Group Rights in the Liberal State: the Limitations of Idealism and the Necessity of Practicality
by Kaitlyn Newman
The very mention of the word “multiculturalism” is enough to spark heated debate in American society today. Given the controversies surrounding the building of mosques in New York City, Murfreesboro, Tennessee and other U.S. cities in the late 2000’s, issues of multiculturalism and debate over group rights have perhaps never been more relevant to American politics than they are at present. Historically, the concept of group rights has been linked to communitarian philosophy. Despite this assumption, this connection is neither desirable nor necessary, and group rights can and must exist within the framework of a modern liberal society. After all, in large modern societies, individuals are often indistinguishable from the groups to which they belong.
For the purposes of this essay, I will focus on the debate between Will Kymlicka and Rainer Forst, as their particular conceptions of group rights raise several important questions. Kymlicka is a Canadian political philosopher best known for his work on multiculturalism, and he specifically focuses on issues of multiculturalism within the framework of modern liberal theory. Forst is a German political theorist whose work focuses on pragmatism and issues of tolerance, and his work seeks to incorporate American liberal theory with German social and critical theory. Whereas Kymlicka adopts a “cultural marketplace” approach to the problem, and thus focuses on the exchanges between different cultural groups in society, Forst promotes a Kantian conception of group rights; he suggests that Kymlicka’s attempt to reconcile group rights and liberalism fails because it promotes autonomy as a form of the good and denies non-autonomous groups the same privileges as those perceived as promoting autonomy. In large part, it seems as though Kymlicka and Forst agree on the problem, and may even agree on the solution; however, Kymlicka is willing to accept minor inconsistencies between his theory and liberal theory, whereas Forst is not. While Forst’s theory of group rights is the most internally consistent, and perhaps even the most desirable, Kymlicka’s conception is the most practicable in modern liberal society, which tends to emphasize the rights of individuals and avoid discussions of group rights.
In order to fully explore Kymlicka and Forst’s competing conceptions of group rights, I will focus on the struggles of the Islamic community of Murfreesboro as evidence for the need of an unbiased theory of group rights; specifically, I consider a law already in existence in the United States: the Religious Land Use and Institutionalized Persons Act (RLUIPA), which was enacted by unanimous vote in the year 2000 in order to allow religious groups to bypass certain zoning regulations on their private lands. Ultimately, it is institutions, such as that of the Islamic Center of Murfreesboro, in which a minority group is estranged and sometimes oppressed by the majority, that group rights ought to be exercised. It is important to acknowledge the autonomy of the individual in a modern liberal society, but it is not requisite that society acknowledges the autonomy of said individuals to such an extent that it allows some to form a coalition against others for the purposes of degradation and oppression.
The Islamic Center of Mufreesboro: A Brief Introduction
Before moving forward, some background information on the Muslim community in Murfreesboro, Tennessee is needed to further an understanding of the situation. Murfreesboro is a city in middle Tennessee and, according to the 2010 census, is home to approximately 108,000 residents. The Muslim population of Murfreesboro comprises one percent of the total population and has had a constant presence in the city since the 1980’s. This religious community is ethnically diverse, with members from Syria, Egypt, Palestine, Iraq and Kurdistan, Tunisia, Libya, Saudi Arabia, and several other Middle Eastern and Northern African states. Since 2001, the Muslims of Murfreesboro have rented a small space for use as a mosque, but recently the community has grown much too large for the tiny complex. In late 2009 the Islamic Center of Murfreesboro acquired land to build a new mosque, and, in May of 2010, the building plan was approved by the Rutherford County commission, which gave the congregation approval to move forward with construction. Almost immediately, an opposition movement spearheaded by evangelical Christians began to take legal action to prevent the construction of the new mosque by suing the county commission. The prosecutors’ main claim was that they had not received prior notification of the proposed mosque and, as such, the commission had approved the site illegally. Though it was easily proven that the county commission had, in fact, followed legal protocols concerning the construction of religious institutions, as laid out in RLUIPA, the mosque-opposition was far from finished. In this year-long challenge, they attempted to halt the building of the mosque by filing a range of complaints based on traffic concerns, water and sanitation violations, and, ultimately, on their fear of encroaching Shari’ah law. By the time of the mosque’s groundbreaking in September 2011, the Islamic community had endured a suspected attack on construction equipment, an almost constant media presence and inquiry, degradation at the hands of their fellow citizens, and general suspicion and mistrust aroused by a vocal group within the population.
Despite the court’s decision in favor of the Islamic Center of Murfreesboro, the anti-Islam sentiment in Murfreesboro has yet to disappear. Perhaps the most visible opponent and continuing crusader against Islam is the failed representative Lou Ann Zelenick, who based her unsuccessful 2010 campaign largely on the issues surrounding Islam in Murfreesboro and continues to campaign against the religion by helping host events such as the “Preserving Freedom Conference: The Constitution or Sharia?” It is also worth noting that another group formed in the midst of the conflict to support the congregation in its attempt to build the mosque and continued to provide support to the Islamic Center of Murfreesboro throughout the remainder of its legal battle. It is absolutely imperative that one take note of the fundamental manner in which the conflict took shape and was fought: two groups adopted opposing stances regarding the right of another, religious, group to build a place of worship. At its very core, the fight over the Islamic Center of Murfreesboro was a conflict between groups, over the rights of a group. This situation emphasizes how individuals are often difficult to distinguish from the groups to which they belong, and consequently, some notion of group rights is necessary even in modern liberal states.
Group Rights: Luxury or Necessity?
Group rights are vital in modern liberal states of today—but this is not a universally accepted maxim. Indeed, the notion of group rights in a liberal context has been criticized as communitarian in nature and antithetical to the neutrality of the liberal state itself. These criticisms are not without merit; however, in modern society, it is nearly impossible to separate individuals from the groups to which they belong and, because of this, the liberal state must find some way to come to terms with the groups within its society. Most importantly, it must decide whether or not to afford these groups specific rights. Kymlicka argues that the liberal state has to accept group rights in order to ensure equality for all citizens. When considering the case of the Islamic Center of Murfreesboro in Tennessee, one can come to understand why Kymlicka believes group rights to be connected to equality. The RLUIPA law that was used to grant the Islamic community permission to begin construction of the mosque is not specific to any one religion. It represents the sort of neutrality that the liberal state desires to uphold, yet it also makes certain processes easier for religious groups by allowing them to bypass certain zoning regulations. The RLUIPA law promotes equality for individuals by allowing them to build places of worship and further exercise their freedom of religion, and allows the state to avoid bureaucratic inefficiency by granting zoning exceptions to religious groups. It has become too difficult to disentangle individuals from the many and varied groups to which they belong, and, in order to ensure the equality of individual group members, the liberal state must be prepared to make concessions to groups. Essentially, this law shows the necessity of group rights within the liberal state. It is simply impossible and naïve to believe that the state could function efficiently without some notion of group rights.
A Liberal Conception of Group Rights: Kymlicka vs. Forst
Once the liberal state has accepted its need for group rights, the question still remains: what conception of group rights is best? Theoretically, the liberal state desires a theory of group rights that preserves the sanctity of individual rights and which will not give groups license to use these new rights to oppress their own members in ways inconsistent with pre-established rights of the individual. Kymlicka outlines his idea of group rights as rights connected intimately to nation-building and individual autonomy. He explains that while liberal-democratic states have generally been thought to employ a policy of “benign neglect” regarding the ethno-cultural identities of their citizens, this idea is conspicuously false.
The very process of nation-building naturally favors the majority, and Kymlicka suggests that, specifically, immigrant groups ought to be able to renegotiate the terms of their integration; that is, immigrants should be able to maintain their cultural or religious traditions without being labeled as un-American or viewed with suspicion. Furthermore, he distinguishes between two types of group rights: “internal restrictions,” which apply to the group’s rights over its own members, and “external protections,” which refer to protection of a group from the decisions of the larger society. At its core, Kymlicka’s theory endorses group rights as an expression of individual autonomy and promotion of equality and upholds autonomy as a value that all members of society, as well as the state itself, ought to respect and promote.
Forst, instead, proposes a “critical theory of toleration.” His theory promotes a Kantian approach to group rights in the liberal state—one which also requires a respect for the autonomy of individuals via a moral view of persons as reasonable beings with the “right to justification,” which he defines as “the principle that … any morally relevant interference with others’ actions needs to be justified by reciprocally and generally non-rejectable reasons in order to be seen as legitimate.” In other words, one group cannot demand rights that are withheld from others, and also must not project its own values or interests onto others when making its demands. Forst’s vision of group rights focuses heavily on the concept of reciprocity between members of a community.
Primarily, Forst critiques Kymlicka’s conception of group rights as drawing too close a connection between liberty, autonomy, and the good. In other words, he says that Kymlicka’s theory of group rights assumes an inherent consensus surrounding the pursuit of the good life by assuming that one’s cultural and religious practices and the ability to revise them are necessary conditions for the good life. Indeed, Kymlicka himself asserts that “liberalism rests on the value of individual autonomy.” This, in Forst’s words, leads to the “familiar problem” of a perfectionist state that desires to “make people autonomous.” In this sense, the perfectionist state is the communitarian state, which upholds a particular idea of the “good life,” and seeks to promote this life for all of its citizens. In this particular case, the liberal state is upholding autonomy as something to be valued above all else, and this comprises its neutrality. Conversely, in Forst’s theory, respect for the individual’s right to justification does not entail a notion of the good life as a precondition, but, instead, is based on a Kantian moral obligation to respect the autonomy of others. The key difference, as Forst argues, lies in the consequent state policies. He argues that it truly matters whether a democratic state requests a group to respect individual autonomy because of an arbitrary conception of the good, which may or may not be shared by all, or whether the state asks them to respect autonomy on the basis of reciprocal justification.
Though Forst’s critique of Kymlicka’s theory is clearly valid and worth considering, it appears a bit hasty because it immediately writes off Kymlicka’s theory as perfectionist and, in so doing, ignores his original intent and the ultimate practicality of his theory. While Forst is correct in his belief that Kymlicka’s theory is internally flawed, this does not necessarily detract from the overall appeal that Kymlicka’s theory ought to have for the modern liberal state. In order to preserve the integrity and autonomy of the individuals within, the liberal state must sometimes engage in seemingly contradictory practices such as upholding autonomy and individual liberty as inviolable values.
Returning to Forst’s argument, one sees that he distinguishes between permission and respect conceptions of toleration. The permission conception allows the minority to live according to their beliefs only if they accept the majority’s authority; in other words, to be tolerated, the minority must accept its status as the weaker party. Conversely, following the respect conception of toleration, tolerating parties recognize each other as political and moral equals and respect one another as autonomous individuals. Because of Kymlicka’s implied connection between liberty, autonomy, and the good, the only form of toleration in a society that accepts his premises for group rights would be the permission conception, which Forst seems to find distasteful. Certain groups will naturally maintain visions of the good life that differ radically from the good life as envisioned by a state attempting to promote liberal autonomy, and the autonomy-promoting state’s values would come into direct conflict with these groups. These difficulties could only be resolved if such a state grants permission to “non-autonomous groups” to continue to pursue their own ends.
At times, the true areas of contention between Kymlicka and Forst are unclear and seem more to be a matter of semantics than of actual importance. Forst and Kymlicka actually appear to have much more in common than they may have believed. As Kymlicka admits in his response to Forst, he is “not sure what the real dispute is.” In the next section, I will discuss the practical implications of their respective theories in order to see where the true differences lie, and if they are, perhaps, reconcilable.
From Philosophy to Reality
In order to properly evaluate the differences between the theories proposed by Kymlicka and Forst, I have chosen the situation of the previously mentioned Islamic Center of Mufreesboro as a case study. As it would be practically applied to the situation of the Muslim population of Murfreesboro, Kymlicka’s theory seems appealing. Such a situation clearly calls for “external protections” only, and merits little need for any “internal restrictions,” which seem to be the most problematic of the two types for liberals. In fact, Kymlicka’s theory already appears to be at work in the Murfreesboro community, as the court has upheld the RLUIPA law in favor of the proposed mosque and allowed the group to continue with its plans to build. It is true that this view asks members of the city to acknowledge the rights of the Islamic community by recognizing the importance of autonomy and liberty, but there is no proof that doing so is necessarily detrimental to the state or society, as Forst seems to suggest.
Unfortunately, the solutions provided by Kymlicka’s theory do not deal with the much deeper problem in Murfreesboro and in parts of larger American culture: a lack of respect for Islamic religion and culture. For whatever reason, some Americans today do not perceive Muslim groups as possessing any shared right to justification. This view enables them to support restricting the same religious rights of Muslims that they themselves enjoy every single day. If these same Americans were to accept Forst’s conception of toleration and, consequently, of group rights, they would be able to maintain consciousness of their disagreements with Muslim citizens, but would respect them as moral individuals, and, as such, would cease their attempts to deny them access to the same rights and privileges that other, non-Muslim religious groups already possess.
Ultimately, Forst’s theory is less realistic than Kymlicka’s theory. In true Kantian fashion, Forst assumes that people will be willing to accept moral autonomy in place of personal autonomy, yet he gives no evidence for this claim, as Kymlicka points out. While Forst’s theory is better in that it resolves some of the underlying tensions within Kymlicka’s theory—namely, Forst addresses the problem of autonomy as part of the good life—it is not equally clear that it could be implemented effectively in a society. It is idealistic and perhaps even naïve to hope for universal mutual respect between different cultural, ethnic, or religious groups based on anything other than their own self-interest. Kymlicka’s distinction between external protections and internal restrictions is absolutely necessary to any liberal theory of multiculturalism. While it seems inconsistent for the liberal state to promote autonomy as a value, it would be even more inconsistent, and potentially harmful, if the state were to grant authority to non-autonomous groups to restrict the personal liberties of their members. The liberal state absolutely must maintain this distinction in order to uphold its responsibility to protect the rights of the individual.
As has previously been stated, an incorporation of group rights into the framework of the modern liberal state can only succeed by adopting individualistic premises. This is the maxim to which both Kymlicka and Forst’s conceptions of group rights attempt to adhere. Kymlicka unintentionally endorses a view which presupposes a general consensus regarding the good life and implies the necessity of a state which promotes the values of autonomy and liberty. Forst’s Kantian basis for group rights provides the most consistent theory of group rights because it preserves the sanctity of the individual while also allowing for the protection of groups through the reciprocal “right to justification.” Despite its minor inconsistencies, Kymlicka’s theory is still the most practicably appealing because it is difficult to believe that a theory such as Forst’s would ever take hold in society in any meaningful way.
One must acknowledge the necessity of several aspects of Kymlicka’s theory, such as his distinction between internal restrictions and external protections. As applied to the case of the Islamic Center of Mufreesboro, his theory seems the most likely to succeed because it promotes equality and autonomy by appealing to the individual’s sense of fairness; for example, the RLUIPA law is fair because it applies equally to all religious groups. Despite the evident practicability of Kymlicka’s theory, there still exists a need to further develop and refine the theory proposed by Forst, as he raises several concerns that have as of yet gone unanswered. One key concern is how Forst’s ideas of respect and reciprocity are of the utmost importance, especially with regards to a more inclusive consideration of group rights. Until the entire community respects the ways of life of all its citizens, the struggle will continue. Despite the Islamic Center of Mufreesboro’s apparent victory in Tennessee, the Islamic community will only be accepted as equals once their way of life is recognized as equally worthwhile and valid by the rest of the citizens. As the noted religious scholar, Diana Eck, puts it, the new religious diversity in America demands the “right to be different, not just in dress and public participation, but in religion and creed, united only by participation in the common covenants of citizenship.”
The case of the Islamic Center of Mufreesboro’s mosque in Tennessee is certainly not an isolated case. It is a small part of the much larger backlash against American Muslims in general. In today’s multicultural society, the study and clarification of group rights has become a necessity. The religious, cultural, ethnic, and other groups to which these individuals belong have taken center stage in the debate over multiculturalism, and their voices and demands will not be ignored.
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