DEMOCRATIC CITIZENSHIP AND MULTICULTURALISM: BETWEEN MONOCULTURAL ASSIMILATION AND MULTICULTURAL ACCOMMODATION

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1 DEMOCRATIC CITIZENSHIP AND MULTICULTURALISM: BETWEEN MONOCULTURAL ASSIMILATION AND MULTICULTURAL ACCOMMODATION Prof. Dr. Benito Alaez Corral (University of Oviedo) 2009

2 INDEX I. Introduction: Multicultural challenges to democratic citizenship II. Nationality, citizenship and democracy as defining elements of the constitutional status of multiculturalism III. Democratic citizenship as an enhancer of multiculturalism IV. Accommodation to the democratic culture as a necessary legal limitation upon multicultural exercise of rights V. Equality and difference: democratic policies of multiculturalism

3 I.- INTRODUCTION: MULTICULTURAL CHALLENGES TO DEMOCRATIC CITIZENSHIP (I) Multiculturalism and Law Growing cultural diversity in modern democratic societies a new European Melting pot? Monocultural or multicultural democratic societies? In almost all democratic societies there is a certain level of multiculturalism: internal (national minorities), or external (immigration minorities) This limited multiculturalism leads in democratic states to an unavoidable level of legal compromise between cultural assimilation and multicultural accommodation

4 I.- INTRODUCTION: MULTICULTURAL CHALLENGES TO DEMOCRATIC CITIZENSHIP (II) Law as culture itself: Does it limit or enhance multicultural development? Democratic state law as a culture that enhances a limited multiculturalism through democratic citizenship depending on two factors» The acknowledgement of national/ethnocultural minorities within the State's people Territorial decentralized States» The linkage between citizenship in a formal (nationality) and in a substantive (citizenship) sense how ethno-cultural and how democratic are nationality and citizenship International human rights law also recognises a limited multiculturalism but within a broad scope and a high respect for internal state organisation simply enables much more than promotes multiculturalism

5 I.- INTRODUCTION: MULTICULTURAL CHALLENGES TO DEMOCRATIC CITIZENSHIP (III) Some conflicting examples of the difficult coexistence between a multicultural citizenship and a majoritarian culture in democratic systems: Religious symbols in public spaces (like schools) issue usually linked to external multiculturalism Wearing of headscarf by pupils or teachers at public schools Presence of crucifixes in public schools State role in the definition of the scholar system and alternative teaching issue usually linked to internal multiculturalism Compulsory civic education and parent's rights Homeschooling Single-sex schooling

6 II.- NATIONALITY, CITIZENSHIP AND DEMOCRACY (I) The constitutional constrains of multiculturalism: nationality and citizenship from one to twin concepts Nationalization of citizenship: : ethno-cultural content of citizenship since the building of the modern state Process of cultural assimilation around a common faith and/or a dominant language, and the principles of liberalism through: After settlement of the territorial boundaries of Nation- State (Westphalia Peace) allocation of citizenship by birth to define the subjects of the Realm (1608 Calvin s Case in England) Building of an homogeneous nation Consequently by the XIX cultural or political assimilation (linguistic and cultural knowledge, as well as political loyalty) is required for naturalisation in its different forms Historical link between citizenship and rights political rights, most social rights and some civil rights (right to entry and to move freely within the state, freedom of speech, association assembly and demonstration, etc...) remain in the hands of nationals in many countries

7 II.- NATIONALITY, CITIZENSHIP AND DEMOCRACY (II) Civilization of nationality and citizenship via modern democracy: modern constitutional understanding of democracy is linked to the protection of individuals and minorities Decoupling nationality and citizenship: functional differentiation Nationality as the legal link to the state Citizenship in a formal sense (legal tie of membership to a legal order) Citizenship as a process of full membership in a polity Citizenship in a substantive sense (freedom, political and social rights and duties, that could be acquired in different stages and up to different degrees without cultural assimilation) A more culturally-open building of nationality and citizenship through democratic constitutionalism Some changes in the allocation of nationality by birth adding ius domicilii (e.g. requiring parental residence in the country to certain allocations of nationality according to the blood criteria) Progressive elimination of some cultural/political assimilation requirements for naturalization (e.g. loyalty oath can be understood in a mere symbolic sense) Democratic citizenship: from fundamental national rights to fundamental human rights

8 III.- DEMOCRATIC CITIZENSHIP AND MULTICULTURAL EXERCISE OF FUNDAMENTAL RIGHTS (I) Democratic citizenship enhances multiculturalism extending many fundamental rights to everyone regardless of nationality by different means (constituent power, constitutional review, human rights conventions...) One example of grouping rights on behalf of the constitutional relevance of possessing nationality (e.g. Sp. Const. Court. Decision 236/2007) Rights of everyone (life, liberty, freedom of conscience, free speech, privacy, education, fair trial, association, assembly...) Rights of nationals that could be extended by the law to foreigners (leave and return to the country, liberty of residence, franchise in local elections, access to some public offices, right to work) Rights of nationals that are not transferable to foreigners (franchise in national elections, access to offices that imply exercise of public powers) Should people's sovereignty remain national? Rights of sole foreigners (asylum and refuge)

9 III.- DEMOCRATIC CITIZENSHIP AND MULTICULTURAL EXERCISE OF FUNDAMENTAL RIGHTS (II) Democratic citizenship enables the development of multiculturalism allowing a multicultural exercise of fundamental rights CITIZENS OF DIFFERENT CULTURES Liberty,, equality and pluralism are recognised not only to individuals but also to the groups thereof cultural minorities find ways of expression Most of the rights could be exercised by individuals regardless of their nationality and cultural belonging foreigner/national, minority/majority as citizens Cultural heritage of the democratic Nation State must comply more and more with internal (and external) pluralism constitutional requirements Progressive symbolization of democratic loyalty requirements for naturalization as well as for the exercise of fundamental rights, even in militant democracies

10 IV.- MULTICULTURAL EXERCISE OF FUNDAMENTAL RIGHTS AND ASSIMILATION OF THE DEMOCRATIC CULTURE (I) Does it mean that the majoritarian culture and the new minoritarian cultures must multiculturally accommodate to each other or are there any cultural assimilation requirements? Limitations upon the multicultural exercise of fundamental rights when conflicts arise Assimilation of the democratic culture (Lovelace v. Canada, UNHRC 1981) may apply Within the group towards its individual members and Outside the group towards other groups and individual Provided that this democratic culture comes from the POSITIVE LAW multilevel protection of fundamental rights that keeps the system culturally open, but NOT from THE MORAL OR THE RELIGION no assimilation of any majoritarian culture

11 IV.- MULTICULTURAL EXERCISE OF FUNDAMENTAL RIGHTS AND ACCOMMODATION TO A DEMOCRATIC CULTURE (II) ACCOMMODATION TO THE DEMOCRATIC CULTURE different types of democratic culture depending on the CONSTITUTIONAL FRAMEWORK Territorial organization Federalised States: internal multiculturalism friendly States like Spain (Arts. 1.1, 2, 3, 9.2 or 46 Sp. Const.) Centralised States: internal multiculturalism avoiding States like France Democracy protection Militant democracies: Germany (Arts. 79.3, 9.2, 18 and 21.2 GG) protects democracy in the output and therefore in the input of the democratic process Procedural/deliberative democracies: Spain (Arts. 6, 55 and 168 Sp. Const.) protects democracy only in the educative sphere before the input of the democratic process Right to education as the central core of democratic citizenship It is necessary to keep democratic culture without coercion (e.g. Art Sp. Const) Cultural understanding of some fundamental rights Language Marriage, family and children State-Church Relationship Gender LIMITED INFLUENCE OF HUMAN RIGHTS LAW in any interpretation according to the national constitutional theory (e.g. Art Sp. Const.) because of Broad meaning of UN Conventions: Declaration on the rights of persons belonging to national or ethnic, religious or linguistic minorities (1992) and of UNESCO Convention on the protection and promotion of the diversity of cultural expressions (2005) as well as of UNESCO Universal Declaration on cultural diversity (2001) UN CCPR and UN CSECR as well as ECHR adapt to different democratic conceptions

12 V.- EQUALITY AND DIFFERENCE: DEMOCRATIC POLICIES OF MULTICULTURALISM The false understanding of the equality rule Equality#identity equality=prohibition of unreasonable differentiation Liberal equality vs. democratic equality: homogeneous society vs. multicultural society Culture as a constitutional reason for legal differentiation? Not any more for the exercise of most civil and political rights Yes for managing with internal multiculturalism through self-government group rights Yes for the access to the highest degree of citizenship via naturalization Yes for different fundamental rights promotion policies Fundamental rights policies based on cultural discrimination established or allowed by the Constitution (e.g. family and marriage policies, media law policies, public aid policies, etc...) Fundamental rights policies based on cultural reverse discrimination (cultural defense, cultural legal exceptions..)