Rethinking Equality: National Identity and Language Rights in the United States

Transcription

1 Rethinking Equality: National Identity and Language Rights in the United States Abstract In the early 1980 s, Senator Hayakawa s controversial proposal to amend the United States Constitution to declare English as the country s official language marked the opening of a popular and political debate on America s cultural and linguistic identity and on the language rights of linguistic minorities. This article challenges the conventional view that distinguishes immigrants and national minorities. According to this view, while immigrants may be granted instrumental language rights, they do not, as opposed to national minorities, have a right to preserve their cultural and linguistic identity and to seek expression of this identity in the state s institutions. The article discusses two possible justifications for why immigrants may, as a group, have a non-instrumental right to language. The first justification draws on communitarian theories of the self and of the state. The article argues that language is a constituting element of identity, and that the expectation that immigrants forgo this element of their identity is both unrealistic and unfair. It claims that public institutions create spaces in which culture and language are reproduced, and that these spaces are valuable resources, to which immigrants, as members of the state, may have valid claims. The second justification is based on the concept of a politics of recognition developed by Charles Taylor, who argues that our identity is partially formed by recognition of others. The article presents the claim that the importance of recognition to one s sense of equal worth imposes a duty of respect upon the state, which requires it to respect and acknowledge the distinct cultural identities of its members. The article then focuses on a particular case, 1

2 examining the legal and political obstacles the Spanish-speaking minority in the United States faces in its quest for recognition. 2

3 Table of Contents I. Introduction... 4 II. Why Language is Important... 9 III. The Case for a Group Right to Language (i) The Concept of a Right (ii) Individual Rights and Group Rights (iii) Groups and Group Rights in Liberal Political Theory IV. Language Rights: a Proposed Framework (i) Numbers (ii) Centrality of Language to Identity (iii) Collective Choice V. Language, State and Nation in the United States VI. Language Rights Under the Law (i) English Only Rules as a Violation of Freedom (ii) English Only Rules as a Violation of Equality (iii) The Anti-discrimination Principle and Accommodation-Type Rights VII. Group Language Rights and Equal Protection the Case of Bilingual Education

4 I. Introduction In July 2008, Democratic presidential nominee Barack Obama caused a stir when he told an audience at a town hall meeting in Georgia that Americans should encourage their children to learn Spanish. Mauro E. Mujica, Chairman of U.S. English, Inc. promptly protested: "Senator Obama's idea is characteristic of an elitist mindset declaring that it is not the job of immigrants to America to learn English, but that it the job of Americans to learn the language of the immigrants. This runs counter to our proud history as a melting pot and counter to the belief of most Americans. 1 While Mr. Mujica s response is not surprising given the goals promoted by the organization he heads, his feelings seem to be shared by others. Senator Obama s comments hit a nerve because they touched upon one of the most controversial issues debated in American politics in recent years: the nature of America s national identity, and in particular, the role the English language plays in this identity. In 2004, Harvard political scientist Samuel Huntington published a controversial essay entitled The Hispanic Challenge in which he warned against the influence that recent immigration, and in particular the spread of the Spanish language, may have on American culture. 2 In December 2007, Yale law professor Amy Chua followed Huntington s footsteps by publishing an Op-Ed in the Washington Post in which she called Americans to take 1 Obama Tells Audience "You Need to Make Sure that Your Child Can Speak Spanish", 2 Samuel P. Huntington, The Hispanic Challenge, FOREIGN POLICY, Mar. Apr., 2004, at

5 national identity seriously by, among other measures, making English the official national language and overhauling native language education. 3 Senator Hayakawa s controversial proposal in the early 1980 s to amend the United States Constitution to declare English as the official language of the United States marked the opening of a public debate on America s cultural and linguistic identity and on the language rights of linguistic minorities. 4 The status of the English language in the United States became the subject of a popular and political debate that has encompassed issues as diverse as bilingual education, the right to speak one s language in the workplace and the need for bilingual ballots. Although the proposed bill has yet to pass, legislation is currently pending in both the House and the Senate that would make English the official language of the United States. 5 The campaign of the English Only and Official English movements to make English the official language has been more successful in state legislatures, with twenty-eight states having granted English some form of official status. 6 It is worth noting that until the early 1980 s, language- related controversies received little public attention. While conflicts revolving around language are hardly a new phenomenon, in the United States they were considered, to a large extent, a foreign phenomenon. This approach was 3 Amy Chua, The Right Road to America? WASH. POST, Dec.16, 2007, at B01. 4 See James Crawford, Proposed Official English Amendments to the U.S. Constitution, in LANGUAGE LOYALTIES, A SOURCE BOOK ON THE OFFICIAL ENGLISH CONTROVERSY, 112 (James Crawford ed. 1992). 5 English Language Unity Act of 2007, H.R. 997, 110 th Cong. (2007), S.I. Hayakawa Official English Language Act of 2007, S. 1335, 110 th Cong. (2007). 6 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming have adopted measures granting English some form of official status. Hawaii is often listed by pro-official English organizations as the twenty-ninth state that has adopted official English, although it is in fact officially bilingual. A portion of Alaska s official English initiative was declared unconstitutional by the supreme court of Alaska, although it was determined that the unconstitutional portion could be severed from the rest of the initiative. See Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007). Arizona s constitutional amendment adopting English as the official language was declared unconstitutional by the District Court for the Ninth Circuit. See Yniguez v. Arizonans for Official English, 42 F.3d 1217 (9th Cir. 1994), vacated as moot, 520 U.S. 43 (1997). 5

6 not due to the non-existence of linguistic minorities, as such minorities have always been part of the cultural and linguistic landscape in the United States. The dominance of English, however, was taken for granted and perceived, for the most part, as an incontrovertible fact. The few situations in which certain minority language rights were recognized (for example, in the state of Hawaii, with respect to the members of Native Americans tribes, and in the commonwealth of Puerto Rico and the island of Guam) were considered to have been resolved. American society was analogized to a melting pot and immigrants were expected to assimilate into mainstream Anglo culture. The issue of language rights was viewed as part of the larger issue of cultural rights, which, other than in a few particular situations, was considered irrelevant in the United States. All of this has significantly changed in the past twenty years, with the influx of immigration from Latin America and the growing spread of the Spanish language. The demographic and political changes forced the American public to confront the issue of the country s cultural identity and engage in a discussion on the nature of American nationhood. At the same time, the political and legal systems have been encountering a growing number of instances where they are required to take a stance on the treatment of linguistic minorities. The goal of this article is twofold. First, it hopes to contribute to the scholarly discussion on the status of different languages in the United States by offering a framework for understanding the relationship between different linguistic groups and the state and the place of rights talk in this relationship. Second, it introduces the idea of a group right to language, and examines the possible justifications and the obstacles to recognizing such a right in the case of the Spanishspeaking minority in the United States. 6

7 Part II examines the different types of interests people have in language and the different types of rights such interests may give rise to. It discusses the different dimensions of language as a tool of communication and a component of culture, and the interests people have in each of these dimensions. It argues that in addition to being a means of communication, language is a constituting element of personal and collective identity, and as a result, of human dignity. Part III reviews the concept of a right and the idea of group rights. Its examines the challenges the idea of group rights present to liberal political theory and the reasons for which it is difficult for legal systems in liberal states to accommodate such rights. It presents two justifications for recognizing a group right to language. First, it argues that the political institutions of the state create spaces in which cultural and linguistic identities are maintained and reproduced. These spaces are valuable state resources which, in certain circumstances and subject to the fulfillment of certain criteria, linguistic minorities may have a right to. The second justification is based on the concept of a politics of recognition developed by Charles Taylor, who argues that our identity is in part formed by recognition of others. The article argues that the importance of recognition to one s sense of equal worth imposes a duty of respect upon the state. Part IV discusses the criteria for determining which groups should be granted a right to language. It challenges the conventional view that distinguished between immigrants and national minorities. According to this view, while immigrants may be granted instrumental language rights, they do not, as opposed to national minorities, have a right to preserve their cultural and linguistic identity and to seek expression of this identity in the state s institutions. It then offers alternative guidelines for determining which groups should be granted noninstrumental language rights. 7

8 Part V reviews the background against which the language rights debate in the United States takes place. It reviews the historical status of the English language in the United States and its role as a component of American national identity. It then discusses the relevance of the historical predominance of English to the current political and legal debate, and argues that although the moral relevance of the historical predominance of English to current debates is controvertible, preserving the dominance of English is considered by many to be a legitimate national goal, in spite of the fact that English has yet to be recognized as an official language in the United States. This, in turn, affects the way demands for language rights are treated. Part VI examines the ways and reasons for which the possibility of recognizing group language rights is excluded from the political and legal debate in the United States. It argues that the two main shortcomings of liberal political theory discussed in section II, the presumption of state neutrality and the lack of recognition of any intermediate groups between the individual and the state are embedded in the political and legal cultures of the United States. It examines the manifestation of these issues in the U.S. context and argues that a number of elements contribute to the exclusion of the concept of group language rights from the public and legal debates regarding language rights. The first element is the prominence of the ideal of freedom in American jurisprudence. The second element is the limited notions of dignity and equality in American jurisprudence, which are confined to individual equality as understood under the antidiscrimination principle. It then argues that while members of national minorities have been seeking redress in the legal system, under the current constitutional understanding of equality, the ability of courts to handle claims regarding the intrinsic interests people have in language is rather limited. As a result of these two elements, group language rights are disregarded and all 8

9 legal debates concentrate, at least on the explicit level, on individual, instrumental language rights. While demands for recognition of group language rights actually underlie many of the current controversies, the legal discourse has also shaped, to a large extent, the boundaries of the public debate on language rights. Part VII examines the current controversy on education of minority-language children in the United States. It discusses instrumental and non-instrumental justifications for native-language education and examines the law and practice of bilingual education in the United State. It then demonstrates the difficulty, in the area of education, with an ideal of equality that applies only between individuals, and discusses the meaning of a group right to language in this context. II. Why Language is Important Sociolinguists often distinguish between two dimensions of language, a communicative dimension and a cultural dimension. Language is valuable to people as a medium of communication: it allows people to communicate with each other and promotes interaction between human beings. Language is also, however, valuable to people as a component of cultural identity. 7 The communicative role of language may explain why people have an interest in having a language. There has been considerable theoretical debate, however, regarding the value people derive from particular languages. This debate has taken place within the larger debate regarding the value of particular cultures. Several liberal theorists have tried to offer explanations for why people value their particular culture. One of the most widely-accepted explanations was developed by Canadian political theorist Will Kymlicka. Kymlicka discusses the value of culture but his discussion can 7 See DAVID CRYSTAL, LANGUAGE DEATH 40 (Cambridge University Press 2000). 9

10 be equally applied to specific cultural components, such as language. I will review Kymlicka s theory briefly and will explain why this theory does not accurately comprehend the value people attach to their own culture. Kymlicka s theory is based on the premise that people should have freedom in choosing their way of life. 8 According to Kymlicka, people s freedom to make meaningful choices depends upon having options to choose from. These options, however, do not exist in a void. Societal cultures, argues Kymlicka, provide their members with meaningful ways of life across the full range of human activities, including social, educational, religious, recreational and economic life, encompassing both public and private spheres. They provide options for members and make these options meaningful. 9 Our culture is therefore the context in which our choices take place, and it defines both the realm and the value of possibilities. While the above point explains why people have an interest in a culture, it does not explain why people have an interest is their own culture. Kymlicka tries to address this point by pointing to the practical difficulties associated with adopting a new culture, a process that while not impossible, is often difficult and rarely entirely successful. 10 While the costs of transformation are certainly a significant issue, Kymlicka s description of culture as a context for choice captures only part of the value of culture. Kymlicka portrays culture as a backdrop against which people operate and a context in which they make their individual choices. Part of the significance people attach to culture, however, is rooted in the active role they play in its development and reproduction. One of the 8 WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 80 (Oxford University Press 1995). 9 Id., at Id., at

11 most significant characteristics of the process of cultural reproduction is that it enables people to actively participate in a process of creation that takes place over generations, and allows them to participate in a dialogue that transcends place and time. 11 It is the trans-generational nature of culture that makes cultural membership so important, and so distinctively human. It is the variety of roles that people play within their culture that renders culture a constitutive element of identity. To talk about a right to culture is, in many ways, to talk about a right to heritage. Denise Réaume argues that Kymlicka s theory is flawed since it accords culture, and language as a component of culture, instrumental value only. 12 The value of language, she argues, is not merely instrumental but intrinsic. Each particular language is a manifestation of human creativity. 13 Most people value their language not only instrumentally, as a tool, but also intrinsically, as a cultural inheritance and as a marker of identity. 14 Language is a repository of the traditional and cultural accomplishments of community, and it is also a cultural accomplishment in itself. Participation in these kinds of communal forms of human creativity, 11 CRYSTAL, supra note 7, at DENISE G. RÉAUME, Official-Language Rights: Intrinsic Value and the Protection of Difference, in CITIZENSHIP IN DIVERSE SOCIETIES 245, 247 (Will Kymlicka & Wayne Norman eds., 1999). For a critique of this view, see JEREMY WALDRON, Minority Cultures and the Cosmopolitan Alternative, in THE RIGHTS OF MINORITY CULTURES 93 (Will Kymlicka ed.1997). Jeremy Waldron rejects these claims and raises doubts about the importance of particular cultures as a source of meaning, integrity and culture. Instead, he offers what he refers to as the cosmopolitan alternative : a vision of the self that is not defined by one s citizenship and language. The cosmopolitan being, according to Waldron, does not take his identity to be compromised when he learns Spanish, eats Chinese, wears clothes made in Korea, listens to arias by Verdi sung by a Maori princess on Japanese equipment, follows Ukrainian politics, and practices Buddhist mediation techniques. Id., at 95. Waldron s description fails to comprehend, however, is the vast difference between the pleasure one derives from consuming the products of a culture and the value associated with cultural membership. It may also be worth noting that the lifestyle Waldron pictures is largely unavailable to anyone but those who speak English, and that the existence of the various cultural products he claims to enjoy depends on the existence of distinct cultures. 13 RÉAUME, supra note 12., at Id., at

12 argues Réaume, is an intrinsic part of the value of human life. The particular form the creation takes for a particular group of people has intrinsic value for them because it is their creation. 15 Réaume argues that culture is a participatory good, which she defines as a good that is both produced by a group and enjoyed by a group, and that cannot, by its nature, be produced by a lone individual nor enjoyed by a lone individual. 16 Réaume s definition of participatory goods acknowledges the unification of production and enjoyment by asserting that a culture is created, maintained and enjoyed by members of the group and that the group is thus defined by those participating in the process of creation, maintenance and enjoyment. Because the value of culture is rooted in our ability to have relationships with others, it cannot be broken-down and expressed in purely individualistic terms. Michael Sandel argues that members of a community conceive their identity the subject and not just the object of their feelings and aspirations as defined to some extent by the community of which they are a part. For them, community describes not just what they have as fellow citizens but also what they are, not a relationship they choose (as in a voluntary association) but an attachment they discover, not merely an attribute but a constituent of their identity. 17 Since cultural membership is constituent of identity, it should be respected and protected under a commitment to human dignity. The important role language often plays in cultural reproduction and the fact that language is often a central component of a culture renders the discussion above on the value of culture equally applicable to language. Sociolinguist David Crystal argues that Language is not 15 Id. 16 Denise Réaume, Individuals, Groups and Rights to Public Goods, 30 U. TORONTO L.J. 1, 8-10 (YEAR?)(distinguishing participatory goods from other forms of public goods, which also require more than one person to produce but are enjoyed individually). 17 MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 150 (Cambridge University Press 1998) (1982). 12

13 only an element of culture itself; it is the basis for all cultural activities 18 and that every language provides a unique insight into human condition and presents a view of the world that is shared by no other. 19 In the situations discussed in this work language is indeed a central component of culture and is a source of affinity and identity. When language is so closely tied to identity and self-definition, a commitment to human dignity requires us to take the question of language rights seriously. III. The Case for a Group Right to Language (i) The Concept of a Right In the previous section, I argued that language has two dimensions, a communicative dimension and a constitutive dimension, and suggested that since language is a constituting element of identity, we are required to respect it under a commitment to human dignity. In this section, I wish to discuss the types of rights the different dimensions of language may give rise to. The discussion in this section will primarily be based on the definition of rights suggested by Joseph Raz. Raz suggests that X has a right if an aspect of X s well-being (his interest), Z, is a sufficient ground for holding some other person(s) to be under a duty. 20 As Raz himself indicates, philosophical definitions of rights, including the definition above, usually attempt to capture the way the term is used in legal, political and moral writing and discourse. The definition therefore provides a way to talk about rights. More detailed theories of rights, 18 CRYSTAL, supra note7, at?. 19 This is the reason, he explains, that when the last speakers of a language die, their culture dies with them. See David Crystal, Vanishing Languages, CIVILIZATION, February/March 1997, at 40, JOSEPH RAZ, THE MORALITY OF FREEDOM 165 (Oxford University Press 1988). 13

14 however, depend on political, legal or moral arguments, which the proposed definition aims to be neutral toward. 21 Because talk about interests is common in the writings of utilitarian theorists, the use of the term interest may mislead some to think that under the definition proposed, rights are instruments used to advance the overall welfare of individuals. This observation, however, is not necessarily accurate. Rights, according to Raz s definition, are tied to individuals well-being. 22 This does not necessarily mean, however, that rights are aimed at maximizing the welfare of individuals. In fact, Raz himself acknowledges that an individual can have a right that is against his overall interest (or welfare). This can happen because rights are tied to only to specific types of interests, 23 and because rights are vested in right-holders because they posses certain general characteristics. 24 The nature of interests that may give rise to rights and the type of duties that rights entail depends are a separate question, the answer to which depends, among other things, on the moral position one holds. The definition proposed, however, is meant to be general enough to be able to accommodate different moral theories of rights and different types of rights. Raz makes a few additional points that will be important to the discussion below. The first is that under the proposed definition, rights are not conditional on the desire of the rightholder. 25 As we will see later on, while the non-waiveability of certain rights, such as the right to 21 Id. 22 Joseph Raz, Right-Based Moralities, in THEORIES OF RIGHTS 182, 188 (Jeremy Waldron ed., 1984). 23 For example, a person may have property which is more trouble than it is worth. See Joseph Raz, On the Nature of Rights, MIND, Apr. 1984, at Id. 25 This is in contrast to other definitions of rights, for example the definition suggested by H.L.A. Hart, according to which a person has a right if he can determine by his choice how another person should act. See H.L.A. Hart, Are There Any Natural Rights?, THE PHIL. REV., Apr., 1955, at 171. This definition, on it its different versions, was criticized for a variety of reasons. Most notably, it was criticized on the grounds that, according to this theory, those with limited or no capacity to exercise agency, such as the mentally retarded, very young children and the unborn cannot be right-bearers. 14

15 life and the right to be free from torture, has come to be widely accepted, the idea that rights cannot be waived is significantly more controversial in the context of cultural and linguistic rights. The second important point is that there is no closed list of duties which correspond to a particular right, and that the duties depend on certain facts peculiar to the parties or general to the society in which they live. 26 Most importantly, the list of duties is not fixed but dynamic, and as circumstances change, rights are able to give rise to new and different duties. This characteristic of rights is key to the discussion on cultural and language rights as it can explain why language rights take different forms in different settings, in spite of the fact that the ultimate value protected by these rights is the same. (ii) Individual Rights and Group Rights When discussing individual language rights, I refer to rights that are accorded to and enjoyed by individuals. Individuals may have certain rights because they fall under a certain classification, for example, because they belong to a class of people that speak a certain language, but the rights themselves belong to individuals. Group language rights, on the other hand, are rights that are accorded to a linguistic group and not to the individual members of the group. There is significant disagreement among moral and legal philosophers regarding the capacity of groups to hold rights, and the conditions and cases under which they may do so. 27 The distinction between moral and legal rights is of particular importance in this regard. I wish to 26 RAZ, supra note 20, at See generally Rainer Baubok, Liberal Justifications for Ethnic Group Rights, in MULTILINGUAL QUESTIONS (Christian Joppke & Steven Lukas eds.,1999); James W. Nickel, Group Agency and Group Rights, in ETHNICITY AND GROUP RIGHTS (Will Kymlicka & Ian Shapiro eds., 1997);Jeremy Waldron, Can Communal Goods be Human Rights?, in LIBERAL RIGHTS: COLLECTED PAPERS (1991).. 15

16 begin with the examination of whether, from a moral standpoint, groups can have rights and then look into the more complicated matter of according groups rights under the law. As Raz himself indicates, nothing in the interest theory of rights precludes, at least from an analytic perspective, the possibility of groups holding rights. 28 Even Jeremy Waldron agrees that in theory, a human community can be treated as an individual for certain purposes, and a community might have interests of its own, which may rise to a level of moral importance that confers duties on others. 29 The objection to the idea that groups can have rights is therefore not analytical, but moral. The most serious objections, I believe, are those that rest on the claim that only those who are of ultimate value, that is to say, individuals, are capable of holding rights. A commitment to humanism, however, does not necessarily entail a commitment to individualism. The argument presented above about the intrinsic value of community demonstrates, I believe, this point. Group rights need to be consistent with humanism in the sense that they are ultimately based in the interests that individuals have in being members of a community. It should not be inferred from this, however, that group rights can be reduced to individual rights. Whatever the ultimate justification of group rights is, such rights belong to groups and not to individuals. 30 Because participatory goods can only be enjoyed and produced by a group, if there are any rights to participatory goods, such rights would be group rights and not individual rights. 31 The claims presented above regarding the importance of language and the capacity of groups to 28 RAZ, supra note 20, at WALDRON, supra note 27, at RAZ, supra note 20, at NICKEL, supra note 27, at

17 hold rights lay, I believe, the grounds for the moral case for a group right to language that is based on the intrinsic value members of the group ascribe to their language. The case for a group right to language under the law is more complicated, for two reasons. The first is the lack of a basis for according rights to groups under liberal political theory, which is the basis for most, if not all, Western legal systems. The second difficulty stems from the opportunities provided by the instrumental, communicative dimension of language and the interconnection between the two dimensions of language. As I will demonstrate below, this interconnection makes it harder to carve out and define non-instrumental language rights and to ensure that members of linguistic minorities are not adversely affected in other areas of life when granted such rights. (iii) Groups and Group Rights in Liberal Political Theory The preliminary condition for any entity to have legal rights is that a legal system exists under which such an entity is capable of holding rights. One of the main shortfalls of political liberal theory, and as a result, of the legal systems formed under it, is the lack of recognition of non-individual entities as right-bearing entities. Liberal political theory is primarily concerned with the relationship between individuals and the state. 32 In addition, it offers no real theory of political boundaries. As a result, liberals tend to accept borders between states as a given. 33 The focus on the rights of individuals and the lack of a theory explaining the existence of separate states are conceptually related. In order to justify or understand the existence of separate 32 Vernon Van Dyke, The Individual, the State, and Ethnic Communities in Political Theory, in THE RIGHTS OF MINORITY CULTURES 31 (Will Kymlicka ed., 1997). 33 As Van Dyke demonstrates, the idea of the social contract as discussed by Hobbes, Locke and Rousseau assumes the existence of individuals only. While the theory tries to explain the idea of a state, it does not offer an explanation for the existence of distinct states. See id. at

18 states, one would need to acknowledge or at least discuss the existence of distinct groups. Some liberal theorists address this problem by assuming that the boundaries of each state coincide, in practice, with the boundaries of nations. 34 Others ignore the problem altogether. 35 Since individualism inherently favors the majority, the practical results of either approach gives advantage to the dominant group while denying altogether the existence of other groups, and the possibility for such groups to have rights. The practical implication of this approach is that the interests of the majority, including the group interest in culture and language, find expression through the state, while those of minorities are institutionally ignored. If there is indeed a moral right to language, this would mean that the majority s right to language is encompassed in the apparatus of the state, while there is no space to accommodate or even discuss the right to language of minorities. This result is especially troubling in light of the fact that most liberal theorists are opposed to nationalism as an ideology, because it can be based only on a concept of group rights and not on individual rights. The idea that groups may be right-bearing entities finds expression (although rather limited) in one legal system, that of international law. As might be expected, this idea is presented in connection with the establishment of the state itself, and is expressed in the right to self-determination. Article I (1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights states that: 34 Id. Van Dyke brings as examples Mill s statement that, Free institutions are next to impossible in a country made up of different nationalities, and Ernest Barker s claim that Most States are what we call national States. 35 Id. at

19 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 36 The interpretation of this Article is a matter of much controversy and the conditions under which self-determination would be justified, as well as the criteria identifying those who have a right to it, are a matter of much debate. It is generally agreed, however, that whatever the scope of the right to self-determination may be, it is accorded to groups, and not to individuals. Article 1(1) therefore sets forwards the idea that at least one type of group, that of peoples, is capable of holding rights. The principle of self-determination, however, is more than an example of groups holding rights. It is also indicative of the type of rights groups may have. It suggests that the rights of groups are tied to political status and to the economic, social and cultural development of the group. This suggests that the exercise of group rights takes a political form. In the international legal system, the right of a group to economic, social and cultural development finds expression through the institution of the state. The idea that group rights are manifested through political institutions was examined by Avishai Margalit and Joseph Raz, who discuss the reasons for which self-government 37 may be of value to groups that they define as encompassing groups : groups that have pervasive 36 International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171, International Covenant for Economic, Social and Cultural Rights, December 16, 1966, 993 U.N.T.S Raz and Margalit distinguish between self-government and self-determination, defining the former as self-rule and the latter as the process by which a group determines its political status. Most other writers refer to selfdetermination as self-rule. See Avishai Margalit and Joseph Raz, National Self-Determination, J. PHIL., Sept. 1990, at

20 cultures and that in which membership is important to one s self-identity. 38 Full expression of membership in encompassing groups, they explain, includes manifestation of membership in the open, public life of the community, which requires expressing one s membership in political activities within the community. The political is an essential arena of community life, and consequently of individual well-being. 39 While many identify self-determination with statehood, I bring the analysis of the principle of self-determination not to advocate a right of every cultural minority to statehood, but rather to illuminate the importance of the state as an institution for the fulfillment of a group s right to culture. The state s various institutions and systems, including the legislative system, the public services system and the public education system, create spaces and spheres in which the process of cultural and linguistic reproduction takes place. They are spaces in which members of a community interact, deliberate and debate and in which the culture is shaped and changed. Since these spaces comprise the state apparatus, the activity that takes place within these spaces creates, defines and shapes the cultural and linguistic character of the state itself. 38 Margalit and Raz name six features, some or all of which are common in such groups. These features, in brief, are (1) The group has a common character and a common culture that encompass many, varied and important aspects of life (2) People growing up among members of the group will acquire the group culture and will be marked by its character (3) Membership in the group is, in part, a matter of mutual recognition (4) The group is important to one s self-identification (5) Membership is a matter of belonging not of achievement (6) The groups concerned are not small face-to-face groups. Id. at Id. at 451. Margalit and Raz emphasize that political expression does not necessarily require a political organization whose boundaries coincide with those of the group, and that therefore that the need for a public or even a political expression of one s membership in an encompassing group does not always justify self-government. Even Allan Buchanan, however, who advocates the view that a right to self-determination will only arise when a minority suffers gross human rights violations, admits that when a permanent minority exists within a state, a government may have the duty to enter into negotiations with such minority regarding a certain degree of autonomy or self-rule. Buchanan defines a permanent minority as a group that finds itself on the minority on a consistent basis with regard to fundamental questions. He does not specify what amounts to such fundamental questions, but provides the example of Quebec, thus suggesting that difference in culture and language may characterize a permanent minority. ALLEN BUCHANAN, JUSTICE, LEGITIMACY AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW ## (Oxford University Press 2004). 20

21 The existence of these spaces is not incidental to the operation of the state, but is an essential feature of it. In a state with more than one cultural group, the spaces for cultural reproduction offered through the state s apparatus become valuable resources over which the different groups compete. Since, as argued above, individualism inherently favors the majority, a rejection of the concept of group rights is synonymous with recognition of the rights of one group only. 40 In the area of language in particular, a group whose language is adopted by the state enjoys a secure environment in which its language can flourish. The argument that a commitment to human dignity should give rise to group rights rather than only to individual rights may initially seem counterintuitive. A second look into the nature of cultural membership explains how the two are interrelated. In one of the most important inquiries of the ability of liberal democracies to recognize the worth of distinctive cultures, Charles Taylor distinguishes between what he refers to as the politics of universal dignity and the politics of difference. Traditional politics of universal dignity, explains Taylor, fought for forms of non-discrimination that were quite blind to the way citizens differ. 41 The universal politics of equal dignity, explains Taylor, is based on the Kantian notion that all human are equally worthy of respect. For Kant, however, what was picked as worth was the universal human potential, a capacity that all humans share. While a universal potential is also at the basis of the politics of difference, the politics of difference also demands respect for the value of what humans have made of this potential: for actually evolved cultures See also BAUBOCK, supra note 27, at CHARLES TAYLOR, MULTICULTURALISM: EXPLORING THE POLITICS OF RECOGNITION 39 (Amy Gutman ed., Princeton University Press 1994). 42 Id. at

22 The liberal tradition of rights, explains Taylor, is inhospitable to difference because it insists because it insists on uniform application of the rules defining these rights, without exception, and is suspicious of collective goals. This form of politics cannot appreciate the value of difference and therefore cannot accommodate what members of distinct societies really aspire to, which is survival. 43 Taylor s most important point, however, goes beyond arguing for the legitimacy of collective ends as considerations in political review and other forms of social policy. Taylor s most important contribution lies in his argument concerning the importance of recognition of equal worth, which is rooted in the idea that we are, at least in part, formed by recognition. 44 Taylor argues, rightly, I believe, that it does not make sense to demand, as a matter of right, that we come up with a judgment that the value of other cultures is equal to the value of our own culture. Instead, he offers the weaker demand, that we approach the study of other cultures with a presumption of equal value. 45 Taylor leaves it to be debated whether the demand that we approach other cultures with a presumption of equality can be argues as a matter of right. I tend to argue that in the area of language, in which the state cannot be neutral, and when the resources necessary for cultural reproduction and therefore, to a large extent, the fate of the group, are in the hands of the state, the answer should be positive. The implications of applying Taylor s version of equal respect are two-fold. On the one hand, Taylor shares with others the view that cultures have an intrinsic value to their 43 Id. at 61. Taylor argues that there are other models of liberal societies, albeit not what he refers to as procedural models of liberalism, that do call for the invariant defense of certain rights, for example, habeas corpus, but distinguishes these fundamental rights from a broad range of immunities and presumptions of uniform treatment that have sprung up in modern cultures. 44 Id. at Id. at

23 members, which was the basis for the case for a group right to language presented above. Taylor also expresses, however, the importance of recognition not just by members of their own culture, but, for minorities living within a state, by members of society at large. While it cannot be argued that members of society have a duty to value minority cultures, Taylor makes the case, based on an evolved concept of equal dignity, for a duty of a presumption of value. Such duty can be translated to a duty of respect imposed upon the state. 46 This duty should not be misconstrued as subject or correlative to the group right to language. The two are separate, although in practice they may operate in a supplementary manner. One of the main difficulties in discussing the rights of cultural and linguistic minorities is the lack of a legal context in which such rights can be discussed. Those who call for the recognition of the rights of cultural groups often try to equate cultural groups with corporations, and argue that cultural groups can have rights in the same sense that corporations have rights. 47 Their opponents respond that the fact that we recognize the rights of corporations is no indication of the existence of other group rights, since talk of the rights of corporations makes sense only within a certain context, which is the theory of corporate personality. 48 This is true, however, with respect to talk of the rights of any right-bearing entity. Talk of the rights of states makes sense only under international law and within the theory of international relations. Talk of the rights of nations, however elusive, also takes place within this context. 49 The lack of a legal context and a political theory which can accommodate a discussion on group rights should be viewed as part of the problem, not as indication or proof that such rights do not exist. 46 Rainer Baubock, Cultural Minority Rights for Immigrants, INT L MIGRATION REV., Spring 1996, at See Van Dyke, supra note 32, at WALDRON, supra note 29, at The difference between corporations and nations is that corporations are created by the law, while nations are not. In order to be able to talk about legal rights of nations, however, nations still need to be recognized as legal entities. 23

24 While there have been several attempts in international law to address the rights of cultural and linguistic minorities, these attempts are in very preliminary stages, and are far from offering or even signaling the evolvement of a comprehensive doctrine of group right under international law. 50 Notwithstanding the positive impacts such attempts have on making cultural minorities visible in the international arena, the more pressing issues for most minorities is defining their rights within intrastate systems. As I have argued earlier, the form such possible rights can take changes from place to place, and will depend on the nature of the particular state as well as on the characteristics of particular groups. IV. Language Rights: a Proposed Framework Ruth Rubio-Marin proposes a classification of language rights that is based on the justification for particular rights. Rights that aim at ensuring the language is not an obstacle to the enjoyment of other rights, that happen to have a linguistic dimension, can be classified as instrumental language rights. 51 The right to have a translator in criminal proceedings, for example, is an instrumental right necessary to ensure that language barriers are not an obstacle to the enjoyment of the right of due process. Instrumental language rights are usually tied to the communicative aspect of language. Because language is seen as a means to achieving the realization of another right, the justification for instrumental language rights depends on whether they are effective at achieving this goal, as well as on the availability of alternative measures. 50 See, e.g., The European Charter for Regional or Minority Languages, May 11, 1992, Europ. T.S. No and The Framework Convention for the Protection of National Minorities, Nov. 11, 1995, Europ. T.S. No Patten and Kymlicka note that these declarations of standards were intended to guide eastern European countries in their efforts to rejoin Europe, since many countries emerging out of communist regimes shifted away from multilingualism and toward a policy of monolingualism. This raised an obvious question regarding the standards and practices of western democracies as well. Alan Patten & Will Kymlicka, Introduction, Language Rights and Political Theory: Context, Issues and Approaches, in LANGUAGE RIGHTS AND POLITICAL THEORY1, 3-4 (Will Kymlicka & Alan Patten eds., 2003). 51 Ruth Rubio-Marin, Language Rights: Exploring the Competing Rationales, in LANGUAGE RIGHTS AND POLITICAL THEORY, 52 (Will Kymlicka & Alan Patten eds., 2003). 24

25 Non-instrumental language rights, on the other hand, are justified by the intrinsic value of language. They are concerned not with the opportunities provided by a language, but with the importance of language in itself. Because the value of language derives from its nature as a collective enterprise, protection of this value can often be achieved only through group, rather than individual rights. 52 Indeed, Rubio-Marin describes non-instrumental language rights as rights that are concerned with a group s right to enjoy, maintain and reproduce its language. 53 The distinction between instrumental and non-instrumental language rights coincides, to a large extent, with the distinction between individual and group language rights, although, as we will see further on, this is not always the case. The distinction between the two types of rights is important because they are based on very different justifications. In practice, however, is it often difficult, if not impossible, to shape a right in a manner that will only respond to one of the two. I will demonstrate below how this has affected both the legal and political discourses of language rights. The scope and content of instrumental language rights depends on the goal these rights aim to achieve, and on the degree to which the state is required to provide linguistic assistance in achieving this goal. The definition and scope of non-instrumental language rights present a more complicated issue. Much of the scholarly writing on non-instrumental language rights was written in the context of the rights of national minorities, as it is often argued that while immigrants may have valid claims to instrumental language rights, they do not have valid claims to non-instrumental language rights. I would like to present the claim that immigrants do not 52 This is true for most non-instrumental language rights. The state s duty to respect one s language, however, may also give rise to individual rights. The freedom to speak one s language, for example, is an individual right that is based on the intrinsic value of language and the state s duty of respect. 53 Rubio-Marin, supra note 51, at