Liberal rights and liberal imposition

Kymlicka’s emphasis on individual autonomy and his consequent view of minority rights as subordinate to the basic rights and freedoms of individuals, has prompted a critique according to

189 This requirement of “protection” should be understood in a very minimal sense of “not preventing” people from questioning their current ways of life.

190 For example, groups that are only able to offer very limited set of options to their members (such as isolated tribal communities or extremely poor nation states) can be conceived as eligible for the rights of self-determination (broadly construed), as long as they do not prevent their members from questioning their traditional ways of living or of acquiring information from outside their own community.

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which Kymlicka’s theory of minority rights is simply a form of cultural imperialism that justifies the imposition of liberal values on groups that would not, voluntarily, be willing to endorse such values.¹⁹¹ The idea being that, by prioritizing the basic rights and freedoms of individuals over the rights of the group to govern its own affairs, Kymlicka does not only reduce the kinds of groups, eligible for the right of self-determination, into groups that are already liberal, but also opens the door for interference, forcing the other, illiberal groups to change.

Being reluctant to accept such implications, Kymlicka attempts to make a differentiation between two questions: (1) what sorts of minority claims are consistent with liberal principles? and (2) whether the liberals should impose their views on minorities which do not accept some or all of these liberal principles?¹⁹² According to Kymlicka, “the first is a question of identifying a defensible liberal theory of minority rights; the second is the question of imposing that liberal theory.”¹⁹³ Moreover, Kymlicka explains that his task (especially in Multicultural Citizenship) has been the first rather than the second,¹⁹⁴ and that, in order to answer the second (that of imposition), several further considerations would need to be taken into account.¹⁹⁵ Further, Kymlicka argues that, in many cases, there are no legitimate grounds for imposing liberal principles upon

191 E.g. Kukathas, 1992; 2003, 181-189; Galston 1995; 2005; Gray 2000;

see also: Mendus, 1989.

192 Kymlicka 1995, 164.

193 Kymlicka 1995, 164, emphasis in the original.

194 In his later works, Kymlicka does, to an extent, attempt to answer the second question of imposition by discussing some of the difficulties as well as appropriate mechanisms for enforcing basic human rights within illiberal groups. See e.g. Kymlicka 2001, ch. 4; for Kymlicka’s account on the role of the international community in such processes, see Kymlicka 2007a.

195 In Kymlicka 1992, Kymlicka identifies at least three steps between the questions of liberal theory and the imposition of liberal principles in practice, each incorporating several considerations that would need to be answered to. Kymlicka 1992, 144.

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illiberal groups.¹⁹⁶ Most notably, one would need to answer the question of who, and on what grounds, would have the authority to impose liberal principles upon illiberal groups – a question that Kymlicka finds no clear answer to, as this imposition would require the relevant authority to infringe on the internal affairs of a self-governing entity.¹⁹⁷

The self-governing status of illiberal groups

Although I agree with Kymlicka that the answer(s) to the second question (imposition) are not determined by the answer(s) to the first (identification), I also think that Kymlicka’s response is somewhat ad hoc, and lies on an unjustified presupposition about the self-governing status of illiberal groups. In order to see this, one needs to look at the reasons for why certain groups should have a right to decide about their own affairs, and the kinds of groups that, in Kymlicka’s own terms, qualify for such right.

To recall, Kymlicka claims that the rights of self-government are needed in order for the cultural groups in question to be able to maintain their own cultural contexts. The cultural contexts, however, are only important in so far as they cater for individual autonomy, and the importance of the ability to maintain one’s own cultural context can only be argued for in terms of individual

196 It should be noted that Kymlicka’s argument is conditional, only applying to national minorities (incl. indigenous peoples), rather than to immigrants. According to Kymlicka, it is justifiable to enforce liberal principles on immigrant groups, as the immigrants have normally left their own cultural contexts voluntarily and have also been aware of the liberal principles that they will be living under. (Kymlicka 1995, 170, see also:

Ch. 1, 1.1.) Further, Kymlicka maintains that, even in the case of national (or indigenous) minorities, there is a limit to the kinds of illiberal practices that should not be interfered on. Kymlicka mentions the cases of gross and systematic violations of human rights (such as genocide and torture), although he does not build any systematic argument for why, precisely in these cases, intervention would be justified, whereas in others (such as denial of freedom of conscience or sexual discrimination) it would be not.

Kymlicka 1995, 169-170; for criticism, see e.g. Kukathas 1997a, 418-420.

197 Kymlicka 1995, 164-170.

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autonomy. Keeping this in mind, however, there does not seem to be any reason why a cultural group that infringes the autonomy of its members should be self-governing in the first place, as the rights of self-government are argued for precisely in order to protect that context within which members’ autonomy can be enjoyed.¹⁹⁸ As argued in the previous section (1.1.), it is built into Kymlicka’s framework that those groups, eligible for the rights of self-government, only are groups that have already organized in accordance with certain liberal principles, and to infringe upon the internal affairs of a group that is not organized in accordance with these principles, is to infringe upon the affairs of a group that should not be self-governing in the first place. Whereas it may well be the case that no legitimate authority can easily be found to infringe upon the internal affairs of a self-governing group, Kymlicka’s own framework does not provide justification for the illiberal groups to be self-governing. Rather, the minority groups within the liberal state are, by definition, still under the jurisdiction of the state, thus giving the state authority to intervene in the illiberal practices of these groups.¹⁹⁹

198 It may be objected that this interpretation downplays the role of the importance –argument (see also Ch. 1, 1.1.). To recall, Kymlicka supplements his prerequisite for choice –argument by saying that it is precisely one’s own cultural context and membership in one’s own cultural group that are important for people’s self-respect and for their identity, and that it is for this reason that the liberal state should be concerned about the disadvantages resulting from not being able to live in one’s own cultural context. However, as I argued in Ch. 1, it is important to distinguish between those reasons that the liberal state may have for being concerned about the disadvantages faced by minority members and the appropriate responses to these disadvantages. Whereas the importance argument gives reasons for the liberal state to be concerned about people’s own cultural contexts (even if these contexts were illiberal), it does not as yet provide justification for the cultural groups to be given rights of self-government.

The rights of self-government, in Kymlicka’s framework, are conditional, requiring the group to respect the basic rights and freedoms of its members.

199 See also: Mason 2000, 86-88.

132 Practical reasons for non-interference

Having said that, it should be noted that, despite there being no liberal justification for the internal restrictions of illiberal groups, nor any principled grounds for why the liberal state could not interfere in the illiberal practices of illiberal groups within its jurisdiction, there may well be other reasons for the liberals and the liberal state to refrain from imposing liberal principles upon illiberal groups. The forceful imposition of liberal principles may, in fact, be counterproductive, and only weaken the situation of those whose rights the minority group is already suppressing.²⁰⁰ The minority group that has, already, been given substantive rights to govern its own affairs may not be willing to accept the authority of the impostor and respond by aggression or by making stricter its own illiberal rules. Even if successful, the imposition and the consequent adoption of liberal principles may only be superficial and not work in the long run. As Kymlicka observes, “liberal institutions can only really work if liberal beliefs have been internalized by the members of the self-governing community, be it an independent country or a national minority”,²⁰¹ and the forceful imposition of liberal principles may well be more harmful (from the liberal perspective) than the refraining of intervention.

None of these reasons, however, are reasons that would take away the right of the liberal state to interfere in the affairs of illiberal groups in its jurisdiction, or (on the other side of the coin) reasons that would justify the self-governing status of the illiberal groups in question. On the contrary, as far as I can see, in Kymlicka’s theory, there is no principled justification for the illiberal practices of the group, no principled basis for their right of

200 Andrew Mason identifies this as one of the circumstances in which the liberal state may have strong reasons not to interfere in the illiberal practices of a cultural group – that is, the circumstances in which the costs of the liberal imposition would fall mainly on the victims of the illiberal practices rather than on the perpetrators. Mason 2000, 84.

201 Kymlicka 1995, 167.

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self-determination, and no principled reason for the liberals to refrain from imposing liberal principles upon these groups.

Whereas it may, for sure, be wise for the liberal state to refrain (in certain circumstances) from intervening in the illiberal practices of the group, the reasons for doing so are practical rather than reasons derived from Kymlicka’s theoretical framework itself.²⁰²