Published online by Cambridge University Press: 04 July 2014
This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20th century. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.
The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.
The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.
The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.
Professor of Law, Interdisciplinary Center (IDC) Herzliya, an Israeli Prize Laureate in legal research, and currently a visiting Professor at Columbia University School of Law.
1 Rousseau, Jean-Jacques, The Social Contract, Book IV (1762), at para. 8Google Scholar. I am indebted to Professor Michael Dorf of Columbia Law School for this quote and reference.
2 Glazer, Nathan, We are all Multiculturalists Now (1998)Google Scholar. The book mainly discusses the implications of multiculturalism on the curricula of American schools.
3 Fukuyama, Francis, Identity, Immigration and Liberal Democracy, 17 J. Dem. 5, 15 (April 2006)Google Scholar.
4 How Multicultural is Britain? BBC News, August 9, 2005, available at: http://news.bbc.co.uk/2/hi/talking_point/4741753.stm Google Scholar (last visited October 29, 2007).
5 Friedman, Lawrence, The Horizontal Society 183 (1999)Google Scholar. Friedman regards multiculturalism as a fact as well as an ideology. He also acknowledges the difficulty in defining the purpose of multiculturalism and plural equality: “It is easier to define what plural equality is not, and what it is against, than what it is for. It is against the idea that there is or can be or should be a single canon, a single hierarchy, a single form of identity in this country.” Id. at 174.
6 Convention relating to the Status of Refugees, April 22, 1954, 189 U.N.T.S. 150.
8 This problem is especially acute where Moslem minorities do not accept Russian nationalism or its Christian symbols. Thus, a Moslem protest arose in Nizhnii Novgorod against the symbol of the Russian Federation, which includes a crucifix and a figure of St George killing the dragon. See Orttung, Robert Islam and The State, 10(23) Russian Regional Report (December 21, 2005), available at http://www.isn.ethz.ch/pubs/ph/details.cfm?lng=en&id=14769 Google Scholar (last visited October 29, 2007).
9 Especially interesting is the case of Hungary which created legislation granting cultural and financial rights to ethnic Hungarians located in neighboring countries. This law, partially amended due to the pressure set by the Council of Europe, emphasized again the mosaic character and the old-new minority problems in East and Central European countries, which joined the human rights regime of the Council of Europe. For this law, see Legislation on Kin-Minorities, Hungary Act LXII of 2001 on Hungarians living in Neighboring Countries (Venice Commission, 2001), was available at http://venice.coe.int/docs/2002/CDL(2002)077-e.asp Google Scholar (on file with the Israel Law Review). Similar laws exist in Bulgaria, Slovenia, Slovakia, Austria, Russia, Italy, Romania, and Greece. For legislative analysis see the website of Venice Commission, id.
10 On changes in the Macedonian constitution see Belamaric, Biljana, Attempting to Resolve an Ethnic Conflict: The Language of the 2001 Macedonian Constitution, 4(1) S.E. Eur. Pol. 25 (2003)Google Scholar.
11 Kymlicka, Will, Liberalism, Community and Culture (1989)Google Scholar; Contemporary Political Philosophy (1990, 2nd ed. 2002)Google Scholar; Multicultural Citizenship (1995); Finding our Way: Rethinking Ethnocultural Relations in Canada (1998); Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (2001); The Rights of Minority Cultures (1995); Kymlicka, Will & Norman, Wayne, Ethnicity and Group Rights (1997)Google Scholar; Kymlicka, Will & Norman, Wayne, Citizenship in Diverse Societies (2000)CrossRefGoogle Scholar; Can Liberal Pluralism be Exported? Western Political Theory and Ethnic Relations in Eastern Europe (Kymlicka, Will & Opalsky, Magda eds., 2001)Google Scholar.
12 The multicultural approach generally regards social diversity as a positive, independent phenomenon ascribing to it a creative social role. In doing so, it marches the extra mile beyond a policy of tolerance and respect for the other, obliging the state to promote cultural diversity. For an exhaustive exposition of this right, see Human Development Report 2004: Cultural Liberty in Today's Diverse World 1–36 (2004), available at http://hdr.undp.org/reports/global/2004/pdf/hdr04_complete.pdf CrossRefGoogle Scholar (last visited October 29, 2007).
13 In this matter as well, there is a tendency towards revision of the function of the French colonialism. The writer Max Galo notes that it was the Socialist Party which supported “the civilizing mission” (la mission civilatrice) of French colonialism and that the phenomena of colonialism was complex and must not be treated superficially. See Gallo, Max, Colonisation: la tentation de la penitence, Le Figaro (November 30, 2005)Google Scholar, on file with the author. In addition, the National Assembly passed on February 23, 2005 a law—LOI n° 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés (referred to as the French law on colonialism)—in which Article 4 makes history studies mandatory in schools, offering “recognition of the positive function fulfilled by the French presence overseas, especially in North Africa.” This law caused many protests and was eventually annulled by the French Constitutional Council.
14 European Charter for Regional or Minority Languages, Nov. 5, 1992, Europe. T.S. no. 148, available at conventions.coe.int/treaty/en/Treaties/Html/148.htm (last visited October 29, 2007); Framework Convention for the Protection of National Minorities, January 2, 1998, ETS No. 157, available at http://wwwl.umn.edu/humanrts/euro/ets157.html (last visited October 29, 2007). For more on the subject of the European Union's approach to minority languages, see Weber, Robert F., Individual Rights and Group Rights in the European Union's Approach to Minority Languages, 17 Duke J. Comp. & I'ntl L. (2007), available at http://papers.ssrn.com/so13/papers.cfm?abstract_id=924622 Google Scholar (last visited October 29, 2007).
15 This distinction does not appear in the following international documents: the Universal Declaration of Human Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Jan. 4, 1969, 660 U.N.T.S. 195; International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3; International Convention for Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171; children's rights treaties; and in conventions against discrimination in education. The exception is a convention of the International Labor Organization (ILO), adopted on June 27, 1989, Convention Concerning Indigenous and Tribal People in Independent Countries, September 5, 1991, and in which there is a distinction between immigrant minority and indigenous minority. See http://www.pdhre.org/rights/indigenous.html (last visited October 29, 2007). However, this convention has been ratified by 14 countries only and except Netherlands, Denmark, and Norway, the rest of these countries lack any democratic tradition.
16 See the comprehensive report: Cobo, José R. Martínez, Study of the Problem of Discrimination against Indigenous Populations, United Nations Commission on Human Rights—Sub-Commission on Prevention of Discrimination and Protection of Minorities, Economic and Social Council Resolution 2000/35, UN Doc. E/CN.4/sub.2/476/Add.1.) July 16, 1981 Google Scholar. Report on the 20th Session of the Working Group on Indigenous Populations (2002), available at http://www.unpo.org/article.php?id=198; see also Sustainable Development Networking Programme (SDNP), available at http://www.sdnpbd.org (last visited October 29, 2007).
The following definitions are suggested by the author: an immigrant minority immigrated from its origin country to the hosting country; an indigenous minority inhabited the territory of the host nation before its birth, an original minority is the first to have ever inhabited the territory of the state, for example Native Americans in USA and aborigines in Australia.
17 Forty-eight percent of the British Moslems reported that they were active economically in comparison to 65% of the Christians and 67% of the Jews. The Economist, July 16, 2005; Rubinstein, Amnon, Israeli Arabs and Jews: Dispelling the Myths, Narrowing the Gaps (American Jewish Committee, NY, 2003), available at http://www.ajc.org/site/apps/nl/content3.asp?c=ijITI2PHKoG&b=846567&ct=1043985 Google Scholar (last visited December 2, 2007).
18 As to gaps in employment, see European Monitoring Centre on Racism and Zenophobia, Racism and Xenophobia in the EU Member States: Trends, Developments and Good Practice 35–36, (EUMC Annual Report 2005) available at http://fra.europa.eu/fra/material/pub/ar05/AR05_p2_EN.pdf Google Scholar (last visited October 29, 2007).
In Finland, for example the unemployment rate for citizens of Iraqi origin is 64% as opposed to 7% for indigenous Finns. For gaps in education, see id. at 68-70. Proof of gaps in the education field may be observed in the results of the PISA test conducted by OECD. The results of the test from 2003 indicate that children of immigrants, even if born in Europe, achieve lower educational results in comparison with the general population. For gaps in the field of health, see World Migration 2005: Costs and Benefits of International Migration, 331, available at http://www.iom.int/jahia/Jahia/cache/offonce/pid/1674?entryId=932 Google Scholar (last visited October 29, 2007).
19 After the French riots, The Economist reported that there are no “blacks or colored people from Continental France in the National Assembly.” See Riots, France's, The Economist, November 10, 2005 Google Scholar; The Human Development Report for 2004 measures political representation of ethnic minorities in OECD countries and finds that, for instance, in France and Switzerland, there is no representation whatsoever to those minorities in the lower house. The Human Development Report, 2004, supra note 12, at 35.
20 Foundation of Inter-Ethnic Relations, The Lund Recommendations on the Effective Participation of National Minorities in Public Life, (1999), available at http://www.osce.org/documents/hcnm/1999/09/2698_en.pdf Google Scholar (last visited October 29, 2007).
21 Dubois, Pierre Yves, Le Figaro, November 8, 2005 (translation from French)Google Scholar: “America's model may not be egalitarian, but it is integrationist. While the US may not have resolved the matter of its ghettos, it has reduced unemployment among its minorities. Capitalism does incite minorities to integrate into the economic system.” Fukuyama, supra note 3, at 14, stresses this difference: “Many Europeans express skepticism about whether Muslim immigrants want to integrate… In the U.S., by contrast, first generation Guatemalan or Vietnamese immigrants can say proudly after taking the oath of citizenship that they are Americans and no one will laugh at them for that.”
Amartya Sen is partially incensed by the British Government imposing religious identity through the likes of the Muslim Council: “This parceling out of the nation can only weaken civil society,” Malik, Kenan, Illusions of Identity, Prospect (August 2006)Google Scholar.
22 In 2006, a British Government report found 38 documented cases since 2000 of children being “beaten, burnt, starved, cut neglected or isolated by family members who believed they were cursed.” Frean, Alexandra, Faiths that Abuse Children by Ritual Should Face Law, The London Times, June 30, 2006, at p. 6 Google Scholar. Particularly horrid was the finding of a torso of a child, named “Adam,” in the Thames. Ms. Beverly Hughes, from the Department for Children, Schools and Families Ministerial Team commented: “Child abuse can never be acceptable in any culture.” Id.
23 Popham, Peter, Murder of Muslim Girl ‘Rebel’ by her Father Shocks all Italy, The Independent, August 20, 2006, available at http://news.independent.co.uk/europe/article1220473.ece Google Scholar (last visited December 2, 2007).
24 “A liberal theory of minority rights…must explain how minority rights are limited by principles of individual liberty, democracy and social justice.” Kymlicka, Multicultural Citizenship, supra note 11, at 4.
25 Kymlicka, Will, Multiculturalism and Minority Rights: West and East, 4 JEMIE 1, 27 (2004), available at http://www.ecmi.de/jemie/download/Focus4-2002_Kymlicka.pdf Google Scholar (last visited December 31, 2007).
26 Prohibition of Female Circumcision Act, 1985, c. 38.
27 Criminalization of Female Genital Mutilation Act, 18 U.S.C. § 116 (1996).
28 A group of doctors in Seattle tried to establish such a compromise by suggesting that the circumcision be performed by doctors in the hospital, employing local anesthesia and on condition that the incision be minor and agreed upon by the daughter. See Coleman, D.L., The Seattle Compromise: Multicultural Sensitivity and Americanization, 47 Duke L.J. 717 (1998)CrossRefGoogle Scholar. Also see Shari'a, , Legality, and the Freedom to Invent New Forms: Americans Drafting an Islamic Model Penal Code, University of Penn Law School, Public Law Working Paper No. 06-26 (2006)Google Scholar regarding the challenges of drafting a penal code based upon the Shari'a.
29 The subject is discussed in the book Male and Female Circumcision: Medical, Legal and Ethical Considerations in Pediatric Practice (Denniston, et al. eds., 1999)CrossRefGoogle Scholar. In England and in the U.S., NGO's seek to annul the practice of circumcision and aid their members in rehabilitating the foreskin surgically. Id.
30 Reynolds v. United States, 98 S. Ct. 145 (1878).
31 Following the riots in Parisian suburbs at the end of 2005, the Ministry of Interior, Nicholas Sarkozy, emphasized the problem of immigrants' polygamy as a central issue and said that he intends to take steps against it. See Regroupment familial et polygamie aux banc des accusés, Le Monde, January 17, 2005 Google Scholar. The allegation voiced in France was that an exceptionally high number of youth taking part in the riots came from polygamous families, the reason being their failure to integrate into the French society.
33 The bill would have authorized litigation in a Shari'a court and according to Shari'a law. On September 11, 2005, the Ontario prime minister announced the annulment of this bill, see Pipes, Daniel, The Islamic Index in Europe, Maariv, October 2, 2005 [in Hebrew]Google Scholar; similarly, in Britain, some Islamic leaders demanded in a meeting with The Communities Minister the application of Shari'a law to Muslims in Britain, as well as demanding special religious bank holidays: The London Daily Mail, August 15, 2005, at p. 1 Google Scholar. For more on Muslim minorities in Canada see Kent, Roach, National Security, Multiculturalism and Muslim Minorities, (October 2006), University Toronto, Legal Studies Research Paper No. 938451Google Scholar.
34 Moller Okin, Is Multiculturalism Bad for Women?, supra note 32.
37 Tamir, Yael, Siding with the Underdogs, in Is Multiculturalism Bad for Women 47–52 (Cohen, J., Howard, M., & Nussbaum, M.C. eds., 1999)CrossRefGoogle Scholar; and see her article, Against Collective Rights, in Multicultural Questions 158–181 (Joppke, Christian & Lukes, Steven eds., 1999)CrossRefGoogle Scholar.
38 Bhabha, H. K., Liberalism's Sacred Cow—A Response to Susan Okin, in Is Multiculturalism Bad for Women 9–24 (Cohen, J., Howard, M., & Nussbaum, M.C. eds., 1999)Google Scholar.
40 The argument about cultural equality is expressed in, MacIntyre, A., Whose Justice? Which Rationality? (1988)Google Scholar. The author argues that the concepts of justice and law evolve from certain social regimes and can be placed under rational examination, only within the cultural tradition of the society that created them.
41 Raday, Frances, Religion, Multiculturalism and Equality: The Israeli Case, 25 Isr. Y.B. Hum. Rts. 193, 202 (1995)Google Scholar.
43 Fortuyn was denounced as a rightist racist and was sometimes labeled the “Dutch LePen,” but his personality and his party shattered this seemingly politically correct label, since he himself was a declared homosexual and the second in rank on his party was a black businessman.
44 Author of The Caged Virgin: An Emancipation Proclamation for Women and Islam 60–63 (2006)Google Scholar; as to her attack on multiculturalism.
45 Cohen, R., A European Model for Immigration Falters, Herald Tribune, October 17, 2005 Google Scholar.
46 The British press followed closely the developments in the Netherlands and some papers warned against similar developments in Britain. Reports of massive emigration of Dutch people out of Holland were “due to over-satiety from multiculturalism.” Multiculturalism was also given as the reasons for a massive departure of British people out of London. See Exodus as Dutch Middle Class Seek New Life, The Daily Telegraph, December 11, 2005 Google Scholar; Paul, D., Lessons for Britain as Fearful Dutch Turn Their Backs on Multicultural Society, The Sunday Express, December 20, 2004 Google Scholar.
47 Rennie, D., Dutch Plan Test Aimed at Curbing Muslim Migrants, The Daily Telegraph, February 6, 2005 Google Scholar; Browne, A., Dutch Unveil the Toughest Face in Europe with a Ban on the Burka, The Times, October 13, 2005 Google Scholar; Netherlands Introduces Dutch Language Test for Immigrants, February 21, 2006, Europe Immigration News, available at http://www.workpermit.com/news/2006_02_21/europe/netherlands_introduces_immigrant_test.htm (last visited December 2, 2007); Immigrants Asked to Speak Dutch in Netherlands, February 9, 2006, Europe Immigration News, available at http://www.workpermit.com/news/2006_02_09/europe/immigrants_speak_dutch.htm (last visited December 2, 2007). Eu and US Approaches to the Management of Immigration—the Netherlands (Niessen, J., Schibel, Y., & Magoni, R. eds., 2003), available at http://www.migpolgroup.com/documents/2507.html Google Scholar (last visited December 2, 2007). See also Moynahan, Brian, Putting the Fear of God into Holland, Times Online, February 27, 2005 Google Scholar.
49 Declaration on Active Participation in Acquiring Danish Language Skills and Achieving Integration into Danish Society, see the website of Danish Immigration Authority, available at http://www.udlst.dk (last visited November 11, 2007).
50 The interdiction, despite facing intense Moslem opposition, succeeded. Après le voile, la polemique se porte sur les enseignments, Le Figaro, November 20, 2005 Google Scholar reports that “only a dozen female students refused to take their scarf off.” However, a new problem was created: Moslem students display an increase in anti-Semitism and object to Holocaust studies.
52 Davis, David, Why Cultural Tolerance Cuts Both Ways, The Daily Telegraph, August 3, 2005, available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/08/03/do0302.xml Google Scholar (last visited November 11, 2007).
53 Portillo, M., Multiculturalism has Failed but Tolerance Can Save Us, The Sunday Times, July 17, 2005 Google Scholar.
54 Sieghart, Mary Ann, Brave Trevor Makes so Much Sense on Race, TimesOnline, Nov. 30, 2006, available at http://www.timesonline.co.uk/article/0,,1071-2477965,00.html Google Scholar (last visited December 24 2007).
55 Multiculturalism has Betrayed the English, Archbishop says, TimesOnline, November 22, 2005 Google Scholar. A sharp attack on multiculturalism—“a concept encouraging hatred and racism”—was expressed by the British organization CIVITAS (The Institute of Study of Civil Society) in a public statement published after the London subway attacks. See Report Attacks Multiculturalism, BBC NEWS, September 30, 2005 Google Scholar; West, P., The Poverty of Multiculturalism, CIVITAS, October 6, 2005 Google Scholar.
56 Michael Nazir-Ali-Bishop of Rochester, Multiculturalism is to Blame for Perverting Young Muslims, The Daily Telegraph, August 15, 2006, available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2006/08/15/dol501.xml Google Scholar (last visited December 24, 2007).
58 You/Gov Survey: Public Becomes More Hostile Towards Islam, The London Daily Telegraph, August 25, 2006, at p. 4 Google Scholar.
59 The Sunday Telegraph, August 27, 2006, at p. 15 Google Scholar on how the British government is now reevaluation its multicultural approach following the foiled terrorist attempt to blow up transatlantic jets in August 2006. See also Porter, Andrew, Whites' Anxiety Over Race, The Sun, August 25, 2006, available at http://www.thesun.co.uk/sol/homepage/news/article60953.ece Google Scholar (last visited December 24, 2007).
60 Britain Must Unite Behind Our Shared Values, The Daily Telegraph, August 28, 2006, available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2006/08/28/dl2801.xml Google Scholar (last visited December 24, 2007); concurrently with this mood, and as a reaction against devolution, a new emphasis on Englishness, as distinct from Britishness, began to be felt; see Aughey, A., The Return of England, Prospect, August 2006, at pp. 38–45 Google Scholar. As to the debate on multiculturalism in Britain, Le Figaro notes that the majority in Britain, though skeptical about multiculturalism, does not want to follow the French republican model of integration: Mandeville, L., Londres s'interroge sur le multiculturalisme, Le Figaro, September 6, 2006 Google Scholar.
61 Ha'aretz, November 18, 2005 [in Hebrew], archive article available at http://www.haaretz.co.il/hasite/pages/arch/ArchSearchResults.jhtml?_DARGS=%2Farch%2Fobjects%2Ffunctions%2FSearchInArchion.jhtml (last visited December 22, 2007).
62 This is the norm in France, Holland, Denmark, Norway, Germany, US and other countries. See a collection of papers published at the Challenge Seminar on January 26, 2006, The Nexus between Immigration, Integration and Citizenship in the EU, on file with the author.
65 In October 2005, heavy riots broke out in Birmingham between the black community and the Asian one. The Chairman of the Interracial Equality Commission, Trevor Philips as well as the Daily Telegraph found a connection between these riots and the multicultural concept. Questions for Galloway that Refuse to go Away, The Daily Telegraph, October 25, 2005 Google Scholar.
66 Rieff, David, Multiculturalism in Europe, International Herald Tribune, August 23, 2005, available at http://www.iht.com/articles/2005/08/22/opinion/edrieff.php Google Scholar (last visited December 23, 2007). A similar sentiment is expressed by Nobel Prize Laureate Amartya Sen in his book: Identity and Violence: The Illusion of Destiny (2006), in which the author says that violence “is promoted by a sense of inevitability about some allegedly unique—often belligerent—identity that we are to have.”
On the other hand, the riots in France—a country that adopted a republican model of one language and one culture—strengthened in the eyes of others the multicultural model. The liberal London daily, The Independent, stated:
The French may scorn Britain's policy of multiculturalism, but these riots must surely confirm the failure of the French insistence on integration and assimilation. In practice, decades of neglect of the problems of immigrant minorities have led to deepening alienation. The violent consequences of that neglect are now unfolding on the streets.
See An Explosion of Anger, The Independent, November 4, 2005 Google Scholar.
67 Pipes, supra note 33. The State of Israel chose a slightly different path and granted a general exemption from ID photo to women who declare that they are not to be photographed on religious grounds. Article 25 of the Registration of the Population Law, 1965, S.H. 466, at 270.
68 Fukuyama, supra note 3, at 15.
69 Margalit, Avishay & Halbertal, Moshe, Liberalism and the Right to Culture, 61 Soc. Res. 491, 508–509 (1994)Google Scholar:
Another problem associated with the privileges granted to minority groups for the sake of preserving their culture is the apparent inequality engendered by giving the minority privileges that are denied to the majority. There is an apparent paradox here in that the state is supposed to be neutral with respect to the majority culture while intervening substantially to assist minorities. But these seemingly nonegalitarian minority privileges are justified by the fact that the majority culture is able to maintain a more or less homogeneous environment even without privileges by virtue of its being the culture of the majority. Moreover, in most cases the majority preserves its homogeneity by enacting immigration and citizenship laws for the state as a whole, which creates an unequal situation that needs to be balanced by granting privileges to the minority.
70 Smith, David J., Minority Rights, Multiculturalism and EU Enlargement: the Case of Estonia, 1 JEMIE (2003)Google Scholar.
71 Kymilka & Opalsky, supra note 11.
72 Framework Convention for the Protection of National Minorities, supra note 14.
73 Id. Article 16 (Article 16 is an example of significant collective rights; it sets the right for minority members to ensure that the demographic composition of the inhabited areas by a minority will not be altered and it aims to limit their rights by the convention).
74 But see id. Article 20 (requiring members of the minority “to respect the national legislation and the rights of others”).
75 See Gorzelik v. Poland, App. No. 44158/98, 40 Eur. H.R. Rep. 4 (2005), available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (last visited November 11, 2007). (The European Court for Human Rights discussed the petition of the Silesian Minority in Poland due to the refusal to grant them the right to assemble in order to promote the national awareness of the Silesians in Poland and rehabilitate their culture. The local governor claimed that granting them recognition as a national minority would mean granting rights not given to other groups. The European Court determined that the refusal stems from a worthy purpose and the decision was based on reasonable grounds of a democratic society. The decision was also justified due to the fact that the minority was not prevented from promoting its culture; it was only denied the official acknowledgment as a national minority with preferential status and benefits within the framework of Parliament elections. In a similar context, the European Court of Human Rights discussed the petition presented by the members of the Macedonian Minority against the State of Greece, which sought to assemble Macedonian natives in Northern Greece. The explanation given for the refusal to grant the right for assembly and recognition as an ethnic minority was that such recognition would be against state interests. The European Court decided that the rights of assembly were infringed and that the purpose of assembly is to preserve and develop the local culture. The fear of the Greek government of harm to its territorial integrity was deemed unfounded.).
77 An additional field in which one may see the principle of multiculturalism in European countries is the preservation of the language of minority and the possibility to receive education in one's language. In Austria, the Constitutional Court approved a law for the state of Carinthia regarding minorities' education, which allowed studies in the Slovene language only during the first three years of the basic education, in violation of the convention that has been applied to Austria after WW2. That convention ensured the Slovenian minority (and other minorities) basic education in their own language (See AUT – 2000-1-002 in the CODICES database).
In Romania, the Constitutional Court ruled against the petition opposing the Education Act, which allowed the establishing of institutions of higher education in which the language of instruction is not Romanian. The Court decided that by establishing multicultural institutions, the government did not act in a way that discriminates against Romanian citizens but rather furthers equality between national minorities and Romanians and thus acted in accordance with the Constitution that ensures that all members of ethnic minorities have the possibility to study and speak their mother tongue and acquire education in institutions where the language of instruction is their mother tongue (See ROM -2000-1-004).
Slovakia legislated a law requiring formal applications be filled in Slovakian only. This instruction was deemed to contradict the Slovenian Constitution, which allows national minorities to use their own language in communications with the government (See SVK-1997-2-007).
In Macedonia, the petition opposed allowing minorities to have radio broadcasts in their own language. It was rejected by the Court. The allegation was that broadcasting in other languages than Macedonian might impair the status of the official Macedonian language. The Court ruled that the State must protect the ethnical, cultural, linguistic and religious identity of the people belonging to national minorities and the use of their own language in radio broadcasting, even if broadcast to the entire country, does not create a situation of multilingualism in the country (See MKD–1998–2–004).
The CD-Rom collection of these decisions are on file with the author.
78 U.N. Econ & Soc. Council [ECOSOC], Sub-Comm. on the Prevention of Discrimination and Protection of Minorities, Draft United Nations Declaration on the Rights of Indigenous People, UN Doc., E/CN.4/Sub2/1994/2/Add.1 (August 26. 2004)(“Recognizing the right of all people to be different, to consider themselves different and to be respected as such … Affirming also that all people contribute to the diversity and richness of civilizations and cultures”).
79 See Annan, Kofi, Statement on Presenting Millenium Report, (Mar. 4, 2000), available at http://www.ohchr.org/english/issues/minorities/ Google Scholar (“Minority rights are being increasingly recognized as an integral part of the United Nation's work for the promotion and protection of human rights, sustainable human development, peace and security.”).
80 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, G.A. Res. 47/135, Annex, UN Doc. A/Res/47/135/Annex (December 18, 1992).
81 In 1999, the Constitutional Council of France decided that the European Charter for Regional or Minority Languages violates the principles set by the French Constitution which stipulates that the language of the Republic is French only and allowing use of languages other than French in the public sector. (See FRA-1999-02-005 CODICES database). In Romania, as opposed to France, a similar petition was overruled and it has been established that the ratification of the above European Convention will not impair the status of the Romanian language as an official language. (See ROM–2000-01-003, available at http://codices.coe.int/NXT/gateway.dll?f=templates&fn=default.htm (last visited December 13, 2007).
82 HCJ 4112/99 Addalah v. The Municipality of Tel Aviv  IsrSC 56(5) 393.
83 HCJ 6698/95 Ka'adan v. Israel Lands Authority  IsrSC 54 258; for an English summary see 34 Isr. Y.B. Hum. Rts. 351 (2004)Google Scholar.
84 The long-term government program for proper representation of Arabs and Druze in the Civil Service started already in October 1993, during the Rabin administration. Similar programs were implemented also during the Barak administration in June 1999 and also during the Olmert government in 2006. All these cases were government decisions without supporting legislation. These decisions have been only partially implemented.
85 Proper representation was mentioned as early as 1948, see The Declaration of the Establishment of the State of Israel, (May 14, 1948) Official Gazette 1, Tel Aviv, 5 Iyar 5708, available at http://www.knesset.gov.il/docs/eng/megilat_eng.htm (last visited November 11, 2007)(“We call upon the Arab People, citizens of Israel, to maintain and preserve peace and to take a part constructing the State on the basis of full and equal citizenship and based on proper representations in all State institutions temporary or permanent” (emphasis added A.R.)). Affirmative action is incorporated in Article 18A of the Law of Government Companies, 1975, S.H. 1740, at 207, as well as in Article 15A of the Law of Civil Service (Appointments), 1959, S.H. 2017, at 718. For rulings concerning proper representation of the Arab minority, see HCJ 10026/01 Adalah v. The State of Israel  IsrSC 57(3) 31. The existing legislation regarding affirmative action is very explicit and instructs the government to set goals through the consultation and to set aside specific positions for minority candidates. It also imposes on the government the duty of annual reporting to a Knesset Committee.
86 See the English summary of Ka'adan v. Israel Lands Authority, supra note 83, at 282.
87 HCJ 114/78 Burkan v. the Minister of Finance  IsrSC 32(2) 800.
88 HCJ 528/88 Avitan v. Israel Land Administration  IsrSC 43(4) 297.
89 HCJ 4906/98 “Free People,” Association for the Freedom of Religion, Conscience Education and Culture v. Ministry of Construction and Housing  IsrSC 54(2) 503.
90 The National Task Force for the Advancement of Education in Israel, The National Program for Education (January 2005) [in Hebrew], available at http://cms.education.gov.il/EducationCMS/Units/Ntfe/HdochHsofi/ (last visited November 11, 2007) [hereinafter the Dovrat Report]. The chapter on public education, at 212, opens: “Out of recognition of the fine diversity of the Israeli society as a multicultural society the public education must allow the various communities and to a variety of cultures to be expressed by the contents.” (translated from Hebrew A.R.).
91 Rubinstein, supra note 17.
92 Kymlicka & Opalsky, supra note 11, (suggesting that in such cases the entire international community join forces in order to convince the majority community and to calm it down through a solution of peace to the national inner country conflict).
93 The Dovrat Report, supra note 90, at 218.
94 HCJ 4298/93 Jabbarin v. Minister of Education  IsrSC 48(5) 199, (Justice Goldberg disagreed, at 204-205, with the saying about public schools in Israel: “Is there a place in a public religious school for a student who does not wear a Yarmulkeh? I am not convinced that in a clash between the student's freedom of speech and the educational framework, the will of the student will prevail—despite the education for tolerance and pluralism.”)(translated A.R.).
95 R. v. Headteacher and Governors of Denbigh High School,  UKHL 15,  1 A.C.100 (appeal taken from Eng.)(U.K.).
96 See Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256 (A decision made unanimously by the Supreme Court of Canada in which the Court received an appeal of a Sikh student against the interdiction to wear a Kharpan (a dagger carried as a religious ordinance under the clothes) in schools in Quebec). In the German state of Baden-Wuerttemberg the court has invalidated a ban on woman teachers wearing religious headscarves because the legislation did not apply also to Catholic nuns and therefore was discriminatory. See a report in the Jurist, available at http://jurist.law.pitt.edu/paperchase/2006/07/german-state-court-rejects-headscarf.php (last visited November 11, 2007).
97 As to culture as a defense, a subject with which this article does not deal, see Note, , The Cultural Defense in the Criminal Law, 99 Harv. L. Rev. 1293 (1986)Google Scholar; Chiu, Elaine M, Culture as Justification, Not Excuse (St. John's Legal Studies Research Paper No. 06-0043)CrossRefGoogle Scholar.
98 See supra note 12.
99 Raday, Frances, Culture, Religion and Gender, 1 Int'l J. Const. L, 663, 690–691, 708–709 (2003)Google Scholar (Raday brings an example of a ruling from a Turkish Court of 1989, which invalidated the regulation allowing universities to permit a dress code which hides the neck and the hair due to faith. The Court ruled that the regulation contradicts the Turkish secular model as well as the law which requires that all state employees have their head uncovered. The ruling has also been recently sanctioned by the European Court for Human Rights see Sahin v. Turkey, App. No. 44774/98, 2005-XI Eur. Ct. H. R. 71 (2005) available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (last visited November 11, 2007).
101 This is why the traditional American Right has opposed multiculturalism due to universal reasons—“It's bad for mankind” and not because of reasons of White Christian cultural superiority—“Its bad for America.” Lawrence Auster resents this attitude, see Auster, Lawrence, The Path to National Suicide: An Essay on Immigration and Multiculturalism (1990)Google Scholar; Auster, Lawrence, How Multiculturalism Took over America, FrontPageMag.Com, July 9, 2004 Google Scholar.
102 Goodhart, David, Liberals should Beware of Giving Rights to People who Hate Us, The Sunday Times, August 28, 2005 Google Scholar (“People are not born with rights …Rights are a social construct, a product of history, ideas and institutions. You and I have rights not as human beings, but mainly because we belong to the political and national community called the United Kingdom with its infrastructure of laws and institutions”), available at http://www.timesonline.co.uk/tol/comment/article559870.ece (last visited November 11, 2007). This claim represents an approach that claims that human rights are a consequence of a social agreement taking place in a peculiar society and not being part of the cultural heritage. See Goodhart, David, Human Rights and Terrorism, Prospect, September 4, 2005 Google Scholar.
104 For a dramatic case of such a collision see Pipes, Daniel, The Problem of Saudi Slavery, New York Sun, June 16, 2005 Google Scholar (The FBI prosecuted a Saudi couple living in the US on the charge of turning an employee into a slave. The couple enslaved an Indonesian female worker through threats of systemic rape, did not pay her and kept her in slavery conditions. In other cases, slavery cases in Saudi families living in the US were reported which were not prosecuted due to diplomatic immunity. Slavery is still practiced in Saudi Arabia despite the fact that it has been illegal since 1962. Obviously in this case the Saudi culture will not have any defense.)
106 See Raday, supra note 41. (Frances Raday asks if it may be possible to agree to inequality and her answer is straightforward:
The allegation that a woman is free to choose between equality and inequality in a society, which educates men and women to men ruling women has no basis. One may assume that only few victims of discrimination will be able to liberate themselves from the patterns of a life in discrimination …if it will be said that in some fields of life such as family, there are women who prefer the inequitable tradition—the role of law is to ensure that the agreement is from wish and awareness and also—that the woman may withdraw from it and free herself from the inequitable tradition and enjoy the right to equality despite the initial agreement at any time in the future, when she is no longer interested.
107 The almost automatic identification of Leftist movements and of Human Rights NGO's with the Moslems due to the concept of multiculturalism convinced a group of well known French scholars to publish a sharp manifesto:
Sincere activists—and anti-racist organizations…turn themselves into a device held by the hands of fanatics of sexist ideology, homophobic and anti-Semitic …We see how the road to Hell is paved with good intentions: They are put in motion by the highest feelings in the world, the same that argued for equality of genders, and end finding themselves in the same camp with the denying of rights to women; the same people who fight discrimination made an alliance with the preachers of hatred of Israel; the more advanced ones are acting in conjunction with possessors of opinion of Middle Age…This is the Leftist-Islamic Alliance which grows a tumor on the Anti Racism Front.
The manifesto asks for support for the equal republican ideas and not to give support to “the Political Islam,” which aims to eliminate the republican model. See Redonner son sens a la lutte contre tous les racisms, France Soir, Oct. 14, 2005 [in French]Google Scholar. A similar manifesto, under the title “The Euston Manifesto” was written by the British intellectuals. See Rubinstein, Amnon, To the Euston Station, The New York Sun, Jun. 1, 2006, at 11, available at http://www.nysun.com/article/33720?access=932664 Google Scholar (last visited December 2, 2007).
110 I thank Professor Michael Dorf for drawing my attention to this point.
111 Such an example is the transition made by the Japanese society from a regime based on a half-godly emperor and on the demand of self sacrifice—a consequence of the Japanese traditional society—to a modern, democratic regime based on freedom and autonomy of the individual. This is not a transition from an original culture to another culture, but a transition from a traditional society to a regime of modern democracy with universal principles.
112 See Malik, Kenan, Can Multiculturalism Work? http://www.kenanmalik.com/lectures/multiculturalism_if.html (last visited November 11, 2007)Google Scholar.
[W]hy should I, as an atheist be expected to show respect for Christian, Islamic or Jewish cultures whose views and arguments I often find reactionary and often despicable? Why should public arrangements be adapted to fit in with the backward, misogynistic, homophobic claims that religions make? What is wrong with me wishing such cultures to “wither away”? And how given that I do view these and many other cultures with contempt, am I supposed to provide them with respect, without disrespecting my own views?
115 Friedman, supra note 5, at 174 (expressing a similar approach):
Castles and Miller describe the multicultural model of citizenship as a definition of the nation as a political community…with the possibility of admitting newcomers to the community, providing they adhere to the political rules, while at the same time accepting cultural difference and the formation of ethnic communities. Without the political rules, in fact, no multicultural state is possible… The political rules, then, are a prerequisite. But the cultural differences and the ethnic communities are the essence of the multicultural state. It represents the breakdown of the old hegemony; what replaces it are the virtual communities, the subnations, linked through ideology and technology in the new and sharply horizontal state.
116 HCJ 49/54 Milchem v. Judge of the Shari'a Court  IsrSC 8(2) 910, 913.
117 The Law on the Interdiction of Discrimination in Services and Entrance to Entertainment Establishments and Public Places, 2000, S.H. 1765, at 58.
119 Section 3(d)(3), The Law on the Interdiction of Discrimination in Services and Entrance to Entertainment Establishments and Public Places, supra note 117.