Joppke, Christian

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Majorities Need No Rights: A Commentary on LiavOrgad`s “The Law of Majorities” verfassungsblog.de /majorities-need-no-rights-a-commentary-on-liav-orgads-the-law-of-majorities/Christian Joppke Mi 17 Feb 2016Liav Orgad (2015) has written an admirably sensitive and learned book about besieged “majorities” in a world ofglobal mobility and flux, especially that consisting of or conditioned by people moving across borders. It opens upan entirely new, dearly needed conversation on whether we need the concept of “majority”, which hitherto hasremained legally and normatively uncharted. But is there really a case for a “liberal theory of majority rights”,analogous to a liberal theory of minority rights, both wishing to protect “personal identity and personal autonomy”(lead text, in the following “lt”)? Orgad has the right instinct that the care of the majority should not be left to thepopulist right but taken serious by liberals and the political mainstream. But the notion of a “distinctive culturalmajority” (lt), which he presents as “the inevitable outcome of multiculturalism”, rests on an unreconstructednotion of multiculturalism; and at close inspection, much as the case for liberal minority rights, the case fordistinct majority rights dissolves into a case for universal individual rights that liberal state constitutions alreadyprovide.The strongest formulation of liberal multiculturalism (Kymlicka 1995), an analogue to which Orgad wishes toestablish for cultural majorities, is highly differentiated with respect to types of minority and the rights attributed tothem. In essence, Kymlicka`s is a theory that protects the claims of national minorities and indigenous minorities,who are the victims of historical nation-state building and colonization. Immigrants and refugees, which are thepredominant concern of besieged majorities in Europe today, have a rather weak claim in liberal multiculturalism,as by the fact of leaving home immigrants have “waived” the right to see it resurrected elsewhere. This is a saneand realistic assumption. After all, the malfunction of sending societies` “social model”, which Paul Collier definesas “the combination of institutions, rules, norms, and organizations of a country” (2013:33), is the main reasonfor immigrants` leaving their society in the first, so that the claim to have (at least bits of) it rebuilt in the receivingsociety is perverse, a recipe for turning Norway into Burundi. At closer look, minority rights for immigrants areeither not “rights” but pragmatic concessions (like government communications in minority languages) or appliedindividual rights, above all religious rights (allowing for the famous turbaned Sikhs in the red uniform of Canada`sRoyal Mounted Police). The essence of liberal multiculturalism is liberal constitutionalism (even though Canadawent a step further in its symbolic enthroning of an explicit “multiculturalism policy”).Much the same can be said about Orgad`s case for liberal majority rights—in reality, they don`t go much beyondliberal constitutionalism, and rightly so. His brief account of the “law of majorities” (lt) starts appositely with thetruly outrageous proposal by Poland and Hungary to accept only “Christian” refugees, which is a clear violationnot just of international refugee law but of what civilized and secular Europe stands for. But it ends with ananodyne list of legitimate “majority rights” that do not go beyond the legal status quo. The only conception ofmajority that passes liberal muster is what he calls “idea-based majority”, one not based “on tastes in food,literature, sport, poetry”, which already tilts the outcome toward a reaffirmation of liberal constitutionalism. Andamong his four empirical cases of “needy majorities”, the case of “diminishing majorities”, which is clearly themodel for Europe and the West facing global migration today, should not be called “majority” at all, because whatis at threat here seems to be the infrastructure of liberal constitutionalism itself. In fact, a real case for majorityrights in the strict sense (trumping and going beyond individual rights) exists only for his other three cases:“regional-minority majorities”, like post-Soviet Latvians facing a significant Russian minority backed by a fiercelynationalistic and expansion-minded Russia; closely related, “minoritized majorities”, where a national majorityexhibits the state of mind of a national minority, like Poles vis-à-vis the German minority in Poland; and“victimized majorities”, like Jews in Israel, almost extinguished in the Holocaust and now surrounded by hostileArab-Muslim neighbors that would rather see them leave or dead, which seems to be the intuitive hub forOrgad`s entire theory of majority rights. Orgad does not pronounce himself on this, but only in the latter threecases, none of which are pertinent to the median Western European state today, might one endorse “majorityrights” worth the name, that is, group rights exceeding the individualist liberal constitutional canon, analogous toKymlicka`s defense of strong self-governing rights only for national and indigenous minorities.But perhaps Orgad would not even go that far because he severely restricts the “scope” of protection by “majorityrights” at large (lt). First, only culture “in the normative, rather than anthropological sense” is to be protected,which, secondly, amounts to the one enshrined in or represented by the “constitution”. Indeed, the German BasicLaw does not protect any particular German way of life, not even the German language, but mostly universalclaims of the individual against overbearing state power, as in its famous first clause that the “dignity of thehuman being is inviolable”. Thirdly, there cannot be a requirement for “moral identification”, only for “legalacceptance” of an already highly universalistic and process-defined “majority culture”, which wisely takes up theKantian law v. morality distinction. Already at this point Orgad`s case for cultural defense is so highly liberallyrestricted that his fourth and fifth restrictions (that the majority culture be “just” and that the majority be not“temporary” but “constitutional”) are basically redundant or already implied.With respect to immigration and citizenship policy, the margin for cultural defense is narrow to nil, both in the realworld and even more so on the basis of Orgad`s persuasive normative prescriptions, which limits this defense tothat of “national constitutionalism”. While it was once a common stance to select immigrants by origins, today`sspace for state discretion in this domain is limited to selecting by merit, in line with the individualism of advancedmodernity. If Poland and Hungary get away with accepting only Christian refugees, Hungary`s Prime Ministereven priding himself of building an “illiberal state” (partially with the help of EU Regional Funds), this onlydemonstrates the political impotence of the EU at present. More lame-duck and already mellowed by liberalprecepts, the mushrooming civic integration requirements for immigrants in Europe, many of which are rejectedby Orgad as illegitimate “cultural defense”, are at worst a smoke-and-mirror “perpetuation of prejudice”(Kochenov 2011), in reality neutralized and rendered pointless by a mobility-enhancing EU citizenship. Overall,unlike in Israel, Latvia, or other unstable or precarious places, the majorities of Western Europe need no specialrights or privileges because they are plural entities to begin with, not “groups” but “individuals” whose claims areprotected by the liberal constitutions of strong and uncontested states.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Joppke, Christian: Majorities Need No Rights: A Commentary on Liav Orgad`s “TheLaw of Majorities”, VerfBlog, 2016/2/17, http://verfassungsblog.de/majorities-need-no-rights-a-commentary-on-liav-orgads-the-law-of-majorities/

Majorities Need No Rights: A Commentary on Liav Orgad`s “The Law of Majorities”

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