Multiculturalism and legal autonomy for cultural minorities

Morten Ebbe Juul Nielsen

doi:10.5324/eip.v7i2.1798

Abstract

Does multiculturalism imply that certain cultural minorities – nomos groups, whose cultural conceptions extend in important ways into views about the law – should have forms of legal autonomy that go beyond normal multicultural accommodations such as exemptions and special protection? In other words: should we allow «minority jurisdictions» for multicultural reasons and give certain minorities powers of legislation and adjudication on certain issues? The paper sketches how one might arrive at such a conclusion given some standard multicultural reasoning, and then proceeds by examining eight key rejoinders to such a proposal. None of these rejoinders provide by themselves knockdown arguments against extending multicultural rights to forms of legal autonomy, but together they do provide a basis for some skepticism about the cogency and desirability of at least more ambitious forms of legal autonomy for cultural minorities within a liberal framework.

Highlights

According to what might be called a common sense or «popular» view of the relation between a citizen and political authority, a citizen is subject, to one law and one political authority, both normally to be identified with the nation state in which the citizen lives
Reflection, shows this to be an illusion, at least at the edges of the idea: we live in globalized times with many layers and forms of relevant law and regulation this monist picture – one citizen, one law, one ultimate political authority – is, I surmise, firmly held as a kind of mental default picture by most citizens and many scholars as well
We arrive at the guiding question of this article: Which normative concerns could arise in conjunction with such multicultural multilegalism? To grapple with those normative issues, one needs first to define and discuss the concept, which is done after some initial comments on the present state of the art in the multicultural literature and other preliminaries

Summary

Introduction

According to what might be called a common sense or «popular» view of the relation between a citizen and political authority, a citizen is subject, to one law and one political authority, both normally to be identified with the nation state (and its institutions, including national law) in which the citizen lives. If representatives of a more conservative interpretation of the religious code, which «spills over» into less private, more political or public aspects of life, monopolize the interpretation of that culture’s «innate» ideas and express those in the legal codes of a minority jurisdiction under multilegalism, it seems weird to say that 1) their identity or culture is somehow «more respected» and 2) that their options or opportunities in life are enhanced in a relevant sense Such a situation might arise in any kind of legal arrangement, and is morally problematic whether or not it takes place in a «normal» or a multilegal framework.. If a multicultural multilegalist system should be initiated, it is important to include various voices and strata of the minority in question in the construction of that system, as well as to try to make sure that the legal powers given do not end up exclusively in the hands of some self-serving elite within the minority and that the legal powers do not give some parties in the minority group unfair and irrevocable advantages in the future construction of cultural identity

Conclusion

74. Princeton