Multiculturalism and Law: A Critical Debate (review)

The title of this rich collection is somewhat misleading, in that fewer than half the contributions explicitly address multiculturalism as it is usually understood. Indeed, even the title of the 2004 Guelph conference from which most of the contributions were taken, "The Practice of Law-Making and the Problem of Difference," is not broad enough to encompass the range of topics covered here; notably, it leaves out Jürgen Habermas's reflections on the future of international law and Neil Walker's response. I would suggest instead approaching this volume as an overview of debates at the intersection of legal and political theory, focusing on questions of diversity, constitutionalism, and jurisprudence, by six leading scholars in the area, along with critical replies from a scarcely less distinguished cast of respondents.

While many of these essays are available in slightly different versions elsewhere, here they are enlivened not only by the responses but also by one another. The editor's introduction is invaluable in knitting the diverse contents together. Payrow Shabani adroitly brings the volume's complex dialogue to a point by dividing the contributions into four categories: "liberalism1" pursues equality through equal individual rights and a neutral state; "critical theory1" emphasizes universalizing procedures rather than substantive commitments; "liberalism2" and "critical theory2" open these approaches to historical and cultural particularity in an effort to make them more sensitive to difference. This framework allows Shabani to organize the contributions as iterations of long-running debates in legal and political theory between liberalism and communitarianism or pluralism, critical theory and post-structuralism, Kant and Hegel, and so on, without sacrificing the depth of the individual contributions.

A necessarily cursory overview of the volume's contents will suggest something of its diversity as well as the payoff of the editor's overarching structure. In response to James Tully's proposal that we consider debates about diverse citizenship in terms of the freedom of citizens to deliberate over the terms of political association (critical theory2), Thomas McCarthy asserts the need for some overarching norm of reasonableness and consensus, while Jocelyn Maclure defends a role for normative theory (both critical theory1). Turning to the field of jurisprudence, Jeremy Webber articulates a judicial ethic that aims at integrating the best substantive insights from a diversity of substantive perspectives (liberalism2), while Kenneth Baynes and Simone Chambers argue for more procedural and deliberative accounts of judicial decision making (critical theory1). Addressing similar questions from the perspective of liberalism1, Jeremy Waldron considers a variety of ways in which an essentially unified legal system can accommodate difference, while Michel Rosenfeld and Douglas Moggach defend further-reaching conceptions of diversity, Rosenfeld in terms of pluralism, Moggach in terms of republicanism (critical theory2).

The collection is then rounded out by Jürgen Habermas, reprising his argument for neo-Kantian global constitutionalism (critical theory1), and Will Kymlicka, developing his model for minority and sub-national rights in view of recent European developments (liberalism2). Neil Walker and Courtney Jung contest these positions on political and empirical grounds, Walker by challenging Habermas on the basis that any emerging cosmopolitan order cannot be disentangled from its imperial legacies and tendencies (critical theory2) while Jung argues against Kymlicka that cultural identities are always political and therefore better suited to democratic engagement than to entrenchment (liberalism1).

What this highly schematic overview of course fails to convey is the depth and sophistication of the individual contributions, which are, as one would expect from this distinguished roster, considerable. The principal authors have been allowed sufficient space to develop complex arguments; far from offering capsule restatements of familiar positions, these are for the most part demanding extended essays, which the respondents then engage with in detail while developing their own stances. That the authors tend to be very close in their political commitments and theoretical references allows the philosophical differences highlighted by the editor to stand out all the more clearly. The result is a complex multilogue very much like that called for by many of the contributors...