Group-differentiated Rights Research Articles

Medical Pluralism as a Matter of Justice.

Culture, health, and medicine intersect in various ways-and not always without friction. This paper examines how liberal multicultural states ought to interact with diverse communities which hold different health-related or medical beliefs and practices. The debate is fierce within the fields of medicine and bioethics as to how traditional medicines ought to be regarded. What this debate often misses is the relationship that medical traditions have with cultural identity and the value that these traditions can have beyond the confines of the clinical setting. This paper will attempt to bring some clarity to the discussion. In so doing, it will delve into some controversial areas: (1) the debate around whether liberal states ought to embrace multiculturalism, (2) the existence and nature of group-differentiated rights, (3) the question of whether healthcare systems ought to embrace medical pluralism, and (4) what this would entail for policymakers, clinicians, and patients. Ultimately, I argue that liberal democratic states with multicultural populations ought to recognize medical pluralism as a matter of respecting group-differentiated and individual human rights.

Two grounds of multiculturalism

Will Kymlicka has grounded group-differentiated rights for nationalcultural groups in the values of freedom and autonomy. An alternative moral foundation for such rights is dignity. In this contribution I contrast the freedom and the dignity case for multiculturalism in terms of their intellectual history and their contemporary justificatory potential. I show that the freedom grounding stands in the Herderian-romantic tradition, whereas the dignity case is older and hearkens back to the humanist claim for vernacular development. In terms of justification, I argue that, while freedom and dignity can independently justify group-differentiated rights, a theory that includes both justificatory grounds is stronger because these grounds can strengthen each other: firstly, dignitarian multiculturalism can help the freedom-based theory in withstanding the assimilationist claim that any cultural context – and not only people’s own culture – may foster freedom; while, secondly, the freedom case strengthens the dignity case by providing absolute ammunition to ward off the objection that dignity claims are normatively weak because they rely on subjective feelings.

Comparative study of the notion of legal and political pluralism in India and the Western world

Legal pluralism refers to the idea that there are multiple laws or legal systems in any geographical territory bounded by the traditional borders of a nation state. In the past few decades, it has gained a lot of traction as an analytical technique and a normative concept in Europe and even beyond. It has gained prominence not only in European Union law, but also in private international law, European human rights legislation, public international law and the analysis of legal systems. India is recognised as a pioneer in establishing a constitutional framework that recognises group-differentiated rights. The paper seeks to explore how well has this worked in the context of Indian democracy, given the reality of exclusions resulting from stratification, heterogeneity, and hierarchy, which often act concurrently and generate intersectionality. For decades following independence, our thinking was defined by a pluralist perspective of nationalism and Indianness that reflected the widest possible circle of inclusivity and a "salad bowl" approach. In recent years, a new perspective known as 'purifying exclusivism' has tended to infiltrate and dominate the political and cultural environment. Growing jingoistic tendencies threatens to eliminate any dissent, no matter how minor.

Rural Identities in an Urban Canada: Minority Rights for Agrarian Communities?

ABSTRACT Engaging with the theoretical literature on liberalism and minority cultural rights generated by Canadian scholars Will Kymlicka, Charles Taylor, and Alan Patten, this article offers an initial evaluation of the claim that rural agrarian communities exist as minority cultural communities bound together by a strong collective identity and conception of the good and are therefore deserving of certain group-differentiated rights designed to thwart their decline. Although it may appear unusual to locate a community held together by an economic activity on a scale equal to other, more commonly mentioned minority groups held together by ethnicity, religion, or language, this article highlights some shared “formative conditions” that bind this community together in a cultural way before concluding that there is reason to believe that liberal justice may require certain rights be made available to such communities. The article closes with a brief consideration of the policy implications of such a finding.

Immigration and Multicultural Citizenship in Europe: Insights from the Framework Convention for the Protection of National Minorities

Abstract Multicultural citizenship, a set of group-differentiated rights for minority cultural groups, is now a common feature of most domestic legal systems in Europe. The conventional view, widely reflected in practice, suggests that ‘strong’ rights of this sort should be restricted to so-called ‘historical’ minorities. However, the increasingly long-standing presence of distinct cultural groups of immigrant origin raises the question of whether, and to what extent, the latter should also be granted stronger forms of multicultural citizenship. This article addresses this question by reference to the Council of Europe’s Framework Convention for the Protection of National Minorities, a central pillar of the international minority rights regime in Europe. The article analyses the application of the treaty to immigrant-origin groups in the Czech Republic and the United Kingdom, showing that the scope of protection afforded to such groups is stronger than previously assumed, though less far-reaching as compared to their ‘historical’ counterparts.

The politics of recognition of Crimean Tatar collective rights in the post-Soviet period: With special attention to the Russian annexation of Crimea

This paper examines the process of how Crimean Tatars strived to attain group-differentiated rights since they have returned to their homeland in the early 1990s. Whereas the politics of minority rights were viewed through security lens in earlier literature, we emphasize the significance of cultural constructs in influencing the minority policies, based on qualitative content analysis of “speech acts” of elites, and movement and policy documents. Focusing on the interaction of the framing processes of Crimean Tatars with the Crimean regional government, Ukraine, and Russia, we argue that the “neo-Stalinist frame” has played a major role in denying the rights of Crimean Tatars for self-determination and preservation of their ethnic identity in both pre and post annexation Crimea. The Crimean Tatars counter-framed against neo-Stalinist frame both in the pre and post-annexation period by demanding their rights as “indigenous people”. Ukraine experienced a frame transformation after the Euromaidan protests, by shifting from a neo-Stalinist frame into a “multiculturalist frame”, which became evident in recognition of the Crimean Tatar status as indigenous people of Crimea.

Political Ideology and Cultural Diversity in South Korea: Toward a Theory of Group-differentiated Rights

Korea has experienced ideological changes in the political sphere since society experienced ethnic diversity in the 1990s. The government urgently introduced new policy agenda ‘Damunhwa’ – multicultural – in the wake of up-surging social problems such as embracing cultural differences and human rights of foreigners as a salient issue following multicultural explosion with a large number of foreigners. As a result, many scholars argue that the Korean state response to cultural diversity has shifted from differential exclusion to assimilation toward immigrants in current society. However, it should be mentioned that it is implausible to link assimilation with a successful political ideology to manage ethnic diversity effectively. In this article, I argue that it is time to present a new political ideology for future directions in order to integrate ethnic minorities into a universally acceptable manner through consideration of the theory of group-differentiated rights in the context of Korean society.

Conditions for an Effective Democracy in Multicultural Societies and Countries

The motive behind this paper is exploration of the conditions for effective democracy in multicultural societies and countries. The two principles of social setting in the context of classical parliamentary democracy ensue from a special set of civil and political rights, as basis for cultural identity, which further underlies the collective cultural rights (CCRs) or group-differentiated rights (GDRs). Such setting is initiation into a serious process of changes in classical democracy. The cultural diversity accommodation in the political system of a given democracy is an intricate process that shifts the liberal justice concept and requires a new political system dubbed by some authors as multicultural democracy, instead of merely democracy in multicultural societies. This theory is chiefly known as “consociational theory of democracy”. In this paper, efforts are made to establish the new theoretic and experiential institutions and relations we are to call conditions for an effective multicultural democracy.

Revisiting the Idea of Multiculturalism in India: Accommodating Muslims’ Religious Identity in Public Sphere

India is among the most diverse societies in the world. Various religions, cultures, faiths, languages and social milieu of India reflect a very fine aspect of Indian multiculturalism. The Indian multiculturalism is not defined by any particular, community, religion or region rather it is a matrix of different values, traditions, customs and languages of its heterogeneous cultures, religions, sects etc. As a liberal democracy, it provides recognition to its vast diverse ethnic and religious groups with group-differentiated rights. For the Muslim community in India, both recognition and equal opportunity within the public sphere are keenly desired notions that tend to mobilise them politically and religiously. This paper explores the salience of Indian multiculturalism and issues of marginalisation of the Muslim minority in a liberal democratic polity. The objective of this study is to reflect upon the issues of representation of the Muslims in public sphere in India. This paper will examine the factors which help or hinder in shaping the attitude and participation of the Muslim minority in public sphere in India.

Recognition: Examining Identity Struggles by Renante D. Pilapil

Reviewed by: Recognition: Examining Identity Struggles by Renante D. Pilapil Jozon A. Lorenzana Renante D. Pilapil Recognition: Examining Identity Struggles Quezon City: Ateneo de Manila University Press, 2015. 194 pages. One of the challenges of scholarship is bringing oneself into conversation with other disciplines. At a time when multiple perspectives are needed to understand complex phenomena, thinking beyond disciplinary boundaries and thematic concerns becomes crucial to our task of knowledge production. The work of scholars who mediate between disciplinal boundaries or the theoretical realm and empirical context is significant. Such labor takes various forms, which include philosophical analysis, particularly in the field of philosophical anthropology. In this area of philosophical inquiry, notions about the human person are based on empirical work. Renante D. Pilapil, a philosopher based at the Ateneo de Davao University, shows how philosophical anthropology can be deployed in the Philippine context and beyond through his work Recognition: Examining Identity Struggles. Based on his doctoral dissertation at KU Leuven, the book provides a critical introduction to the concept of recognition, a term that is readily invoked but rarely utilized as an analytical or constitutive framework in empirical social and cultural studies. Pilapil engages theorists of recognition, particularly Axel Honneth of the Frankfurt school of critical theory. The book is concerned with the question of how we ought to think about identity claims in the present context, which is marked by a global resurgence of ethnoracial politics and nationalism. Pilapil reflects on how recognition serves as a normative framework to think about identity politics and social relations. Drawing on Honneth, Pilapil understands recognition as the act of not only perceiving but also, more specifically, affirming the preexisting traits, abilities, and moral autonomy of an individual or group. His work examines the normative theory of recognition and explains how its opposite, misrecognition (in the experience of disrespect, being unloved, and disesteemed, among others) dehumanizes persons (61). Moving beyond a philosophical scrutiny of the concept, the author points out how issues of recognition resonate in the Philippine experience through mundane examples presented in each chapter and a test case on the Moro struggles in Mindanao in the final chapter. Pilapil argues that, notwithstanding the problematic implications of the formal recognition of the identity and difference of individuals and minority groups (formal affirmative recognition), it is the [End Page 407] best means available for responding to identity claims of minority groups. In linking recognition to redistribution, Pilapil acknowledges the way cultural identity is bound up with socioeconomic conditions of people. In so doing, recognition becomes a matter of social justice and gains normative bite. The arguments unfold in six chapters, beginning with a critique of Charles Taylor's assumption about the role of culture as a source of and basis for identity (chapter 1). As Taylor argues, recognition of peoples' cultural identities presupposes their equal worth. Pilapil then raises questions about equality and differential treatment arising from cultural distinction. Drawing from Will Kymlicka, he complicates the notion of cultural difference by pointing out how equal treatment may disadvantage minority groups. Acknowledging the possibility of the majority imposing itself on minority groups, Kymlicka proposes group-differentiated rights. The question of justifying rights on the basis of cultural identity claims is then tackled in the second chapter. Pilapil looks at Mark Tully's contestation approach as a counterpoint to formal affirmative recognition. In this formulation Tully assumes that demands for recognition have no resolution but are always in a state of struggle. Pilapil argues that Honneth's elaboration of recognition provides a way out of the debate on what grounds it can be justified. In Honneth's theory, social recognition becomes a precondition for having an identity (chapter 3). Its lack or denial is detrimental to the processes of self-realization and personhood (75–79). Hence, Pilapil suggests that Honneth's theory highlights the moral basis for recognition. Honneth situates recognition within the intersubjective nature of human beings. Through particular relationships or spheres of interaction that overlap, humans form aspects of their personhood. In relations of love, which include family and friends, persons develop confidence; with peers they gain esteem; and in legal relations people acquire respect. According to Honneth, social or mutual affirmation...

Secularism in Crisis

In academic writings on multiculturalism in India the “ Shah Bano controversy” (1985–1986) has been a much cited example of the incompatibility between gender equality and cultural diversity. As a response to the Supreme Court’s Shah Bano verdict in 1985, the then Congress-led Indian government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. In this article, I analyze the parliamentary debates on the aforementioned Act in order to examine the dominant normative vocabulary of the Indian state in debating the issue of religious freedom versus demands for democratic citizenship rights. Such an exercise sheds light on how the Indian state has reconciled group-differentiated rights – the legal recognition of Muslim Personal Law in this case – with the liberal democratic principles enshrined in the Constitution of India. The analysis of the parliamentary debates on the Muslim Women’s Bill shows, firstly, that when purportedly incommensurable demands of gender-justice and religious freedom come to an elected deliberative forum, it is not necessary that such demands are resolved through “consensus” or through “negotiation and compromise,” as has been argued by multicultural theorists. Secondly, the analysis of the parliamentary debates also demonstrates that while the proponents of the Bill prioritized group rights at the expense of individual rights, the opponents neglected the concern that vulnerable minority groups should be accorded differential treatment. I thus contend that both the proponents and the opponents of the Muslim Women’s Bill in the Parliament argued in terms of formal equality and lacked arguments based on substantive equality. Finally, I argue that although the Congress government prioritized group rights in the parliamentary debates, it did not give up the ideal of a common civil code, such that the government left the question of accommodating gender-equality concerns unresolved. It was thus left to the judiciary to determine whether to further entrench legal pluralism in the family law of India.

Three Models of Group-Differentiated Rights

Group-differentiated rights, or rights that vest on the basis of an individual's membership in a particular social or cultural group, are an increasingly common and controversial aspect of modern liberal legal systems. In justifying such rights, theorists have largely focused on demonstrating the conformity of group-differentiated rights with principles of liberal neutrality. This article suggests that group-differentiated rights present a further, largely unrecognized, potential moral cost from the perspective of liberal theory. Group-differentiated rights threaten to impede individual self-invention. The first section of the article introduces the essential terms and structure of the contemporary debate over group-differentiated rights. The second section describes analytically the processes by which rights categorize persons and influence social identity. The third section then constructs a liberal theory of membership, the central precept of which is individual constitutive autonomy. The fourth section describes three models (ascription, affirmation and culturalization) of the process by which social and cultural groups and identities may be constituted by rights, and evaluates each model according to the principles which inform the liberal conception of membership previously constructed. The analysis demonstrates that while the group-differentiated form of right does indeed threaten individual constitutive autonomy, the true extent of any loss depends in significant part upon the particular model invoked.

Prawo zróżnicowane dla grup: wyzwanie dla prawa karnego

The liberal project of tolerating and accommodating the beliefs and practices of minority cultures and religions poses a serious challenge to the usual liberal understanding of penal law. Whatever accommodations may be available in other areas of the law, it is often thought that the penal law should be the same for everyone. This view has been challenged by advocates of “cultural defences”, who argue that truly equal treatment requires evidence concerning the cultural reasons for a person’s actions to be considered rather than ignored. Most advocates of some form of cultural defence have treated it as relevant to existing criminal law defences, or as a distinct excuse, rather than as a reason to vary the demands of the penal law or to exempt members of minority cultures from it. But the strongest and most persuasive liberal arguments for accommodating minority cultures imply that members of minority cultures may indeed be entitled to exemptions from penal law.Liberal arguments in favour of group-differentiated rights apply as much to the demands of penal law as to the demands of any other kind of law. So the argument for group- -differentiated rights appears to be inconsistent with the claim that there should be one penal law for all. There are (at least) three possible ways of resolving this inconsistency. First, one might give up the ideal of one penal law for all; second, one might seek an argument for exempting penal law from the demands of group-differentiated rights. In this paper, I explore a third possible resolution: the distinction between a core of penal law-call it “criminal law” strictly speaking – that does indeed apply to all and is not open to group-based differentiation and a periphery of penal law-call it “regulatory penal law” – that need not apply to all and can therefore be differentiated to accommodate group rights. Whether this resolution succeeds or not, the need to consider it shows that the problem of accommodating cultural diversity goes to the heart of what we mean by criminal law.

In Defence of Geo-Cultural Identity: An Argument Against Kymlicka's View of Multiculturalism and Minority Rights

Cultural diversity often appears as a basic phenomenon in the contemporary globalized world. People who are culturally marginalized often claim various rights, such as language rights, rights of territorial autonomy, immigration rights, and environmental rights. Conflicts between majorities and minorities are therefore likely, and have indeed caused deadly violence all over the world. Will Kymlicka argues for a new liberal approach to resolve these issues in multicultural politics. He believes that a comprehensive theory of justice in multiculturalism should include universal human rights as well as certain “group-differentiated rights” for minorities. His arguments for group-differentiated rights, as he calls them, are founded upon on equality-based argument, history-based argument, and cultural diversity argument. This paper critically examines Kymlicka’s view of multiculturalism and minority rights, and explores some of his main critiques. It argues that while culture is important for individuals, multiculturalism should rest on the values of cultural diversity and geo-cultural identity.

Status-Differentiated Rights

This article defines status-differentiated rights and identifies examples from international principles, declarations, and conventions. Drawing on the work of Peter Jones and Will Kymlicka, status-differentiated rights are compared and contrasted to group and group-differentiated rights. Using Jack Donnelly's three-tiered scheme of substance-interpretation-implementation, the article also demonstrates how status-differentiated rights complicate the equal-special rights binary; this is because some rights are status undifferentiated at one level, yet status differentiated at another. This article concludes that addressing the diverse harms faced by (members of) vulnerable status groups requires both “ordinary” human rights and status-differentiated rights.

Why group membership matters: A critical typology

The question of why group-differentiated rights might be a requirement of justice has been a central focus of identity politics in recent decades. I attempt to bring some clarity to this discussion by proposing a typology to track the various ways in which individuals can be harmed or benefited as a consequence of their membership in social groups. It is the well-being of individuals that group-differentiated rights should be understood as protecting, and so clarity on the relationship between group membership and well-being is vital. One of the problems with the way in which such justifications have often been formulated in the past has been that they inadvertently position the group as a handicap to be overcome, rather than a value to be protected. I seek to overcome this limitation by clearly specifying the circumstances under which group membership is a liability, and the circumstances under which it has value. While this distinction is important, in both cases there is a relevant interest at stake, and thus the groundwork can be laid for a defence of group-differentiated rights.

Group-Differentiated Rights and the Problem of Membership

Group-Differentiated Rights and the Problem of Membership

Grounding Multicultural Citizenship: From Minority Rights to Civic Pluralism

Whereas multicultural citizenship in theory has focused on minority and group-differentiated rights, multicultural citizenship in practice has been framed in terms of the universal rights and obligations of citizenship. This paper seeks to address this apparent gap. It evaluates ‘civic pluralist’ models of multiculturalism, such as those in Australia and Canada, in which cultural difference is expressed within the limits of a common civic culture. A civic pluralist model of multicultural citizenship must meet two tests; it must not only recognize cultural difference in the public sphere but must also provide a new basis for political belonging. This requires an ‘open’ political culture or ‘deliberative democracy’, in which political institutions and practices are exposed to scrutiny and re-interpretation, and a sense of belonging based less upon shared political values and more upon common membership of public debate within a political community.

Recognition, Redistribution, and Democracy: Dilemmas of Honneth's Critical Social Theory

What does social justice require in contemporary societies? What are the requirements of social democracy? Who and where are the individuals and groups that can carry forward agendas for progressive social transformation? What are we to make of the so-called new social movements of the last thirty years? Is identity politics compatible with egalitarianism? Can cultural misrecognition and economic maldistribution be fought simultaneously? What of the heritage of Western Marxism is alive and dead? And how is current critical social theory to approach these and other questions? Much of the most productive work done in recent social theory has revolved around such issues, in particular, around those concerning the relationship between the politics of recognition and the politics of distribution. After the intense theoretical focus over the last fifteen years or so on the issues of recognition politics—multiculturalism, multi-nationalism, identity politics, group-differentiated rights, the accommodation of difference, and so on—some social theorists have worried that attention has been diverted from important issues of distributive equality—systematic impoverishment, increasing material inequality, ‘structural’ unemployment, the growth of oligarchic power, global economic segmentation, and so on. While some critics seem to have adopted a blunt ‘it’s the economy, stupid’ line of criticism, 1 others have attempted to develop an overarching, integrative theoretical framework adequate to the diverse issues concerning both economic and cultural justice. For example, Axel Honneth proposes that a suitably developed and normatively robust theory of intersubjective recognition can adequately integrate an analysis of apparently diverse contemporary struggles: those for a just division of labor and hence, a fair distribution of resources and opportunities, as well as those for a culture free of identity-deforming disrespect and denigration. 2 In two recent papers (Honneth 1998; 2001), Honneth appropriates John Dewey’s political theory as a way of bridging the gap in critical, democratic theory between attention to economic struggles and struggles for recognition. And in a recent book exchanging views with Nancy Fraser, Honneth further develops his theory to show how everyday experiences of misrecognition can be understood as the normative and motivational well-springs of struggles against both economic and cultural injustices (Fraser and Honneth 2003a). I take it that the background motivation for these moves is to reanimate the critical thrust of the Marxist heritage of critical theory—namely, to ground a strong normative

Group-Differentiated Rights and Informed Consent for Indigenous Group-Based Genetic Research

AbstractIntroductionIndigenous Peoples’ struggle to be acknowledged as autonomous groups has found international legal support in the ILO Convention 169, which many Latin American countries have ratified. The way by which regional constitutional jurisprudence has reconstructed the foundations and scope of this right to self-determination seems, however, quite controversial. Firstly, taking Colombian constitutional jurisprudence as an example, I discuss both the acceptability of the restrictions the Constitutional Court has fixed to groups’ self-determination and the acceptability of defining them as collective subjects. Having in mind a better understanding of group-differentiated rights, I examine, secondly, how the conditions of the ILO Convention regarding the informed consent from indigenous groups should be satisfied when group-based genetic research is to be developed.