MULTICULTURALISM AND LAW: A CRITICAL DEBATE
by Omid A. Payrow Shabani (ed). Cardiff: University of Wales Press, 2007. 338pp. Hardback. £60.00/$85.00. ISBN. 9780708320068. Paperback. £19.99/$35.00. ISBN: 9780708320051.
Reviewed by Warwick Tie, School of Social and Cultural Studies, Massey University. Email: w.j.tie [at] massey.ac.nz.
Taking the reader beyond its overt goal, to review the capacity of law to traverse the gap between political equality and socio-cultural difference, the collection of scholarly essays that comprises MULTICULTURALISM AND LAW raises timely questions about the knowledge-production practices appropriate to this subject material. The prompt for those questions comes from the architecture of the text.
MULTICULTURALISM AND LAW structures its inquiry into law’s ability to mediate between equality and difference by dividing possible approaches to that issue into two analytic camps, each of which has two versions: liberal political theory and critical theory. ‘Liberalism1’ promotes the ideas of ‘individual rights and [of] a neutral state that is not committed to any sort of cultural, religious or collective project’ save those denoted by the goals of ‘personal freedom and physical security’ of individual citizens (p.2). Liberalism2 also highlights individual rights in the constitution of the liberal state but argues for the importance of ‘national-cultural context where an individual’s sense of belonging becomes important in exercising his or her rights.’ Critical theory, in contrast to the substantive orientation of liberalism, seeks the discovery of some or other procedural ‘principle of universalization’ through which the diverging political claims of distinct socio-cultural communities can be simultaneously engaged (pp.2-3). Adding sociological complexity to this vision, critical theory2 suggests that the simple quest for universal grounds should be supplemented with an historicized account of any such procedural solutions that come into being.
Providing content for the consideration of this philosophical debate are a set of themes germane to the issue of law’s prospects within societies that have come to be characterised by socio-cultural diversity: ‘the nature of political deliberation in pluralistic societies;’ ‘the nature of legal interpretation in pluralistic societies;’ the role of law in ‘reconciling equality and difference;’ and the increasingly globalized context of politico-legal decision-making.
Leading the reader’s consideration of each of these themes are principal essays by eminent scholars, each of which is accompanied by two or three commentaries written from perspectives whose divergences from the principle have the prospect of advancing insight into the points being initially made. No attempts are made to reconcile interpretive differences between the approaches at the level of the themes themselves. [*168]
Opening the theme on political deliberation from the perspective of critical theory2, James Tully argues that consideration of the relation between socio-cultural difference and political equality has traveled from the simple quest to recognise such difference to that of the establishment of norms through which mutual recognition might be forged between socio-cultural communities. A trend has become discernable within the latter, towards a normative architecture that assumes a measure of reasonable on-going disagreement over the nature of any such norms. Essays by Thomas McCarthy and Jocelyn Maclure work from the same procedural orientation as Tully, enlarging more than contesting key elements of the principal essay.
Reviewing the matter of judicial interpretation in a manner suitably catholic for a lead essay, Jeremy Webber’s ‘A judicial ethic for a pluralistic age’ seeks to develop a just methodology for interpreting cases in which the salience of socio-cultural difference outruns the address of the specific statutes being used in each instance. The model attempts to replace the default judicial practice common to such cases, of the judge inserting their subjective opinion, with that of an ethic through which the best substantive arguments put forward in the case are integrated in a manner which ensures that each participant sees their concrete situation reflected in the justice of the outcome. In agreement with the overall tenor of Webber’s proposal, Kenneth Baynes and Simone Chambers seek to rearticulate the ethic in terms of a more context-sensitive proceduralism, challenging an underpinning assumption in Webber’s ethic that the final signifier of law is substantive justice.
An essay by Jeremy Waldron opens for discussion the issue of law’s prospects for reconciling equality and difference. Writing within the tradition of liberalism1, Waldron identifies nine institutional instruments by which the law presently exhibits a capacity to accommodate socio-cultural particularity. This capacity has limits, however, limits that are quickly reached when legal decision-making interprets particularity in the concrete terms of plaintiffs’ socio-cultural practices rather than at the symbolic register of their ‘voice.’ It is at this level of voice and not socio-cultural practice, Waldron argues, that attempts to reconcile equality and difference stand a chance of succeeding. The two essays which reflect on Waldron’s argument, by Michel Rosenfeld and Douglas Moggach, begin to depart in style from other contributions, highlighting what thus far has remained an unspoken characteristic of the text as a whole, that is, its reification of the meanings of law and of multiculturalism. Rosenfeld’s contribution in particular interrupts that reification of law with a Hegelian interpretation that historicizes both the emergence of the philosophical dialectic of equality and difference and of legal responses to it.
The final theme, that of the global environment within which law and multiculturalism come into proximity with one another, in effect operates as two lead essays (by Jürgen Habermas and Will Kymlica) coupled with a commentary article on each (by Neil Walker and Courtney Jung, respectively). Habermas reviews the [*169] divergence in juridical styles that has emerged between the pursuit of international law as a means for resolving intra-state tensions and the pursuit of a world republic capable of acting to that same end (materializing in recent times in the doctrine of Pax Americana). Finding in favour of international law, Habermas proposes a principle of cosmopolitan multi-levelness for that law, through which supra-state, national, and sub-national agencies might successfully negotiate. Walker cautions that if this is to be any more effective than a rudderless ship, the proposition must be grounded in ongoing consideration of cosmopolitanism’s future as an analytic strategy in a socio-culturally diverse world.
Will Kymlica uses the context of Europe’s relation to cultural minorities in order to review the capacity that ‘international standards’ might have for giving due recognition to the concrete realities of locally embedded cultural identities. While supportive of the formulation of such standards, Kymlica indicates the persistence of problems where those standards give effect to either a right to territorial autonomy or the right to enjoy one’s culture. These problems take two related forms: threats of succession by minority cultural groups and an offensive tokenism on the part of majority cultures. In light of these problems, European states have moved towards a standard which focuses upon participation by minority communities in politico-legal processes, an approach that Kymlica supports for the pragmatic reason that it has the potential to hold the outbreak of ethnic violence at bay. Courtney Jung challenges an unacknowledged assumption which informs Kymlica’s liberalism: that culture constitutes identity. Her reason for doing so is that she contests the constitutional implication which follows, that consideration of culture must be the guiding analytic strategy informing legal innovation. Culture is, instead, primarily a political category, mobilised at the level of the polity not for the simple purposes of enhancing members’ senses of belonging but for gaining political traction for those communities. To this end, culture is particularistic and strategic rather than universal in character. Against Kymlica’s own declared intentions, Jung suggests, his currently pragmatic mood is moving him towards this same understanding.
Volume editor Omid A. Payrow Shabani suggests, in his introductory essay, that this diverging collection of essays demonstrates law’s capacity to productively address the tension between political equality and socio-cultural particularity. The argument collectively exhibited by the text’s contributors indicates that particularity – whether understood as difference, identity, self-determination, or plurality – is intrinsic to the notion of constitutionally unified political community. ‘At the core of this convergence’ between the essays, Shabani states towards this point, ‘one can find the idea of democratic self-determination as the necessary condition for participants in polity to see themselves in relation to the law simultaneously as its authors and its subjects. The principle of democratic self-determination as institutionalized in law, then, gives legitimacy to the system and bonds the citizen[s] together’ (p.15).
This finding by Shabani with respect to the contributions as a whole incites the [*170] question with which I opened regarding the knowledge production practices involved in the construction of the text, specifically the use of liberal philosophical debate to structure deliberation. Organised in this manner, the editor’s synthetic moment suggests that there exists no forms of difference pertaining to the social that cannot be rendered intelligible within (broadly) liberal political terms. The finding thus becomes at risk of courting a criticism that its knowledge production practices construct the notion of liberal order in a wholly ideological manner. As Fredric Jameson has described similar moves (1997, p.273), a liberal polity would thereby come to have ‘no outside in terms of which it could be found lacking.’
One contribution to the collection has already been noted as having the potential to productively interrupt the ideological closure thus inaugurated, that being the essay by Rosenfeld which historicizes the otherwise reified sense of law that characterises the text. One further dimension of the text also has the potential to interrupt this closure, this time adding in the reified view of multiculturalism that characterises the contributions. Dominating the cover of the book is a photograph with two figures: in the foreground, in sharp focus, we see the head of a woman dressed in Islamic burqa, her eyes moving obliquely to our own; in the background stands a UK constable, his image blurred, his eyes appearing to bear down upon the woman. A protest sign to the left of the image suggests that the surveillance is occurring under contested conditions.
The image introduces to the text an element that otherwise receives scant mention; the reliance by law in this historical conjunction – in which, as Habermas indicates, the distance between multiculturalism and ‘war on terror’ all but dissolves – upon the operation of a form of policing that can keep socio-political diversity within the limits required for the smooth operation of a unitary Rule of Law. In my own country, as in other jurisdictions, the policing involved departs from that depicted on the book’s cover – that of uniformed ‘law and order’ policing – involving instead the covert practices of political policing. These practices, as criminologist Jean-Paul Brodeur indicates (1983), regularly exceed what the law permits, operating through a principle of political performativity that, to borrow words from Slavoj Žižek (2002, p.192), ‘defines its own conditions’ by retroactively producing the very ‘grounds which justify it.’ Where such policing practices fail to inaugurate those new grounds and illegalities within those practices result in criminal trial, prosecutions tend to succeed. The illegality of those practices does not, however, thwart their ongoing occurrence. This capacity to exist both within and outside the law appears imperative to a power that is burdened to re-create the conditions within which law can function.
The cover photo thus brings in a genre of difference which resists integration into the architecture of dialectical debate by which the text organises its knowledge production, the unruly performativity of political policing. Not only does that performativity disrupt the very notion of a transparent legal order, it has the ability to dislocate the cogency of the [*171] political philosophy which legitimates liberal order intellectually. The apparently increasing deployment of this power within legally constitutional societies emerges as a shadowy underside to both multiculturalism and law, an underside to which a contemporary text on politics could valuably attend in a more thorough-going manner than by way of a witness given to the fact by its cover-photo. Such a development to the volume would, however, undercut the analytic sufficiency of the knowledge production practices deployed at the level of the text as a whole. Productively, an interruption of this magnitude might have the ability to incite maturation in those practices such that they outgrow the political innocence characterising the text’s present formulation of the dialectic.
Brodeur, Jean-Paul. 1983. ‘High Policing and Low Policing: Remarks about the Policing of Political Activities.’ SOCIAL PROBLEMS 30 (5): 507-520
Jameson, Fredric. 1997. ‘Culture and Finance Capital.’ CRITICAL INQUIRY 24 (1): 246-65.
Žižek, Slavoj. 2002. FOR THEY KNOW NOT WHAT THEY DO: ENJOYMENT AS A POLITICAL FACTOR. London and New York: Verso.
© Copyright 2009 by the author, Warwick Tie.
Labels: Vol. 19 No. 2