Group rights as human rights: a liberal approach to multiculturalism

278 Pages·2006·1.265 MB·English

by  Torbisco Casals, Neus

GROUP RIGHTS AS HUMAN RIGHTS
Law and Philosophy Library
VOLUME75
Managing Editors
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
ALEKSANDER PECZENIK†,Department of Law,
University of Lund, Sweden
FREDERICK SCHAUER,John F. Kennedy School of Government,
Harvard University, Cambridge, Mass., U.S.A.
Former Managing Editors
AULIS AARNIO, MICHAELD. BAYLES†, CONRAD D. JOHNSON†,
ALAN MABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences,
University of Tampere, Finland
´
ZENON BANKOWSKI,Centre for Law and Society, University of Edinburgh
PAOLO COMANDUCCI, University of Genua, Italy
ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft,
Johannes Gutenberg Universität Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University of New York
NEILMacCORMICK, European Parliament, Brussels, Belgium
WOJCIECH SADURSKI, European University Institute,
Department of Law, Florence, Italy
ROBERTS. SUMMERS, School of Law, Cornell University
CARLWELLMAN, Department of Philosophy, Washington University
GROUP RIGHTS
AS HUMAN RIGHTS
A Liberal Approach to
Multiculturalism
Edited by
NEUS TORBISCO CASALS
Universitat Pompeu Fabra,
Barcelona,Spain
A C.I.P.Catalogue record for this book is available from the Library of Congress.
ISBN-10 1-4020-4208-6 (HB)
ISBN-13 978-1-4020-4208-9 (HB)
ISBN-10 1-4020-4209-4 (e-book)
ISBN-13 978-1-4020-4209-6 (e-book)
Published by Springer,
P.O.Box 17,3300 AA Dordrecht,The Netherlands.
www.springer.com
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© 2006 Springer
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ACKNOWLEDGEMENTS
This book has grown out of a doctoral dissertation that I submitted in November
2000 at the Universitat Pompeu Fabra, in Barcelona. Earlier that year, Albert
Calsamiglia, my supervisor and mentor, had tragically passed away. I dedicate this
book to him with a mix of gratefulness and sadness.Gratefulness because,more than
anybody else,Albert enthusiastically supported my inclination towards teaching and
writing and I greatly miss his appreciation and friendship.Sadness because I won’t be
able to listen to his critiques of my work,which he was ever-ready to read and discuss
insightfully and passionately. Despite our disagreements, Albert always maintained
his liberal commitment towards academic rigor and free thinking, never trying to
impose his own views on his students in an authoritative fashion.By highly valuing
pluralism rather than sectarian ideologies,and individual talent and work,instead of
academic titles,he taught me a vital lesson that I try not to forget in pursuing the life
of a scholar.
Beyond the learning pleasures involved in any research project, writing this book
has not always been a delight. This was not only because of periods of insecurity
and misery but also because for a long time I struggled with two personal inclina-
tions which,I often thought,were somehow incompatible:the intellectual conviction
that liberal rights were valuable and defendable against critics (since I think they are
key to enhancing central values such as women’s equality which are far from accom-
plished),and my personal experience as a Catalan who often finds frustration in the
deep misunderstandings and political frictions that arise from the assertion of
Catalan identity and political aspirations (accusations of radical nationalism and
insolidarity towards the rest of Spain, fears of secession and particularism, objec-
tions to constitutional asymmetries,etc.).From personal experience,however,I had
the intuition that there should be a way to make both claims compatible. Growing
up in a family with a Spanish-only speaking father (and a fan of Real Madrid!),who
is an atheist and deeply attached to the South,and a hard-working and independent
Catalan mother, quite feminist but also a committed Catholic, never convinced of
the need to speak Spanish in Catalonia, I was always puzzled by the widespread
idea, or prejudice, that diversity was a “problem”. And so I ended up writing this
book which,with all its limitations and flaws,shows,I hope,the deep appreciation
for the lessons of tolerance and mutual understanding that I learned at home from
my parents.Even if they have very little to do with this book,written in a language
they can’t even understand, in a sense, they have all to do with it, and I am pro-
foundly grateful for this.
This project has also given me the great opportunity to do research abroad,and
to present and discuss my ideas in a variety of academic environments.This has been
possible because I have had the good fortune of finding support from a number of
institutions and persons. Over the years, I acquired many intellectual and personal
v
VI ACKNOWLEDGEMENTS
debts and I am glad to finally have the chance to acknowledge them. First of all,
thanks to my department, and especially to its current head, Jose Juan Moreso, for
granting me a number of leaves to work on this project as well as for generous sup-
port. Jose Juan also read an earlier version of the manuscript and provided helpful
comments.
Early work on the ideas included in this book was supported by grants and fel-
lowships from the Fundació Jaume Bofill,the Institut d’Estudis Autonomics and the
Generalitat de Catalunya. Thanks to this support, I could conduct part of my
research in Canada,first in the University of Ottawa and then at Queen’s University,
two institutions that provided a fruitful environment for philosophical inquiry and
research.My greatest debt here is to Will Kymlicka.He was not only extremely gen-
erous in supporting my application for different positions as a research fellow, but
also supervised part of my early work for the doctoral thesis and encouraged me to
re-shape and improve that work and publish it as a book.Since my own views have
been strongly influenced by his thought and writings,and by our numerous conver-
sations over the years, I am more than happy to thank him for the gift of his friend-
ship and wise advice.
During the academic year 2003-2004, I was fortunate enough to be granted a
Hauser Research Fellowship at the Global Law School of New York University.This
allowed me to devote a substantial amount of time to revising an earlier version of
this book in what I regard as a unique institution with a great intellectual community
and – what else can one wish? - in the midst of an incomparable and fascinating city.
I am deeply grateful to Rita Hauser and to the director of the Global Law School,
Joseph Weiler,for this honour.
I have been also lucky to receive comments and invaluable support for this project
from many people outside the institutions to which I have been directly linked.Paco
Laporta, Javier de Lucas, Roberto Gargarella and Carlos Rosenkrantz read earlier
drafts of some or all chapters and provided helpful comments. Owen Fiss and the
organizing committee ofthe Seminar in Latin America on Political and Constitutional
Theory (SELA) invited me on two occasions to present and discuss my work in this
privileged context.Thanks,too,to Efrén Rivera,who invited me to teach a course at
the Law School of the University of Puerto Rico which gave me the opportunity to
test many ofthe ideas defended in this book with an excellent group ofstudents.I also
owe many thanks to two anonymous reviewers at Springer,for their valuable sugges-
tions,and to Helen Van Der Stelt and Anne-Marie Blaney,on the publisher side,for
their admirable patience.
There is a long list of colleagues and good friends who have helped me to go
through difficult times over the last few years,often through their own professional
perseverance and human quality. Apart from the persons already mentioned, I am
particularly indebted to Idil Boran, Aida Torres, Mónica Vinaixa, Eugenia Revilla,
Isabel Sánchez, Rosa Lucas, Xavi Gómez, Víctor Ferreres, Juan Toscano, Miguel
Carbonell and Eduard Vallory. With Luis Javier Mieres I spent uncountable hours
discussing the main ideas defended in this book and,in general,conversing over top-
ics related to constitutional and political theory.He also read a draft of the book and
showed enormous support at all times.
ACKNOWLEDGEMENTS VII
The assistance of Alison Mawhinney has proved invaluable for bringing this book
to an end. Alison showed me her friendship, generosity and good spirit when she
accepted to edit and correct the deficiencies of my writing in English, despite the
pressures of time that she was also facing to finish her dissertation.She did an excel-
lent and competent job, from which I benefited greatly, and this is a debt that can
hardly be paid back.
Marisa Iglesias read several drafts, helped with editing tasks and provided wise
advice and challenging criticism (sometimes more than I could handle); but, above
all,as the exceptional friend she is and has been over many years now,she has shown
unfailing support and companionship in professional as well as personal endeavors.I
regard her as part of my family,of the community that most matters to me.Although
I already mentioned my parents,I am also grateful to Miquel,Nuria,Miquelet,Angel
y Pep,to Willow,my cat,and to my grandparents,Josep and Neus,for their uncon-
ditional love.Finally,without the unfading optimism of Nico,my partner,I have seri-
ous doubts that this project could have ever been finished.Nico has not only been a
fervent critic of some of my main views (what can you expect from a realist?),read
several drafts of each chapter, helped to re-write entire parts of the book and cope
patiently with phases of despair and absentmindedness. Above all, I am immensely
grateful for the constant joy that his love and permanent smile bring to my life.
CONTENTS
Introduction 1
Chapter I: Cultural Minorities and Group Rights:Contested Concepts 19
Chapter II: Towards an Alternative Notion of Group Rights 43
Chapter III: Understanding Multiculturalism:Which Groups Qualify? 65
Chapter IV: Tolerance,Neutrality and Group Rights 87
Chapter V: On the Relevance of Cultural Belonging:Group Rights
as Instrumental Rights and as Fundamental Rights 147
Chapter VI: Multiculturalism,Ethnic Minorities and the Limits of
Cultural Diversity 201
Epilogue: The Value of Cultural Pluralism:Some Final Remarks on an
Unexplored Topic 243
Concluding Remarks 249
Bibliography 251
ix
For Rosa M. Casals, my mother, and Neus Gili, my grandmother, two exceptional
women.And in memory of Albert Calsamiglia.