E Pluribus Unum? Theoretical Unity and Cultural Diversity
Americans genuinely seem perplexed by the issue of group rights. Ever since the Federalists' vision of the country prevailed over the view of those who saw the nation as congeries of communitarian entities, Americans have favored the ideal of unitarian nationhood without relinquishing their romance of community. A similar ambivalence is evident in the American tendency to cast issues predominantly in terms of individual rights rather than of collective rights, while still granting exceptions to those groups that seem to embody the ideals from which we imagine ourselves to have strayed.(1) Thus, we largely speak a language of uniformity -- of one body of law affecting all persons in the same way -- yet also acknowledge that religious communities like the Amish may be destroyed by state-enforced laws of general application.(2) We have long since moved away from a vision of America as a communitarian polity,(3) yet we anguish over the effect that a zoning ordinance has on a local ethnic community(4) or the damage that we do to immigrants when we fail to consider their backgrounds in criminal proceedings.(5)
The temptation, then, is to seek a unified theory that will speak to particular situations within a framework of common criteria. Such unifying theories have broad appeal in many domains of western culture, from religion to economics to law. The desire for a unifying political and moral theory is especially strong when indigenous peoples are concerned, since they have long been left to the mercy of quite different surrounding states. As a result, any unified theory must account for their particular circumstances.(6)
For the political philosopher Will Kymlicka, the unified frame proposed is that of the liberal state, a single political entity capable of attending to multiple cultures within its bounds by recognizing the need of individuals to forge their choices from within a distinctive cultural orientation.(7) Provided that its citizens all share the larger goal of enabling choices that do not harm others' capacity for choice, the unity of the state as the guarantor of such choice can be maintained.(8) For S. James Anaya, a scholar of international law, unity implicitly lies in the formulation of transnational customs and conventions.(9) Their overall principles will insure that national boundaries do not place undue burdens on the cultural or political fife of those who resided in the state...