Taking Language Rights Seriously

Abstract

Although language rights appear in constitutional documents around the world, they are commonly perceived as special rights that are distinctively different from fundamental human rights. under this perception, fundamental human rights are to be interpreted by courts with generosity, whereas language rights are to be interpreted with restraint. this perception has been dominant in both the canadian and Israeli legal systems, which have faced similar dilemmas regarding the scope and normative force of language rights. Several claims have been made in both canada and Israel to justify such a restrained judicial approach towards language rights. All these claims try to identify allegedly unique features of language rights that justify their restrained interpretation. drawing on the legal experience in canada and Israel, I argue that all the claims that have been raised so far are ill-founded by showing that all the allegedly unique features of language rights subsist in the right to religious freedom as well. Because the right to religious freedom is perceived as a fundamental human right, which is interpreted generously despite having these features, language rights can be generously interpreted as well. that is, I put forward an argument for a purposive interpretation of language rights. After showing that these claims based on the uniqueness of language rights are illfounded, I identify a new possible claim for justifying a restrained approach towards language rights, namely that unlike the right to religious freedom, language rights impose a cultural burden on majority members. the term ‘cultural burden’ refers to the requirement imposed on majority members to actively use the minority language, which unavoidably causes them to associate themselves with the minority culture to some extent. By requiring majority members to actively use the minority language, the sphere of their own cultural identity is invaded by other spheres in their lives, such as education, economics and career. (2014) 25 KLJ 231–254 doI: http://dx.doi.org/10.5235/09615768.25.2.231