weak. And by hypothesis, the strong will think they are in the right, while the weak deny any such thing. When the question of right and wrong is in dispute, it is no argument for the strong to justify compulsion on the grounds that it is right. ‘I have the truth on my side, therefore my violences are good works: Such a one is in an error, therefore his Violences are criminal.’9 This is invariably the argument the strong offer. The principle of exit suggests that the strong may justifiably seek only to persuade the weak to see things differently, permit them to exit from the association of which they are both a part, or tolerate their dissent. A few things should be noted here. First, in permitting the weak to exit the strong cannot claim that their conduct is entirely fair or just. They may simply be taking unfair advantage of their strength to reject very reasonable demands. Second, to allow people to exit from an association does not mean forcing them off property or lands they have occupied: one can sometimes dissociate without leaving physically. Third, it may sometimes be quite unjust to force people to leave. Refugees, typically, have exercised a freedom to exit, but have been, directly or indirectly, the victims of injustice. The principle of exit does not presume that one party exercising the freedom to depart means that the terms of separation are just or fair. The point of the principle is to say that, in the absence of agreement on the terms of association, the various parties to the association can claim only the right to leave, and not the right to force others to accept particular terms they might reject. Moreover, if any parties choose not to exit this must be taken to mean acquiescence (whether enthusiastic or reluctant) in the terms of association, and acceptance of the legitimacy of its authority. What the principle of exit therefore requires of outsiders or third parties is a stance of neutrality and, so, non-intervention in the terms of association of any group; but also non-recognition of any right of the group or its authorities to continue to exist, or to enforce those terms on reluctant members. They will not invade the group to try to change the terms of association to favour one sub-group or another; but neither will they give the existing authority succour by supporting its efforts to perpetuate existing cus-

9 Bayle 1708, 146.

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toms and traditions, or assisting it in its efforts to suppress dissent. The group’s ruling authorities will no doubt complain that this stance is not neutral, since failing to assist it in suppressing dissent, or to provide resources to sustain group traditions, in effect gives more power to dissenting forces. And dissenters will also complain that not to intervene on their behalf is simply to strengthen the hand or ruling authorities or majority group opinion. And there is some truth in both these complaints. But the fact that there is an element of truth in both complaints strengthens the case for a non-interventionist stance, which respects a right of exit but not a right to anything more.

A Critique of the Plain Exit Principle According to Susan Okin, the right of exit is inherently problematic. And to her mind this comes out particularly clearly when one considers the situation of women within repressive groups or cultures. She points out that if ‘girls and women are treated unequally in various important ways within their cultural groups, it cannot but affect their capacities to exercise the right of exit’.10 Moreover, she continues, ‘women’s having an unequal capacity to exit leads to another significant inequality, for it cannot but affect their potential to influence the directions taken by the group.’11 As a consequence, ‘they have less chance of being able to change the group’s norms and practices – including being able to remedy their status and to achieve gender equality within the group.’12 The right of exit cannot serve as a palliative for oppression for another reason: ‘in many circumstances, oppressed persons, in particular women, are not only less able to exit but have many reasons not to want to exit the culture of origin; the very idea may be unthinkable.’13 In fact, Okin remarks, such women ‘want, and should have the right, to be treated fairly within’ their cultural groups.14 Clearly, Okin favours intervention to address the problem of women’s oppression, particularly when it occurs within groups in the liberal state.15 The

10 Okin 2002, 207. 11 Ibid., 207. 12 Ibid., 207. 13 Ibid., 207. 14 Ibid., 207. 15 Perhaps intervention would also be justified, for Okin, to rescue from oppression women who are suffering under regimes outside the liberal state. However, I am not aware of any treatment of this issue in Okin’s writings.

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liberal state, she thinks, should act to protect women from groups whose ways violate their individual rights – ‘preferably by education but where necessary by punishment’.16 And in putting this view, she criticizes a number of theorists who consider exit rights important, including Joseph Raz, William Galston, and myself. I will not rehearse in any detail Okin’s objections to Raz and Galston, since their theories defend group rights in a way that my view does not. Okin and I are in agreement in this regard, though perhaps not always for the same reasons. I will focus instead on her criticisms of the exit principle as they apply to the theory presented here. The central claim of Okin’s argument is that, in the absence of intervention to uphold their rights, women in many cultural groups cannot enjoy meaningful rights of exit, for to enjoy such a right it is necessary not only to have somewhere to go but also ‘the capacity to get there.’17 In many cultural groups, however, women are simply given very little opportunity to acquire that capacity. More particularly, the attitudes and practices of many groups towards the education of women, their rules concerning marriage and divorce, and the ways in which they socialize women to reinforce gender roles and a gender hierarchy, work against women acquiring any serious capacity to exit their traditions or their communities. In the case of education, Okin suggests, much of the problem stems from parental freedom to ‘define and restrict their children’s education’.18 One consequence of this is that many girls go to schools in which they are taught ‘that they are less than fully equal to boys and that their proper role in life is to care for their families and to obey their husbands.’19 And such attitudes, she goes on to observe, are not confined to the ‘fundamentalist fringes’ but are evident even in the expressed views of the largest Protestant denomination in the United States, the Southern Baptists. And the children subjected to the education delivered by such religious groups, in her view, have their rights violated in being ‘subject to this and other forms of indoctrination.’20 More importantly, their capacity to exit is restricted both by the socialization which disinclines girls to consider any other kind of life, and by the loss of educational qualifications which might supply them with resources they need to break away. The rules and customs of marriage operate to disadvantage women in similar ways. Early or involuntary marriage not only creates inequalities in

16 17 18 19 20

Okin 1998, 676. Okin 2002, 228. Ibid., 218. Ibid., 218. Ibid., 218.

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marriage but also makes exit harder – though often there are lesser rights of exit from a bad marriage for women. Marriage, at least under such circumstances, has the effect of imprisoning women in many ways. It limits their educational opportunities, lowers their expectations or life ambitions, and leaves them encumbered with responsibilities that make it difficult to exit the marriage, let alone the culture.21 In general, the upbringing experienced by girls in many cultures tends to lower their self-esteem, which, Okin argues, further weakens their capacity to exercise any right of exit they might formally possess. Women tend to bear the burden of their parents’ expectations that they will act as conduits through which culture is transmitted to the next generation. Even if the right of exit is there, the burden of disappointing parents is almost too much to bear. For a woman to have the option of appealing to the law against her parents in order to prevent an unwanted marriage, or to change her religion to escape its strictures, is often to have two options neither of which ‘is thinkable for her, for, given the manner in which she has been raised, by doing either, she would lose much that she most values in life.’22 The exit solution is no solution at all, and Okin quotes Ayelet Shachar, who makes this point very vigorously when she writes: ‘the right of exit “solution” … throws on the already beleaguered individual the responsibility to either miraculously transform the legal-institutional conditions that keep her vulnerable or find the resources to leave her whole world behind.’23 There are other problems with the exit solution. For one thing, it does not secure freedom from oppression because the most vulnerable members of the community – women and children – are the ones who will find exit most difficult and costly. Okin therefore rejects the idea that the existence of a wider society into which individuals may escape is sufficient to make freedom of exit credible. If that wider society tolerates the practices of the group, ‘it is impossible to see how some members – a child who has been allowed to die, for example – could leave; and it is hard to see how others could leave without enormous difficulty, including persons of both sexes deprived of the education required for alternative modes of life and girls and women who had, in addition, no access to property, had undergone clitoridectomy, or had been forced into unequal marriages (especially if at an early age, without access to contraception, or with little or no possibility of initiating divorce).’24

21 22 23 24

Ibid., 219. Ibid., 222. Shachar 2000, 64–89, at p.80; quoted in Okin 2002, 222. Okin 2002, 228.

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A similar point is made by Shachar, who adds two further objections to the exit principle. First, she argues that to insist on a non-interventionist state policy requires maintaining ‘a rigid conceptual distinction between the “inside,” minority group-controlled realm, and the “outside,” state-controlled realm.’ By overessentiallizing the distance between minority group culture and the dominant state culture, my view denies the inevitable interplay between them. This noninterventionist policy prescription, thus, may ‘end up reifying group identity by turning an essentially fluid mutable cache of customs, beliefs, and practices into a far more fixed and unchanging one.’25 Second, she argues that the exit principle as I have defended it assumes that individuals born into minority groups have effectively chosen membership if they have not elected to leave. This, she thinks, relies on a further assumption that downplays the fact that individuals possess multiple affiliations – ‘to their minority groups, genders, religions, families, states, and so on.’ Yet these ‘different facets of individual identity may overlap and crisscross in complex ways. None can be said to have absolute priority over all others at all times.’26 Ignoring the potentially fluid intersection of affiliations, she says, reduces the richness of personal identity into a single opposition: group member vs. citizen. ‘This rigid framework means that once state citizens enter (or choose to remain within) minority communities, they are regarded solely as group members. And group members are further presumed to have relinquished the set of rights and protections granted to them by virtue of their citizenship.’27 Shachar concludes her critique by suggesting that if a certain group member does not avail herself of a right of exit this is because, in my view, ‘she has chosen to accept all of her group’s practices and policies, including those that violate her basic state-protected rights as citizen.’ And Shachar adds: ‘Kukathas’s blindness to individual differences of position within cultural community hierarchies thus allows him to condone state inaction with respect to minority groups’ affairs, even in the face of group-sanctioned, systemic maltreatment of certain classes of group members.’28 Neither Okin nor Shachar think that freedom of exit is unimportant. Their point is that, in the absence of state intervention, a formal right of exit is inadequate to ensure that any such freedom exists. And women in particular will not enjoy freedom when they are members of groups or cultures that do not nurture – or, indeed, positively hamper – the development of capacities needed 25 26 27 28

Shachar 2001, 69–70. Ibid., 70. A similar point is made by Spinner-Halev 2000, 83. Shachar 2001, 70. Ibid., 70.

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to exercise the right to exit. A similar point is made by Brian Barry in his more general treatment of the problem of exit. According to Barry, it is ‘a legitimate object of public policy to ensure as far as possible that members of associations have real exit options available to them’.29 This means, for example, that ‘children must be brought up in a way that will enable them to leave behind the groups into which they were born, if they so choose’.30 It means that the state should intervene in cases where the costs of exit are ‘excessive’.31 Should the state intervene to make exit possible, and do we need a better account of the right of exit than the plain exit principle provides? We should turn directly to this question now.

Exit and Gender In spite of the difficulties identified by these theorists, the plain exit principle is worth holding onto. To appreciate this we need to see what it is that the principle can – as well as what it cannot – accomplish, and to see what is troubling about the alternatives. This will require a response to the problems raised by Susan Okin in particular. Before turning to this matter, however, some of the arguments presented by Shachar need to be addressed briefly; although they do not pose so serious a challenge, they distract attention from more difficult issues and, so, need to be disposed of. Shachar places great emphasis on the fact that cultural groups are historical entities, whose characters have been shaped as much by their interaction with the dominant state culture in which they have found themselves. Many members of groups indeed possess multiple affiliations, and are not simply members of a single group. It is therefore a mistake to ‘essentialize’ groups, and to turn the problem of multicultural accommodation into a simple conflict between minority group member on the one hand, and citizen on the other. It is a mistake she says I make, though it is a failing she also finds in Okin’s work. The minor problem with this is that it presents an inaccurate account of my expressed views (and also, I think, of Okin’s). For one thing, I had taken considerable trouble to emphasise the fluid and mutable nature of groups – arguing that this was an important reason not to reify groups by recognizing

29 Barry 2001, 149. 30 Ibid., 149. 31 Ibid., 150. I have responded to Barry in detail in Kukathas 2002, 184–203.

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group rights for present cultural formations.32 Moreover, I have explicitly recognized that individuals are not only members of groups but also of another legal and political order, and suggested that this limits the capacity of cultural communities that wish to remain ‘fully integrated into the mainstream of society’ to simply go it alone and ‘live according to ways which betray little respect for the individual.’33 In general, I have emphasised that the public realm itself should be regarded as the product of compromise among different groups and traditions with different values and beliefs, and that the identities of individuals, no less than the understandings of communities, are unavoidably changed by the process of interaction.34 The more serious problem, however, is that dwelling on the fact of multiple memberships or allegiances is simply a distraction from the issue when conflicts arise between the demands of group membership and the rights of citizenship. At the point of conflict there has to be a ‘rigid conceptual opposition between the “inside” minority group-controlled realm, and the “outside” state-controlled realm.’35 The entire purpose of theory here is to address the question of how the opposition between one entity and another should be handled. And to address it properly, it is necessary to set up that opposition at its most problematic and (seemingly) intractable. There is much merit in Shachar’s contention that multiple allegiances may work to the advantage of those who advocate compromise settlements that do not enhance the power either of the state over the group, or the group over the individual. But the question remains, what principle holds when disagreement persists? One option is a principle of intervention to uphold some conception of individual rights. Another is the principle of exit. Both have their difficulties, but the latter is the one defended here.

32 See Kukathas 1992a, 105–39. 33 Ibid. 34 For example, I say (ibid. p. 85): ‘Indeed, cultural communities would be more profoundly affected by the wider society to the extent that they opt to coexist more closely with it. For example, an Indian immigrant community which had chosen (whether separately or collectively) to settle in the midst of English society might be determined to retain certain customs or practices, but would be subject to established legal provisions for, say, testator’s family maintenance. In this respect, such communities would be open to legal challenge by their own members who dissent from the rulings of the community. It would also affect the community’s understanding of the marriage contract, and possibly its understanding of the obligations of children to their parents.’ And see my ‘Cultural Toleration’, which stresses that ‘Communities have thus to strike a balance between retaining their own practices and moral ideals and compromising them in order to enter the public realm of civil life’ (Kukathas 1997). 35 Shachar 2001, 69.

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This brings us back, then, to Susan Okin’s critique. The core of her argument is the claim that without the capacity for exit the right of exit is of little worth, and that some form of intervention is necessary to ensure that women acquire this capacity if they are being raised in groups that are likely to neglect to do so. That the capacity to exit is necessary to enjoy the right of exit is difficult to deny. The question here is whether steps must be taken to ensure that women acquire this capacity. This question turns on a number of issues: whether or not women can acquire this capacity without intervention; what having the capacity to exit means; and what are the implications of intervention to ensure the development of capacities. Let us address these issues in turn. Even in the most difficult circumstances women often acquire the capacity to exit associations or arrangements they dislike or abhor, though they just as often find it difficult, or even ‘impossible’, to exit when they do not lack the resources to leave situations they find hard to bear. This observation holds true not only for women. And it is not difficult to see why. The poorer or less favourable one’s circumstances, the harder it is to garner the resources necessary to leave them, but the greater the incentive to get what’s needed and to get out. The more favourable one’s circumstances, however, the easier it is to leave, but the weaker the incentive to do so. The composition of the world’s refugee numbers bears out this observation: those who flee are those whose circumstances are worst, while those who remain tend to be those who have something to lose and less to gain by leaving. Those with nothing to lose cannot easily be controlled, unless their very desires are moulded. To the extent that Okin’s argument is that women have difficulty exiting unhappy circumstances because of a lack of resources, her position is overstated, since many women can and do leave marriages, communities, and cultures. The greater difficulty they face is often that they may have nowhere to go if the outside world is unwilling to admit them. (I do not, however, wish to overstate this view either; clearly, the willingness of the outside world to admit someone is dependent on what that person has to offer, and someone well-educated, confident, and healthy will always be more readily welcomed.36) But most of Okin’s concern is not that women do not always have the resources to exit but that they lack the capacity even to consider the possibility of doing so. The problem is ‘indoctrination’, or socialization more generally, which prevents women from acquiring the desire to exit their condition. Here we

36 An anecdote illustrates this point well. An Australian migration official who recently visited the Nairobi office of the UNHCR told the resettlement officer that he should understand that he was looking mainly for professionals – doctors and engineers, preferably – who would be the best candidates for resettlement in Australia. He was less than happy to be told that he could be offered only a number of women who had been raped and traumatised.

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are on trickier ground. The implication of Okin’s view is that the liberal state ought to take measures to ensure that the socialization of women does not create women with the wrong sorts of desires. Then they might be capable of making better choices, including the choice to exit. The attractiveness of such a view has seemed obvious to many liberals since John Stuart Mill first advanced it. If we value freedom, surely it is important that we have social institutions which create people – citizens – who value freedom and are able to exercise it? Contemporary liberal theorists such as William Galston and Stephen Macedo have argued as much from their otherwise different perspectives. Yet it is a view that should be rejected, particularly by liberals. Why? It is characteristic of human societies that people try to bring others around to their way of thinking, and to share their understanding of what is a good life. Many of the beliefs we hold, and particularly religious beliefs, are ours because we are socialized to embrace them. Even the philosopher, Elizabeth Anscombe, admitted that it was hard to imagine how she could have acquired her Catholic faith, and belief in some of its central tenets, had she not been raised to do so. Indeed, so necessary is the power to socialize if some beliefs are to be inculcated that important political conflicts have revolved precisely around the issue of who will have the power to shape people’s understandings of what is good. What is to be done when such conflicts arise? The liberal answer is that we find ways of allowing different views to co-exist, separately and peacefully, rather than seek to establish the one true way. On this account, liberalism is about a kind of neutrality on the question of what is the good life, rather than a doctrine about the good life. The implication of this is that it is a mistake to think that it is a part of the role of the state in a good society to ensure the socialization of its citizens in particular ways, to ensure that they do not have the wrong kinds of preferences. On the contrary, the liberal’s task is to resist such calls, which will come from all quarters, and particularly from non-liberals who complain that the principle of neutrality itself exercises too powerful a socializing influence – making it more difficult for them to inculcate religious values in particular. The best reply the liberal has against the charge that liberal neutrality is nothing more than that the covert enforcement of another sectarian doctrine, is the reply that the liberal state makes possible room for dissent. It makes it possible for dissenting views to exit from the mainstream – though it will refuse to turn away those who wish to leave their dissenting communities. This, however, means accepting all expressed preferences or desires as authentic. Even if they are the products of a form of socialization that discourages people from considering the possibility of not believing or accepting the things they have been raised to think or embrace. It means accepting that people will grow up with religious beliefs whose grounds we think utterly

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implausible, and whose implications are that such people will lead a life that is completely deluded. It also means accepting that in many communities women will be brought up imprisoned by beliefs they hold without any conception of the limitations that have been imposed upon them. The alternative is for the liberal state to determine which preferences it will and will not recognize as genuine or authentic, or will and will not allow to be reproduced. One of the real problems here is that to try to reform the ways in which women in some cultural communities are educated or raised is to go against the preferences of many women themselves. Sometimes even the most harmful practices, such as female genital cutting and footbinding have been sustained with the active and insistent support of women themselves. (I will say more on these particular issues presently.) It is difficult to foist liberation upon people, particularly when they do not see it as liberation at all. But what of cases where women already have a sense of the burdens they bear but are unable to extricate themselves because the costs are too great? Okin cites the case of a woman whose options of appealing to the law to prevent an unwanted marriage, or of changing her religion to escape its strictures, as having options which are unthinkable. Surely something might be done here? The problem here, however, is that the woman described is not so much unable to exit as confronted with a terrible dilemma: to pursue her own happiness or satisfy her parents’ wishes; to escape to freedom or to abide by her faith. The problem is that a tradeoff has to be made. The nature of such dilemmas is captured with great power in the letters of a young Javanese noble-woman, Kartini, to her Dutch friend and correspondent, Stella Zeehandelaar. Written in the early part of the twentieth century, Kartini describes both her affection for her family and people and great desire that the virtues of the Javanese will one day come to be better understood and appreciated by Europeans, and her no less fervent desire to escape from the obligations by which she is burdened as a dutiful daughter. In these letters, one of Kartini’s most firmly expressed desires is to broaden her own education, and make education available to Javanese women. No less important to her is her longing not to be forced into marriage. Yet in the end she forsakes her opportunity to study abroad to stay with her ailing father, and agrees to a marriage arranged by custom. ‘I must not lose sight,’ she writes, ‘of my duty as a child, nor those duties which I need to fulfil towards myself especially if my fulfilment affects not just my own happiness but also the well-being of others. The issue is now, how am I able to harmonize these two great duties which I have to fulfil and which are precisely diametrically opposed to each other?’37

37 Kartini, op.cit., p.81.

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Kartini is perhaps precisely the kind of person Shachar has in mind when she refers to the ‘beleaguered individual’ confronted with the ‘responsibility to either miraculously transform the legal-institutional conditions that keep her vulnerable or find the resources to leave her whole world behind.’ Yet the problem for Kartini is not a lack of resources. She is educated and has the opportunity to make her own way in the world. What holds her back is her attachments. What needs to change for her to be spared the dilemma is for her parents’ attitudes to change. There may be no way around the fact that responsibility for the education of parents will fall on the beleaguered individual, for no one else may be capable of effecting it. An important part of my point here is that, in the end, responsibility for change within cultural communities and traditions has to come from within, and to the extent that such changes are necessary to give women the capacity to exit that responsibility must fall upon those women. One reason this is so is that women are all too likely to resist reforms that go against their own beliefs. We can see this in the history of two cultural practices which have been unquestionably harmful to women, and yet have persisted for hundreds of years in spite of repeated attempts to end them: footbinding in China, and Female Genital Cutting (FGC) in North Africa. One of the reasons attempts simply to end the practices by banning them failed is that both practices were too tightly woven into customs and systems of belief (including aesthetic values) that made women highly resistant to attempts to end them. More precisely, they resisted reform because they feared for the welfare of their daughters if they did not subject them to these procedures that invariably deformed and scarred them, and kept them in intense physical pain. In both cases, the fear of mothers was that their daughters would be rendered unmarriageable if their feet were not bound, or if they were not appropriately cut. No one was prepared to defect from these conventions for fear of leaving her daughters to remain unmarried in societies where single women could not survive. Footbinding in China was ended abruptly not by edict but by the formation of promise-keeping groups who agreed to defect collectively. And Gerry Mackie has argued that the end of FGC is most likely to be brought about by similar mechanisms if cultural resistance is to be overcome.38 Though it has to be conceded that, in such cases, even if sanctions or punishments will not work, the mere existence of a formal right of exit is not enough. The right of exit may be hard to exercise when it requires not just one’s own defection but collective action to exit collectively.

38 Mackie 1996.

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This brings us to the issue of what steps ought to be taken by the liberal state to ensure that women have ‘realistic rights of exit’. At times, Okin is quite forthright in her insistence that the state should take very firm action to ensure that women are not forced into marriage, or denied an education, or subject to other forms of ill-treatment, suggesting that those who harm women in this way be punished for doing so. What exactly the state should do to punish such things, however, is not clear, particularly if parents and communities resist change. One option would be to imprison parents; another would be to remove children from their care. Both of these options have been taken by governments in the past, with limited success, and there is good reason to be sceptical about them – particularly if the welfare of children is the main concern. The issue becomes even more difficult, however, when the power exercised by parents or community is more subtle. How would the state intervene in the case of someone like Kartini, who faces the dilemma she does precisely because of her love of her parents and her culture? Even though she regarded European ways as superior and more enlightened, and was at times driven to the brink of despair by the failure of her efforts to make education more accessible to women in Java, Kartini was not willing to go against her parents or culture, and was highly critical of the Dutch administration for its failure to treat its colonial subjects fairly. To have intervened on Kartini’s behalf against her parents would almost surely have provoked her to come to the defence of her traditions and her countrymen. Blood is thicker than theory. The matter of forced marriage also provides a difficult problem for intervention. There is usually less of a problem when the marriage is literally forced upon a bride who would run away if she could. She might still have the opportunity to escape and have the marriage annulled for having been entered into under duress. She can claim the protection of the laws of the wider society, which do not recognize marriage in such circumstances. But the problem is more difficult when the bride marries because she prefers marriage to displeasing or dishonouring her parents. The marriage in this case is forced in the sense that she has been compelled to make a tradeoff. But within the context of the tradeoff that had to be made, she was not forced to make the choice she did; she could have exited and borne the cost of parental anger, or even of being shunned. What can the liberal state do to make her condition any better if what this woman desires is both independence and parental love and approval, but desires the latter more? Her rights of exit cannot be made more realistic by giving her more resources. They can only be made more realistic by changing her desires or by changing the desires of her parents. The problem with this is that it can only be achieved by ignoring this woman’s actual desires, and by invoking desires she does not hold as dear.

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All of this holds even before one considers the fact that there are other problems associated with any sort of reliance on the state as an agent of social reform. In such circumstances, intervention should be considered a last resort. But if intervention is ruled out as an option, what then remains? The argument of defenders of group rights is that the state ought to intervene positively to support groups in their efforts to maintain their traditions and practices. If, however, we take seriously the claims of those women who wish to reform their cultural traditions, it would be wrong to give any special recognition or succour to cultural groups. It would be best to recognize the freedom of all individuals to exit their communities if they so wish. This would not only offer to them some opportunity to escape from oppression but also empower them within their own communities to the extent that the threat of defection lends strength to voices of reform. At the same time, this takes seriously the concerns of communities of people who might dispute the claims of disaffected minorities, and fear that their own ways of life might be held hostage to the desires of those members who want to change it. The more is done to make exit a ‘realistic’ possibility, the more the community whose practices are the object of reform will rightly feel aggrieved that their way of life is being deliberately undermined. What the principle of exit attempts to do is strike a balance which denies the community the right to be guaranteed the persistence of its way of life, yet declines to authorize anyone to hasten its demise.

Feminism, Multiculturalism, and Exit Feminism and multiculturalism are in tension, as Susan Okin more than anyone has made abundantly clear. Those among her critics who have challenged her on this point, and have suggested that there might be some reconciliation between the interests of women and the claims of culture, have a point. But it is a point of limited significance, since it is one Okin can readily concede; her point, however, is that there are many cases in which no reconciliation is possible, since the two positions will come into conflict when the interests of women and the claims of culture result in contending demands.39 The question is how to think systematically about the problem of addressing this conflict.

39 I have defended this view at greater length in Kukathas 2001, 83–98.

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The Plain Exit Principle offers an answer to this question. What it represents is the philosophical core of a political stance that says, when people disagree about how they should live, political institutions should accommodate that disagreement rather than take sides. In reality, no political institutions can avoid taking sides at least to a small degree. In this respect, the exit principle is unrealistic insofar as it advocates a standard that may be impossible for any polity to adopt. Its merit, however, is that it attempts to strike a balance between two other alternatives with problems of their own. The first alternative is a theory of multiculturalism that advocates strong protection for cultural groups to enable particular ways of life to endure. The problem with this view is that it ends up demanding that some of its unwilling members be coerced into supporting traditions they would just as soon abandon. This version of multiculturalism asks either that cultural communities’ authority over recalcitrant members be recognized, or that the state grant communities additional resources to keep their members compliant, or that the state make it more difficult for those members to leave so that they cannot credibly demand reform in exchange for compliance. This alternative theory sacrifices individual freedom in the interests of cultural community. The second alternative is feminism, which asserts that ways of life that neglect or trample on the interests of women should not be tolerated but discouraged. Feminism, in all its variety, is a doctrine of women’s freedom; and it is one that demands that the standards of freedom be used to judge, shape, and reform all forms of human association. The problem with the feminist perspective, however, is that it offers not so much an account of how difference or disagreement might be accommodated as a critique of traditions, cultures, or legal arrangements that insist on women’s unequal (and inferior) status. Its strength as an ethical theory is also its weakness as a political theory. The Plain Exit Principle is a principle of accommodation. It is not, however, the only conceivable principle of accommodation; and its merit has often been questioned by those who consider it overly zealous in the cause of toleration. Jeff Spinner-Halev expresses this concern very clearly: A single-minded liberal theory is in danger of losing sight of crucial liberal values. A heavy emphasis on toleration threatens equality and individual autonomy by allowing all kinds of groups to exist, regardless of their practices … . I worry less about a theory that admits to internal tensions than I do about a theory that is much too singular in its aims. A relentlessly consistent political theory can too easily become relentlessly tyrannical.40

40 Spinner-Hale 2005, 157–171, at 171.

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Spinner-Halev is a pluralist, but not what Anthony Appiah calls a ‘hard pluralist’.41 He appreciates that different values have to be ‘balanced’, the one against the other, ‘so that they all can coexist, however uneasily.’42 Why apply the exit principle relentlessly, rather than recognize that freedom of exit, important though it may be, is not all that matters? A more practical principle might be one such as that advanced implicitly by Alison Renteln, in her defence of a policy of ‘maximum accommodation’. She puts the point as follows: In democratic political systems individuals expect to have basic rights such as religious liberty, freedom from government intrusion in the family, and freedom of association. But they should also have the right to follow their cultural traditions, unless these traditions cause irreparable physical harm to others. In the absence of the threat of serious harm, liberal democracies should not interfere with cultural traditions. The presumption should be that governments ought not intervene unless failure to do so would result in death or irreparable physical harm to members of the ethnic minority group.43

Surely such an approach would be more realistic, more reasonable, and philosophically more plausible than the unyielding attachment to an abstract principle? Tolerate by all means; but don’t let toleration eclipse other important values entirely. There are two responses I would make here. The first is that principles that build balance, reasonableness, and a willingness to relent in the face of unpleasant or troubling implications do not always turn out to be particularly helpful. For the most part, all they do is shift the debate to other issues or arenas. The more reasonable principle that governments should not intervene ‘unless failure to do so would result in death or irreparable physical harm’, for example, requires that we rejoin the battle on different grounds: what counts as death or irreparable physical harm? In the debate over how to deal with cultural difference, this takes us back to where we started: what do we do when people dispute what counts as harm, or even death. (For example, in many societies even the mainstream is divided over the question of whether an aborted foetus is harmed or killed.) Qualifications bring no practical rewards. My second response is that political theory – like philosophy more generally – should be relentlessly consistent. It would be naïve, if not absurd, to expect consistency in politics, since public officials have to respond the pressures exerted by different constituencies, and are generally happy if they can

41 Appiah 2005, 73ff. 42 Spinner-Halev 2005, 171. 43 Renteln 2004, 19.

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mollify, not reconcile, the diverse perspectives found within political society. But philosophy, even political philosophy, is not politics. If it has any contribution to make, it is a contribution to understanding rather than to practice. And if the correct understanding is that there are many values that are important, philosophy should try to say something about how we should think consistently about the problem of accommodating or trading-off diverse or conflicting values. It may, of course, be that no principle can be devised or uncovered that will guide us through the minefield of value-conflict. We may just end up opting one way or another, under the influence of other considerations: interest, intuition, or majority power, for example. At this point, however, there is nothing to be gained by invoking a political theory whose flexibility is alleged to lend credence to this practice. We might as well admit that some of the things we do in political life have no principled basis. The Plain Exit Principle is offered here as a way of thinking systematically about how difference or disagreement between cultural traditions might be accommodated in a consistent and principled way, assuming that there is no good reason why any such accommodation should favor the convictions of those powerful enough to implement a solution. It cannot, I think, be denied that this principle challenges important feminist concerns, just as it repudiates the demands of some multiculturalists. Both of these perspectives insist that there are important considerations at stake – the freedom of women to live autonomous lives, and the need for some people to hold on to the traditions or ways that give their lives meaning. The inadequacy of the exit principle may appear to be reflected in the fact that its resolution of this conflict leaves both parties dissatisfied. Equally, it may just capture the fact that the dilemma it addresses is a difficult one, and that no resolution is going to be entirely satisfactory.

Bibliography Appiah Kwame Anthony (2005), The Ethics of Identity, Princeton. Barry Brian (2001), Culture and Equality: An Egalitarian Critique of Multiculturalism, Oxford. Barry Brian (2002), “Second Thoughts – And Some First Thoughts Revived”, In: Kelly Paul (ed.), Multiculturalism Reconsidered: Culture and Equality and Its Critics, Oxford, 204–238. Bayle Pierre (1708), Philosophical Commentary on the Words of Jesus Christ, Compel them to Come In, London, 146. Coté Joost/Clayton Victoria (eds.) (1995), On Feminism and Nationalism: Kartini’s Letters to Stella Zeehandelaar 1899–1903, Monash Asia Institute, 1. Kukathas Chandran (1992a), “Are There Any Cultural Rights?”, In: Political Theory 20(1), 105–139.

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Kukathas Chandran (1992b), “Cultural Rights Again: a Rejoinder to Kymlicka”, In: Political Theory 20(4), 674–680. Kukathas Chandran (1997), “Cultural Toleration”, In: Kymlicka Will/Shapiro Ian (eds.), Ethnicity and Group Rights, NOMOS XXXIX, New York, 69–104. Kukathas Chandran (2001), “Is Feminism Bad for Multiculturalism?”, In: Public Affairs Quarterly 5(2), 83–98. Kukathas Chandran (2002), “The Life of Brian, or Now For Something Completely Differenceblind”, In: Kelly Paul (ed.), Multiculturalism Re-considered: Culture and Equality and Its Critics, Oxford, 184–203. Mackie Gerry (1996), “Ending Footbinding and Infibulation: A ConventionAccount”, In: American Sociological Review, 61(6), 999–1017. Okin Susan M. (1998), “Feminism and Multiculturalism: Some Tensions”, In: Ethics 108, 661–684. Okin Susan M. (1999), “Is Multiculturalism Bad for Women?”, In: Cohen Joshua/Howard Matthew/Nussbaum Martha C. (eds.), Is Multiculturalism Bad for Women?, Princeton, 9–24. Okin Susan M. (2002), ‘“Mistresses of Their Own Destiny”: Group Rights, Gender, and Realistic Rights of Exit’, In: Ethics 112 (2), 205–230. Rawls John (1999), A Theory of Justice, Cambridge, MA. Renteln Alison Dundes (2004), The Cultural Defense, Oxford. Shachar Ayelet (2000), “On Citizenship and Multicultural Vulnerability”, In: Political Theory 28, 64–89. Shachar Ayelet (2001), Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge. Spinner-Halev Jeff (2000), Surviving Diversity: Religion and Democratic Citizenship, Baltimore. Spinner-Halev Jeff (2005), “Autonomy, association and pluralism”, In: Eisenberg Avigail/ Spinner-Halev Jeff (eds.), Minorities Within Minorities: Equality, Rights and Diversity, Cambridge, 157–171.

Dagmar Borchers

Calculating on Identity? The Costs and Benefits of the Costs-of-Exit Debate 1 About the Framework and its Adoption When discussing the problems of individuals who feel discontent, embarrassed or even scared as members of certain cultural groups, liberal philosophers use certain terminology. They talk about “exit”, deliberate on its “costs” and consider questions such as what amount of costs might be compatible with the idea of still being a voluntary member of a group. These concepts are part of a framework that stems originally from economics. It has been presented and carefully analyzed by Albert Hirschman in his famous book from 1969 “Exit, Voice and Loyalty. Responses to Declines in Firms, Organizations and States”. Liberal Multiculturalists have – for several reasons – adopted this framework and its central concepts, using them for what might be called the costs-of-exit debate. Using the framework from economics does not only have its benefits but also some serious flaws. In this essay, I discuss some of these benefits as well as disadvantages of adopting the economic framework into the debates on multiculturalism. I argue that the economic framework cannot be directly transferred to debates on multiculturalism, in particular to the questions of exit and group membership. The situation of a member of a cultural or religious group is totally different from that of a consumer buying a product of a certain firm. Cultural identity is not a product. The relation between group member and group is totally different from that between consumer and firm. Multicultural society, with a variety of cultural and religious groups, should not be conceived of as a free market society within which “consumers” make rational decisions on which offer fits best to their needs. This means, that the decision-makingprocess of the individual making use of his exit option is quite different from that of a consumer – dissimilar to such an extent that it may be inadequate to describe it as a calculation of costs. In order to be a suitable framework, Hirschman’s basic ideas on exit need a careful examination. They are to be modified should they be able to adequately deal with the complexities of multicultural issues. As I show in this essay, using of a particular framework without taking into account the differences between different contexts (economics and political philosophy) only leads into several shortcomings as well as certain “blind spots” – questions that are neglected as they seemingly don’t fit to the framework in use.

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In the following sections, I first sketch the origins of the conceptual framework in economics. I then provide some reasons why talking about “costs” is attractive for liberals: Adopting the cost terminology from economics and focusing on the exit debate is a seemingly fruitful and transparent way of discussing exit, also protecting liberals from getting too involved with the complicated issues concerning cultural identity and belonging, as well as liberal politics on cultural issues. In the final sections, I elaborate on some of the flaws of the cost debate that can be traced back to the inconsiderate adoption of the economic framework. These flaws can be summarized as follows. Talking about “costs” provokes two misleading ideas: First, the idea that decisions on exit, voice and loyalty are neat, impersonal, and based on calculation, and second, the idea that the losses of exit, whether for individuals or groups, are straight forward and easily compensated.

2 Exit, Voice and Loyalty within Economics According to Hirschman1, Exit, Voice and Loyalty are strategies to deal with dysfunctional systems such as firms, organizations or other kinds of social groups. How does Hirschman describe them? How do they work in economic contexts? What are the basic assumptions of Hirschman’s framework? The starting point is a situation where the quality of a product declines. Customers notice this and have to make a decision how to react. Generally, they have three options: They could keep quiet, say nothing, hoping that things will become better soon – this is loyalty. They could protest, show their dissatisfaction and urge the management to improve the quality of the product – this is voice. Or they could buy the product elsewhere, given that there is an alternative – this is exit. Some customers stop buying the firm’s products or some members leave the organization: this is the exit option. As a result, revenues drop, membership declines, and management is impelled to search for ways and means to correct whatever faults have led to exit.2

To economists, exit is what happens normally in competitive markets. It is a central mechanism of free markets and enterprise systems. As Hirschman shows,

1 Hirschman 1969. 2 Ibid., 4.

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exit is likely to take place when adequate alternatives are available. If the product is easily available otherwhere, loyalty may not be very intense. If the product is not relevant for the consumer and he could get it easily somewhere else, he may not have much interest in spending much time and effort on voice either. This is even more so, if he knows that the prospects for voice are not promising, since the management is not likely to react, and the decrease of quality is unlikely to stop in the near future. On the other hand, exit may not be an option, or at least very unlikely to happen, when there is a monopoly, which means that there are no alternatives.3 Exit is also unlikely to be chosen if the product is relevant for the customer’s life, and there are good prospects for voice. Exit seems to be the simplest reaction: No efforts, no quarrel, no interventions – just leave and get your stuff elsewhere. On competitive markets and whenever there are comparable alternatives, exit is a neat solution. To economists, it is a powerful response to quality decline since firms and organizations are afraid of (too much) exit: If the customers stay away, the firm may get into serious trouble and be in danger of total disappearance from the market. The competitors will then take over their customers and be strengthened by the fall of the firm that obviously hasn’t been able to stop its decline. But under certain conditions voice may be a more attractive response: If the product plays an important role in one’s life and isn’t available easily or in the same quality elsewhere, or if experience shows that criticism will be successful, efforts may very likely be taken to actively change the situation and stop the decline. Voice means to “kick up a fuss”4 making an appeal to the management or authorities to actively face the problems and solve them. Voice needs power, rigidity and creativity, and it can take many forms: appeals, petitions, various types of actions and protests, even public mobilizations. Whether voice is an appealing option from the perspective of the customer depends on several factors: his or her influence and authority, the probability of success, and the amount of time, energy and money necessary for it. Hirschman assumes that, contrary to exit, voice is costly, direct, and will, for these reasons, not be chosen too often by the customer. From the perspective of individuals, time, money and creativity are limited resources. According to Hirschman, customers are very likely to take this option if the product is expensive, durable and important for their daily life or lifestyle – like for instance a car or some (other) luxury articles.

3 Whereas this may not be a very common scenario, it does sometimes occur. For example, for a long time, the Deutsche Bahn (DB) had a monopoly on railway tracks in Germany. 4 Hirschman 1969, 30.

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And his complaints will be of some concern to the firm or dealer whose product he has bought both because he remains a potential customer in one, three, or five year’s time and because adverse word-of-mouth propaganda is powerful in the case of standardized goods.5

Obviously, voice is more effective in cases where exit, too, is an option. Conversely, the decisions to exit are often taken in the light of the prospects for voice: Thus, while exit requires nothing but a clearcut either-or decision, voice is essentially an art constantly evolving in new directions. This situation makes for an important bias in favour of exit when both options are present: customer-members will ordinarily base their decision on past experience with the cost and effectiveness of voice even though the possible discovery of lower cost and greater effectiveness is the very essence of voice. The presence of the exit alternative can therefore tend to atrophy the development of the art of voice.6

The likelihood of voice however increases with the likelihood of loyalty. Loyalty, the third option, means to somehow have hope for improvements from within, and a willingness to show patience and live up to the motto ‘wait and see’. Loyalty may be the expression of certain underlying emotions. But this psychological impact does not alter the general rationality of the whole process – on the contrary, it is part of it: […] in the choice between voice and exit, voice will often lose out, not necessarily because it would be less effective than exit, but because its effectiveness depends on the discovery of new ways of exerting influence and pressure towards recovery. […] Loyalty then helps to redress the balance by raising the costs of exit. It thereby pushes men into the alternative, creativity–requiring course of action from which they would normally recoil […].7

Willingness to cope with the unsatisfying status quo mustn’t necessarily be an irrational way to react: Under certain circumstances it may well be reasonable. Hirschman emphasizes that loyalty can prevent deterioration from becoming cumulative, such that the firm has no chances of restitution due to too much exit. Thus, voice not only plays a decisive role for the recovery of a firm in decline but makes this recovery possible. Here as well, loyalty is more powerful if it is backed up by an exit option. A loyal person may use certain amount of time to deliberate on their next steps, keeping all options – exit, voice and loyalty –

5 Ibid., 41. 6 Ibid., 43. 7 Ibid., 80.

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open. Loyalty is thus not only an important alternative in itself, but stands in complex relations and interdependencies to exit and voice. What relevance do these analyses have for economics? In economics, according to Hirschman, it has always been assumed that market competition will lead to a permanent and stable maximization of productivity and quality. From the perspective of firms, each and every failure may lead to rapid disappearance of the firm from the market since “its market share is taken up and its factors are hired by others, including newcomers; in the upshot, total resources may well be better allocated.”8 With his deliberations on exit, voice and loyalty, Hirschman questions the general view of “economy as a fully competitive system where changes in the fortunes of individual firms are exclusively caused by basic shifts of comparative advantage”.9 Contrary to that, he thinks that the decline of firms and organizations, the deterioration of competitors, is a permanent structural property of the whole system: He speaks of a “discovery of slack” which means that “firms and other organizations are conceived to be permanently and randomly subject to decline and decay, that is, to a gradual loss of rationality, efficiency, and surplus-producing-energy, no matter how well the institutional framework within which they function is designed.”10 From an economist’s point of view, it is not always necessary and certainly not desirable that firms with problems are faced solely with the cumulative effects of exit and vanish from the market. Instead, exit, voice and loyalty should be seen as mechanisms to correct mistakes, reinstall full market power and renew the firm politics. Hirschman stresses the enormous innovative potential of such a crisis: In reaction to exit, voice and loyalty, firms and organization may create new structures, new products and new ways of thinking. Decline has a tendency to create new powers, necessary to facing the challenge, and thus exit, voice and loyalty can be seen as mechanisms to initiate new developments. The three strategies may thus generate prospects of recovery, and, as whole, work as an important supplementary mechanism to pure eliminative competition.

8 Ibid., 2. 9 Ibid. 10 Ibid., 15.

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3 Stepping into the Trap: Adopting the Framework for Multicultural Issues Hirschman claims to be providing an interdisciplinary analytical tool for analyzing various cases in various fields of modern societies. In his view, the analysis of exit, voice and loyalty is not only relevant in economics but also in social sciences, including political science. Hirschman emphasizes the universalistic nature of the logic of the three strategies and of the rationality of individual decision-making in all areas of daily life. Whenever one has to make a choice as a customer, a member or a consumer in modern societies, the logic of the three options prevails. If correct, this would not only mean that economics could support other disciplines in their analysis of social developments but, moreover and more importantly, provide a unifying terminology and research framework that would make it possible to transcend disciplinary borders and compare the results of different sciences on a unified scale. There are, however, certain inconsistencies in Hirschman’s views about the proper place of exit in different disciplines. On the one hand, he sees exit as a strategy that figures most prominently within economical contexts: The customer who, dissatisfied with the product of a firm, shifts to that of another, uses the market to defend his welfare or to improve his position; and he also sets in motion market forces which may induce recovery on the part of the firm that has declined in comparative performance. This is the sort of mechanism economics thrives on.11

Voice, however, is described as “political action par excellence”.12 Voice is always connected to direct confrontation, the necessity to formulate one’s criticism and to find ways to utter or publish it as effectively as possible. These things are all typical, if not constitutive, of the political realm. On a closer look, Hirschman does not think that members of all kinds of groups would react uniformly, and he is reluctant to see exit as a common option in the context of cultural and religious groups. This interpretation is supported by the following table taken from Exit, Voice and Loyalty13:

11 Ibid., 16. (My emphasis.) 12 Ibid. 13 Ibid., 121.

Calculating on Identity? The Costs and Benefits of the Costs-of-Exit Debate

Organizations whose members react strongly via ↓ Yes Voice

No

Exit → Yes

Voluntary associations, competitive political parties, and some business enterprises, for example, those selling output to a few buyers Competitive business enterprises in relation to customers

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No

Family, tribe, nation, church, parties in non–totalitarian one– party–systems

Parties in totalitarian one–party– systems, terroristic groups, and criminal gangs

Table 1: Exit, Voice & Loyalty in Different Contexts

As a purely quantitative analysis, Hirschman might be right in assuming that members of families, tribes and nations react strongly via voice if they don’t feel accommodated in these contexts any longer. Usually, voice is here an attractive and promising strategy. But what does that tell us about exit? Does this mean that exit is still an option? Is exit from family, tribe or nation even possible? On the other hand – despite of what the figure above is saying – Hirschman has been convinced that exit is possible even from groups that we are born into. To him, the USA itself can be seen as the result of thousands and millions of exit-decisions taken by people all over the world who decided to leave their nations, tribes and families to begin a new life. And within a nation such as the USA, many individuals have, in fact, left their tribes and communities behind, trying to proceed and – by starting a career, improving one’s social position – leaving certain kinds of deprivation, narrowness and even oppression behind. In the contemporary world, exit is possible at least from the nation state, even if for many people this remains extremely difficult. But it has been doubted whether exit could ever take place from communities such as tribes, families or tightlyknit cultural and religious groups. Disputes within multiculturalism and the exit debate start right here. As the philosophical debate on exit in liberal multicultural societies shows, Hirschman’s framework has been adopted almost entirely uncritically into these debates. Adapting this framework and talking about “costs” and “exit” is attractive for liberals since it seems to be a transparent, illuminating and relatively simple way to analyze those problems that often arise within liberal multicultural societies. At least three reasons for such adaption may be found: Firstly, Hirschman’s framework seems to be a promising model for analyzing individual decision-making: The economic model of a rational agent using “the

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market to defend his welfare or to improve his position”, setting “in motion market forces which may induce recovery” could well be used to explain individual decision-making concerning group membership in multicultural societies. The individual group member rationally evaluates the status quo of the group’s internal affairs in accordance with his own values and preferences. He then decides which option answers his wants and needs best, and acts accordingly. “Discovery of slack” within a group, as well as the optimal response to it is all up to the rational agent and his preferences. As long as there is an option to exit, members who are in danger of being coerced by group authorities can find a way out. This motivates the assumption held by many liberals – that exit also has a protective role for minorities within minorities. Secondly, the framework provides a general idea of the status of cultural and religious groups that some liberals find attractive: a market model where cultural and religious groups are competitors in a free market and have to take care in order not to lose their members. Since in a multicultural society individuals get in touch with different ways of life, and cultural and religious contexts, they can – given that exit is an option – really choose how to live. A group that fails to provide for the preferences and convictions of its members will disappear (from the cultural market place) unless it gets the chance to recover from internal controversies. This general view on groups may support the idea that exit also has a transformative function: The fact that individuals might go, and the threat of the disappearance of the group as a consequence of collective exit, may lead to modifications within authoritative structures and prevent cultural and religious dogmatism. Thirdly, this economic model supports the liberal strive for politics of nonintervention. If exit and its alternatives work as they should, intervention into minority groups is not called for. This is important, as many liberals don’t want the state to take part in groups’ internal quarrels, thus somehow prescribing which cultural or religious groups or ways of life are acceptable and which are not. At the same time, the liberal state has to guarantee citizenship rights to all its citizens. The model with the exit strategy as its central element seems to offer an elegant solution to this dilemma. Two effects are established simultaneously: First, given that exit is an option, intervention is not necessary. This means that even authoritative groups can handle their internal affairs as they wish – individuals not willing to accept certain aspects of their group life need not stay but can simply leave. Second, given that exit is an option, access to the basic rights of citizenship is guaranteed. Those who decide to leave can enter the mainstream society and make their living in this society. The providing of such alternative place to go to may not be too much of a challenge for multicultural politics – or so many liberals would like to think. All in all, given that exit works as it should,

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the liberal state doesn’t need to say or do much about cultural and religious groups within multicultural societies – which is exactly what liberals usually want. Being convinced of the strengths and merits of this model, it seems that many liberals have largely ignored the problems of transferring this initially economic model into political philosophy. As we will see, the transfer of the terminology and the whole framework into the discussions on liberal multicultural societies is not that easy. At least two difficulties have to be mentioned: First, talking about costs leads to misleading ideas of exit from cultural and religious groups. In real life, making decisions on exit is less rational, less calculating and less foreseeable than the theoretical framework assumes. The decision-process of a group member is different from that of the consumer since their situations are not comparable. One’s cultural identity and feeling of belonging are not “products” that are easily available elsewhere. Second, as detailed examinations and a variety of examples show, exit from cultural groups isn’t neat, impersonal and indirect and it is not a simple yes-or-no-option. Obviously, there are varieties of exit, and partial and incomplete versions of exit also need to be taken into account. Exit from a group within multicultural societies does not resemble exit in economic contexts. From the perspective of an individual, cultural groups are not like firms or organizations. Taking these insights seriously, it becomes clear that for the liberal state to guarantee exit, it needs an ambitious and complex multicultural policy. Exit is a challenge rather than a solution for liberal politics. Instead of being an easy way out of several problems, it is an element of multicultural politics that needs its own considerations and efforts. Let’s now have a closer look at these difficulties.

4 Individual Decision-Making: Calculation on Identity? Deliberating on exit and its probability means to analyze its costs – this is one of the most influential insights of Hirschman’s study. The total amount of costs in general will be the sum of some calculus of entrance costs, alternatives and their availability establishing opportunity costs, and costs of transaction. From an economist’s perspective, individuals react rationally to decline if they check which strategy is the most promising, needing the smallest amount of costs and efforts. By choosing this strategy, they don’t only make a rational choice but they also maximize their utility. The fact that in real life, this could be both time consuming and difficult, has no impact on this general assumption.

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In my view, liberals have adopted the economists’ framework too quickly. Those speaking of “exit from cultural or religious groups” simply take it for granted that exit from these groups is possible as well as similar to the exit scenarios in economics. One of the most important objections to the acceptance of the Hirschman-framework within the context of the liberal multicultural debate is the danger of being seduced to too simple ideas on how exit takes place. Thus, concerning the cost debate on exit, liberals are, like mice, being caught in a very attractive theoretical trap. One may object and claim that talking about costs is, nevertheless, useful for the systematic listing of the problems relating to exit. But the framework does not provide a suitable model for individual decision-making in multicultural societies. The economic framework is tied directly to the paradigm of rational decision-making: A rational agent with clearly structured preferences looks at his options and, after cost-benefit-analysis, decides which option maximizes his utility or – within a more moderate model – which option secures an acceptable status quo. Ideally, the agent has all relevant information and can also calculate the probabilities of different outcomes. Obviously, calculation is an important element of rational decision-making. Without it, the decision would have no basis. To explain the decisions of a consumer, rational decision-making seems to be a plausible model: The consumer knows the prices of the competing offers and makes his comparisons fairly easily. He can check whether there are alternatives and what other strategies (voice and loyalty) would cost him. Having all relevant information he could make a rational decision, choosing one of the three strategies. For a consumer, choosing exit is a rather trivial thing: One just has to walk into another shop or contact another firm. No one would blame or attack him and no one would be offended by him doing so. Since exit in many cases seems to be comfortable and easy, it is also, in many cases, a rational option to take. Although I do not claim that members of cultural and religious groups would not be capable of making rational choices, real-world-cases show that, in most cases involving cultural and religious groups, no such calculations are being made. People do not sit down and calculate the pros and cons of the three strategies, and they do not analyze the costs of exit either. In the context of membership in cultural and religious groups where individual identity, personal convictions, values and emotional ties are involved, the choice among the three options may not be a rational decision at all. Though people may choose from “an adequate range of options” – exit, voice and loyalty – in fact they lack necessary information. Most of the relevant facts concerning their near future are not foreseeable. Additionally, the exit candidates are often under pressure, and they may have a time problem, too: Depending on the situation, the careful

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considering of the costs and benefits may be almost impossible. As reports from real exit scenarios show, many individuals have to make their decisions in a hurry, if not in a moment. One of the most important factors distorting the perception of the situation are emotions of all sorts: loyalty, love, devotion, passion, but also hatred, loneliness, despair, weariness. Promises and commitments may be decisive. Even thinking about exit may lead to existential anxiety taking individuals to the edge of their psychological capabilities. All in all, strong feelings of deterrence may lead to a decision to exit, even when this decision would not be rational. In such situations, even high costs do not prevent exit.14 On the other hand, emotions and feelings of being deeply involved with certain traditions, family or a cultural group often prevent people from doing what would obviously be the best option for them – that is, prevent them from leaving. Instead, they make concessions and stay, and do what they think is expected of them. Depending on their personality and individual situation, many exit candidates try to be loyal as long as possible and think of exit as the last resort. Even if some of Hirschman’s deliberations on exit, voice and loyalty, including their interdependencies, may shed some light on these situations, this does not mean that the situation of the customer is in any way comparable to the circumstances of those group members who are discontent or even oppressed by the very group to which they strongly feel that they belong. Taking these insights into account, we should be reluctant to think that a calculation of costs is the only aspect that matters in individual decision making. Strong emotions can outweigh or even prevent such calculations and seemingly “irrational” outcomes may ensue. The more complicated the issue, the more doubtful becomes the idea that a cost-benefit-analysis could operate as a satisfactory description-tool of the decision-making process, able to adequately include all relevant aspects of the individual’s decisions. Why is this important? Because, if exit and loyalty, in this context, may be highly irrational responses to decline or deviation, this irrationality should be taken into account. If exit cannot generally be interpreted as a rational response to decline in the context of multicultural societies, this means that choosing exit does not necessarily benefit the exit candidate. If, on the contrary, exit turns out to be a destructive element of liberal multicultural politics (with negative effects on individuals and groups) this would be a disastrous result, running contrary to all liberal intentions for securing exit in the first place.

14 See also Kukathas, this volume.

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Accepting this dimension of possible irrationality in the multicultural context means to take a sceptical view on a framework that is based on such a strong account of rational decision-making. Anyone who is interested in exit as a realistic option is well-advised to do much more than simply list the “costs” of exit. Philosophers and political scientists should also be interested in human psychology and cultural identity. They should learn a lot of anthropology and relevant characteristics of human existence. A formal definition of “autonomy” or “voluntariness” is not sufficient if one wants to understand what exit really means and how it can be made realistic. This is not to say that Hirschman’s framework would be without any benefits. But there is the danger of adopting a misleading, shallow and superficial idea of exit, when discussing problems of cultural identity and belonging solely in terms of “costs”. Why not drop the cost-terminology and speak of “obstacles”, “burdens”, “difficulties” or “problems” instead? I presume that talking about “costs” is considered to have the advantage of being more precise, partially precisely due to its background in economics. Costs are used in reference to rational decisionmaking, to having a cost-benefit-analysis with a proper result. Whatever would be the best strategy could then be determined on this basis. This is obviously attractive for policy-making, too. Unfortunately, talking of “costs” gives some support to another misleading thought within this field: the idea of compensation. Not only individuals, but cultural communities as well face costs when an individual makes use of his exit option. Determining the costs of the individual and community would help to know which kinds of compensation might benefit both parties. Additional to a politics of compensation, some liberals make a plea for a politics of securing voluntariness: Here, the main concern is with securing the voluntariness of individual decisions. If it is possible to determine more or less exactly which amount of costs rendered an individual’s decision (to stay) involuntary, this would help immensely. Knowing this, political measures could be provided which would secure voluntariness in this sense15: Individuals would receive exactly the support that is needed to make exit a viable option. The search for a voluntariness-criterion as well as the search for compensation-rules may explain why talking about “costs” seems to be indispensable – or at least very comfortable – for liberal theorists of multiculturalism. But, as the ongoing discussion on costs and compensation shows, these ideas of policy-making do not work. Decreasing exit costs to such an extent that the decision to stay could be interpreted as a voluntary decision is a highly controversial and difficult enter-

15 See e.g. Brian Barry’s proposal of limiting exit costs in Barry 2001; 2002.

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prise.16 Moreover, simple compensation-rules will not be sufficient. Obviously, it needs a complex theory of how to balance group claims and individual wellbeing, doing justice to both sides. As far as I know, such a theory is still missing.

5 Exit from Cultural Groups: A Neat Solution? Within the economic context, exit and voice are said to have certain characteristics: It is neat – one either exits or not; it is impersonal – any face-to-face confrontation between customer and firm with its imponderable and unpredictable elements is avoided and success and failure of the organization are communicated to it by a set of statistics; and it is indirect – any recovery on the part of the declining firm comes by courtesy of the Invisible Hand, as an unintended by-product of the customer’s decision to shift. In all these respects, voice is just the opposite of exit. It is a far more ‘messy’ concept because it can be graduated, all the way from faint grumbling to violent protest; it implies articulation of one’s critical opinions rather than private, ‘secret’ vote in the anonymity of a supermarket; and finally, it is direct and straightforward rather than roundabout.17

Astonishingly, many liberals seem to support this idea of neat and impersonal exit even in the multicultural context. Partially, this image is liked because it fits well with certain philosophical interests: The easier exit is, the better it is for multicultural purposes of making individual rights and groups claims compatible. Contrary to economics, exit from cultural groups has nearly the same characteristics as voice. The first reason for this is that the situation of the group member is totally different from that of a consumer. The second reason is that the relation between group member and cultural group is not comparable to that of a consumer to a firm or a shop offering a certain product. The consumer is using a big variety of different products throughout his daily life. For reasons of efficiency, he is getting these products in a certain shop or by a certain firm. If there is a decline in quality, the consumer is going to check his situation: How much does his welfare depend on this specific product? Is it available elsewhere? Under what conditions? And if it is, would this mean

16 See the discussion between Kukathas, Barry and others on exit costs and attempts to define a benchmark for staying voluntarily within a certain group. Barry 2001, Kukathas 2003. 17 Hirschmann 1969, 16.

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more or less effort for him to get it? If the product is not that relevant for him and easily available elsewhere, there are no emotional ties to keep him from going. And normally, he needs not to fear for being oppressed, accused or attacked for changing the firm. After all, it is just a product, nothing important. The situation of the group member is totally different from that. If he feels discontent with the cultural group, he faces questions of existential dimensions: He must decide on his whole future and how his life plans shall look like. He has to decide on personal relationships as well as on his values, convictions and beliefs. Things get even more difficult if he is deeply involved with the social life of the group and has some influence on the cultural convictions and traditions of the group. A similar “product” is not easily available elsewhere. And the person may even realize himself that exit will be difficult and problematic for several reasons. From the perspective of the individual, exit is, in many cases, highly personal and difficult. It is personal since it means to quit the things we usually love most: our family, our relatives and friends, our home (country), our neighborhood, etc. In many cases, these decisions involve direct personal conflicts with people near to us. Giving up certain values, beliefs and convictions, or the refusal to take part in certain traditions or rituals is personal as well. It is also difficult, since the agents must be willing to accept a kind of break in their lives, a more or less radical change, including the willingness to give up things that they would have preferred to maintain. As Ayelet Shachar puts it: The right of exit ‘solution’ […] throws on the already beleaguered individual the responsibility to either miraculously transform the legal−institutional conditions that keep her vulnerable or find the resources to leave her whole world behind.18

But, one might object, exit does not necessarily mean to “leave one’s whole world behind”. Exit from cultural and religious groups involves issues of content as well as social aspects: personal ties to other group members. Exit does not necessarily mean to reject all convictions and traditions or cutting-off all personal connections. This becomes clear if we have a closer look to what it means to exit from a cultural group. For this purpose, a more sophisticated view of different kinds of groups is needed. Daniel Weinstock, for instance, distinguishes between birth groups and choice groups (groups you are born into and groups that you choose to be a member of), between identity-conferring and identityneutral groups (those that “provide us with frameworks within that we lead our life” and those that “on the contrary impinge on our identities altogether

18 Shachar 2000, 80. (My emphasis.)

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less.”19) and between broad and narrow groups (those that “claim authority over every aspect of people’s lives” and those that do not.20) For certain reasons, Weinstock concedes, identity-conferring groups tend to be broad birth groups whereas identity-neutral groups tend to be narrow and are often chosen. These classifications introduce a dilemma: Concerning narrow choice groups, ensuring exit rights is superfluous. “Members of such groups are not sufficiently ‘in’ such groups for the need to ensure that they can get ‘out’ to arise.”21 Concerning broad, identity-conferring birth groups, ensuring exit rights is useless. Weinstock thus concludes that “in one typical arrangement of the features outlined above, exit rights are inappropriate, a species of category mistake. In another context, they represent a kind of overkill.”22 Concerning those groups that we have joined voluntarily, exit won’t be a problem normally; concerning groups that we are born into, and that are identity-conferring, exit may be nearly impossible, rendering also the right of exit somewhat useless. Nearly and somewhat, since there is one scenario that might be an exception: I can think of cases in which the judicial enforcement of an exit right might be perfectly appropriate. Broad groups that are identity-conferring for most of their members can continue to claim membership of individuals who have chosen to quit membership. They might attempt to subject them to the group’s rituals, or to impose sanctions valid within the group upon them. In such rare but important cases, an exit right seems just what is called for. It enforces a choice that an individual has made to exit a group that tends in the typical case to be identity-conferring, and thus non−negotiable, for most of its members.23

As mentioned above, I think one should distinguish between two aspects of belonging that are relevant for exit: the level of social relations and the level of content. Our commitments to our cultural background include both of these aspects. On the one hand, exit can be identified with alienation at the level of content. But most of the real-world-problems with exit do not relate directly to issues of content but arise within personal relationships – with group authorities, parents, family or friends. In most of the cases, what makes exit so difficult are other group members – the human factor, not the intellectual factor. – On the level of content all kinds of rigidity of dismissal are possible, from the rejection of a certain tradition, belief or ritual to total alienation. With regard to the extent and intensity of alienation or disagreement the forms of exit

19 20 21 22 23

Weinstock 2005, 235. Ibid. Ibid., 237. Ibid., 237. Ibid., 237. (My emphasis.)

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might vary. Consequently, exit may mean to reject certain convictions and traditions – to insist on a residual and differing strand of thought on the level of content. It may mean all kinds of inner withdrawal concerning certain contents without necessarily leaving a person, community, city or nation. Concerning the level of social relations, I think a distinction between cultural groups and cultural communities would be helpful. Cultural groups consist of those people who feel committed to a certain way of living and thinking – to a certain culture – but may live in different places all over the world. A cultural community however is territorially concentrated. It consists of those people one is living with, who actually celebrate certain cultural forms and traditions together – of the family, the neighborhood, the church, some clubs or other culturally specific associative groups. On the level of social relations, exit consists primarily in exiting a certain cultural community. Exit from cultural groups takes place as well, but this is a highly abstract and, normally – I maintain – a quite unproblematic affair.

Combining these two levels of cultural commitment (content and social relations) allows for even more exit scenarios. Deliberations like this shed some light on the immense complexity and variety of possible exit scenarios on the different levels or in combination of both levels: Level of content Cultural commitment Absolut commitment Partial commitment No commitment

Level of Social Relations Personal Commitment

Absolut commitment

C1: total identification no exit

C4: maximum social commitment & partial intellectual alienation partial exit

C7: maximum social commitment & total intellectual alienation exit possible but not sure

Partial commitment

C2: partial social dissens, no problems concerning content no exit

C5: partial social commitment & partial rejection of content partial exit

C8: partial social commitment & total intellectual alienation partial exit

No commitment

C3: social alienation, but no dissens concerning content no exit

C6: social isolation & partial rejection of content partial exit

C9: total alienation complete exit

Table 2: Varieties of Commitment and Exit

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These complex relations between the personal commitment and commitment to content, and the variety of exit they generate show again that the relation between a customer and a firm providing certain products is not comparable to the relation of an individual and his cultural or religious group. Beyond that, understanding exit as a dichotomist ‘in-or-out-option’ means to have a rather simple idea of cultural identity and group membership: It is to think that individuals are members of just one cultural group. Moreover, it is assumed that one cultural group (and even the nation state) provides one culture – thus an archipelago of cultural islands is established where the individual might change islands but always has to live within one group belonging to one culture. Contrary to this view, there is some consensus among multiculturalists and cultural scientists that this conception of cultural identity is no longer adequate. There is no monopoly to individual cultural identity: it is not created by one group only. Cultural identities (except some rare cases) are heterogeneous mixtures of various elements stemming from different sources. Individuals in modern pluralistic societies belong to several “cultural groups”, and their cultural understanding is not just tied up to one group. Additionally, people in modern societies belong to a vast variety of other associative groups, which may also have an impact on their cultural identity. Especially young people are connected worldwide by music, films, the internet, etc. Even if individuals feel deeply committed to a particular community due to their cultural heritage, they may at the same time agree that their identity contains other elements as well. If one’s cultural identity is linked with several cultural groups, this is also likely to have an impact on exit scenarios: If I do not belong to one group only, exit will probably be much easier, since I am already at home in other cultural contexts as well. Not all difficulties relating to exit are, of course, solved by one’s multiple belongings, but the hard cases may be more of an exception then. Moreover, cultures are dynamic systems that are permanently changing.24 And traditions, convictions, rituals – the contents of culture – are never fixed but subject of constructions and modifications due to sociological, political and historical impact factors. Identifying one culture with one group is an inadequate model and should not be the foundation of liberal multicultural deliberations, including deliberations on exit. Exit is personal and difficult, for it is now obvious that (similar to voice) exit from cultural or religious groups also involves face-to-face confrontations. There are at least some representatives – other community members such as the family, neighbours, friends, authorities – who are informed of one’s exit, often by the

24 See e.g. Baumann 1999, ch 7.

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exit candidate himself. While the exercise of voice still means that the person is interested in group affairs and willing to take part in it, announcing exit is far more troubling for the group and the individual. No one wants to hear that he is going to be left – individuals or groups. Even if the cultural community does not wish to prevent exit, losing a member could mean at least discomfort, but also in some cases an intolerable offense. Thus, exit candidates must prepare for heavy responses and reactions. “Imponderable and unpredictable elements” cannot always be avoided. Exit includes the willingness to be confronted with these unpredictable elements and the claim to be strong enough to overcome them. Obviously, exit needs more than just making a decision. In reality, exit is a demanding option as well. To go back briefly to Hirschman’s framework, Hirschman speaks of Voice as an “art”, the exercise of which needs creativity, experience, and cleverness. But in the multicultural context, the same is true of exit: Exit too needs creativity, experience and cleverness. Moreover, it needs courage and toughness. In this sense, exit is an art as well. Furthermore, exit does not just mean to close the door and go, but can incorporate various meanings. As Philipp J. Stone has shown, exit could, similarly to voice, be interpreted as a kind of „modeled behavior“.25 It can be designed by the agent in various forms, intended to be understood as a… … market-signal, where the organization or group should notice the necessity of improvements – a kind of ‘voice’26, … painful loss, a kind of punishment, where the exit candidate is going to harm or somehow weaken the group by his decision to go, … stigmatization, where the exiting person wants to make clear to the world that the group is a threat to certain values or institutions, … neglect (inner withdrawal), where the agent does not go away, but feels no inner commitment any longer, … a way to open up a necessary confrontation, where the agent tries to initiate some internal discussion or quarrel by his decision to go and thus tries to develop some form of voice. One may imagine other intentions, too. This means that exit resembles voice in many aspects and the distinction between their features becomes less obvious. Exit from firms and organizations may be (simply) statistics (as Hirschman says), but for the exit candidate and persons around him, exit from cultural and

25 Stone 1994. 26 This is the ‘classic case’ that Hirschman discusses.

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religious groups is much more than that. Within the multicultural context, exit as a strategy is not neat, impersonal and indirect at all. Moreover, as mentioned above, exit may be performed in a vast variety of different cases and forms. What of the partial or incomplete forms of exit? A thorough analysis of these would certainly have an impact on our ideas concerning the different roles of exit and its general function in a multicultural society. Getting a more adequate idea of exit and its characteristics, in various cases, provides new perspectives and avenues, not only for understanding exit but also for liberal multicultural politics.

6 Conclusion Before debates on multiculturalism started to gain force, exit and its alternatives had been examined within economics. Albert Hirschman’s theory on exit, voice and loyalty provided useful insights concerning the necessary (if not sufficient) preconditions of exit. As a starting point for discussions on multiculturalism, Hirschman’s framework seemed fruitful and innovative. The questions that Hirschman’s analysis had brought forth, the concepts and basic ideas enabled a complex and controversial discussion on how exit would work in the context of a multicultural society. So far, there have been several benefits from this perspective. As an additional positive effect, in adopting the concepts and the whole theoretical framework, the research on exit immediately became an interdisciplinary enterprise – today, the debates on exit are conducted by political philosophers, sociologists, legal scholars, political scientists and scholars of religion alike. Nevertheless, as I have shown, the transferring of the framework from economics to issues on multiculturalism has resulted into certain shortcomings. The situation of the consumer is quite different from the situation of a group member of a cultural or religious group in multicultural societies. The problems that the group member faces are highly emotional. The decision to exit from a cultural or religious group involves central aspects of his life and his future plans. The decision does not just concern the decline of quality of a product he uses. Additionally, his relation to the organization he is going to leave is quite different from that of the consumer. The group member may very likely have been born into the community that he is going to leave, and this community may have shaped his identity considerably. In most cases, there are deep emotional ties with other group members, too. All these factors contribute to the assumption, that the decision on exit may not be described adequately within a rationalchoice-model of individual decision-making.

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The studying of the real exit cases also shows that exit in multicultural contexts does not have the characteristics that Hirschman described within the context of economics. Exit from cultural and religious groups is not impersonal, but is very likely to involve difficult discussions and controversies with other group members. Given the commitments and the inner and outer struggles of the individual, exiting a cultural group may be just as difficult even more difficult than voice. Under certain conditions, exit may also be considered “an art” that needs creativity, cleverness and courage. Exit from cultural and religious groups is a demanding option as well. Conclusively, the transfer of the framework from economics onto the realm of multicultural debates underestimates the complexities and specialties of exit from cultural and religious groups. Instead of just transferring the framework, a methodological discussion would be suitable, taking into account the possible shortcomings of this adoption. In some topics and questions, the framework of economics may, no doubt, have strengths, but the understanding of the limits of this framework would help to use it more carefully and more adequately. To me, one of the most important things to be done in order to overcome these shortcomings is to make clear, as precisely as possible, what it means to say that exit from cultural and religious groups is possible. I agree with the general thesis that exit from cultural and religious groups happens, that it is a daily phenomenon and that, in many cases, it makes perfect sense to talk of “exits” from cultural and religious groups. But having a very general idea of exit from cultural groups is not enough within multicultural contexts. The questions that are discussed here need to be supplemented by analysis of cultural identity and belonging. Varieties of exit-scenarios as modelled behaviour have to be examined. Cases of partial and incomplete exit should be considered. One of my suggestions was to make a distinction between cultural groups and cultural communities and to differentiate between the level of content and the level of personal relations concerning exit. Doing this, we can easily make up a variety of exit scenarios that put forth different questions. It is only by having a clear account of varieties of exit that one can be clear about multicultural policies, making sure that exit fulfils those roles it is supposed to fulfil within multicultural societies. Another important issue concerns the rationality of exit in cultural contexts. In all likelihood, neither of the extremes are adequate: saying that exit from identity-conferring groups is always irrational or maintaining its rationality in all cases. Exit is not always irrational, but at the same time there are doubts whether a rational-choice-model is the ideal background for understanding exit. Since for certain reasons, the question of rationality is decisive for liberals, the functions that exit should ideally have in multicultural societies partly depend on that. The

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cost-benefit-analysis is not going to be able to describe adequately the complicated and complex circumstances and aspects of decision-making on exit. Thinking of costs solely from this perspective is an oversimplification and may not take into account the destructive and irrational forms of exit, also relevant in multicultural contexts. All in all, exit is too interesting a subject to be discussed only in terms of costs.

Bibliography Barry B. (2001): Culture & Equality: An Egalitarian Critique of Multiculturalism, Cambridge: Polity. Barry B. (2002) “Second Thoughts – and Some First Thoughts Revived”, In: Kelly P. (ed.) Multiculturalism Reconsidered, Cambridge: Polity. Baumann G. (1999): The Multicultural Riddle, London: Routledge. Hirschman A. (1969): “Exit, Voice and Loyalty. Responses to Decline in Firms, Organizations and States”; Cambridge/Mass.: Harvard University Press. Kukathas C. (2003): A Liberal Archipelago; Oxford: Oxford University Press. Shachar A. (2000): “On Citizenship and Multicultural Vulnerability”; Political Theory 28, 64–89. Stone P. (1994): “Exit or Voice? Lessons From Companies in South Africa”; In: Lewis A./ Wärneryd K.E. (eds.): Ethics and Economic Affairs; London: Routledge. Weinstock D.M. (2005): “Beyond Exit Rights: Refraiming the Debate”; In: Eisenberg A./SpinnerHalev J. (eds.) Minorities Within Minorities; Cambridge.

Annamari Vitikainen

Exit, Identity, and Membership According to a variety of multiculturalists, cultural groups (including a variety of traditional, ingenious and religious minorities) should, as a default, be able to govern their internal affairs without the interference of the liberal state, or the imposition of the liberal norms and values of the majority. The group’s right to govern its own affairs, however, needs to be balanced with the rights of individuals, including the rights of those who belong to the cultural group in qustion. For many, the balancing act between the right of the group to govern its own affairs and the rights of its individual members comes in the form of a right of exit – that is, the right of the individual to leave her group, should she no longer find it worthy of her allegiance. The proponents of the right of exit do, of course, come in many shapes and forms. For some, it is enough that the individual possesses formal right of exit – that is, that she is not forced to remain a member of her cultural group.1 For others, the formal right of exit carries no weight but the right of exit should also be realistic – that is, the individual should also have the necessary capacities to take advantage of this right and to leave, should she want to do so.2 Further still, some argue that a meaningful right of exit requires, not only that the individual has the capacity to take advantage of the right of exit, but that the costs of such exit are fairly distributed.3 Much has been written in the right of exit debate, on what it means for a right of exit to be meaningful, and what it requires, with respect to the individual, the group, or the state, to guarantee this right to everyone. Whereas the preconditions for a meaningful right of exit, and the costs of such exit, have been widely discussed, surprisingly little has been written about how to conceptualize cultural membership, and how one’s understandings of cultural identity, membership and exit may affect the liberal state’s responses to

1 Kukathas 1992; 2003; for a restatement of the role of the plain exit principle, see Kukathas, this volume. 2 Most of the theorists of the right of exit fall within this category, arguing for certain conditions for the right of exit to be meaningful, although there certainly is disagreement on what these conditions might be. For some accounts on the preconditions for meaningful right of exit, see Galston 1995; Spinner-Halev 2000; 2005; Okin 2002; Phillips 2007; Holzleithner, this volume. 3 For an analysis of the different kinds of costs of exit, see e.g. Barry 2001, 149–154; for critical remarks on the cost debate, see Borchers, this volume.

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exit. In this essay, I attempt to fill this gap by looking at, firstly, how one’s understandings of cultural membership should affect one’s understandings of exit and, secondly, how these understandings may alter the ways in which the liberal state should respond to those who have decided to leave the contours of their group without renouncing their identity as members of that group. This essay proceeds as follows. In the first part, I identify those groups most problematic from the perspective of exit as identity-conferring or constitutive groups, and work on some distinctions with respect to the senses in which one’s belonging to such groups can be viewed as constitutive of one’s identity. I then turn to a more detailed analysis of the ways in which one’s membership in an identity-conferring or constitutive group can be conceptualized by looking at the ways in which different people, as well as institutionalized actors, may have different views on who, and on what grounds, counts as a group member. In part two, I discuss some of the implications that the different ways and levels of understanding one’s belonging and one’s membership in a cultural group have on the debates on the right of exit. Firstly, I show that there are several ways of understanding what it means to exit one’s group, and that those signs, most commonly associated with exit, do not necessarily entail that the exitor has also renounced her belonging – her deep most identity as an M4 – to such groups. Secondly, I propose a way in which the liberal state could be more sensitive to the ways in which one’s membership in a cultural group operates as one of the constitutive elements of one’s identity by continuing to recognize those who have exited the contours of their group as group members, should they wish so to be recognized. This recognition, on behalf of the liberal state, not only provides external affirmation to people’s identities as group members, but also comes closer to fulfilling the idea that the liberal state should not take a stand on the substantive requirements of group membership, but rather leave it to the group members themselves to decide what these requirements may be. In part three, I respond to some of the objections that my suggestions for continued state recognition may bring and, by doing so, also clarify the extent to which my proposal contributes to the debates on the right of exit, and to the attempts to ensure realistic rights of exit for everyone.

4 The abbreviation M is used to refer to the group in question (be it Christian, Muslim, Aboriginal, Inuit etc.). This abbreviation can also be understood in terms of one’s own understanding (self-identification) as a member, or in terms of other’s recognition of someone as a member.

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1 Identity-Conferring Groups and Group Membership Daniel Weinstock (2005) identifies five axes according to which groups, commonly discussed in liberal political theory, may differ. According to Weinstock, groups differ5, depending on (1) how the membership in such groups is acquired (birth groups/groups of choice), (2) whether they have some specific goal or agenda (issue specific/general), (3) how strongly they affect their members’ sense of their selves (identity-conferring/identity-neutral), (4) how they are governed (democratic/undemocratic), and (5) how broadly they affect or regulate their members’ lives (broad/narrow).6 For the time being, my focus is on the third of these axes – that of identity-conferring/identity-neutral groups.7 By identity-conferring groups, I refer to those groups that are, to a smaller or larger extent, constitutive of their members’ identity.8 That is, the belonging to these groups defines, to some substantive extent, the ways in which the members view themselves: who they really are and how they lead their lives. For the members of identity-conferring or constitutive groups, being a member of such group (say, being a Muslim, Catholic, American Indian, Aboriginal) plays an important and integral role in who they themselves conceive to be, and the denial of such belonging is often unimaginable, resulting in such losses in their deep most identity that exit counts as no alternative, no matter how harsh or difficult their belonging to such group may otherwise make their lives to be. The ways in which the belonging to an identity-conferring group affects their members may, of course, vary in several different senses. Firstly, the extent to which the members’ identity is constituted by their belonging to the group in question differs from person to person. For some, being a Muslim or Catholic

5 Weinstock also posits certain common requirements for groups to be considered as politically relevant, such as the having of a certain degree of self-consciousness. That is, the group members must, to some degree, recognise themselves as belonging to the group in question. Weinstock 2005, 233–234. 6 Weinstock 2005, 233–236. 7 I will return to Weinstock’s other categories later on. 8 The idea of groups (or communities) being constitutive of their member’s identity comes, of course, from the communitarian tradition that emphasized the social embeddedness of individuals against the allegedly disembodied and disembedded self of liberalism (e.g. Sandel 1982; MacIntyre 1981; Taylor 1989; Walzer 1983). Whereas many of the classical communitarians emphasized the sharing of communal values and traditions for the constitution of one’s identity, the constitutive role of one’s community, as will be seen, need not entail such sharing of any particular values or traditions – that is, of any particular contents of culture.

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may indicate only a certain sense of affinity, something they have come accustomed to, but plays a fairly trivial role in defining what they themselves conceive to be, or how they come to conduct their lives. For others, being a Muslim or Catholic may be viewed as one of the most important things in their lives, and the idea of having to ever abandon such identity, or the ways in which this identity manifests itself in their lives, may be simply unthinkable. Nevertheless, the belonging to an identity-conferring group (as opposed to identity neutral groups) plays an important, constitutive role in the lives of its members and, in most cases, the members of identity-conferring groups would not want to abandon such groups, as they conceive the belonging to such group as an integral element of who they really are.9 Secondly, whereas the belonging to an identity-conferring group plays an integral role in the constitution of one’s identity, it is not always clear, what exactly, in this belonging, is that through which one’s identity is constituted. The elements that the members of an identity-conferring group view as integral for their identity as members, may differ, from relatively content neutral identification as a member of such group, to a very specific form of behavior and participation in the workings of the group as a whole. For example, for some, the importance of being, say, Catholic, may come from the person’s self-identification as Catholic and her very personal relation to God, incorporating no need to participate or be recognized as Catholic by those around her. For others, to the contrary, the importance of being Catholic may also be manifested in very specific forms of behavior, for example in the active participation in their congregation. The belonging to a Catholic community and the participation in the workings of one’s congregation may, in these cases, be viewed as precisely that which the members cannot conceive to abandon, as it is precisely this participation – together with others – that the members view as constitutive of who they really are: their deep most identity.

9 Some identity-conferring groups may, of course, also be groups from which some members would rather leave, but fail to do so, due to the ways in which their identity is inherently connected to the belonging to the group in question. Groups of relatively low social status (e.g. “inner-city working class”) but also many cultural and religious groups can operate as identityconferring groups from which some would also want to leave. My point here is thus not to claim that all identity-conferring groups would be the kind of groups from which all members would not want to leave (nor that some identity-conferring groups would be more so than others), but simply to point out that, in many cases, people would not want to abandon their identityconferring groups, due to the ways in which their belonging to such groups intertwines with their deep-most identity.

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Thirdly, besides the different extents and contents of one’s identification, it is not always clear how one’s belonging to an identity-conferring group relates to one’s membership in such group – that is, what part does one’s own identification as an M (be it Catholic, Muslim, Aboriginal etc.) play in defining who, and on what grounds, are conceived to be members. One’s own identification, as belonging to a certain group provides one of the axes through which to start analyzing membership in an identity-conferring group, but it is by no means the only axes through which one’s membership can be understood. Nor is it always clear what one’s own identification as a member of any particular group means. As Steven Lukes has noted, in all groups “[t]here will be identifiers, but there will also be quasi-identifiers, semi-identifiers, non-identifiers, ex-identifiers, multi-identifiers and anti-identifiers.”10 Lukes’s observation is important in two senses. Firstly, it shows how one’s identification with a group is not an either/ or –affair, but can vary, even to an extent to which members can aim not to identify with the group of which they, nevertheless, are members. Secondly, and more importantly, Lukes’s observation nicely brings forth the idea that one’s membership in a group is not always, or solely, dependent on one’s own identification, but incorporates some other, yet undefined, criteria. Going back to Weinstock’s distinctions, it would seem that, in some cases, one’s membership in a cultural or religious group could be relatively easily established. For example, the groups that one can only be born into (such as ethnic groups or certain religious groups11) include those, and only those, who have been born into these groups and have not explicitly renounced their membership in such groups. Often (regardless of the method of joining), one’s membership in a cultural or religious group could be fairly easily established by a simple tick in a box, or by looking at the official membership register of the group. But these kinds of simplified means of establishing group membership fail to be particularly interesting when one starts to think of questions about how members of such groups should be treated, how the group can treat its own members, or how to guarantee that no member is mistreated against her own will. More specifically, they fail to note that not everyone has the same view of who they conceive to be a member and, provided that membership in a group also affects people’s behavior (either as a member, or towards a member), they fail to be satisfactory in an analysis of those instances in which one’s group

10 Lukes 2003, 142. 11 Not all (or even the majority of) religious groups do, of course, follow the criterion of birth in defining their memberships, and even those that do (such as Judaism) give some scope for those who wish to become members to do so.

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membership really matters, but in which this membership is also contested, either by the person herself, or by those around her. To clarify, my analysis of group membership starts from a presumption that being a member of a group affects, to a smaller or larger extent, people’s behavior. That is, the being a member of a group called “Catholics” operates as a reason for people to behave in certain manners, either as a Catholic or towards Catholic(s). For example, as a Catholic, I might go to church every Sunday, attend confession and observe lent, and I might also expect (other) Catholics to do the same (and modify my behavior towards them to fit these expectations). My behavior towards other people is (partially) formed by my view of them as members of different groups, and the kinds of expectations I hold of them as members of such groups.12 In discussions on exit, the idea that people’s membership in a particular group affects people’s behavior (either as a member or towards a member) is particularly clear. What is at stake, in the right of exit – debate, are precisely the questions of how people, as members of certain groups, are allowed to behave, how the liberal state should respond to the behavior of certain members (whether those willing to stay or those willing to leave), and how a group (and, consequently, its members) are allowed to treat others, based on their membership in the same group.

Recognition-based Account of Membership In order to build a more systematic account of how one’s membership in an identity-conferring group can be understood, one needs to look at the ways in which different actors, including institutions, may view one’s membership in such groups. Taken into account the institutionalized actors or official bodies of different groups, there would seem to be five different categories that need to be taken into account.13 Firstly, that of the person X and her self-identification as a member of the group M. Secondly, that of (other) self-identifiers’ recognition14 of X as a member of the group M. And thirdly, that of the non-identifiers’ recognition of X as a member of the group M. The fourth and fifth categories, those of the institutionalized actors, do, to an extent, overlap with the first three cate-

12 My analysis here is based on Appiah 2005, 65–71. 13 For a more thorough exposition of the relations between the first three categories, and the difficulties that the discrepancies between these categories bring to discussions on cultural policies, see: Vitikainen 2009. 14 The term recognition, in this context, refers simply to one’s acknowledgement of someone (X) as a member of a particular group (M).

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gories, but should, for my purposes, be kept separate. Thus, fourthly, one also needs to consider whether the deciding body of the group (for example, the religious leaders or the tribal council) recognizes X as a member of the group M. And fifthly, whether the state recognizes X as a member of the group M. The different actors, as well as the possible combinations of their views with respect to whether they recognize X as an M, may be illustrated by the table below. Actor 1. X

1. 2. 3.

4. Etc. 5–32

Actor 3. Those (others) not identifying as M Recognizes X as M Does not recognize X as M Recognizes X as M

Identifies as M

Actor 2. Those (others) self-identifying as M Recognizes X as M Recognizes X as M Does not recognize X as M Does not recognize X as M

…

…

…

Identifies as M Identifies as M Identifies as M

Actor 4. Deciding body of M

Actor 5. The liberal state

Recognizes X as M Recognizes X as M Does not recognize X as M

Recognizes X as M Does not recognize X as M Recognizes X as M

Does not Does not Does not recognize X as M recognize X as M recognize X as M …

…

Table 1: Different actors’ views on group membership

What should be clear, as demonstrated by the table above, is that the answers to the question of whether any particular person (X) counts as a member of M may differ, depending on which category of actors one asks.15 The liberal state (category 5) may, for example, have very different views on whether X counts as a member than X herself, or the other self-identifiers, or the group’s deciding body (as demonstrated by line 2). Whereas the possible combinations of recognition extent to 32, there may also be a certain amount of inter-linkage, making certain combinations of recognition more common than others. For example, the deciding body of the group (category four) may at least try to follow the views of the self-identifiers (categories one and two) when deciding who to count as a member, and the

15 For the sake of clarity, I have ignored the possible variations within different categories of actors. Most notably, categories two (self-identifiers) and three (non-identifiers) are subject to internal variation in terms of how they conceive someone’s membership in a particular group although, for the sake of simplicity, I treat these categories as if their views were homogeneous.

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state’s response (category five) into whether it views someone a member may at least aim to track the views of the self-identifiers or the group itself (categories one, two and four). Problematically, however, the tracking of the views of selfidentifiers (whether categories one and two in the case of the group body, or categories one, two and four in the case of the liberal state) may only be partial, due to the possible discrepancies between the views of these categories. To illustrate this point, let us look at a widely discussed example of Santa Carla Pueblo v. Martinez (1978) that addressed the membership rights of the children of Julia Martinez (the respondent), a full member of the Santa Carla Pueblo, who had married outside her tribe and whose children, although raised and living among the tribe, were not recognized as Pueblo due to the traditional rules of membership that passed tribal membership from father to his children.16 In this case, as in most cases of cultural or religious groups, the default position rested on the right of the group to decide its own rules of membership, but these rules were not broad enough to include any particular identifier (category one) as a member. The majority of the self-identifying members (category two) or the leaders (category four), could refuse to recognize the membership of those who did not fit to the traditional membership criteria of the group (Martinez’s children), even if they would identify themselves as Pueblo and, for all practical purposes, lived as members within the group. Problematically, from the perspective of the liberal state, these kinds of discrepancies render the attempts of the liberal state to track the self-identifiers themselves in questions of membership partial, as the self-identifiers themselves (categories one, two and four) may have very different views on who counts as a member. In effect, the view of the state, although aiming to track the views of the self-identifiers, often manages only to track the views of the deciding body (category four), which may, in itself, be in conflict with the views of any particular self-identifier (category one) or, in some cases, even with the majority of the identifiers (category two). In the case of Santa Carla Pueblo v. Martinez, the Supreme Court aligned with the views of the group leaders in upholding the traditional rules of membership against the views of particular self-identifiers – that is, of Julia Martinez and her children. Further, it is not only that the different categories of actors may have different views on who counts as a member, but they may also have different views on the contents of this membership – that is, on what they conceive to be

16 Santa Clara Pueblo v. Martinez, 436 US 49 (1978). For discussion, see e.g. Resnik 1989; Shachar 2001, 18–20; Gutmann 2003, 44–47.

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required for one to count as a member (reasons for recognition). For example, the reasons for the tribal council of the Pueblo (category four, partially overlapping with category two) to deny membership from certain self-identifiers (category one) may simply be a result of differing views on what they conceive to be required for one’s membership.17 In the Martinez -case, the disputed requirements had to do with birth and the requirement of the male parent to be Pueblo18, but, depending on the group in question, they may include various things, such as the following of certain codes of conduct, participation in certain rituals or subjecting oneself to the authority of the group leaders. Importantly, however, not all identifiers may agree with what the group leaders conceive to be required for group membership, thus creating a situation in which there is a discrepancy, not only on the questions of who counts as a member, but also on what is required in order for one to count as a member. Taken that the self-identifiers (as well as the deciding body of the group) may already have different views with respect to what is required for one to count as a member, it should come as no surprise that the view of the state may not always coincide with the views of (all) self-identifiers. Often, in line with the liberal multicultural view, the state may – and even should – attempt to steer clear of defining any particular contents of membership, and leave it to the group itself to decide what these contents should be.19 For the liberal state, the rationale for recognizing one as a member may thus not be the same kind of

17 It should be noted that the differing views on what is required for one’s membership do not, necessarily, lead to differing views on who is counted as a member, as the differing criteria may be accidentally congruent. See also: Vitikainen 2009. In the case of Santa Carla Pueblo v. Martinez, however, the views of the group leaders (supported by the Supreme Court) and Julia Martinez (the respondent) were contradictory, leading to different views on who was counted a member. 18 What made the case of Santa Carla Pueblo v. Martinez especially difficult was that the membership criteria of the Pueblo was explicitly sexist, conflicting with the wider society’s norms of gender equality. The main question addressed by the courts was thus whether the Pueblo had a right to continue imposing unequal membership criteria in order to preserve its cultural identity, rather than who had the right to decide about the used criteria. In order for the conflict between different views on membership to arise, however, these views need not be in conflict with gender equality or with any of the prevailing norms of the wider society – they simply need to be in conflict with one another, thus producing different views on who counts as a member. 19 As Will Kymlicka has forcefully argued, the liberal state should not aim at promoting any particular cultural contents, including contents of membership, but rather leave it to the group members themselves to decide what they view as integral elements of their culture. Kumlicka, 1989; 1995. Ayelet Shachar makes a similar point, emphasizing the right of the identity groups (nomoi communities) to retain their right to decide their own memberships, see Shachar 2001.

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rationale as for the self-identifiers themselves, as it is not the business of the state to decide what kind of criteria any particular group uses for its membership. Whereas the rationale for the self-identifiers to recognize someone a member may include various substantive requirements (such as birth or parenthood, following of certain norms and customs etc.), for the state the rationale for recognizing one’s membership should lie simply in the recognition of the selfidentifiers itself, regardless of what rationale they themselves have for recognizing one’s membership. There are, of course, certain difficulties to the idea of the state rationale as being based on the recognition of the self-identifiers itself (rather than on any substantive criteria). Firstly, as already indicated, it may be impossible for the state to track all self-identifiers’ views on who counts as a member, and, more often than not, the state may only track the views of the deciding body (category four), thus leaving some self-identifiers without recognition as group members. Secondly, it is not clear whether the state can ever refrain from taking a stand on some of the substantive requirements of membership, even if this, according to many liberal multiculturalists, is precisely what the liberal state should do. On the most basic level, the liberal state, tracking the recognition of the deciding body, also comes to affirm some of the substantive requirements that the deciding body of the group has for group membership. If, for example, the deciding body views one’s membership to require one to follow certain codes of conduct or to participate in certain cultural or religious rituals, then – by tracking the recognition of the group leaders – the liberal state also ends up affirming (albeit indirectly) these requirements as the requirements for one’s membership. Further, as will be elaborated in more detail in the following section, it may also be that some of the state policies – including the right of exit – have an effect of reinforcing certain conceptions of what it means to be a member of a particular group, and what is required for one to be counted a member. By emphasizing the right of exit, and by promoting this right as one of the primary safeguards of group members against their own group, the state, in effect, comes to support the view according to which it is only by one’s participation and by the following of the dominant norms and rules of the community that one is counted as a proper member of the group. By exiting their group, the group members are seen to renounce their membership, having abandoned those requirements that the group leaders have given for one’s membership. Even if the recognition of the state attempts to stay clear from supporting any substantive contents of group membership, it would thus seem to fail, due to the discrepancies in the self-identifiers’ recognition, as well as the ways in which certain state policies feed into certain conceptions of what is required for one to be a proper member of a cultural or religious group.

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2 Exit and Membership In order to understand what it may mean to exit a cultural group, and what different types of exit there may be, it is worth beginning with a brief clarification of the notions “belonging to a cultural group” and “membership in a cultural group”. In this essay, I have talked of one’s belonging to a cultural group in terms of how one, herself, would view one’s relation to the group in question. In my account, one is seen to belong when one identifies oneself as an M (be it Catholic, Muslim, Aboriginal etc.), and, in the case of identity-conferring groups, this sense of belonging operates as one of the constitutive elements of one’s identity. This belonging, however, is seldom entirely internally produced, but may also require certain external affirmation. More often than not, one can only feel to belong if others (at least, some significant group of others) affirm one’s belonging. This affirmation may come in the form of relatively content neutral recognition (I recognize you to be M), but it may also incorporate certain types of behavior, such as one being allowed to participate in certain group practices together with others. Although the notions of belonging to a cultural group (one’s self-identification) and membership in such group are closely related, these notions are not interchangeable. Whereas one’s belonging is primarily dependent on one’s own view of oneself (that, one must admit, is often dependent on the recognition of others20), one’s membership is never solely dependent on one’s view of oneself, but is primarily constituted by the recognition of others. Notably, different people (as well as institutionalized actors) may have different views on who counts as a member, and there may not be any uncontested, objective criteria for defining who, in any particular instances, counts as a member, and who does not.21

20 The importance of external recognition for one’s views of oneself has been discussed extensively for example by Axel Honneth (1997; 2001) and Charles Taylor (1994). However, whereas these theorists of recognition often emphasize the importance of positive recognition to people’s self-respect and self-esteem, the notion of recognition used in this essay is relatively value neutral. To recognize someone as an M is simply to acknowledge that person’s status as a member of a group M, without making any value judgments about the nature of M. As will be seen, the effect of such recognition may also be positive (in terms of providing external affirmation for one’s status as a group member) although, contrary to Honneth’s and Taylor’s views, this recognition involves no value-judgments about the thing recognized (M). 21 As discussed in the first part of this essay, it may be possible to impose some objective criteria of membership (such as birth or official registration) to some groups, but these criteria hardly manage to escape the kinds of contestations that make questions of membership, in the

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When thinking about exit from cultural groups, both of these perspectives – that of one’s sense of belonging and that of one’s membership dependent on the views of others – need to be kept in mind. From the perspective of one’s belonging, exit can, in its most extreme form, be understood in terms of one’s renouncing one’s belonging to the group in question.22 This renouncing may be manifested in very different ways, but the idea, from the perspective of the exitor, is the same: that of abandoning that sense of belonging to which one has grown accustomed to. In the case of identity-conferring groups, however, the renouncing of one’s belonging may not be a feasible option due to the ways in which this belonging affects one’s sense of oneself. To renounce one’s belonging would be to renounce oneself, one’s deep-most identity – something not many (if any) of us would be willing to do. In the right of exit –discussions, however, exit is often understood in very different (and more concrete) ways. To exit a cultural or religious group is often understood in terms of leaving behind the influence that the group has on its members. This leaving may include (1) concrete physical separation from the group in question (especially highlighted in those groups that have isolated themselves from the rest of society, such as the Amish and Hutterites), but it does not necessarily need to involve such physical separation. In many cases (in fact, in most cases of cultural or religious communities residing within the larger liberal society), exit may simply mean (2) the leaving behind those cultural or religious practices and ways of life that are characteristic of the group in question. It may also mean (3) the renouncing of (some of) the dominant norms and rules of the community, or (4) the denial of the group authority (group jurisdiction), without having to physically separate oneself from the community in question.23 It should be noted that, although analytically separate, these different ways of understanding exit (physical separation, lack of participation, renouncing of the dominant rules and norms, and denial of group authority) often go hand in hand. The renouncing of the dominant rules or norms of the community, for

political context, most interesting. For further difficulties of using objective lists in defining group memberships, see e.g. Killmister 2011. 22 As highlighted by Lukes’s observation about different types of identification, this renouncing may also be partial. Lukes 2003, 142. 23 These four examples of exiting one’s cultural group are, by no means, meant to be exhaustive. They do, nevertheless, demonstrate the multiplicity of ways in which one can be seen to exit one’s cultural community, incorporating also different forms of exit in relation to whether one’s exit is primarily from one’s social connections, or from the dominant cultural contents (norms and values) of the group in question. For further analysis on these two elements of exit, see Borchers, this volume.

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example, may lead to a situation in which the person in question is no longer allowed to participate in the group practices or even be able to associate with those willing to affirm such norms and practices (thus akin to physical separation). Depending on the group in question, the other group members (paralleling categories two and four of the previous section) may impose much stronger forms of separation to the person in question, making her exit much more robust than it would otherwise be. In these cases, the person’s voluntary exit (for example, in terms of the renouncing of the dominant rules and norms of the community), may turn out to be involuntary (in terms of being forced to separate oneself physically from the group).24 Importantly, however, none of the ways of exit mentioned above necessarily entail that the person has also renounced her belonging to the group in question: her sense of herself as a Catholic, as a Muslim, as an Aboriginal etc. Despite all the external signs, the person may still feel like belonging to the group in question, and would not, under any circumstances, be willing to abandon this sense of belonging: her deep most identity as an M.

Reducing the Costs of Exit by State Recognition Many of the difficulties relating to one’s exit from a cultural or religious group can be traced back to the fact that people would not want to, or cannot even contemplate of abandoning those senses of belonging they view as central to their identity. The costs of abandoning that through which one’s identity is constituted would simply be too high, and the guarantees of the right of exit would be meaningless. This is especially problematic with respect to those identity-conferring groups that mistreat some of their members, but to which those mistreated have a strong sense of affinity and would not even contemplate of leaving. As Weinstock aptly points out, “exit rights do nothing for the person who feels she has no choice but to continue adhering to a group that treats her badly. Her preference would be to continue to affirm her membership while not having to put up with the poor treatment.”25 Whereas I agree with Weinstock’s observation that the right of exit might do nothing for those to whom the belonging to her cultural group operates as an

24 Whereas there may well be some limitations into the ways in which groups can enforce the expulsion of their members, the involuntary exits may also be viewed as the other side of the coin of the freedom to refuse association (Barry 2001: 150). Whereas individuals should be free to refuse association by exit, so should the other group members be free to refuse association with the individual in question. 25 Weinstock 2005, 238.

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integral element of her identity, I also think that this observation is somewhat endemic of the ways in which the debates on exit often ignore the different types of exit, and the ways in which the variations on exit and on one’s membership could be used in order to ease the costs of those to whom the staying with the group proves too much. As noted by Weinstock, what many of the members of identity-conferring groups would like to do – and what they often cannot conceive not to do – is to affirm their membership in such groups. This want to affirm one’s membership links inherently with one’s want to belong, and to one’s view of oneself as an M (be it Catholic, Muslim, Aboriginal etc.). However, one’s belonging may not be solely dependent on the view of the person herself, but also on the views of others, whose affirmation of one’s membership may well play an important role in the ways in which the person is able to feel to belong – that is, to self-identify herself as an M. From the perspective of the liberal state, this linkage between one’s belonging (self-identification) and external affirmation (recognition of others) should, I believe, be of special importance, bearing also upon the state’s responses to exit, and to the recognition of those who either have, or are contemplating of leaving the contours of their group. In order to see how this linkage may affect the liberal state’s responses to exit, let us return briefly to the ways in which the liberal state is said to track the recognition of the group itself in issues of group membership. As already indicated, it is often held that the state should stay clear of defining any substantive criteria of membership and, rather, leave it to the group to decide who they count as members and what is required for such membership. Due to the discrepancies in different actor’s recognition, however, it is not possible for the liberal state to track the recognition of all those who self-identify themselves as members, but the state needs to take a stand on which of the self-identifying members it chooses to listen to – that is, whose views of group membership it decides to track. To put it bluntly, in order for the liberal state to track the recognition of the group itself in questions of membership, the state already needs to hold some view of who are those members that constitute the group whose views it is tracking. Interestingly, in trying to track the views of the group itself, the state often comes to track the views of those most powerful in the group in question – the group leaders or the deciding body – and, consequently, refuses to affirm the membership of those who are no longer counted as group members by the deciding body of the group.26

26 The case of Santa Carla Pueblo v. Martinez provides a primal example of this kind of tracking on issues of membership, although it is clear that the instances of the state following the views of those most powerful within cultural groups are not restricted to issues of membership, but constitute a far wider pattern of biased state recognition. As especially the feminist critique has pointed out, it is often the group leaders (usually, the elderly men of

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For the debates on exit, this tracking of the views of the group leaders or the deciding body (category four of Table 1.) have interesting consequences. Firstly, by tracking the recognition of the group leaders, the liberal state does, in effect, also come to affirm those criteria that the group leaders have for group membership. Even if the state would not explicitly confirm the substantive criteria decided by the group leaders, in recognizing the authority of the leaders, the state, in effect, also gives certain legitimation to its decisions (including decisions on the criteria of membership). Secondly, it would also seem that without making the distinction between exit in terms of leaving the influence of the group (or, exit as commonly understood) and exit in terms of renouncing one’s belonging, the state may enforce much stronger forms of separation on those who have decided to leave the contours of their group than would be necessary. Without this distinction, the state, tracking the views of the group leaders, views those who have decided to leave the contours of their group as having also renounced their membership in such groups, thus further feeding into the dominant view of what “proper” membership in any particular group entails. In the eyes of the liberal state, those who choose to take advantage of exit (as commonly understood) are conceived, not only as leaving the influence of their group, but also as renouncing their belonging in such groups. Not only does the state thus track (and confirm) the views of the group leaders as appropriate criteria for group membership, it also encourages the view of exit as far more drastic and complete than it would need to be. Those who have left behind the group influence (be it in terms of physical separation, lack of participation, renouncing of the dominant rules and norms, or the denial of group authority) are no longer conceived as full members of that group, but as dissenters who have renounced their membership, and who, in the eyes of the liberal state, no longer count as “proper” members of the group. What should be noted, is that this response of the liberal state to view those who have decided leave the contours of their group as non- or ex-members may, in itself, make the prospect of exit (as commonly understood) even harder for the group members to take advantage of. For a person to whom being an M (Catholic, Muslim, Aboriginal etc.) operates as one of the integral elements of her identity, leaving behind the influence of her group may count as even less of an option, should this entail, not only the rejection of the group leaders (category four) or other group members (category two), but also the rejection, or lack of communities) that are given priority in articulating the “authentic” views of their culture, including the criteria of membership, thus side-lining the views of those who may object to these traditional interpretations. See e.g. Okin 1999; Benhabib 2002; Song 2007; Phillips 2010.

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recognition, of the liberal state (category five). Whereas there is not much the liberal state can do, should the group (whether its leaders or the majority of the self-identifiers) no longer wish to recognize one as a member, what it can, and perhaps should, do is to give due recognition to those who have decided to leave the contours of their group, but who, nevertheless, would still wish to affirm their membership in the group in question. Instead of viewing those who have left the influence of their group as non- or ex-members, the liberal state could, at the very least, still recognize them as members and, by way of doing so, reduce some of the costs of leaving the influence of one’s group by affirming the belonging of those who, despite having left the contours of their group, still deeply identify themselves as belonging to the group in question.

3 Objections My proposal that, in cases where a person has decided to leave the influence of her group without, nevertheless, renouncing her belonging to that group (her identity as an M), the liberal state should carry on recognizing her as a member of the group, is bound to encounter several objections. In this final part, I outline and respond to three of these: those of the argument from insufficiency, the problem of the source of recognition, and the argument against external interference.

Insufficiency From the perspective of those who worry about the realistic rights of exit and the conditions required for such rights, two objections ensue. Firstly, it may be objected that my call for the liberal state to continue recognizing those who have left the influence of their group as group members (should they so wish to be recognized), is insufficient in providing those conditions in which the formal rights of exit become realistic. From a practical point of view, it is more important that the members of cultural groups are provided information about the life outside their group, and that they also have both material as well as psychological means for accessing this life outside their group. The continued state recognition hardly provides for these conditions, but may, on the contrary, discourage people from leaving, as it encourages the impression that it is never possible to fully exit one’s cultural group (as demonstrated by the continued state recognition).

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Whereas I perfectly agree that the continued state recognition does not, on its own, provide sufficient conditions for the exit to be realistic, I do not think that the insufficiency of state recognition takes away the important role that this recognition can, nevertheless, play in easing the costs of exit and, consequently, in making exit more realistic. Instead of indicating that it is never possible to fully exit one’s cultural group, the continued state recognition aims to show that it is, indeed, possible to leave the contours of one’s group without having to abandon one’s deep most identity as a member of such group. My argument for continued state recognition, it should be emphasized, is thus a qualified one. By no means do I claim that the liberal state should continue to recognize all those who have decided to leave the influence of their group as group members, but rather, that those who have, and who still wish to affirm their belonging – their deep most identity as an M – should be thus recognized. Conversely, should a person, having left the contours of her group, no longer wish to affirm her belonging, she should also not be obliged to do so. Importantly, by tracking the self-identification of those who have left the contours of their group (rather than the recognition of the group leaders), the liberal state affirms both possibilities: those of exiting one’s cultural group by also renouncing one’s belonging, as well as of exiting the influence of one’s group without renouncing that aspect of one’s identity one may be most strongly connected to – one’s deep-most identity as an M. Secondly, it could be objected that the continued state recognition, although well in principle, fails to do much in practice, as for most people, their identity is inherently tied up with their living with the group in question and with their participating in the group activities together with others. For most people (most problematic from the perspective of exit), it is precisely this aspect of sharing one’s life with other group members that one cannot contemplate of abandoning, as it is precisely this participation that one views as central to one’s identity. The recognition of those who have decided to leave the contours of their group thus fails to give enough to those whose identity is inherently connected to the group practices and to the living with the group in question, as it is precisely this aspect of one’s identity that one cannot contemplate of leaving. Although I acknowledge that the continued state recognition of those who have, already, left the contours of their group may not lower the burdens of exit enough to make exit (as commonly understood) a realistic option for all, I do, nevertheless, think that the continued state recognition can operate as one of the ways in which the burdens of exit can be lowered. For someone who would still wish to stay with her group and who would still wish to live the kinds of life characteristic of her group together with others, there will, no doubt, be costs,

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should she decide to leave the contours of her group.27 These costs could, however, be reduced (sometimes to the extent of tipping the balance between staying and leaving) by the state continuing to recognize her as a group member and by continuing also to treat her as one, should her membership entail certain benefits or privileges that she can enjoy, despite having left the influence of her group.28 The continued state recognition would provide, not only certain affirmation for her sense of herself as an M, but also enable her to live as close to the kind of life she would want to live, should she have remained with her group. Whereas the continued state recognition is far from giving any absolute guarantees for a meaningful right of exit, it does, nevertheless, make exit (as commonly understood) more feasible, also for those to whom identifying oneself as an M (Catholic, Muslim, Aboriginal etc.) is an inherent element of their identity.

Source of Recognition A slightly different objection, with respect to my proposal for continued state recognition, focuses on the kinds of recognition conceived as especially important for one’s identity. As many theorists of recognition have noted, recognizing one as an M (be it Catholic, Muslim, Aboriginal, but also female, black or gay)

27 As Brian Barry has noted, some costs of leaving a cultural group may be both inevitable as well as impossible to compensate. Barry 2001, 149–154. 28 By benefits and privileges I refer to those measures that the state may have adopted in order to accommodate the differing values, world views and ways of life of cultural or religious minorities – for example, certain levels of self-determination, exemptions from the dominant rules and norms of society, preferential treatment policies, or financial benefits, aiming to enable the group members to live in accordance with their own culture without being unduly disadvantaged by the infrastructure that has been organised in accordance with the norms and values of the majority. Undoubtedly, the benefits of those who have left the influence of their group may not be quite as extensive, as some of these benefits can only be enjoyed collectively, but they may, nevertheless, include measures that are not dependent on the beneficiary’s relation to other group members (most notably, individually exercised group rights such as exemptions, or eligibility for membership-based benefits such as housing, health care or educational opportunities, including membership-based quotas). A more thorough analysis of the kinds of measures (minority rights) that those who have left the contours of their group should be entitled to, as well as the extents to which the liberal state may enforce these rights is beyond the scope of this essay, as is the question of the justifiability of such membership-based measures in the first place. For my purposes, it suffices to say that, should there be such benefits, allocated to people on the basis of their group membership, then one’s leaving the influence of her group should not, necessarily, take these benefits away.

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may operate as an important source of one’s self-respect and self-esteem, with misrecognition or lack of recognition operating to an opposite effect.29 Although my usage of the term “recognition” is somewhat different from these traditional notions of recognition30, it is clear that the external affirmation of one’s membership – of one’s status as an M – can nevertheless play an important role in one’s understanding of one’s belonging – of one’s deep most identity as an M. As already mentioned, one’s self-identification as an M is seldom entirely internally produced, but may require certain external affirmation – that is, recognition by others as a member of the group M. It may, however, be objected that my call for continued state recognition fails to acknowledge the kind of recognition most important to the affirmation of one’s identity as an M. For those to whom the belonging to a cultural group means the most, it is often of secondary importance whether the liberal state recognizes their status as a group member, if the group itself – the other group members – refuses to recognize such membership. For most, it is the recognition of those one cares most about (other group members) that is of utmost importance, and the recognition on behalf of the state can only operate, at the most, as a poor substitute for such recognition. Again, I need to acknowledge that there is some weight in this objection, although I do not think that it makes my call for the continued state recognition redundant. Whereas it often is the case that the most important affirmation of one’s identity comes from those one feels the strongest relation to – that is, other group members – one should not underestimate the importance and influence that the recognition on behalf of the state may have. As many recognition theorists have pointed out, one of the most pressing issues for many oppressed or discriminated groups has been precisely the acquiring of due recognition from the state, and the acknowledgement of the group members’ worth as M’s (as gays, as women, as blacks) instead of lacking recognition or being recognized despite of being an M.31 Whereas there is no denying the importance of the recognition of one’s peers for one’s sense of oneself, there is not much that the state can do to convince the other group members to recognize one as a member. However, by continuing to recognize the person who has left the contours of her group as a member (should she so want to be recognized), and by continuing to also treat her as a member (insofar as feasible), this person does acquire some recognition as a group member, and is also provided with some tools for affirm-

29 Honneth 1997; 2001; Taylor 1994. 30 See note 20 above. 31 On the construction of positive, collective identities through positive recognition as an M, see Appiah 2005, 108–109.

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ing her identity as an M. Provided that one’s belonging, and one’s deepest sense of oneself, is often dependent on some external affirmation, it is essential that at least the state provides this affirmation, even if the other group members would not.

External Interference The two first objections, those of insufficiency and source of recognition, point out to some important limitations of the continued state recognition in lowering the burdens of exit (as commonly understood) from identity-conferring or constitutive groups. My call for the liberal state to continue recognizing those who have exited the contours of their group without renouncing their belonging as group members should not thus be thought of as a grand solution to the problems associated with the realistic rights of exit. Quite the contrary, the continued state recognition operates only as one of the means through which the burdens of leaving the influence of one’s group can be lowered, but gives no guarantees for realistic rights of exit. Contrary to the two first objections that manage only to establish certain limitations of my suggestion, the third objection, if successful, may lead into rejecting my proposal of continued state recognition altogether. According to this objection, the continued state recognition diminishes the group’s right to decide about its own membership, and constitutes an illegitimate external interference into the group’s internal affairs. This objection – let us call it the argument against external interference – can be best understood from the perspective of those who argue for the right of the cultural groups to decide their own memberships, complemented by the requirement of the liberal state not to interfere in these decisions. To recall, the rationale for the liberal state to recognize X as a group member was – and also should be – distinguished from the rationale that the group itself (whether the deciding body or the self-identifiers) could have as criteria of membership. In order to steer clear from defining any substantive criteria of membership, the state should simply track the recognition of the group itself, and to recognize as group members those, and only those, who have been accepted as group members by the group itself (see section 1 above). By continuing to recognize those who have exited the contours of their group as group members, the objection goes, the liberal state interferes in the internal affairs of the group, imposing a view of membership that is not accepted by the group itself. In response to this objection, two things need to be said. Firstly, let us presume for the time being that the continued state recognition does, indeed, constitute interference into the group’s internal affairs. Should this be the case,

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it is worth imagining what this interference would look like. Those who would have exited the contours of their cultural group (exit as commonly understood) would continue to be recognized by the liberal state as group members (should they so wish to be recognized). Due to state recognition, they would also be entitled to many of the group-based benefits (e.g. preferential treatment, legal assistance, exemptions)32 enabling them to live as close to the kind of life they would wish to live should they still have been able to stay within the contours of their group. The continued state recognition does not, however, in any way force the other group members to recognize the dissenter’s membership, nor can it force the other group members to treat the dissenter as a member of their group. On the contrary, the continued state recognition is compatible with the group itself (whether its leading body or other self-identifiers) having the right to expel dissenters from its midst and to shun away from those they no longer view as belonging to the group in question. Keeping this in mind, the continued state recognition, should it constitute an interference into the group’s internal affairs, is very minimal, having more of an effect on the person who has decided to leave the contours of her group than on those who have decided to stay. Secondly, it is not entirely clear whether my proposal for continued state recognition does, in fact, constitute an illegitimate interference into the internal affairs of the group. As already indicated, in order for the liberal state to respect the group’s right to decide its own membership, the state needs to steer clear from trying to define any substantive criteria of membership and, rather, attempt to track the recognition of the group itself in issues of group membership. However, in order to track the recognition of the group itself in issues of membership, the state already needs to have some conception of who constitutes that group, the recognition of which it is supposed to be tracking. Often, this problem is solved by the state tracking the recognition of the group leaders or the deciding body of the group (as demonstrated by Santa Carla Pueblo v. Martinez). However, by tracking the recognition of the group leaders or the deciding body, the state can no longer be seen as staying clear from the issues of defining membership, as it has already acknowledged the group leaders as the legitimate spoke persons of the group and, by doing so, also given certain legitimation to those criteria that the group leaders have for group membership. As should be clear by my proposal, however, the tracking of the recognition of group leaders or the deciding body of the group is not the only way for the liberal state to attempt to respect the group’s right to decide its own member-

32 The list of such benefits does, of course, depend on the group in question and on the existing membership benefits for the group.

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ship.33 By tracking the recognition of the group leaders (or, indeed, any fraction of the group), the liberal state does, in effect, interfere in the internal affairs of the group by giving its support to those most powerful within the group. As already demonstrated, the tracking of the group’s own recognition on issues of group membership is bound to encounter several difficulties as the recognition of different actors (be they the group leaders, majority of self-identifiers, or any individual self-identifier (X)) may be very different with respect to who they conceive to be members. The alternative approach, that of tracking people’s selfidentifications, on the contrary, would seem to be able to take these discrepancies into account and also come closer to fulfilling the requirement of the liberal state to stay clear from defining any substantive requirements of membership. Whereas the self-identifiers themselves (be they those who are staying firmly within the contours of their group, or those who have decided to exit (as commonly understood) from their group) may have very different views on who counts as a member of the group, these discrepancies no longer carry weight, as it is not the recognition of the self-identifiers that the state attempts to track, but the self-identification itself. The tracking of people’s self-identifications rather than any particular recognition may, of course, lead the liberal state to recognize very different groups of people as group members (as demonstrated by the continued state recognition of those who have left the contours of their group), but it would also seem to do a better job in allowing the group itself decide its own membership by resisting to give support to any particular fraction’s views on who counts and who does not count as a group member.

4 Conclusion In this essay, I have focused on some of the difficulties that one’s identification with a cultural or religious group may bring for thinking about exit from such groups. I started by analyzing the different ways and extents to which one’s belonging to a cultural group could be understood before turning into the possible linkages between one’s self-identification as belonging to the group in question and one’s membership in such group. My analysis of the different ways and extents of one’s belonging on the one hand, and of one’s membership on

33 Indeed, my intention is not to argue against the view according to which the liberal state should steer clear from defining any substantive criteria of membership and let the group itself define its own membership, but rather to show that an alternative approach, that of tracking people’s self-identifications, may do a better job in this.

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the other was then used to analyze the different ways in which exit from a cultural group could be understood. The main distinction was made between exit in terms of renouncing one’s belonging and exit in terms of leaving behind the influence of one’s group (or, exit, as commonly understood). I argued that this distinction should be kept in mind, not only in order to have a more sophisticated understanding of what it might mean to exit one’s cultural group, but also for developing more satisfactory approaches for the liberal state to respond to issues of exit. My proposal, with respect to the liberal state’s responses to exit, was that the state should continue to recognize those who have decided to leave the contours of their group (exit as commonly understood) as members of the group, should they so wish to be recognized. This approach, it was shown, had several benefits. Firstly, the continued state recognition would give at least some affirmation to the person’s identity as an M, thus contributing to the possibilities of this person continuing to identify herself as an M despite having left the contours of her group. Secondly, the affirmation of one’s identity as an M would operate as one of the ways in which the burdens of exit (as commonly understood) could be lowered, thus contributing to making the formal rights of exit more realistic. Thirdly, the continued state recognition would also take better into account the discrepancies that different actors may have for recognizing (or not recognizing) someone a member, and refuse to prioritize any particular fraction’s views on who counts as a member. This tracking of people’s self-identifications (instead of any fraction’s recognition) would also better fulfill the requirement of the liberal state to stay clear of defining any substantive criteria of membership, as the state recognition would depend, not on any fraction’s views on who counts as a member, but on people’s self-identifications themselves. All in all, the continued recognition of those who have exited the contours of their group without renouncing their belonging would take better into account both, the importance that one’s belonging to a cultural or religious group may have for the constitution of one’s identity, as well as to acknowledge the multiplicity of ways in which one’s group membership, as well as the requirements for such membership, may be understood.

Bibliography Appiah Kwame Anthony (2005), The Ethics of Identity, Princeton. Barry Brian (2001), Culture and Equality: An Egalitarian Critique of Multiculturalism, Oxford. Benhabib Seyla (2002), The Claims of Culture: Equality and Diversity in the Global Era, Princeton and Oxford.

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Galston William (1995) ‘Two Concepts of Liberalism’, In: Ethics 105, 516–534. Gutmann Amy (2003), Identity in Democracy, Princeton. Eisenberg Avigail/Spinner-Halev Jeff (eds.) (2005), Minorities within Minorities. Equality, Rights and Diversity, Cambridge. Honneth A. (1997), “Recognition and Moral Obligation”, In: Social Research 64(1), 16–35. Honneth A. (2001), “Recognition or Redistribution? Changing perspectives on the Moral Order of Society”, In: Theory, Culture & Society 18(2–3), 43–55. Killmister Suzy (2011) ”Group-Differentiated Rights and the Problem of Membership”, In: Social Theory and Practice, 37(2), 227–255. Kukathas Chandran (1992), “Are There Any Cultural Rights?”, In: Political Theory 20(1), 105– 139. Kukathas Chandran (2003), The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford. Kymlicka Will (1989), Liberalism, Community and Culture, Oxford: Clarendon Press. Kymlicka Will (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford: Clarendon Press. Lukes Steven (2003), Liberals & Cannibals, London and New York: Verso. MacIntyre Alasdair (1981), After Virtue: A Study in Moral Theory, Notre Dame. Okin Susan M. (1999), “Is Multiculturalism Bad for Women?”, In: Cohen Joshua/Howard Matthew/Nussbaum Martha C. (eds.), Is Multiculturalism Bad for Women?, Princeton, 9– 24. Okin Susan M. (2002), “Mistresses of Their Own Destiny: Group Rights, Gender, and Realistic Rights of Exit”, In: Ethics 112(2), 205–230. Phillips Anne (2007), Multiculturalism without Culture, Princeton and Oxford. Phillips Anne (2010), Gender and Culture, Cambridge and Malden: Polity Press. Resnik Judith (1989), “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts”, In: The University of Chicago Law Review 56, 671–759. Shachar Ayelet (2001), Multicultural Jurisdictions: Cultural Differences and Women’s Rights, Cambridge. Sandel Michael (1982), Liberalism and the Limits of Justice, Cambridge. Song Sarah (2007), Justice, Gender and the Politics of Multiculturalism, Cambridge. Spinner-Halev Jeff (2000), Surviving Diversity: Religion and Democratic Citizenship, Baltimore. Spinner-Halev Jeff (2005), “Autonomy, association and pluralism”, In: Eisenberg Avigail/ Spinner-Halev Jeff (eds.), Minorities within Minorities. Equality, Rights and Diversity, Cambridge, 157–171. Taylor Charles (1989), Sources of the Self: The Making of Modern Identity, Harvard. Taylor Charles (1994), “The Politics of Recognition”, In: Gutmann Amy (ed.), Multiculturalism: Examining the Politics of Recognition, Princeton, 25–73. Vitikainen Annamari (2009), “Liberal Multiculturalism, Group Membership, and Distribution of Cultural Policies”, In: Ethnicities 9(1), 53–74. Walzer Michael (1983), Spheres of Justice, New York: Basic Books. Weinstock Daniel (2005), “Beyond Exit Rights”, In: Eisenberg Avigail/Spinner-Halev Jeff (eds.), Minorities within Minorities. Equality, Rights and Diversity, Cambridge, 227–246.

Nahshon Perez

Exit: The Temporal Dimension This essay considers the temporal dimension of the concept of exit in political theory, an aspect that has been neglected in the otherwise growing literature on exit. Exit will be understood in this essay as ‘disassociating oneself from a given belonging’. ‘Belonging’ can mean membership in a group of people with some shared characteristics, membership in a state – i.e. citizenship – or, less formally, any kind of association or identity. ‘Disassociating’ can mean geographical distance, cessation of relations, waiving of benefits and not being burdened by duties, and, lastly, not being considered a member of this group (or belonging) by the surrounding society, emphasizing the legal system. Existing literature on ‘exit’ examines many different aspects of this ‘disassociation’: aspects of material and gender especially have attracted important discussions.1 If exit is to fulfill any kind of substantial role in liberal political theory and liberal states, past belonging should not become a barrier to a person’s wish to disassociate from her/his past. This may seem trivial, but a moment’s reflection reveals that such disassociation is a fairly complex endeavor. In order to complete one’s disassociation from a past belonging, two things should take place: first, a person should be able to understand himself/herself as not belonging to his/her former identity, community, or any other distinguishing association anymore and, second, the surrounding society has to allow this person to disassociate himself/ herself from his/her former belonging. This essay will focus on the latter aspect: that of the relations between a given individual and his/her surrounding society in the context of such an exit. The questions that interest us here, therefore, concern what kind of liberal theoretical framework should be used to enable such disassociation, and what barriers need to be overcome in order to enable such an exit. These are obviously wide questions, too wide for one article, and my focus therefore will be on the temporal dimension of those questions. This focus on the temporal dimension will lead us via the different sections of this essay, as follows. Section one analyzes exit conceptually, with no regard to its temporal dimension. Section two examines the temporal dimension of exit. In order to make this discussion clear and specific, the examination will include an analysis of a recent case (2010) from the Appellate Court of New Jersey. This

1 See: Okin 2002, 205–230, and Kukathas 1997, 69–104. Okin emphasizes both the material aspects of exit, and the challenges faced by women within religious communities, Kukathas emphasizes a ‘formal’ right to exit in the context of libertarian thought.

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case will be analyzed in light of two concerns: the contemporary right to exit, and the temporal aspect of exit. It will lead to a consideration of a famous mechanism of temporal exit: statutes of limitations. Section three examines a fashionable turn in political theory emphasizing the remembrance of past wrongs and intergenerational responsibility, and argues that this fashionable turn collides with the right to temporal exit.

1 The Importance of Exit The right to exit is a basic interest in liberal theory. It is based on, and in turn secures, several fundamental liberties, such as freedom of movement, freedom of religion, and freedom of association. As such, it is itself fundamental.2 The ability to change one’s system of belief, one’s association, and simply to move geographically is a necessary part of any liberal theory and state. The ability to exit, however, introduces great complexity as it encounters two typical major challenges: political borders and religion. Borders are an obvious obstacle to the right of exit. While western countries usually do not stop persons attempting to leave, no western country enacts a policy of open borders.3 This obviously poses a serious obstacle to the right of exit if a given person would like to exit not an inner-state community, but the country as a whole. This person’s ability to exit will be limited by the willingness (if there is one) of other states to allow her/him to enter. This limitation on exit is especially important if the person attempting to exit his/her own country originated from a poor third world country, suffers from lack of qualifications that would be of interest to the states s/he is trying to enter, or has medical issues that would bring about economic burdens to the states s/he is trying to enter.4 Religious communities pose the second major challenge to issues of exit. Such communities, following their view of the ‘correct belief’, in some cases, ask for exemptions from otherwise generally applicable rules regarding, for example, standards of learning expressed in curriculum or the required length of attendance in schools as a whole.5 When such exemptions are granted, the conse-

2 The classic example is Nozick’s description of exit in his ‘utopia’ in Nozick 1974, 297–299. 3 See: Carens 1987, 251–273. 4 This raises obvious questions regarding the consent aspect of social contract theories, as was famously pointed out by Hume. See Hume 1974, 356–373. 5 The classic example here is Wisconsin v. Yoder, 406 U.S 205 (1972), in which the U.S. Supreme court allowed children of the Amish community to be exempt from the otherwise

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quences are young adults with partial knowledge of the outside world and limited qualifications required for labor markets in modern societies. The de facto result of such arrangements is that while such members of religious groups can physically depart from their communities, their material dependence on their respective communities means significant obstacles for their realistic ability to exercise the right of exit. Such cases have raised fierce debates regarding the importance of realistic capabilities to exit, whether freedom of religion extends to education, and what balance between a community’s wish to maintain its intergenerational existence and the rights of young adults within such communities to exit is reasonable.6, 7 Such debates will probably continue as very few scholars will deny the right to exit as a whole, but what precise interpretation should be given to the right of exit remains controversial. My focus here, however, differs from those found in these important debates. This essay assumes that the right of exit is indeed fundamental, and those legal arrangements that make exit impossible are either illegitimate or, at the very least, require very strong justifications. My starting point is the conviction that each individual should be able to disassociate himself/herself from a given belonging, and it is the role of the legal system to guarantee this freedom (understood as lack of legal constraints8). This especially holds among citizens of one state, as such cases do not involve the much more controversial implications presented by open borders. Without attempting to offer a final ruling with regard to the debate about the ‘realistic’ right to exit (i.e. not the legal option but the material ability of a former member to exit, find employment outside of his/ her former community, etc.), I shall, in the context of the current essay, focus on

generally applicable rule which requires children in the U.S. to attend schools up to age 16. See also the discussion regarding the content of teaching in the Ultra-Orthodox schools in Israel at: Perez 2011. 6 The literature here is wide, one example advocating the religious communities’ rights is Stolzenberg 1993, 581–667. One example in favor of liberal civic education is Macedo 1995, 468–497. 7 A part of this discussion involves the so called ‘exit costs’, i.e. what tactics a community may adopt while treating dissenters, – such as disassociation, social sanctions, and material sanctions – are legitimate. B. Barry, in an important discussion, argued that a community should be allowed to disassociate dissenters (‘intrinsic costs’), otherwise freedom of association will be harmed. Further, social sanctions should be allowed (‘associative costs’), but not material sanctions (‘external costs’), as such costs violate non community-membership related interests of the (former) member. Barry’s classification is valuable, although the lines between the different categories are blurred rather than clear cut. See Barry 2001, 150–154. For a fuller discussion and clarification of Barry’s classification, see Perez 2002, 68–69. 8 This is the famous conceptualization of “negative liberty.” For a precise analysis, see Gaus 2000, 77–82; and Berlin 2007, 39–58.

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a minimal approach that views critically any formal, legal barrier to exit put on individuals within countries. While this may seem (perhaps) too minimal of an approach, we shall see that in the context of the temporal dimension this approach is actually quite a controversial position. Having clarified some of the essential background for considering issues of exit, the next step is to focus on the temporal dimension of exit which serves as a potential hurdle to any complete and successful disassociation from past belonging.

2 Exit and the Temporal Dimension If exit is to be successful, past belonging cannot play a definitive role in the way a person relates to himself/herself or the ways in which the surrounding society, and especially the legal system, treat this individual. The former aspect, the ways in which an individual relates to himself/herself, is important to the psychological well-being of any individual, but such issues involve psychological concerns that lie beyond the framework of liberal political theory, which focuses on the relations between the individual and the state. The relations between the surrounding society and the individual, particularly as stipulated in legal systems, will therefore be our focus here. In order to demonstrate the importance of the temporal dimension of ‘exit’, I shall discuss a legal case which was decided in the appellate division of the New Jersey Superior Court.9 A young couple (S.D, the Plaintiff, M.J.R. the Defendant) arrived (in New Jersey) from Morocco, where they had very recently been married. The husband abused, physically attacked, and raped his wife several times while in New Jersey. This violence was well documented, and there was no challenge to the main factual details of the case. A parallel legal track was enacted following these events, a civil track in which the wife asked for a restraining order against her husband, and a criminal track which will not be discussed here. The judge’s ruling on the civil track, in the Superior Court of N.J., refused to accord the wife a restraining order against her husband on the grounds of the husband’s cultural background, being a Muslim and from Morocco. This was taken to establish that the husband lacked a criminal intent to harm his wife, as he took it for granted that his wife ought to obey him on matters of sexual relations (and on other matters). The judge also argued that,

9 S.D. v. M.J.R. (N.J. Super. Ct. App. Div.) 2010.

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as the couple was divorced by the local Imam in New Jersey (following the abuse, but before the Superior Court’s decision), future contact was unlikely, thus there was no need for the restraining order (this was a peculiar remark from the judge, as the wife was impregnated by the husband, making future contact very likely). The wife appealed this decision and the Appellate Court reversed the decision, ordering a restraining order to be enacted. In a central paragraph of the decision, the Appellate Court argued the following: “As the judge recognized, the case thus presented a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the state’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.” The Appellate Court indicated two main reasons for reversing the Superior Court decision: first, the severity of the harms inflicted on the wife clearly compelled the state to act in order to protect her vital interests; second, the court supported a view of freedom of religion in which generally applicable laws overrule religiously motivated practices in the majority of cases, especially in cases where the (requested, would be) exemption entails a violation of human rights as demonstrated in this case. There are two ways, or so I think, in which this case can be analyzed in the context of exit. First, when the judge in the Superior Court (not the Appellate Court) recognized the religious beliefs of the husband as a reason to deny the wife a restraining order against a violent and dangerous husband (my description N.P.), he denied her right to exit. Simply put, the judge denied her the legal option to disassociate herself from a belonging against her wish. This was obviously the wrong decision by the judge not only because it violated the basic rights of the wife, but also because of an analytical mistake: the beliefs were that of the husband, but the consequence was levied on the wife. In other words, the judge accepted a hidden collectivist assumption that the wife belonged to a collective that follows certain norms, and enabled this collective belonging to override her right to disassociate herself from those norms. This is a clear violation of her right to exit. The Appellate Court was correct, therefore, in overruling the Superior Court’s decision. A second way in which this case can be viewed as an exit issue is in light of the temporal dimension. The judge in the Superior Court recognized the relevance of the fact that the couple is from Morocco. Here, considering the way the Superior Court discussed the case, the temporal dimension is vitally important in order to reach an adequate understanding of the court’s decision. Why the geographical origin of the couple was deemed important is not immediately clear: the violent behavior of the husband took place in New Jersey, not Morocco. However, the judge in the Superior Court implicitly assumed that their

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former location was important and, further, that the alleged10 norms in that place were relevant to the ability of the wife to protect her rights, her physical well-being, and her ability to exercise exit from her marriage by securing a restraining order. This is why examining the temporal dimension of exit is important. It is a truism, in liberal political theory, that one’s nationality, cultural background, the place of one’s birth, the identity of one’s parents and so on, should have no bearing on one’s rights. Taking into account one’s former belonging, in order to provide her/him a lesser defense of their rights, is an obvious violation of basic human rights. So obvious, in fact, as to make further discussion of this point unnecessary. To summarize, the judge at the Superior Court violated two aspects of the wife’s right to exit: the first by following an alleged communal belonging, the second by taking into account as relevant her place of origin.11 The latter point will be my focus in the next part of this essay. This seemingly trivial point – that former belonging, place of origin etc. should have no bearing on one’s rights in liberal theory and practice – is actually only a starting point for many legal systems’ treatment of the past in certain contexts. Legal systems in many countries went further than simply acknowledging the irrelevance of one’s former belonging regarding the protection of one’s rights, creating legal norms that allow one to disassociate herself/himself from a past belonging and identity. Such legal norms express the right to (temporal) exit so strongly as to allow a given person to exit her/his identity as a past wrongdoer.12 This is one of the important goals that statutes of limitations13 serve. While there are various justifications for statutes of limitations, one recurrent theme is allowing a wrongdoer to continue with his/her life without a constant fear of the legal system and the coercive apparatus of the state. Obviously, there are further justifications for statutes of limitations: economic

10 I have no knowledge of the legal or social norms in Morocco, although I suspect that they do not sanction such behavior. Whether or not such behavior is tolerated in Moroccan culture, the burden would be on this judge to cite specific laws sanctioning abusive behavior. So the judge in the Superior Court was, on top of everything else, not a very good sociologist. (Needless to say, even in a hypothetical case in which a given legal system sanctions such behavior, this does not justify tolerating such behavior). 11 This decision, while not the norm, is not unique either. Rather, ‘cultural defence’ enjoys a measure of popularity among scholars and (obviously) some judges. See, for example, Renteln 2004. For a critique of this oddly popular view, see Sacks 1996, 523–550. 12 Ochoa/Wistrich 1997, 460–464. 13 Statutes of limitations may be defined as follows: “legislative act restricting the time within which legal proceedings may be brought”, Encyclopedia Britannica, s.v. “statutes of limitations” (2000).

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efficiency, problems regarding the availability of reliable information, creating incentives for the legal systems and victims to maintain an active approach in prosecution and so on.14 Nevertheless, there is a clear line of thought that focuses on the ability of the wrongdoer to ‘move on’ which will be my focus here. The notion of ‘moving on’ is a noteworthy aspect of exit which, in liberal literature, is usually understood to mean exit from a community but can also suggest the ‘moving on’ which allows one to exit from one’s former identity. This follows from a conclusion that, extreme cases aside, a person at time T1 is not the same person at T2, if a sufficient amount of time has passed. If a wrong was committed at T1, the wrongdoer is not the same person at T2. While this is the same person formally and legally, sufficient aspects of this person’s personality have changed to justify a conclusion that the past wrong should not be counted towards the current person (at time T2). How much time is enough, is not a question that can be answered without the concrete details of a given legal system and a concrete case, but the fact that all western legal systems (to the best of my knowledge15) recognize some version of statutes of limitations testifies to the central importance of exit from one’s past self. Statutes of limitations, however, introduce a new variable to the notion of exit as discussed so far. The notion of exit was a continuation of the most basic principles of liberal theory – such as freedom of religion, freedom of association, and freedom of movement – and, therefore, obviously a required aspect of any liberal theory. Statutes of limitations, and the exit from one’s past-self which they allow, can be controversial. Allowing exit from the past self means that a wrong will go unpunished, and, in some cases, property that was originally acquired via illegitimate means will remain where it currently (unjustly?), resides. These two aspects will cause statutes of limitations to be met by fierce opposition, at least by victims and those concerned for the rights of victims. They will probably also be opposed by those who are worried that statutes of limitations might bring about perverse incentives for potential wrongdoers: committing wrongs and then simply waiting for the statute of limitation to expire seems like a logical action given a cost-benefit-analysis.16 Such opposition will face counter arguments of course, with regard to the importance of the ‘moving on’ notion on behalf of the former wrongdoer, regarding considerations such as the damage that unreliable information will create for the legal system, and the

14 See: Ochoa/Wistrich 1997, 453–514, and Listokin 2002, 99–118. 15 Ochoa/Wistrich 1997. 16 On such arguments (and counter arguments) see Martin 1979–1980, 405–422.

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importance of incentivizing courts and victims to put forward claims following wrongdoing quickly and efficiently.17 To conclude: the right to exit has an obvious temporal dimension, and this dimension has well known manifestations in legal norms. The temporal aspect of exit may be thought of as two related points. The first point involves the noncontroversial idea that past belongings and places of origin should not influence (or reduce) one’s rights. The second dependent, and perhaps a bit more controversial, point involves the interest persons have in ‘moving on’, including from a past wrongdoing they have committed. While statutes of limitations can be controversial, it is difficult to imagine a liberal legal system operating without them completely: one can always argue that a longer period of time should pass before a given statute of limitation will apply in a particular case, but, save unique cases such as genocide, a legal system will face severe (and probably impossible) loads of work without statutes of limitations.

3 Intergenerational Exit If the ability to exit from past belongings is an important liberal interest, it places the liberal ‘person’ at odds with some classical political views of the ‘person’. Burke famously wrote that a political society is “a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”18 Several contemporary scholars offer similar descriptions of political societies as intergenerational entities.19 Such views will invariably reject the view of the ‘person’ as an individual without a belonging that extends to the past (or as capable of exit in the first place). While the liberal ‘person’ is certainly a part of a liberal political community, this association with such a community is based on ‘thin’ civic aspects, not on a robust view20 of a

17 The strongest support for the notion of ‘moving on’ is probably Epstein 1995, 59–64. A complex philosophical treaty on the different ways in which the wrongdoer himself/herself (not the legal system) may ‘move on’ is Radzik 2009. 18 Burke 2009, 96. 19 Alasdair MacIntyre is probably the most famous such writer, see his After Virtue (MacIntyre 1984). 20 A robust, or thick, view of a political community is based on shared views of human flourishing or on images of a shared ethnic past, not on shared agreement to political concepts. This ‘robust’ view is explained in the following sources: Habermas 1996, 21–31, and Sandel 1996, 3–7, 26, 317–351.

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community.21 However, ‘Burkean’ views will reject the liberal views of the person and of a liberal political community and argue that, since an individual is almost always a member of a political society (in a ‘robust’ sense), s/he should also accept responsibility over past wrongs committed by the collective to which this person belongs. Different writers, such as Hannah Arendt22 and David Miller,23 have argued in this fashion. This dispute between Burkean and liberal views, regarding the nature of the person and the nature of a political community, has important consequences for the idea of a temporal exit.24 The idea that each person is necessarily a member of a robust version of a political community, containing specific and intergenerational moral values25, threatens the ability of a person to exit from past belonging. This is especially unsatisfying as such collective belonging is ascribed by birth and does not follow any voluntary act of any given person. Furthermore, Miller and several other writers.26 have suggested, for example, that contemporary citizens of western states should participate in intergenerational compensation for past wrongs committed by (typically) such an intergenerational entity. Let us quote one such author: “The central thesis of the present book holds that the responsibility of contemporary citizens should not be held to be rooted in their individual deeds, family history, or racial and ethnic make-up, but rather in their political identity as citizens – both implicated by the deeds of their political ancestors and identified with those deeds.”27 Such an approach brings us back to the problem of exit: if an individual is born to a specific community, and the legal system treats her/him according to this belonging, rather than simply as an individual, his/her ability to exit from a past belonging is nullified. Note that such approaches do not target specific

21 Dworkin 2000, chapter 5. Note that one’s emotional tie to a liberal community can be an important part of who one is, and create a robust sense of loyalty. The nature of the community as a civic, political entity does not reduce the significance of belonging to it. 22 Arendt 2005, 147–159. 23 Miller 2007, chapter 6. 24 There are different versions of the approach which views the ‘person’ as belonging to intergenerational collectives. Some are focused on the community or nation as having a cultural ‘essence’, others emphasize a specific view of human flourishing, and several other versions exist within the literature. As long as they entail intergenerational collective responsibility and a denial of the right to (temporal) exit, such distinctions are unimportant for a discussion of the individual right to a (temporal) exit. On the differences between several different versions of commitment to intergenerational entities, see: Skinner 2002, 186–212. 25 Sandel 1992, 12–28. 26 Such as Thompson 2002, Weiner 2005, and Miller 2007, chapter 6. 27 Weiner 2005, 19.

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individuals within countries that have benefitted from past wrongs, but implicate all existing citizens.28 Aside from the unpleasant psychological and emotional feelings of being implicated in a wrong committed before one was born, there may be direct fiscal consequences to such an approach.29 If a right to exit, however, is indeed fundamental (and note that we are discussing a formal legal right, not the material ability to exit), such intergenerational conceptions of society and the self will collide with the right of exit.30 Given the traditional liberal emphasis on individualism and individual rights, it is somewhat surprising that such views of intergenerational collective responsibility have gained considerable attraction.31 While obviously not all scholars who support intergenerational collective responsibility and deny the right of exit in this context would have supported the decision of the Superior Court in New Jersey, the similarity between the ways in which the ‘person’ is illustrated by those who deny the right of exit is somewhat striking, and to a certain extent alarming.32 Perhaps there is a way to deny the right of exit in some cases, as the scholars who view citizenship as entailing intergenerational collective responsibility think, but to grant it in other cases (such as the right of exit from illiberal groups). It seems that the relevant consideration that may allow such a move is the cost

28 A critique of the all-encompassing nature of some of the intergenerational collective responsibility approaches, advocated by some scholars, emphasizes the difference between those individuals that can be identified as benefiting from past wrongs and the society at large. See Perez 2011, 151–168. 29 In some extreme cases, the attribution of intergenerational responsibility entails rather harsh suggestions applied to contemporary citizens. For example, from Australia: P. Adam, “Pay up or leave: our duty to the Aboriginal people”, The Sydney Morning Herald, (8.12.2009), the fifth paragraph of this article is as follows: “But are we responsible for the sins of others? As far as I know, none of my ancestors killed any indigenous people. But we have benefited from death and dispossession, and have grown wealthy from the poverty of others. If I discovered my grandfather had killed a man and plundered his property, I think I would try to find any descendants of the murdered man and at least say sorry. For I would have benefited from that crime.” The writer argues that unless the consent of Aboriginal peoples will be given to contemporary Australians, all contemporary Australians (aside from descendants of Aboriginal peoples) should leave Australia. 30 Note that, in such cases, immigration is not a proper solution. If the view of individuals as belonging to intergenerational communities is the dominant one, then a given immigrant will merely switch one intergenerational collective responsibility with another. 31 Aside from the references given above, see: May 1992 and F. Abdel-Nour 2003, 693–719. For a critique of such attempts from a perspective that emphasizes the lack of continuity of collective identities, see Van Den Beld 2002, 181–200. 32 Several writers have commented on the thick, robust, and non-political view of an intergenerational community as one repeated aspect of illiberal thought. See, for example: Holmes 1989, 227–254; Hardin 2004, 179–194.

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levied on the member who is denied a right to exit. It may be argued that denying the right of exit from an illiberal group would violate important interests of the member, while denying the right of exit from intergenerational belonging will usually have less harmful results such as psychological uneasiness and modest financial consequences if intergenerational compensation is decided upon. Such an approach would diminish the magnitude of intergenerational collective responsibility and, indeed, reduce the harm of the denial of the right of exit. But, first, it is not clear whether such a diminution is indeed agreed upon by those advocating intergenerational collective responsibility. Second, violations of the right of exit are not only about the cost of a violation of the right of exit, but about the importance of the right to exit in the first place. If the right to exit is fundamental, claiming that it should be violated (as the consequences are relatively minor) is an obvious non-starter. Furthermore, we should also indicate, as a strictly analytical point, that one cannot simultaneously support the right of exit and a view of the ‘person’ as entailing intergenerational collective responsibility. The reason is that ascribing responsibility for past wrongs to individuals following their place of birth, without them committing any form of voluntary acts, is by definition a violation of the right to (temporal) exit. From this perspective, it does not matter if the attribution of intergenerational collective responsibility entails heavy financial costs or not, the mere ascription of responsibility is already a violation of the right of exit.

4 Conclusion This article has argued that the right of exit – understood in a fairly minimal way as a right to be free from legal constraints that would forbid one to disassociate from a collective belonging within a given state – is fundamental. While adopting this minimal definition (too minimal, certainly, for some readers), I first examined legal obstacles to the right of exit. The most obvious obstacle is a legal framework that treats an individual as belonging to a community rather than as an individual, as was demonstrated via the legal case examined from the Superior Court in New Jersey. This, I think, is a fairly noncontroversial case: most observers will agree that it presents an unjustified violation of the right to exit. The next step introduced the temporal aspect of the right to exit. Here the obstacles to complete exit are less obvious, and more controversial. First, I discussed the legal aspect of exit from a former belonging as an aspect of the New Jersey case. The next step was to reflect on statutes of limitations in the

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context of exit, and the interest in being able to ‘move on’ from past identity as a wrongdoer. Lastly, I examined the right to (temporal) exit in light of some recent attempts to argue for intergenerational collective responsibility for past wrongs, and whether these two concerns (intergenerational collective responsibility and the right of exit) collide. My conclusion was that treating individuals in a certain fashion (i.e. ascribing collective responsibility for past wrongs to contemporary citizens) following mere belonging (usually created by birth), is incompatible with the right to exit. Unlike the right to exit from illiberal communities, the temporal aspect of exit might collide with certain other legitimate interests, such as in the case of statutes of limitations, and in such cases a proper balance should be created between the different interests involved (the interest in ‘moving on’, economic efficiency, the availability of reliable information, the rights of victims, etc.). However, while the right of (temporal) exit in intergenerational cases certainly collides with some well entrenched conservative and nationalistic views in political theory (as discussed in section 3 above), unlike the statutes of limitations example I find it difficult to identify the value of denying the right to temporal exit in such cases. The views supporting intergenerational collective responsibility are rather unsubtle in their application (i.e. are applied to all the members of the collective, not to those who specifically benefitted from a past wrong), and such positions are committed to a view of individuals as belonging first and foremost to collectivities. This view of human nature and human flourishing is in tension with the liberal view of the ‘person’ as an individual with rights and liberties. The right to (temporal) exit therefore should, from a liberal perspective, more often than not trump such attempts to grant priority to collective belonging in contemporary and temporal related cases.

Bibliography Abdel-Nour F. (2003), “National Responsibility”, In: Political Theory 31(5), 693–719. Adam P. (2009), “Pay up or leave: our duty to the Aboriginal people”, In: The Sydney Morning Herald (8.12.2009), Sydney. Arendt H. (2005), “Collective Responsibility”, In: Arendt H. (ed.), Responsibility and Judgment, Schocken, 147–159. Barry B. (2001), Culture and Equality, Oxford. Berlin Isaiah (2007), “Two Concepts of Liberty” (selection), In: Carter Ian/Matthew H./Kramer/ Steiner Hillel (eds.), Freedom: A Philosophical Anthology, London: Blackwell, 39–58. Burke E. (2009), Reflections on the Revolution in France, Oxford.

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Carens Joseph (1987), “Aliens and Citizens: The Case for Open Borders”, In: Review of Politics 49, 251–273. Dworkin R. (2000), Sovereign Virtue, Cambridge. Epstein R. (1995), Simple Rules for A Complex World, Harvard. Gaus Gerald (2000), Political Concepts and Political Theories, Boulder: Westview Press. Habermas Jürgen (1996), “Three Normative Models of Democracy”, In: Benhabib S. (ed.), Democracy and Difference, Princeton, 21–31. Hardin Russell (2004), “Subnational Groups and Globalization”, In: Dowding K., Goodin R. and Pateman C. (eds.), Justice and Democracy, Cambridge, 179–194. Holmes Stephen (1989), “The Permanent Structure of AntiLiberal Thought”, In: Rosenblum N. (ed.), Liberalism and the Moral Life, Harvard, 227–254. Hume David (1974), “Of the Social Contract”, In: Hafner (ed.), Hume’s Moral and Political Philosophy, New York: Hafner, 356–373. Kukathas Chandran (1997), “Cultural Toleration”, In: Shapiro Ian/Kymlicka Will (eds.), Nomos XXXIX: Ethnicity and Group Rights, New York, 69–104. Listokin Y. (2002), “Efficient Time Bars: A New Rationale for the Existence of Statutes of Limitations in Criminal Law”, In: The Journal of Legal Studies 31(1), 99–118. Macedo Stephen (1995), “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?”, In: Ethics 105(3), 468–497. MacIntyre Alasdai (1984), After Virtue, Notre Dame. Martin, A. (1979–1980), “Statutes of Limitations and Rationality in the Conflict of Laws”, In: Washburn L.J. 19(405), 405–422. May L. (1992), Sharing Responsibility, Chicago. Miller D. (2007), National Responsibility and Global Justice, Oxford. Nozick R. (1974), Anarchy State and Utopia, New York: Basic Books. Ochoa Tyler/Wistrich Andrew (eds.) (1997), “The Puzzling Purposes of Statutes of Limitation”, In: PAC. L.J., 453–514. Okin Susan M. (2002), “‘Mistresses of Their Own Destiny’: Group Rights, Gender, and Realistic Rights of Exit”, In: Ethics 112(2), 205–230. Perez N. (2002), “Should Multiculturalists Oppress the Oppressed?”, In: CRISPP5(3), 51–79. Perez N. (2011), “On Compensation and Return: Can the ‘Continuing Injustice Argument’ for Compensating for Historical Injustices Justify Compensating for Historical Injustices, or the Return of Property?”, In: Journal of Applied Philosophy 28(2), 151–168. Perez N. (2011) “Size Does Matter: Liberal Toleration and the Case of Army Service of the UltraOrthodox in Israel”, a paper presented at the Annual Conference of the Association for Israel Studies, Brandeis. Radzik L. (2009), Making Amends, Oxford. Renteln A.D. (2004), The Cultural Defense, Oxford. Sacks V.L. (1996), An Indefensible Defense: On the Misuse of Culture in Criminal Law, 13 Arizona Journal of International and Comparative Law. Sandel Michael (1992), “The Procedural Republic and the Unencumbered Self”, In: Avineri Shlomo and de-Shalit Avner (eds.), Communitarianism and Individualism, Oxford, 12–28. Sandel Michael (1996), Democracy’s Discontent, Cambridge. S.D. v. M.J.R. (Super N.J. App Ct.. Div.) (2010): http://lawlibrary.rutgers.edu/courts/appellate/ a6107-08.opn.html (seen 22. 03. 2012) Skinner Q. (2002), “The Idea of Negative Liberty: Machiavellian and Modern Perspectives”, In: Visions of Politics 2, 186–212.

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Stolzenberg Maya Naomi, (1993), “He Drew the Circle That Shut Me Out: Assimilation, Indoctrination and the Paradox of Liberal Education”, In: Harvard Law Review 106, 581–667. Thompson J. (2002), Taking Responsibility for the Past, Cambride. Van Den Beld Ton (2002), “Can Collective Responsibility for Perpetrated Evil Persist Over Generations?”, In: Ethical Theory and Moral Practice 5(2), 181–200. Weiner B. (2005), The Sins of the Parents, Rome: Temple University Press.

Veit Bader

Individual and/or Associational Autonomy? Associative Democracy and the Freedoms of Entry and Exit Introduction Individual autonomy is a basic but ambiguous and contested moral and legal principle of liberal-democratic constitutionalism ranging from maximalist, thick and utopian concepts (as ‘self-creation’, ‘rational revisability’) to thin, minimalist concepts of agency and legal and political autonomy. Yet any ‘tolerable liberalism’ also has to guarantee associational or collective autonomy. We know from experience and also from theoretical analysis that individual and associational autonomy stand in more or less strong tensions with each other, particularly in cases of ‘minorities within minorities’, tensions that have to be addressed by all non-reductionist political philosophies. The actual degree of individual autonomy depends on freedom of entry and freedom of exit – not only as rights but as actual options. Freedoms of entry into voluntary organizations and associations are clearly much easier to conceive and realize than into cultural groups (communities of practitioners). Minimalist individual autonomy requires exitrights (such as divorce, apostasy, right to emigrate, to leave voluntary organizations and non-voluntary ‘communities’) but exit-rights depend on actual exit options. Associative Democracy as presented and defended in this article, tries to combine maximum accommodation (full range of associational autonomies), constrained by minimalist but strong morality (guaranteeing ‘basic rights’), with an institutional setting that does not only presume ‘free entry’ and exit-rights but also tries to increase actual degrees of freedom of entry and, particularly, of exit. Unfortunately, associative democracy is still a widely unknown tradition and concept which is the reason why I present a very brief summary here and discuss its relation with moral minimalism and with my conception of Liberal-Democratic Constitutionalism before setting out how I proceed in this article. Moral minimalism as the core of a theory of differentiated morality tries to prevent ‘malfare’ by guaranteeing basic rights to security (rights to life, liberty, bodily integrity, protection against violence; minimal due process rights; minimal respect and collective toleration) and to subsistence. It distinguishes ‘decent states’ from plainly immoral ones but not all decent states have to be liberal or democratic states. Liberal-democratic morality is much more demanding and requires in addition equal civic and political rights, modern non-discrimination

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(equal respect), and individual toleration. It can and should be defended wherever circumstances allow, but only if this does not infringe minimalist morality.1 Liberal-Democratic Constitutionalism tries to articulate the meta-legal and meta-constitutional core of liberal-democratic constitutions and international covenants. It is a late and conflictive compromise of liberal constitutionalism (civic rights, rule of law, separation of powers, minority protection, constitutions, constitutional courts and judicial review) and democratic constitutionalism (free and equal political rights, democratic election of parliaments and governments, governmental responsibility, democratic majoritarianism and limited powers for constitutions and constitutional review, if any).2 Its core is strong but still ‘thin’ and ‘minimalist’ because it is abstracted from a broad variety of institutional forms of the rule of law (e.g. common versus codified law), democracy (e.g. majority or proportional representation, representative and/or direct democracy, presidential versus parliamentary democracy), and varieties of welfare states, varieties of capitalism or socialist market economies. One of these institutional varieties, which is fully compatible with LDC, is associative democracy as defended here. Associative Democracy is a specific variety of liberal-democratic institutional pluralism which all combine two core characteristics as ‘power-sharing’ systems: (i) the existing plurality of groups, organizations or political units, are formally recognized and integrated into the political process, and (ii) a fair amount of actual decentralization and self-determination. The most well known variety is political/territorial pluralism: ‘consensus-democracies’ and ‘federalism’ in multilevel polities. The second variety is social or functional pluralism: the representation of classes, professions, elites, producers, consumers and clients in the political process in different societal fields and organisations such as firms, schools and hospitals at different levels (e.g., sectoral, regional, national and supra-national neo-corporatist councils). And the third variety is ethno-religious minority pluralism. Associative democracy is a flexible, moderately libertarian variety of democratic institutional pluralism3 combining these three dimensions. It is not meant to replace but to supplement representative democracy. Compared with other types of democracy, it is driven by the conviction that all those relevantly affected by collective political decisions are stakeholders, and thus should have a say, both for reasons of meaningful democratic representation and in particular

1 See Bader 2007, chapter 2. 2 See Bader 2010, 10ff. 3 See Bader 2001 and 2007, 185–200; Hirst 1994.

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for reasons of governmental effectiveness and efficiency. It attempts to keep central government strong and minimal, and restricts government to its core tasks. The implied ‘shifts from government to governance’ are stimulated by the institutional design of social pluralism. Social services should primarily be provided by self-governing associations, and different contents and styles of provision of social services should (be allowed to) go along with different versions of the good life. Services should be public and publicly funded, open to all, but largely non-governmental. Therefore, far from there being one welfare state (one bureaucratic formula fits all), there would be as many as citizens wanted to organize, catering to the various lifestyles of individuals and groups, but based on common entitlements. Associational service provision is a new format, for ethnic and religious groups wanting to set up their own schools, hospitals and institutions to care for children, elderly, handicapped and poor people as well. In this way, it stimulates minority pluralism, guaranteed by a strong interpretation of associational freedoms and the proposals to represent the interests of different minority groups in the political process. In the same way, it provides meaningful exit options for minorities within minorities, thus contributing to voluntarism and plural, crosscutting membership in associations. I start with a brief discussion of the tensions between individual and associational autonomy (sections I–III). Yet the core question this contribution tries to answer is: How to increase meaningful individual autonomy without overriding collective and associational autonomy? I try to present theoretical and practical ways to defend maximum accommodation of ethno-national and religious practices, particularly of minorities, constrained by minimalist but strong morality and law, and at the same time to increase the freedoms of entry and of exit of dissenting individuals and groups of practitioners (minorities within minorities). Associative Democracy as a ‘realist utopia’ strikes a different, more appropriate balance than libertarianism, liberal and republican nationalism, corporatist multiculturalism and structural accommodation, or so I want to show in section IV.

I Individual Autonomy As we all know, individual autonomy is one of the, for some even the, basic value or principle of ‘liberalism’ but at the same time it is one of the most contested ones. Conceptions range from very thick, demanding and utopian ones such as ‘self-creation’ and Kantian‘moral autonomy’ as unconditional requirement of reason severed from all emotions and worldly passions (leading an

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autonomous, self-chosen and transparent life free of illusions) to explicitly thinner versions of personal moral autonomy as ‘self-determination’ compatible with communal ties and “relational views of the self, with social embeddedness”4 but require transparency and ‘rational revisibility’ of practices and ends, commitments, values, desires and beliefs. Thinner and less demanding conceptions of ‘political autonomy’ require capacities and exercise of revisibility only from citizens but not from persons in their non-political lives. More minimalist conceptions of political and legal autonomy drop these demanding requirements, and focus on respecting individual autonomy and presuppose only a certain threshold (‘maturity’) as a matter of on/off. These are institutionalized as rights and obligations/responsibilities in private and criminal law and in legal concepts of political autonomy that are part and parcel of Liberal-Democratic Constitutionalism.5 The most minimalist and thin conception is ‘individual agency’ that can be found in almost all cultures and traditions even if they do not know explicit concepts of individual legal autonomy: individuals are not cultural dupes, completely governed by external or internal powers. As we also know, there is abundance and a rapidly increasing proliferation of literature in moral and political philosophy6 and space prevents to go into any detail. Instead, I summarize my non-foundationalist, moderately anti-perfectionist and minimalist approach.7 Antiperfectionism implies that one keeps the requirements with regard to ‘internal psychic independence’ (impulse control and weakness of the will as obstacles to exercise the capacities for autonomy) as low and psychologically realist as possible without making them meaningless8; with regard to capacities/competencies it also requires low and realistic standards. One should be rather “reluctant to employ anything but the most minimal

4 Reich 2002, 106. 5 In different countries we find diversified age-requirements for legal agency and responsibility in private and tort law; ‘accountability’; in politics: active and passive voting rights; for driving licences; for children to have a say in ‘Umgangsregelungen’ (rights of access); for mental incapacity. 6 See extensive discussion in Christman 2007, brief overview also in Bader 2007, 73ff. 7 See Bader 2011a and Terlaak 2011. ‘Non-foundationalism’ here understood in a double sense: (i) rights, institutions and virtues/practices of LDC more important and not dependent on competing philosophical theories of autonomy (ii) autonomy not the only or most basic, foundational value on which ‘all human rights’ would depend. 8 Autonomy as psychic independence requires that our actions and attitudes are not/cannot be manipulated by controllers that “activate a goal outside of our awareness” (vs. unconscious goal and trait activation), that disturb our reasoning process (vs. reasoning disruption) or that deplete our resources for exercising self-control (Terlaak 2011, chapter 2, particularly 29–30).

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standards of rationality” because of concerns about rationalistic perfectionism and the abuse of state power in the name of rationality. These minimal standards include some level of coherence of desires (understood negatively as the absence of clinically defined levels of incoherence) and the capacity for basic means-end reasoning that allow a person to pursue goals.9

Otherwise, the demanding autonomy of the (self-declared) ‘elites’ infringes the autonomy of the ‘masses’. With regard to procedural external independence selfcontrol requires that our actions are not determined, controlled or manipulated by others, outside of our control (versus external, social and political obstacles). The external circumstances or conditions of individual autonomy include socio-economic, social, educational, legal, political, and cultural conditions.10 Compared with psychic self-control and capacities/competences, external circumstances do not depend on introspection and subjective feelings and reasoning but can be analyzed in a more objective way. This is a huge advantage for possible policies of liberal-democratic states yet also in this regard, it is deeply contested what minimal autonomy requires and it is difficult to find reasonable and realistic thresholds. If ‘substantive’ or ‘real’ autonomy requires at least some options to choose between, what is a minimally adequate range of options? If this is a matter of degree – as surely is any realistically defensible concept of ‘voluntariness’ – below which threshold ‘formal choice’ and ‘voluntariness’ turn into being forced or coerced by circumstances? In opposition to the still predominant maximizing or optimizing theories that require a broad set of options or even ‘equal’ socio-economic and educational ‘opportunities’ (still a radical utopia!) or even equal positive social recognition in the spheres of love and care, respect and esteem, my preferred minimalist strategy is the via negativa. Apart from realist concerns, we seriously disagree about what ‘justice’ requires but we can economize our moral disagreements by focusing on what serious injustice is and requires and we may be able to spell out what minimally adequate educational chances are or what it means to fight serious misrecognition.11 The same strategy could be tried in order to tackle the problem of degrees of voluntariness. Instead of using too demanding and unrealistic standards of voluntariness, we should start from clear utterances or signs of non-voluntariness and take them not only ‘prima facie’ serious: if a woman says “no” she means “no”; if a growing 9 Terlaak 2011, 19; following Christman. 10 See Bader 2007, chapter 6 for the political conditions, chapter 10 for educational conditions, Bader 2011 for some cultural conditions. 11 See Bader 2007a and 2011a, particularly for cultural misrecognition.

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up child says “no”, it is “no” (see below Section IV.1). Otherwise, again, we reproduce paternalism and intervene with (developing) individual autonomy.12 Not only moral liberalism but also full-blooded democrats, however, are tempted to develop more demanding, thicker and more perfectionist notions of autonomy for four reasons. Democracy’s egalitarian drive is not content with ‘formally equal’ political rights but asks for more equal actual political chances and, hence, at least a minimum of socio-economic equality. Second, democracy’s deliberative drive is not content with a threshold of maturity and a minimum of cognitive capacities but demands that people’s choices are reasonable in all regards and that persons are able and willing to distance themselves from their particularist interests. Together, these drives can easily lead to a paternalistic infringement of individual autonomy.13 Third, the drive towards democratic congruence requires that all spheres of life or societal fields, associations and organizations become schools of liberal-democratic virtues. Together with democracy’s majoritarian drive this results in an explosive mix that tends to erode all meaningful collective and associational autonomy: the intolerant sting in the tale of demanding individual autonomy combined with equality as radical nondiscrimination is the reason why some liberal philosophers (Galston, Kukathas) have argued to drop the language of autonomy altogether and replace it by tolerance or toleration.14

12 See Bader 2007, 79ff for problems of moral minimalism. Does it mean that different higher, more demanding standards are not ‘morally’ required but only permissible and laudable? Would it inevitably lead to level down existing higher standards instead of ratcheting up lower ones? Is it ‘the most we can hope for’? It may be more than we should ever reasonably expect but, indeed “hope is not the same as expectation, and minimalism draws the boundaries of hope too narrowly” (Cohen 2004, 2). Hence, in my view, we need differentiated moralities depending on conditions and situations. If they allow so (happily ‘emergency’ is not the ‘normal’ state of affairs) we have good reasons to require more if we do so in the right way, that is by voluntary means such as persuasion, interest, good practical examples and ‘seduction’ instead of ‘forcing people to be free’ by imposing legal sanctions backed with the threat of violence. 13 See my criticism of the ‘reasonability-restraint’ arguments: Bader 2008, 132. 14 Yet the same tensions and ambiguities are reproduced in the language of toleration itself: the intolerant sting in the tale of respect- or recognition- or praise-of-diversity-toleration (see my criticism: Bader 2011 and 2011b).

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II Associational and Collective Autonomy In order to correct the one-sided short-sightedness of individualist liberals it is important to spell out that LDC clearly does not only guarantee and protect individual autonomy but also collective and associational autonomy. Phrased differently, autonomy and toleration are basic principles of any “tolerable liberalism”.15 It is rather uncontested among ‘liberals’ that the collective dimensions of autonomy covers families, all kinds of voluntary associations, non-profit organizations, religious organizations but also for-profit-organizations (from SME’s to TNC’s) and states. It is intended to protect them from morally ‘illegitimate’ and illegal external interventions into their internal affairs by a whole variety of actors ranging from other individuals, groups, organizations, the state to other states by assigning them ‘collective rights’ that are not reducible to ‘individual rights’. It is quite telling that individualist liberals such as Brian Barry accept this without problems for the ‘nation’ or the ‘nation-state’ (the shield of ‘statesovereignty’) but reject any ‘group-rights’ and (different degrees of) collective autonomy for all other ‘cultural groups’ (in the sense of ‘communities of cultural practitioners’).16 On reflection, it should be evident that some minimal degree of cultural diversity is needed to make the idea of distance – or individual autonomy as ‘revisibility’ – thinkable, and actual choice amongst competing ways of life or varieties of the Good Life possible, even if this choice is never/can never be completely undetermined or free. In addition, the upbringing within a specific cultural tradition belongs to the requirements of understanding from the inside what cultural practices mean and then can be ‘endorsed from the inside’. Without such an understanding cultural choices would be meaningless or completely superficial. One of the most important conditions for the emergence, continuation and flourishing of cultural traditions (e.g. the cluster of ‘indigenous’, linguistic, ethnic, national and religious cultural practices) is a certain minimum of collective cultural autonomy guaranteeing that the community of cultural practitioners has the chance to retain or develop their practices relatively independent from external attempts to control, manipulate, suppress, assimilate or impose changes or other cultural practices by a whole host of collective actors, cultural majorities and their organizations, ‘their’ states and foreign states amongst them. As in the case of individual autonomy, this independence from external control is crucial. In this contribution I focus on ‘ethno-religious’ communities.

15 Levey 1997, Williams 2005. 16 See Barry 2001, my criticism: Bader 2007b.

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Before discussing important distinctions in degrees of autonomy and legitimate intervention between voluntary associations and involuntary relations of all kinds as well as involuntary membership (see section III on the comparative power of the ‘shield of privacy’ or non-intervention), let me state two general hypotheses. First, neither ‘absolute’ collective and associational ‘autonomy’ (and vice versa ‘absolute deference’ from administrations and courts), nor unlimited external intervention (e.g. by the state or by other states or the UN) are plausible interpretations. ‘Absolute Privacy or Private Property’ as well as ‘Absolute StateSovereignty’ cannot be plausibly defended, at least for quite some time now, but this does not mean that outsiders, particularly the state, would be legally or legitimately allowed to overrule and intervene into everything with an appeal to violations of ‘individual autonomy’ and/or radical non-discrimination (particularly on the basis of sex and gender), as is increasingly the case in Europe under the spell of aggressive, individualist secularism, but not so in America.17 The ‘tensions’ have to be acknowledged as inherent in LDC and the ‘dilemmas’ have to be addressed instead of neglected. Second, voluntarism is a matter of degree even in ‘freely chosen’ relations and associations and the respective degrees of freedom of entry and of exit matter greatly when it comes to allowable and legitimate external interventions (see section IV).

III Tensions Between Individual and Associational/Collective Autonomy The history of early modern and modern states is full of examples of serious conflicts between individual and collective religious toleration18 but nowadays both freedom of conscience (of belief in ‘private’) and external and associational freedoms of religions (of practices, in ‘public’) are safely enshrined in international and European Covenants of Human Rights and most constitutions. The latter, however, are subject to limitations “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.19 I start by briefly summarizing the ‘limits of toleration’ in cases where the nomos and practices of ethno-religious groups (minority or majority) seriously conflict with minimal morality and the core of criminal law

17 See Foner/Alba 2008. 18 See excellent: Kaplan 2009; briefly Bader 2011, 21–4. 19 ECHR, 2009, 2.

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(III.1) before addressing softer cases of tensions in marriage and divorce law (III.2) and, particularly, with non-discrimination and equal opportunities (III.3). In section IV I try to show that and why associative democracy provides more plausible solutions for such dilemmas compared with the most prominent rival approaches.

III.1 Limits of Toleration and Collective Autonomy Ethno-religiously legitimised practices of caste, bondage, slavery and not guaranteeing legally equal civil and political status for ascriptive minorities are surely incompatible with the most minimalist interpretations of modern freedom, equality and liberal morality. Practices such as sati (immolation of widows following their husband’s death), domestic violence, stranger rape, marital rape, sexual abuse, genital mutilation, honour killing, child sacrifice and severe corporal punishments without due process are incompatible with any minimalist morality that protects the most basic rights to life, bodily integrity and due process guaranteed by international law20, liberal-democratic constitutions, and modern criminal and due process law. Cases in which specific ethno-religious practices as interpreted by orthodox or fundamentalist organisations and their leaders, and by absolutist Free Exercise lawyers, conflict with this core of moral and legal minimalism are particularly serious. These practices are proscribed by minimal morality. Any minimally decent state and particularly liberal-democratic states have the duty to protect individual believers and vulnerable minorities within minorities/majorities against their ‘own’ ethno-religious group, associations, leaders and religious courts. Collective and associational autonomy can never be allowed to shield these practices. Public opinion and liberal-democratic polities should try to convince minorities to change them, and jurisdictions have to prosecute and punish perpetrators. Principles and practices of minimal and minimalist liberal-democratic morality are surely strong enough to legitimise public scrutiny and interference from the outside (by public opinion, by state jurisdiction, by international courts) in order to sanction such practices effectively.

20 ICPR arts. 6.1, 7 and 9.1, 14.1, 15.1.

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III.2 Tensions Between Ethno-Religious Family Law and Modern/Civic Law Modern marriage and divorce law is based on two moral principles: equality between the spouses and free consent – free entry and free exit. It took Catholic, Orthodox and Protestant churches centuries before they, reluctantly, accepted these principles and recently conflicts involve mainly orthodox interpretations of Hindu, Muslim, and Jewish family law. In these cases, the dilemma is clear: religious family law plays a crucial role in the reproduction of the nomos of groups (particularly: control over membership and the role of women). However, at the same time, it sanctions the legal and practical discrimination of women. The way in which this dilemma is recognized and dealt with in International Private Law or the many proposals to soften the harsh choice for women between ‘their rights and their culture’ cannot be addressed here.21 Three conclusions from the contested debates seem plausible to me. First, ‘free entry’ or consent rules out ‘marriage under duress’ but not all kinds of ‘arranged marriages’ and ‘free exit’ minimally means that ‘divorce’ is not legally or conventionally blocked even if it is not as open as ‘favor divortii’ suggests. Second, one should carefully avoid importing specific forms of marriage and family life into international family law, such as ‘the modern nuclear family’ or ruling out new forms of ‘same-sex marriage’ or civic pacts of solidarity on the one hand, all forms of polygamy (including polyandry!) on the other hand.22 Third, and in this contribution most important: Compared to conflicts with the core of criminal law, in these cases interference from the outside can be much more limited and the space for legitimate group autonomy can be much broader, without neglecting the basic rights of women.23

III.3 Autonomy of Ethno-Religious Associations/Organizations Versus Non-Discrimination and Equal Opportunities Racist, sexist, genderist and all other ascriptive discriminations are now widely perceived as morally wrong and proscribed by international, European, constitu-

21 See Shachar 2001, Bader 2007, 150ff and Bader 2009 for some attempts. 22 See Zurn 2009 for PCGs. 23 Bader 2007, 151.

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tional and criminal law. Yet, it is also widely accepted that ascriptive exclusion and discrimination – however morally wrong – have to be legally tolerated in some cases, depending on the goals of associations (broadly understood) and the degree of voluntariness of membership.24 Again, this is not the place to discuss this tension in depth or go into the exploding legal and philosophical literature. In my view, the following conclusions can be plausibly defended. With regard to the kinds and goals of relations and associations it is broadly accepted that intimate relationships should be treated differently to strictly private clubs, churches and FBO’s, profit organizations and political parties. Ascriptive discrimination and exclusion from close interpersonal relations25 cannot be effectively prevented by law and seem also morally more legitimate. An inherent side effect of the shield of intimacy and privacy in this regard is the protection or toleration of ascriptive discrimination (but certainly not of violence or marital rape, see above). Yet the shield of privacy loses its prima facie legitimacy the farther the goals and practices are removed from intimacy, as in religious core-organizations, faith-based organizations in education, healthcare and care for children, youngsters, elderly, or disabled persons. In all these cases defining the organizations’ goals and activities as ‘private’ does not close but open the debate, and the following general arguments are relevant: (i) Are the organizations religious, non-profit or profit organizations? (ii) Are the ascriptive discriminations/exclusions explicitly connected to the core of beliefs and practices? (iii) Are the activities/functions central or peripheral to faith? (iv) Do they unduly disadvantage outsiders? (v) Do they protect minorities or majorities?26 In any case the burden of proof for exemptions from anti-discrimination laws and regulations and collective labour agreements should rest on the claimants and is fully open to public criticism and scrutiny. The farther one moves from religious core organisations and core activities, the weaker the shield of ‘Free Exercise’ should be and the more legitimate the legal imposition of nondiscrimination and equal opportunity legislation becomes. In addition, it is more legitimate that the standards and procedures of public scrutiny become more demanding.27

24 Bader 2007, 142ff. 25 Warren 2000, 129. 26 See RELIGARE WP4 for research on law and jurisprudence in relevant European Countries, the ECJ and ECtHR: http://www.religareproject.eu/publications. 27 Bader 2007, 148.

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IV Associative Democracy: A Realist Utopia? A good way to discuss options to address the tensions between individual and collective/associational autonomy is making use of Hirschman’s analysis of exit, voice, and loyalty.28 Increasing the freedom of entry and of exit are the most prominent strategies to alleviate the plight of vulnerable individuals and minorities.

IV.1 How to Increase Freedoms of Entry? Radical libertarians take free and informed consent by adults to enter groups/ associations and free exit rights for granted, neglecting actual degrees of freedom of entry and actual exit options. Associative Democracy (AD) as a moderately libertarian approach can avoid these fictions of voluntariness29 which may be harmless only in ideal worlds. AD does not only stipulate free entry and exit, but tries to achieve higher actual degrees of freedom. It takes differences in the degrees of voluntariness between and within minorities into account. Children and minors are obviously the most vulnerable category because their freedom of entry is zero, they are the main objects of intergenerational transmission lacking (but progressively gaining in) agency, and they are captive targets30 where exit is not impossible but very difficult to achieve. A freedom of entry or a ‘freedom to choose one’s parents’ is either impossible or can only be approached by ‘choosing one’s foster parents’ (see IV.2). For adults’ entry into and remaining within cultural groups/communities is only rarely the result of free and voluntary decisions, as it can be with religious communities and associations in cases of conversion or anabaptism and with switching gender or linguistic identities and belongings. Most people are either born into or raised in cultural communities and their involuntary belonging may be constitutive for their cultural practices and self-definitions.31 What, if anything, can AD do to make entry more free for adults and maturing kids? Three options are important, the first one (‘education to autonomy’) is a direct, but contested one; the other two are indirect ones.

28 1970, see Warren 2001, 103–109, and 2011; Bader 2005, 332–5, and 2007, 218f; Borchers, this volume. 29 See above section I versus too demanding conceptions. 30 Reich 2005. 31 Eisenberg 1995, 177–83; Weinstock 2005, 234.

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First, educating to individual autonomy seems the most direct and effective option but it is clearly not without tricky problems and trade-offs for two reasons. First, the prospective individual autonomy of maturing students may or actually can conflict with ‘parental authority’ (see below) and protected ‘freedoms of education’, including associational freedoms of education for ethnoreligious minorities. Second, an interculturally defensible basic interest of children developing into autonomous adults32 should be rather minimalist in order to prevent the imposition of fairly thick, perfectionist liberal or republican concepts of autonomy criticized above (Section I, page 3ff). How both problems can be plausibly addressed is, again, far beyond the reach of this contribution33 but two positions are not plausibly defensible: ‘no exposure’ (as in the US Supreme Court case Mozert) neglecting basic interests of children, or learning autonomy in state schools only overriding any legitimate freedoms of education. Second, AD is nourishing the pluralization of membership in many overlapping, crosscutting and competing associations and organizations in all societal fields, but particularly also inside ethno-national communities in order to prevent unwelcome lock-in effects.34 By doing so, it does not only increase actual exit options but can also considerably increase the range of freer entry into alternative associations while still ‘belonging’ to the same cultural group. Third, the whole institutional design of AD, its specific policies and its public propagation, intentionally and explicitly promotes the ‘moral uses of pluralism’ – real exit options and overlapping memberships – but it does not so in a direct way by trying to impose (by law and threat of force) ‘autonomy’, ‘free choice’ and ‘free exit’ on all non-liberal communities. It rather stimulates the development of a culturally (and organizationally) highly diverse society that provides people with a broad range of cultural options and leaves them free to make their choices. But it also takes into account that living in such a society has an impact on such groups. Even if a liberal state tries to let them live alone as much as possible, they and their children cannot be completely shielded from ‘exposure’ to the surrounding society and culture that are fairly radically at odds with their own culture. This fact alone inevitably influences their cultural and religious practices, whether they follow fairly radical isolationist strategies or not. It may lead to an unrecognised, slow acculturation or, conversely, to a reactive, intentional purification of their ‘traditional’ ways of living.

32 Reich 2005; Shapiro 1999, 85–88. 33 See Bader 2007, chapter 10 for my own proposals. 34 Rosenblum 1998.

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IV.2 How to Increase Freedoms of Exit? Our options to increase freedoms of entry are fairly limited and the inherent dilemmas should not be underestimated. Compared with entry, it is much easier to develop policies stimulating higher degrees of free exit, the main reason why many authors bet on freedom of exit.35 The other reason is that exit, even if it may be very costly, is much less demanding and elitist than voice (see Section IV.3). Exit, first of all, presupposes the formal possibility to leave a relationship, a group, an association or organization or institution. In developed legal systems this has to be codified as a right to exit: a right to divorce; a right to leave a religious community or organization (apostasy or conversion) or ethno-national communities in cases that involuntary belongings become objected nonvoluntary membership; a right to end the membership in all more or less voluntary associations and organizations of all kinds; and of crucial importance: a right to emigration. It is important to note that – at least from a liberal-democratic point of view – there is, and there should be no symmetry between these individual exit rights and corresponding powers of other individual or collective actors to expel: no unilateral right to end a marriage (e.g. repudiating a wife by talaq), no ‘right to ostracize’ (or throw out) from communities and, particularly important, also no ‘right to expel or expatriate’ though all these powers are practiced more or less widely and even legally within and by states with LD-Constitutions.36 Wherever these rights to exit are not formally and practically guaranteed, any defensible notion of freedom is deeply threatened.37

35 See Rosenblum 1981, 101–03, Warren 2001, 99–103, Galston 2002, 55f, 62, 122f, Hirst 1994; Bader 2001 and 2007, 218f). Borchers rightly remarks that the details and the costs of exit as well as the implications have not been discussed in enough detail yet (Borchers this volume). 36 Unilateral dismissal or expulsion from voluntary associations and organizations have to be treated differently and can be legitimate in all cases of serious violations of explicit rules (statutes) or conventional practices. 37 Two examples: First, “in cases where religions forbid exit and impose serious sanctions (e.g., corporal punishment or the death penalty, which go far beyond mere expulsion and ostracism), on dissenters, heretics and apostates, liberal states have to guarantee their individual religious freedoms by all prudent means (from persuasion to sanctions). In cases where states back these punishments by law (as is still the case in some Muslim states), suprastate organisations have to try to prevent and sanction these violations of basic rights by all appropriate means” (Bader 2007, 212). Second, in cases of labour: wage labour turns into indentured or slave labour; in cases of prosecution and punishment of emigration, statemembership which is, contrary to ideal contract theories, not based on free consent (states are

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Most people, however, agree that banning punishment and trying to guarantee the formal right to exit is only a necessary but not a sufficient condition for providing and strengthening actual exit rights and exit options or, in other words, to turn a merely ‘formal right’ into a “realistic right of exit”38 in order to make individuals more “substantively free”.39 In this regard, at least three serious problems have to be addressed: first, exit may be (made) so costly that it is de facto impossible or very harsh (exit costs), secondly, it requires specific personal capacities and, thirdly, there have to be available exit options: other relationships, associations, organizations, other states, e.g. the ‘right to emigrate’ has to be substantiated by a ‘right to immigrate’, if not into a specific state then at least in some other state. Exit costs may include high identity- or psychological costs, social costs, and material costs.40 Actual exit-decisions do not only have to take into account and overcome these serious costs, they are also difficult because they require “knowledge, capacity, psychological, and fitness conditions”41 or personal capacities. Knowledge, all kinds of practical (including social, rhetorical and intellectual) skills, and information on and imagination of alternatives partly depend on the relations one wants to leave – unintendedly blocking or nurturing them – but the amount of courage, determination and trust needed to believe that one can ‘make it’, calculate and ‘take the risk’42 and surmount all these hurdles is a highly personal capacity. These distinctions could form the basis of a more extended theoretical discussion of questions such as: which of these costs are ‘necessary, unavoidable or intrinsic’ and which could be avoided? Who has inflicted avoidable, external costs and can be made, at least partly, responsible for them? Who has a moral responsibility to bear which unavoidable and which avoidable costs, to compensate, remedy or help?43 Here I bracket all these debates in moral philosophy and

involuntary organizations (Anstalten mit Zwangsmitgliedschaft), turns into life-long imprisonment. 38 Okin 2002, 2005. 39 see also Borchers and Vitikainen, Introduction to this volume. 40 see Galston 2002, Bader 2007, 212f, for an extensive treatment. 41 Galston 2002, 123. 42 Usually one does not find a sober and distanced ‘calculation of cost and risks’ or a “well-informed choice among realistic options”, but more something like a threshold passed: ‘it’s enough’ or ‘more than enough’ and ‘I can’t take it any longer’. 43 Here I confine myself to three remarks: First, Kukathas’ libertarian argument that the burden of costs is solely an affair of the individual is not only harsh because it allows ‘unlimited costs of exit’, it undermines any plausible exit option and by this also the practical value of exit rights. Second, most of the ‘identity costs’ and quite some ‘social costs’ are unavoidable and it

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focus instead on what AD can do to ameliorate the plight of exit by briefly discussing some examples. So what can AD do to reduce exit costs and by that increase actual or substantive freedoms of exit? First, guaranteed access to the means to satisfy basic needs of subsistence and social security, preferably by way of a universal, individualised basic income not only for citizens or nationals but also for all effective residents actually living in a country for some years whether regularly or irregularly. Such a basic income scheme effectively reduces some of the most urgent material exit costs and may also be far less bureaucratic, intrusive and even costly than statist welfare arrangements, although AD is compatible with other institutional solutions. In particular it may strengthen the exit options of immigrant women considering divorce whose residence title and social security claims often depend on male immigrants. Furthermore, it promises to address extreme poverty of minorities within minorities and particularly of children44, and also of minorities more generally. Second, AD systematically stimulates and seeks to increase open access to a whole variety of public, semi-public, private service providers (in education, health and all varieties of care) through a weighed voucher system, combined with direct public financing which is seen as an obligation of any decent liberal state, particularly in regard of caring for basic needs. Public funding is seen as a duty of the state but the state should not have a monopoly in providing such services. Such a scheme creates opportunities for minorities to run their own services in a less inegalitarian way. However, such access also increases exit options for vulnerable individuals into public or semi-public associations and opens avenues for exiting dissenting minority groups to set up their own services. Access to public protection and service is crucially important if the basic needs and rights of women and minors – their rights to security and to subsistence, and additionally to basic education and basic healthcare – are threatened. For women (whether majority or minority!) this means that the liberal state has basically two

cannot be the responsibility or the task of others or the state to compensate them. Even if, in principle, all material or economic costs could be compensated, this is neither required nor fair nor realistic. Yet moral minimalism requires that basic needs have to be cared for for those unable to do this by themselves and, in my view, a decent liberal-democratic state has the obligation to do so (e.g. by a minimum income guarantee) for all its citizens and residents (see below). Third, it may be legitimate for certain minorities to make exit very costly in cases of common property but even then it is possible to work out options safeguarding high degrees of communal autonomy without completely sacrificing individual exit options (see Spinner-Halev 2000, 77f). 44 Rightly highlighted by Reich 2005; Shapiro 1999, 105–06.

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obligations: fighting violence inside the family by strictly applying criminal law45 and creating or financing and protecting shelters for battered women.46 Among many moral philosophers and in many jurisdictions there is a consensus that basic needs and interests of children and minors have to be protected by a liberal state. Parental authority can be legitimately overruled when their children’s basic interests are at stake but, at the same time, it is assumed that normally parents are the better guardians of their best interests before they reach maturity.47 Clearly, minors should not be treated as the property of their parents or of their group. Parents and other legal guardians have to behave as trustees or social stewards of their children.48 ‘No single agent or group should assume total authority over the lives of children’.49 Obviously, many tricky problems have to be addressed here. I mention three of them: (i) The distinction between basic and best interests is less clear-cut and more contested than it may seem prima facie. According to the German Constitution “care and education are the natural right of parents” – not as a freedom right but in order to protect the child or as fiduciary right or treuhänderische Freiheit: their prime obligation (Art. 6. 2) under the ‘supervision of state and society (staatliche Gemeinschaft). In case of ‘failure’ and ‘neglect’ (Verwahrlosung, Art. 6.3) and based on legal regulations the state has to act as ‘sentinel’ or ‘guardian’ (BverfGE 24 and 60) but is allowed to exclude parents or legal guardians (‘Erziehungsberechtigte’) only if the child is “continuously and seriously threatened in his bodily, mentally or psychic well-being”. Most prominent examples are sexual abuse, domestic violence, grave emotional abuse such as humiliation or religious brainwashing, neglect or lack of basic hygiene, alcohol addiction or drug abuse by parents. Yet, it has to be specified per case how serious these are. (ii) It is certainly no easy task to find a proper and workable distribution and allocation of the competing authorities and obligations potentially or actually involved: maturing children, parents, cultural minorities, state-adminis-

45 And changing predominant patriarchal and male bias in criminal law, e.g. by prosecuting marital rape. 46 See also Holzleithner, this volume. 47 See above section I; see Bader 2007, 211f. and 266ff. for the tensions between parental authority and the developing maturity of minors, see Fischer, this volume. Even beyond the requirements of civic minimalism, parental authority cannot and should not be ‘supreme’. See the appropriate balance established by Justice La Forest of the Canadian Supreme Court (in B (R) v Children’s Aid Society of Metropolitan Toronto) quoted in Glenn and Groof (2002, 150). 48 Hirst 1994, 202; Shapiro 1999, 68–84. 49 Reich 2002a, 3.

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tration (youth-welfare departments etc.) and jurisdiction, and international agencies (like UNESCO and ILO), and NGOs. Both the distribution of responsibilities as well as the actual balancing of competing principles and the actual decisions vary widely among different countries as the most superficial comparison of Sweden (fairly extensive external supervision and intervention by state agencies) and the US vividly demonstrates.50 (iii) Obviously, again, different cases involve differential requirements and so does increasing maturity of youngsters (see above) and the specific position of ethno-national or religious minorities, particularly when it comes to outplacements (foster parents or state-welfare institutions) or taking children out of native, tribal and isolationist families and groups.51 The distribution and allocation of authorities in this case is a special instance of the general institutional design of institutional pluralism, which favours and stimulates the distribution of authorities, powers, and sovereignties.52 AD provides better opportunities to balance the conflicting interests of the relevant stakeholders, particularly in cases of ethno-religious minorities because, on the one hand, it recognises the interests of parents and cultural minorities to transmit religious and cultural ways of life to the next generation. These interests are met through the guarantees of parental religious freedoms and through collective and associational freedoms (see section II). However, on the other hand, AD recognises the basic needs and rights of minors. They have to be protected from parents, minorities (and majorities!) who neglect their basic interests, and from external agents claiming to represent their ‘best’ interests. Accepting overlapping authorities and competing stakeholders provides opportunities for fair and sensible deliberations, negotiations and balances in order to close the under-determinacy gap and find out what the basic rights and interests to healthcare or education include in specific contexts with regard to specific minorities, and by which means and by which external agent(s) they can best be guaranteed. It also increases sensitivity to the fact that morally permissible solutions (e.g. with regard to different forms and degrees of external scrutiny and intervention) may look differently, depending on types of minorities, on the one hand, and different societal contexts, welfare regimes and policy traditions, on the other hand.

50 See Shapiro 1999 for a clear demonstration of the different weights in different countries as well as the historical shifts within the US. 51 The consequences in these cases are far more serious than in other ethno-religious minority cases, making outplacement, in my view, a morally and prudentially almost impossible option. See for Dutch cases of international parental child abduction; Rossum 2010. 52 See Introduction.

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IV.3 Associative Democracy and Limits of Liberal-Democratic Congruence As a first, rather abstract and general statement we can conclude that the lower the degree of freedom of entry and, particularly of exit, the more important are, on the one hand, external scrutiny and intervention and, on the other hand, voice. Voice is, as we know, the main option in organizations where exit is legally or de facto blocked (in closed institutions or Anstalten such as prisons and psychiatric clinics, in states). Yet we also know that voice in all cases in which exit is possible requires a considerable degree of loyalty53 and, more generally, voice requires quite some skills.54 If plausible, these arguments show a structural dilemma for all approaches that try to ameliorate the position of vulnerable minorities inside minorities by giving them more voice. This is the preferred option of republicans, (empowering) deliberative democrats and feminists.55 In my view, AD is more sceptical for two reasons. First, state-imposed policies of liberal-democratic congruence are, as I have tried to show above, incompatible with meaningful notions of associational autonomy, so AD has to resist not only the emphatic liberal temptations but also this democratic temptation. Deveaux, for one, acknowledges [an] important conundrum. In requiring groups to democratise their own internal political processes, and to allow dissenting members to have a role in decision-making, do we not fail to respect their collective, cultural autonomy? And do we not violate a group’s own conceptions of legitimacy – which … are often explicitly anti-democratic?56

However, she tends to play down the costs. Second, voice (internal democracy) is most important and urgent in cases where exit is impossible or extremely costly.57 Examples include cases of illiberal and anti-democratic groups and organisations that silence the voices of vulnerable minorities (e.g. of feminist Catholics) who seek liberalisation and democratisation of their respective cultures, religions or organisations, as well as cases in which oppositional leaders are threatened with excommunication or are excommunicated or ostracized. It would be foolish to claim that AD has a ready-made

53 See for trade-offs between exit and loyalty: Bader 2007, 218f. 54 See above for the more demanding ‘elitist’ bias in those theories of democracy that trust mainly on voice and participation. 55 Such as Okin 2005, 72ff; Deveaux 2005, 343, 348f; Moore 2005, 283; Phillips 2005. 56 See Deveaux 2002, 25, slightly changed in 2005, 361f. 57 See Warren 2011.

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answer to this dilemma. This particularly severe irony makes it all the more understandable why AD focuses on exit. In all other cases, however, in which less isolationist minorities accept public money and other privileges, or want to be represented in the political process, AD provides more opportunities for institutionalised voice compared to rival democratic theories. AD may eventually contribute to enhance voluntary endorsement of internal democracy without imposing it on minorities that do not want to make use of its institutional opportunities. It also explicitly requires that the relevant stakeholders (including minorities within minorities) be included in negotiations and deliberations. Compared with traditional religious (NL) or linguistic (Belgium) pillarisation and with neo-corporatist settings, the relevant stakeholders cannot solely be the entrenched, conservative organisations and leaders of religious majorities or of minorities. In these cases, AD and modest versions of deliberative democracy join hands.58 In my view, democratic government should impose minimal requirements of even-handed representation to prevent illegitimate exclusions. Let me conclude by summarising how AD may help to resolve the problems of accommodation of non-liberal and non-democratic practices of religious minorities and the plight of minorities within these minorities. Various theoretical traditions share a more or less pronounced institutionally pluralist approach to accommodate legitimate needs and claims of different minorities: liberal nationals59 and multiculturalists60, liberal communitarians61, communitarian liberals62, structural accommodationists63, liberal pluralists64, and ‘joint governance approaches’.65 My AD proposal explicitly favours power sharing in systems of multilevel governance. It starts from differentiated moral

58 Deveaux 2005, 353–60, for negotiations, consultations and hearings in the ‘Harmonization of the Common Law and the Indigenous Law’ sponsored by the South African Law Commission. In comparing experiences of Parsi, Christian and Muslim personal law reform in India, Mahajan has shown that voice is not always necessary (the Parsi case), that it has to be organised (2005, 109, the Christian case) and that the status of minority community members as citizens has to be secure (the case of the failure of attempts to make personal Muslim laws more just for women). See Shachar 2005 and Bader 2009 for the poor consultation process in the attempts to establish a private Islamic arbitration tribunal (Dar-ul-Quada) in Ontario. 59 Kymlicka 1995, Miller 2007. 60 Margalit 1996, Raz 1998. 61 Selznick 1992. 62 Etzioni 1996. 63 Glendon and Yanes 1991, McConnell 1992. 64 Galston 2002. 65 Shachar 2001; Swaine 2003, 2005; Holder 2005; Moore 2005.

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and legal standards and explicitly takes into account many levels of governance and of government, many actors (individuals; families; minorities and their associations and organisations; minorities within minorities; local, provincial and federal government; international polities like the EU and the UN; NGOs and SMOs) and a broad policy repertoire. Instead of betting on one strategy exclusively, e.g., external control and intervention (as classic liberals and republicans); or internal voice (as deliberative democrats); or voluntarism and leave them alone/self-governmental (as libertarians), AD prefers a minority-, contextand issue-specific mixture of policies. This includes leaving minorities alone as much as possible (maximum accommodation) and making use of external legal intervention only to protect the basic needs and rights of individuals and vulnerable minorities inside minorities. Policy repertoires also include applying stricter standards of public scrutiny and external control in cases when minorities ask for legal support, subsidies or other privileges from the state. In addition to legal sanctions backed by the (threat of) use of violence, governments (and obviously all other actors like NGOs, parties, media lacking this specific means of state policies) should make use of non-violent sanctions, positive inducements and persuasion, wherever prudent. The choice of appropriate policies depends upon the type of minority, the issue-specific conflicts of predominant practices with minimal or with minimal liberal morality and law, the specific goals of associations, and the degree of voluntariness and vulnerability of minorities.”66 Space prevents the comparison of the specific details of this approach with other approaches that share most of its basic tenets. However, I think that liberal-democratic institutional pluralism, ‘joint governance’ and AD in particular provide the best opportunities to deal with problems of the protection of minorities and minorities within minorities. Yet it seems only fair to say that none of the available approaches can adequately solve the dilemmas of protecting vulnerable minorities within illiberal, anti-democratic and isolationist minorities. Here, it is most difficult to find morally defensible balances between individual and associational autonomy and external interference. What we can and should do is guarantee basic needs and rights – and this presupposes a fairly strong state – increase real exit options and try to strengthen the voice of insider minorities by means that do not override associational autonomy – and this means a fairly ‘thin’ state. For the rest, we can only hope that the fact that minorities (are forced to) live in and have to cope with modern societies will do some work in the long run. Requiring less (e.g. by granting full sovereignty)

66 Bader 2007, 220f.

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would sacrifice vulnerable minorities. Requiring more would impose specific liberal ways of life and sacrifice meaningful free exercise and associational autonomy.

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Glendon M.A. and Yanes R.F. (1991), “Structural Free Exercise”, In: Michigan Law Review 90: 3, 477–550. Glenn R. and Groof J. de (2002), Finding the Right Balance. Freedom, Autonomy and Accountability in Education vol. I. Utrecht. Hirst P. (1994), Associative Democracy. Cambridge. Holder C. (2005),“Self-Determination as a Basic Human Right”, In: Eisenberg A. and Spinner J. (eds.), Minorities Within Minorities. Cambridge, 294–318. Kymlicka W. (1995). Multicultural Citizenship. Oxford: Oxford University Press Levey G. (1997), “Equality, Autonomy, and Cultural Rights”, In: Political Theory 25/2: 215–248. Mahajan G. (2005), “Can intra-group equality co-exist with cultural diversity?” In: Eisenbergand A.Spinner J. (eds.), Minorities Within Minorities. Cambridge, 90–112. Margalit A. (1996), The Decent Society. Harvard University Press, Cambridge Mass. McConnell M. (1992). ‘Accommodation of Religion’. In George Washington Law Review 60: 3, 685–742. Miller D. (2007). National Responsibility and Global Justice. Oxford: Oxford University Press Moore M. (2005), “Internal Minorities and Indigenous Self-Determination”, In: Eisenberg A. and Spinner J. (eds.), Minorities Within Minorities. Cambridge, 271–293. Okin S. (2002), “Mistresses of Their Own Destiny”, In: Ethics 112/2: 205–230. Okin S. (2005), “Multiculturalism and Feminism: No Simple Question, No Simple Answers”, In: Eisenberg A. and Spinner J. (eds.), Minorities Within Minorities. Cambridge, 67–89. Phillips A. (2005), “Dilemmas of gender and culture”, In: Eisenberg A. and Spinner J. (eds.), Minorities Within Minorities. Cambridge, 113–134. Phillips A. and Dustin M. (2004), “UK initiatives on forced marriage: regulation, dialogue and exit”, In: Political studies 52, no. 3, 531–551. Raz J. (1998), “Multiculturalism”, In: Ratio Juris 11/3: 193–205. Reich R. (2002), Bridging Liberalism and Multiculturalism in American Education. Chicago. Reich R. (2005). ‘Minors Within Minorities’. In: Eisenberg A. and Spinner J. (eds.) Minorities Within Minorities. Cambridge: Cambridge University Press, 209–226. Rosenblum N. (1998), Membership and Morals. Princeton etc. Rossum W. v. (2010), ‘The clash of legal cultures over the ‘best interests of the child’ principle in cases of international parental child abduction’, In: Utrecht Law Review 6/2, 33–55. Selznick P. (1992). The Moral Commonwealth. University of California Press. Shachar A. (2001), Multicultural Jurisdictions. Cambridge. Shachar A. (2005), “Religion, State and the Problem of Gender”, In: McGill Law Journal 50, 49–88. Shapiro I. (1999), Democratic Justice. New Haven and London. Spinner-Halev J. (2000), Surviving Diversity. Baltimore etc. Swaine L. (2003), “A Liberalism of Conscience”, In: The Journal of Political Philosophy 11(4): 369–391. Swaine L. (2005), The Liberal Conscience. New York. Terlaak E. (2011), Branding and Liberal Autonomy. PhD thesis, University of Amsterdam. Defended 18. May. Warren M. (2001), Democracy and Association. Princeton and Oxfords. Warren M. (2011), “Voting with Your Feet: Exit-Based Empowerment in Democratic Theory.” American Political Science Review 105/4, 683–701. Weinstock D. (2005), “Beyond exit rights: reframing the debate”, In: Eisenberg A. and Spinner J. (eds.), Minorities within Minorities. Cambridge, 209–226.

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Williams M. (2005), “Tolerable Liberalism”, In: Eisenberg A. and Spinner J. (eds.), Minorities Within Minorities. Cambridge, 19–40. Zurn C. (2009), “Derecognition as a Response to Misrecognition Generated by Social Institutions”. 23. June, paper: Conference in Belfast; forthcoming in: S. O’Neill, (ed) 2011.

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Minors and the Exit Option Under German Law The right to exit, as understood from the liberal standpoint, is supposed to help solving the conflict of interest between granting group rights, which allow for the self-determination of ethnic and religious minority communities, and the ensuring of individual rights of members of these groups.1 According to many, however, the right of exit fails to give adequate protection, especially for those most vulnerable within cultural or religious groups. The literature regarding the need for substantial or realistic rights of exit has focused mainly on the situation of women2, although some work has also been done from the perspective of other vulnerable groups, such as minors3 and sexual minorities.4 In this essay, I focus on the situation of legal minors and their right to exit under German law. As it stands, the German legal system enables minors to exit their communities/ parents, but the avenues for exit are constrained by several factors. My discussion covers several facets of the issue, with a primary focus on an examination of the liberal state interfering with parental rights in order to protect the wellbeing of the minor. The intervention with parental rights finds its basis on the deviation of the ideal socialization from the perspective of the dominant culture and, hence, sets up a battleground over social norms. Further, I explore the role that a minor herself can play in gaining legal exit, and show some of the insufficiencies of the current situation as well as possibilities for the minor to play a more active role in the process of gaining exit. By exploring, on a practical level, the problems and promises that the right of exit holds for the unique situation of minors under German law, I hope to set some grounds for a

1 Perhaps two of the most influential thinkers in this discussion, Will Kymlicka and Chandran Kukathas, have both argued that the right to exit is grounded in liberalism itself. Kymlicka explains: „liberalism is committed to (perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance” (Kymlicka 1992, 146); Kukathas similarly defines a liberal as one who „[…] emphasizes that no one should be forced to accept any particular ideal of the good life” (Kukathas 1992a, 108). 2 See e.g. Susan Moller Okin 2002; Shachar 2001; Spinner-Halev 2000; Phillips 2007, esp. ch. 5. 3 For example, Rob Reich claims that “minors within minorities are the most disadvantaged and therefore the most vulnerable to the underbelly or unintended consequences of […] multicultural politics” (Reich 2005, 209). 4 E.g. Levy 2005; see also Holzleithner, this volume.

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specifically German debate on the right of exit that will, nevertheless, be based on the broader theoretical debates on multiculturalism, irrespective of the national law.

Socialization of Minors in a Multicultural Society Any community, be it the larger liberal society or the smaller cultural or religious community within this society, has an interest in the socialization of its minors into the prevalent norms and values of the community. In Germany, there is no cultural right which allows minorities to establish their own schools, to substitute state mandated education in order to accommodate and educate their children in accordance with their cultural values.5 On the contrary, every child living in Germany is subject to attend state mandated schools.6 This may exacerbate the experience of the minor in being caught between two potentially very different systems of social norms: that of the education received in state schools, and that of the norms inculcated by the traditional home culture. As Rob Reich points out: “Beyond socialization within the home, schools play a crucial role in initiating children into the norms, beliefs and rites of the larger group, forming and deepening their cultural identities in the process.”7 Whereas the mandatory state school system may increase the chances of the minors to successfully integrate into the mainstream society, the existence of two potentially conflicting norm systems also puts a burden on the children of cultural or religious minorities in Germany as they have to learn to adapt to and to negotiate between these different, often competing/contradictory social norms. As the constitution of Germany believes that the end result of raising a child should be self-reliant and independent members of society, the natural conflict between teenagers and their parents is increased during adolescence.8 This is all the more exacerbated when parents suppress the individual emotional and spiritual development of the child because of their traditional values. As an

5 Robbers 2010, Art. 2 marginal note 222. 6 The federal structure of Germany has given the cultural sovereignty to the federal states see Art. 30 GG; therefore, state-mandated school attendance is written into each state constitution eg. Art. 30 Landesverfassung der Freien Hansestadt Bremen. 7 Reich 2005, 210. 8 Coester 2009, § 1666 marginal note 151.

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example, let us take a case, decided by a German family court in 2003, of a 16year-old teenage girl from Yemen.9 In 1997, a young girl arrived in Germany with her family as a political refugee from Yemen. While in Germany, her parents continued to enforce strict fundamental Islamic values on the girl and her sisters as they did in Yemen. She and her older sisters were not allowed to have friends, to use make-up, to own a cell phone or a purse. When she left the house, her parents insisted that she wore a headscarf. Because the parents also objected to compulsory education for girls, they prevented their daughter from doing her school homework. To enforce these rules, the girl endured repeated physical abuse, proven by medical records, as well as emotional violence, having been frequently insulted. The case was brought in front of a family court by a youth welfare office after the girl had ran away from home several times, and finally refused to return to her parents altogether. Whereas the courts did, in this case, grant the girl ’exit‘, the process for such a decision was far from straight forward.10 In what is to follow, I will look at some of the obstacles as well as possibilities for a minor, under German law, to utilize the ’right of exit‘ in order to escape the influence of her fundamental religious upbringing.

Barriers for Minors to the ’Exit Option‘ For both minors and adults, the realistic right of exit requires several conditions. First of all, the main prerequisite of the existence of “a wider society that is open to individuals, wishing to leave their local groups”11 must be in place. To exit, the exitor must have somewhere to go. Also, the social costs for an individual who decides to leave her group have to be acceptable.12 In some cases, the minority members may be “so completely committed to their respective faiths, and ignorant of alternatives, that the idea of changing faiths or

9 Amtsgericht Korbach 2003 Korbach, 1497. Although this case is from the background of arab-Islamic world, the same situation could also occur with a fundamental Christian minority or any other illiberal community. 10 I will return to the actual decision of the court later. 11 Kukathas 1992a, 134. 12 E.g. Reitman 2005, 193. For problems on cost-terminology, see Borchers, this volume.

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questioning their own fundamental beliefs is beyond contemplation.“13 Choosing to disassociate oneself under such circumstances may lead to an extreme alienation from one’s family and friends. From this point of view, the fear of the “loss of moral support and [of] the sense of belonging and rootedness derived from community”14 poses a ”socio-psychological obstacle“15 to the ‚right of exit‘. Especially relevant for minors is their heavy emotional reliance on their parents, which will pose an additional hindrance to the exit option. Therefore, it should be acknowledged that the right to exit is utilized as the last possible measure to protect an individual’s spiritual and physical well-being, even more so for minors.

Legal Autonomy From the juridical point of view, the question of legal autonomy provides a particularly difficult issue for the minor’s ‘right of exit’. With respect to legal autonomy, the situation of adults and children is fundamentally different. With legal age, adults can enter into contractual agreements on the grounds of their autonomy16, whereas the ability of entering contractual agreements of minors is substantially restricted. Provided that the adults are, at least in principle, capable of economic independence, the costs of their disassociation lie primarily within the realm of the socio-psychological costs of exit.17 Among minors, these socio-psychological costs are, however, almost always conjoined with substantive economic costs brought forth by the minor’s economic dependence on her parents. The legal autonomy of the exitor is fundamental for a person’s survival and economic independence in any capitalist market society, as in the case of Germany and most western countries with a liberal social order. In order to be realistically able to exit one’s former group, the exitor must be able to live independently from her group. To provide for oneself, the person must be able to enter into contractual agreements, for example to take up a job

13 Kukathas 1992b, 677. 14 Reitman, 2005, 195. 15 lbid. 16 Established in the German Constitution through Art. 2 I GG see Starck 2010, Art. 2 marginal note 145. 17 This is not to say that adults could not also encounter economic costs, or that all adults within cultural or religious groups would be de facto financially independent. From the juridical point of view, the situation of adults and minors is, however, fundamentally different as the former are conceived as legally autonomous agents whereas the latter are not.

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or to rent a place in which to live. This highlights a particular problem for minors since their possibilities to enter legal contracts are severely restricted.18 Minors are legally limited in their autonomy by the German legislature because of the presumed inability to fully comprehend the perils of life. For example, under statue § 176 StGB19 it is punishable and forbidden to have any type of sexual contact with children under the age of fourteen, even if the minor agrees to it and no force is exerted. The German legislature presumes that children do not possess the “necessary knowledge of the meaning of sexuality and the social rules of courtship” and therefore are unable to give their consent to a sexual relationship.20 The legally protected interests are the “undisturbed development” of children and the consideration of “their emotional vulnerability and social and psychological development process. ”21 Similar to the criminal code, the civil code (Bürgerliches Gesetzbuch)22 ensures the protection of the economic interests of minors. The German legislature has determined in the civil code §§ 104–113 BGB that children under the age of seven are completely incapable of entering into legal contracts, after which, until they reach the age of eighteen, they are legally limited in their contractual capability. The reasoning behind this is to acknowledge the not yet fully developed ability of minors to comprehend the perils of contractual agreements, which have the potential to lead to the annihilation of one’s economic health.23 The requirement of the parents’ (legal guardian) consent prevents the exploitation of minors’ inexperience by a third party.24 At the same time, however, minors can have issues with the social norms of their traditional community regardless of their age, as the case study of the girl from Yemen demonstrates. Contrary to the members of their community with legal age, however, any choice of separating themselves from their community/parents, is restricted by their lack of legal autonomy, and is thus unavailable to them without legal help of the state.

18 Under the German law, minors under the age of 15 are in general prohibited from doing paid work at all, these prohibitions are weakened with the minors advancement in age. The Jugendarbeitsschutzgesetz contains the specific legal provisions and exemptions concerning minors apprenticeship and work. Jugendarbeitsschutzgesetz – JarbSchG. 19 Strafgesetzbuch short StGB is the German criminal code. 20 Hörnle 2010, § 174 marginal note 61. 21 Kusch/Mössle 1994, 1506. 22 Bürgerliches Gesetzbuch short BGB is the German civil code. 23 Knothe 2005, Introduction to §§ 104–115 BGB marginal note 20. 24 Ibid.

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The Rights of the Parents in Conflict with the Rights of the Minor As has been made clear, the girl’s lack of legal autonomy as a minor creates substantive obstacles for the girl to pursue her will, and to leave the influence of her parents and their moral values. Furthermore, according to Art. 6 II S. 1 GG25 parents are granted a fundamental right to raise their children in the way they feel is appropriate.26 Although there are certain restrictions to this right (some of which I will discuss later), the freedom granted by the parental right is to protect the parent’s decisions on how to provide for the well-being of their child independent from state intervention.27 Parents (i.e., legal guardian) are also responsible for the child’s mental and emotional development28, which includes the decision on any religious upbringing.29 Art. 4 GG protects the freedom of religion and ideology as an inalienable fundamental right, which every human being is a bearer of, regardless of their nationality.30 It is an important right since it caters for the individual’s capacities to make sense of the world, to shape their identities and to formulate their goals in life.31 The parental right to raise their child in the way they feel appropriate does not, however, come without certain constraints. This parental right also contains an obligation.32 The obligation expresses itself in the duty to protect their children from any harm, for example, an economic burden resulting from contractual agreements. It is based on the belief that the child’s well-being is at the heart of every parent’s action, more so than any other person’s or the state’s.33 In the case of the Yemeni girl, the parents believed in raising their children according to the moral values and concepts of Islamic fundamentalism. They saw it as their duty to insist that their daughter conform to what they saw as an appropriate lifestyle, even if she disagreed with their social norms. However, the parental right according to the German Constitution differs from other fundamental rights as it does not grant the freedom of complete self-

25 26 27 28 29 30 31 32 33

Grundgesetz short GG is the German Constitution. Pieroth/Schlink 2010, § 15 marginal note 698. Ibid. Ibid. Pieroth 2011, Art. 6 marginal note 37. Hufen 2007, § 22 marginal note 18. Jarass 2011, Art. 4, marginal note 8. Robbers 2010, Art. 2 marginal note 209. Epping 2009, marginal note 509.

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determination of the parents but rather has the well-being of the child at its centre.34 The well-being of the child is an undefined legal term but taking reference to § 1666 BGB it makes clear that it comprises physical, mental and emotional well-being.35

The Right of the Minor Although there is no constitutional right to a ‘perfect upbringing’, any upbringing needs to be guided by the goal of raising a child so that she becomes selfreliant and independent of her parents.36 This formal goal of upbringing is stated in § 1626 BGB, and implies that with the continuous development of the child and the accompanying self-determination, the parental right experiences a reduction until their claim to the upbringing expires with the child’s legal age.37 According to the guidelines of § 1626 BGB a child has the right to develop her own personality.38 This means, that the Yemeni girl has the right to develop her own concepts of how she sees her life in a western society; which also includes the right to disapprove of her parent’s concepts and world views. The well-being of the child further manifests itself through Art. 2 II GG, which protects the wellbeing and the right to life of children. Additionally, the German Federal Constitutional Court has acknowledged the fundamental rights of the child according to Art. 1 I GG, which protects the human dignity and Art. 2 I GG, which protects the child’s freedom to develop.39

The Role of the State Thus far, it is clear that the well-being of the child is the supreme principle of the parental right. This is why another important limitation to the parental right is described in Art. 6 II S. 2 GG, which grants the state and society supervision over the way the parents exercise their parental power. § 1666 BGB is the central statutory law in the civil code which establishes the role of the state as the guardian over the exercising of the parental right as determined in Art. 6 II S. 2

34 35 36 37 38 39

Ibid. Diederichsen 2010, § 1666 marginal note 9. Coester 2009, § 1666 marginal note 71. Pieroth 2011, Art. 6 marginal note 38. Robbers 2010, Art. 2 marginal note 145. Kälin 2000, 190.

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GG.40 It allows a family court to intervene into the parental right if the well-being of the child is seriously threatened because the parents neglect their duty to protect the child.41 Another provision, as stated in Art. 6 III GG, determines that in cases where the parents don’t fulfill their obligation to properly care and raise their children, and in cases of neglect the state has legal grounds to suspend parental power over a child. The Federal Constitutional Court of Germany has specified the conditions under which the state can act by stating: Not any failure to educate and raise the child or neglecting it entitles the state to actively function as a guardian. This failure has to be so severe that the child would suffer a profound and long-term physical, mental or emotional ill if it would stay with its family.42

Returning to the case of the Yemeni girl, the question has to be raised as to whether the girl’s welfare was threatened by her parents not allowing her to participate in the social life of her peers, and also preventing her from receiving a proper education. In Art. 2 S. 2 of the Convention Protocols of the European Convention on Human Rights exists an explicit parental right, which protects individual moral convictions. The European Court of Human Rights has come to the conclusion that this also includes social norms and moral values, which do not find acceptance in the dominant culture.43 The level of harm caused by the prevention of the girl to integrate into the German society, and to develop into a self-reliant and individual member of this society, however, also need to be taken into account. The principal issue, therefore, is whether the actions of the parents in the case of the Yemeni girl constituted a serious enough harm to the child for the state to be justified to intervene.

Legal Guidelines a Family Court has to Observe in its Ruling Since the family court must have the welfare of the child in mind, a fundamental consideration has to be whether the minor is being brought up in a healthy and carefree environment.44 Normally, such an environment is that of the natural family. The ultima ratio principle determined in § 1666a BGB therefore demands

40 Coester 2009, § 1666 marginal note 1. 41 Ibid., § 1666 marginal note 3. 42 See the ruling of the Federal Constitutional Court of Germany BVerfGE Volume 60, p. 79 on p. [91]. 43 Kälin 2000, 188. 44 Olzen 2008, § 1666 marginal note 171.

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that before separating the child from her family, all other possible options have to be considered. Only if other measures have not improved the situation, or if it is highly likely they will not succeed, the parental power over the child can be revoked.45 In addition to the court’s considering the reluctance of the parents to let their child adopt western values and social norms, it must also weigh whether there are less severe measures available other than separating the girl from its family as demanded by the ultima ratio principle. From the perspective of exit, it also needs to be considered what would be the role of the girl in the legal proceedings, as she refuses to return to her parents. The law remains silent on this matter, but not taking the wishes of the minor into consideration would seem to contradict the goal of raising a self-reliant and independent member of society. Therefore, court rulings have acknowledged especially the will of older teenagers in their judgments.46 In the specific case of the girl from Yemen the family court came to the following conclusion: The right to raise children with the traditional social norms deemed most appropriate is of course the inalienable right of parents. However, the environment in which these traditions and social norms are promoted is an important factor. To raise the girl in Germany without dramatic conflicts would only have been possible if her parents were willing to reduce emphasis on the traditional upbringing. It is impossible to raise a girl with moral values and in a tradition, which is in complete contradiction to society’s general interest of how women are raised and the role they have in society.47

The court further stipulated that: There are no less severe measures to protect the girl from harm and a return into her family is impossible. The danger a forced return would be that the girl could run away again without turning to the state for help. As a consequence she would end up in a chaotic and detrimental environment, which would also not be in the interest of her parents. Legal guardianship is transferred to the youth welfare office to ensure the adequate upbringing of the girl.48

45 46 47 48

Coester 2009, § 1666 marginal note 4. Coester 2009, § 1666 marginal note 75. FamRZ 2003, 1497. Ibid.

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The Will of the Minor in the Ruling from a Liberal Multicultural Perspective As made clear, the family court’s task on the grounds of § 1666 BGB is to find the delicate balance between protecting the inalienable fundamental right of the parents to raise their children as they deem appropriate and society’s responsibility to intervene when there is probable cause for long-term and profound harm for the girl. The ruling of the court points out two important facts. First, that it is possible for a minor to ‘exercise’ the right of exit when the court comes to the conclusion that there exists a severe conflict between the socialization in the family and socialization by society. Jurisdiction is in accordance with the aim of the Convention Protocols of the European Convention on Human Rights, which does not protect totalitarian ideologies or views, which violate the human dignity.49 The European Court of Human Rights also concluded that the freedom of the parental right is not protected if the parent’s social norms contravene with the fundamental right of human dignity or with democratic principles, as well as when they are in contradiction with the child’s right to education.50 Second, and perhaps more significant, is that although the court took into account the will of the girl, it was only of secondary concern in considerations of her right of exit. The court recognized that “to raise the girl in Germany without dramatic conflicts would only have been possible if her parents were willing to reduce their emphasis on bringing her up in a traditional manner.” In the Yemeni girl’s case, the societal directive to raise an independent adult was of greater significance than the girl’s act of active dissent from her family. Theoretically, however, the exit option should make it possible for an individual to leave as soon as the person feels they have gone beyond their limits in conforming to what the group demands. However, a minor’s conclusion of their limits having been reached may very well differ from a judge’s determination of acting in the minor’s best interest. This is further complicated by the ultima ratio principle binding the court to suspend the parental right only if there are no less severe options available. This might cause considerable postponement of the court’s suspension of the parent’s rights while other options are explored, and will possibly prolong and deepen the experience of social conflict by the minor caught in the situation.

49 See Palm-Risse 1990, 379. 50 Kälin 2010, 188.

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Parental Right as a Cultural Right? Further complexities of the case of the Yemeni girl may be brought forward by looking at the nature of the conflict between the parent’s fundamentalist values and the values of the German society. From the perspective of the Yemeni parents, the state intervention could easily be seen, not only as an infringement on their parental right, but also as an infringement on their right to pass down their cultural heritage to their offspring. The question is whether the intervention of the state would still be justified should this constitute a violation of the parent’s ‘cultural rights’. From the perspective of the minority group, this kind of situation could be described as a form of cultural imperialism, especially in the acknowledgement of the inherent role that parental upbringing plays in the shaping of children’s cultural identities. It is important to notice that the German constitution does not recognize ‘cultural rights’ that would trump other rights. For this reason, minorities have used constitutional-based protection of the freedom of religion as a ‘substitute’ to protect their cultures, as has been documented in a study by Walter Kälin.51 Court cases dealing with the parental power over the child on the grounds of religious values and social norms that are in conflict with the dominant moral values and traditions are not new. In many respects, today’s legal questions of girls wearing traditional Islamic clothes in German schools is similar to the questions of German Catholic girls (or their parents) claiming exemptions from physical education because they feel it is improper to wear shorts.52 The judicial review of such cases should thus not be regarded as a phenomenon of migration but is applicable to the fundamental rights of Germany’s cultural minorities in general.53 One of the unanswered questions, in many of these cases, is whether the parental right should be valued as a cultural right due to its significance in upholding the cultural health and survival of the minortiy in question. Provided that state intervention was further restricted on the basis of the protection of the cultural health and identity of the minority community, a further question arises. Is there a certain age at which the state should take into consideration the will of an affected minor, who wants to dissent from the cultural norms and values of her community? In the case of parental rights conceived as cultural rights, the

51 Kälin 2000, 15; Walter Kälin has researched the legal practice of cultural-based constitutional conflicts in several western countries including Germany in his book Grundrechte im Kulturkonflikt, Freiheit und Gleichheit in der Einwanderungsgesellschaft, Bern 1999. 52 Kälin 2000, 16. 53 Ibid.

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question of the will of the minor becomes even more important, as the other avenues for state intervention may be restricted. It is difficult to imagine how the state could intervene into this kind of ‘cultural right’ unless the minor disagrees with the social norms of her community and has a strong desire to exercise the right of exit, although it is also difficult to define at which point the will of the minor becomes a strong enough reason for the state to override the culturally defined parental right.

Existing Rights to Exit for Minors Right to Change Religious Confession In § 5 RelKErzG54 a right of exit exists for minors under German law concerning their religious confession. This provides legal grounds for a minor to leave the religion of her parents without separating herself physically from them. The law on religious upbringing of the child § 5 RelKErzG states that “at age 14 every minor can choose freely and independently his/her confession.” This also includes the right to reject the concept of religion all together. In the case described above, the Yemeni girl could, with the backup of the law, choose to distance herself from Islam and separate herself from the religiously motivated values of her parents. This right of exit, as the emotional exit mentioned at the beginning, would, however, be in effect dependent on the parent’s accepting and respecting the decision of their child since she would still live under the roof and influence of her parents. A related question concerning the case of the Yemeni girl is, whether the way the parents were raising their daughter was based on the parent’s interpretation of Islam or on the traditional upbringing common for the family’s region of origin in Yemen. If the latter, the child’s changing her religious profession would not free her from her parent’s cultural values, even in the unlikely case that the parents accepted the girl’s rejection of her parent’s religion. In all likelihood, the parents would see their daughter as rebelling against their traditional social norms and moral values, which in turn might lead to even further abuse, or their outright refusal to accept her decision all together. Keeping this in mind, § 5 RelKErzG as a reasonable right to exit by changing confessions, may not give the girl adequate protection of her constitutional rights nor deter her from running

54 Law on religious upbringing of the child is abbreviated in German “RelKErzG”.

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away from home. It’s more than likely that, when considering this law as a legal right to exit, the choice of the minor is neither reasonable nor effective.

Criminal Law Statutes § 225 StGB55 and § 171 StGB56 protect people, including minors who are dependent on their caretakers, from physical and emotional abuse. Other legally protected interests include the emotional development of the child, which could be threatened by physical abuse as well as the parents forcibly socially isolating the girl and preventing her to develop peer-to-peer social skills. The law mandates prison or a punitive fine for anyone who violates the physical and/or mental welfare of persons under their care. All persons, including minors, may file a petition § 158 I StPO57 (Strafanzeige) before the department of public prosecution and under the Legalitätsprinzip the public prosecution is obliged to investigate whether there are grounds to bring a charge.58 In such a case, could the criminal prosecution of parents be considered a valid legal right of exit for a child? One of the advantages would be that the state would not need to be the party to initiate an investigation, but that the minor could herself initiate the process of prosecution. Whereas the avenue of criminal prosecution must, no doubt, be kept as one of the alternatives to gain legal exit, it does, however, also entail many complications. Minors may not wish to see their parents in jail, nor even have them charged with criminal offence, nor is the process of dealing with the police officers, lawyers and other state institutions always easy for the minor. Using the criminal code as a legal tool in a liberal multicultural context to protect the rights of the minor, alongside with the protection of the cultural health of the minority as well as the liberal social order, is far from a satisfactory solution. It would be clearly not in the interest of the minor, nor in the interests of the liberal society, to prosecute a minority’s tradition by appealing to criminal law.

55 § 225 StGB protects minors under the age of eighteen. 56 § 171 StGB protects minors under the age of sixteen. 57 Kindhäuser 2010, 43 marginal note 3. 58 Beulke 2010, § 2 Die Prozessmaximen marginal note 17; § 225 StGB and § 171 StGB are not criminal offences only prosecuted by the petition of the injured personAntragsdelikt (see § 77 I StGB). In that case, according to § 77 III StGB, the minor would need a statutory agent who would petition for him/her. In the respective laws the possibility of a demand for penalty doesn’t exist, which means that a complaint can be filed by a minor.

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Emancipation of the Minor Perhaps the role of the minor, and the possibilities of gaining legal exit from her community/parents, could be increased by allowing the minor herself to petition for her emancipation.59 In some American states, a minor herself can file a petition with the court for emancipation from her parents. To support the petition, the minor has to convince the court by providing substantial evidence that it is in her best interest to suspend her parent’s power.60 This approach is substantively different from the current situation in Germany where minors do not have the right to petition to the court to suspend their parent’s rights (formelles Antragsrecht).61 Only the youth welfare office is legally obliged to petition to the court through § 8a III SGB VIII, if it has evidence which requires the expertise of the family court to intervene.62 The court is obligated to pursue such a matter only on grounds of the authority’s motion officially, that is, as part of the state’s role as the guardian over the well-being of the child once the state has credible information of threats to the well-being of the child.63 Everyone else, including the minor herself, can only suggest that the court undertakes an investigation64, but the family court is not obliged to pursue every suggestion (Anregung). Only if the court itself comes to the conclusion that there are grounds of a believable threat to the well-being of the child, it will arrange further investigations if necessary.65 From the perspective of increasing the role of the minor, as well as of opening up further avenues for the child’s realistic rights of exit, an investigation into the concept of emancipation of minor could be of interest. At the very least, granting minors an official right to petition to the family court could mean a substantial empowerment of minors in the legal process.

59 This, it should be noted, is a different approach to that of criminal prosecution, with different legal consequences. The emancipation of minor grants the minor legal autonomy, while the criminal law approach has as a legal consequence the prosecution and possible conviction of the parents. 60 Cornell Law 2011. 61 Coester 2009, § 1666 marginal note 262. 62 lbid. 63 Coester 2009, § 1666 marginal note 261. 64 lbid. 65 lbid.

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Conclusion The most vulnerable members of minorities, including children and other dependants, pose a special challenge for the legal system of any liberal democratic society. By the justifiable restriction of the rights and freedoms of minors, the liberal state would also seem to create obstacles for the realistic rights of exit for minors from her cultural community. At least under the German law (and I do not think this to be an exeption), the right of exit does not hold the same promise for minors as it does for members of society who have reached the age of majority. Minors are faced with their limited legal autonomy as well as sociopsychological impediments. Irrespective of the existing obstacles, German courts have nevertheless provided a right of exit for minors, in cases when parents have disciplined their children by resorting to violent means or by denying them appropriate education.66 It should be kept in mind that there is no general ‘one size fits all’ solution to how to solve possible culturally or religiously induced conflicts between parental rights and the well-being of the minor. Each case will have to be evaluated by a family court on a case-by-case basis. More emphasis on the child being educated to live genuinely bi-culturally rather than in isolation or as fully assimilated into the majority culture may, in many cases, be in order. Neither the minority nor the dominant culture may be able to fully understand how the bi-cultural upbringing has shaped the identities of the respective minors, and knowing what is best for them will be difficult for either party to decide. Minors, I believe, need to have comfort in both cultures so that they can eventually make informed choices without losing their ‘cultural literacy’ in their home-culture. The importance of preserving the minor’s cultural literacy in her home culture, however, cannot override the minor’s basic rights and opportunities within the majority culture. For the minor’s future economic as well as social well- being, it is important that the minor can acquire relevant social skills and the capacity to live, work and associate within the liberal democratic society. In cases where the development of the minor into a self-reliant and independent member of society is at risk, there must be avenues for the minor to also exit her current community/parents. To a certain extent, the German legal code already provides opportunities for minor’s exit, although the avenues should also be investigated for the minor herself to play a more active role in the process of exit.

66 Kälin 2000, 190.

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Bibliography Amtsgericht Korbach (2003), In: Zeitschrift für das gesamte Familienrecht 50 (18), 1497. Beulke W. (2010), Strafprozessrecht, 11th Edition, Heidelberg. Coester M. (2009), § 1666 BGB, In: Engler H. (ed.), Staudinger Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Berlin. Cornell Legal Information Institute (2011): Emancipation of Minors. http://topics.law.cornell. edu/wex/emancipation_of_minors (seen 8. 3. 2011) Diederichsen U. (2010), In: Bassenge P./Brudermüller G./Edenhofer W./Diederichsen U. (eds.), Palandt Kommentar Bürgerliches Gesetzbuch, 69th Edition, München. Epping V. (2009), Grundrechte, 4th Edition, Heidelberg. Federal Constitutional Court of Germany BVerfGE Volume 60, p. 79 on p. [91]. Hufen F. (2007), Staatsrecht II Grundrechte, München. Hörnle T. (2010), In: Laufhütte H. W. (ed.), Leipziger Kommentar Strafgesetzbuch, 12th Edition, Berlin. Jarass H. (2011), In: Jarass H./Pieroth B. (eds.), Grundgesetz für die Bundesrepublik Deutschland Kommentar, 11th Edition, München. Kälin W. (2000), Grundrechte im Kulturkonflikt: Freiheit und Gleichheit in der Einwanderungsgesellschaft, Zürich: Verlag Neue Zürcher Zeitung. Kindhäuser Urs (2010), Strafprozessrecht, 2nd Edition, Baden-Baden. Knothe H.-G. (2005), “Vorbemerkung zu §§ 104–115 BGB“, In: Engler H. (ed.), Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Berlin. Kusch R./Mössle, K. (1994), “Verschärfter Jugendschutz”, In: Neue Juristische Wochenschrift, 1504–1508. Kukathas C. (1992a), “Are There Any Cultural Rights?”, In: Political Theory 20 (1), 105–139. Kukathas C. (1992b), “Cultural Rights Again: A Rejoinder to Kymlicka”, In: Political Theory 20 (4), 674–680. Kymlicka W. (1992), “The Rights of Minority Cultures: Reply to Kukathas”, In: Political Theory 20 (1), 140–146. Levy J. (2005), “Sexual Orientation, exit and refuge“, In: Eisenberg/Spinner-Halev (eds.), Minorities within Minorities, Cambridge. Okin S. (1999), Is Multicultuarilsm Bad for Women?, Princeton. Okin S. (2002), “Mistresses of their own destiny”: Group rights, gender, and realistic rights of exit“, In: Ethics 112, 205–230. Olzen D. (2008), In: Schwab D. (ed.), Münchener Kommentar zum Bürgerlichen Gesetzbuch, 5th Edition, München. Palm-Risse M. (1990), Der völkerrechtliche Schutz von Ehe und Familie, Berlin. Phillips A. (2007), Multiculturalism without Culture, Princeton. Pieroth B./Schlink B. (eds.) (2010), Grundrechte Staatsrecht II, 26th Edition, Heidelberg. Pieroth B. (2011), In: Jarass H./Pieroth B. (eds.), Grundgesetz für die Bundesrepublik Deutschland Kommentar, 11th Edition, München. Reich R. (2005), “Minors within minorities: a problem for liberal multiculturalists”, In: Eisenberg A./Spinner-Halev J. (eds.), Minorities within Minorities, Equality, Rights and Diversity, Cambridge, 209–226. Reitman O. (2005), “On Exit”, In: Eisenberg A./Spinner-Halev J. (eds.), Minorities within Minorities, Equality, Rights and Diversity, Cambridge, 189–208.

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Robbers G. (2010), “Art. 2 GG”, In: Dr. Starck Christian (ed.), Kommentar zum Grundgesetz, München. Shachar A. (2001), Multicultural Jurisdictions, Cultural Differences and Women’s Rights, Cambridge. Spinner-Halev J. (2000), Surviving Diversity: Religion and Democratic Citizenship, Baltimore: John Hopkins University Press. Starck C. (2010), “Art. 2 GG”, In: Dr. Starck Christian (ed.), Kommentar zum Grundgesetz, München.

Gritt Klinkhammer

Costs of Religious Pluralism in Liberal Societies This article wishes to contribute to the philosophical discussions on Liberalism and Liberal Multiculturalism from the perspective of a scholar of Religious Studies by addressing some of the challenges brought forth by religious pluralism in liberal societies. The article focuses especially on questions relating to Islam, although several examples from other major monotheistic religions (Judaism and Christianity) are also used for comparison. I will show that religious pluralism produces inevitable costs for the liberal society, as the society needs to guarantee individual rights, including exit from religious groups, as well as entrance to societal resources such as education, welfare, political participation etc. The article proceeds as follows. In section I I will give a brief outline of how religion can be understood: its function, output and character. I will then present some key characteristics and challenges of religious pluralism in liberal secular societies today (II). Subsequently, I will discuss three examples referring to the debates on Islam in Germany (III). The first example addresses the religious idea of affiliation and its potential conflict with freedom of choice. The second example addresses the case of marriage (and divorce) from the perspective of the distinction between the private and public sphere. By way of these examples, I build a case for the liberal state to guarantee secular rights as limits and alternatives to religious law in order to protect individual freedom of choice, voice, and exit. This need is neither new nor particularly bound to circumstances involving Islam but typical for the process of secularization and the segregation of state and church in Western Europe (see part II.1.). My third example discusses some of the biases and inadequacies of limiting action of religious minorities in order to preserve the liberal society. The securing of secular rights of individuals by limiting the religious radius of action is, of course, very important but needs to be supplemented by policies that enable people to also continue to be affiliated with their religion while taking part in the mainstream society. The article closes with a brief summary of my arguments (IV).

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I What is Religion? In Religious Studies, the functional and anthropological approaches to the concept of religion are currently predominant. These approaches understand religion in terms of the possibility of humans to transcend from here and now. Religions are results of the processes of the embodiment of transcendental experiences, they incorporate extraordinary interpretations and legitimations of the ordinary social world.1 Recently, there have been approaches that define religion also substantially as the relation to transcendence but with a strong focus on religious action instead of religious ideas.2 Hence, the discursive and pragmatic aspects of religious constructions are also emphasized. I would like to bring to attention that religion – in the ways mentioned above – is part of culture. Religion gives shape to and is shaped by culture. From this perspective, religions are viewed neither as true or false nor as good or bad per se, but are rather recognized as both significant and effective at the individual and collective level. Generally speaking, religion can be said to support the endowment of meaning and the formation of identity. Religion is used to interpret and integrate the various day-to-day experiences into a (some degree) loose system of transcendental truths and action orientations. Religion represents a pool of preferences for meaning and action, also at the level of individual or collective habits, rituals and traditions, believed truths, ideas of authority and order, as well as forms of socialization, and the formation of affective and esthetic preferences. Not all of these ideas are necessarily rooted in the manifestations of immediate truth or existential experiences. Frequently, cultural traditions and historically evolved interpretations are at work here, and they undergo constant change still today. However, the history of religion teaches us that such changes are typically not negotiated in a process of deliberation with other religions. They are more likely to be triggered by powerful internal processes of reorientation and criticism of traditions, a shift in a religion’s social basis, or the emergence of a new charismatic leadership. Religious changes represent a response to a new environment resulting from social change, migration, or as encountered in the active pursuit of missionary work. It is characteristic of religions that their own historiographies rarely disclose such processes nor are they portrayed as open toward the future. Religious traditions and truths frequently emanate an air of absoluteness and invariability.

1 See Luckmann 1991, Knoblauch 2009. 2 See Riesebrodt 2007.

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The idea of religions as the holders of universal absolute truth as well as religions’ deep involvement in cultural and social fields of society can make it difficult to integrate religion into the idea of a liberal secular society. By definition, religion cannot be limited to the field of the individual and the private. On the contrary, religions are often claiming the right to shape and limit individual and social freedom of action, thus creating a challenge to the liberal secular state.

II Dynamics and Challenges of Religious Cultures in Liberal Secular Societies In the following I want to stress some of the main challenges of liberal pluralism for liberal secular societies and the liberal state.

Secularity I agree with the anthropologist Talal Asad in defining secularity as a basic element of European societies that has fundamentally shaped the idea of governance as well as of religion.3 Submission to this idea and political order has not been only a voluntary act for Christian Churches.4 Especially during the so-called “Culture War” (“Kulturkampf”) of the 1870s, Catholicism’s ability to develop the necessary degree of loyalty to the idea of a liberal (secular and democratic) state was strongly disputed.5 Nowadays, with the legal order of liberal societies ensuring individual and religious freedom, Catholicism is mostly conceived as a religion supportive of democracy and the separation of the Church and the state. Currently, it is Islam that has moved to the center of debates concerning both the limits of tolerance as well as the ability of Islam to be part of a liberal secular society. Islam’s lack of enlightenment and hence the absence of separation of the secular and the sacred within Islam has been viewed as one of the major challenges concerning the role of Islam in secular societies.6 But, as emphasized

3 See Talal Asad 2003. 4 See e.g. Lehmann 2004. 5 The history of Catholicism in the USA of the Twentieth Century shows similar developments and negotiations between the Church and the majority of the white Anglo-Saxon Protestants (see Zöller 1995). 6 See e.g. Tibi 2008.

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above, there is no natural, clear-cut border between a religious and a nonreligious sphere. Rather, this border is always negotiated – and it also needs to be negotiated with and within Islam in Western liberal societies.

Plurality and Individualization Plurality and individualization are key conditions for the existence of religions in current liberal societies. The fact of plurality seems to require an act of recognition of religious pluralism, within one’s own tradition as well as with regard to other religions. Several studies show that the emergence of religious plurality in liberal societies entails not so much the dissolution rather than the transformation of religion on the level of individual beliefs, kinds of affiliation, and interpretations of tradition.7 Religions, under the condition of religious pluralism and separation of state and church, show tendencies of ascribing religious authority also to individual convictions. The religious pluralism of liberal societies seems to also enhance religious plurality within particular religions.8 One of the challenges for liberal societies is to provide places and mediums for debates within religious traditions about their ways of beliefs and convictions. Founding of institutions for religion and education (at school as well as at universities) are one possibility to provide such mediums. It should not be forgotten that, alongside religious pluralism, there are also strong movements against the individuation and pluralism of religions that receive their power from religious fundamentalism, strong communal closeness and strict anti-plural habitus. These movements, to my view, should not be equated with religious traditions as such – as done by authors like Necla Kelek or Tilman Nagel.9 Moreover, modern societies should also be aware of their own role in the emergence of these anti-movements.10

7 See Knoblauch 2009. 8 At least, empirical studies on Islam, Christianity, and Jewish religion suggest an increasing individuality of religious life of their young members (e.g. Klinkhammer 2000, Bochinger et.al. 2009, Inowlocki 1999). 9 See Kelek 2011, Nagel 2005. 10 See e.g. Göle 2004, who has characterized Islamic fundamentalism as a specific phenomenon of modern societies, or Schiffauer 1997 b, who has indicated that fundamentalism is always construed as a “radical other” to show 1997b a real or potential threat for the own society.

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Last but not least, plurality should not be confused with equality. The emergence of Western plurality involves structural disparity as well as the hegemony of majority on minority.11 The challenge for liberal societies should be to redistribute the benefits accorded to religious groups, and to integrate new religious groups by according them same status as the old groups. Clearly, struggles for new distributions cannot be avoided. Thus, for the last 25 years there have been numerous discussions about the questions relating to the position of Islamic associations in Germany. Which of the many communities – if any – should be able to get recognition as religious communities? Should the teaching of Islam to Muslim children in schools be allowed in the same manner as the teaching of Christianity is?12 These debates have also triggered new discussions on the position of religion in Germany in general. On the one hand, one can observe a situation of competition within Islam (with respect to who gets recognized)13, on the other hand, there is also struggle between Islam and Christian Churches, which aim to conserve at least some aspects of the old hegemony in the new plural setting.14

Globalization Migration movements, political and economic globalization, and the new communication media have created a situation in which religious affiliations go well beyond the confines of the nation-state. This has consequences for legal matters as well as for the ways and limits of cultural integration of religions. The religious communities of migrants are almost always linked (one way or another) to their countries of origin.15 In Germany, the largest Islamic association (DITIB

11 This difference is also apparent in the structures of interreligious dialogues between Islam and exponents of the (Christian) majority (see Klinkhammer et.al. 2011 or Amir-Moazami 2010). 12 The question of the role of Islamic religious associations was prompted for example by the government of North-Rhine-Westphalia in 1980, deciding to provide a religious education program in public schools for Muslim pupils without consulting German Muslim associations (Gebauer 1995, and with a critical comment to this Schiffauer 1997a). 13 Since 2005 a more cooperative action between the communities can be observed, helping each other for getting recognition. 14 The Protestant Church of Germany (EKD) has been open to a dialog with Islam until around 2000 (see EKD 2000), with an increased establishment of Islam in Germany, the EKD has closed its open-mindedness (by prohibiting the common liturgy and praying ibid.; see EKD 2006 and critical comments to this turnaround Micksch 2007). 15 This is the case also with the system of popes in Catholicism or Orthodox churches, as well as with the very specific relation of many Jewish communities to Israel.

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e.V.) is connected to the Turkish Office of Religious Affairs (Diyanet). They delegate Imams from Turkey to Islamic communities in Germany. Often, these Imams speak Turkish, and may not be particularly familiar with the organization of the German society or working life. They are currently delegated for 4 year terms. DITIB is also one of the German Islamic associations that has voted to give Islamic education in Turkish language in German schools for a long time. The integration policies of liberal societies should take this global framing into account and treat it not as an invariable factor but as an ever more powerful influence. Successful integration requires also some counterbalance, including ways for better integration of the religious leaders. Some first steps are already taken by the founding of departments at German universities where students are educated for teaching as Imams in mosques and lecturers in schools.16

Identity Politics and the Public Sphere Finally, religion has become an important aspect of identity politics under conditions of plurality, secularity, and individualization. Different aspects of identity, such as ethnicity and religious affiliation, play pivotal roles in discussions, partially due to their supposedly all-encompassing and, as some claim, determining nature. From a number of issues, I would like to emphasize the inevitably public nature of these identities. Under the conditions outlined above, the religious identities also invariably involve a public aspect of power, regardless of how strongly these identities are rooted in the convictions of each individual. Whether the debates are about headscarves, the cross, religious slaughter, or other symbols and practices, they cannot be considered as merely subjective statements of a private opinion. Rather, they also always have a public symbolic quality for politics of identity of religious communities. The debates on the legality of crosses in classrooms (Federal Constitutional Court of Germany 1995 and European Court of Human Rights 2009) or teachers’ headscarves (Federal Constitutional Court of Germany 2003) are all part of a wider debate relating to the recognition of Islam and Muslims on a par with Church and Christians. Especially those cases involving headscarves, the wearing of which is often a very private expression of one’s religious identity, have also always been negotiated as a public issue.

16 Departments for Islamic Theology have been found at several universities in Germany like Frankfurt/Main, Münster, and Osnabrück. Further departments are planned for the South of Germany at the University of Tübingen and of Erlangen.

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III Examples of Challenges for Liberal Societies First example: Membership Rules and the Option for Exit The right to freedom of religion is fundamental for understanding a secular society. This particularly includes the act of religious disaffiliation and freedom of belief. In Germany, the separation of church and state and the principle of ideological and religious neutrality bar the state from defining who, and under what conditions, may join a religious community. Membership falls within the internal affairs of a religious community, and it is left to the community to make arrangements as they deem appropriate within the limits of the law applicable to all. The situation is different when membership entails legal consequences, for instance, the collection of church taxes. In such cases, the negative freedom of religion, that is, the basic right to not associate with a religion, must be weighed against the religious community’s right to self-determination. For this reason, leaving a church is an act administered by the department of public order and not by the churches themselves. Let us look first at the churches’ own understandings of affiliation. Since the late 16th century (Council of Trent), the Catholic Church has acted on the assumption that baptism is a necessary and binding act to seal admission to the Christian community. Once baptized a Christian, leaving the community is not an option anymore; even the conversion to another religion does not automatically affect membership. According to Catholic doctrine, expulsion by the Church itself – the act of excommunication – is the only way to effectively exit from Christianity. The Protestant view is somewhat different: Baptism, as well as confirmation, are both perceived only as external signs of the bond between man and God. Further, there also exist Free Church communities that refrain from baptizing Christians at all. Ultimately, one’s affiliation with Christianity becomes a matter of individual discretion in the view of the Protestant and Free Christian denominations. The Protestant congregations may, however, also use the “exclusion from Holy Communion” as a sanction in cases where a member has failed to comply with membership obligations despite feeling a sense of belonging. According to the German Federal Constitutional Court, however, registration of baptism and the laws governing religious disaffiliation at the state level (Federal States) ensure that no one is treated as a member of a religious community under the law against their own will.17 According to the court, this applies

17 Registration as an administration act also enables de-registration, ensuring that no one is marked as a member against his/her will. This process of membership registration has lately

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to cases of baptism as well as to cases where parents, as custodians, act on the child’s behalf. All in all, German law recognizes membership established by baptism in areas where it entails rights and duties in the state domain, although it also ensures that people can resign the religious communities to which they have been joined. To be sure, most people have no problem with those two sides (the denominational and the administrative) of the membership coin.18 Upon detailed inspection, however, it becomes clear that we must distinguish between religious communities’ own conception of membership and how the state handles the issue, and also make sure that dealing with such membership poses no legal problems even in cases where fundamentally different views are involved. In contrast to the administrative understanding of religious membership lie the ideas of religious affiliation in Islam, Christianity and Judaism. According to Muslim understanding, all human beings are initially born Muslim. Parental upbringing is then considered a crucial factor for determining whether a person actually becomes a Muslim who fulfills the duties of a Muslim. In case of dispute, the religious affiliation of the father is deemed decisive. Thus, a child of a Jewish mother and a Muslim father would be a Jew according to Jewish law and a Muslim according to Islamic law. The respective religious communities, however, would only accept the child to have one religion, that of their own.19 In any case, disaffiliation from Islam, in accordance with the religious understanding, is hardly possible – similar to the situation in the Catholic Church described above and also in Jewish religion. The lack of an organizational form similar to the Catholic Church’s self-conception as an institution of salvation makes it more difficult to clearly mark affiliation: “umma” as the whole Islamic community or the institute of the mosque, do not know secularized hierarchical limits. Withdrawal from Islamic (migrant) organization does not mean that one would have also defected from the religion itself. In the eyes of the German government such withdrawals have no status since membership in Islamic migrant organizations thus far entails no rights or duties on part of the general government. Both Islam and Judaism acknowledge the possibility to lose one’s initial religious identity by conversion to another religious community. Such a conversion is thought of as apostasy and, in early Islam, led to the imposition of the

been recommended also to Muslim communities, some of which have already started to perform this. 18 In some cases, people complain against the administrative deed of the average cost of 30.00 € to cancel one’s membership of the Christian churches in Germany. 19 See Nathan 2010

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death penalty. Today, apostasy is not a punishable offence in most Islamic states although it is largely met with condemnation.20 “Many modern authors point out that the persecution of apostates was limited to the historically exceptional circumstances surrounding the early Islamic congregation in the armed conflict with the heathens of Mecca and following the death of Mohammed.”21 The turning away from Islam was thus interpreted in the worldly sense as a case of desertion or high treason. Contemporary Islamic legal scholars, such as Mahmud Shaltut, the former president of the Al-Azhar University, interpret this tradition along the lines that the reason for punishment was not unbelief itself but attacks on and the fight (waged) against the faithful. Less traditionally minded Muslim scholars (e.g. S. A. Rahman) stress that unbelief concerns only the relationship between the individual and God and can therefore only be punished in the afterlife22; he cites Surah 5,54: “O ye who believe! If any from among you turn back from his faith this is of no significance”. Others again, such as the Kuwaiti author Ahmed Baghdadi, consider the persecution of apostasy simply as a historical misinterpretation that contradicts the freedom of religion laid down in the Quran and cite Surah 2,256: “Let there be no compulsion in religion.” The Central Council of Muslims in Germany (“Zentralrat der Muslime in Deutschland”) employs the same reasoning, thus unmistakably professing its commitment to the basic principle that everyone has the right to change one’s religion or to live without religion.23 Certain extremist groups may, of course, cling to the traditional doctrine of judging conversion from Islam as punishable apostasy, and even expand on this. Thus, in inner-Islamic struggles, the takfir (declaring a person an unbeliever) is employed as a weapon in the fight against dissenters. Unfortunately, there are a number of cases in Afghanistan, Sudan, and other places where the death penalty has either been executed against persons identified as unbelievers, or there has been a threat to do so – even e.g. in Egypt where apostasy is not generally considered a punishable offence. This is a powerful way to suppress reforms and reinterpretations in Islamic countries. The threat of death alone can be a sufficient motivation for Muslim reformists and dissidents to exercise restraint. Apart from the above-mentioned legal factors related to the religious and secular matters involved in the exit option, one’s renouncing of one’s religion may also have strong emotional and societal consequences. Even today, a person

20 21 22 23

See Rohe 2009, 266ff. Ibid., 266 – author’s translation from German. See Rahman 1972. See Article 11 of the charter by the Zentralrat der Muslime in Deutschland 2010.

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living in a small Bavarian village may feel the social consequences, should he/ she officially and publicly break with Catholicism. Similar situation may ensue for those who decide to opt out from their long-lasting membership with the New Apostolic Church or the Jehovah’s Witnesses. There is not much that the liberal society or state can do about these emotional or societal costs of exit, but to ensure that religious affiliation, social background, gender, etc. do not determine one’s pathways to education, employment or other aspects of public participation. On the contrary, participation in society must be made possible irrespective of one’s religious affiliation, or lack of such affiliation.

Second example: Religious-Cultural Membership and the Option of Voice In 2006, a divorce case was made public through media reports concerning a 26-year-old woman from Frankfurt, Germany, who was born in Germany but is of Moroccan background. The couple had been married for six years, and they had two small children. The 28-year-old husband, also of Moroccan background, had abused his wife. Therefore, the Frankfurt District Court issued a restraining order prohibiting him from approaching his wife closer than a distance of 50 meters. Despite the restraining order, the man continued to threaten his wife. She thus filed for an early divorce, hoping to avoid the waiting period that requires couples to be separated for one year before the granting of the official divorce, which, in this case, would have ended in May 2007. German family law allows for early divorce, but only in cases where there is “undue hardship”. The Frankfurt family judge did not perceive this to be the case. The judge offered the following explanation: Both spouses come from a Moroccan cultural background where spouse abuse is “not uncommon” due to the husband being granted the right of corporal punishment, and this, according to the judge, is underscored by the Quran. In the end, the judge was removed from the case, and the decision went in favour of the petitioner.24 In Germany, the legislator has determined that religious norms may be enforced in areas where they collide with the penal code, given certain conditions and provided that the consequences are marginal and do not exceed “the bounds of the socially adequate”.25 Evidently, in the case described above, the

24 See press release by Amtsgericht Frankfurt am Main 2007; Posch 2007; see also Holtzleithner, this volume. 25 Rohe 2009, 342 – author’s translation from German.

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judge intended to apply the so-called “cultural privilege” provision, although this reading conflicted with the views of her colleagues. Typically, cultural or religious privilege is granted in cases such as the religiously motivated, professionally performed circumcision of boys, although, it should be noted that the same privilege is no longer available for the circumcision of girls – which, coincidentally, is not recognized as an Islamic tradition.26 Large parts of Islamic law, the Sharia, consist of provisions on gender relations and family law27, which in only a few instances correspond with the official codes of law in Germany. For example, Sharia gives husband a unilateral right of divorce and repudiation (talaq) and, according to some traditional interpretations, marriage does not necessarily require the bride’s expressed consent28. Surah 4,34 also gives the husband the right of corporal punishment, and Surah 4,3 gives the husband permission to marry up to four wives. Only very few Islamic countries have managed to counter the influence of the Sharia upon gender relations and, due to the tendencies of re-Islamization in the past 15 years, Sharia has become even more influential, even in many secular countries. For instance, in Egypt, a judge may enforce a ruling that is in conflict with the existing law by referring to traditional Islamic legal interpretations. – However, opposite interpretations of the role of Islamic jurisdiction may also be given: the legislator may, for example, refrain from addressing a specific act or suspend punishment on grounds that only a genuine Islamic state can provide the foundations for enforcing Islamic law. Of course, the recognition of Islamic law may not correspond with the procedures of positive law based on guaranteed secular rights. The legal scholar and researcher of Islam, Mathias Rohe arrives at the conclusion that it is indeed possible to lead a life in accordance with the teachings of Islam in Germany, although some practices required by religious law can only be pursued in a modified form. Apart from secular legal restrictions on religious norms, there is also an already ongoing inner-Islamic dispute over issues concerning Islamic marriage and family norms. Most notably, Muslim women worldwide, including female migrants in Germany, have argued for a women’s right to make a marriage contract in which they may, for instance, lay

26 The fact that female circumcision dates back to pre-Islamic times and was common among the Coptic Christians of Egypt testifies to this. Moreover, the Grand Mufti of Egypt, Dr. Ali Gom’a has confirmed the un-islamic character of female circumcision and has issued a fatwa accordingly (See Gom’a 2006). 27 Sharia also contains provisions on religious rituals and civil and criminal law, but I will not comment on these in the ongoing discussion. 28 See e.g. Al-Bukhari 2010.

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down monogamy, permission to pursue employment, etc. Such contracts have already been recognized as legitimate in Egypt, and a violation of such contract is accepted as grounds for a woman to pursue a divorce. In Germany and the European diaspora, religious Muslim women have also recommended such contracts as an “Islamic” option for reaching an agreement in advance about the form of marriage. Debates among Muslims have also begun concerning the interpretation of the Quran regarding the role of women, including interpretations of the verse 4,34 (“As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly)”). The verse has traditionally been viewed as supporting the right of corporal punishment. Muslim women in Germany have presented an interpretation according to which the decisive Arabic verbum in verse 4,34 (daraba) is translated not as “beating” but as “separating”29, thus granting a woman a right to pursue divorce and – contrary to some other commentaries of this paragraph – also denies the legitimacy of any kind of violence against the wife, including symbolic violence. The stance taken toward Catholicism has demonstrated that the legislator in Germany can enforce its own rules in favour of women and give them the opportunity to opt for divorce even against religious norms. In Catholic doctrine, marriage is viewed as God-given and indissoluble. Catholic couples are nevertheless also subject to civil marriage law. Those, who are not content with the civil law, can turn to an ecclesiastical court, the so-called “Offizialat”, which, for instance, has the right to annul marriages in accordance with Catholic doctrine in order to enable the petitioner to enter into a second religious marriage. Similar arrangements can be imagined for Islam – although perhaps unnecessary since the significance of marriage in Islam is similar to Protestantism: It is conceived as a bond between people sealed by God. Conflicts between certain religious norms and democratic, secular values and rights may be inevitable. For instance, we can hardly expect that the state, the Catholic Church, and Islamic clergy will reach common normative ground on the justifiability of homosexuality and abortion any time in the future. The issue of forced marriages, discussed in the media, might also come to mind in this context. However, studies show that it would be a mistake to associate this issue specifically with Islam since forced marriages occur in various cultures. Perhaps more appropriately, forced marriages can be seen as characteristic of certain traditional, economically and educationally deprived societal (or at least family) settings. Incidentally, the situation is different with respect to arranged mar-

29 See Zentrum für Islamische Frauenforschung und Frauenförderung 2005.

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riages, which are also not exclusively Muslim phenomena, but are found in many other cultures, including well-educated, cosmopolitan family circles. Contrary to forced marriages, arranged marriages also often occur with the consent of those involved.30 With respect to the potential conflicts between state and religious norms, extremist positions that call for violence against dissenters must be considered as especially problematic. However, those social structures that give rise to parallel, isolated societies must also be questioned as one’s exit from, as well as voice within such isolationist groups may be especially difficult. In the light of the aims of social integration, the autonomy of religious communities may be better understood to include, for example, social work and counselling, and courses for integration, rather than tendencies of exclusion from general and vocational education and training opportunities provided by the state. I will explain what I mean with reference to my third example.

Third example: Individual Membership and the Option of Choice The German Federal Constitutional Court ruled in 2005 that a Muslim teacher is not permitted to teach in public schools wearing a headscarf, provided that state laws determine so. Of all groups, this ruling can be seen to affect precisely that group of Muslim women who demonstrate successful integration and autonomy vis-à-vis their family of origin by pursuing their own education and professional career. In the West, Muslim women with strong fundamentalist attitudes are rarely the ones who one encounters at mosques (but at home) and are definitely not the ones one is likely to meet in the working world. To them, not only coeducation is of evil but also the inevitable daily contact with males and potential unbelievers. For this reason, fundamentalist movements – whether Islamic, Christian, or Jewish – seek seclusion in their own milieus. Contact with other social groups represents a potential threat. In the eyes of fundamentalist groups, especially the education of the upcoming generation is best provided for by one’s own schools. The same holds true for the “purity” of one’s women, which can be best protected in one’s own milieu.31

30 See Bundesministerium für Familie, Senioren, Frauen und Jugend (BMFSFJ) 2007, Straßburger 2003. 31 See e.g. Riesebrodt 1998.

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Yet, instead of promoting the integration of those female Muslim teachers who wish to integrate by permitting plurality in schools, most German states have legislated for the prohibition of headscarves of Muslim teachers. It is said that the wearing of headscarves would bother the peace in schools. At the same time, German courts, in the name of the freedom of religion, have contributed to the exclusion of pupils from parts of the education system on the grounds that their parents show no willingness to integrate. So, when a class goes on a school trip or learns swimming or gets other co-educative (mixed gender) sport lessons, parts of the new generation of German Muslims are excluded. As far as the teachers’ headscarves are concerned, the sovereignty of the state in terms of its responsibility for education is taken very seriously. With regard to the children, however, the state would seem to take its responsibility much less seriously, thus granting permission to keep children – for religious reasons – from attending classes that are, nevertheless, considered beneficial for them and of high educational value. The allegation that girls will have improper contact with boys during school trips is thus acknowledged. The same holds true for the assumption that sex education or co-educative physical education is indeed problematic.32 Exclusion of Muslim children from the public education system for religious reasons is thus sanctioned to a lesser degree compared to the strict prohibition of participation for female Muslims as teachers in public education. As in many other cases, it seems that in this case too, the societal practice of integrating ‘foreigners’ is much more difficult than accepting their exclusion. Concerning the question of challenges and costs brought forth by religious pluralism in western liberal societies, certain insights may be drawn. Rather than adopting the default position of exclusion, liberal societies should strive actively towards integration of individual members of various religious groups in various social domains. It is only by integration that the members of the minority as well as of the majority can learn from one another and also live peacefully with one another. It is also only by way of integration that change, also within fundamentalist fractions, is made possible. Muslims can engage inner-religious adaptations and new groups bearing religious authority can be promoted. The character of any religion is by no means unchanging, and it is only religious traditionalists and extremists that would wish to hold on to such a view.

32 It may, of course, be worthwhile to reflect on the advantages and disadvantages of co-education across all classes and age groups, although this would not be restricted to sex-education or physical education (commonly deemed problematic on religious grounds), but also to other classes, including maths, literature etc.

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IV Conclusion Religions are part of culture and society. Most religions are not restricted to the realm of the private but are also in the business of shaping the social and public life of its adherents. Just as religions are shaping society, societies are also shaping religion by integrating it into its central institutions like education, culture and media. Taking religious associations seriously and integrating them into the public debates about e.g. liberal values may, of course, be straining and costly, but it is also more sustainable and less expensive than excluding these associations from the public realm altogether.33 As shown by the examples discussed in this paper, the liberal state can limit traditional behaviour and norms of religious traditions in order to preserve basic liberal rights like freedom of choice. As already mentioned, conflicts between religious norms and democratic, secular values and rights may be inevitable. Religious traditions and the adherents of these traditions – if integrated into the mainstream society – have often found ways to balance between their religious requirements and the limitations of the state. Of course, the examples mentioned here represent only a fraction of religious institutions’ agreements with secular requirements that have shaped the norms and traditions of religion, e.g. German Catholicism during the last 100 years. Islamic communities, too, are currently discussing the adoption of several institutional structures of the Christian Churches like Church rate and membership registration, even though it is generally argued that Islamic service should not be costly, and the adherence to Islam should not have formal status. If Muslim associations do adopt these structures in the future, this will have lasting consequences also for the religious meanings of membership, and for Islam in general in the German context. Finally, whereas many of the measures of integration may depend on the religious associations themselves, it is clear that the liberal societies and the liberal state should take the embodiment and establishment of religious pluralism as a public duty, regardless of the possible strains and costs it may bring.

Bibliography Al-Bukhari Sahih (2010): Hadith, Vol. 7, Book 62, Nr. 67 and 68. http://www.usc.edu/schools/ college/crcc/engagement/resources/texts/muslim/hadith/bukhari/(translation by

33 See also Habermas who has commented on the position of religious institutions in modern societies as participants of the social discourses; see Habermas 2006.

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M. Mushin Khan, University of Southern California, Center for Muslim-Jewish Engagement; (seen 25. 03. 2010). Amir-Moazami Shirin (2010), “Dialogue at Eyelevel? The Critical Hermeneutics of State-Initiated Dialogue with Muslims in Germany”, in Sociologie et sociétés 42, 171–196. Amtsgericht Frankfurt am Main (2007): Presseinformation: http://www.ag-frankfurt.justiz. hessen.de/irj/AMG_Frankfurt_Internet?rid=HMdJ_15/AMG_Frankfurt_Internet/sub/37d/ 37d46c69-eb29-411a-eb6d-f144e9169fcc,11111111-2222-3333-4444-100000005003% 26overview=true.htm (seen 2. 3. 2012) Asad Talal (2003), Formations of the Secular. Christianity, Islam, Modernity, Stanford. Bochinger Christoph/Engelbrecht Martin/Gebhardt Winfried (eds.) (2009), Die unsichtbare Religion in der sichtbaren Religion. Formen spiritueller Orientierung in der religiösen Gegenwartskultur, Stuttgart. Bundesministerium für Familie, Senioren, Frauen und Jugend (ed.) (2007), Zwangsverheiratung in Deutschland. Forschungsreihe des BMFSFJ, Vol. 1, Baden-Baden. Gebauer Klaus (1995), Islamische Unterweisung für Schülerinnen und Schüler muslimischen Glaubens in den Schulen Nordrhein-Westfalens (1979–1995): begleitende Informationen und Kommentare (Landesinstitut für Schule in NRW), Düsseldorf. Göle Nilüfer (2004), “Die sichtbare Präsenz des Islam und die Grenzen der Öffentlichkeit”, In: Göle N./Ammann Ludwig (ed.), Islam in Sicht. Der Auftritt von Muslimen im öffentlichen Raum, Bielefeld, 11–44. Gom’a Ali (2006): Recommendations of the Conference – the same value as a Fatwa (subject: Female Mutilation). http://www.target-human-rights.de/HP-08_fatwa/index.php?lang=en& (seen 8. 3. 2012) Inowlocki Lena (1999), “Wenn Tradition auf einmal mehr bedeutet: einige Beobachtungen zu biographischen Prozessen der Auseinandersetzung mit Religion”, In: Apitzsch Ursula (ed.): Migration und Traditionsbildung, Wiesbaden, 76–90. Habermas Jürgen (2006), “Religion in the Public Sphere”, In: European Journal of Philosophy 14 (1), 1–25. Kelek Necla (2011), Himmelsreise. Mein Streit mit den Wächtern des Islam, München. Klinkhammer Gritt (2000), Moderne Formen islamischer Lebensführung, Marburg. Klinkhammer Gritt/Frese Hans-Ludwig/Satilmis Ayla/Seibert Tina (eds.): Interreligiöse und interkulturelle Dialoge mit MuslimInnen in Deutschland, Bremen. Knoblauch Hubert (2009), Die populäre Religion, Frankfurt am Main and New York. Lehmann Hartmut (2004), Säkularisierung. Der europäische Sonderweg in Sachen Religion, Göttingen. Luckmann Thomas (1991), Die unsichtbare Religion, Frankfurt am Main. Micksch Jürgen (eds.) (2007), Evangelisch aus fundamentalem Grund. Wie sich die EKD gegen den Islam profiliert, Frankfurt am Main. Nagel Tilman (2005), “Islam oder Islamismus? Probleme der Grenzziehung”, In: Zehetmeier Hans (ed.), Der Islam. Im Spannungsfeld von Konflikt und Dialog, Wiesbaden, 19–35. Nathan Ben (2010): Wer ist Jude und gleichzeitig nicht-jüdisch?. http://www.hagalil.com/ judentum/rabbi/fh-0803.html (seen 25. 3. 2010) Posch Willibald (2007) “Islamisierung des Rechts?” In: Zeitschrift für Rechtsvergleichung 21, 124–133. Protestant Church of Germany (EKD) (2006), Klarheit und gute Nachbarschaft. EKD Texte 86, Hannover.

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Protestant Church of Germany (EKD) (2000), Zusammenleben mit Muslimen in Deutschland. Eine Handreichung der EKD, Gütersloh. Rahman S.A. (1972), Punishment of Apostasy in Islam, Lahore. Riesebrodt Martin (1998), Pious Passion: The Emergence of Modern Fundamentalism in the United States and Iran, Berkeley. Riesebrodt Martin (2007), Cultus und Heilsversprechen. Eine Theorie der Religionen, München. Rohe Mathias (2009), Das islamische Recht. Geschichte und Gegenwart, München. Schiffauer Werner (1997a), “Der Islam als Civil Religion. Eine deutsche Geschichte”, In: Schiffauer W. (ed.): Islam in der Stadt, 50–70. Schiffauer Werner (1997b), “Islamischer Fundamentalismus. Zur Konstruktion des radikal Anderen”, In: Schiffauer W. (ed.), Fremde in der Stadt. Zehn Essays über Kultur und Differenz, Frankfurt am Main, 172–189. Straßburger Gaby (2003), Heiratsverhalten und Partnerwahl im Einwanderungskontext: Eheschließungen der zweiten Migrantengeneration türkischer Herkunft, Würzburg. Tibi Bassam (2008), Die islamische Herausforderung. Religion und Politik im Europa des 21. Jahrhunderts, Darmstadt. Zentralrat der Muslime in Deutschland e.V. (2010): Islamische Charta. Grundsatzerklärung des Zentralrats der Muslime in Deutschland (ZMD) zur Beziehung der Muslime zum Staat und zur Gesellschaft. http://zentralrat.de/3035.php (seen 1. 4. 2010). Zentrum für Islamische Frauenforschung und Frauenförderung (ed.) (2005), Ein einziges Wort und seine große Wirkung: Eine hermeneutische Betrachtungsweise zum Qur’an, Sure 4 Vers 34, mit Blick auf das Geschlechterverhältnis im Islam, Köln. Zöller Michael (1995), Washington und Rom. Der Katholizismus in der amerikanischen Kultur, Berlin.

Stefan Luft

City and Migration: Selective Migration and Its Consequences A city’s capacity to integrate is influenced by two types of migration: migration from city centers to suburbs (“suburban migration”), and migration within the city from one urban district to another. Both types of mobility have in common that they are a socially selective migration: A realization of the option to migrate causes costs that not everybody can (or wants to) afford. The social consequences of migration are relevant to those areas of the city in which those are gathered, who stay behind. The same applies to schools. Here, the option to migrate is even easier to realize which is why school segregation has always been graver than the segregation of living quarters. With the realization of the migration option financially strong parties (and well-educated parents) maximize their benefit. The general public has to bear the costs of these decisions. In the long term, the basis for economic prosperity is threatened by numerous decisions in favor of individual benefit. Even the economically most powerful part of the population cannot escape these consequences.

1 Polarization of the social environment 1.1 Urban-rural migration Urban-rural migration has been known since the 16th and 17th century. Quantitatively, however, it was always insignificant. It was mainly restricted to exclusive residential areas and the settling of industrial plants in the outskirts of the cities. Since the 19th century urban growth mainly happened through incorporation. In the 1920s an increased rural-urban migration began. Since the 1960s, increased mobility (because of private transport and the expansion of the public transport system) and a lack of decent houses, rising rents and property prices in the cities contributed to the fact that 30 to 50-year-olds – especially1 – started looking for affordable housing in the suburbs. The need for larger space could be met in the countryside rather than in the city. Other

1 See Bucher/Kocks 1987, 693ff.; BMVBS/BBR 2007, 10ff.

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conditions were a considerable gap in land prices2, state funding for home construction, and the tax deductibility of, state funding for home construction, and the tax deductibility of mobility costs between home and work (commuters). Furthermore, growing prosperity made primarily middle-class families want to realize their desire for a “healthy country life” together with proximity to the city. They were also the ones who could afford the costs of mobility. With a “house in the country” the negative aspects of high urban density could be avoided while at the same time the positive aspects of the city (infrastructure of services, social institutions that are offered by the cities – health, culture, education) could still be profited from. One is close enough to the city center to take advantage of the positive aspects and yet far enough away to be no longer exposed to the negative impacts (pollution, crime, etc.).3 For companies significant reasons for relocation were lower location-related costs in the well-developed and low-cost industrial lands4 and an often better highway access.5 Crucial in this context is that this is a decade-long, socially selective migration process, promoting urban segregation processes. The localization of deprived groups who often receive subsidies in the cities has been increased and the capacities of the cities have been weakened considerably: revenues decreased and expenses increased.6 The Federal Office for Building and Regional Planning came to the conclusion in 2005: “By now, it can be showed that outskirts which are about 10 kilometers away from the city limit have the highest average per capita income of the entire urban region. The selective migration of high income earners has led to a belt of prosperity at the outskirts of most major cities. […] However, the poor part of the population is accumulated within the core cities.”7 Since the mid-1980s, suburbanism has slowed down8, but this doesn’t mean a change for continuing disparities.

1.2 Inner-city Migration Social and ethnic groups were never distributed evenly over the area of the cities. The urbanization in the 19th and 20th century was inseparably connected with

2 3 4 5 6 7 8

See Bucher/Kocks 1987, 704ff. See BBR 2005, 191. See Gaebe 2004, 119ff. See Häußermann/Siebel 1987, 28ff. See Anton/Diemert 2009; Boettcher/Junkerheinrich 2011. See BBR 2005, 195. See Bucher/Kocks 1987, 691ff; BMVBS/BBR 2007, 148ff.

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social disparities and segregations of the social environment.9 Historically, they were the normal case. Economic growth in the postwar period in West-Germany allowed for a social policy that strengthened the city’s capacity to integrate. For this reason the years 1950 to 1975 were an exception.10 Even in societies where the housing market dominates the socio-spatial configuration of the cities strong inequalities can occur – mostly independent of the actor’s intentions. Urban Sociology differentiates between “invasion” and “succession” concerning the process of settlement of groups. The process begins with the “invasion” of an ethnic minority in an urban residential area. It in turn has a “succession” as a result: a migration of the original residents and thus an exchange of population and a change of utilization in that area. The socially advanced members of the immigrant group leave these areas at the latest in the second generation.11 These intra-urban migration processes are caused by different motives and reasons – filtering mechanisms of the housing market, people’s interest in the lowest possible cost for their residence and in the association with their fellow countrymen, as well as the retreat of the original residents.12 None of these causes can be singled out from this whole and be made absolute. Invasion-succession- processes also exist in the opposite direction: In the process of gentrification affluent in-movers replace former tenants with a lower status in the competition for residential locations.13 The relocation of the locals depends – according to the “Tipping Theory”14 of Thomas C. Schelling – on a threshold with regard to the proportion of immigrants in the neighborhood.15 If this threshold (tipping point) is reached a “self-sustaining process of departures is created”.16 However, it is questionable whether such an – post factum – empirically detectable threshold can really serve as a means to make statements about maximum concentrations and processes of departure once this concentration is reached. After all, this is about the very subjective assessment of when the feared negative consequences are so severe that the exit option (leaving the district) is actually realized.17

9 See Reulecke 1985, 91ff; Häußermann/Siebel 2001, 28ff. 10 See Krämer-Badoni 2002, 72f; Kronauer 2007, 72f. 11 See Hoffmeyer-Zlotnik 1976, 22f. For the process of group settlement in Berlin since the 1970s see: Luft 2009, 133ff. 12 See Hoffmeyer-Zlotnik 1976, 102f.; Friedrichs/Triemer 2008. 71ff. 13 See Dangschat 1988. 14 See Thomas C. Schelling 1978. 15 See Kecskes/Knäble 1988. 16 Ibid., 296. 17 See Dangschat 2002, 27f.

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The more the minority groups have developed their own infrastructures, the less contact there normally is to the “outside world”. Living in ethnic colonies favors the development of resentments on both sides: with the immigrant groups as well as with the original residents of the area and the local population in general. Depending on the size and visibility of the immigrant group, and how it stands out from the locals, the greater the acceptance of it decreases in the host society. The formation of ethnic colonies is thus not viewed by deprived locals as an expression of the feeling of belonging to the ethnic minority but instead as a threat.

1.3 Demographic Influences Until the late 1970s social (poor/rich) and demographic segregation (old/young, childless/with many children) was registered. In the 1980s an ethnic component was added. Meanwhile it correlates in such a strong way with the two other factors that today an ethnic concentration in neighborhoods is usually synonymous with poverty and many children.18 Statistically families are today “the way of life of the socially disadvantaged and the immigrants”.19 In a “social environment analysis” for North Rhine-Westphalia it was found that “the vast majority of the now numerous ‘foreigners’ […] today [lives] in districts where the poorest residents are living, and today (at least in cities) also most of the families and children are living there.”20 This has intensified over the past decade, which is mainly expressed in increasing social welfare in the relevant quarters.21 More and more parts of the city are characterized by poverty segregation: The probability (especially for immigrants) to live in ethnically segregated areas increases with an increasing of low income and a low educational level.22 Given the increasing disparities, the authors of “Monitoring Social Urban Development Berlin 2007” are speaking of a “divided childhood”: “More and more children [live] in an environment with growing problems compared with children in an environment with fewer problems”.23 Ethnic segregation in Germany as a whole is less severe than e.g. in the United States. It dropped down in the last 40 years.24

18 19 20 21 22 23 24

See ILS 2006, 7. ILS 2006, 31. Ibid.: 38. See Schönwälder/Söhn 2007, 24f.; Häußermann/Kronauer 2009, 128ff. See Janßen/Schroedter 2007, 468. Häußermann et al 2007, 78. Friedrichs/Triemer 2008, 76ff.; Friedrichs/Nonnenmacher 2008; Friedrichs 2008, 387ff.

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However, the “Federal Office for Building and Regional Planning” (BBR) has pointed out with regard to the severe segregation of the Turkish community that “the intensity of ethnic residential segregation in German cities is in many cases comparable with North American segregation indicators of immigrant cities. Residential segregation is thus an ordinary phenomenon in German cities“.25 The BBR has come to the conclusion that in some 1,500 communities in 500 districts the immigrant population is very high and, at the same time, the purchasing power is very low. 7.7 percent of all residents live there, 25 percent of all immigrants and 31 percent of Turkish immigrants plus a number of children and young people which is above average.26 The main problem is the overlapping of ethnic and social segregation which has led to socially deprived areas with strong ethnic components.27 They are the result of socially selective migration: For more than 30 years the socio-environmental polarization and social “segregation” of the residential population is inreasing in a majority of cities.28 Social and ethnic segregation are closely related.29

1.4 Educational Segregation The socio-environmental segregation of the population is reflected in educational institutions. This is expressed in the fact that – 60 percent of children with a migration background are attending child care centers in Western Germany, where the proportion of children with a migration background is above national average30; – 30 percent of all children with non-German as a family language visit day care in which at least 50 percent also do not speak German at home31; – one in four adolescents with but only one in twenty without a migrant background attends a school in which the majority is immigrants32;

25 BBR 2008, 7. 26 See ibid., 8f. 27 See Häußermann/Siebel 2001, 63. 28 See Häußermann 2001, 63ff.; Friedrichs/Triemer 2008, 34ff; Federal Ministry for Transport, Building and Urban Development 2009. 29 See Friedrichs/Triemer 2008, 109. 30 See Group of Authors Bildungsberichterstattung 2008, 53. 31 See ibid. 32 See Consortium Education Report in 2006, 162.

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only 31.2 percent of German adolescents but 82.6 percent of Turkish adolescents are educated in classes where the proportion of immigrants exceeds the average value of each of the respective city or rural district.33

The already discussed social and spatial polarization of cities with the consequence of strengthening ethnic and social underclass concentrations is noticeable in a special way in preschool and educational segregation – it is usually more severe than residential segregation.34 The concentration of non-German children in elementary schools is increased in relation to the size of the city – it is most severe in big cities.35 One reason for this is the behavior of locals (and socially advanced immigrants), who do not want to send their children to schools with a high percentage of immigrants. An additional reason is the increasing dissolution of fixed primary school areas (“school districts”).36 Thus ethnic-social polarization is enhanced: Schools with higher than average percentages of children with a migrant background are opposed to schools with only a very small number of children with a migrant background. For elementary schools in Berlin, Ditton and Krüsken found that in 172 classes (16 percent) no student was recorded with “non-German origin” whereas 64 school classes (six percent) consist exclusively of children who “are non-German”. On average the percentage of students with “non-German origin” in Berlin elementary schools is 34 percent.37 It turns out that on the level of school-classes there exists a very strong correlation between reading skills and the percentage of pupils with non-German origin.38“The results show […] consistently a significantly poorer performance in reading by a high degree of less privileged social groups or educationally disadvantaged people. Significantly poorer academic performance, beyond an individual student’s talents, arises if a class has an unfavorable composition according to characteristics of social origin”.39 In schools with more than 50 percent of immigrants those adolescents dominate who don’t speak German at home. Here, the connection between ethnic concentration in the living environment and the use of the second language (German) becomes clear: One in six students in such schools speaks the

33 34 35 36 37 38 39

See Baier/Pfeiffer/Windzio 2006, 256. See BBR 2008, 11. See ibid. See Klemm 2008, 27. Ditton/Krüsken 2006, 142. See ibid., 142f. See ibid., 152.

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language spoken at home also with his/her friends. Immigrant adolescents, attending schools with a low percentage of immigrants (less than a quarter), however speak German for the most part (93 percent) with their friends. “Schools with a high percentage of migrants work apparently in a social environment that is characterized by a total isolation of social and ethnic groups”.40 School segregation is reinforced by the socially selective migration from public to private schools. The proportion of students from “well-educated” family backgrounds who attend private schools has significantly increased in recent years – between 1997 and 2007 by 77 percent. In “uneducated” homes the increase is, however, only twelve per cent. A total of about seven percent of all students attends a private school, at Gymnasiums at least eleven percent.41 Heike Diefenbach calls this an “ethnic segmentation”: “In the course of their education, foreign students are more and more divided from German students which results in an ethnic segregation in the sense that foreign students and German students represent, at least partially, parallel student bodies. Each attending one or the other type of schools and, accordingly, each with more or less separated backgrounds, at least according to the feature ‘German’ – ‘nonGerman’. Therefore could call the German educational system as (even though not all states or all types of schools are the same) ethnically segmented”.42 There is a connection between ethnic-social concentrations in classes and their performance. The PISA survey fixes the critical bench mark at 20 percent. Accordingly, “from a 20-percent share of migrants in whose families German is not the common language, significantly weaker performance at school can be observed”.43

2 Impacts of Socially Selective Migration Ethnic-social underclass concentrations in cities bear in many ways a negative impact – particularly on children and adolescents. They lack positive role models, their networks are usually limited to their ethnic and social group.44 But the integration of parents and students in social and informal networks is of importance for the chance of getting a training position or a job. Below average

40 41 42 43 44

Educational Reporting Consortium 2006, 163. See Lohmann/Spieß/Feldhaus 2009, S. 642ff. Diefenbach 2008, 77. See Baumert et al 2003, 56. See Hirschman 2004/1974, 43.

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participation in these networks (for instance because of their own job- position or due to permanent unemployment) has a negative effect on the chances of the children.45 Vice versa, the involvement of young people in local voluntary organizations increases their chances of finding a training position. “Those, who are already active during school time at the local fire department, the German Federal Agency for Technical Relief (THW), an emergency rescue service or something similar are able to find a training position much faster than others”.46 “The greater part of the younger generation” – Strohmeier and Kersting concluded, “grows up in big cities under living- conditions that include the everyday experience of poverty, unemployment, social exclusion and apathy, health problems, broken families, possibly also violence and neglect. Children in deprived neighborhoods experience deviating social norms. […] The majority of children in big cities will grow up under such conditions in the future. They may, if all goes well, acquire skills that will enable them to survive in this deviating normality but they have little chance to experience the usefulness of those skills that amount to the so-called ‘human capital’, solidarity, empathy, ability to trust someone and trustworthiness … Having access to this ‘cultural’ capital and to ‘social capital’ in cases when helpful relations are needed – and not so much the possession of economic capital – is the crucial starting advantage of children belonging to the middle class.”47 There is a noticeable connection between the ethnic context in the host country and the acquisition of the second language. Depending on the closeness of contacts with people of the same ethnic background in everyday life (media in the native language, the native language as a spoken language with family and friends, for example), the greater someone benefits from his/her language of origin, his/her motivation to make the effort of learning the second language decreases.48 Thus, more attention must be paid to securing access to learning the language of the host country. In this context one could expect much more of “a field of practical intervention, especially in pre-schools, in a sense that such an intervention would have a lasting effect on integration in contrast to the vast majority of measures that have been tried or proposed, such as bilingual education in schools and language courses for adults.”49 Esser concludes that ethno-linguistic concentrations and concentrations of children from socially deprived backgrounds, which are usually connected, as

45 46 47 48 49

See Boos-Nünning 2006, 18ff.; Kalter 2006. Beicht/Friedrich/Ulrich 2007, 5. Strohmeier/Kersting 2003, 238f. See Esser 2006, 85ff.,143ff., 337ff. Esser 2008, 227.

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well as effects on the learning environment and learning effectiveness are “one of the main causes of ethnic differences in academic (language-) accomplishments. Mixed groups in schools and classrooms would be an important part of the solution to the problem (taking into account thresholds, for example the results from the PISA survey)”.50 The negative effects of ethnic concentration in schools do not only affect the development of language skills but also an inclination towards violence. Research of the Criminological Research Institute of Lower Saxony shows “a correlation between the immigrant share of a class and their own violent behavior. Where many immigrant children are in a class the individual child has a high tendency towards violence. (…) In cases where migrant children attend a class where there are mostly German children, they adjust their behavior to that of the Germans. On the other hand, classes with a high percentage of migrants offer more possibilities for the formation of (ethnically homogeneous) groups and cliques out of which violence is perpetrated”.51

3 Conclusion A different structure of the population in socio-ethnic concentrations of the lower class cannot be achieved by means of administrative measures. Efforts to curtail ethnic segregation and socially selective intra-urban migration have been made for decades – so far without success. A revaluation of deprived residential areas is difficult and also leads to new relocation processes. As a result, the problem only shifts but isn’t solved. An even distribution of ethnic and social groups over the city cannot be the target of local politics but the concentration of a socioethnic underclass in deprived neighborhoods can also not be tolerated. Affluent citizens have to contribute more strongly to intra-urban expenses.52 The necessary equalization of burdens is also required for pre-school institutions and schools. The share of children with a non-German origin which is high above average in pre-school institutions and primary schools has to be reduced. This can only happen by distributing students to other parts of the city where the student population is more homogeneous. So far integration has been largely organized in connection with social classes: Deprived locals were confronted

50 Esser 2006a, 70; see also Esser 2008, 227. 51 Baier/Pfeiffer/Windzio 2006, 262. 52 See Anhut/Heitmeyer 2000, 560.

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with the integration of deprived immigrants, not least because they neither have the opportunity to migrate nor the ability to lodge a protest. All social classes have to take part in facing the challenge of integration. It is clear that my proposal would be met with considerable political resistance, but is necessary in order to reduce the potential conflicts within society. Whereas the intra-urban distribution can only serve as a temporary solution, this transition would, however, probably last for a considerable amount of time. The here proposed distribution that doesn’t rely on shared living-spaces would keep the balance between closeness and distance. Still, positive effects of increasing contacts could occur.53 Also mixed networks with their positive effects would grow more easily.54 Massey has pointed out that white Americans may have no interest in desegregating the ghettoized African-American population because they benefit from segregated environments (among other things they are spared from a higher crime rate). “A major reason for the lack of change is that most Americans, particularly whites, perceive themselves as benefitting from the social arrangements that produce racial segregation. If poverty rates are higher for blacks and if crime is associated with poverty, then, by isolating blacks in segregated neighborhoods, the rest of society insulates itself from the crime and other social problems that stems from the higher rate of black poverty”.55 However, Massey stresses, this is a very short-term perspective. In the long term the accumulation of problems caused by severe segregation will negatively affect society as a whole. “By segregating blacks and their social problems, in other words, poor whites derive a benefit in the form of lower rates of neighborhood crime. Even though society as a whole may be damaged by this arrangement, and long-term costs may be greater, whites generally perceive themselves to be better off as a result of segregation”.56 Only in this way a sustainable city policy creates conditions for the possibility of integration into the host society. “Despite the efforts of white Americans to escape urban problems through segregation, they will inevitably end up by paying the costs – directly in the form of higher expenses for insurance, health care, criminal justice, security, and education, and indirectly in the form of reduced competitiveness in world markets, diminished quality of life, and a retreat from American democratic ideals”.57 The affluent part of the population can indeed use time and again (by choosing their home or schools)

53 54 55 56 57

See Weins 2011. See Blasius/Friederichs/Klöckner 2008, 111, 147. Massey 1995, 1224. Ibid., 1226. Ibid., 1232.

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its migration options, but it cannot escape the social consequences of its decisions in the long term.58 This is also true for education policy. Hirschman expects that parents who are ready to migrate would not send their children to private schools considering the common good.59 Would parents only have in mind the international competitiveness of the extremely export-oriented Federal Republic, this would be a rational decision. Regardless of this, the state needs on the one hand to invest more than ever (at least the “demographic rate of return” that is caused by decreasing numbers of students and resulting savings potential) in public education. Even so, this is extremely unlikely because of spending restrictions, the so-called “debt limit”60, imposed by the German legislator on federal and state governments, and also because of rapidly rising debts in the light of financial and economic crises. On the other hand, fair equal opportunities have to be realized that allow also children (whether or not immigrated) with deprived backgrounds an easier way to integrate themselves successfully.

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58 See Hirschman 2004/1974, 86f. 59 See ibid., 85f. 60 See Art. 109 Grundgesetz. The “Grundgesetz” (GG) is the Basic Law for the Federal Republic of Germany.

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Beicht Ursula/Friedrich Michael/Ulrich Joachim Gerd (eds.) (2007): Deutlich längere Dauer bis zum Ausbildungseinstieg, BIBB Report. Forschungs- und Arbeitsergebnisse aus dem Bundesinstitut für Berufsbildung. H. 02/2007, Bonn. Boettcher Florian/Junkernheinrich Martin (2011): “Kommunalfinanzen im Jahr 2010: Krisenverschärfung und Disparitätenzunahme”, In: Junkernheinrich Martin/Korioth Stefan/Lenk Thomas/Scheller Henrik/Woisin Matthias (eds.), Jahrbuch für öffentliche Finanzen 2011, Berlin, 271–291. Boos-Nünning Ursula (2006), “Berufliche Bildung von Migrantinnen und Migranten. Ein vernachlässigtes Potential für Wirtschaft und Gesellschaft”, In: Friedrich-Ebert-Stiftung (ed.): Kompetenzen stärken, Qualifikationen verbessern, Potentiale nutzen. Berufliche Bildung von Jugendlichen und Erwachsenen mit Migrationshintergrund, Bonn, 6–29. Bucher Hansjörg/Kocks Martin (eds.) (1987): “Die Suburbanisierung in der ersten Hälfte der 80er Jahre”, In: Informationen zur Raumentwicklung 13 (11), 689–707. Bundesministerium für Verkehr, Bau und Stadtentwicklung/Bundesamt für Bauwesen und Raumordnung (BMVBS/BBR) (eds.) (2007): Akteure, Beweggründe, Triebkräfte der Suburbanisierung, BBROnline-Publikation, Nr. 21/2007. http://www.bbsr.bund.de/cln_032/ nn_816658/BBSR/DE/Veroeffentlichungen/BBSROnline/2007/DL__ON212007, templateId=raw,property=publicationFile.pdf/DL_ON212007.pdfhttp://www.bbsr.bund. de/cln_032/nn_816658/BBSR/DE/Veroeffentlichungen/BBSROnline/2007/ DL__ON212007,templateId=raw,property=publicationFile.pdf/DL_ON212007.pdf (seen 2. 4. 2012) Dangschat Jens S. (1988), “Gentrification: Der Wandel innerstädtischer Wohnviertel”, In: Friedrichs Jürgen (ed.), Soziologische Stadtforschung Sonderheft 29, 271–292. Dangschat Jens S. (2002), “Residentielle Segregation – die andauernde Herausforderung an die Stadtforschung”, In: Fassmann Heinz/Kohlbacher Josef/Reeger Ursula (eds.), Zuwanderung und Segregation. Europäische Metropolen im Vergleich, Klagenfurt, 25–36. Ditton Hartmut/Krüsken Janina (eds.) (2006), “Sozialer Kontext und schulische Leistungen: Zur Bildungsrelevanz segregierter Armut”, In: Zeitschrift für Soziologie der Erziehung 26 (2), 135–157. Esser Hartmut (2006), Sprache und Integration: Die sozialen Bedingungen und Folgen des Spracherwerbs von Migranten, Frankfurt am Main and New York. Esser Hartmut (2006a): Migration, Sprache und Integration, Arbeitsstelle Interkulturelle Forschungsbilanz 4, Berlin. Esser Hartmut (2008), “Spracherwerb und Einreisealter: Die schwierigen Bedingungen der Bilingualität”, In: Kalter Frank (ed.), Migration und Integration (Kölner Zeitschrift für Soziologie und Sozialpsychologie Sonderheft 48), 202–229. Friedrichs Jürgen (2008), Ethnische Segregation, In: Kalter Frank (ed.), Migration und Integration (Kölner Zeitschrift für Soziologie und Sozialpsychologie Sonderheft 48), 380–411. Friedrichs Jürgen/Triemer Saschka ( 2008), Gespaltene Städte? Soziale und ethnische Segregation in deutschen Großstädten, Wiesbaden. Friedrichs Jürgen/Nonnenmacher Alexandra (2008), “Führen innerstädtische Wanderungen zu einer ethnischen Entmischung von Stadtteilen?”, In: Hillmann Felicitas/Windzio Michael (eds.), Migration und städtischer Raum. Chancen und Risiken der Segregation und Integration, Opladen and Farmington Hills, 31–48. Gaebe Wolf (2004), Urbane Räume, Stuttgart. Häußermann Hartmut/Siebel Walter (eds.) (1987), Neue Urbanität, Frankfurt am Main.

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Häußermann Hartmut/Siebel Walter (eds.) (2001), “Soziale Integration und ethnische Schichtung. Zusammenhänge zwischen räumlicher und sozialer Integration”, In: Gutachten im Auftrag der Unabhängigen Kommission „Zuwanderung“, Berlin and Oldenburg. Häußermann Hartmut/Gorning Martin/Kapphan Andreas (2007), Monitoring Soziale Stadtentwicklung 2007, Fortschreibung für den Zeitraum 2005–2006. http://www.stadtentwicklung.berlin.de/planen/basisdaten_stadtentwicklung/monitoring/download/2007/ Endbericht-Monitoring2007.pdf (seen 2. 4. 2012) Häußermann Hartmut/Martin Kronauer (eds.) (2009), “Räumliche Segregation und innerstädtisches Getto”, In: Robert Castel/Dörre Klaus (eds.): Prekarität, Abstieg, Ausgrenzung. Die soziale Frage am Beginn des 21.Jahrhunderts, Frankfurt am Main, 113–130. Hirschman Albert O. (1974/2004), Abwanderung und Widerspruch. Reaktionen auf Leistungsabfall bei Unternehmungen, Organisationen und Staaten, Tübingen. Hoffmeyer-Zlotnik Jürgen (1976), Der Prozess der Sukzession. Die Unterwanderung von BerlinKreuzberg, Hamburg. Kecskes Robert/Knäble Stephan (1988), “Der Bevölkerungsaustausch in ethnisch gemischten Wohngebieten. Ein Test der Tipping-Theorie von Schelling”, In: Friedrichs Jürgen (ed.): Soziologische Stadtforschung 29, 293–309. Klemm Klaus (2008), “Bildung und sozialräumliche Segregation in Deutschlands Großstädten”, In: Wernstedt Rolf/John-Ohnesorg Marei (ed.), Soziale Herkunft entscheidet über Bildungserfolg. Konsequenzen aus IGLU 2006 und PISA III, Berlin, 25–28. Konsortium Bildungsberichterstattung (2006), Bildung in Deutschland, Ein indikatorengestützter Bericht mit einer Analyse zu Bildung und Migration. Im Auftrag der Ständigen Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland und des Bundesministeriums für Bildung und Forschung, Bielefeld. Krämer-Badoni Thomas (2002), “Urbanität, Migration und gesellschaftliche Integration”, In: Löw Martina (ed.), Differenzierungen des Städtischen, Opladen, 69–86. Kronauer Martin (2007), “Quartiere der Armen: Hilfe gegen soziale Ausgrenzung oder zusätzliche Benachteiligung?”, In: Dangschat Jens S./Hamedinger Alexander (eds.), Lebensstile, soziale Lagen und Siedlungsstrukturen, Hannover, 72–90. Institut für Landes- und Stadtentwicklungsforschung und Bauwesen des Landes NordrheinWestfalen (ILS) (ed.) (2006), Sozialraumanalyse. Soziale, ethnische und demografische Segregation in den nordrhein-westfälischen Städten, Dortmund. Janßen Andrea/Schroedter Julia H. (2007), “Kleinräumliche Segregation der ausländischen Bevölkerung in Deutschland: Eine Analyse auf der Basis des Mikrozensus”, In: Zeitschrift für Soziologie 36 (6), 453–472. Kalter Frank (2006), “Auf der Suche nach einer Erklärung für die spezifischen Arbeitsmarktnachteile von Jugendlichen türkischer Herkunft”, In: Zeitschrift für Soziologie 35 (2), 144–160. Luft Stefan (2009), Staat und Migration. Zur Steuerbarkeit von Zuwanderung und Integration, Frankfurt am Main. Lohmann Henning/Spieß Katharina C./Feldhaus Christoph (eds.) (2009), “Der Trend zur Privatschule geht an bildungsfernen Eltern vorbei”, In: DIW Wochenbericht 38, 640–646. Massey Douglas S. (1995), “Getting away with murder”, In: University of Pennsylvania law review 143 (5), 1203–1232. Reulecke Jürgen (1985), Geschichte der Urbanisierung in Deutschland, Frankfurt am Main. Schelling Thomas C. (1978), Micromotives and Macrobehavior, New York and London. Schönwälder Karen/Söhn Janina (eds.) (2007), Siedlungsstrukturen von Migrantengruppen in Deutschland: Schwerpunkte der Ansiedlung und innerstädtische Konzentrationen, Berlin.

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Pfeiffer Christian/Windzio Michael/Baier Dirk (eds.) (2006), “Vorschläge zur Gewaltvorbeugung und sozialen Integration”, In: Heitmeyer Wilhelm/Schröttle Monika (eds.), Gewalt. Beschreibungen, Analysen, Prävention, Bonn, 276–290. Strohmeier Klaus Peter/Kersting Volker (eds.) (2003), “Segregierte Armut in der Stadtgesellschaft. Problemstrukturen und Handlungskonzepte im Stadtteil”, In: Informationen zur Raumentwicklung 3 (4), 231–246. Weins Cornelia (2011), “Gruppenbedrohung oder Kontakt? Ausländeranteile, Arbeitslosigkeit und Vorurteile in Deutschland”, In: Kölner Zeitschrift für Soziologie und Sozialpsychologie 63, 481–499.

Index Aboriginal peoples, see: Indigenous peoples abortion 168 accommodation 8, 10, 45, 53–55, 116, 118, 135–136 administration 51, 133, 163 African-American 183 agency 18, 22, 25, 116, 119, 127 Al-Bukhari, Hadith von 167 American Indian 80 Amish 89, 103 Anscombe, Elizabeth 48 anthropology 22, 68 Appellate Court (New Jersey) 102, 105–106 Appiah, Kwame 54, 83, 96 Arendt, Hannah 110 Asad, Talal 159 authority 1, 18–19, 38, 40, 53, 59, 71, 86, 89, 92, 128, 132, 153, 158, 160, 170 – group 1, 89, 92 – parental 128, 132 – religious 160, 170 autonomy 2, 3, 9–10, 14, 17–18, 21–25, 27–30, 53, 68, 116, 118–125, 127–128, 131, 134, 136, 143–145, 153–154, 169 – associational/collective 10–11, 116, 118, 121–124, 127, 134, 136–137 – group 2–3, 125 – individual 17, 53, 116, 118–123, 128 – legal 119, 143–145, 153–154 – political 22 116, 119 Baghdadi, Ahmed 165 baptism 127, 163–164 Barry, Brian 5, 35, 45, 68–69, 78, 90, 95, 104, 122 belonging 10, 26, 58, 65, 68, 71, 73, 76, 79–82, 88–90, 92–94, 96–100, 102, 104–107, 109–113, 127–128, 143, 163, 177, 181 – former/past 102, 105, 107, 109–110 – sense of 88–90, 143, 163 Burke, Edmund 109

Catholism/Catholic 48, 80, 81, 82, 83, 88, 90, 91, 92, 95, 125, 150, 163, 164, 168 children/minors 8, 11, 14, 26, 29, 39, 42–43, 45–46, 51, 85, 103, 112, 118–119, 126, 128, 131–133, 140–154, 161, 166, 170, 177–180, 182 Christianity/Christian 79, 135, 142, 157, 159–161, 163–164, 169, 171 citizenship 2, 27, 44, 46, 64, 102, 111 civil code 144, 146 clitoridectomy, see: female genital cutting coercion 23, 25, 27, 30 community, see: groups constitutionalism 116, 117 contraception 43 costs of exit 5, 20, 45, 60, 66, 78, 90, 94, 129–130, 143, 166, see also: exit costs – external 5, 104, 130 – financial/material 5, 112, 130 – psychological 5, 130, 143 – social 5, 130, 142 cost-benefit-analysis 66–68, 77, 108 criminal code 144, 152 criminal law 29 cultural – communities/groups 6–7, 9–10, 13, 17–18, 20, 24, 35, 38, 41–42, 44–46, 49–50, 52–53, 57, 65–70, 72, 74, 76, 78–79, 88–90, 93–94, 96–100, 116, 122, 127–128, 154 – defence 38, 107 – identity 26, 57–58, 65, 68, 73, 76, 78, 86 – imperialism 150 – membership 78–79, 166 – minorities 13, 132, 133, 150 – practices/traditions 50, 52, 54–55, 122, 127, 158 – rights 35, 141, 150, 151 culture – claims of 20, 52 – dominant/majority 140, 147, 154 – right to 18

190

Index

democracy 116–117, 121, 124, 134–135, 159 Deveaux, Monique 28, 134–135 Diefenbach, Heike 180 disassociation 102, 104–105, 143 discrimination 116, 121, 123–126 dissent/dissenter(s) 6, 38, 40–41, 46, 48, 92, 98, 149–150, 165, 169 diversity 2, 13, 121–122 divorce 15, 34, 42–43, 116, 124–125, 129, 131, 157, 166–168 economics 10, 57–58, 61–62, 66, 68–69, 75–76 education 11, 25–27, 42–43, 49–51, 104, 126–128, 131–133, 141–142, 147, 149–150, 154, 157, 160–162, 166, 169–171, 175, 180–181, 183 entry, freedom(s) of 10–11, 116, 118, 127, 129, 134 equal opportunities 11, 124–126, 184 equality 11, 13–14, 20, 41, 53, 86, 121, 124–125, 161 ethical theory 53 ethnicity/ethnic 4, 22, 24–27, 54, 82, 109–110, 118, 122, 140, 162, 175–180, 182 European Court of Human Rights 147, 149, 162 exemptions 35, 95, 98, 103, 126, 144, 150 exit – capacity to 41–42, 47, 50 – conditions of 9, 14, 30, 75 – costs 68–69, 104, 130–131, see also: costs of exit – freedom(s) of 1, 34–35, 37, 43–33, 54, 116, 129, 131 – right of, see: rights of exit expulsion/excommunication 20, 31, 90, 129, 134, 163 family law 125, 167 female genital cutting 43, 49–50, 124 feminism/feminist 5, 9, 20, 22, 27, 35, 36, 52–53, 55, 91, 134, see also: gender, women – and multiculturalism 22, 35–36, 52

FGC, see: female genital cutting footbinding 49, 50 forced marriage 27, 29 free market 57, 64 freedom/liberty 2, 6–7, 19–20, 25, 27, 34–40, 42–44, 48–49, 52–55, 90, 103–104, 106, 108, 116, 123–124, 127, 129, 132, 134, 140, 145–146, 149–150, 157, 159, 163, 165, 170–171 – of association 6, 54, 103, 104, 108 – of belief 163 – of choice 157 – of conscience 2, 6, 19, 123 – of movement 108 – of religion 2, 6, 103, 104, 106, 108, 145, 150, 163, 165, 170 Galston, William 5, 42, 48, 78, 121, 129–130, 135 gender 17, 25, 27, 30, 41–42, 86, 102, 123, 127, 166–167, 170, see also: feminism, women genital mutilation, see: female genital cutting Germany/German 8, 11, 15, 59, 132, 140, 141–151, 153–154, 157, 161–171, 176–182, 184 – DITIB e.V. 161–162 – Federal Constitutional Court 146–147, 162–163, 169 – Frankfurt District Court 15, 166 globalization 161 Green, Leslie 21 group(s)/communities – cultural, see: cultural – constitutive/identity conferring 4, 71, 76, 79–83, 88–91, 97 – ethnic 24, 82, 175, 180 – ethno-religious 123–124 – illiberal 7, 11, 19, 35, 111–113, 142 – minority 7–8, 11, 44–46, 54, 64, 118, 131, 140, 150 – religious 4, 6, 8, 10, 13–14, 17, 20, 23–24, 35, 42, 57, 62–66, 70, 73, 75–76, 81–82, 85, 87, 89–90, 99–100, 102–104, 118, 123–124, 127, 129, 140–141, 143, 157, 161–164, 169–170

Index

Halbertal, Moshe 13, 17, 18, 20, 28 harm principle 18 headscarf/headscarves 23, 142, 162, 169–170 Hindu 125 Hirschman, Albert 1, 57–63, 65–68, 74–76, 127, 184 homosexuality 168 honour killing 124 human rights 14, 107–108, 119, 123, 147, 149, 162 Hutterites 89 identity/identities 4, 6, 10, 17–18, 26, 44, 46, 57–58, 65–66, 68, 70–71, 73, 75–76, 78–83, 86, 88–97, 100, 102, 107–108, 110, 112–113, 127, 130, 141, 145, 150, 154, 158, 162, 164 – cultural 26, 57–58, 65, 68, 73, 76, 78, 86, 141, 150 – group 44 – individual 44, 66 – religious 162, 164 immigration/immigrant(s) 30, 46, 111, 131, 176–179, 182–183, see also: migration Indigenous/Aboriginal peoples 26, 79–80, 82, 88, 90–92, 95, 111, 122 individualization 160, 162 indoctrination 42, 47 integration 6, 7, 11, 161–162, 169–171, 180, 182 interference/intervention 2, 7, 18–19, 35, 41–42, 44, 46–47, 51–52, 64, 78, 93, 97–98, 123–125, 133–134, 136, 140, 145, 150, 181 Islam/Islamic 11, 135, 142, 145, 150–151, 157, 159–162, 164–165, 167–169, 171, see also: Muslims Islamization 167 Java/Javanese 49, 51 Jehovah\[s Witnesses 166 Judaism/Jewish 125, 157, 160, 161, 164, 169 jurisdiction 89, 124, 133, 167, see also: law Kälin, Walter 146–147, 149–150, 154 Kant, Immanuel 22

191

Kartini, Raden Adjeng 34, 49, 51 Kelek, Necla 160 Kersting, Volker 181 Koran, see: Quran Korsgaard, Christine 25 Kukathas, Chandran 5, 7, 9, 13, 18–21, 28, 35, 44–46, 52, 67, 69, 78, 102, 121, 130, 140, 142–143 language/linguistic 7, 11, 17, 26, 121–122, 127, 135, 162, 178–182 law 2, 11, 15, 21, 23, 26, 29–30, 43, 49, 106, 117–119, 124–126, 128–129, 132, 135–136, 140, 142, 144, 146, 148, 151–154, 157, 163–164, 166–168 legal assistance 98 legal autonomy 119, 143–145, 153–154 legal system(s) 11, 102, 104–105, 107–110, 129, 140, 154 liberal society 38, 89, 141, 152, 157, 166 liberalism 22, 34, 48, 80, 116, 118, 121–122, 140 libertarianism 118 liberty, see: freedom loyalty 1, 58–62, 66–67, 75, 109, 127, 134, 159 Lukes, Steven 82, 89 Macedo, Stephen 48, 104 Mackenzie, Catriona 22 Mackie, Gerry 50 Margalit, Avishai 13, 17–18, 20, 28, 135 marriage/married 14–15, 26–31, 42–43, 46, 49, 51, 85, 105, 107, 124–125, 129, 157, 166–168 – arranged 31, 125, 168–169 – customs of 42 – forced 27–31, 51, 168–169 Martinez, Julia 85–86 membership/member(s) 1–3, 6, 10, 14, 16, 18–21, 24, 29, 36–38, 44–46, 57–58, 62, 64–66, 69–71, 73–75, 78–100, 102, 104, 110–111, 118, 123, 125–126, 128–129, 147–148, 154, 163–164, 166, 171 – cultural 78, 79, 166 – criteria of 88, 91–92, 97–100

192

Index

– group 2–3, 6, 10, 16, 21, 44–45, 57, 64–65, 67, 79–71, 73, 75–76, 79–80, 82–84, 86–88, 90–100 migration 11, 47, 150, 158, 174, 176, 178, 180, 182, see also: immigration/ immigrant(s) Mill, John Stuart 48 Miller, David 110, 135 minors, see: children minorities within minorities 64, 116, 118, 124, 131, 135–136 minority/minorities 2, 7, 8, 11, 13–14, 26, 29–30, 34, 40, 44–46, 52, 54, 64, 78, 95, 116–118, 123–124, 126–128, 131–137, 140–142, 150, 152, 154, 157, 161, 170, 176–177 – cultural 13, 132–133, 150 – ethnic 26, 54, 176–177 – linguistic 26 – religious 13–14, 26, 29, 78, 95, 128, 133, 135, 140–141, 157 – sexual 14, 140 minority rights, 2, 95, see also: rights moral minimalism 116, 121, 131 Morocco 15, 105–107 multicultural/multiculturalism 1–3, 6, 8–10, 13–14, 19–20, 22–23, 29, 34–36, 45, 52–53, 55, 57, 62–69, 73–78, 118, 135, 140–141, 149, 152, 157 – liberal 2–3, 9, 57, 63, 65–67, 73, 75, 86–87, 149, 152, 157 – feminism and 22, 35–36, 52 Muslim(s) 11, 15, 79–82, 88, 90–92, 95, 105, 125, 129, 135, 161–162, 164–165, 167–171, see also: Islam Nagel, Tilman 160 nationalism/nationality 107, 118, 145 New Apostolic Church 166 New Jersey Superior Court 105 Okin, Susan M. 5, 14–15, 28, 30, 34–36, 41–45, 47, 49, 51–52, 78, 92, 102, 130, 134, 140 open borders 103–104 opportunity/opportunities 6, 11, 20–21, 35, 37, 42–43, 49–52, 65, 95, 120,

124–126, 131, 133, 135–136, 154, 168–169, 181, 183–184 – costs 20–21, 65 – educational 43, 95 – equal 11, 124–126, 184 oppression/oppressed 6, 22, 25–26, 30, 35, 41, 43, 52, 63, 67, 70, 96, see also: discrimination Orthodox 28, 103, 125, 161 past wrong(s)/injustice(s) 4, 7, 103, 107–113 paternalism 121 personality identity 17–18 Phillips, Anne 5, 14, 26, 28–29, 31, 78, 92, 134, 140 PISA survey 182 pluralism 11, 24, 117, 128, 133, 136, 157, 159–160, 170–171 – institutional 11, 117, 133, 136 – religious 11, 157, 160, 170–171 political philosophy 17, 55, 57, 65, 119 political theory 53–54, 80, 102–103, 105, 107, 113 poverty 111, 131, 177, 181, 183 preferential treatment 95, 98 Protestant/Protestantism 42, 125, 161, 163, 168 psychology 37, 68 Pueblo 85–86, 91, 98 Quran/Koran 15, 165–166, 168 Rahman, S.A. 165 rape 124, 126, 132 rationality 60–62, 76, 120 Rawls, John 22, 25, 37 Raz, Joseph 23, 28, 42, 135 recognition 7, 10, 38, 40, 52, 79, 83–84, 86–88, 90–100, 120–121, 160–162, 167 – misrecognition 96, 120 – non-recognition 38, 40 – recognition as 87, 96, 161 – state recognition 10, 79, 90–100 refugee(s) 40, 47, 142 Reich, Rob 119, 127, 128, 131, 132, 140, 141

Index

religion 11, 17, 20, 26, 30, 34, 43, 49, 75, 103, 151, 157–165, 170–171, see also specific religions Renteln Alison, 54, 107 responsibility 4–5, 10, 30, 35, 43, 50, 70, 103, 110–113, 117, 119, 130–131, 149, 170 – collective 4, 10, 110–113 – and costs 5, 35, 111–112, 130–131, 170 rights – basic 2–3, 6–8, 54, 64, 106, 113, 116, 124–125, 129, 133, 154, 163 – of exit 2, 4–7, 9–10, 13–14, 17–19, 21, 28, 30, 34–35, 37, 41–45, 47, 50–51, 71, 78–79, 83, 87, 90, 93, 95, 97, 100, 102–104, 106–107, 109, 111–113, 129–130, 140, 142–143, 151–154, see also: rights of exit – group/collective 13–14, 21, 34, 42, 46, 52, 95, 122, 140 – human 14, 106–107, 119, 123, 147, 149, 162 – individual 2, 7, 11, 14, 35–36, 42, 46, 69, 78, 110–111, 122, 136, 140, 157 – parental 132, 140, 145–151, 154 rights of exit – formal 44, 50, 78, 93, 100, 130 – meaningful 42, 78, 95 – realistic 9, 17, 35, 51, 79, 93, 97, 130, 140, 142, 153–154 Rohe, Mathias 165–167 Santa Carla Pueblo v. Martinez 85–86, 91, 98 Schelling, Thomas 176 segregation 11, 157, 174–175, 177–180, 182 self-determination 95, 117, 119, 140, 146, 163 self-identification 79, 81, 83, 88, 91, 94, 96, 99 self-respect 25, 88, 96 Shachar, Ayelet 5, 35, 43–46, 50, 70, 85–86, 125, 135, 140 Shaltut, Mahmud 165 Sharia 15, 167 socialization 42, 47–48, 140–141, 149, 158

193

sovereignty 122, 136, 141, 170 Spinner-Halev Jeff, 5, 24, 27, 35, 44, 53–54, 78, 131, 140 state(s) – Islamic 165, 167 – liberal/democratic 2–3, 5–7, 9–10, 13, 17, 23, 34–35, 41–42, 48–49, 51, 64–65, 78–79, 83–87, 91–102, 116, 120, 124, 128–129, 131–132, 140, 154, 157, 159, 171 – role of 2, 5, 48, 146, 153 – welfare 117–118 statutes of limitations 103, 107–109, 112–113 Stoljar, Natalie 22 Stone, Phillipp 74 Strohmeier, Klaus Peter 181 Supreme Court (US) 85–86, 128, 132 toleration/tolerance 35, 40, 53, 54, 116, 121–123, 126, 159 Turkey/Turkish 162, 178, 179 ultima ratio principle 147–149 UN Convention on the Rights of the Child 26 violence 15, 27, 29–30, 105, 116, 121, 124, 126, 132, 136, 142, 168–169, 181–182 – against women 30, 168 – domestic 124, 132 voice 1, 6, 11, 22, 31, 40, 58–63, 66–67, 69, 73–76, 127, 129, 134–136, 157, 169 voluntarism/voluntariness 68, 118, 120, 123, 126–127, 136 Weinstock, Daniel 4, 7, 70–71, 80, 82, 90, 127 Widner, Bryon 16 women 8, 14, 20, 22, 27, 29–30, 35, 41–44, 47, 49–53, 55, 96, 102, 125, 131, 135, 140, 148, 167–169, see also: feminism; gender – equality for 20, 41 – rights of 14, 125, 131, 167 Yemen/Yemeni 142, 144–151