Multicutlural Citizenship or a Law of Peoples? Kymlicka on self-determination

and group-rights

Over the course of his career, Will Kymlicka has developed an influential account of group-

rights notable for its strong commitment to both luck egalitarianism and individual autonomy

(understood as the freedom to rationally form and revise conceptions of the good in light of

alternatives).1 Kymlicka argues that ‘it’s only through having a rich and secure cultural

structure that people can become aware, in a vivid way, of the options available to them, and

intelligently examine their value.’2 Consequently, unless people have secure membership of

cultural community, their capacity to freely form, revise, and pursue life options will be

severely limited. Thus, ensuring the equal liberty of all to freely form, revise, and pursue

conceptions of the good requires that all enjoy secure membership of a cultural community,

something that is often denied to national minorities under pressure to assimilate into the

dominant societal culture. In this way, Kymlicka proposes that we should treat secure

membership of a cultural community as a kind of primary good or resource, subject to luck

egalitarian distributive principles.3 Being a member of a vulnerable national minority is like

being born with a disability. Just as someone with a disability—through no fault of her own—

needs additional resources so that she may enjoy the same opportunity as others to pursue her

1 See Will Kymlicka, "Liberal Individualism and Liberal Neutrality," Ethics 99 (1989); Will

Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989), chapter 1;

Will Kymlicka, "Two Models of Pluralism and Tolerance," Analyse and Kritik Summer

(1992).

2 Kymlicka, Liberalism, Community, and Culture, 165.

3 It is for this reason that Kymlicka’s position has been labelled “luck mutliculturalism.” See

Jonathan Quong, “Cultural exemptions, expensive tastes, and equal opportunities,” Journal of

Applied Philosophy 23, no. 1 (2006): 54-55.

2

desires, ambitions, and life projects, vulnerable national minorities need special measures—

additional resources and group rights—to protect the viability of their cultural community if

they are to have the same chance as members of more dominant groups to pursue their aims,

ambitions, and life-projects.4

What is particularly notable about Kymlicka’s approach to minority rights is the way he

reduces the debate over group rights to a debate over equality of resources that can be settled

from within a luck egalitarian framework: ‘People should have to pay for their choices, but

special political rights are needed to remove inequalities in the context of choice which arise

before people even make their choices.’ Thus, ‘the guarantee of aboriginal rights can be seen

as spelling out what it means to treat aboriginal people as equals, given their special

circumstances.’5 Many of Kymlicka’s critics, by contrast, treat group-rights as raising meta-

theoretical questions about the limits of liberal egalitarianism in the face of the diversity of

peoples. For theorists such as William Galston, Vernon Van Dyke, and Bhikhu Parekh, the

fact of cultural pluralism calls into question the very scope of liberal egalitarianism, while the

contestability of liberal principles in the face of religious and cultural pluralism means that

liberal egalitarianism cannot be assumed as the arbiter of recognition claims. 6 For the latter

two theorists in particular, group rights raise similar sorts of issues as those that lie at the heart

of the dispute between cosmoplitans and their criticis over the requirements of global justice

—whether liberal egalitarian principles can be imposed on people against their will.

4 Will Kymlicka, Liberalism, community and culture (Oxford University Press, 1991), 189.

5 Ibid., 190-191.

6 William A. Galston, "Two Concepts of Liberalism," Ethics 105 (1995); Bhikhu C. Parekh,

Rethinking Multiculturalism, 2nd ed. (New York, N.Y.: Palgrave Macmillan, 2000); Vernon

Van Dyke, "The Individual, the State, and Ethnic Communities in Political Theory," World

Politics 29, no. 3 (1977).

3

Kymlicka’s project, by contrast, is to show that minority rights and liberal egalitarianism are

mutually compatible.

Despite—or perhaps because of—its influence, Kymlicka’s theory of group rights has come

in for much criticism in the literature. Much of this has concentrated on the difficulty that his

theory faces moving from an argument about the value of cultural membership for individual

autonomy to a defence of group rights for actual national minorities.7 His distinction between

the claims of national minorities and those of immigrant groups has also received its fair share

of criticism.8 I say something about the strength of these criticisms below. However, what I

am more interested in exploring in this paper are the alternative sources of commitment to the

cause of national minorities that can be found in Kymlicka’s work and which stand in tension

with his luck egalitarian argument for group rights.

7 See, for example, Choudhry, Sujit. "National Minorities and Ethnic Immigrants:

Liberalism's Political Sociology." Journal of Political Philosophy 10, no. 1 (2002): 54-78.

Nickel, James W. "The Value of Cultural Belonging: Expanding Kymlicka's Theory."

Dialogue 33, no. 4 (1994): 635-42.

8 See, for example, Joseph Carens, "Liberalism and Culture," Constellations 4, no. 1 (1997),

Choudhry, "National Minorities and Ethnic Immigrants: Liberalism's Political Sociology.",

Chandran Kukathas, "Multiculturalism as Fairness: Will Kymlicka's Multicultural

Citizenship," The Journal of Political Philosophy 5, no. 4 (1997), Geoffrey Brahm Levey,

"Equality, Autonomy, and Cultural Rights," Political Theory 25, no. 2 (1997), Jonathan

Quong, "Cultural Exemptions, Expensive Tastes, and Equal Opportunities," Journal of

Applied Philosophy 23, no. 1 (2006), Iris Marion Young, "A Multicultural Continuum: A

Critique of Will Kymlicka's Ethnic-Nation Dichotomy," Constellations 4, no. 1 (1997).

4

In an early review of Kymlicka’s Multicultural Citizenship, John Tomasi suggested that

Kymlicka might do better to jettison the idea of a cultural structure as a context of choice as

the cornerstone of his argument and instead build the case for indigenous rights on arguments

similar to those advanced by Rawls in his Law of Peoples.9 Just as Rawls argues there are

non-liberal peoples that warrant respect and toleration in accordance with the idea of political

liberalism applied internationally, Tomasi suggests that the self-government rights of decent,

but non-liberal, indigenous peoples within liberal states similarly deserve to be recognised

and respected.10 What I want to suggest is that Kymlicka’s commitment to the self-

government rights of indigenous peoples actually comes very close to Rawls’s defence of the

corporate right to self-determination of decent peoples in The Law of Peoples. It is a

commitment to the self-government rights of indigenous peoples that cannot be derived from

the value of cultural membership as a context of choice, not least because indigenous peoples’

corporate right to self-determination often acts to undermine the individual autonomy of

group members. Nonetheless, what Kymlicka has to say about hard-cases suggests that it is

something like a Rawlsian commitment to the self-government rights of decent peoples rather

than a comprehensive liberal commitment to safeguarding the conditions of individual

autonomy that best explains Kymlicka’s defence of indigenous rights.

If I am right about the extent of Kymlicka’s commitment to the self-determination of peoples,

serious consequences follow for the nature of the claims national minorities and indigenous

peoples can prosecute against the dominant societal culture. For what members of different

peoples owe each other as a matter of justice, if we follow a Rawlsian approach, is much less

than what fellow citizens owe each other as co-participants in a scheme of mutual

9 John Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities," Ethics 105

(1995), 595-603.

10 Tomasi, "Kymlicka, Liberalism, and Respect for Cultural Minorities," 600.

5

cooperation. This is evident, as we will see below, in the distinction that Rawls draws

between the requirements of distributive justice in the domestic case—where inequalities

must always be to the benefit of the least advantaged—and the more minimal duty of

assistance that governs the global redistribution of wealth (under which advantaged peoples

are required only to ensure that burdened societies are capable of well-ordered, self-

government and no more).11 Widespread inequalities are thus permissible between members

of different peoples when the terms of association between them are governed by the Law of

Peoples. However, the toleration of widespread inequalities between majority and minority

nations within the state is anathema to the luck egalitarian argument Kymlicka explicitly

advances in favour of group rights. Indeed, the whole point of group rights according to

Kymlicka’s luck egalitarian argument is precisely to reduce unjust inequalities between

majority and minority nations.

The argument of the paper proceed in four stages. In section I, I set out Kymlicka’s luck

egalitarian argument for group rights in more detail before going on to contrast this with

Rawls’s argument for the toleration of decent peoples in Section II. I then consider how

Kymlicka’s comments on the group-rights claims of refugees, small national minorities, and

indiegenous peoples that restrict the liberty of women suggest an affinity between his

approach and Rawls’s argument for the toleration of decent peoples. The final section of the

paper considers the tension between the two different arguments Kymlicka gives for

respecting the self-government rights of indigenous peoples.

I. KYMLICKA’S LUCK EGALITARIAN ARGUMENT

11 John Rawls, The Law of Peoples : With "The Idea of Public Reason Revisited" (Cambridge,

Mass. ; London: Harvard University Press, 1999), 119.

6

Kymlicka’s luck egalitarian argument proceeds in two stages. Central to the first stage of his

argument is the idea that while ‘the decision about how to lead our lives must ultimately be

ours alone….it’s only through having a rich and secure cultural structure that people can

become aware, in a vivid way, of the options available to them, and intelligently examine

their value.’12 This is because, firstly, cultural structures provide people with a range of life-

options to choose from, extending over all the important domains of human experience. The

sort of cultural structures that Kymlicka has in mind here are societal cultures or territorially

concentrated national communities with a shared language, tradition and history, as well as

robust political, social and economic institutions. Immigrant communities lack the

institutional strucutres necessary to provide their members with the range of life-options

needed to ground their capacity for autonomous choice.13 Secondly, cultures provide a shared

language, tradition and history that serves as an evaluative framework that gives meaning to

the different life-options availble and which enables meanginful choice between them. ‘In this

sense, our culture not only provides options, it also “provides the spectacles through which we

identify experiences as valuable”.’14

The second stage of Kymlicka’s argument appeals to the luck egalitarian cut between choice

and circumstance to explain why group-rights (and indeed additional resources) are a

response to inequalities in people’s circumstances and not differences in their choices. For it

12 Kymlicka, Liberalism, Community, and Culture, 164-65.

13 Kymlicka, Multicultural Citizenship, 80.

14 Will Kymlicka, Multicultural Citizenship, Oxford political theory (Oxford: Clarendon

Press, 1995), 83. As Kymlicka elsewhere puts it, ‘people make choices about the social

practices around them, based on their beliefs about the value of these particular practices. And

to have a belief about the value of a practice is, in the first instance, a matter of understanding

the meanings attached to it by our culture.’ Kymlicka, Politics in the Vernacular, 209.

7

is central to the luck egalitarian approach that, although no one should be disadvantaged

because of inequalities in their social circumstances or level of natural endowment over which

they have no control, ‘[d]ifferences that are due to people’s choices are their own

responsibility.’15 Hence, Kymlicka needs to explain why group-rights for national minorities

are about reducing inequalities in national minorities’ circumstances. He does this by treating

the vulnerability of indigenous and national minority societal cultures as an unchosen

disadvantage and by rejecting the idea that minorities can simply choose to integrate into the

dominant societal culture so as to avoid the disadvantage of not have secure membership of a

cultural structure:

Unlike the dominant French or English cultures, the very existence of aboriginal cultural

communities is vulnerable to the decisions of the non-aboriginal majority around them…

As a result, they have to spend their resources on securing the cultural membership

which makes sense of their lives, something which non-aboriginal people get for free.

And this is true regardless of the costs of the particular choices aboriginal or non-

aboriginal individuals make.’16

In other words, in the absence of adequate protections, national minorities have to spend a

large part of their resources on securing the cultural membership that enables them to pursue

life-options leaving them with fewer resources to spend on actually making choices than

members of the majority national culture, who get the good of secure cultural membership for

15 Kymlicka, Liberalism, community and culture, 188.

16 Kymlicka, Liberalism, Community, and Culture, 187. For a criticism of this analogy

between membership of a minority societal culture and the suffering of a disability see John

R. Danley, "Liberalism, Aboriginal Rights, and Cultural Minorities," Philosophy and Public

Affairs 20 (1991), 175-76.

8

free. National minorities therefore suffer an inequality in opportunity in much the same way

that someone who must pay for a wheelchair to get around has fewer resources to spend on

the pursuit of her life plans than the able-bodied person who gets mobility for free.17To make

the analogy between disability and the cultural disadvantage of national minorities stick,

however, Kymlicka must also argue that national minorities cannot simply overcome the

disadvantage they face in respect of secure membership of a context of choice by choosing to

integrate into the dominant societal culture. To see why, consider the example that Kymlicka

raises in a different context of the tennis player who chooses to work only a few hours a day

so that he can spend the rest of his time playing tennis. As a result, he earns considerably less

than his neighbour, the industrious gardener, who has deliberately chosen to work hard so that

she can earn more. Since the tennis player ‘could have chosen income-producing gardening if

he wished, just as [the gardener] could have chosen non-income producing tennis,’ Kymlicka

argues, the inequality in resource holdings between the two is not unjust.18 Similarly, if

national minorities can avoid the disadvantage they now face in terms of having secure

membership of a context of choice by simply choosing to join the dominant societal culture,

17 This appeal to the choice/chance distinction also provides a second way in which we can

distinguish between the claims of national minorities to group-rights and those of immigrants.

For unlike national minorities, immigrants’ minority status is largely the result of their own

decision to immigrate: immigrants who had secure membership of their own cultural

community before migrating cannot reasonably ask the receiving society to pay the cultural

costs of their decision to migrate. See Kymlicka, Multicultural Citizenship, 96.

18 Kymlicka, Contemporary Political Philosophy : An Introduction, 73.

9

then group-rights unjustly subsidise their choices.19 So Kymlicka needs some account of why

it is unfair to expect national minorities to integrate into the dominant societal culture.

Here Kymlicka appeals to the harm of cultural transplantation: ‘People are bound, in an

important way, to their own cultural community. We can’t just transplant people from one

culture to another, even if we provide the opportunity to learn the other language and

culture.’20 ‘Cultural membership,’ Kymlicka writes, ‘affects our very sense of personal

identity and capacity.’21 The thought here is that our identities are so wedded to particular

cultural contexts that the loss of this cultural membership would affect our agency and thus

cause real harm to our capacity for autonomy. There is considerable truth to the idea of harm

from cultural transplantion, particularly in regards to indigenous people whose evaluative

horizons may not easily make sense of the life-options available in the dominant soceital

culture. However, the general idea that cultural transplantation from a minority to a dominant

19 Another way of appreciating this point is: on a luck egalitarian conception, someone whose

leg is severely damaged in a car accident through no fault of her own is only entitled to the

level of resources needed to give her the level of mobility and functioning enjoyed by others.

She is not entitled to whatever amount of resources it takes to give her back the use of her leg.

If a prosthetic limb can provide her with an equivalent mobility for less than the cost of

corrective surgery without doing damage to her sense of self-respect, it is not clear that she

has any right to the resources needed to restore her leg to its former glory. By the same token,

if membership of the mainstream societal culture could equally serve to provide minorities

with a secure context of auotnomous choice, it’s not immediately obvious that they have any

rights to the resources and protections needed to secure the ongoing viability of their own

soceital culture.

20 Kymlicka, Liberalism, Community, and Culture, 175.

21 Ibid.

10

societal culture is always harmful is difficult to sustain and Kymlicka’s argument has rightly

been criticised on this point.22 Indeed, as Sujit Choudhry has argued, if people were unable to

function autonomously outside their own cultural communities, then immigrants ought to

suffer tremendous harms to their autonomy from the process of trans-cultural migration. Yet

many immigrants flourish in their new environments.23 Likewise, many national minorities

may well be capable of functioning autonomously in the dominant societal culture,

particularly national minorities such as the Québécois, Scots, Catalans, Basques and Flemish.

The members of these national minorities are often fluent in the language of the dominant

societal culture and share many of the same aims, ambitions, and preferences as members of

the dominant culture. Where they differ is in relation to the language through which they wish

to express and pursue those life-options.24

22 For particularly insightful criticisms of Kymlicka’s argument on these and other points see

Carens, "Liberalism and Culture."; Sujit Choudhry, "National Minorities and Ethnic

Immigrants: Liberalism's Political Sociology," Journal of Political Philosophy 10 (2002);

James W. Nickel, "The Value of Cultural Belonging: Expanding Kymlicka's Theory,"

Dialogue 33 (1994); Bhikhu Parekh, "Dilemmas of a Multicultural Theory of Citizenship,"

Constellations 4 (1997); Iris Marion Young, "A Multicultural Continuum: A Critique of Will

Kymlicka's Ethnic-Nation Dichotomy," Constellations 4 (1997).

23 See Sujit Choudhry, "National Minorities and Ethnic Immigrants: Liberalism's Political

Sociology," Journal of Political Philosophy 10, no. 1 (2002): 61-2.

24 Of course, national minorities often object to the history and sense of shared identity

conveyed by the mainstream culture on the basis that it excludes them from equal citizenship

and alienates them from democratic and social institutions. National minorities may also be

vulnerable to discrimination on the basis of ethnicity, political identity, accent, or language.

To the extent that this is so, integrating national minorities into the mainstream soceital

11

Despite such problems with the idea of harm from cultural transplantation, it plays a crucial

role in Kymlicka’s argument. Not only does it explain why being a member of a vulnerable

national minority is an unchosen inequality, it also explains why Kymlicka is, on the face of

it, so opposed to minorities placing internal restrictions on the liberty of group members. If

individuals are not free to move between cultural communities without thereby jeopardising

their liberty to lead autonomous lives, the only sorts of cultural memberships that can be

permitted on a comprehensive liberal view such as Kymlicka’s are memberships of internally

liberal cultural communities. Otherwise, we are giving communities the right to place

constraints on the autonomy of their members for the sake of the importance of cultural

membership to individuals’ autonomy—a paradoxical and inconsistent argument. Thus, if it is

unreasonable to expect individuals to move between cultural communities, restrictions on

liberty of conscience within cultural communities are necessarily restrictions on the liberty of

members as individuals and as citizens. Kymlicka himself makes this abundantly clear in

regards to granting communities, such as the Amish, the right to restrict the education of their

members: [R]estricting religious freedom, or denying education to girls, violates one of the

reasons liberals have for wanting to protect cultural membership—namely, that membership

culture will hardly secure the conditions of their autonomy or the conditions of their equality

of opportunity. Nevertheless, the appropriate response amidst such circumstances may be to

work to reform the dominant soceital culture to be more inclusive and accepting of cultural

diversity—in the way that Kymlicka argues we need to do for immigrants—instead of

working to preserve the mainstream and minority cultures as distinct societies. For example,

recognising minority languages as co-official languages of the state may help to erode the

obstacles that national minorities face in participating in common political, social and

economic institutions while fostering a greater sense of political inclusion.

12

in a culture enables informed choice about how to lead one’s life.’ 25 As Kymlicka likewise

explains in discussing the claims of Native Indian groups the discriminate against religious

minorities within their community, ‘supporting the intolerant character of a cultural

community undermines the very reason we had to support cultural membership—that it

allows for meaningful individual choice. To support the majority in an Indian reservation

when it denies religious freedom to the minority is to support the imposition of gratuitious

and unjust harm on others.’26

I will come back to Kymlicka’s discussion of non-liberal indigenous peoples in due course, as

his comments on the group-rights of the Pueblo are highly illustrative of the depth of his

commitment to the self-determination of indigenous peoples and national minorities. In the

meantime, it is important to appreciate just how substantial the claims that indigenous peoples

have against the dominant societal culture are if Kymlicka’s luck egalitarian defence of group

rights is successful, bearing in mind that one of the axioms of luck egalitarianism is that it is

unfair if some are worse off than others through no fault or choice of their own. As Joe

Carens has pointed out, if we take Kymlicka seriously, then not only is it unjust that

minorities’ membership of their societal culture is jeopardised by the assimilating forces of

the state, it is equally unjust that indigenous people should suffer material and economic

disadvantage as a result of their minority status. In other words, not only are we obliged to

provide indigenous people with self-government rights and land rights to secure the ongoing

viability of their societal cultures, we may also be obliged to ensure that they suffer no

additional disadvantages as a result of differences between the level of opportunity available

in their societal culture and that available to members of the dominant societal culture. This

could prove extremely costly:

25 Kymlicka, Multicultural Citizenship, 153.

26 Kymlicka, Liberalism, community and culture, 197.

13

Some aboriginal languages are spoken only by several thousand people, others

by several hundred thousand, but none by millions. Now it is one thing to say

that aboriginal people should be educated in their own languages, at least if they

(or their parents in the case of young children) wish it. That is a minimum

requirement of justice…But how extensive is this obligation? For example, does

it require Canadian society to pay for the translation of textbooks into aboriginal

languages? If so, what sorts of choices should aboriginal peoples have among

textbooks, including the possibility of choosing new ones as they appear? The

point is that to reproduce the extensive choices available in English or French

would be extremely expensive, while to limit the choices is to disadvantage

aboriginal students in relation to those educated in the dominant languages.

What limits do equality and justice set here?27

Caren’s comments cast doubt over whether small minority societal cultures can, in fact,

provide for the conditions of their members autonomy. It is difficult to see how cultural

communities that provide their members with relatively few opportunities to form, evaluate

and revise their beliefs and life-plans in light of a wide range of meaningful alternatives serve

as contexts of autonomous choice for their members. Indeed, this is one of the reasons why

Kymlicka rejected the idea that immigrant communities have a claim to self-government

rights.28 But consider the situation of indigenous peoples in Australia’s Northern Territory,

where many indigenous people live in communities of less than 1,000 members each, and

some in communities where the common indigenous language is spoken by only a few

hundred.29 Unless such indigenous people learn how to communicate in English, they will be

unable to access many of the educational and occupational opportunities that other

27 Joseph Carens, "Liberalism and Culture," Constellations 4 (1997), 42.

28 See Kymlicka, Politics in the Vernacular, 54.

14

Australians enjoy and they may face difficulties in accessing a wide enough range of life-

options to provide for the conditions of their autonomy.

It may be argued that it is unreasonable to compare the level of opportunities available in

indigenous and non-indigenous societal cultures since the sorts of opportunities provided by

non-indigenous societal cultures are not opportunities that indigenous people are interested in

having in the first place. Few, if any, of the range of social practices available within the

mainstream culture are considered worthwhile life-options by indigenous people. And, for a

societal culture to serve as a context of choice, it not only must provide its members with a

range of social practices to choose from, those social practices must be considered meaningful

according to a shared vocabulary of tradition and convention. Consequently, the greater

number of choices available in the mainstream societal culture is no evidence of the superior

ability of that culture to provide for the autonomy of indigenous people. This is certainly true.

But the point can be taken too far. The fact is that many indigenous communities are simply

too small to provide their members with enough meaningful life-options to cater for the

conditions of their individual autonomy and members will have to leave the community for

the towns and cities of the dominant societal culture in order to pursue wider opportunities.

This creates a tension between members’ interest in autonomy and their interest in the

ongoing viability of their cultural community.

29 John Taylor, "Indigenous Economic Futures in the Northern Territory: The Demographic

and Socioeconomic Background," in Centre for Aboriginal Economic Policy Research

Discussion Papers (Canberra: Centre for Aboriginal Economic Policy Research, Australian

National University 2003), 2-4. See Education and Training Department of Employment,

Northern Territory, "Indigenous Languages and Culture in Northern Territory Schools Report

2004-5," (Darwin: Department of Employment, Education and Training, Northern Territory,

2005), xi.

15

Leaving aside these criticisms of Kymlicka’s argument, I now wish to explore the sources of

an alternative and very different account of the self-government rights of indigenous peoples

in his work, although before I unpack this account I want to firstly briefly discuss Rawls’s

argument for the self-government rights of decent peoples in his Law of Peoples, as I plan to

show how the sort of right to self-determination for indigenous peoples that Kymlicka ends up

supporting is ultimately vey similar to the political self-determination of decent peoples that

Rawls defends in Law of Peoples.

II. Rawls’s Law of Peoples

On the face of it, Rawls’s argument for the self-government rights of decent peoples could not

be more different to Kymlicka’s luck egalitarian argument for group rights. Firstly, Rawls’s

eschews liberal egalitarianism as a framework for setting out the rights of societal cultures by

arguing strongly against extending the distributive obligations that hold between citizens of a

liberal democracy to members of different peoples (Rawls’s notion of a ‘people’ closely

resembles Kymlicka’s idea of a societal culture). Under The Law of Peoples,30 affluent

peoples need only fulfil obligations of assistance to ensure that burdened societies can be self-

governing. Beyond this, the Law of Peoples is indifferent to the level of inequality between

and within societies.31 Hence, Rawls would reject the notion that there is any obligation to

provide equivalent economic opportunities to members of indigenous societal cultures as are

available to members of the dominant societal culture even if the societal culture into which

one is born is purely a matter of luck (i.e. an inequality in circumstance). Similarly, unless

they compromised the ability of decent peoples to be well-ordered societies, the vast

30 As I use it, the non-italicised term ‘Law of Peoples’ refers to Rawls conception of

international justice whereas The Law of Peoples refers to Rawls book of the same name.

31 On this point see Rawls, The Law of Peoples, 113-9.

16

inequalities in health that exist between and within countries would not be considered unjust

according to Rawls.32 Secondly, Rawls argues strongly in favour respecting the self-

government rights of decent, non-liberal peoples, including peoples that are hierarchically

structured and which deny the equality of women and religious minorities, excluding them

from positions of influence and office.33 What makes such peoples deserving of respect

despite their illiberal nature is the fact that they meet two conditions.

Firstly, decent peoples are non-aggressive and respect the equal liberty of other peoples. In

this sense, they are reasonable moral agents who accept the need to propose mutually

acceptable and fair terms of social cooperation with other peoples and who refrain, out of a

sense of justice, from imposing their particular common good conception of justice on

others.34 Secondly, decent peoples respect the human rights of their members (understand

narrowly to exclude any individual right of democratic participation and allowing religious

32 See WHO, Closing the gap in a generation: Health equity through action on the social

determinants of health (WHO Commission on Social Determinants of Health, 2008). As an

example of the severity of these health inequalities consider that life expectancy at birth for

women is 43 years lower in Zambia than it is in Japan, while the infant mortality rate in

Angola is more than 76 times higher than it is in Singapore. Also, within countries there are

substantial inequalities in health associated with differences in class, race, and ethnicity, such

as the 28-year gap in life expectancy between the wealthiest and poorest residents of

Glasgow.

33 Kok-Chor Tan, "The Problem of Decent Peoples," in Rawls's Law of Peoples: A Realistic

Utopia?, ed. Rex Martin and David A. Reidy (Oxford: Blackwell 2006), 79.

34 As Rawls writes, a decent people ‘respects the political and social order of other societies.

If it does seek wider influence, it does so in ways compatible with the independence of other

societies, including their religious and civil liberties.’ Rawls, The Law of Peoples", 64.

17

discrimination but not persecution).35 Decent peoples are also regulated by a common good

conception of justice that is recognised as the genuine basis for the rule of law by members of

the judiciary and other government officials.36 Moreover, this common good conception of

justice is in turn grounded in the quasi-consent of the people since, although decent peoples

are not fully-fledged democracies, their political institutions allow for the representation and

inclusion of the views of members in some way. In this respect, the society of a decent people

is governed ‘not on the basis of naked power or fear but rather on the open and critical

exchange of public reasons’ and through ‘systems of law that impose “bona fide moral duties

and obligations…on all persons” within the territory.’37 As a consequence, decent peoples are

well-ordered societies whose political stability rests not on the oppressive use of force but on

members’ recognition and acceptance of the common good conception of justice as the basis

for their social cooperation. In this respect, they are to be distinguished from outlaw states,

burdened societies, and benevolent absolutisms who are all ill-ordered societies, either

because the rule of law is not grounded in any common good conception of justice (outlaw

states) or because it is grounded in an autocratically imposed conception of justice that is not

endorsed by the people (benevolent absolutism), or because the society is too poor to support

the ordered rule of law according to its common good conception of justice (burdened

societies).38

35 Ibid, 65.

36 Ibid, 66.

37 Stephen Macedo, "What Self-Governing Peoples Owe to One Another: Universalism,

Diversity and the Law of Peoples," Fordham Law Review 72 (2004), 1734.

38 Philip Pettit, "Rawls's Peoples," in Rawls's Law of Peoples: A Realistic Utopia?, ed. Rex

Martin and David A. Reidy (Oxford: Blackwell 2006), 41-42.

18

Because decent peoples are internally well-ordered and reasonable societies, they are capable

of participating in a collective agreement that respects the requirements of reciprocity and

which serves as the basis for a genuine overlapping consensus on the fair terms of

international social cooperation. This is provided that such an agreement recognises the equal

liberty of decent peoples and their right to self-determination, a bone of much contention for

cosmopolitans who insist that respect for the equal liberty of persons whatever their societal

membership must remain a foundational principle of any liberal conception of justice. 39

However, there are two main reasons why Rawls rejects strong cosmopolitanism. Firstly, he

maintains that ‘self-determination, duly constrained by appropriate conditions, is an important

good for a people’ and that ‘[d]ecent societies should have the opportunity to decide their

future for themselves.’40 Because peoples are moral agents with the power to form and revise

conceptions of the good, they have an interest in being free to regulate their social and

political life in accordance with their own conception of the good. The achievements of a

people in coordinating its social and political life according to its conception of the common

good and in developing its culture are properly a source of its pride and self-respect as a

people.41 The exercise of self-determination by a people has an important value for its

members as an expression of their collective agency and decent peoples have the capacity to

reform and develop their conception of the good to be more liberal and egalitarian. This is

especially so insofar as decent peoples have genuine consultation hierarchies that allow for

the representation and inclusion of those who oppose the professed conception of the common

39 See Thomas Pogge, "Eradicating Systemic Poverty: Brief for a Global Resources

Dividend," in World Poverty and Human Rights : Cosmopolitan Responsibilities and

Reforms, ed. Thomas Pogge (Cambridge, MA: Polity Press, 2002).

40 Rawls, The Law of Peoples, 85.

41 Rawls, The Law of Peoples, 34-35.

19

good (although critics question whether hierarchal societies that deny the equal liberty of

members can ever satisfy such requirements of representation and inclusion). 42 Indeed, the

coercive imposition of liberal egalitarianism may do more harm than good by denying respect

to decent peoples as self-determining political communities and thereby stifling internal

reform. ‘All societies undergo gradual changes, and this is no less true of decent societies than

others.’ Thus, Rawls argues, ‘liberal people should have confidence in their own convictions

and suppose that a decent society, when offered due respect by liberal peoples, may be more

likely, over time, to recognise the advantages of liberal institutions and take steps toward

becoming more liberal on its own.’43

A second reason why Rawls rejects global cosmopolitanism is that he does not believe such

an approach can provide an overlapping consensus on the fair terms of cooperation between

peoples. This is because the extent of religious, philosophical and moral pluralism is much

deeper at the global level.44 In this respect, Rawls sees his Law of Peoples as a direct

extension of the idea of political liberalism, according to which a conception of justice must

be seen by all parties to be a shared conception of justice that can be the basis of ‘a reasoned,

informed, and willing political agreement’ if it is to succeed in delivering fair terms of social

cooperation between them.45 Achieving this requires parties to adhere to the principle of

democratic toleration by only proposing terms of social cooperation that are mutually

acceptable. The fact of reasonable pluralism in liberal democracies means that no single

comprehensive religious, philosophical or moral system can serve as the basis of a shared

42 For an exposition of this criticism see Tan, "The Problem of Decent Peoples," 84-86.

43 Rawls, The Law of Peoples, 61, 62.

44 Ibid, 40.

45 Rawls, Political Liberalism, 9.

20

political agreement or overlapping consensus.46 Nonetheless, there is sufficient agreement

concerning the ideal of citizens as free and equals within liberal democracies, or so Rawls

maintains, for the theory of ‘justice as fairness’ with its two component principles (the Equal

Liberty principle and the Difference principle) to serve as the basis for an overlapping

consensus. However, when we consider the problem of international justice, a conception of

justice developed around the ideal of the equal liberty of citizens (or persons) can no longer

provide the basis for an overlapping consensus as support for the ideal of the citizen as free

and equal has managed to gain a foothold in the public culture of liberal democratic societies

only because of specific historical circumstances. Pluralism runs much deeper at the global

level, however: the ideal of the equal liberty of persons holds far less currency with members

of non-liberal democratic societies that have not been exposed to the same historical processes

of development.47 Accordingly, proposing this ideal as the basis for an agreement on the fair

terms of international social cooperation violates the principle of democratic toleration

implicit in the idea of political liberalism.48 Founding a conception of the fair terms of

46 Rawls, Political Liberalism, 37. Because of the burdens of judgement, reasonable people

who ‘desire for its own sake a social world in which they, as free and equal, can cooperate

with others on terms all can accept’ will continue to espouse competing moral, religious and

philosophical doctrines and have competing views as to the merit of comprehensive liberal

values, such as the value of moral autonomy. Ibid, 49, 50.

47 David A. Reidy, "Rawls on International Justice," Political Theory 32 (2004), 308-10.

48 As Rawls puts it, ‘If all societies were required to be liberal, then the idea of political

liberalism would fail to express due toleration for other acceptable ways (if such there are, as I

assume) of ordering society. We recognise that a liberal society is to respect its citizens’

comprehensive doctrines—religious, philosophical, and moral—provided that these doctrines

are pursued in ways compatible with a reasonable political conception of justice and its public

21

cooperation between peoples on an ideal of the equal liberty of persons also goes beyond the

scope of international justice by misdescribing the problem of social coordination that an

agreement on fair terms of cooperation between peoples is intended to resolve.

Conceptions of domestic justice cannot avoid stipulating the fair terms of social cooperation

between individuals since it is problems of social coordination between individuals that give

rise to the need for such conceptions of justice in the first place. The extent of interaction

between individuals at the domestic level means that individuals not only regularly come into

conflict with each other over the distribution of resources, their respective well-being is also

heavily dependent on their cooperating with each other such that they must arrive at some

mutually acceptable way of distributing the benefits and burdens of this cooperation if it is to

be stable.49 The problem of social coordination between peoples, however, is very different.

Peoples are not mutually dependent in the way that individuals within a society are, nor do

they compete with each other for wealth, income and opportunities in the way that individuals

within a society do. A people’s ability to pursue its interests is not threatened by inequalities

in income and wealth in the way that widespread inequalities within a democracy threaten

citizens’ respective liberty, while the welfare of individual members of a people depends

principally on the basic structure of their society and stable cooperation with their compatriots

rather than on the structure of international relations. Moreover, because the degree of overlap

between the values and aspirations that different peoples hold in common is more minimal,

reason. Similarly, we say that, provided a non-liberal society’s basic institutions meet certain

specified conditions of political right and justice and lead its people to honour a reasonable

and just law for the Society of Peoples, a liberal people is to tolerate and respect that society.’

Rawls, The Law of Peoples, 60.

49 Macedo, "What Self-Governing Peoples Owe to One Another: Universalism, Diversity and

the Law of Peoples," 1729.

22

robust comparisons of levels of advantage and disadvantage between them (and their

members) are more difficult. ‘We cannot compare societies in terms of wealth and income

and say that one is “better-off” all things considered.’50 Thus, parties to an agreement on the

fair terms of international cooperation are not concerned so much with how to distribute the

primary goods that structure and result from relationships of thick social cooperation between

individuals but with how to ensure conditions of peace between largely independent peoples

whose well-being is only loosely contingent on maintaining relationships of social

cooperation with other societies. For this reason, parties may reasonably object to the idea that

such an agreement is to concern itself with the distribution of income and wealth (among

other things) between individuals, insisting that this is more properly a matter of domestic

justice.51

50 Ibid, 1728.

51 As Petit here points out, ‘The members of a well-ordered people are not socially connected

with the members of any other well-ordered people in the way in which they are connected

with one another as partners in a regime of common reasons. And so, by [Rawls’s] lights,

there is nothing like the ground available in the domestic case, for why a well-ordered people

or its members should have obligations in justice towards the members of another such

people.’ Pettit, "Rawls's Peoples," 51. However, one criticism that might be made of Rawls

here is that processes of globalisation have ensured that the well-being of peoples is now

precisely dependent on extensive relations of social cooperation and that the well-being of

individual persons is now heavily contingent on the “basic structure” of international society.

In this respect, Rawls’s Law of Peoples merely succeeds in offer rules of social cooperation

for a vanished ‘Westphalian world.’ Allen Buchanan, "Rawls's Law of Peoples," Ethics 110

(2000). cited in Macedo, "What Self-Governing Peoples Owe to One Another: Universalism,

Diversity and the Law of Peoples," 1729.

23

Whether Rawls’s argument against strong cosmopolitanism is correct and whether he is right

about what political liberalism requires of international justice are issues that are irrelevant to

my purposes here.52 I mention Rawls’s argument only to illustrate what an alternative sort of

commitment to the self-determination of peoples might look like and to consider the limits

that such a commitment might place on the application of liberal egalitarian principles. Let us

call this the negative defence of self-determination in that what it primarily justifies is the

right of a people not to be coerced or interfered with by a more dominant society. Kymlicka’s

luck egalitarian argument for indigenous rights, by contrast, supports what we might call a

positive right to self-government in that it defends not only the right of indigenous peoples not

to be coerced by the dominant societal culture; it also supports the provision of the rights,

resources, and protections that indigenous people need to secure their ongoing viability as a

distinct societal culture. What I want to suggest below is that Kymlicka’s defence of

indigenous rights actually rests more on a negative defence of indigenous self-determination

than on his luck egalitarian argument for indigenous peoples positive right to self-

government.

III. THE SEEDS OF AN ALTERNATIVE

Kymlicka’s luck egalitarian argument rests, as we have seen, on the idea that (i) secure

membership of a societal culture provides members with a context of autonomous choice by

providing them with a wide range of life-options to choose from and an evaluative framework

by which to meaningfully choose between these life-options; and (ii) being a member of a

52 For a discussion of these issues see Kok-Chor Tan, "Liberal Toleration in Rawls's Law of

Peoples," Ethics 108 (1998). Also see the series of essays on the coherency of Rawls’s Law of

Peoples in Rex Martin and David A. Reidy, eds., Rawls's Law of Peoples: A Realistic Utopia?

(Oxford: Blackwell, 2006).

24

vulnerable minority societal culture is an unchosen inequality. These two claims supposedly

explain why the provision of group rights and additional resources to indigenous peoples is

warranted as a matter of justice, but also why immigrant minorities are not entitled to the

same sorts of protections: immigrant minorities are not sufficiently institutionally compete to

serve as contexts of choice while, unlike national minorities, their minority status is typically

a matter of choice not circumstance.53 But Kymlicka’s luck egalitarian argument, as we will

see, struggles to cope with the claims of refugees and small national minorities. For refugees,

this is because it is unreasonable to suppose that they have freely chosen to leave their societal

culture thereby waiving their right to membership of their own soceital culture. Indeed, it is

doubtful that we can even say this of many immigrants, as many people migrate only because

the conditions for leading a satisfactory life were not available in their home country.54

Kymlicka acknowledges this and accepts that it is unreasonable to count refugees’ decision to

flee for asylum as evidence that they have voluntarily waived their right to membership of

their own societal culture. Moreover, he acknowledges that one of the reasons why refugees

flee regimes is precisely to re-establish their societal culture in conditions where their survival

is not under threat (the Kurds are a case in point).55 Nonetheless, he refuses to accept that

53 As Kymlicka explains of why Americans who emigrate to Sweden aren’t entitled to the

rights and resources needed to establish themselves as distinct societal cultures, ‘in choosing

to leave the United States they relinquish the national rights that go with membership in their

original culture.’ Ibid.

54 For a forceful exposition of this criticism and a more general critique of Kymlcika’s

sociological distinction between migrants and national minorities see Choudhry, "National

Minorities and Ethnic Immigrants: Liberalism's Political Sociology."

55 Kymlicka, Multicultural Citizenship, 98.

25

refugees have a right against the receiving state to the rights and resources needed to establish

themselves as a distinct societal culture:

The sad fact is that the national rights of refugees are, in the first instance, rights

against their own government. If that government is violating their national

rights, there is no mechanism for deciding which other country should redress

that injustice….The best that refugees can realistically expect is to be treated as

immigrants…This means that long-term refugees suffer an injustice, since they

did not voluntarily relinquish their national rights. But this injustice was

committed by their home government, and it is not clear that we can realistically

ask host governments to redress it.56

Kymlicka also makes the point that ‘refugee groups, even more than immigrant groups, are

typically too small and dispersed to re-form into self-governing communities.’57 However, if

we take seriously the idea that the small size and weak institutional structures of refugee

communities means that refugees have no claim to the rights and resources needed to secure

their own societal membership, then it should follow that small indigenous peoples with

similarly weak institutional structures, such as the small indigenous peoples of Australia’s

Nortern Territory discussed earlier, also have no such claims. But Kymlicka is not prepared to

accept this conclusion. He maintains that governments ought to continue to provide

indigenous peoples with the group-rights and resources needed to maintain themselves as

distinct societal cultures even when, from the outside, it seems that their societal structures are

too thin to meet the threshold conditions required for a societal culture to function as a context

of autonomous choice:

56 Ibid, 98-9.

57 Ibid.

26

[T]he decision about whether to integrate must be up to the members of the

minority themselves. It is not for people outside the group to decide if and when

the societal culture is too thin to warrant maintaining…. It is the potentiality of

societal cultures that matters, not just their current state, and it is even more

difficult for outsiders to judge the potentiality of a culture than to judge its current

state.58

This comment raises doubts about the role that Kymlicka’s luck egalitarian argument

ultimately plays in his account. It amounts to an unwarranted presupposition that all national

minorities and indigenous communities are capable of providing a context of autonomous

choice for their members. We are left with a position whereby all communities that claim to

be a national minority or indigenous people are entitled to self-government rights irrespective

of whether or not these communities can be identified as distinct societal cultures capable of

supporting the autonomy of their members. It is difficult to see how this position is consistent

with Kymlicka’s luck egalitarianism.

For an individual or group to warrant additional resources on a luck egalitarian conception, it

has to be shown that these resources are necessary to overcome an unwanted disadvantage in

their circumstances. Someone who is blind can’t claim additional resources to purchase

expensive claret on the basis of the inequality in her circumstances since the use of additional

resources to purchase expensive claret will not overcome this inequality in her circumstances.

By the same token, if a minority claims additional resources on the basis of the disadvantage

it suffers in respect of the good of membership of a secure context of autonomous choice, we

cannot avoid the issue of whether the provision of the claimed group-rights and resources will

succeed in redressing this disadvantage. If a minority societal culture is indeed too thin to

58 Cf., Ibid, 100-1. My emphasis.

27

warrant maintaining, then targeting resources towards its protection will be a wasteful use of

resources that could have otherwise been spent on tackling more tractable inequalities. It is

inconsistent for Kymlicka to test the robustness of a community’s societal structures when

dismissing the claims of refugees yet, at the same time, deny that we can similarly dismiss the

claims of national minorities with such a test.

Many take Kymlicka’s inconsistency here to be illustrative of the implicit reliance of his

argument on historical injustice claims: national minorities are entitled to extensive rights and

resources because they have been historically oppressed by the dominant societal culture.

Conversely, the fact that immigrants and refugees have not been victims of historical injustice

means that they do not have the same claims on the dominant society. Certainly, this is a

plausible interpretation of his position that coheres with much of what he has to say about

particular cases. But I want to suggest that Kymlicka’s reluctance to require small national

minorities to integrate into the mainstream societal culture actually stems from a deeper

commitment that he has to national groups (negative) right to self-determination and the equal

liberty of peoples to determine the terms of their own social cooperation. For what seems to

worry Kymlicka most about the idea that a national minority might be integrated into the

dominant societal culture is that outsiders are denying national minorities a say in their own

fate. ‘The decision about whether to integrate must be up to the members of the minority

themselves,’ he writes. Requiring national minorities to integrate into the mainstream against

their wishes violates their right to national self-determination by eroding their sovereignty as

a people. By contrast, since immigrants and refugees have already left their national societal

culture, requiring them to integrate into the societal culture is not a violation of their

sovereignty as a people. This is not to say that their migration is necessarily voluntarily, it is

merely to point out that requiring their integration is neither coercive nor unjust because the

28

receiving state is not responsible for their decision to leave their people. Moreover, because

immigrants and refugees migrate as individuals and families, not as corporate communities,

they are no longer part of a corporately constituted people that can claim a right to equal

liberty and self-determination in the first place. The ‘people’ that enjoys an equal right to

national self-determination is the people that immigrants and refugees have left behind.

Providing refugees and immigrants with the resources they need to establish themselves as

distinct cultures in the receiving state will not do as an alternative to providing for the

conditions of their self-determination in their homeland. This is in contrast to the situation

facing members of national minorities and indigenous peoples, who are still very much part of

a corporately constituted people with an equal right to self-determination and who have never

sought to leave their people.

Kymlicka’s comments on the rights of non-liberal national minorities lend further support to

this interpretation of his position, as is evident in his discussion of the self-government rights

of the Pueblo Indians in the United States who famously employ group-rights specifically to

limit the freedom of group members.

Santa Clara Pueblo vs. Martinez59

The Santa Clara Pueblo are a semi-autonomous Native Indian band living on reservation land

in the United States. They have strict, highly discriminatory membership rules. While the

children of marriages between non-Pueblo women and Pueblo men are considered full tribal

members, Pueblo women are prohibited from marrying outside the tribe. If they do, their

children are excluded from full tribal membership thereby losing access to federally funded

59 I take the details of this case from Ayelet Shachar’s insightful discussion. See Ayelet

Shachar, Multicultural Jurisdictions (Cambridge: Cambridge University Press, 2001), 19.

29

healthcare and education initiatives and forfeiting the right to remain on reservation lands

after their mother’s death.

In Santa Clara Pueblo vs. Martinez (1978), a US court of appeal upheld the right of the

Pueblo to deny full tribal membership to Audrey Martinez upon the basis that her father was

not Pueblo.60 The U.S. Supreme Court upheld the right of the Santa Clara Pueblo to refuse

recognition to Audrey on the grounds that the tribe’s membership rules were essential to its

self-definition and integral to the survival of the community, even though Audrey had grown

up on the reservation and spoke the language of the tribe.61 As a result, Audrey and other

children fathered by non-Pueblo husbands continued to be denied access to the health,

education, and housing services routinely made available to full tribal members (the Indian

Health Services had previously refused emergency medical treatment to Audrey’s sister

because she was not a full member).62

The Pueblo practice of excluding the children of women who inter-marry from full tribal

membership clearly places a tremendous constraint on the autonomy of group members. As

Ayelet Shachar points out, while this practice may help to preserve the Pueblo societal

culture, it does so only through enforcing adherence to discriminatory marriage rules that

restrict the liberty of Pueblo women.63 For faced with the possibility that their children will be

exiled from the community, many Pueblo women may decide against intermarriage in the

60 Santa Clara Pueblo V. Martinez, 436 U.S. 49 (1978).

61 Shachar, Multicultural Jurisdictions, 9.

62 Ibid. 18.

63 Ibid, 30.

30

same way that many separated Jewish women decide against remarriage when their husbands

refuse the Get (religious divorce).64

From the perspective of Kymlicka’s luck egalitarian argument, internal restrictions on the

liberty of group members are unjust and cannot be tolerated, as we saw in Section I. As

Kymlicka has argued before, ‘on a liberal theory of equality, the very reason to respect a

principle affirming the importance of cultural membership to minority groups is also a reason

to respect a principle affirming the rights of individual members of those groups.’ 65 This is

why Kymlicka is so critical of the verdict in cases such as Wisconsin vs. Yoder and Hofer vs.

Hofer, where courts have acquiesced to the demands by religious communities for the legal

power to restrict the education of their children and to impose substantial costs on the exercise

of dissent.66 Despite railing against internal restrictions, however, Kymlicka ultimately refuses

to sanction interference in the affairs of national minorities and indigenous peoples for the

64 Under Halakhic law, a Jewish woman who remarries without the Get is considered an

adultress and any future children that she has are considered mamzerim who are then exiled

from the community and prevented from marrying within the Jewish faith. Because of this

threat to the status of themselves and their children, many Jewish women find themselves

chained to ‘limping marriages’ by the belligerence of their husbands despite their formal

liberty to civilly divorce their husbands. For discussions of the problem of limping marriages

in the Jewish community see Michael Freeman, "Law, Religion and the State: The Get

Revisted," in Families across Frontiers, ed. N. V. Lowe and Gillian Douglas (The Hague:

Kluwer Law International, 1996), 364-5. Marie Egan Provins, "Constructing an Islamic

Institute of Civil Justice That Encourages Women's Rights," Loy. L.A. Int'l. & Comp. L. Rev.

27 (2005), 527.

65 Kymlicka, Multicultural Citizenship, 197.

66 Kymlicka, "Two Models of Pluralism and Tolerance," 38-9, 45-6.

31

sake of safeguarding the autonomy of their group members. Indeed, he supports the decision

of the US court in Santa Clara Pueblo vs. Martinez to continue to allow the Pueblo to define

membership in highly discriminatory ways. ‘The American Supreme Court is the court of the

conquerors,’ Kymlicka points out, and so it is highly problematic ‘[t]o automatically assume

that the federal court has jurisdiction over Indian people.’67 But more than this, even if the

moral authority of the American Supreme Court to protect the rights of indigenous people was

not in question, it would still be unjust to intervene:

members of some minority cultures reject liberalism. In these cases, the

members of the more liberal majority will have to sit down with the members of

the national minority, and find a way of living together. Liberals have no

automatic right to impose their views on non-liberal national minorities.68

Kymlicka here draws the analogy between respecting the sovereignty of foreign nations and

respecting the self-determination of indigenous peoples:

Many of the reasons why we should be reluctant to impose liberalism on other

countries are also reasons to be sceptical of imposing liberalism on national

minorities within a country. Both foreign states and national minorities form

distinct political communities, with their own claims to self-government.

Attempts to impose liberal principles by force are often perceived in both cases

as a form of aggression or paternalistic colonialism. And, as a result, these

attempts often backfire. The plight of many former colonies in Africa shows that

67 Kymlicka, "Comments on Shachar and Spinner-Halev: An Update from the

Multiculturalism Wars," 118.

68 Kymlicka, Multicultural Citizenship, 171. My emphasis Cf. Will Kymlicka, "The Rights of

Minority Cultures: Reply to Kukathas," Political Theory 20 (1992), 145.

32

liberal institutions are likely to be unstable and transient when they have arisen

as a result of external imposition, rather than internal political reform. In the

end, liberal institutions can only really work if liberal beliefs have been

internalized by the members of the self-governing society, be it an independent

country or a national minority.69

Notice the parallels here with Rawls’s argument for the toleration of decent peoples. Like

Rawls, Kymlicka stresses the potential for minority peoples to liberalise of their own accord

while simultaneously warning against the dangers of paternalistic intolerance.70 While

Kymlicka never fleshes out the details of a people’s right to self-determination in anything

like the way that Rawls does—nor, as far as I am aware, does he ever mention Rawls’s Law of

Peoples in his work—it is clear that he has many sympathies in common with Rawls. Indeed,

what little Kymlicka says about the grounds for intervening in the affairs of a national

minority clearly resonates with what Rawls has to say about the characteristics of decent

peoples:

I think a number of factors are potentially relevant [to when intervention is

necessary], including the severity of the rights violations with the minority

community, the degree of consensus within the community on the legitimacy of

69 Kymlicka, Multicultural Citizenship, 167.

70 Compare Kymlicka’s position with Rawls’s claim that, ‘[a]ll societies undergo gradual

changes, and this is no less true of decent societies than others’ and with Rawls’s argument

that ‘liberal people should have confidence in their own convictions and suppose that a decent

society, when offered due respect by liberal peoples, may be more likely, over time, to

recognise the advantages of liberal institutions and take steps toward becoming more liberal

on its own.’ Rawls, The Law of Peoples, 61, 62.

33

restricting individual rights, the ability of dissenting group members to leave the

community if they so desire, and the existence of historical agreements with the

national minority. For example, whether it is justified to intervene in the case of

an Indian tribe that restricts freedom of conscience surely depends on whether it

is governed by a tyrannical dictator who lacks popular support and prevents

people leaving the community, or whether the tribal government has a broad

base of support and religious dissidents are free to leave.71

These comments about (a) the severity of the rights violations within a people and (b) the

degree of consensus within the community being relevant factors in determining the

appropriateness of intervention speak to Rawls’s notion of a decent people as a self-

determining political community with a common good conception of justice that is widely

endorsed by members and which respects their human rights.

While Kymlicka never pursues it, the application of Rawls’s Law of Peoples to relations

between peoples within the multinational state offers interesting scope for the resolution of

multicultural conflicts that is worthy of further exploration. For Rawls’s notion of a decent

people includes substantial requirements of political inclusion and the representation of

dissent that potentially offers a middle path between a paternalistic egalitarianism and an

indifferent tolerance in resolving the tensions between corporate autonomy and individual

autonomy that are characteristic of the exercise of group-rights.72 The dilemma faced by

Indian women in relation to the conflict between their interests as members of indigenous

71 Kymlicka, Multicultural Citizenship, 169-70. My emphasis.

72 Ducan Ivison offers an interesting exploration of the applicability of Rawls’s Law of

Peoples to cultural rights issues in relation to the question of arranged marriages. See Duncan

Ivison, "The Logic of Aboriginal Rights," Ethnicities 3 (2003), 332-36.

34

peoples and their interests as individual persons is a helpful example here. For while many

Indian women regard the internal practices of their communities as being far from just, they

may also at the same time be resistant to the idea that the dominant societal culture has the

right to require their communities to adhere to a bill of rights. What they desire is the internal

reform of their communities’ traditions and practices, and Rawls’s notion of a decent people

conceivably offers criteria through which minorities’ self-government rights may be

constrained by the requirement to be responsive to internal dissent without entailing the

coercive imposition of liberal egalitarianism. A conception of the rights of national minorities

built around Rawls’s conception of what liberals owe decent peoples would avoid treating

minorities as homogenous cultural communities and would require some level of political

deliberation within communities that allows for—and is responsive to—internal dissent and

demands for reform. The precise level of political inclusion and accommodation to dissent

required of a national minority in order for it to count as a decent people is never properly

worked out in Rawls’s The Law of Peoples. But a Law of Peoples for decent national

minorities may go some way to achieving the sort of transformative accommodation proposed

by Ayelet Shachar and Monique Deveaux (among others).73 Still, such a conception of justice

is not without its problems.

IV. TENSIONS WITH KYMLICKA’S LUCK EGALITARIANISM

For Rawls, the only obligations of distributive justice that are consistent with respect for the

equal liberty of peoples are minimal duties to assist burdened societies to ‘become fully just

and stable for the right reasons.’ ‘Once that end is reached,’ Rawls argues, ‘the Law of

73 See Monique Deveaux, "A Deliberative Approach to Conflicts of Culture," Political Theory

31 (2003); Shachar, Multicultural Jurisdictions; Ayelet Shachar, "On Citizenship and

Multicultural Vulnerability," Political Theory 28 (2000).

35

Peoples prescribes no further target such as, for example, to raise the standard of living

beyond what is necessary to sustain those institutions.’74 Thus, the application of Rawls’s Law

of Peoples to realtions between majority and minority nations within a multinational state

conceivably permits extensive inequalities between members of different peoples, such as the

disparities in income, wealth, and health achievements that exist between indigenous and non-

indigenous Australians. It would do so up until the point that these inequalities threaten the

ability of indigenous peoples to be well-ordered, self-governing communities.75 However, for

luck egalitarians committed to the idea that it is bad if some are worse off than others through

no fault or choice of their own (as Kymlicka is), inequalities such as the extensive inequalities

in income, wealth, and health achievements between indigenous and non-indiegnous

Australians are a source of deep concern that warrants an extensive redistribution of resources

particularly insofar as these inequalities are rooted in disadvantages in the circumstances of

indigenous people that are no fault of their own. Thus, Kymlicka’s respect for the self-

determination of non-liberal peoples is in many respects inconsistent with his luck

egalitarianism.

The luck egalitarian formulation of Kymlicka’s argument permits an extensive redistribution

of resources between members of minority and majority soceital cultures while, at the same

time, supporting limited self-government and land rights for indigenous peoples and national

minorities. But it does not support group-rights for non-liberal peoples or national minorities

whose institutional structures are too thin to support the individual autonomy of their

memebrs. Conversely, his appeal to the value of the corporate right to self-determination of a

74 Rawls, The Law of Peoples, p. 119.

75 Here it may reasonably be asked to what extent the existing inequalities between indigenous

and non-indigenous Australians would remain were indigenous peoples afforded the political

autonomy enjoyed by other peoples.

36

people provides an argument for respecting the political autonomy of non-liberal national

minorities but at the expense of undercutting the case he builds for transferring resources from

affluent members of the dominant societal culture to disadvantaged members of indigenous

peoples and national minorities. To the extent that we want to appeal to the equal liberty of

persons to support the transfer of resources to disadvantaged members of minority peoples,

we cannot simultaneoulsy hold that minority peoples have a right to self-determination in

virtue of their equality as peoples that requires us to tolerate systems of social cooperation

that eschew liberal egalitarian principles. We must either give up on liberal egalitarianism as

the basis for organising the terms of social cooperation between peoples or abandon a

commitment to the right to self-determination of non-liberal peoples. This is all the more

because a people’s exercise of self-determination can entrench inequalities.

Consider that the Amish have successfully won exemptions from making social security

contributions, including to Medicare.76 While elderly and disadvantaged Amish can rely on

the support of their church while they are members in good standing, retirees who decide to

leave the community after a revision of their beliefs have no social security net to fall back

on, nor do they have the same—albeit inadequate—level of access to publicly funded

healthcare that non-Amish retirees have. Now suppose that a national minority were to

simiarly propose opting out of social security or Medicare. Indeed, suppose that the

conception of the good through which this minority people structured the terms of their social

cooperation left no room for the provision of publicly funded health care or social security.

76 Self-employed Amish won the right to withdraw from the social security system in 1965

and Amish employees of Amish employers won the right to do so in 1988. For a discussion of

the issues raised by this withdrawal of the Amish from the US social security and Medicare

system see Brian Barry, Culture & Equality : An Egalitarian Critique of Multiculturalism

(Cambridge, UK: Polity, 2001), 191-92.

37

Insofar as liberals have no automatic right to impose liberal egalitarian principles on a

national minority such possibilities are permissible. But were a national minority or

indigenous people to eschew the provision of publicly funded health care and social security,

significant inequalities not only in income and wealth, but also in health outcomes would

arise between disadvantaged members of its community and otherwise similarly situated

members of the dominant societal culture. Moreover, for those suffering such inequalities,

these would be the product of brute misfortune (being born into their particular societal

culture rather than the majority societal culture) and therefore worthy of egalitarian concern.

But respect for the equal liberty of national minorities as peoples precludes redressing these

inequalities without violating peoples’ right to self-determination.

Perhaps one way of avoiding this tension is to make social security and medicare (amongst

other forms of benefit) available to members of national minorities who decide to leave their

cultural communities. In this way, the liberal state can avoid enforcing liberal egalitarian

modes of social cooperation on a national minority against its will, while, at the same time,

continuing to provide an avenue for members of non-liberal national minorities to enjoy

access to the rights, liberties, and resources that others enjoy. Here, we might think that the

increased inter-dependency of peoples within multinational federations gives us reason to

believe that the consequences of tolerating national minorities that eschew liberal egalitarian

patterns of social cooperation in the multinational state are not as severe as those in the

international case.77 However, recall that it is crucial to Kymlicka’s luck egalitarian defence of

group rights that people cannot reasonbly be expected to leave their cultural community; that

individuals suffer real harm to their autonomy from cultural transplantation. Hence, trying to

resolve the tension between Kymlicka’s different arguments for self-government rights by

insisting on the possibility of exit does an injustive to Kymlicka’s overall position. Moreover,

77 See Ivison, "The Logic of Aboriginal Rights," 332.

38

Oonagh Reitman has forcefully argued that exit may be extremely difficult even when libral

egalitarian alternatives are near because community leaders may respond to the proximity of

liberal egalitarian alternatives by elevating the social and familial pressures on members to

stay, thereby increasing the costs of exit.78

The tension between respect for the equal liberty of peoples and respect for the equality of

persons cannot be easily dissolved. While Kymlicka’s initial luck egalitarian theory built

around the notion of cultural membership as a context of choice offered the hope of justifying

group-rights in a way that avoided this tension, his subsequent comments on the rights of non-

liberal peoples and on the distinction between the claims of refugees and national minorities

suggest that this tension continues to cast a long shadow over his work. The upshot of

Kymlicka’s deep commitment to the self-determination of natonal minorities and indigenous

peoples is that meta-theoretical questions regarding the limits of liberal egalitarianism in the

face of the diversity of peoples return to the fore of questions of multiculturalism. A Law of

Peoples for the multinational state may go some way in settling these meta-theoretical

questions by offering a middle path between coercive liberalism and permissive tolerance, but

what such a Law of Peoples entails for the robustness of the obligations of justice between

peoples in a multinational state needs to be more fully worked out.79

78 Oonagh Reitman, "On Exit," in Minorities within Minorities, ed. Avigail Eisenberg and Jeff

Spinner-Halev (Cambridge: Cambridge University Press, 2005), 196-200.

79 I am grateful for the helpful comments of [ ] and [ ] and the feedback provided by an

anonymous reviewer on earlier drafts of this paper. These comments and feedback have

caused me to think much more deeply about the argument of this paper.