Are Cultural Rights Bad for Multicultural Societies?

Culture is increasingly becoming an important word in the courthouse as the rights of people belonging to different cultures are being affirmed and contested. In a country like the United States, where citizens from all different races, classes, and ethnic groups are subject to the one "law of the land," dealing with cultural claims becomes difficult. In the part of the world where I live, along the Texas and New Mexico border between the United States and Mexico, articles about cultural claims appear almost every day in the newspaper: Tigua Indians taking "the law" in their hands to reclaim an ancestral drum or reclaim their rights to the city's water supply, or groups invoking the "right" to drive while intoxicated and protesting the open container law. When I read stories like these I often think of how in India we have separate laws for separate ethnic groups—Parsis and Muslims—and various laws under Hindu law for Brahmo samaj, Arya samaj, and other groups. A variety of cases, with perhaps the single exception of criminal cases, are adjudicated and tried under these separate laws. Will Kymlicka calls this the "millet system," citing the Ottoman Empire, for example, where Muslims, Christians, and Jews were all recognized as self-governing units. ¹ Neither Britain nor the United States has previously faced the need to create laws based on ethnic identity, and to some extent such a system may not even be feasible. It might even cause a backlash against the increasing ethnic diversity by granting "cultural rights," say, to a Timothy McVeigh or to the Ku Klux Klan. The possibility of such backlash, suggests Will Kymlicka, makes an absolutist defense of cultural rights unworkable. Instead, he argues, cultural rights ought to be defended only insofar as the protected groups are not themselves intolerant. In other words, we should be tolerant of everything but intolerance itself. Yet intolerance can take many forms. Book burning, I suggest, cannot be equated with the taking of lives. Thus, when intolerance results in murderous criminality, it cannot be adjudicated by "cultural rights"; when it asserts itself in less clearly harmful ways, it may make sense to tolerate it.

In this essay, I join critics such as Daniel O'Neill in challenging the limits of tolerance in the liberal framework. Liberal theory defends "other" cultures only insofar as they conform to liberal principles. Liberal principles respect individual autonomy, such as freedom of speech for members of groups. But when Muslims were seen as being intolerant of Salman Rushdie's "freedom of speech" in 1989 during what has been dubbed the "Rushdie Affair," should we have denied them their "cultural rights" to express a relevant concept from their religion? To what extent do existing laws serve the needs of an increasingly diverse migrant society? What forms of cultural resistance are available to those whose values seem to be at odds with the dominant ideology? "Cultural rights" necessitate the creation of a shared set of assumptions about acceptable behavior in a multicultural society where people can live peaceably according to their cultures without infringing on the rights of others. For Kymlicka, the creation of "minority rights" is contingent upon liberalism, the basic principle of which is individual freedom. Liberals can endorse minority rights, he says, only "in so far as they are consistent with respect for the freedom or autonomy of individuals." ²

Cultural rights theory came to the fore in Britain with the so-called Rushdie Affair, the Muslim protests over the publication of Rushdie's Satanic Verses. ³ This event, perhaps more than any other single event, Will Kymlicka says, "has led people in the West to think carefully about the nature of ‘multiculturalism' and the extent to which the claims of minority cultures can or should be accommodated within a liberal democratic regime." ⁴ Liberal intellectuals, and the general citizenry alike, who would ordinarily have supported "multicultural rights," felt that in this...