Cultural rights of minority groups are recognized in international human rights law. These rights include the right of minority groups to adopt various measures to protect their cultural identity, which may include closure of the groups community from outsiders. The state in which such groups reside has a concurrent duty to respect these rights and sometimes even to take positive measures to ensure their implementation. The consideration of demographic factors, then, is regarded as legitimate when designed to protect minority groups. The rights of majority groups, on the other hand, are often ensured by the mere fact that they constitute a majority within the state and as such do not require special measures.This state of affairs is challenged, however, in face of mass immigration that could change the relation existing between majority and minority groups within the state. Under these circumstances, does a majority have the right to preserve its own culture through an immigration policy that takes into account demographic factors? I argue that the duty of states under international human rights law to protect rights of minority groups might serve as an incentive to restrict immigration endangering the character of the state. This characterthe states public cultureis the outcome of collective preferences of the majority of its citizens, which is assumed ought to be respected.
{"title":"Immigration Policy: Between Demographic Considerations and Preservation of Culture","authors":"N. Carmi","doi":"10.2202/1938-2545.1025","DOIUrl":"https://doi.org/10.2202/1938-2545.1025","url":null,"abstract":"Cultural rights of minority groups are recognized in international human rights law. These rights include the right of minority groups to adopt various measures to protect their cultural identity, which may include closure of the groups community from outsiders. The state in which such groups reside has a concurrent duty to respect these rights and sometimes even to take positive measures to ensure their implementation. The consideration of demographic factors, then, is regarded as legitimate when designed to protect minority groups. The rights of majority groups, on the other hand, are often ensured by the mere fact that they constitute a majority within the state and as such do not require special measures.This state of affairs is challenged, however, in face of mass immigration that could change the relation existing between majority and minority groups within the state. Under these circumstances, does a majority have the right to preserve its own culture through an immigration policy that takes into account demographic factors? I argue that the duty of states under international human rights law to protect rights of minority groups might serve as an incentive to restrict immigration endangering the character of the state. This characterthe states public cultureis the outcome of collective preferences of the majority of its citizens, which is assumed ought to be respected.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 29"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In “The Blessing of DepartureExchange of Populated Territories The Lieberman Plan as an Abstract Exercise in Demographic Transformation,” Prof. Timothy Waters offers a strong endorsement of the right of ethnic majorities within a state to redefine their state's boundaries in ways consistent with the majority's right to self-determination and to opt out of a political union with minority groups, regardless of the latter's' political preferences. Applied to the Israeli context, Waters concludes that parts of the Lieberman Plana plan advocating the redrawing of Israel borders, inter alia, in ways which exclude some areas populated by Israeli citizens belonging to the Arab-Palestinian minority (Israeli-Arabs)does not run afoul of international law (although Waters accepts that the Plan might be politically undesirable).This short response challenges two points that are central to Waterss analysis. First, that the right to self-determination of peoplesin particular, the right to external self-determination (i.e., the right to create independent or other types of polities that express the will of an identifiable people)is subject to temporal or contextual limitations. The right is fully applicable only in exceptional and formative moments in the life of a natione.g., during the formation of a new polity or the collapse of an existing political arrangement (which invites the configuration of new political entities in their lieu), and when states systematically fail to respect the basic interest of some of the groups that comprise its populacei.e., in response to extraordinary situations of groups exclusion or oppression. Second, even if Waters is correct and an ongoing right to self-determinationincluding, a right to secede from existing statesis available to ethnic groups comprising diverse national societies, the invocation of such a right must necessarily be limited by other positive rules of international law designed to protect group and individual interests. Specifically, Waterss concept of self-determination as a right of a preliminary nature, that overrides other human rights (which are themselves often characterized as rights of a pre-political nature), is debatable.
{"title":"Redrawing Maps, Manipulating Demographics: On Exchange of Populated Territories and Self-Determination","authors":"Y. Shany","doi":"10.2202/1938-2545.1022","DOIUrl":"https://doi.org/10.2202/1938-2545.1022","url":null,"abstract":"In “The Blessing of DepartureExchange of Populated Territories The Lieberman Plan as an Abstract Exercise in Demographic Transformation,” Prof. Timothy Waters offers a strong endorsement of the right of ethnic majorities within a state to redefine their state's boundaries in ways consistent with the majority's right to self-determination and to opt out of a political union with minority groups, regardless of the latter's' political preferences. Applied to the Israeli context, Waters concludes that parts of the Lieberman Plana plan advocating the redrawing of Israel borders, inter alia, in ways which exclude some areas populated by Israeli citizens belonging to the Arab-Palestinian minority (Israeli-Arabs)does not run afoul of international law (although Waters accepts that the Plan might be politically undesirable).This short response challenges two points that are central to Waterss analysis. First, that the right to self-determination of peoplesin particular, the right to external self-determination (i.e., the right to create independent or other types of polities that express the will of an identifiable people)is subject to temporal or contextual limitations. The right is fully applicable only in exceptional and formative moments in the life of a natione.g., during the formation of a new polity or the collapse of an existing political arrangement (which invites the configuration of new political entities in their lieu), and when states systematically fail to respect the basic interest of some of the groups that comprise its populacei.e., in response to extraordinary situations of groups exclusion or oppression. Second, even if Waters is correct and an ongoing right to self-determinationincluding, a right to secede from existing statesis available to ethnic groups comprising diverse national societies, the invocation of such a right must necessarily be limited by other positive rules of international law designed to protect group and individual interests. Specifically, Waterss concept of self-determination as a right of a preliminary nature, that overrides other human rights (which are themselves often characterized as rights of a pre-political nature), is debatable.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 25"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1022","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Attaining and maintaining a substantial Jewish majority in Israel has been one of the basic goals of the State of Israel since its early years. A substantial Jewish majority within the borders of the state is thought to be necessary in order to preserve its Jewish nature. Many believe that the demographic consideration also stood behind the enactment of the Citizenship and Entry into Israel Law (Temporary Provision), 2003, which prohibits granting Israeli citizenship and residency to Palestinians from the West Bank and the Gaza Strip, and prevents, inter alia, Israeli Arabs from living in Israel with their Palestinian spouses.I examine the legitimacy of the demographic consideration from the perspective of liberal political theory. I conclude that demography can, in principle, be a legitimate consideration in deciding immigration policy, and its justification can be derived from the liberal justification of the right to national self-determination. However, the demographic consideration must be assigned its proper role and weight relative to other important liberal values such as equality and other human rights. I suggest that the demographic consideration might be legitimate only to the extent that it is not used to justify immigration policies that violate constitutional rights.I then discuss the Supreme Court decision concerning the constitutionality of the Citizenship and Entry into Israel Law. I demonstrate that, contrary to statements by the judges themselves, the demographic consideration played a key role in the opinions of several judges. It was, however, a hidden consideration. It was not openly acknowledged and discussed. Consequently, a careful examination and balancing of the demographic consideration could not take place. The result was that the actual influence of the demographic consideration on the outcome of the case was much stronger than can be reasonably justified according to liberal principles of justice.
{"title":"Immigration Rights and the Demographic Consideration","authors":"Yaacov Ben-Shemesh","doi":"10.2202/1938-2545.1027","DOIUrl":"https://doi.org/10.2202/1938-2545.1027","url":null,"abstract":"Attaining and maintaining a substantial Jewish majority in Israel has been one of the basic goals of the State of Israel since its early years. A substantial Jewish majority within the borders of the state is thought to be necessary in order to preserve its Jewish nature. Many believe that the demographic consideration also stood behind the enactment of the Citizenship and Entry into Israel Law (Temporary Provision), 2003, which prohibits granting Israeli citizenship and residency to Palestinians from the West Bank and the Gaza Strip, and prevents, inter alia, Israeli Arabs from living in Israel with their Palestinian spouses.I examine the legitimacy of the demographic consideration from the perspective of liberal political theory. I conclude that demography can, in principle, be a legitimate consideration in deciding immigration policy, and its justification can be derived from the liberal justification of the right to national self-determination. However, the demographic consideration must be assigned its proper role and weight relative to other important liberal values such as equality and other human rights. I suggest that the demographic consideration might be legitimate only to the extent that it is not used to justify immigration policies that violate constitutional rights.I then discuss the Supreme Court decision concerning the constitutionality of the Citizenship and Entry into Israel Law. I demonstrate that, contrary to statements by the judges themselves, the demographic consideration played a key role in the opinions of several judges. It was, however, a hidden consideration. It was not openly acknowledged and discussed. Consequently, a careful examination and balancing of the demographic consideration could not take place. The result was that the actual influence of the demographic consideration on the outcome of the case was much stronger than can be reasonably justified according to liberal principles of justice.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 34"},"PeriodicalIF":0.0,"publicationDate":"2008-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1027","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763189","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The emergence of multicultural theory and of claims of recognition by cultural, ethnic, and national minorities has brought to the forefront previously neglected aspects of the right to equality. However, when judged on their own, claims for recognition stand the risk of failing to fully capture, and even distorting, the meaning of equality. I suggest that in order to avoid this risk, multicultural claims need to be contextualized. Employing Nancy Frasers framework of two dimensions of justicerecognition and redistributionand adding a third dimensionpolitical participation, I suggest a framework for a contextualized assessment of multicultural claims that allows us to properly and fully assess their validity. I then go on to employ this framework on the claims of Israels two most significant cultural minoritiesthe Palestinian Arabs and the Ultra Orthodox Jews. I show how the use of the suggested framework helps to expose the considerable differences between these two cultural minorities, and consequently the notable difference in the merits of their claims, a difference that would have otherwise gone undetected.
{"title":"Contextualizing Multiculturalism: A Three Dimensional Examination of Multicultural Claims","authors":"Gila Stopler","doi":"10.2202/1938-2545.1009","DOIUrl":"https://doi.org/10.2202/1938-2545.1009","url":null,"abstract":"The emergence of multicultural theory and of claims of recognition by cultural, ethnic, and national minorities has brought to the forefront previously neglected aspects of the right to equality. However, when judged on their own, claims for recognition stand the risk of failing to fully capture, and even distorting, the meaning of equality. I suggest that in order to avoid this risk, multicultural claims need to be contextualized. Employing Nancy Frasers framework of two dimensions of justicerecognition and redistributionand adding a third dimensionpolitical participation, I suggest a framework for a contextualized assessment of multicultural claims that allows us to properly and fully assess their validity. I then go on to employ this framework on the claims of Israels two most significant cultural minoritiesthe Palestinian Arabs and the Ultra Orthodox Jews. I show how the use of the suggested framework helps to expose the considerable differences between these two cultural minorities, and consequently the notable difference in the merits of their claims, a difference that would have otherwise gone undetected.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"309 - 353"},"PeriodicalIF":0.0,"publicationDate":"2007-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Controlling natalitythe ratio of births to the general populationis one of the best means a state has to control its demographic composition. However, the fact that the state has certain interests with regard to the size and composition of its population does not necessarily give it the right to set and pursue natality policies, because such policies can potentially infringe on various human rights such as the rights of women and the rights of minorities. Using a feminist perspective I first argue that even if it is illegitimate for states to try to influence people's choice as to the number of their children in order to achieve demographic change, the state may, and should, enact natality policies aimed at promoting women's right to equality, regardless of whether their end result is to achieve a demographic change. Next I examine whether states are allowed to pursue natality policies aimed at decreasing natality rates in specific cultural groups, whose cultural precepts are oppressive toward women and dictate very high natality rates. Using the ultra-Orthodox Jewish community in Israel as a test case, I present and reject three objections to the states right to pursue such natality policies: the objection from free choice, the objection from free association, and the objection from culture. Rejecting these objections I conclude that not only is the state allowed, but it is indeed obligated, to pursue natality policies that aim to alleviate the oppression of women by decreasing inordinately high birth rates in illiberal communities. However, when choosing the measures for the implementation of such policies the state must take care to choose only measures that respect human rights.
{"title":"A Feminist Perspective on Natality Policies in Multicultural Societies","authors":"Gila Stopler","doi":"10.2202/1938-2545.1020","DOIUrl":"https://doi.org/10.2202/1938-2545.1020","url":null,"abstract":"Controlling natalitythe ratio of births to the general populationis one of the best means a state has to control its demographic composition. However, the fact that the state has certain interests with regard to the size and composition of its population does not necessarily give it the right to set and pursue natality policies, because such policies can potentially infringe on various human rights such as the rights of women and the rights of minorities. Using a feminist perspective I first argue that even if it is illegitimate for states to try to influence people's choice as to the number of their children in order to achieve demographic change, the state may, and should, enact natality policies aimed at promoting women's right to equality, regardless of whether their end result is to achieve a demographic change. Next I examine whether states are allowed to pursue natality policies aimed at decreasing natality rates in specific cultural groups, whose cultural precepts are oppressive toward women and dictate very high natality rates. Using the ultra-Orthodox Jewish community in Israel as a test case, I present and reject three objections to the states right to pursue such natality policies: the objection from free choice, the objection from free association, and the objection from culture. Rejecting these objections I conclude that not only is the state allowed, but it is indeed obligated, to pursue natality policies that aim to alleviate the oppression of women by decreasing inordinately high birth rates in illiberal communities. However, when choosing the measures for the implementation of such policies the state must take care to choose only measures that respect human rights.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"2 1","pages":"1 - 40"},"PeriodicalIF":0.0,"publicationDate":"2007-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1020","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68763317","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, Professor Suk defends the moral legitimacy of liberal states legal protection of minority languages. Many opponents of minority language protection have argued or assumed that legal intervention denies individuals the right to choose the majority language and the economic opportunities often attached to the dominant language. This Article argues that such arguments overlook another category of goods that are necessary to individual autonomy: relational resources. Individuals have an interest in maintaining their ancestral languages because doing so is essential to maintaining ones relationship to ones family and community. The relational interest cannot easily be compared with economic opportunities, because these two dimensions of autonomy are incommensurable. As a result, a liberal state should avoid forcing its citizens to choose between these incommensurable goods. By adopting policies that protect minority languages, while also ensuring individuals access to economic and political participation in the majority language, a liberal state can manage and balance the conflict between these important competing aspects of autonomy.
{"title":"Economic Opportunities and the Protection of Minority Languages","authors":"Julie C. Suk","doi":"10.2202/1938-2545.1004","DOIUrl":"https://doi.org/10.2202/1938-2545.1004","url":null,"abstract":"In this Article, Professor Suk defends the moral legitimacy of liberal states legal protection of minority languages. Many opponents of minority language protection have argued or assumed that legal intervention denies individuals the right to choose the majority language and the economic opportunities often attached to the dominant language. This Article argues that such arguments overlook another category of goods that are necessary to individual autonomy: relational resources. Individuals have an interest in maintaining their ancestral languages because doing so is essential to maintaining ones relationship to ones family and community. The relational interest cannot easily be compared with economic opportunities, because these two dimensions of autonomy are incommensurable. As a result, a liberal state should avoid forcing its citizens to choose between these incommensurable goods. By adopting policies that protect minority languages, while also ensuring individuals access to economic and political participation in the majority language, a liberal state can manage and balance the conflict between these important competing aspects of autonomy.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"134 - 168"},"PeriodicalIF":0.0,"publicationDate":"2007-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Paper is divided into three sections. In the first section I provide a brief historical overview of Hindu-Muslim relations in India and of the condition of Indian Muslims today. I conclude by claiming that Indian Muslims are a marginalized minority who have been persistently underrepresented in political institutions, particularly in the Indian Parliament. This section is important for those who are less informed about these issuesand I assume that most readers fall in this category. In the second section, I examine the case for political representation for Muslims. This was a much debated issue in pre-independent India. It was debated with subtlety and in considerable detail in the Constituent Assembly debates on the Indian constitution. However, with the partition of the country and the formation of the separate state of Pakistan, all debate on the political representation of Muslims ceased. I examine the merits and demerits of the case for the political representation of Indian Muslims. I also attempt a brief explanation of why this issue has virtually disappeared from the public arena in India. I conclude in the section that although political representation of Muslims qua Muslims is desirable, it is still unfeasible in the prevailing situation in India. In other words, I would support the recommendation to the Indian State that political rights not to be granted to any religious community. If political theory was to remain a handmaiden of state policy, then the matter ends right here. However, since I believe that political theory must think for the long run and design just institutions and policies for the future, and since, there is, I claim, no principled objection to the political representation of Muslims, in the third and final section I briefly outline which of the several electoral mechanisms are best suited to ensure fair political representation for Muslims in the future. In my view, the principle of fair political representation for Indian Muslims is best fulfilled by a complex mechanism consisting of preferential voting in multi-member constituencies with intra-party quotas in proportion to the overall population of Muslims in the country.
{"title":"On the Persistent Political Under-Representation of Muslims in India","authors":"R. Bhargava","doi":"10.2202/1938-2545.1003","DOIUrl":"https://doi.org/10.2202/1938-2545.1003","url":null,"abstract":"This Paper is divided into three sections. In the first section I provide a brief historical overview of Hindu-Muslim relations in India and of the condition of Indian Muslims today. I conclude by claiming that Indian Muslims are a marginalized minority who have been persistently underrepresented in political institutions, particularly in the Indian Parliament. This section is important for those who are less informed about these issuesand I assume that most readers fall in this category. In the second section, I examine the case for political representation for Muslims. This was a much debated issue in pre-independent India. It was debated with subtlety and in considerable detail in the Constituent Assembly debates on the Indian constitution. However, with the partition of the country and the formation of the separate state of Pakistan, all debate on the political representation of Muslims ceased. I examine the merits and demerits of the case for the political representation of Indian Muslims. I also attempt a brief explanation of why this issue has virtually disappeared from the public arena in India. I conclude in the section that although political representation of Muslims qua Muslims is desirable, it is still unfeasible in the prevailing situation in India. In other words, I would support the recommendation to the Indian State that political rights not to be granted to any religious community. If political theory was to remain a handmaiden of state policy, then the matter ends right here. However, since I believe that political theory must think for the long run and design just institutions and policies for the future, and since, there is, I claim, no principled objection to the political representation of Muslims, in the third and final section I briefly outline which of the several electoral mechanisms are best suited to ensure fair political representation for Muslims in the future. In my view, the principle of fair political representation for Indian Muslims is best fulfilled by a complex mechanism consisting of preferential voting in multi-member constituencies with intra-party quotas in proportion to the overall population of Muslims in the country.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"133 - 76"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Jehovahs Witnesses cases of the late 1930s and early 1940s presented some of the first instances of American Supreme Courts attempts to grapple with the challenges of a multicultural society. Taken as a whole, these cases represented a favorable position towards minorities claims, even to some extent a path breaking one. The Jehovahs Witnesses cases were a precursor of the Courts growing involvement in the protection of minorities rights, which colored the entire second half of the 20th century. They further introduced a new language, and new judicial forms into constitutional jurisprudencethe language of balancing and balancing tests. In all these aspects the Jehovahs Witnesses cases seem to have shown the early sings of multicultural ideology in Supreme Court jurisprudence. However, not all Jehovahs Witnesses cases showed the same kind of judicial willingness to protect minorities interests from the will of the majority, and not all involved the new judicial rhetoric of balancing. What explains these different judicial responses in cases which are similar in their facts and close to each other in time? In this Article I will attempt to distinguish between three types of Jehovahs Witnesses cases and argue that the different judicial responses in each of them indicates a different structure of the multicultural conflict, and a different structure of the multicultural claims in each of them.
{"title":"On the Jehovah's Witnesses Cases, Balancing Tests, and Three Kinds of Multicultural Claims","authors":"Iddo Porat","doi":"10.2202/1938-2545.1012","DOIUrl":"https://doi.org/10.2202/1938-2545.1012","url":null,"abstract":"The Jehovahs Witnesses cases of the late 1930s and early 1940s presented some of the first instances of American Supreme Courts attempts to grapple with the challenges of a multicultural society. Taken as a whole, these cases represented a favorable position towards minorities claims, even to some extent a path breaking one. The Jehovahs Witnesses cases were a precursor of the Courts growing involvement in the protection of minorities rights, which colored the entire second half of the 20th century. They further introduced a new language, and new judicial forms into constitutional jurisprudencethe language of balancing and balancing tests. In all these aspects the Jehovahs Witnesses cases seem to have shown the early sings of multicultural ideology in Supreme Court jurisprudence. However, not all Jehovahs Witnesses cases showed the same kind of judicial willingness to protect minorities interests from the will of the majority, and not all involved the new judicial rhetoric of balancing. What explains these different judicial responses in cases which are similar in their facts and close to each other in time? In this Article I will attempt to distinguish between three types of Jehovahs Witnesses cases and argue that the different judicial responses in each of them indicates a different structure of the multicultural conflict, and a different structure of the multicultural claims in each of them.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"429 - 450"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One under-theorized aspect of "multiculturalism and the antidiscrimination principle" is religious and ethnicity based political parties. With political organization, the fact of pluralism is made concrete for democratic purposes. When the struggle for empowerment is "waged within the world of democratic politics" it is waged through parties. That is the associational form modern democracies have settled on for participation, representation, and governing, and for countervailing power and regular opposition. Particularist parties and bloc voting are key instruments of political conflict and, as important, of political integration. This Paper looks at the challenges these parties pose to democracy; specifically, at the principal reasons given for banning parties from participation in electoral politics. I identify four categories of justification for disqualification: violent overthrow, incitement to hate, altering the character of the nation, and outside support or control. This is a preliminary to setting out regulative principles of "defensive democracy."
{"title":"Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies","authors":"Nancy L. Rosenblum","doi":"10.2202/1938-2545.1002","DOIUrl":"https://doi.org/10.2202/1938-2545.1002","url":null,"abstract":"One under-theorized aspect of \"multiculturalism and the antidiscrimination principle\" is religious and ethnicity based political parties. With political organization, the fact of pluralism is made concrete for democratic purposes. When the struggle for empowerment is \"waged within the world of democratic politics\" it is waged through parties. That is the associational form modern democracies have settled on for participation, representation, and governing, and for countervailing power and regular opposition. Particularist parties and bloc voting are key instruments of political conflict and, as important, of political integration. This Paper looks at the challenges these parties pose to democracy; specifically, at the principal reasons given for banning parties from participation in electoral politics. I identify four categories of justification for disqualification: violent overthrow, incitement to hate, altering the character of the nation, and outside support or control. This is a preliminary to setting out regulative principles of \"defensive democracy.\"","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"17 - 75"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In an age in which the regulatory state frequently deals with spending, licensing, and employment, the use of allocating powers is perceived as an appealing means by which to prevent discriminatory practices against individuals within illiberal communities. In addition to its easy availability, conditional funding is regarded as both an effective andin comparison with legal prohibitionsless drastic tool for the prevention of discrimination. Such conditions are thought to be efficient because they increase the relative cost of the discriminatory practice and in doing so create an economical incentive to avoid discrimination. Moreover, these conditions are thought to be less-coercive (in comparison with criminal law), because they still allow those subject to them to choose between the more expensive option of discrimination and the cheaper option of non-discrimination. In other words, these conditions are perceived as "Less Drastic Means." In this Article, I will argue that such a perception is false. When applied to the poor such conditionality is not less coercive than prohibitions in criminal law. It is more than reasonable to assume that attempts to rectify this flaw by exempting poor people from conditional funding will render such funding ineffective in preventing discrimination. In the final analysiswhen one takes into account both the problem of the commodification of values and the inequality between rich and poorthe use of conditional finding as a means of promoting liberal values will, in most cases, be unjust. If we believe that the antidiscrimination principle has a lexical priority over a parents right to educate their children in accordance to their culture, we should choose the path of prohibition and abandon that of conditional funding.
{"title":"Is Conditional Funding a Less Drastic Means?","authors":"M. Cohen-Eliya","doi":"10.2202/1938-2545.1010","DOIUrl":"https://doi.org/10.2202/1938-2545.1010","url":null,"abstract":"In an age in which the regulatory state frequently deals with spending, licensing, and employment, the use of allocating powers is perceived as an appealing means by which to prevent discriminatory practices against individuals within illiberal communities. In addition to its easy availability, conditional funding is regarded as both an effective andin comparison with legal prohibitionsless drastic tool for the prevention of discrimination. Such conditions are thought to be efficient because they increase the relative cost of the discriminatory practice and in doing so create an economical incentive to avoid discrimination. Moreover, these conditions are thought to be less-coercive (in comparison with criminal law), because they still allow those subject to them to choose between the more expensive option of discrimination and the cheaper option of non-discrimination. In other words, these conditions are perceived as \"Less Drastic Means.\" In this Article, I will argue that such a perception is false. When applied to the poor such conditionality is not less coercive than prohibitions in criminal law. It is more than reasonable to assume that attempts to rectify this flaw by exempting poor people from conditional funding will render such funding ineffective in preventing discrimination. In the final analysiswhen one takes into account both the problem of the commodification of values and the inequality between rich and poorthe use of conditional finding as a means of promoting liberal values will, in most cases, be unjust. If we believe that the antidiscrimination principle has a lexical priority over a parents right to educate their children in accordance to their culture, we should choose the path of prohibition and abandon that of conditional funding.","PeriodicalId":38947,"journal":{"name":"Law and Ethics of Human Rights","volume":"1 1","pages":"354 - 381"},"PeriodicalIF":0.0,"publicationDate":"2007-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2202/1938-2545.1010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68762808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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