Natan Lerner, Group Rights and Legal Pluralism

• Citation: Vol. 25 No. 2
• Publication year: 2010
• topic: Family Law

GROUP RIGHTS AND LEGAL PLURALISM

Natan Lerner*

INTRODUCTION

This Essay deals with a controversial issue in the area of group relations in democratic states, namely the place of group rights in democratic societies and the role of legal pluralism theories. Group rights are presently recognized as entitled to, if not a treatment equal to that of individual rights, at least the recognition of some form of legitimacy that justifies respect, consideration, and protection. Underlying such legitimacy is a view that looks to ensuring harmony between, and constructive coexistence of, the different components of democratic societies. This was not always the case with classic international law, which was not interested in the status and rights of groups, whatever their nature. The new approach tended to favor minorities that were more or less distinct from the majority of the respective populations, namely ethnic, religious, cultural, or linguistic groups. Recently, some of those groups are advancing a position quite different from the one that prevailed in earlier international law, which ignored groups. Beyond the goal of receiving recognition of their rights as a group, now more or less achieved, some groups strive to have part of their value systems incorporated into the general, binding legal systems of the state or to upgrade their traditional adjudication systems to the category of law. While it is clear that, in the sphere of criminal law, liberal democracies reject such aspirations, the situation is more fluid concerning family law, and it is regarding this discipline that the controversy requires attention.

This is particularly the case with religious groups because the press has generally looked to religious groups when it deals with the trend of groups asserting their rights.1 The claim that, given certain conditions, particular religious traditions should be incorporated into general state legislation and

applied to individuals adhering to such traditions, is now being seriously discussed. It has already engendered vigorous opposition not only in secularist

* Professor of Law, Interdisciplinary Center Herzliya. Many thanks to my research associate, Stav Cohen, for her most valuable help in the preparation of this Essay.

1. See, e.g., Sense About Sharia, ECONOMIST, Oct. 16, 2010, at 16–18; Whose Law Counts Most?,

   ECONOMIST, Oct. 16, 2010, at 71–72.

   quarters, but also among scholars advocating some accommodation between the secular state and religious groups. Needless to say, the claim is that these religious norms should be applied to only persons sharing the same tradition.

   
   

   The interaction between minority groups and the state has developed several models based on different historical contexts. In some states, diverse religious communities enjoy wide legal and judicial autonomy, inherited from situations that evolved under the Ottoman Empire or Western colonialism. In addition, in recent decades, traditional forms of law and behavior of indigenous populations are finding their way into international instruments, although in a limited form and not readily accepted by all states. All this has supported the argument that legal pluralism—as described in Part III—should be adopted by

   plural societies. Prakash Shah, in a book dealing primarily with Great Britain,2

   summarizes the current aspirations of legal pluralism, arguing that “the main challenge must therefore be ceasing to assume that all are equal and acknowledging that all are different, that all conceive of law in different ways, and therefore demand different things and situation specific solutions.”3

   
   

   1. THE EVOLUTION OF GROUP RIGHTS

      
      

      A short historical overview of religious rights is provided to aid in understanding modern group rights in relation to legal pluralism theories. A few treaties, starting with the Treaty of Westphalia of 1648, which granted religious rights to the Protestants in Germany, intended to protect members of

      dissenting religions.4 The Treaty of Oliva (1660) contained provisions in favor

      of Roman Catholics in Livonia, ceded by Poland to Sweden; the Treaty of Ryswick (1697) protected Catholics in territories ceded by France to Holland; and the Treaty of Paris (1763), between France, Spain, and Great Britain, granted rights to Roman Catholics in the Canadian territories taken from

      
      

2. PRAKASH SHAH, LEGAL PLURALISM IN CONFLICT: COPING WITH CULTURAL DIVERSITY IN LAW (2005).

   On Great Britain and its Muslim minority, see also Javaid Rehman, Religion, Minority Rights and Muslims of the United Kingdom, in RELIGION, HUMAN RIGHTS AND INTERNATIONAL LAW: A CRITICAL EXAMINATION OF

   ISLAMIC STATE PRACTICES 521 (Javaid Rehman & Susan C. Breau eds., 2007). The author does not advocate legal pluralism but rather an intensified struggle for nondiscrimination.

3. SHAH, supra note 2, at 173. There is an enormous collection of literature on legal pluralism. See, for

   example, WILLIAM KYMLICKA, MULTICULTURAL ODYSSEYS: NAVIGATING THE NEW INTERNATIONAL POLITICS

   OF DIVERSITY (2007), and former works of the same author. See also Ann Griffiths, Legal Pluralism, in AN INTRODUCTION TO LAW AND SOCIAL THEORY 289 (Reza Banakar & Max Travers eds., 2002); 9 THEORETICAL

   INQUIRIES L. (2008) (containing several articles on the subject).

4. NATAN LERNER, GROUP RIGHTS AND DISCRIMINATION IN INTERNATIONAL LAW 7 (2d ed. 2003)

   [hereinafter LERNER 2003].

   
   

   France.5 Later, the Congress of Vienna (1815), the Treaty of Berlin (1878), and the Constantinople Convention (1881) protected Christian religious minorities.6 A loose system of humanitarian diplomatic intervention of major powers in favor of persecuted minorities also developed, producing measures

   that acknowledged and protected the rights of groups. In the twentieth century, in the interwar period, several treaties and unilateral declarations created the “minorities system” under the aegis of the League of Nations, an interesting but unsuccessful experiment that collapsed for political reasons during World War II and was considered undesirable by the international community after the defeat of Nazi Germany and its allies.7 The system ensured the enjoyment

   of rights by specific minorities and its failure was the result of the conditions prevailing in Europe on the eve of the 1939 war.8

   
   

   When the United Nations (“UN”) was established in 1945 in San Francisco, the majority of the founding members was not inclined to recognize the rights of groups. Their approach was that human rights, as proclaimed in the 1948 Universal Declaration,9 and the application of the rule of

   nondiscrimination were enough to prevent crimes such as the Jewish Holocaust—the most brutal assault upon a group, community, or minority in modern times—or subsequent instances of genocide, a notion legally defined only after the war. While the UN Charter forbids discrimination10—and race and religion are clearly the main causes of discrimination and group

   persecution—the United Nations was not ready, in its early years, to consider group rights. An exception was the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which, by is own terms, is an instrument aimed at protecting the existence—the fundamental human right—

   of ethnic, religious, or linguistic groups.11

   
   

5. Id.

6. Id.

7. See, e.g., League of Nations Covenant art. 22.

8. See LERNER 2003, supra note 4, at 7–14 (chronicling religious rights embodied in these treaties). On group rights, see generally GROUP RIGHTS (Peter Jones ed., 2009); GROUP RIGHTS (Judith Baker ed., 1994).

9. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).

10. U.N. Charter art. 1, para. 3.

11. Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III) A (Dec. 9, 1948) [hereinafter Convention on Genocide], available at http://www.hrweb.org/legal/genocide.html. Much literature exists discussing genocide and the convention. See, e.g., ADAM JONES, GENOCIDE: A

    COMPREHENSIVE INTRODUCTION (2d ed. 2011); NEHEMIAH ROBINSON, THE GENOCIDE CONVENTION: ITS ORIGINS AND INTERPRETATION (1949); WILLIAM SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES (2009).

    The 1966 Covenants followed the line of the UN Charter and downplayed the group dimension. Article 27 of the International Covenant on Civil and Political Rights (“ICCPR”) is considered a timid and reluctant recognition of rights emanating from the existence of collective entities.12 However, by the

    early sixties, the United Nations had already started a process that took notice of the proliferation of attacks against racial and religious communities. This process resulted in the adoption in 1965 of the Convention on the Elimination of All Forms of Racial Discrimination,13 and in 1981, after many political difficulties, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.14 These instruments evidence the start of a new trend that considers the weight of group rights and needs.

    The 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities15 somewhat ameliorated the criticism of the approach taken in Article 27 of the ICCPR by urging states to promote group identity.16 The International Labor Organization Convention No. 169 on Indigenous Populations17 and the UN Declaration on the Rights of

    Indigenous People (“2007 Declaration”)18 will be discussed further below.19

    
    

12. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. On the discussion of the reach of Article 27, see LERNER, supra note 4, at 14–15.

13. Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195

    [hereinafter Convention on Racial Discrimination]; see also NATAN LERNER, THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (2d ed. 1980) (providing commentary on the convention).

14. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion

    or Belief, G.A. Res. 36/55...