Autonomy vs. toleration
1.1. External protections and internal restrictions
According to Kymlicka, the self-government, accommodation and special representation rights can all operate to two different effects.
On the one hand, they can be used as external protections that shield the minority group from unwanted external influences by securing the conditions in which the minority members can preserve their own cultural contexts (if they so wish). The self-government rights of the indigenous peoples, for example, allow these peoples relative control of their own territories, thus ensuring that, within their given territory, the minority in question is not outbid by the decisions of the majority. On the other hand, however, minority rights can also operate as internal restrictions that limit the opportunities of the minority members to question and revise their traditional ways of living. The same self-government rights of the indigenous peoples, for example, can be used to force minority members to adhere to the traditional customs of their community or to impose severe restrictions on the minority members freedom to leave their communities.168
Kymlicka is careful to note that, within the liberal framework, only external protections can be justified, whereas internal restrictions should be rejected.169 This claim is based on Kymlicka’s emphasis on individual autonomy as one of the guiding values of liberalism, and his view of minority rights as catering for such autonomy.170 Whereas the external protections (providing the conditions in which the minority group can enjoy their own cultural context) cater for this task, the internal restrictions (limiting the opportunities of minority members) do not. What is not entirely clear, however, is, firstly, whether the distinction between external protectors and internal restrictions is sustainable, and, secondly, whether the minority rights, such as the rights of self-government, manage to live up to the task of catering for individual autonomy, and in what sense.
168 Kymlicka 1995, 35-44.
169 Kymlicka 1995, 37; 41; 152-153.
170 Kymlicka 1992, 142.
120 Dealing with the distinction
As Kymlicka recognizes, the distinction between internal restrictions and external protections is not always easy to draw.171 The same right of self-government, for example, can be used both, to protect the social and institutional framework that operates as the minority members’ context of choice, as well as to restrict the minority members’ opportunities to question and revise their traditional ways of living. Often, the internal restrictions (such as the restrictions on the usage of land, or the requirements to follow certain codes of conduct) are even argued for in terms of external protections aiming to minimize the outside influence within the group.
On a theoretical level, the distinction between the external protections proper, and the internal restrictions argued for in terms of external protections is relatively clear: the external protections (proper) enable the minority members to preserve their traditional ways of living, if they so wish, whereas the internal restrictions force the minority members to do so, even if they would not voluntarily choose to do so.172 The strict enforcement of religious dress codes, for example, may be argued for in terms of trying to reduce the outside influence within the group (and may even be able to do this), but only by taking away the freedom of the members not to adhere to such requirement. By taking away the freedom of the members to change such tradition, such enforcement becomes unjustifiable, regardless of its role as reducing the outside influence and, consequently, of enhancing the opportunities of minority members to preserve their own cultural contexts.173 The
171 Kymlicka 1995, 42.
172 Kymlicka 1995, 42, n. 11.
173 It is, of course, debatable whether the reduction of outside influences in terms of, for example, banning certain types of clothing, enhances the opportunities of minority members to preserve their own cultural contexts.
Given Kymlicka’s distinction between cultural contents and cultural structures, the answer would seem to be negative (see also Ch. 1, 2.3.). My point here, however, is not to argue for or against the possible impacts of
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external restrictions, on the contrary, should have no such consequences, preserving the freedom of the minority members to interpret and practice their cultures also in ways that do not fit the traditional conceptions of what the culture in question contains.
In the light of the discussions of the previous chapter, it is, however, debatable whether the theoretical distinction between external protections and internal restrictions can ever be maintained in practice.174 That is, whether it is ever the case that the external protections would not also create certain internal restrictions by taking away at least some of the options open to the minority members. As argued in the previous chapter (esp. 2.2.), the rights of self-government (indeed any minority rights) are never rights purely in the abstract, but incorporate certain contents through which the legitimate practices of the group are decided. The language laws of Quebec, for example, do, in effect, restrict the opportunities of the Quebecois to choose to use English in certain settings, and the land laws of the indigenous peoples do not only restrict the usage of land of outsiders, but of the indigenous peoples themselves. For Kymlicka, these internal restrictions, incorporated in the external protections, are viewed in terms of unavoidable by-products.175 That is, as unfortunate, although acceptable, consequences of measures (external protections) that are,
such measures, but simply to show that, even if such measures (e.g. bans on certain types of clothing) did enhance the opportunities of minority members to preserve their own cultural contexts, the taking away the freedom of the minority members to change these traditions would render such measures illegitimate.
174 This, it should be noted, is an altogether different question from the problem of whether it is ever possible to know in advance to which effect any particular right will be used. (See also: Kymlicka 1995, 40) Whereas the predicting of the possible usage of any particular right (such as the rights of self-government) should, no doubt, be on the agenda of the liberal state granting such rights, the problem, highlighted here, is conceptual, incorporated in the nature of minority rights themselves (rather than in their particular usages).
175 Kymlicka 1995, 44.
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nevertheless, needed for the minority members to be able to preserve their own cultural context, should they so wish.
The introduction of unavoidable, yet acceptable, internal restrictions into the discussions on justifiable minority rights creates a pressing need to draw a distinction between the unjustifiable internal restrictions proper (such as the strict enforcement of religious dress-codes) and restrictions that come as unavoidable (yet acceptable) by-products of external protections (such as certain restrictions on using particular languages in particular situations).
One way of drawing such a distinction would be to look at the kinds of restrictions that the minority members are faced with and assess whether these restrictions limit the basic civil rights and liberties of the group members.176 To an extent, this is also the approach adopted by Kymlicka, for whom the rights of minority groups should not limit the basic rights and freedoms of the group members, such as the freedom of speech and expression, liberty of conscience, the right to physical integrity etc. Most notably, Kymlicka argues that minority rights should not restrict the minority members’ capabilities to assess and to also revise their traditional ways of living, but (on a much stronger note) provide for their autonomy – for their capabilities to choose and to pursue the kinds of lives they themselves see fit.177
These two requirements (1. that minority rights should not prevent people from assessing (and possibly changing) their current ways of life, and 2. that they should also cater for or even enhance people’s capabilities for doing so) are, of course, very different, providing either weaker or stronger limitations to the kinds of minority rights justifiable within Kymlicka’s liberal framework.
The first requirement (that of non-prevention) may, at the most, be
176 The key distinction between internal restrictions proper and unavoidable (yet acceptable) by-products does not thus lie in the way in which these restrictions have come into being (whether by their own or as by-products of external protectors), but rather on whether these restrictions can be justified within the liberal framework.
177 Kymlicka 1995, 152-153; 1992, 142.
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seen as a requirement for the minority rights to protect individual autonomy, whereas the latter (that of enhancement) provides a much stronger claim, not only of protection, but also of promotion of the autonomy of minority members.178 Depending on which one of these views one subscribes to, one will also have slightly different views of the kinds of groups that, within the liberal framework, can be seen as eligible for such rights – or so I try to argue.
Protecting vs. promoting individual autonomy
Take, first, the stronger claim that minority rights should promote individual autonomy – that is, to cater for or enhance people’s capabilities to assess and to pursue the kinds of lives they themselves see fit. In order to cater for individual autonomy, it seems, it is not enough that the minority right in question enables the members of the cultural group to preserve their own cultural context, but that this context is also of certain kind. At the very minimum, this context needs to incorporate a sufficiently complex set of options that the minority members can take advantage of, as well as a system of education that enables the members to make meaningful choices among these options.179 In order for the
178 Kymlicka’s own terminology incorporates expressions such as
“promoting”, “enabling” and “protecting” individual autonomy (ibid.), and it is not always clear which position Kymlicka himself subscribes to.
Whereas my distinction between the promotion and protection of individual autonomy reflects, partially, the ambiguities of Kymlicka’s own position, it does (as will become clearer later on) also capture something important about the kinds of responses that the liberal state may take in its responses to cultural diversity.
179 It could even be argued that, for the promotion or enhancement of individual autonomy, it is not enough that the context in question provides sufficiently complex set of options for the members to choose from, but that this context should also provide “a better” set of options than the context of the majority (that is, the context should be such that will enable the minority members to practice their autonomy to fuller extent than in the context of the majority). Should the context of the minority, however, provide substantively lesser (or “worse”) opportunities for its members
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minority members to make autonomous choices among the options provided by their culture, the culture needs to, already, be such that caters for individual autonomy, incorporating both, an environment within which the members’ capacities for autonomy can develop, as well as a sufficiently varied set of options for the minority members to choose from.180 But if, say, the options provided by the minority culture are very few and far between (as is often the case when the community in question continues to live in relative isolation in accordance with its age old traditions),181 it becomes questionable whether the options provided by these cultures can really be conceived of as varied enough for the members to have any meaningful choice with respect to how to lead their lives. The minority groups, eligible for the rights that enable them to preserve their own cultural contexts would thus seem to be restricted to groups that are, already, sufficiently pluralistic and heterogeneous – that is, to groups that are, already, liberal.182
A liberal multicultural theory should not, however, be a theory that can only accommodate liberal cultural groups and liberal ways of life, and to answer this worry, many have come to argue for
than the context of the majority (even if sufficiently complex), it would – from the perspective of promoting individual autonomy – be better not to grant rights of self-government for these groups, as the preservation of these contexts would fail to enhance individual autonomy. For my purposes, I use the term “promoting individual autonomy” not in this stronger sense, but in the sense in which the context in question must provide 1) sufficiently complex set of options to choose from, and 2) environment within which the capabilities of the minority members to reflect and to make informed choices about these options can develop.
180 As Joseph Raz has forcefully argued, a choice made in the face of lack of alternatives may not be counted as an autonomous choice, as autonomy involves the idea of having an adequate range of options to choose from.
Raz 1986, ch. 14 & 15. See also: Christman 2001; 2005; Colburn 2010.
181 Such as certain indigenous peoples in Latin America, or certain religious communities that have chosen to isolate themselves from the rest of society, including the Amish in USA.
182 I will come back to the second (liberal) requirement of these groups not suppressing the basic rights and liberties of their members shortly.
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much weaker requirements for the kinds of groups that, within the liberal framework, can be seen as eligible for minority rights, such as the right of self-government. According to these thinkers, those minority groups that provide only very limited sets of options for their members can still be seen as having the right to organize their internal affairs in ways they wish, as long as they provide their members information also of other ways of living (that is, of other ways than their “own”).183 Being provided such information, it is argued, the members would at least be aware of other opportunities and other ways of life (even if their own group could not provide them with these opportunities), and may also be able to leave their own cultural community for the wider variety of options and ways of life provided by the culture of the majority.184
Whereas this weaker position (that is, not the requirement of the minority groups to provide sufficiently complex sets of options themselves, but the requirement of these groups to provide information about alternative options outside the group), would seem to have the benefit of incorporating somewhat wider variety of minority groups to be eligible for minority rights, this response, however, is not open to Kymlicka himself. Most notably, this response stands in stark contrast with Kymlicka’s original rationale for why people should be able to live in their own cultural contexts in the first place – that is, because these contexts, by definition, provide people meaningful options to choose from. Nor does this response seem to fit well with Kymlicka’s commitment to the primacy of one’s own cultural context and the view according to
183 Most prominently, William Galston has promoted a view according to which the group’s right to govern its internal affairs is dependent on the requirements of providing its members certain minimal knowledge about alternative ways of life. (Galston 1995; 2002; 2005) I will come back to Galston’s view and its implications to other diversity-liberal theories of multiculturalism in the second part of this chapter (esp. 2.2.).
184 The requirement of providing information about alternative ways of life is also inherent in Kymlicka’s account (e.g. Kymlicka 1995, 81-82), although, as I will argue, this cannot operate as a sufficient requirement for the minority groups to be allowed to govern their internal affairs.
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which it is not reasonable to expect people to leave their own cultural contexts. If the group to which the individual happens to belong to, however, only provides a very limited set of options for that individual to choose from, it is not enough that further options are available outside the community, as the taking of advantage of these options would require the individual to leave.185 Rather, the requirement of the minority rights to cater for, or to promote the autonomy of the group members would seem to create a requirement for the minority groups, not only to provide information about alternative ways of life outside their community, but also to incorporate these alternatives into their own cultural context, at least to a point in which the options provided by the culture in question would be complex enough for the minority members to make meaningful choices from.
This requirement for a cultural group to provide its members a sufficiently varied set of options to choose from does not, however, say anything yet about when a particular set of options provided by any particular culture is, indeed, sufficient to be considered as catering for people’s autonomy. Quite obviously, the sets of options provided by different cultures vary, and it may be too strong a requirement to insist that the minority cultures would need to provide their members a maximally varied set of options or even a set of options that would be as diverse as the options provided by majority culture. In order to live autonomous lives, it is enough that the minority members have a relatively varied set of options to choose from, but this set needs not be as varied as, or identical with the set provided by the majority culture.186 On the contrary, what is
185 Recall that, for Kymlicka, “respecting people’s own cultural membership and facilitating their transition to another culture are not equally legitimate options” Kymlicka 1989, 176.
186 This may also be a question of lacking common metrics for measuring the variety of options inherent in any particular culture. As David Miller has forcefully argued, in circumstances of cultural diversity, it may be difficult, even impossible, to find any uncontested metric for measuring whether the members of any particular group (in Miller’s case, nation) enjoy equal, or relatively equal opportunities. Miller 2005.
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important, according to Kymlicka, is that the options provided by the minority culture are the kinds of options that the minority members find meaningful, not that they resonate (in scope or content) with the options of the majority.187
Whereas I do believe that, for Kymlicka, the minority rights should perform precisely this stronger task of promoting individual autonomy,188 it is also clear that the constraints this requirement creates for those groups eligible for such rights are, not only extremely stringent, but also extremely difficult to measure or assess. Due to these difficulties (of measuring the kinds of options, meaningful to the minority members, as well as of establishing the threshold above which the set of options provided by the minority culture would be sufficiently complex), it may be worth looking at those requirements that the minority culture must, minimally, fulfill, in order for the group in question to be even considered for those rights that enable them to preserve their own cultural contexts, if they so wish. These requirements, I believe, are incorporated in Kymlicka’s weaker claim – that is, that the minority rights should not prevent people from assessing (criticizing or reaffirming) their current customs and ways of life. That is, the cultural group, to which the minority rights are granted, should not use these rights to force people to adhere to any particular cultural customs or practices, nor should it prevent people from acquiring
Whereas I do believe that, for Kymlicka, the minority rights should perform precisely this stronger task of promoting individual autonomy,188 it is also clear that the constraints this requirement creates for those groups eligible for such rights are, not only extremely stringent, but also extremely difficult to measure or assess. Due to these difficulties (of measuring the kinds of options, meaningful to the minority members, as well as of establishing the threshold above which the set of options provided by the minority culture would be sufficiently complex), it may be worth looking at those requirements that the minority culture must, minimally, fulfill, in order for the group in question to be even considered for those rights that enable them to preserve their own cultural contexts, if they so wish. These requirements, I believe, are incorporated in Kymlicka’s weaker claim – that is, that the minority rights should not prevent people from assessing (criticizing or reaffirming) their current customs and ways of life. That is, the cultural group, to which the minority rights are granted, should not use these rights to force people to adhere to any particular cultural customs or practices, nor should it prevent people from acquiring