Liberal Multiculturalism as a Political Theory of State–Minority Relations

If Liberal Multiculturalism Is the Answer, What Is the Question?

I do not therefore have any fundamental disagreements with the answers Patten offers. Where we may disagree, however, is with the question. Patten’s organizing question is: how can liberal egalitarian principles of justice incorporate the culture-related interests of individuals? My work starts from a different question: namely, How should liberal states treat minorities? To be theoretically adequate and practically useful, a liberal theory of multiculturalism should, I believe, be first and foremost a theory of state–minority relations. The two questions are related, but liberal multiculturalism cannot just be a theory about minorities and what members of minorities can rightfully claim from the state; it must also be a theory of the state, and what states can rightfully demand of minorities. Both sides of the state–minority equation are important. Indeed, the state is arguably conceptually prior. We can only identify legitimate minority claims—in fact, we can only identify who are “minorities”—if we first have some workable account of the state, and how a state comes legitimately to govern particular peoples and territories. And this in turn requires addressing both general theoretical questions about the moral foundations of statehood—that is, how states legitimate their rule through ideas of popular sovereignty, territorial rights, and national self-determination—as well as more specific historical questions about how any particular state asserts rule over particular persons and territories.

Patten begins his book by complaining that existing theories of liberal multiculturalism have been vague about some of the moral foundations of minority rights. Fair enough. But I think it’s equally fair to say that Patten’s account of the moral foundations of state rule is vague. In fact, he essentially just stipulates that, for the purposes of his theory, states are presumed to legitimately exercise sovereignty over the peoples and territories within their international boundaries. No account is given of the moral foundations of this claim to sovereign rule.

The result is a curious imbalance: the claims of minorities are subjected by Patten to minute scrutiny, in part because he thinks the burden of proof falls on minorities to justify any claims beyond the “standard liberal package.” By contrast, the claims of the state to exercise legitimate sovereignty over minorities and their territory—and to adopt measures to ensure the stable and efficient functioning of this sovereignty—are simply taken as given.

Patten is not unusual in assuming legitimate state sovereignty. This assumption is central to Rawls’s theory, and to most subsequent work in the Rawlsian tradition. Rawls famously argued that, in developing a theory of justice, we can assume not only that the world is divided into territorially bounded polities, but also that any disputes regarding membership in, and the boundaries of, these bounded polities have been settled beforehand. So he does not ask or expect his theory of justice to tell us how to draw boundaries or to assign membership. His theory starts from the assumption of a world of nation-states each of which exercises legitimate sovereignty within accepted boundaries, and then asks what justice requires in the exercise of that legitimate sovereignty. Patten makes the same simplifying assumption, even as he refines Rawls’s answer about what justice requires.

It’s an interesting question when it is appropriate for political philosophers to make this simplifying assumption. It has two obvious drawbacks. First, it pre-empts general critiques of the very idea of bounded state sovereignty, such as those levelled by cosmopolitans, anarchists, or defenders of non-territorial forms of political order. ³ Second, even if we accept that bounded state sovereignty can in principle be legitimate, it pre-empts challenges to the sovereignty claims of particular states in relation to particular groups or territories.

For the purposes of theorizing minority rights, I am more concerned about the second drawback. This is not to say we should ignore the first. It’s worth asking whether a fundamentally different way of ordering the world would be normatively preferable, including (and perhaps especially) for minorities. Would minorities be better off in a world of functionally defined rather than territorially defined demoi? ⁴ Would they be better off in a single global demos, ⁵ or in an anarchist world without states? ⁶ Those are good questions to ask. But the reality is that we will continue to live in a world of bounded states for the foreseeable future. And so we need to figure out how to achieve justice in a world of bounded states. Moreover, I believe that humans, and other animals as well, have place-based rights that justify some forms of territorial boundaries, and that set principled limits on terrestrial cosmopolitanism and global democracy. ⁷

So I endorse Patten’s decision to theorize minority rights in a world of bounded states. But I do not think a theory of minority rights should take state claims to sovereignty over peoples and territories as presumptively valid. That may be a useful simplifying assumption for some questions in political philosophy, but not for minority rights. On the contrary, many claims to minority rights are in fact challenges to, or qualifications of, assertions of state sovereignty. These are often two sides of the same coin, and our theory will be imbalanced if we apply different burdens of proof to the two sides.

Starting with the State

This suggests a different starting point for the analysis. If we want to explore the normative structure of state–minority relations, an obvious first question is to ask, How did this minority come to be a minority in the first place? How did a particular state come to have (or to assert) a right to rule over this particular minority and over this particular territory? The fact that a particular state rules a particular minority is not God-given, but emerges out of a particular political process, and a normative theory of minority rights should be, at least in part, a theory about when these processes are legitimate (and if they are illegitimate, how this can be rectified). If we start with this question, we are likely to evaluate minority rights claims differently than if we start by presupposing legitimate sovereignty.

For example, in the case of settler states ruling over indigenous peoples, the state’s claim to rule indigenous peoples and territories is rooted in an unjust process of colonization. Moreover, in order to justify this unjust process of political domination and territorial acquisition, settler states generated ideologies of racial supremacy that denigrated indigenous societies as backward or primitive, and as unworthy to rule themselves or to participate in ruling the larger society. A normative theory of indigenous rights must be responsive to this deep structure of settler colonialism, and this requires something much more than Patten’s theory of pro-rated cultural funding. Settler colonialism disrupted the cultural context of indigenous societies, but this was a corollary of the deeper injustice of political domination and territorial dispossession, and a normative theory of indigenous rights must address these deeper issues, through some process of reconciling indigenous and settler sovereignties. ⁸

In other cases, a minority came to be part of a larger state not as a result of colonization but as a result of voluntary federation, in which two or more national groups agreed to form a larger polity. A normative theory of national minority rights must be responsive to this deep structure of political federation, and here too this requires something more than a theory of pro-rated cultural funding. In this case, unlike settler states, the original process by which the state came to assert rule over a minority may not have been unjust. Yet history shows that these original pacts are rarely honoured, and that dominant national groups are tempted to withdraw guarantees of regional autonomy and language rights that were negotiated at the time of federation. Minority claims to regain these rights can therefore be seen not just as helping to fairly secure their cultural interests but as restoring the original basis on which the very legitimacy of the state rests.

Yet other groups come to be minorities not through colonization or voluntary federation but through migration—that is, by being admitted to a country as individuals or families. In this context, a normative theory of immigrant minority rights needs to be responsive to the deep structure of migration, admission, settlement, and integration. On my account, indigenous peoples and national minorities have a right to form self-governing units within which they form a majority, and whose institutions are used to express the group’s language and culture. As Patten notes, commentators on my work have sometimes wondered why immigrants do not have a similar entitlement to territorial self-rule, and this would indeed be one conceivable route to recognizing their cultural interests. But once we situate these cultural interests in a larger theory of state–minority relations, it becomes clear that this cannot be a requirement of justice. Enabling immigrants to assert self-governing rights over a particular chunk of the state’s territory would in effect be allowing them to colonize a part of the territory of the state. ⁹ This is exactly what colonizing settlers did throughout the Americas, and if we grant immigrants the right to establish self-governing societies we would be reproducing that injustice yet again. And so we need to find some other way of securing the cultural interests of immigrants, and this requires that we situate their cultural interests within a broader account of the fair terms of multicultural integration into the host society. Here again, pro-rated cultural funding is unlikely to be the heart of the matter. The challenge is not to fund immigrant-specific institutions alongside mainstream institutions, but to adapt mainstream institutions to recognize and accommodate the identities and practices of immigrants. It is less about ensuring that Vietnamese Americans get their pro-rated 0.6 percent of state funding for separate Vietnamese-language institutions or services, and more about revising how the 99.4 percent is spent, to make sure that Vietnamese Americans feel at home in the larger society.

These reflections on the broader matrix of state–minority relations provide the starting point for the theory of group-differentiated minority rights that I developed in Multicultural Citizenship. ¹⁰ Like Patten’s theory, it is interested in fair procedures, but these include the process by which states claim sovereignty over minorities. And if we start from this question, then whether we look at indigenous peoples, national minorities or immigrant groups, Patten’s pro-rated funding proposal is unlikely to play a central role. It is simply not responsive to the aspirations of actually existing minorities in actually existing states. And this perhaps explains why, despite over fifty years of active political mobilization by minorities across the Western democracies, none of them have mobilized to claim pro-rated funding.

This is not to say that the careful conceptual work Patten has done regarding cultural interests and distributive justice is irrelevant. Any recognizably liberal theory has to be consistent with individual autonomy and responsibility. And this means, inter alia, that any liberal account of indigenous decolonization, federal partnerships, or multicultural integration for immigrants must seek to secure both access to and adequacy of cultural options, and must acknowledge individual members’ freedom to revise inherited cultural practices while holding individuals responsible for these choices. Patten’s account clarifies these liberal desiderata. But this is just one part of a larger theory of minority rights, and in many cases is not the crux of the dispute. The ongoing political debate between francophone Quebecers and Anglophone Canadians, for example, is not about the value of autonomy or responsibility—there are no statistical differences between the two groups in these values—but about the basis of legitimacy of the Canadian state, and in particular whether it should be understood as a federation of peoples. While liberal principles of autonomy and responsibility are important criteria for a liberal approach to diversity, they need to be situated within a broader framework of state–minority relations.

At one level, I suspect Patten would not disagree with this. He acknowledges that justice requires something other than pro-rated funding in the cases I’ve mentioned—colonized indigenous peoples, federal partnerships, and immigrants—since each of them raises distinctive issues tied to the process by which they came to be minorities governed by a particular state. ¹¹ He does not suggest that his analytical framework provides a comprehensive theory of minority rights. As I understand it, it is intended rather to illuminate what justice requires when we abstract from these group-specific histories. Perhaps we are to understand Patten’s framework as identifying what justice requires in the generic or normal case, when we set aside special factors relating to group-specific histories of colonization, confederation, or immigration. But if so, I don’t understand what this normal case is: if we set aside cases of involuntary conquest, voluntary federation, and immigration, what is left? Here again, the problem isn’t with Patten’s answer, but with his question: framing the issue as how cultural interests can be incorporated into liberal egalitarian conceptions of justice does not track the actual issues raised by minority claims-making. ¹²

Unpacking State Sovereignty

Let me put the point another way. Let’s say I am wrong that we need to distinguish different processes by which states come to govern minorities, and let’s assume it makes sense to ask Patten’s question of how the cultural interests of individuals should be incorporated into principles of distributive justice. On this approach, we don’t ask about the origins of the state’s sovereignty (e.g., whether it is a settler state or a federal state), and we don’t ask about the origins of the minority (e.g., whether it is an indigenous people or national minority or immigrant group). We just visualize a generic liberal-democratic state treating a generic minority, and ask what claims members of the latter have. As I said earlier, I have trouble understanding what this question amounts to, but let’s assume it is a useful question to ask. Even so, I would argue that we need to pay more attention to the state and its claim to sovereignty. Even if we adopt the simplifying assumption that this generic liberal-democratic state has legitimate sovereignty over its generic minority, I would still insist that we need to think explicitly about what claims to sovereignty entail for state–minority relations.

What does it mean for a state to claim sovereignty? In the modern world, claims to sovereignty are claims to popular sovereignty—that is, the locus of sovereignty is “the people,” and the state is the vehicle by which the people exercise this sovereignty. Sovereignty, therefore, rests on claims to peoplehood. The citizens are said to belong together as a people, and as a people they have a right to govern themselves. Because they belong together and have the right to govern themselves, it would be an injustice if the state were involuntarily divided into two or annexed to a larger state, even if a divided or annexed state secured basic individual rights. To be a people in this sense—as a bearer of sovereignty—it is not enough that citizens view themselves as a group of individuals who happen to find themselves in a single state subject to a common law. If this were all that bound citizens together, there would be no grounds for objecting to imposed annexation, so long as individual rights are respected. Rather, citizens must think of themselves as a people who belong together in a single state. (Or, more accurately, the state must claim that its citizens think this way.) This helps explain why assertions of popular sovereignty have typically been connected to assertions of nationhood. Where a sense of nationhood is widely diffused, people think it is right and proper that they form a single unit, and that they should act collectively, despite their diverging interests and ideologies. Ideas of belonging together, collective agency and attachment to territory are part of the very meaning of shared nationhood, and thereby help turn a mere aggregation of individuals into “a people” of the sort that can credibly claim popular sovereignty.

State claims to popular sovereignty are, therefore, intimately tied up with claims to nationhood. And since this feeling of shared nationhood is not biologically innate, it needs to be continually reinforced through such mechanisms as national media, national symbols and holidays, national education systems, a national language, national transportation systems, and so on. This sort of nation-building is a corollary of claims to popular sovereignty. If a state’s claim to legitimacy depends on its claim to peoplehood, it must work to instil this sense of belonging together.

So what might look like a simplifying assumption that the state possesses legitimate sovereignty over its citizens and territory is neither simple nor innocent. It brings with it a chain of implications: from popular sovereignty to peoplehood to nationhood to nation-building. That is the reality of modern state sovereignty in our global order of territorially bounded nation-states. And this reality creates endemic risks for all those who are not seen as belonging to the nation, including indigenous peoples, substate national groups, and immigrants. Since they may not be seen as members of the people in whose name the state governs, and may indeed be seen as potentially disloyal fifth columns, they are often not trusted to govern themselves or to share in the governing of the larger society. This exclusion is typically then buttressed by ideologies of racial inferiority or cultural backwardness. In short, state claims to popular sovereignty carry grave risks for minorities.

In my view, a normative theory of minority rights must address this reality: it must be responsive to the pervasive risks that arise from our current world order of bounded states that ground their legitimacy in popular sovereignty. This is what the group-differentiated theory of minority rights I mentioned earlier aims to do: indigenous decolonization, federal partnership, and multicultural immigrant integration are all crafted to remedy the chronic risks that modern nation-states grounded in popular sovereignty pose to each of these minorities. These are all strong forms of minority rights—stronger than Patten’s pro tanto defense of recognition rights—but if a theory of minority rights should be responsive to the risks of injustice that minorities face, then we need robust minority rights to counteract the robust risks arising from state sovereignty.

Perhaps Patten would respond that in making the simplifying assumption about state sovereignty, he was not endorsing this chain of implications. Perhaps he thinks state sovereignty need not be grounded in popular sovereignty, or that popular sovereignty need not be grounded in peoplehood, or that peoplehood need not be tied to nationhood. There are passages where Patten hints at these ideas, and if so, then his simplifying assumption might not pose the risk to minorities that I have suggested. Perhaps he thinks that once state claims to sovereignty are redefined in a new and narrower way, endorsing these claims would not, by itself, skew the playing field against minorities. But he never elaborates an alternative account of the basis of sovereignty, peoplehood, or territorial rights, and so we have no way of knowing what sorts of risks this alternative account imposes on minorities. Moreover, in other passages he clearly recognizes the link between sovereignty and nationhood, leaving readers unclear how he understands the nature and bases of state claims.

Patten’s central metaphor of “cultural formatting” illustrates the problem. The metaphor can be interpreted in different ways, reflecting different views about the nature of the state. As Patten sets up the metaphor, the state is like a publisher who would prefer to publish without privileging any particular font, but regrettably there is no universal font, and so must sometimes choose between, say, Helvetica and Palatino. This is however simply a technical choice, unrelated to the core values or core identity of the state. Since cultural formatting in this sense is a regrettable but necessary particularism that is extrinsic to the universal basic principles of a liberal democracy, pro-rated funding is an appropriate remedy. Many of us happen to use Helvetica here, but this has no implications for who we are, or for our political values or aspirations, and so we are happy to give pro-rated funding to users of Palatino.

Needless to say, this is not how real-world liberal states think about their cultural formatting. On the contrary, states continually emphasize their distinctive formatting, and encourage citizens to think of it as essential to their identity. Having chosen Helvetica, they justify that decision by saying that we are Helveticans, living in Helveticaland. And the fact that we are Helveticans living in Helveticaland is precisely what makes us a “people” who belong together, and who can legitimately claim rights to popular sovereignty. In short, real-world states engage in cultural formatting because their legitimacy is grounded in claims to popular sovereignty, and this requires consolidating a sense of peoplehood through a shared identity. Formatting, on this view, is not a regrettable necessity, but a virtue: it is a way of sustaining a sense of belonging together as a distinct demos. Even if there were a universal font, we would still use Helvetica, because we are Helveticans, exercising our rights as a people through the Helvetican state.

These are two completely different conceptions of formatting, and our approach to minority rights will depend on which we think provides a better analogy for modern states. If one endorses the first conception of formatting as an occasional but regrettable necessity that has no larger nation-building purpose, then something like the pro-rated funding proposal makes sense. But if you think that cultural formatting is often about nation-building to sustain claims to popular sovereignty, then the stakes are much higher, the risks to minorities are more serious, and the remedies required are different. In the case of national minorities and indigenous peoples, the remedy is likely to involve dividing sovereignty and allocating control over their own institutions (i.e., crafting a multi-nation state). In the case of immigrants, the remedy is likely to involve recognition within the larger national project (i.e., crafting a multicultural nationalism). And so, starting from the logic of popular sovereignty, we quickly return to the group-differentiated theory of state–minority relations I mentioned earlier.

In fact, in the final two chapters, Patten implicitly acknowledges that the nation-building interpretation of cultural formatting is more appropriate, and adjusts his proposals accordingly. It is striking that the pro-rated formula, which plays such an important role in chapter 6, disappears almost entirely from chapters 7 and 8. And I think this reflects a shift in Patten’s understanding of the formatting metaphor. In chapter 6, pro-rated funding is a remedy for formatting understood as a regrettable but necessary particularism that is extrinsic to the universal basic principles of a liberal democracy. In chapters 7 and 8, however, formatting is understood as a project of nation-building intended to build a sense of peoplehood. This conception of formatting raises the stakes for minorities, and narrows the range of possible responses, away from pro-rated funding towards proposals for multinational federalism for national minorities (chapter 7); and towards proposals for accommodating immigrants in ways that are consistent with their integration into the dominant societal culture and language (chapter 8).

In these two chapters, we start to see the outlines of a genuinely political theory of state–minority relations, one which begins with the state and the imperatives of popular sovereignty and nationhood, and then situates minority rights in relation to, and in response to, these features of modern statehood. History tells us that minorities emerged as a “problem” when states started to define their identity and legitimacy around ideas of nationhood and popular sovereignty. If liberal multiculturalism is to be fit for purpose, it must not only scrutinize the cultural interests of minorities, but must also critically address how the demos is defined and how authority over populations and territories is legitimated. Equal Recognition illuminates one part of this story, but a fuller theory of justice in state–minority relations requires asking different questions, from different starting points.