A community of paradigm subjects? Rights as corrective tools in culturally contested claims of recognition in Europe

Abstract

This article analyses the role of rights in human rights jurisprudence dealing with recognition of identities and cultural diversity in Europe. Using examples of selected case law of the European Court of Human Rights, it discusses the understanding of rights and their impact on the notions of community and recognition. It critically evaluates the recourse to the notions of a closed, established community and the defence of the established status quo in culturally contested conflicts. It analyses claims articulated by those framed as standing outside the narrow confines of such a cultural community. By reference to critical perspectives, the article illustrates how rights operate with categories of paradigm and foreign subjects and regulate respective entitlements of these subjects to enjoy rights. It demonstrates how these categories impact upon the notion of a community and how the narrowing of its boundaries limits the possibilities of belonging of foreign subjects. The article argues that these categories embedded in rights regimes lead to a mutation of rights from tools of inclusion to tools of correction. In their corrective function rights rather than serving as tools of ensuring belonging are used for maintenance of established identities and cultural regimes of power. In the final section by reference to the latest judgments of the same Court expanding rather than narrowing the understanding of a community, the article examines whether rights can reach beyond these subjectivities and offer possibilities of renegotiating the established regimes of cultural power.