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The law uses ‘discrimination’ to denote practices of exclusion and distinction that are wrongful from a legal point of view. Anti-discrimination doctrines around the world use the concept of ‘wrongful distinctions’ to enumerate the ways in which irrelevant distinctions between individuals or groups are made and to explain their illegality. But how should the term ‘irrelevant’ be understood in this context? Most legal systems around the world use the term ‘irrelevant’ only in denunciation of distinctions based on ‘common,’ ‘classic,’ or ‘suspicious’ grounds, such as race-based or sex-based distinctions.
In the postcolonial era, we have witnessed waves of mass immigration. Consequently, many states are no longer associated with just one or two national languages. Newly formed immigrant minorities raise demands for language rights, alongside national minorities, which raise similar demands.Such a complex situation exists, for example, in Canada, where only French and English are declared official languages although there are other languages, such as Chinese, which are spoken by large communities of people. My paper addresses the general question of which linguistic minorities are most entitled to comprehensive language rights. Will Kymlicka distinguishes between national minorities, which he regards as deserving of comprehensive language rights, and immigrant minorities which are not. Many scholars challenge Kymlicka’s distinction. However, none of them have suggested alternative criteria for distinguishing minority languages that are entitled to protection from minority languages that are less entitled to protection. In my paper, I suggest such a criterion. My alternative criterion is based on the intrinsic interest people have in protecting their own language as the marker of their cultural identity, thus, comprehensive language rights are to be accorded to linguistic minorities that possess the strongest intrinsic interest in the protection of their language as their marker of cultural identity. I apply my criterion to the Israeli case, in which there are two dominant linguistic minorities: the Arab national minority and the Jewish Russian immigrant minority. Relying on general criticism of Kymlicka’s distinction, I argue that this distinction is not applicable to the Israeli linguistic case. Applying my alternative criterion to the Israeli case, I argue that Israeli Arabs have a stronger interest in Arabic than the Russian Jewish minority has in Russian because Arabic constitutes Israeli Arabs’ exclusive marker of identity.
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