Minority protection through jurisprudence in comparative perspective: An introduction

Abstract

This introductory article tries to give a broad overview of the importance of courts and of case law in the field of minority protection. Of course, judges cannot make the law as they wish according to positivist legal doctrine. Thus, a basic constitutional decision must be made whether or not to recognise ethnic differences. Two models of non-recognition are elaborated: the 'French model' of ethnic indifference, labelled the 'agnostic liberal state', together with the 'German model', labelled the 'repressive nationalist state'. In contrast, two models of recognition of ethnic differences are also presented: first the 'national state of promotional inspiration' and secondly the 'paritarian multinational state'. Finally, judicial review on a supranational level of control through the European Court of Human Rights and the European Court of Justice are addressed. In conclusion, through the principle of 'unity in diversity' the question of the protection of minorities of and in the European Union will become more and more pressing in the future.