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Recognition and Cultural Membership*

Published online by Cambridge University Press:  13 April 2010

Arthur Ripstein
Affiliation:
University of Toronto

Extract

Group rights have long been of special concern to Canadians. Quebec has maintained a distinct language and civil law system, and Canada's Aboriginal Peoples have always had (“enjoyed” is perhaps the wrong word here) different legal rights from those of other Canadians. Former Prime Minister Pierre Trudeau sought to reduce the significance of these special protections. He argued that they were the product of historical compromise and political wrangling rather than of any principled vision ofjustice. As a result, he opposed any special status for Quebec in favour of nationwide bilingualism, and sought to dismantle the reserve system for the First Nations. He sought to replace both with the idea of universal citizenship.

Type
Critical Notices/Études critiques
Copyright
Copyright © Canadian Philosophical Association 1995

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References

Notes

1 Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Oxford University Press, 1990).Google Scholar

2 See, for example, the essay “Atomism” in Taylor, Charles, Philosophy and the Human Sciences: Philosophical Papers, Vol. II (Cambridge: Cambridge University Press, 1985)CrossRefGoogle Scholar.

3 What a strange position to be in—writing a critical notice of a book that already contains three critical notices of itself!

4 Taylor, cites Hans-Georg Gadamers Warheit und Methode (Tübingen: Mohr, 1975), pp. 289–90.Google Scholar

5 In his writings on the human sciences, such as “Interpretation and the Sciences of Man” and the other essays collected in his Philosophy and the Human Sciences, Taylor argues that in order to understand members of another culture, we must learn to describe them as they describe themselves. Though examining those arguments would take me too far afield, it is worth noting the connection. Does Taylor suppose that to refuse to accept someone on their own terms is automatically to fail to treat them as fully human?

6 Part of the reason is that special rights can protect the land needed for traditional aboriginal ways of life. Special rights ensure that aboriginal communities are not outbid or outvoted by others in determining the use of that land, thus enabling them to maintain their culture. Taylor discusses the defeat of the Meech Lake Accord, mentioning opposition to the fact that it did not entrench aboriginal rights.

7 The phrase comes from the U.S. Constitution, Article 4, Section 2.1.

8 The classic liberal restrictions on free speech, such as slander and libel laws, can only be invoked after a demonstrable harm has been done.

9 For that matter, why are language rights not included under freedom of expression? After all, as Taylor, himself has forcefully argued elsewhere (see the essays collected in Human Agency and Language [Cambridge: Cambridge University Press, 1985]), different languages allow different things to be expressed; the network of meanings implicated in a sign saying “Weinrib's Cream Cheese” is not fully conveyed by “Weinrib's Fromage de Créme.”CrossRefGoogle Scholar

10 See Jones, BobUniversity v. United States, 103 S. Ct. 2017 (1983); for discussion, Robert Cover, “Foreword: Nomos and Narrative” Harvard Law Review 97 (1983): 6–68.Google Scholar

11 Hofer v. Hofer (1970), 13 D.L.R. (3d) 001. Hofer was expelled from a Hutterite colony without compensation when he lost his faith.

12 R. v. Ly (1987), 33 C.C.C. (3d) 31. Ly, a Vietnamese immigrant, killed his girlfriend when she came home late. He argued that in his culture, coming home late amounted to evidence of adultery and so counts as provocation. The Supreme Court rejected his argument; the rejection is made more interesting because the court acknowledged in another case that age may make a difference to what counts as provocation.

13 For a detailed exploration of this theme, see Minow, Martha, Making All the Difference: Inclusion and Exclusion in American Law (Ithaca, NY: Cornell University Press, 1991)Google Scholar.

14 See, for example, R, v. Keegstra (1990), 61 C.C.C. (3d) 1[1991]2 W.W.R. 1, Alta. L.R. (2d) 193(S.C.C). Keegstra was convicted of inciting hatred against an identifiable group by teaching his high-school students that the Holocaust was a hoax. In his appeal, he argued that the law against inciting hatred violated his right to freedom of expression. The Supreme Court upheld the law, arguing that the very grounds that underwrite free expression call for reasonable limits in a free and democratic society.

15 This is particularly disappointing in light of Taylor's discussion of Rousseau and Hegel as early theorists of recognition. Hegel explicitly criticizes Rousseau on exactly those grounds. See Georg W. F. Hegel, Philosophy of Right, Paragraph 157, and Ripstein, Arthur, “Universal and General Wills: Hegel and Rousseau,” Political Theory, 22, 3: 444–67.CrossRefGoogle Scholar

16 Rawls introduces the notion of primary goods in A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).

17 Taylor explores this line of thought in “Social Theory as Practice,” Philosophy and the Human Sciences. Other exponents of this view include Arendt, Hannah, The Human Condition (Chicago, IL: University of Chicago Press, 1958) and, perhaps more troubling because fully consistent,Google ScholarSchmitt, Carl, The Concept of the Political, translated by Schwab, George (New Brunswick, NJ: Rutgers University Press, 1976)Google Scholar.

18 Ronald Dworkin, whose essay, “Liberalism,” is quoted by Taylor as defending liberal neutrality, has abandoned those views in favour of a defence of liberalism n i terms of equality. See Dworkin, Ronald, “Liberalism” in Public and Private Morality, edited by Hampshire, Stuart (Cambridge: Cambridge University Press, 1978), and “What is Equality: Part III: The Place of Liberty,” Iowa Law Review, 73 (1988): 1-54. Taylor's characterization of neutrality brings to mind the old joke that (the former) Czechoslovakia was the most neutral country in the world—so neutral that it did not even intervene in its own internal affairsGoogle Scholar.

19 For a developed argument focussing on language rights (and a sustained critique of survivalist arguments), see Rèaume, Denise, “The Constitutional Protection of Language: Survival or Security?,” in Language and the State: The Law and Politics of Identity, edited by Schneiderman, David (Cowansville, QC: Les Editions Yvon Blais, 1991)Google Scholar.

20 Dated June 1993, when this paper was submitted for publication.